Volume 133 — Federal Reporter

<p>1. Master and Servant — Action eor Injury to Servant — Questions eor Jury.</p> <p>The testimony of a number of witnesses that the timbering in a copper mine did not reach to the roof, or back of the stope, by several feet, and that for several hours before the caving in of the roof, by which plaintiff’s intestate, working in the mine, was killed, pieces of rock kept falling from the roof upon and through the timbers, was sufficient to authorize the submission to the jury of the question of the negligence of the defendant mining company in failing to keep the mine properly timbered.</p> <p>2. Instructions — Form—Refusal oe Requests.</p> <p>The court is not required to give instructions in the language used by counsel, but its duty is fully discharged if its charge embraces all of the principles of law arising in the case in its own language.</p> <p>3. Same.</p> <p>It is the duty of the court to simplify its charge to the jury, and the practice of taking the instructions as requested by the respective parties, and from them formulating a general charge embracing all the matters of law arising upon the pleadings and evidence, is always to be commended, because in this way the points in issue may be sufficiently declared and clearly presented to the jury, without unnecessary repetition.</p> <p>4. Same — Exceptions—Sufficiency and Time eor Taking.</p> <p>In the federal courts, exceptions to the charge are of no avail unless the record shows that they were taken and the points of exception designated while the jury were at the bar; and it is improper practice to permit formal exceptions to be then noted, and the specification of objection to be supplied in the record later; the object of the rule being that the attention of the trial court shall be called to the precise point to which exception is taken while it may be remedied.</p> <p>5. Master and Servant — Assumed Risk.</p> <p>An inexperienced person going to work in a mine assumes only the ordinary risks incident to his employment, and, where he has nothing to do with the timbering of the mine, he has the right to assume that it is properly done by his employer, unless advised to the contrary, or the danger is obvious.</p> <p>¶ 5. Assumption of risks incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p> <p>6. Appeal — Review—Inadvertent Expression in Instructions.</p> <p>A judgment should not be reversed because of inadvertent expressions in the charge, to which the attention of the trial court was not called, and which evidently did not affect the verdict.</p> <p>7. Master and Servant — Action for Killing of Servant — Instructions.</p> <p>The charge of the court considered, in an action against a mine owner to recover for the death of an employé killed by the caving of the mine, and held, taken as a whole, and construed together, to state the law of the ease fully and correctly.</p> <p>8. Evidence — Relevancy to Issues.</p> <p>On an issue as to defendant’s negligence in failing to properly timber a mine, by reason of which, as alleged, there was a cave, and plaintiff’s intestate was killed, where defendant had shown by an expert witness that a cave might occur in a mine properly timbered, it was not error to exclude testimony as to particular causes which might produce it, when there was no evidence that any such cause existed at the mine in question.</p> <p>9. Witnesses — Cross-Examination.</p> <p>Where a disinterested witness had testified to the defective timbering of a mine in which he was a workman, at the place where a cave occurred which killed plaintiff’s intestate, the court properly excluded a question on cross-examination as to whether he suggested to the foreman that the place was dangerous, as a matter which could not bind the plaintiff, and did not tend to impeach the witness.</p>

<p>1. Federal Courts — Jurisdiction—Duty to Examine Record.</p> <p>It is the duty of a Circuit Court of Appeals of its own motion to examine the record in a cause brought before it to test its own jurisdiction and that of the court below.</p> <p>2. Removal of Causes — Diversity of Citizenship — Sufficiency of Petition.</p> <p>Where the jurisdiction of a federal court depends upon the citizenship of the parties, such citizenship, and not merely their residence, must be shown by the record; and a right of removal on the ground of diversity of citizenship is not shown by a petition therefor which does not allege the citizenship of the plaintiff, although his petition in the state court alleges him to be a resident of the state in which the action is brought.</p> <p>3. Same — Improper Removal — Costs.</p> <p>Where the judgment of a Circuit Court is reversed by the Circuit Court of Appeals on the ground that the cause was improperly removed from a state court, costs should be awarded against the removing party.</p> <p>On Rehearing.</p> <p>4. Same — Amendment of Petition in Appellate Court — Jurisdictional Averments.</p> <p>A Circuit Court of Appeals may properly permit tlie amendment in that court of a petition for removal by supplying an averment of citizenship requisite to give jurisdiction, where it appears that its omission was inadvertent and it is shown by stipulation of the parties that the requisite diversity of citizenship in fact existed.</p> <p>5. Master and Servant — Action for Injury of Servant — Contributory Negligence.</p> <p>Plaintiff stood on the footboard at the back of an engine to make a coupling to a car toward which the engine was moved slowly. The drawbar on the car was out of repair, and was not in line with that on the engine, and plaintiff attempted to shove the drawbar on the engine to one side with his foot, so as to meet that on the ear, when the engine lurched by reason of a defect in the track, and plaintiff’s foot was caught and crushed between the two drawbars. There was evidence tending to show that such manner of making a coupling was customary and safe under ordinary circumstances, and that plaintiff would not have been injured if it had not been for the defect in the track; also that there was no rule of the railroad company prohibiting brakemen from going between the cars to make a coupling or requiring the engine to be stopped while the drawbars were moved. Held, that under the evidence plaintiff could not be said as matter of law to have been chargeable with contributory negligence. Pardee, Circuit Judge, dissenting.</p> <p>6. Same — Proximate Cause of Injury.</p> <p>It is an essential element in contributory negligence to defeat a right of action for an injury that there should be a causal connection between the act charged as negligence and the injury, and when the act and the injury are not known by common experience to be naturally and usually in sequence, and the injury does not according to the ordinary course of events follow from the act, they are not sufficiently connected to make the act a proximate cause of the injury.</p> <p>7. Instructions — Sufficiency of Exceptions.</p> <p>A general exception to a charge, or to a portion thereof containing different propositions, is unavailing, if any of such propositions are correct.</p>

<p>1. Contracts — Action for Breach — Equitable Estoppel as Defense.</p> <p>The provision of Civ. Code S. D. § 1287, that “a contract in writing may be altered by a contract in writing or by an executed oral agreement and not otherwise,” does not preclude the application of the doctrine of equitable estoppel to defeat an action for the nonperformance of a written contract where sufficient cause exists therefor, and such defense is, moreover, expressly recognized by section 1173.</p> <p>2. Same.</p> <p>Where the failure of a state board to maintain full insurance on a public building while in course of construction, as required by the building contract, for the benefit of both parties, was induced by the objection of the contractors, who were chargeable with the expense, and their representations that they had procured sufficient insurance, made to officers and agents of the board, they are estopped to maintain an action against the board to recover their loss resulting from a fire on the ground of nonperformance of the contract.</p> <p>3. Same.</p> <p>An architect employed by a state board to superintend the construction of a public building, and a local secretary of the board, having charge of financial matters connected with the building, represent the board in such sense that an estoppel in its favor may be created by statements made to them by the contractor with respect to insurance which the board was required by the contract to procure on the building, while in course of construction, in part for the contractor’s benefit.</p>

<p>Appeal from the Circuit Court of the United States for the District of Utah.</p> <p>This was a suit in equity to enforce a constructive trust in favor of the appellants in a mining claim patented by the United States to Henry Ivohl and Charles H. Blanchard, two of the appellees. The suit was commenced March 11, 1901. and the case made by the material allegations of the amended bill is substantially as follows:</p> <p>Subject to the paramount title of the United States, one Timothy Kelly and the defendant Kohl were the joint and equal owners, entitled to the possession and in actual possession, of four mining claims in the Tintic mining district, Juab county, Utah. May 23, 1889, while this situation continued, the defendants, Kohl and Blanchard, for their own benefit, and for the purpose of excluding Kelly from any interest in these claims, amended the location notice of one of them, and restaked it upon the ground in such manner as to embrace therein portions of each of the four claims. They then caused the amended claim to be surveyed, made application October 1, 1889, at the United States land office, for the issuance to them of a patent therefor, and obtained a patent January 9, 1892. They fraudulently concealed the amended location, survey, and application for patent from Timothy Kelly until about January 23, 1891, when he evidently learned of these pi'oceedings, although it is not expressly so stated, and, with others not named, commenced a suit in one of the territorial courts of Utah against Kohl and Blanchard to establish his interest in the amended claim. February 27, 1893, during the pendency of that suit, Timothy Kelly died. Thereafter, without his estate being in any manner represented, a dismissal of the suit was_procured by Kohl and Blanchard, without a trial or determination of its merits. July 12, 1895, Daniel Kelly became administrator of the estate of Timothy Kelly, and in 1901 the estate was finally settled, and the administrator was discharged. October 1, 1899, the administrator, with others, commenced a suit in the district eourt of Juab county against the present defendants to recover the interest in the property held by Timothy Kelly in his lifetime, and to recover for ores extracted therefrom; but the suit was dismissed, without prejudice to a new one, about June 30, 1900. Up to the time of his death Timothy Kelly remained in the actual possession of said claims, working and developing the same, and doing upon each the annual work required by the laws of the United States and the rules and regulations of the mining district. Daniel Kelly, immediately after his appointment as administrator, went into possession of the claims on behalf of the estate of Timothy Kelly, and continued in such possession, working and developing the claims, until November 1, 1900, when the interest owned by Timothy Kelly in his lifetime was conveyed to the complainants, who are now the owners thereof, and of all rights of action for ores extracted therefrom. The mining company acquired an interest in the patented claim from Kohl and Blanchard, with full knowledge of the rights of the complainants and their predecessors in interest; and, since the issuance of the patent, large quantities of valuable ores have been extracted from the claim by the defendants, for which they refuse to account. The complainants offer to pay their proportionate share of the moneys expended in procuring the patent, and pray that the defendants be declared trustees for the complainants in respect of the title to an undivided one-half of the patented claim, and be required to convey the same to the complainants, and to pay them for their share of the ores extracted.</p> <p>The defendants severally demurred to the amended bill, assigning as cause that the bill made no case for equitable relief, and that the suit was barred by the statute of limitations of the state and by inexcusable laches. The demurrers were sustained, and this appeal is prosecuted from a decree dismissing the bill.</p>

<p>On Petition for Review.</p>

On motion to modify supersedeas. This proceeding was instituted in the district court of El Paso county, Colo., by John Y. Curr, the defendant in error, against the Broadmoor Land Company, the plaintiff in error, to condemn the right to enlarge and use a portion of the Myers Ditch, so called, which is owned by plaintiff in error, and also the right of way for a new ditch over and across lands of plaintiff in error to convey water for irrigation purposes to lands of defendant…

This suit was brought in the United States Court in the Indian Territory, Northern District, by Bettie Nivens against Julia Nivens, for the partition of a tract of land lying in the valley of the Arkansas river, and within the boundaries of the Cherokee Nation, and for an accounting of the rents and profits thereof and of a ferry property which was claimed to be appurtenant to the realty.

<p>1. Shipping — Launch. Entering Seattle prom British Columbian Port-Duty to Report.</p> <p>An “open, clinker-built gasoline launch, about eighteen and a half feet long,” arriving at Seattle from a port of British Columbia, and not shown to be a foreign vessel or to contain merchandise, is not required to report J to the customs officer of the port, under the provision of Rev. St. § 2774 [U. S. Comp. St. 1901, p. 1862], requiring vessels from foreign ports genrally to report, but is within Rev. St. § 3097 [U. S. Comp. St. 1901, p. 2025], relating to commerce with contiguous countries, which require only-vessels carrying dutiable merchandise, arriving at ports on the northern and northwestern frontier adjacent foreign territory to report; nor is she required to report by section 3109 [U. S. Comp. St. 1901, p. 2030], which applies only to foreign vessels “laden or in ballast.”</p> <p>Morrow, Circuit Judge, dissenting.</p>

<p>1. Chinese Exclusion — Order of Deportation — Sufficiency of Evidence. The judgment of a District Court affirming an order of a commissioner directing the deportation of a Chinese person held sustained by the evidence, under the rule established by the exclusion acts, which casts upon the defendant in such cases the burden of proving his right to remain in this country.</p>

<p>1. Collision — Baege Lying at Dock — Negligent Management of Raft.</p> <p>The finding of a trial court that an injury to a barge while lying at a wharf in the Willamette river was due to the negligent navigation of a steamboat towing a raft of logs, by reason of which the raft struck the barge, held sustained by the evidence.</p>

In Equity. Suit for infringement of letters patent No. 616,425, for a hydrocarbon burner, granted to Henry Ruppel December 20, 1898, and No. 617,291, for a burner, granted to William R. Jeavons January 3. 1899. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 667,916, for a couch-bed, granted to Eugene R. Leighton February 12, 1901. Or? final hearing.</p>

<p>Action to Recover Internal Revenue Taxes Paid.</p>

<p>In Bankruptcy.</p>

<p>T. Couets-Martial — Review-of Judgment bt Civil Courts.</p> <p>Tbe judgment of a court-martial regularly organized convicting and sentencing a' soldier for desertion, which judgment has been confirmed as provided in the articles of war, is not subject to review by a civil •court in habeas corpus 'proceedings on the ground that the prosecution was barred by limitation under the 103d article of war, such defense being one to the merits to be determined by the court-martial, and not affecting its jurisdiction.</p>

<p>1. Corporations — Use op Funds by Treasurer por Private Purposes — Presumption ob Authority.</p> <p>Where the treasurer of a corporation draws a check in its name, which he uses in payment of his individual notes, in the absence of circumstances giving rise to a reasonable inference of authority to do so the ;¡payee is put upon inquiry, and charged with notice of all the rights of the corporation, there being no presumption of authority to use its funds . for such purpose from the mere fact that they are so used.</p> <p>2. ’ Same — Payment op Note op Third Party.</p> <p>The use of the funds of a corporation by its treasurer in the payment of notes oi- a third person is not beyond the apparent scope of his au- : thority so as to entitle the corporation to recover the money, where it was accepted in good faith, without notice of any want of authority, and especially where the relation between the maker of the notes and the . corporation was such as to warrant the belief that the payment was au- ■ thorized.</p> <p>3. ' Same — Recovery op Unauthorized Payment — Estoppel.</p> <p>' ' Where a bank which held individual notes of the treasurer of a corporation received a check of the corporation signed by him as treasurer, with directions to apply the proceeds in payment of the notes, and did so, surrendering the notes with its rights against indorsers and collateral security which it held, without any inquiry as to whether the payment was authorized by the corporation, which would have disclosed that it was not, the corporation is not estopped from recovering the money by - the fact that no demand therefor was made for four years, although the > check was entered on its passbook, and was itself returned by the bank, with other canceled checks, soon after the transaction.</p>

<p>1. Bankruptcy — State Courts — Action by Trustee — Accounting—Money Paid — Recovery.</p> <p>An occupant of mortgaged real estate alleged to belong to a bankrupt cannot recover, from the bankrupt’s trustee a sum of money which she paid under a final decree in a suit against'her in the state court for an accounting of rents and profits..</p> <p>2. Same — Set-Oee.</p> <p>Where the wife of a bankrupt was in possession of certain real estate which the bankrupt had conveyed subject to certain mortgages, one of which was to his son for the benefit of his wife, and in a proceeding by the bankrupt’s trustee in the state court such mortgage was held valid, she was entitled to credit for interest paid on such mortgage under the terms of a lease executed to her by her husband’s grantee, whether she be deemed the equitable owner of the mortgage to the son or in possession as a fraudulent vendee.</p>

<p>1. Bankruptcy — Provable Claims.</p> <p>Where the father of a bankrupt, to whom she was indebted, died after her adjudication, the right of his executors to prove the full indebtedness against her estate in bankruptcy is not affected by the fact that by his will he left her a share of his estate, from which any indebtedness due from her was directed to be deducted.</p> <p>2. Same — Bequest Accruing after Bankruptcy — Provision fob Deduction of Indebtedness Therefrom.</p> <p>Where a bankrupt, subsequent to the filing of an involuntary petition and an adjudication thereon, fell heir by the death of her father to a certain interest in his estate, which he left her by will, providing, however, for the deduction of her indebtedness to him therefrom, she is entitled to the benefit of such bequest in full, so far as her general creditors are concerned, subject only to the contingency of not obtaining a discharge, whatever right to retain her indebtedness out of her interest may exist in favor of her father’s executors.</p>

<p>1. Banketotcv — Transfer of Case — Convenience of Parties.</p> <p>The business of a New York corporation, having an office in New York City, where the most of its financial business was done and some of its supplies purchased, was the operation of a smelter in Colorado, which cost $750,000 and employed about 150 men. Petitions in bankruptcy were filed against it in both districts; that in New York, which was first filed, being followed by an adjudication. There were creditors in both New York and Colorado and in other states. Many of the New York claims, which were largest in amount, were held by persons interested in the company as stockholders and directors. Held, on evidence showing that the more important questions likely to arise could probably be most conveniently litigated in Colorado, that the case should be transferred to that district.</p>

<p>1. Removal oe Causes — Prosecution oe United States Officer — Procedure.</p> <p>A petition for tbe removal of a criminal prosecution commenced in. a state court against a revenue officer of the United States, under Rev. St. § 643 [U. S. Comp. St. 1901, p. 521], need not be filed until after tbe indictment of tbe defendant, where an indictment is required by tbe state law, until wbicb time tbe prosecution bas not been “commenced” witbin tbe meaning of tbe statute. Sucb petition need not contain allegations of local prejudice.</p> <p>2. Same — Time and Place of Piling Petition.</p> <p>Rev. St. § 643 [U. S. Comp. St. 1901, p. 521], wbicb authorizes a revenue officer against whom a prosecution has been commenced in a state court on account of an act done under color of bis office to remove tbe cause, “at any time before the trial thereof,” into tbe “Circuit Court next to be bolden in tbe district,” does not require the petition for removal to be filed at tbe place where tbe next session of tbe Circuit Court is to be held after indictment, where there are several places of holding court in tbe district, but it may be filed, at any time before trial, at tbe place where tbe next term thereafter is to be held. And sucb requirement is directory only, and tbe filing of the petition in the clerk’s office at a different place is not ground for remanding tbe cause to the state court.</p> <p>3. Same — Writ to be Issued.</p> <p>AVhere tbe prosecution in such case has been commenced by capias or other process of arrest, the federal court, on the filing of tbe petition for removal, issues a writ of habeas corpus cum causa, wbicb, in case tbe defendant has. given bail, may be addressed to tbe marshal, a duplicate to be served upon tbe clerk of the state court. It is the duty of tbe petitioner, and not of tbe state, to procure tbe indictment and proceedings of tbe state court; and where tbe clerk has been tendered bis proper fees therefor, and fails or refuses to furnish a certified copy of the record, a writ of certiorari should issue from the federal court, or the record may be supplied by affidavit, as provided in Rev. St. § 645 [U. S. Comp. St. 1901, p. 523], which course may also be taken when tbe petitioner is unable to pay the clerk’s fees.</p> <p>4. Same — Jurisdiction—Raisíng and Trial of Issue.</p> <p>A petition for removal sufficient on its face gives tbe federal court jurisdiction only prima facie to try the case on its merits, and tbe truth of its essential allegations may be put in issue by any appropriate pleading, the filing of a plea to the jurisdiction being the better practice. The issue should be tried by the jury, subject to the right of the court to direct a verdict thereon when proper, and the burden of proof on the issue rests on the petitioner.</p> <p>5. Same — Trial op Dependant in Federal Court.</p> <p>On the trial of a defendant in a criminal prosecution who has removed the case into the federal court under Rev. St. § 643 [U. S. Comp. St. 1901, p. 521], no procedure is prescribed by the statute; but the offense charged being against the state law, and prosecuted by the state, the state practice should be followed in substantive matters, at least in felony cases, such as in the impaneling and charging of the jury, the number of challenges allowed, in determining the competency of witnesses, and in confining the jurors during the trial, where that is required by the law of the state.</p> <p>6. Same — Failure op State to Prosecute.</p> <p>Where the state fails or refuses to prosecute in such a cause after its removal, the proper course is for the court to impanel a jury and direct a verdict of not guilty.</p> <p>7. Same — Witness Fees.</p> <p>The court having no power to order the payment of witness fees, except in cases to which the United States is a party, special authority to the marshal to pay the fees of defendant’s witnesses must be asked from the department of justice, if the defendant’s witnesses are to be paid by the government.</p> <p>8. Same — Execution op Sentence.</p> <p>Where a defendant in a criminal prosecution removed into the federal court under Rev. St. § 643 [U. S. Comp. St. 1901, p. 521], is convicted and sentenced in that court in accordance with the state law, either to be executed or imprisoned, he should be delivered to the proper officer of the state for the execution of the sentence; if a fine is imposed, which is paid, it should be transmitted to the clerk of the court from which the cause was removed.</p>

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

<p>1. Bankruptcy — Contested Claim — Sufficiency of Objections Filed.</p> <p>Objections to a claim’ filed against the estate of a bankrupt should be in writing, and sufficiently specific to indicate to the claimant the nature and character thereof, but no particular form is prescribed; and, where they have been treated on the hearing before the referee as sufficiently specific to raise certain defenses, .on which evidence has been taken without objection, the court, on subsequent objection, may properly permit their amendment to conform to the evidence.</p> <p>2. Same — Review of Referee’s Decision — Findings of Fact.</p> <p>The findings of a referee on- questions of fact, made on conflicting evidence, will not be disturbed by the court on review where they are reasonably supported by competent evidence.</p> <p>3. Same — Claim of Stockholder against Bankrupt Corporation — Set-Off.</p> <p>Under the established law of Missouri, which permits a subscriber to the stock of a corporation to pay his subscription in property other than money, provided it is of the reasonable value of the subscription, but makes him subject to strict inquiry as to such value, and liable for any unreasonable discrepancy, a trustee for a bankrupt corporation may interpose as a set-off to the claim of a stockholder a claim against him for the difference between the value of the property turned over by him in payment for his stock and the nominal value of the stock; and the court, in the interest of creditors, will scrutinize with care the integrity and fairness of the transaction.</p> <p>4. Same — Claim by President of Corporation — -Property Unaccounted for.</p> <p>The president and active manager of a mercantile corporation within a few months prior to its. bankruptcy made a number of statements of its assets and liabilities to wholesale houses as a basis for credit, and on which he obtained goods for the corporation on credit, which were not paid for. There was a discrepancy between the invoice value of the goods on hand as represented in such statements and those on hand at the time of bankruptcy,, and otherwise accounted for, of at least $25,000. Such president filed a claim against the estate for over $0,000. Held that, as against him, the representations made in his statements must be taken as true, and, the assets being in his control as managing officer, he was not entitled to share in the estate with other creditors until they were surrendered or satisfactorily accounted for.</p> <p>¶ 2. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.</p> <p>See Appeal and Error, vol. 3, Cent. Dig. § 4008.</p>

<p>At Law. Charge to jury.</p>

This action was commenced March 12, 1902, in the superior court of the city and county of San Francisco, Cal., by the plaintiff, to recover of and from the defendant the sum of 83,422,636, alleged to be due and owing upon a certain agreement between Isaac E. Blake and the defendant.

This suit is brought by the plaintiffs in error to recover upon a contract between them and the defendant the sum of $125,000, claimed to be due them thereon. The plaintiffs agreed to excavate section E of the main drainage canal in the valley of the Des Plaines river according to the terms of the contract and the specifications thereto, and to complete the work by October 1, 1896.

<p>1. Trust — Suit to Enforce — Evidence Considered.</p> <p>Evidence considered, and held to establish complainant’s right to an undivided interest in certain mining property and claims held in trust by one of the defendants under an agreement that on the repayment to him of advances made thereon, either from the proceeds of sales or ore, the property should be divided, and to entitle complainant to an accounting from defendant, as against such advances, for the value of certain of the claims which he had disposed of, denying complainant’s interest therein. i</p>

In Admiralty. On November 25, 1901, the British ship Nelson, of 1,310 tons gross and 1,247 tons net register, with a crew of 23, including officers, carrying a cargo of wheat of the value of $35,000, with pending freight of $15,000, sailed from the mouth of the Columbia river, Or., on a voyage to the United Kingdom.

<p>it Bankruptcy — Right to Discharge — Fraudulent Concealment oe Assets.</p> <p>A bankrupt is required to show the utmost good faith and make the fullest disclosures of his assets, and where he knowingly and designedly omits assets from his schedule, although the amount is small, he will be held to have done so with intent to defraud his creditors, and denied a discharge, notwithstanding his claim that he acted under advice of counsel, unless it appears that he stated the facts fully to his counsel, and that the advice was given and received in good faith.</p> <p>2. Same.</p> <p>A bankrupt, a day or two before filing a voluntary petition, contracted to sell certain property to be taken away by the purchaser. He did not schedule either the property or the debt, and on objection to his discharge on the ground of false oath and concealment of property claimed that when he signed his schedules he did not know whether the purchaser had taken the property or not, and that it was omitted by advice of his counsel, from which he understood that he was entitled to it as a part of his exemption, but he scheduled and claimed as exempt other specific property to the full value of his exemption right. Held; that his testimony was not sufficient to show that he acted in good faith, or fairly presented the facts to his counsel, and that he was not entitled to a discharge.</p>

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

<p>Appeal from the District Court of the United States for the Northern District of California.</p> <p>See (C. C. A.) 129 Fed. 585.</p>

This cause comes here on appeal from a decree of the United States Circuit Court for the Southern District of New York dismissing bill alleging unfair competition in the manufacture and sale by defendant of certain syringes resembling those made by complainant, and in the use by defendant of the name “Whirlspray” to designate its syringes.

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The decision in question reversed a decision of the Board of General Appraisers (G. A. 5,360, T. D. 24,512), which had affirmed the assessment of duty by the collector of customs at the port of Chicago on merchandise imported by T. Buettner & Co.</p> <p>Note U. S. v. Morrison, 179 U. S. 456, 21 Sup. Ct. 195, 45 L. Ed. 275, and Steinhardt v. United States (C. C.) 113 Fed. 996.</p> <p>The facts are stated in the opinion of the court.</p>

<p>1. Circuit Court of Appeals — Jurisdiction and Mode op Review — Order Imposing Punishment eor Contempt.</p> <p>An order of a federal Circuit Court, entered in 'a pending suit intermediate between the granting of a preliminary injunction and final decree, adjudging a person who was not a party to the suit guilty of contempt for conspiring to violate the injunction, and imposing a fine and imprisonment upon him as a punishment, may be reviewed in the Circuit Court of Appeals by writ of error, but not by appeal.</p> <p>¶ 1. Orders, decrees, and judgments reviewable in Circuit Court of Appeals, see note to Salmon v. Mills, 13 C. C. A. 374.</p>

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

<p>1. Patents — Infringement.</p> <p>The Tesla patents, Nos. 511,559 and 511,500, for an improved method and means of operating electric motors, held valid and infringed.</p> <p>2. Same — Patentable Invention.</p> <p>Watson v. Stevens, 51 Fed. 717, 2 C. C. A. 500. and DuBois v. Kirk, 15 Sup. Ct. 729, 158 U. S. 58, 39 L. Ed. 895, applied to sustain as patentable a particular practical application of a known principle, which proved to be of advantage in the arts.</p> <p>3. Same — Decisions of Other Courts.</p> <p>The history of the litigation in reference to the patents involved stated, and also the practice in this circuit with regard to following decisions of the courts of appeals in other circuits in regard to letters patent for inventions reviewed, and the method of practically applying the same restated.</p> <p>4. Same — Anticipation.</p> <p>On this appeal the defense alleged anticipation by prior publication. Held, that it was sufficient that the proof furnished by the complainant as to such alleged prior publication was “full, unequivocal and convincing,” and that the case does not require that it should be “beyond reasonable doubt.”</p> <p>5. Trial — Objections to Evidence.</p> <p>When a portion of complainant’s testimony in this case was taken before the examiner, the respondent noted the following: “Testimony objected .to, in whole or in part, as incompetent and insufficient on the issue of priority of invention.” No specific objection was taken as to the mere form in which the interrogatories were put and the evidence given. The rule is therefore applied that the substance of the testimony could not be rejected on the ground that, if the respondent had desired to control the method of testifying according to the proper rules applicable thereto, he should have interposed specific objections at the proper time.</p> <p>6, Patent — Acquiescence.</p> <p>Where a patent for an invention which promised and proved to he of great pecuniary value was granted after interference proceedings in the Patent Office, and was for years acquiesced in, or sustained when later brought into litigation, largely on the defense of anticipation, such facts have weight in favor of the patent, when the same issue is again raised on a bill in equity alleging infringement, although against new parties.</p>

<p>1. Receivers — Objections to Appointment — Relationship to Parties in Interest.</p> <p>Where the appointment of a person as one of the receivers for a railway corporation in foreclosure suits is asked by the trustees in the several mortgages affecting the property and by other creditors, and favored by practically all of the parties in interest, and is opposed by only a small minority of the bondholders, who make no charge against his integrity or ability, and he is specially fitted for the position by reason of his familiarity with the property and its operation, the appointment will not be refused because of his relationship to certain of the large stockholders and bondholders, nor because of his prior connection with the defendant company as an officer and director.</p>

<p>1. Coiimekce — Tonnage Duties — Constitutionality of State Statute.</p> <p>Laws N. Y. 1897, p. 701, c. 592, § 63, wbieb provides that “the master, owner or consignee of every steamboat or vessel entering the port of Albany or loading, unloading or making fast to any wharf therein, shall, within forty-eight hours after the arrival thereof, pay to the harbor master for his services the sum of one and one-half cents per ton per annum, which shall be computed upon the registered tonnage of such steamboat or vessel,” is void as imposing a tonnage tax, in violation of article 1, § 10, of the Constitution of the United States.</p>

<p>1. Mining — Liability eor Death op Miner — -Illinois Statute.</p> <p>Under tbe coal mine law of Illinois (Laws 1899, p. 325, § 33), which makes a mine owner liable in damages for any injury to person or property or for death “occasioned by any willful violation of this act or willful failure to comply with any of its provisions,” as construed by the Supreme Court of the state, a knowing and intentional failure to comply with the requirements of the act is a “willful” failure within its meaning, and a wrongful or evil intent is not necessary to give a right of action thereunder for the death of a miner.</p> <p>2. Same — Contributory Negligence.</p> <p>Under the decision of the Supreme Court of the state contributory negligence is not a defense to an action against a mine owner to recover for the death of a miner under the coal mine law of Illinois (Laws 1899, p. 323, § 33), and such construction of the statute is binding on a federal court</p> <p>3. Same — Liability op Owner por Acts op Manager.</p> <p>The provision of the coal mine law of Illinois (Laws 1899, pp. 308, 309, §§ 7, 8) requiring all mine managers to obtain certificates of competency from a state board of examiners, and prohibiting mine owners from employing any person as manager who does not hold such certificate, does not exempt mine owners from liability for the defaults of their managers, nor does such construction render it unconstitutional.</p> <p>Jenkins, Circuit Judge, dissenting.</p>

The plaintiffs in error were found guilty, December 8th, 1903, in the United States District Court, for the Northern District of Illinois, of violating section three of the act of March 3, 1875, c. 141, 18 Stat. 477 [U. S. Comp. St. 1901, p. 1286], which reads as follows: “Sec. 3.

<p>1. Appeal — Omission oe Necessaby Pabty — Amendment.</p> <p>AYhere an appeal was taken by two of three defendants, against whom a joint decree for a sum of money was rendered, and the record fails to show that the third defendant, who made default in the court below, was in any manner joined in the appeal, or notified to join, or severed for failure or refusal to join, the defect is not one of form only, which the Circuit Court of Appeals may permit the appellants to cure by amendment, under Rev. St. § 1005 [U. S. Comp. St. 1901, p. 714], but is fatal to jurisdiction of the appeal.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Illinois.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>1. Appeal — Review—Errors Rendered Harmless by Verdict.</p> <p>Where the jury, in an action by the United States to recover for timber alleged to have been unlawfully cut from public lands, found against the defendant on the defense pleaded by him that the timber was cut from mineral land not subject to entry except as such, and was lawfully taken as authorized by Act June 3, 1878, c. 150, 20 Stat. 88 [U. S. Comp. St. 1901, p. 1528], and returned a verdict for plaintiff, but for the value of the timber as it stood instead of the value of the logs, any error in the admission of evidence as to the mineral character of the land or in giving or refusing instructions on that subject was without prejudice to plaintiff.</p>

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

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

The suit was brought in the Circuit Court to restrain infringement of letters patent No. 629,391, issued July 25th, 1899, to Robert W. Parramore, for a Hose Supporter.

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

<p>1. Patents — Anticipation—Coke-Making Machine.</p> <p>The Grant patent, No. 513,998, for a core-making machine, is void for anticipation by prior machines for making tiles which were mechanically and functionally identical, and used in an art which is broadly analogous ; both relating to the shaping of tubular bodies from earthy materials reduced by water to plastic and cohesive conditions, differing in degree only.</p>

<p>In Equity. Suit for infringement of letters patent No. 363,425, for a spindle support for spinning machines, granted to Albert R. Sherman May 24,1887.</p>

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

<p>1. Unfaib Competition — Patentee and Implied Licensee — Right to Use of Name.</p> <p>Defendant Way, while manager of a knitting company, invented an improved muffler, which he patented. He did not transfer the patent, but the company entered on the manufacture of the article under the license implied from his connection with it when the invention was made, and sold it under the name of “Way’s Mufflet”; also registering the word “Mufflet” as a trade-mark. Defendant left the employ of the company, which subsequently transferred its business and property to complainant. Defendant commenced the manufacture and sale of the article under the name of the Way Muffler Company, marking each article with the name “Way’s Muffler” and the date of his patent. He also adopted a box having a characteristic design on the cover. Complainant continued the manufacture of the article, selling it under the name “Way’s lluffiet,” and marking it with the date of the patent, and also closely imitated the design and reading matter on defendant’s box lid, and copied new styles of the article devised by defendant, and his numbers designating the same. Held, that defendant, as the patentee, had the right to use his name, as well as the descriptive word “muffler,” to designate his manufacture; that complainant acquired no right to either, or to mark its goods as patented; and that its use of such designations and imitation of defendant’s packages and designs constituted unfair competition.</p> <p>¶ 1. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165 ; Lare v. Harper, 30 C. C. A. 376.</p>

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

<p>1. Customs Duties — Persons Liable for — Broker Making Declaration as Consignee.</p> <p>A customhouse broker, who makes the sworn declaration for entry of goods, in which he declares himself the consignee, cannot thereafter deny that he is such as against the government, and becomes liable for the duties under the provision of section 1 of the customs administrative act of June 10, 1890, c. 407, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886], that “all merchandise imported into the United States shall for the purposes of this act be deemed and held to be the property of the person to whom the merchandise may be consigned,” including additional duties imposed for undervaluation under section seven of such act as amended by section 32 of the tariff act of July 24, 1897, c. 11, 30 Stat. 211 [U. S. Comp. St 1901, p. 1892],</p>

<p>1. Prisons — Allowance for Good Time — Federal Statute.</p> <p>Section 1 of Act June 21, 1902, c. 1140, 32 Stat. 397 [U. S. Comp. St. Supp. 1903, p. 448], providing for an allowance for good time to “each prisoner who has been or shall hereafter be convicted of any offense against the laws of the United States and is confined in execution of the judgment,” is to be given effect in accordance with its express terms in favor of a prisoner who was convicted prior to its passage, notwithstanding the provision of section 3 that “this act * * * shall apx>ly only to sentences imposed by courts subsequent to the time that this act takes effect, as hereinbefore provided,” which, in view of the direct conflict which would result if applied to section 1, must be construed as applying only to section 2, providing for the restoration by the Attorney General of allowances for good time which have been forfeited.</p>

<p>1. Bankeuptcy — Debts Released by Dischabge — Judgment on Recognizance.</p> <p>"Where a defendant against whom a judgment has been obtained for an assault, on being arrested on execution makes application to take the poor debtor’s oath, and gives a recognizance under Rev. Laws Mass. c. 168, § 29 et seq., such recognizance is merely a cumulative security for the original judgment, and a judgment subsequently rendered thereon constitutes a liability for a willful and malicious injury to the person, within Bankr. Act July 1, 1898, § 17a(2), 30 Stat. 550, c. 541 [U. S. Comp. St. 1901, p. 3428], which is not released by a discharge in bankruptcy.</p> <p>2. Same — Dismissal of Petition — Gbotjnds.</p> <p>A petition in voluntary bankruptcy, which schedules no debt which would be barred by a discharge, may be dismissed in the discretion of the court. ..........</p>

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

This was a suit, by Hatcher against the Hendrie & Bolthoff Manufacturing & Supply Company and the International Trust Company, to subject the proceeds of a sale of attached property to the satisfaction of a judgment rendered in the action in which the writ of attachment was issued. From a decree sustaining a demurrer to and dismissing the bill, the complainant appealed.

<p>1. Equity Jurisdiction — Adequate Remedy at Law.</p> <p>To give a court of equity jurisdiction of a suit involving matters cognizable at law, it must appear that the equitable remedy will afford more complete or effectual relief in kind or degree than the legal remedy, and the fact alone that the evidence may be obtained and presented with greater convenience in an equity suit is not sufficient.</p> <p>2. Same — Action for Tort — Accounting.</p> <p>A bill by the United States against a number of corporations and individuals to recover for a joint trespass upon public lands, and the unlawful and willful cutting and removal of timber therefrom by defendants, who are alleged to have conspired for the purpose, does not state a cause of action in equity for an accounting because it is alleged that, by reason of the complicated relations between the defendants, complainant is unable to state the quantity of timber taken by each.</p> <p>3. Same — Suit to Recover for Timber Cut from Public Lands.</p> <p>The United States cannot maintain a suit in equity for an accounting of the gains and profits, made by defendants from the alleged unlawful ■ and willful cutting and removal of timber from public lands; its right of recovery being confined to damages for trespass, or damages, recover-, able in an action in the nature of trover, in an amount to be based on the value of the manufactured product.</p> <p>4. Same.</p> <p>A suit by the United States to recover for trespass upon public lands, and the cutting and removal of timber therefrom, does not present a case of mutual accounts, cognizahle in equity, because of an allegation that complainant granted licenses to defendants to cut timber from certain other lands, and that under cover of such licenses they -unlawfully and willfully cut timber from the lands in suit; nor is such a suit maintainable on the theory of establishing a trust in property purchased with the proceeds of the timber taken, where it is not alleged that defendants are insolvent.</p> <p>5. Same — Discovery—Production of Documents in Support of Legal De-</p> <p>mand.</p> <p>A federal court of equity is without jurisdiction of a suit for a discovery and for final relief which consists of the enforcement of a purely legal demand; the only ground of equity jurisdiction being the discovery by requiring the production of papers and records, which, under Rev. St.</p> <p>§ 724 [U. S. Comp. St. 1901, p. 583], can be obtained in an action at law.</p> <p>6. Same — Suit against Executor.</p> <p>A federal court of equity is without jurisdiction of a suit against an executrix to recover for a tort alleged to have been committed by her testator, where she is not charged as trustee, but solely as the personal representative of the tort feasor.</p>

<p>1. Bankruptcy — Involuntary Proceedings — Motion eor Adjudication on Pleadings.</p> <p>Where, after the filing of answers to a petition in involuntary bankruptcy presenting issues of fact, the petitioners move for an adjudication on the pleadings, they thereby admit the facts properly pleaded in the answers, in accordance with the general rules of equity practice, and the only question presented is as to the legal sufficiency of the answers. If the motion is denied, defendants are entitled to a final decree dismissing the petition.</p>

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

<p>1. Equity — Laches—Suit to Recovee Mining Stock.</p> <p>A suit cannot be maintained in a federal court of equity to recover stock in a mining company under a written contract after a delay of nine years from the date of contract and eight years after complainant made a demand for the stock, where it would have been barred in five years under the law of the state where brought, and the only excuses for the delay are that complainant lived some 300 miles from the office of the company, that during a part of the time the company had ceased working its mine, and that for about four years the contract was lost, it having been recovered more than a year before the suit was brought.</p> <p>2. Same — Pleading.</p> <p>In a federal court it is not necessary, in order to let in the defense of laches, that a foundation should be laid by any averment in the answer.</p>

The plaintiff in error was convicted of a violation of the provisions of section 5480 of the Revised Statutes [U. S. Comp. St. 1901, p. 3696]. The evidence was that he had sent out through the mails to various persons in the state of California letters such as the following, which was sent to Clav A. Straley: “Dear sir: I enclose a pawn ticket that is sent you by the way of restitution. The sender is at the point of death as the result of an accident.

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

<p>In Equity. Suit for infringement of letters patent No. 600,186, for improvements in fireproof windows, granted to Frank Voightmann March 8, 1898. On final hearing.</p>

<p>L Patents — Invention—Featherbone.</p> <p>The Warren & Holden patent, No. 559,827, for an Improved process for making featherbone for use in corsets, etc., and the resulting product, marked a distinct advance in the art. It was not anticipated, nor is it void for prior public use; and in view of its utility, as shown by the marked success of the new product in the market, it must be conceded to disclose invention. Also held, infringed.</p>

<p>1. Patents — Suit for Infringement — Joinder of Defendants.</p> <p>A bill against two defendants for infringement of a patent, which alleges that defendants, “conjointly contriving” to injure complainant by infringing his patent, have done certain acts of infringement, one by selling and making infringing articles at one city, and the other by using and vending infringing articles in another city, and that they have on hand at their respective places of business large quantities of the infringing article, which they are “conjointly, severally, and individually” advertising, selling, and offering for sale, is not demurrable on the ground that defendants are improperly joined, the acts charged, if done “conjointly” or by agreement, constituting a joint infringement.</p>

<p>1. Patents — Injtkingement—Waistbands.</p> <p>The Katz patent, No. 562,616, for a waistband for boys’ trousers, discloses a patentable invention of utility, which was not anticipated, nor rendered void by prior public use; also held infringed by a structure in which the change from the patented article was merely colorable.</p>

<p>1. Patents — Inekingement—Phenacetin.</p> <p>Tbe ninsberg patent, No. 400,0S6, for a new pharmaceutical product, called “phenacetin,” held valid and infringed, and an injunction granted, and an accounting ordered by defendant, who, although a retail druggist, shown to have sold only a small quantity of the infringing drug, was selling an adulterated article, which might be very deleterious to the public health.</p>

In Equity. Suit for injunction. The complainants brought this action against the defendant corporation, which is a citizen and a resident of the state of Hew Jersey, praying for an injunction to restrain the defendant from keeping or maintaining a dam across the Missouri river at any greater height than it was on August 1, 1902, or from erecting or maintaining any structures or works whereby the waters of the Missouri river are raised or kept back or prevented from flowing…

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

<p>On Appeal from Order of Deportation Made by a Commissioner.</p>

<p>In Equity. On exceptions to master’s report.</p>

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

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

<p>1. Building and Loan Associations — Contract with Borrowing Stockholders — Application op Payments.</p> <p>Where a borrowing stockholder in a building and loan association for eight years made the monthly payments required, and acquiesced in their application, in accordance with the terms of the written contract, with full knowledge of such terms, a court will not make a different rule for their application merely because the borrower may have believed, when the contract was made, that a different application should be made, but the contract, if enforceable at all, will be enforced as the parties made it.</p> <p>2. Same — Depense op Ultra Vires — Estoppel.</p> <p>Where the contract between a building and loan association and a borrowing stockholder which is a private corporation has been fully executed by the association, and the borrower has received and used the money, it cannot defeat the enforcement of the contract against it, in accordance with its terms, on the ground that the contract on its part was ultra vires because of its want of power to become a stockholder in another corporation.</p> <p>3. Same.</p> <p>Where a private corporation organized for benevolent purposes, and having no power under the laws of the state to become a stockholder in another corporation, subscribed for stock of a building and loan association, from which it also borrowed money, and made the payments required by the contract until the amount paid in dues, premiums, and interest exceeded the sum borrowed, with legal interest, such payments must be applied in satisfaction of the loan, which is the only lawful part of the contract, and the corporation is not estopped, under the rule of the Supreme Court of the United States or of the Supreme Court of the state of Washington, to set up its want of power as ground for cancellation of the contract as to any further liability. Per Gilbert, Circuit Judge, dissenting.</p>

<p>Appeal from the District Court of the United States for the District of Colorado.</p> <p>The Modern Machine Works Company, a corporation, was adjudged a bankrupt on December 21, 1903. It was a manufacturing corporation, and on April 24, 1903, it had given a chattel mortgage upon its machinery, materials, and merchandise to the appellant, David C. Dodge, to secure the payment to him of a debt of $4,000;' which it had incurred for the purchase of a part of this property. Three thousand five hundred dollars of this debt remained unpaid when the adjudication in bankruptcy was made. The trustee took possession of the mortgaged property, and the mortgagee filed a claim wherein he set forth, his mortgage, the specific property covered by it, and the amount of the debt secured by it. The referee adjudged that the chattel mortgage was void, and that it constituted no security for Dodge, because it described a stock of goods, wares, and merchandise, and permitted the mortgagor to remain in possession and to use and enjoy them until the maturity of the debt without applying the proceeds of the sales of them to its payment. Upon a petition for a review of this decision the District Court rendered a judgment of affirmance, and within 10 days after its rendition the mortgagor appealed from that judgment to this court.</p>

On June 4, 1889, the Terre Haute & Indianapolis Railroad Company (hereinafter called the Terre Haute Company), which then owned and operated a line of railway from Indianapolis, Ind., westerly to the state line, and also, under leases, operated the lines of certain other railway companies, entered into a contract of lease with the Indiana & Lake Michigan Railway Company (hereinafter called the Lake Michigan Company), a consolidated corporation of Indiana and Michigan…

<p>1. Factor’s Lien Implied by Law.</p> <p>A lien is implied by law, without any agreement between the parties, upon all the goods in the hands of a consignee, who is given the power to sell them, for the advances he makes for his consignor in conducting the business of his agency.</p> <p>2. Practice — Judges of Co-Ordinate Jurisdiction Should not Overrule Each Other’s Decisions.</p> <p>The various judges who sit in the same court should not attempt to overrule the decisions of each other, especially upon questions involving rules of property and practice, except for the most cogent reasons.</p> <p>-S. Same — Rule Inapplicable to Appellate Court.</p> <p>The foregoing rule is inapplicable to the appellate courts, whose duty it is to decide every question according to the law and the facts. Nor does it deprive the aggrieved party of the right to review and reverse a ruling which follows an erroneous decision of another judge, but it leaves the case in the same situation in which it would have been if the judge who rendered the first decision had made the rulings which followed it.</p> <p>4. Trial — Evidence—Erroneous Rejection — Presentation of all Evidence not Requisite.</p> <p>The rejection of competent evidence to sustain a cause of action or defense, on the sole ground that no evidence in support of it is admissible is not less erroneous because all the evidence requisite to sustain the causé of action or demand was not presented.</p> <p>5. Same — Litigant Procuring Ruling that no Evidence Admissible may not Sustain Because Evidence Insufficient.</p> <p>One who has induced a court to exclude competent evidence of his opponent upon the sole ground that no evidence in support of the latter’s claim is admissible may not sustain that ruling on the inconsistent ground that his opponent did not go through the useless form of offering to prove all the facts requisite to sustain his claim.</p> <p>(Syllabus by the Court.)</p>

<p>1. Public Mineral Lands — Right to Cut Timber — Evidence of Mineral Character.</p> <p>In an action by the United States to recover for timber cut from public lands, where the defense was that the cutting was justified under Act June 3, 1878, c. 150, 20 Stat. 88 [U. S. Comp. St. 1901, p. 1528], permitting the cutting of timber from mineral lands for certain purposes, evidence was properly admitted to show the mineral character of other lands in the same vicinity, as well as of those from which the timber was taken, as tending to show the extent of the mineral district.</p> <p>2. Appeal — Review of Instructions — Sufficiency of Exceptions.</p> <p>A general exception to the charge given by the court to the jury, which does not conform to rule 10 of the Circuit Court of Appeals (90 Fed. cxlv, 31 C. C. A. cxlv), cannot be considered on appeal if any part of the charge states the law correctly.</p> <p>3. Public Mineral Lands — Right to Cut Timber — Department Regulations.</p> <p>Under Act June 3, 1878, c. 150, § 1, 20 Stat. 88 [U. S. Comp. St. 1901, p. 1528], which authorizes all citizens and other persons bona fide residents of certain states and territories and all other mineral districts to cut and remove timber from mineral lands for building, agricultural, mining, or other domestic purposes, the fact that timber so cut is manufactured into lumber and sold as an article of merchandise, to be used in the state where it is cut, does not render such cutting unlawful, nor can it be made so by a regulation of the Secretary of the Interior, promulgated under the power given him by the act to prescribe rules and regulations “for the protection of the timber and of the undergrowth growing upon said lands and for other purposes,” such rules and regulations being intended merely to furnish detailed instructions as to the manner of taking the timber to prevent waste and unnecessary destruction.</p>

<p>1. Trial — Direction of Verdict — Insufficiency of Petition.</p> <p>A court is not warranted in directing a verdict on motion of defendant, after answer filed joining issue on the facts, on the ground of the insufficiency of the petition, unless it is so absolutely defective that no judgment could properly be entered on a verdict for plaintiff.</p> <p>2. Same.</p> <p>A petition alleged that plaintiff was a passenger on an excursion train on defendant’s railroad; that in the train was a combination car, one-half of which was a baggage room without seats, having a door at the end, but no platform; that on the return trip such car was placed In the train, with the baggage room toward the rear next the second car; that it was after dark, and plaintiff, who was in such car, on account of its being crowded and warm went to the rear door, which was open, and, while standing there, was caused by the motion of the car to step forward through the door, and fell between the cars, receiving serious injuries ; that owing to the darkness plaintiff could not see that there was no platform. Negligence was alleged in the use of such car, in the manner in which the train was made up, and in not using some means to protect passengers from the danger. Held, that such petition presented issues for the jury, and that it was error for the court at the trial to direct a verdict for defendant on motion, on the ground of its insufficiency, after defendant had answered, but before the taking of testimony.</p>

In Bankruptcy. Petition to Review an Order of the District Court of the United States for the Northern District of Illinois, Sitting in Bankruptcy.

<p>1. Chinese Exclusion — Person Entering on Merchant’s Certificate-Change of Occupation.</p> <p>A Chinese person entering the United States on a merchant’s certificate obtained in accordance with section 6 of Act May 6,1882, c. 126, 22 Stat. 60, as amended by Act July 5, 1884, c. 220, 23 Stat. 116 [U. S. Comp. St. 1901, p. 1307], is subject to deportation, as being unlawfully in this country, where it is shown that, after being in business as a merchant for 15 months after his arrival, he became a laborer, and has remained such ever since — a space of several years.</p> <p>¶ 1. Citizenship of Chinese, see notes to Gee Fook Sing v. United States] 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A, 332.</p>

<p>1. Chinese Exclusion — Merchant's Certificate — Sufficiency.</p> <p>A merchant’s certificate issued to a Chinese person under section 6 of Act May 6, 1882, c. 126, 22 Stat. 60, as amended by Act July 5, 1884, c. 220, 23 Stat 116 [U. S. Comp. St. 1901, p. 1307], but which does not conform to the requirements of said section by stating the estimated value of his business carried on in China, nor fully establish his status as a merchant, does not entitle him to enter the United States, nor to remain after his entry has been permitted.</p> <p>¶ 1. Citizenship of Chinese, see notes to Gee Foole Sing v. United States, 1 C. C. A. 212; Lee Sing Par v. Same, 35 C. C. A. 332.</p>

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

In Equity. Suit for infringement of letters patent Nos. 511,559 and 511,560, for electrical transmission of power and an electric motor, granted to Nikola Tesla December 26, 1893. On motion for preliminary injunction.

<p>1. Guardian -and Ward — Validity of Sale of Lands — Purchase for Guardian.</p> <p>Under Comp. St. Neb. 1903, c. 23, § 85, which prohibits an executor, administrator, or guardian from becoming the purchaser of any real estate sold by him.for the estate in his charge, and provides that any sale made contrary to its provisions shall be-void, but that it shall not prevent any such purchase by a guardian for the benefit of his ward, a sale of land by a guardian to one who purchases for the guardian and at once conveys to him for the same consideration is absolutely void as against all persons who do not come under the designation of innocent purchasers. The fact that the proceeds of the sale are used for the support of the wards does not make the purchase one for their benefit within the meaning of the statute.</p> <p>2. Same — Invalid Sale — Innocent Purchaser.</p> <p>A guardian sold land of his wards under an order of court, and on confirmation executed a deed to the purchaser, who on the same day conveyed the land to the guardian, the two deeds reciting the same consideration and being recorded at the same time. The purchase was in fact made for the benefit of the guardian, and was void under the statute. Held, that the record disclosed such facts as to put a subsequent purchaser on inquiry, and that a mortgagee from the guardian was not protected as an innocent purchaser.</p> <p>3. Same — Attacking Validity of Sale — Estoppel.</p> <p>The fact that the proceeds of a guardian’s sale of lands were applied to the maintenance of the minor wards does not estop them from asserting title to the land on the ground of the invalidity of the sale.</p> <p>4. Married Women — Conveyance of Separate Estate — Covenant of Warranty.</p> <p>Under Comp. St. Neb. 1903, c. 53, § 2, which provides that a married woman may sell and convey her real estate and personal property and enter into any contract with reference to the same in the same manner and with like effect as a married man may in relation to his real and personal property, where a married woman joined with her husband in, a mortgage of land in which she had a vested estate for life, she is estopped by- -general covenants of warranty therein from asserting that an after-acquired title to the fee did not inure to the benefit of the mortgagee.</p>

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

<p>1. Sales — Contract to Deliver Coal F. O. B. Cars — Duty to Provide Cars.</p> <p>A contract by which a coal company sold a quantity of coal, to be delivered during a series of months “F. O. B. ears at the mines,” did not cast upon it an obligation to provide cars, but only to be ready to load the same when supplied; nor was such obligation imposed upon it by a further provision by which it guarantied a maximum freight rate from the mines to the city to which the shipments were to be made during the time of delivery.</p>

In Admiralty. On (1) exceptions to the answer of the Ohio Transportation Co. to the petition, and (2) exceptions to the claim filed on behalf of that company as owner of the Steamer Gladstone, and of the representatives of her cargo.

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

<p>1. Equity Pleading — Multifariousness—Misjoinder of Causes of Action. • A complainant in a federal court cannot join with a cause of action for infringement of a patent one for unfair competition in trade, although both relate to the same subject-matter, where there is no allegation of . diverse citizenship to give the court jurisdiction of the second cause.</p>

Appeals from the Circuit Courts of the United States for the Western, and .Eastern Districts of Louisiana.--- ---- Gunby v. Armstrong is an appeal from the Western District of Louisiana, and Franklin Opera House Company v. Armstrong comes up from the Eastern District of that state. The principal issues are alike- in both cases, and hence they were submitted at the same time.

<p>1. Indictments — Consolidation—Federad Statute.</p> <p>In Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720], which authorizes the joinder in one indictment of charges,’ and the consolidation of indictments, against the same person for the same act or transaction, or 'for two or more acts or transactions connected together, or of the same class of crimes or offenses “which may be properly joined,” it is not intended by the latter phrase to limit the joinder or consolidation to charges which might have been joined at common law, hut merely to vest the trial court with discretion to refuse to permit a joinder or consolidation where it would prevent a fair trial or be unjust to the defendant.</p> <p>2. Same.</p> <p>Separate indictments against the same persons under Rev. St. § 5427 [U. S. Comp. St. 1901, p. 3670], each charging them with having aided and abetted a different person in using a false certificate of citizenship as evidence of a right to vote, the acts charged being the furnishing of such false certificates for the use of such persons by the defendants, all of which were made by them at the same time, charge acts or transactions connected together, and may properly be consolidated under Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720],</p> <p>3. Aliens — Certifícate of Citizenship — Offense oe Using False Certificate.</p> <p>A certified copy of the record of a court showing the admission of an alien to citizenship constitutes a “ccrtifL ,te of citizenship,” within th^ meaning of Rev. St. §§ 5425, 5427 [U. S. Comp. St. 1901, pp. 3669, 3670], making it a crime to use or aid and abet another in using false certificates of citizenship for purposes therein specified.</p> <p>4. Same — False Certificate.</p> <p>A “false” certificate of citizenship, within the meaning of Rev. St. §§ 5425, 5427 [U. S. Comp. St. 1901, pp. 3669, 3670], which make it a criminal offense to knowingly use, or aid and abet another in using, “any false, forged, antedated or counterfeit certificate of citizenship,” etc., is not limited to one which is forged, but includes one which is false in its recital of facts.</p> <p>■5. Same — Offense of Using False Certificate — Recitals of Certificate.</p> <p>In Rev. St. § 5425 [U. S. Comp. St. 1901, p. 3669], making it a criminal offense to knowingly use any false or forged certificate of citizenship “purporting to have been issued under the provisions of any law of the United States relating to naturalization,” the clause quoted refers to certificates which purport upon their face to have been issued after a compliance on the part of the alien named therein with the naturalization laws and as evidence of that fact, and a certificate to sustain an indictment based on such statute need not recite that it is issued under a law of the United States, there being, in fact, no statute authorizing or requiring the issuance of such certificates.</p> <p>6. Same — Aiding and Abetting — Construction of Statute.</p> <p>Rev. St. § 5427 [U. S. Comp. St 1901, p. 3670], provides that “every person who knowingly and intentionally aids or abets any person in the commission of any felony denounced in the three preceding sections” shall be punished, etc. In the original statute said four sections were all embraced in one section, which expressly declared the offenses now contained in the three first sections to be felonies, and the part which now constitutes section 5427 read, “Any person who shall * * * aid and abet any person in the commission of any such felony,” etc. In the revision such express declaration was omitted, and it has since been settled by decision that the offenses described in the first three sections are not felonies, but misdemeanors, under the common-law rule of construction applied to federal statutes, although the punishment prescribed is imprisonment in a penitentiary at hard labor, which, by the general understanding in this country, makes the offense a felony. Held, that such construction does not render section 5427 a nullity, but that the word “felony,” as used therein, should be given its popular meaning, in order to give effect to the section in accordance with the manifest intention of Congress.</p> <p>7. Criminal Law — Sufficiency of Verdict.</p> <p>A verdict in a criminal case which finds the defendants guilty upon certain counts of the indictments on which the trial was had, not guilty upon others, and which reports a disagreement as to the remaining counts, is entirely proper, and it is not error to receive such verdict and to enter judgment thereon as to the counts which were finally disposed of.</p>

<p>1. Mexican Land Grant — Transfer of Title by Grantee — Construction of Instrument.</p> <p>A purchaser of a concession of land from the state of Coahnila and Texas under article 24 of the Mexican colonization law of 1825, before the land had been selected, executed a writing by which, in consideration of a sum of money, the receipt of which was acknowledged, he covenanted to sell the land to two other persons, who agreed to perform in his stead all the conditions of the grant The purchasers, by a similar instrument, again transferred their right to a third person, upon whose application the grant was surveyed, and title of possession issued to him by thé commissioner, reciting that the application was presented by him a? attorney in fact for the original purchaser. Held, that since, under the settled law, the original purchaser had the power to alienate his -concession at once, before the lands were selected, the instrument executed by him constituted an act of sale, and not merely an executory agreement to sell, and that under it the final purchaser, when instituted in possession, took full title, legal as well as equitable; there being, undey the Spanish law then in force, no distinction between legal and equitable titles as at common law. i</p> <p>2. Same — Conveyance Executed by One Partner — Validity.</p> <p>An instrument of sale of a Mexican concession of land in Texas, executed in 1832, by one of two persons who were named ¿s grantees in a prior conveyance to them, and signed by him “for himself and his partner,” under which the commissioner duly authorized thereto by law issued to the grantee title of possession to the lands selected by him under the grant, and under which he was instituted and remained in possession, will be held to have been executed with the consent of the owner who did not sign, and to have passed the title and interest of both; there being evidence that they were partners in a mercantile business, which at that time in Texas consisted in dealing in lands to a greater or less extent, and a verbal sale of land being valid under the Spanish law then in force.</p>

This is a bill filed to obtain an accounting under a contract between the complainants, comprising a firm engaged in business in the city oi New York under the name and style of Palm, Fechteler & Co., and the defendant, a corporation organized under the law of Ohio, and doing business in Cincinnati under the corporate name of Palm Bros. & Co. This contract bears date of February 17, 1899, but took effect from and after January 1,1899, and was for a term of 12 years.

<p>1. Removal oe Causes — Motion to Remand — Failure to Answer Petition Alleging Fraudulent Joinder.</p> <p>Where a petition for removal filed by one of two defendants shows that its codefendant has not been served with summons, and affirmatively alleges that he in no manner contributed to the injury sued for, and that it is not the plaintiff’s intention to prosecute the action against him in good faith, but that he was fraudulently joined as a defendant for the sole purpose of defeating the jurisdiction of the federal court, if no issue is joined upon such allegations they are to be taken as true; and a motion to remand, which raises only the legal question of the sufficiency of the petition, should be overruled, where the petition is otherwise sufficient.</p> <p>2. Railroads — Injury or Person Crossing between Cars on Side Track-Contributory Negligence.</p> <p>A section hand was caught and crushed between two ears on a side track at a station, which were moved together by an engine as he was attempting to pass through between them, where they were standing about a foot and a half apart. A freight train was due, and was in fact at the station, and the engine was engaged in switching on the side track, but the deceased went between the cars without looking or listening to ascertain its whereabouts. Held, that he was guilty of contributory negligence, which, as matter of law, precluded a recovery for his death, whatever the capacity in which he was crossing — whether as a private individual, or an employe exercising a privilege as such — and without regard to whether or not the railroad company was negligent in moving the cars without warning.</p>

The plaintiff in error instituted an action of replevin in the court below to recover 250,000 feet of lumber which it claimed had been unlawfully taken out of its possession by the defendant.

<p>In Error to the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Plaintiff in error (plaintiff below), owner of a six-story business block in Chicago, contracted with the Manufacturers’ Automatic Sprinkler Company to install in her building a complete sprinkler system. Among other things, the sprinkler company agreed to construct on top of the building, according to plans of Ritter & Mott, engineers, a steel framework on which to stand a wooden tank of 20,000 gallons capacity. The sprinkler company contracted with defendant to erect the steel support. Defendant was given the drawings and specifications prepared by Ritter & Mott, and in making'therefrom its shop plans, and in putting up the steel support, omitted a tie member— one side of the triangular top. Ritter & Mott’s plans informed defendant that a tank 16 feet in diameter would rest upon the steel support, but did not disclose the height and capacity of the tank. Defendant did its work in the manner above stated, .and left the building. Thereafter a tank company employed by the sprinkler company came upon the building and made and placed the tank. Then the sprinkler company connected the tank with the system of pipes and sprinkler heads throughout the building. The tank was filled and the system was maintained by plaintiff for 30 days before the accident occurred which gave rise to this controversy. The steel support weighed 5 tons; the tank and water, 85. The wind, blowing at 40 miles an hour against the tank surface, caused the structure to collapse. The evidence tends to prove that the collapse would not have happened, except for the absence of the tie member. Plaintiff paid out large sums in repairing the building and sprinkler system, in reimbursing tenants for damage to goods, and in settling personal injury claims. To recover these, she brought this action on the case against defendant. At the conclusion of her evidence the court, on defendant’s motion, directed a verdict for defendant, on which was entered the judgment now sought to be reversed.</p>

<p>1. Evidence — Admission—Harmless Error.</p> <p>Where in an action on a note the verdict In favor of defendant must have been rendered on the first defense alleged in defendant’s answer, denying that the note was plaintiff’s property, alleged error in the admission of evidence relative to a subsequent different defense was harmless.</p> <p>2. Bills and Notes — Transfer—Evidence.</p> <p>In an action on a note by an administrator of the payee, evidence reviewed, and held to sustain a verdict finding that the title to the note had been transferred by indorsement and delivery to a third person.</p> <p>3. Same — Instructions.</p> <p>Where it was alleged that the note sued on had been transferred by plaintiff’s intestate to her daughter by indorsement and delivery, a requested instruction that such indorsement was of no effect unless accompanied by a delivery of the note to the indorsee, with the intention of transferring the title thereof from the payee to the indorsee, and that unless there was such delivery the plaintiff was entitled to consider the indorsement of no effect and cancel the same, was objectionable, as submitting rather the question of plaintiff’s right to erase the indorsement-, than whether the note was executed and delivered to the indorsee in such a way as to pass title.</p> <p>4. Same — Transfer—Instructions.</p> <p>In an action on a note alleged to have been transferred by the payee to her daughter, an instruction that if that was the payee’s intention, if she made the indorsement, and the note was delivered to the daughter, or delivered to the father for the daughter, or delivered to any one for the daughter, the title passed and the note belonged to the daughter, and not to the mother, thereafter, and the mother’s administrator could not recover thereon, but if the indorsement was made by the mother without any view of making provision for the daughter, not intending that the title to the note should pass to her, and there was no delivery of .the note to her, or to anybody for her, then the title remained in the mother, was not erroneous, as laying too much stress on the mother’s intention in making the indorsement to pass title to the daughter.</p>

<p>1. Counterfeiting — Evidence—Separate Offenses — Admissibility to Show Intent.</p> <p>In a prosecution for uttering counterfeit 5-cent pieces, where it was completely and satisfactorily shown that defendant had in his possession and passed certain counterfeit 5-cent pieces, evidence that molds for making 25-eent pieces were found in a tool chest used jointly by. defendant and another was admissible to show a criminal intent in passing the 5-cent pieces.</p> <p>2. Same — Dismissal of Count of Indictment — Effect on Evidence.</p> <p>Where an indictment for counterfeiting alleged in one count the passing of counterfeit 5-cent pieces, and, in another count, charged defendant • with possessing, molds for counterfeiting 25-eent pieces, the dismissal of the latter count did not operate to' withdraw from the jury evidence introduced thereunder, where such evidence was admissible to show criminal intent under the former count.</p> <p>3. Criminal Law — Trial—Argument to Jury — Interruption by Court.</p> <p>Where counsel erroneously stated in his argument to the jury that the effect of the dismissal of one count of an indictment operated to withdraw the evidence introduced thereunder from the consideration of the jury, it was proper for the court to interrupt him in such statement.</p>

This action was brought by the Commercial National Bank, a corporation chartered under the national banking act, against the Nacogdoches Compress & Warehouse Company, a corporation created under the laws of the state of Texas. The plaintiff claimed that it had been damaged in the sum of $20,000 by reason of the facts hereinafter stated. The trial court instructed the jury peremptorily to return á verdict for the defendant.

<p>1. Master and Servant — Death op Servant — Railroads—Fireman.</p> <p>Where, in an action for the death of a railway fireman by the derailment of his engine while it was running backward at high speed, there was evidence that the derailment occurred at a curve near a stock gap, that many of the ties in the curve were rotten, which had permitted the outer rail to sink one-half inch lower than the inner rail when it should have been four inches higher, and that there were many low joints around the curve which included the cattle gap, some being out of surface from one to two inches, the question of defendant’s negligence in the preservation of the track was for the jury.</p> <p>2. Same — Fellow Servants.</p> <p>Since a railroad fireman and his engineer are fellow servants, no recovery could be had for the death of such fireman by the derailment of the engine, if the same was caused by the fault of the engineer.</p> <p>3. Same — Proximate Cause.</p> <p>Where, in an action for death of a railroad fireman by the derailment of the engine on which he was working, there was evidence justifying a finding that the derailment would not have happened but for the defective condition of the track, whether such defective condition was the proximate cause of the accident was for the jury, though the speed at which the train was operated, and the fact that the engine was being run with the tender in front, might have been contributing causes.</p> <p>4. Same — Contributing Causes.</p> <p>Where a railroad fireman was killed by the derailment of the engine on which he was working, directly caused by a defect in the track, the railroad company was not excused from liability on the ground that the engineer was guilty of negligence contributing to the accident in running the train at an excessive rate of speed.</p> <p>¶ 4. See Master and Servant, vol. 34, Cent. Dig. §§ 515, 521; Negligence, vol. 37, Cent. Dig. § 75.</p>

<p>1. Bankruptcy — Revision in Matter op Law — Pleading.</p> <p>A petition to the Circuit Court of Appeals to revise in matter of law the proceedings of a district court in bankruptcy, under Bankr. Act July 1, 1898, § 24b, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], should set out the facts or the findings of fact on which the matters of law sought to be reviewed arise.</p> <p>¶ I- Appeal and review in bankruptcy eases, see note to In re Eggert, 43 C. C. A. 9.</p> <p>2. Same — Property Passing to Trustee — Fund Held by Bankrupt as Agent.</p> <p>Where a live stock commission merchant, in contemplation of bankruptcy, placed in the hands of his attorney cheeks received for stock which had been consigned to and sold by him, which were deposited by the attorney in his own name, and kept separate from the general fund's of the bankrupt, a consignor who can trace the proceeds of his stock to such fund is entitled to recover the same.</p> <p>3. Factors — Relation to Principal.</p> <p>A custom among live stock commission men at a certain market, to assume all risks of payment of the price by purchasers to whom théy sell does not convert them into buyers, but they remain agents for the consignors in the transaction, upon a del credere commission.</p>

Petition for Revision of Order Made in Bankruptcy of A. H. Bacon, Pending in the District Court of the United States for the Northern District of Alabama. On the 23d day of September, 1903, the bankrupt filed his voluntary petition in bankruptcy in the District Court of the United States for the Southern Division of the Northern District of Alabama, and was on the same day duly adjudicated a bankrupt by said court, and the ease was referred to Hon. N. W. Trimble, referee.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from a decree of the United States Circuit Court for the Southern District of New York dismissing bill filed to restrain defendants’ use of complainant’s trade-name “Le Page” on glue sold by defendants, and for an injunction and accounting.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas, at Paris.</p> <p>This was an action brought by J. O. Easterbrook, trustee in bankruptcy of the estate of Charles Pratt, bankrupt, against the Delta National Bank and James A. Smith, to recover a certain storehouse situated at Pació, in Delta county, Tex., formerly owned by said Charles Pratt, and transferred to him by James A. Smith. Charles Pratt conducted a mercantile business at Pació, and on October 13, 1902, conveyed his storehouse to said Smith for $1,500, and the amount was credited on Pratt’s indebtedness to the bank. On April 3d following, the Paris Grocer Company, Abe Goldman & Bro., the H. S. Bettes Hardware Company, the Hutcherson-Elliott Drug Company, and the Holly-Brooks Hardware Company, all of Paris, Tex., filed a petition in bankruptcy against Charles Pratt on his written statement of “his inability to pay his debts and willingness to be adjudged a bankrupt on that ground,” and on April 14th he was duly adjudged a bankrupt. The appellee filed his petition in this case on “July 25, 1902,” and alleged that he was the trustee of the said estate of Charles Pratt, bankrupt; and that the said storehouse had been attempted to be sold to appellants, and that there had never been any change of possession of the property; and that the bankrupt, with the knowledge of appellants, had attempted to give appellants a preference; and that the transfer of the house was while the said bankrupt was insolvent, and had been kept secret and concealed; and that the pretended transfer was made for the purpose of hindering, delaying, and defrauding creditors, and especially the five petitioning creditors, and that those creditors had no knowledge, actual or constructive, of the sale; and prayed for judgment, for title, and possession. The appellants specially excepted to it (1) because the petition disclosed no authority from the bankrupt court for appellee to bring this suit, (2) because it alleged no fact giving the trial court jurisdiction, (3) and because the petition disclosed the fact that the transaction had taken place more than four months before the filing of the petition in bankruptcy, and therefore this action was barred; and they demurred generally to the petition. The exceptions and demurrer were overruled, and exceptions were reserved. The appellants answered by general denial, and specially pleaded that the storehouse had been bought at its fair valuation, and the amount had been credited on a valid indebtedness and in the due course of business, and four or five hundred dollars of collateral notes had been released, and that the deal was fair and honest, and with no purpose of securing a preference, and that the deal had been made more than four months before bankruptcy. The case was tried by the court without a jury, the same having been waived, and resulted in a judgment for the appellee. The appellants excepted, and sued out this appeal. A motion to dismiss this appeal is here made on the ground that this is an action at law and no appeal lies.</p>

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

<p>1. Federal Courts — Jurisdiction—Averment of Citizenship.</p> <p>An averment in a pleading that plaintiff is a resident of a particular state is not equivalent to one that he is a citizen of that state, and is insufficient to give a federal court jurisdiction where that is dependent on diversity of citizenship.</p> <p>¶ 1. Averments of citizenship to show federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 261.</p>

<p>Petition for Review of Proceedings of the District Court of the United States for the Eastern Division of the Northern District of Ohio, in Bankruptcy.</p>

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

<p>1. Patents — Infringement—Knitting Machines.</p> <p>Tbe Mayo patent. No. 461,357, for a circular knitting machine, covers improvements in tbe machine of patent No. 363,528, to tbe same inventor, cliiefly in the manner of pivoting and mode of operation of the pickers. Claims 4 and 6 construed, and held not infringed by a machine made in accordance with tbe Rowe patents, Nos. 570,059 and 581,887. Claim 11 held void for lack of patentable novelty.</p> <p>2. Same — Winders.</p> <p>Tbe Johns patent, No. 600,788, for a rotary winder for introducing an extra thread in machine knitting, is not for a generic invention, and, in view of tbe prior art, is not entitled to a broad construction, covering every form of rotary winders, but must be limited to tbe mechanism shown — at most, with a liberal application of tbe doctrine of equivalents. Claims 1, 2, 3, 4, and 5 are not infringed by tbe winder of tbe Rowe patent, No. 581,887, which is an essentially different structure.</p> <p>3. Same.</p> <p>The Ames patent, No. 600,671, for a winder for introducing an extra thread in knitting, being an improvement on that of tbe Johns patent, No. 600,788, claims 8, 10, and 11, is not infringed by tbe winder of tbe Rowe patent, No. 581,887.</p>

<p>Appeal and Cross-Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The Miller Ladder Company brought this suit on account of an alleged infringement of letters patent No. 343,829, June 15, 1886, and No. 401,848, April 23,1889, to Miller, complainant’s assignor, for improvements in folding trestles.</p> <p>The description and claims of the first Miller patent.are as follows: “The object of the present invention is to provide a simple and effective trestle for scaffolding for the use of paper hangers to support their boards on, or as a table-support, and other uses to which a trestle may be adapted; and it consists in the details of construction, substantially as shown in the drawings, and hereinafter described and claimed.</p> <p>“In the accompanying drawings, A B and O D represent two pairs of legs, of any suitable length and thickness, and pivoted together at (their mid-length by pivot) a. The legs or standards A 0 are connected together near their lower ends by braces, b, c, which are pivoted to the legs or standards, and also pivoted together, as shown at d, the legs or standards B D being in like manner connected together.</p> <p>“Any desirable and well-known form of braces may be used as found most preferable, which change I reserve the right to make without departing from the principle of my invention, and the same right I reserve as to the form and construction of the plates, e, which connect together the legs or standards, A C and B D, at their upper ends, the plates being connected or pivotally attached to each other at f.</p> <p>“The pivots, a, and pivots, f, are at right angles to each other. Thus the legs or standards of each pair can be folded down upon each other, while the legs or standards A O and B D are brought together, thereby folding the trestle in a compact form, as shown in Fig. 4.</p> <p>“In setting up the trestle for use the legs or standards are brought into position, as shown in Fig. 1, the braces and a support, E, hereinafter described, keeping them extended.</p> <p>“When the legs or standards A O and B D are partially extended with relation to each other, a space is left between the upper ends, in which is inserted the ends of the support E. This support has mortises, g, in its sides, as shown, which fit the sides of the legs or standards, and by spreading each pair of legs apart at their lower ends the support will be held firmly between them.</p> <p>“Having now fully described my invention, what I claim as new, and desire to secure by letters patent, is—</p> <p>“1. A trestle consisting of two pairs of legs or standards, pivoted together at or near their center and near their upper ends, and connected together near their lower ends by pivoted braces, whereby they are adapted to fold together, substantially as and for the purpose set forth.</p> <p>“2. The combination, with a trestle consisting of two pairs of legs or standards pivoted together, as shown, of a support' having mortises on its sides and near its ends, and adapted to be held between the upper ends of said legs or standards, substantially as and for the purpose specified.”</p> <p>The description and claims of the second Miller patent are as follows: “This invention relates to certain improvements in the type of folding trestles that forms the subject-matter of letters patent No. 343,829, issued to me June 15, 1886, for improvement in trestles; and the present improvements have for their object to provide a simple, cheap, and durable trestle construction embodying the features of cheapness and durability in construction, ease in folding and unfolding the trestle, and permanent pivotal connection of the trestle parts together. I attain such object by the construction and arrangement of parts illustrated in the accompanying drawings, in which—</p> <p>“Figure 1 is a perspective view illustrating the trestle in its unfolded condition ready for use; Fig. 2, a similar view of the trestle in its folded condition ; Fig. 3, a detail side view of the upper end of the trestle in the folded condition; Fig. 4, a detail section illustrating the connection of the legs or standards to the free end of the horizontal top bar of the trestle; and Fig. 5 a similar view of a modified form of the same.</p> <p>“Similar letters of reference indicate like parts in the several views.</p> <p>“As represented in the drawings, my improved trestle consists of four legs or standards, A A', B B', pivoted together in pairs at or near their mid-length by means of screws, a, b, or other equivalent means.</p> <p>“0 is the horizontal top bar of the trestle, pivoted at one end between the upper ends of the legs A B by a suitable pivot-bolt, c, so as to have pivotal movement between the same, its free end being engaged, when the trestle is unfolded, by the upper ends of the legs A' B', which engage in beveled recesses, c, in the sides of such bar, as shown in Fig. 4, to effect a firm and substantial connection; such legs A' B' being pivoted together by pivot plates or hinges, D, at a point immediately below the bar O, as clearly indicated in Figs. 1, 3, and 4.</p> <p>“As shown in the drawings, the corresponding legs A B of each pair of legs, between which the horizontal bar C is pivotally attached, are arranged adjacent to each other and between the legs A' B', that engage the free end of the horizontal bar O. With this construction the four legs can be made of equal lengths to avoid all after fitting and cutting, which was a serious defect in the construction shown in my former patent, in which the legs were required to have different lengths in order to attain a perfect rest or footing.</p> <p>“As a modification of the mode of attachment of the free ends of the horizontal top bar, 0, to the upper ends of the legs A' B', as illustrated in Figs. 1 and 4, an open-bottomed recess, c^, may be formed in the bar C, preferably by metal side plates, O', to receive and confine the upper ends of the legs A' B', as shown in Fig. 5.</p> <p>“E is a strut or brace pivoted to one of the legs, and adapted to engage against the inner side of the opposite leg to hold the trestle parts in tlieir extended condition. This strut may be located at any other suitable position from that shown without departing from the spirit of my invention, and in some cases entirely omitted or replaced by the hinged brace shown in my former patent, No. 343,829.</p> <p>“The top bar, O, is shown in the drawings of a length greater than the space between the upper ends of the legs or standards. The purpose of such construction is to form a convenient rest for a paper-hanger’s straight-edge, widening-board, etc., when the trestles are to be used for such work; otherwise the bar need not have such extra length, and the parts can be increased or diminished in size and proportions as the particular uses to which the trestle is to be applied or the judgment of the maker may suggest without departing from the spirit of my invention.</p> <p>“Having thus fully described my invention, what I claim as new, and desire to secure by letters patent, is—</p> <p>“1. A trestle consisting in the combination of a horizontal top bar, C, and four legs or standards, A A', B B', pivoted together in pairs at or near their mid-length by pivots a, b, the legs A' B' being pivoted together at or near their upper ends by pivot D, the axis of which is at right angles to the axis of the pivots a, b, and the corresponding legs A B being arranged adjacent to each other and between the corresponding legs A' B', the parts being adapted to fold together into a compact form, in the manner and for the purpose set forth.</p> <p>“2. A trestle consisting of four legs or standards A A', B B', pivoted together in pairs at or near their mid-length by pivots a, b, the legs A' B' being pivoted together at or near their upper ends by pivot D, the axis of which is at right angles to the axis of the pivots a, b, in combination with the horizontal top bar, 0, pivotally secured between the upper ends of the legs or standards, whereby the trestle parts are permanently connected together and adapted to fold into a compact form, substantially as herein- described, and for the purpose set forth.</p> <p>“3. The combination of the legs or standards A A', B B', pivoted together in pairs and connected together by hinge D, with the correspondings legs A B arranged adjacent to each other and between the corresponding legs A' B', top bar, C, having a recess, essentially as described, for receiving the upper ends of the legs A' B', and pivot-bolt, c, substantially as described, and for the purpose set forth.</p> <p>“4. The combination of the legs or standards A A', B B', pivoted together in pairs and connected together by hinge D, with the corresponding legs A B arranged adjacent to each other and between the corresponding legs A' B', top bar, 0, having a recess, essentially as described, for receiving the upper ends of the legs A' B', pivot-bolt c, connecting the end of bar O with the tops of the legs Á B, and strut or brace E, substantially as described, and for the purpose’set forth.”</p> <p>The court, after issues joined, and on full proof, held the first claim of the first patent to be void, the second claim of the first patent and the four claims of the second patent to be valid and infringed, awarded a perpetual injunction against infringement of the second patent (the first having expired shortly before the decree was entered), and decreed an accounting with respect to infringement of the five claims held valid. Defendants appeal and attack the decree in every respect in which it is against them, and complainant presents a cross-appeal challenging the correctness of the decree in so far as it adjudges the invalidity of the first claim of the first patent. Defendants move to dismiss the cross-appeal.</p> <p>The record exhibits the following patents as illustrative of the prior art: 19,107, January 12, 1858, to Stone; 27,277, February 28, 1860, to Dodge; 72,562, December 24, 1867, to Sutter; 100,430, March 1, 1870, to Mallory; 128,332, June 25, 1872, to Smith; 129,97S, July 30, 1872, to Noggle; 166,874, August 17, 1875, to Hood; 232,100, September 7, 1S80, to Zwiebel; 262,206, August 8,1882, to Carr; 295,269, March 18, 1884, to Miller; 304,357, September 2, 1884, to Powell; 318,896, May 26, 1886, to Hanssen.</p> <p>Defendants’ device is built in accordance with letters patent No. 702,431, June 17, 1902, to Howard.</p>

<p>1. Patents — Invention—Telephone Apparatus.</p> <p>The Carty patent, No. 449,106, for improvements in telephone circuits and apparatus, is void for lack of patentable invention.</p>

<p>1. Patents — Action for Infringement — Title to Support.</p> <p>The owner of a patent made an absolute assignment of the same, which was duly recorded. At the same time the assignee executed a paper showing that the assignment was as collateral security for a debt, and agreeing that the assignor should retain the exclusive right to manufacture and sell under the patent, and to license others thereunder. This agreement was not recorded. Subsequently the debt was paid, and a reassignment made, which expressly covered the sole and exclusive right to all causes of action for past infringements. Held, that the original assignment and the paper executed at the same time constituted a single contract, under which the assignor retained the right to sue at law for infringement of the patent; the fact that the agreement was not recorded being immaterial as against this infringer.</p>

<p>In Equity. Suit for infringement of letters patent No. 415,720 for a lantern holder, granted to Walter A. Lattimore, November 26, 1889. On final hearing.</p>

<p>Sur Application for Preliminary Injunction.</p>

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

<p>1. Interest — Usury—State Laws.</p> <p>Under the laws of New York, the fact that a larger amount has been paid for the use of money than the legal rate of interest does not establish usury, in the absence of proof of a usurious contract pursuant to which the interest was paid, though the excess was paid as interest.</p> <p>2. Same — Bankruptcy—Claims—Allowance—Burden oe Proof.</p> <p>Where a trustee in bankruptcy contested a claim on the ground of usury, the burden of proof thereof was on him.</p> <p>¶ 2. See Usury, vol. 47, Cent. Dig. § 308.</p> <p>8. Same — Evidence.</p> <p>In a proceeding for the allowance of a claim against a bankrupt’s estate, evidence reviewed, and held insufficient to establish a defense of-usury.</p> <p>4. Same — Brokers—Services—Compensation.</p> <p>Where claimants were note brokers, and, as such, had been engaged for a long period in selling the notes of a bankrupt firm, and loaning money on such notes as collateral before they could be sold, the compensation paid by the firm for such services could not be treated as interest to sustain a defense of usury.</p> <p>5. Same — Statutes—Loans of Money — Oral Contracts.</p> <p>Laws N. Y. 1882, p. 290, c. 237, abolishing the usury law in respect to advances of money payable on demand to an amount not less than $5,000, made on negotiable instruments pledged as collateral security, makes such loans providing for a payment of interest in excess of the legal rate nonusurious, though the agreement is oral.</p> <p>6. Same — Collaterals.</p> <p>Where note brokers had heen engaged in selling notes of a bankrupt firm to a large amount, and on several occasions had made advancements to the firm on such notes before they could be sold, intending to secure reimbursement from such sale, the notes should be treated as collaterals to such advances, within Laws N. Y. 1882, p. 290, c. 237, abolishing the usury law with respect to advances of money payable on demand to an amount not less than $5,000, made on negotiable instruments pledged as collateral.</p> <p>7. Same — Banks.</p> <p>The national bank act [3 TI. S. Comp. St. 1901, pp. 3454-3493] provides that usurious interest cannot be collected, but does not impose a forfeiture of the principal as a penalty for usury. Laws N. Y. 1870, p. 437, e. 163, subjected state bank associations to the same liability in respect to usury as national banks, and Laws 1880, p. 823, c. 507, declares that the former acts should apply to private or individual bankers. Reid, that the effect of such legislation was to abolish the statutory forfeiture of the principal of usurious loans made by all persons engaged in the business of banking in New York.</p> <p>8. Same.</p> <p>Where note brokers adopted as a branch of their business the making of loans to their customers on security of the notes held for sale, they thereby became engaged in the banking business, within Laws N. Y. 1870, p. 437, c. 163, as amended by Laws 1880, p. 823, c. 567, under which bankers are exempt from liability for forfeiture of the principal of usurious loans.</p>

<p>In Bankruptcy. On plea to the jurisdiction of the court.</p>

<p>In Bankruptcy. Exceptions and demurrer to the specifications of objection filed to the discharge of the bankrupt Eeo B. Eevey.</p>

<p>1. Shipping — Limitation op Liability— Construction op Statute.</p> <p>The right of the owner of a vessel to a limitation of liability under the provisions of Key. St. §§ 4283-4285 [U. S. Comp. St. 1901, pp. 2943. 2944], does not depend upon the fact that the vessel is actually engaged upon a voyage at the time of the doing of the act or the happening of the event against which the owner seeks to limit his liability, but the statute applies equally to a vessel at a dock in her home port, where she is being altered and refitted, and where she has remained for several months.</p> <p>2. Negligence — Liability poe Injury — Proximate Cause.</p> <p>A steamer was lying at the dock of a contractor, which was refitting her to burn oil instead of coal. After a tank had been completed, but before it had been equipped with ventilators, the owner of the vessel caused it to be partially filled with crude petroleum of a low and inflammable grade. While a workman in the employ of the contractor was drilling a hole in the top of the tank he placed a lighted candle within 2y2 inches of where he was drilling, and the result was an explosion of the tank, by which a number of such workmen were killed. Held, that while the owner of the vessel may have been negligent in filling the tank at the time and in using an inferior and dangerous grade of oil, the workman was clearly negligent, it being a matter of common knowledge that petroleum will give off gas which will explode under certain conditions when brought in contact with a flame, and that his carelessness was the proximate cause of the explosion, for the consequences of which to the contractor’s employes the vessel owner was not liable.</p> <p>3. Master and Servant — Injury to Seaman Through Negligence of Workman — Liability oe Shipowner.</p> <p>A shipowner which contracts for repairs owes an active duty to the seamen on board to use reasonable diligence to see that they are not subjected to danger by reason of the negligent manner in which the work is done, and is liable for their death or injury resulting from its failure to perform such duty.</p> <p>¶ 1. Limitation of liability of vessel owner, see note to The Longfellow, 45 C. C. A. 387.</p>

In Equity. On demurrer to bill. This is a suit in equity to enjoin the diversion of water by defendants from Quin river and Twelve Mile creek, in Humboldt county, Nev.

<p>In Bankruptcy. On demurrer to answer to petition of trustee.</p>

<p>1. Shipping — Chaster Hire — Improper Fittings eor Carriage oe Asphalt.</p> <p>A skip chartered for a voyage to South American ports, which went to Trinidad, by the charterer’s direction, and without objection, to load a return cargo of asphalt under a subcharter, was bound to furnish the special lining required for such cargo to prevent it from getting behind the permanent battens with which she was equipped; and, where such lining was not provided, she is liable for the expense of taking off the battens and removing the asphalt behind them; the cargo being a lawful one, and the charter containing no special provision exempting the vessel from the duty imposed generally of providing proper equipment and fittings for the service.</p>

<p>1. Bankrupts — Composition—Ratification.</p> <p>A bankrupt, having been engaged in stock, bond, and produce brokerage, and having been once expelled from the Consolidated Exchange for fraud, and having conducted his business in such a manner that he failed, owing $227,000, with hardly sufficient assets to pay the expenses of administering his bankrupt estate, organized a corporation to continue the business, and offered in composition to issue to his creditors preferred stock in such corporation to the full amount of their claims, and, in addition, an amount of common stock equal to 10 per cent, thereof. The corporation’s articles provided that the common stockholders should have exclusive voting power, and that the amount of capital with which the company should begin business was $1,000, the effect of which arrangement would be to vest in the bankrupt, to whom the entire stock was originally issued in return for the good will of his previous business, entire control of the corporation. Held, that in the absence of proof that the stock had been issued for “cash or property,” as required by statute, the holders thereof would become personally liable for corporate debts to the amount of the face value of their stock, and hence such composition would not be enforced as against a dissenting creditor.</p>

<p>1. Bankruptcy — Voidable Preference — Reasonable Cause to Believe Debtor Insolvent.</p> <p>Evidence considered, and held insufficient to show that a creditor to whom the debtor transferred property while insolvent, and within four months prior to his bankruptcy, had reasonable cause to believe him insolvent at the time, or that he intended to give a preference, so as to entitle the trustee to recover the property.</p>

<p>1. Customs Duties — Action to Recover — Jurisdiction oe District Court.</p> <p>A district court of the United States has jurisdiction of an action of debt to recover duties due from an importer to the United States, which through accident, mistake, or fraud have not been paid, the government not being limited to its remedy by summary proceedings against the goods under sections 13 and 14 of the customs administrative act of June 10, 1890, 26 Stat 136, 137 [U. S. Comp. St. 1901, pp. 1932, 1933], or other provisions of the tariff laws for the collection of duties, which are not only a charge against the goods, but also a personal debt of the importer.</p>

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

<p>1. Jurisdiction of Federal Courts.</p> <p>Under Act March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508], a party cannot be sued in a federal court in any district other than that of which he is an inhabitant, except when the jurisdiction is invoked only upon the ground of a diversity of citizenship the action may be maintained in the district of the residence of either the plaintiff or the defendant; but, as this provision of the law is merely a privilege for the benefit of the defendant, he may waive it.</p> <p>2. Same — Against Federal Corporations.</p> <p>An action against a corporation created by an act of Congress is one arising under the laws of the United States, and under the act of March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508], can only be maintained in a federal court of the district of which it is an inhabitant (i. e., has its principal offices and transacts its corporate business), regardless of the residence of the plaintiff.</p> <p>3. Residence of Corporation.</p> <p>A corporation is an inhabitant of the state and district in which its principal offices are, and its corporate business is transacted. The fact that it is doing business in a state or district other than that in which it has its residence, although it has, in compliance with the laws of such other state, consented to be sued in its courts, and for that purpose appointed an agent upon whom legal process may be served, does not make it an inhabitant of such state or district, within the meaning of the act of March 3, 1887, c. 373, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508].</p> <p>(Syllabus by the Court.)</p>

<p>In Admiralty. Cross-suits for collision.</p>

<p>1. Trade-Marks — Rights under State Statute — Enforcement in Other Jurisdictions.</p> <p>A suit cannot be maintained in a federal court to enforce rights under a state statute relating to trade-marks, and providing for their registration, where the transactions complained of occurred outside of such state.</p> <p>¶ 1. Jurisdiction of federal courts as affected by state laws, see note to Barling v. Bank of British North America, 1 C. C. A. 513.</p>

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

Appeals from the District Court of the United States for the Northern Division of the District of Washington.

<p>1. Marine Insurance — Constructive Total Loss — Abandonment.</p> <p>In marine insurance, a constructive total loss is one upon the happening of which the insured may abandon the subject-matter of the insurance; and, unless there remains something of value to pass to the underwriter, there is nothing to abandon, and no case for the application of the doctrine of constructive total loss.</p> <p>¶ 1. See Insurance, vol. 28, Cent. Dig. §§ 1192, 1195.</p> <p>2. Same.</p> <p>An insured cargo was damaged to some extent on the voyage from perils, of the sea, and after reaching the port of delivery both vessel and cargo were sold in satisfaction of a claim for salvage. There was no evidence to show the amount of the damage to the cargo, nor was the value of the salvage services ever ascertained. There was no abandonment prior to the sale. Held, that there could not be an abandonment afterwards, to create a constructive total loss, the property having passed beyond control of the insured; nor were the facts such as to constitute a total loss without abandonment.</p> <p>3. Salvage — Authority to Determine Rights — Non judicial Officer.</p> <p>The captain of a revenue cutter lying at Nome, Alaska, at a time when there was no court at the place, had no authority to determine the rights of salvors, unless as arbitrator by agreement of the parties; the question being a judicial one, of which a court of admiralty alone has jurisdiction.</p> <p>4. Marine Insurance — Sue and Labor Clause — Contribution by Insurer to Expense.</p> <p>Under a marine policy requiring the insured to sue, labor, and travel, and use all reasonable means for the security, preservation, and recovery of the property insured, for the expense of which the insurer will contribute in proportion as the sum insured is to the whole sum at risk, the sum at risk is the valuation of the property as stated in the policy, which is conclusive between the parties; and the rule is not changed because such sum happens to equal the sum insured, thus obligating the insurer to pay the whole of the expense incurred under the sue and labor clause.</p> <p>5. Same — Loss tiirougii Willful Act of Master — California Statute.</p> <p>Under Civ. Code Cal. § 2629, providing that “an insurer is not liable for a loss caused by the willful act of the insured, but he is not exonerated by the negligence of the insured, or of his agents or others,” expressly made a part of a marine policy on cargo, there can be no recovery for loss or damage resulting directly from the act of the master in designedly undertaking to force the vessel through floating ice on a voyage to Alaska, with knowledge of the dangers to be encountered and with ample time to have avoided them, in order to arrive more quickly at his destination and secure a better market for his cargo. Such conduct is not mere negligence, but is a willful omission to perform his legal duty and an intentional commission of a wrongful act.</p>

This is a bill in equity, brought by the United States against the Southern Pacific Railroad Company and the trustees in certain mortgages, to secure bonds issued by said company, and against numerous other defendants to determine the title to over 30,000 acres of land situate within the limits of the grant to the Southern Pacific Railroad by the act of Biarch 3, 1871, e. 109, 16 Stat. 473, which were excepted from such grant by reason of a prior grant to and reservation for…

<p>1. Public Lands — Railroad Grant — Lands Within Survey of Mexican Grant.</p> <p>Where, at the time of the attaching of a railroad grant of lands in California, certain lands within the place limits of the grant were within the boundaries of a Mexican grant as previously surveyed on petition of the claimant, pursuant to Act July 1, 1804, c. 194, 13 Stat 332, such survey, the plat and field notes of which were of record in the General Land Office, had the effect of withdrawing all lands included therein from the operation of the railroad grant, although, upon a resurvey subsequently ordered by the Land Department, some of such lands were excluded.</p> <p>2. Same — Mexican Grant — Finality of Decree of Confirmation.</p> <p>The finality of a decree of a District Court confirming a Mexican grant of lands in California was not affected by a mere application for an appeal, where the appeal was never perfected, but was docketed and dismissed by the Supreme Court for that reason on application of the claimant.</p> <p>3. Same — Effect of Survey as Withdrawal of Lands from Operation of Railroad Grant.</p> <p>Where a Mexican land grant in California, after its confirmation, was surveyed pursuant to Act July 1, 1864, c. 194, 13 Stat. 332, and a copy of the survey, after its approval by the Surveyor General of the state, was filed with the Commissioner of the General Land Office as required by such act, the fact that it had not been approved by the Commissioner did not change its effect as a withdrawal of the land embraced therein from the operation of a railroad grant which attached while it so remained on file, nor did the fact that it was subsequently disapproved and a new survey ordered.</p> <p>4. Same — Railroad Grant — Bona Fide Purchasers.</p> <p>Under the mortgages made by the Southern Pacific Railroad Company in 1875 and 1893 to trustees for bondholders, covering the sections of land “granted by said acts of Congress,” without specific description, the trustees took only such lands as were included in the grant, and did not become thereby bona fide purchasers of any particular tract not then patented and not actually included therein.</p> <p>5. Same — Statute Requiring Payment for Lands Erroneously Patented and Sold.</p> <p>The provisions of Act March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], confirming the title of bona fide purchasers of lands from a railroad company to which they were erroneously patented, and also requiring the company to pay the government price for lands so patented and sold, are within the power of Congress and valid, and it is no defense to an action to recover such price that some of the lands involved were sold by the company for less than the government price, where it received a larger average price for the lands, taken as a whole.</p> <p>6. Equity — Objections to Jurisdiction — Waiver.</p> <p>Where a bill presents a case in which it is competent for a court of equity to grant the relief sought, and it has jurisdiction of the subject-matter, an objection to the jurisdiction on the groiuid that there is an adequate remedy at law must be taken by plea, demurrer, or answer, and is waived by answering to the merits.</p> <p>7. Public Lands — Railroad Grant — Recovery foe Lands Erroneously Patented and Sold.</p> <p>Under a grant to a railroad company of specific lands lying within certain place limits, with the right upon condition to select indemnity lands in lieu thereof, it is no defense to a suit by the United States under Act March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], to recover the government price of lands not in fact within the grant, but which were erroneously patented thereunder and have been sold to bona fide purchasers, that the company has not yet received the full quantity of land to which it is entitled, where there are sufficient other lands within its indemnity limits from which it may select to make up the deficiency.</p>

This is a bill filed by the receiver of an insolvent national bank to collect an assessment levied by the Comptroller of the Currency upon a stockholder of the bank by reason of the extraordinary liability imposed by law, and the collection is sought to be made from a legatee who has received assets from the stockholder sufficient to satisfy the assessment.

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

The record in this case shows certain proceedings leading up to the matter now before this court for review. On the 17th day of July, 1903, at 2:35 p. m., Robert S. Armstrong & Bro. and others filed in the District Court of the United States tor the Southern Division of the Northern District of Alabama a petition in involuntary bankruptcy against the Southern Car & Foundry Company.

This was an action by Eleanor Fitzpatrick against the National Union on a policy or benefit certificate for $5,000 issued on January 25, 1900, on the life of her husband, David Fitzpatrick, in which she, as his wife, was named beneficiary. The defense was based upon a provision in the application for a policy or benefit certificate to the effect that no benefit should be paid if the applicant should, within two years after becoming a beneficial member, commit suicide.

<p>1. Process — Orders—Jurisdiction.</p> <p>Where, by the neglect of the clerk, process was not annexed to the petition and issued in time for service at the return term after the petition was filed, the court had jurisdiction to make an ex parte order reciting such failure, and ordering that defendant be served with a copy of the petition and process in time for the succeeding term.</p> <p>2. Limitations — Commencement oe Action — Time.</p> <p>Code Ga. 1895, §§ 4960, 4973, declare that all suits are by petition to the court, and when filed the clerk shall indorse the date of filing, which shall be considered the commencement of the suit. Section 4974 requires the clerk, when a petition is filed, to annex process directed to the sheriff, requiring defendant’s appearance at the return term. A petition having been filed, the clerk failed to annex process so that the same could be served for the next term; whereupon the court entered an ex parte order reciting such failure, and directed that defendant be served for the succeeding term to commence on a date specified. Service being so made, defendant appeared and pleaded to the merits without objection to the process or its issuance. Held, that defendant having thereby waived all irregularities of the process or service as provided by Code, § 49S1, the commencement of the action for the purpose of tolling limitations was the date the petition was filed, and not the date process was issued on the court’s order.</p>

<p>Appeal from the District Court of the United States for the Western District of Virginia, at Lynchburg, in Bankruptcy.</p>

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

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

<p>1. Bankruptcy — Title op Trustee — Liens Invalid as to Creditors.</p> <p>The rule that the trustee takes the estate of the bankrupt in the same plight as the bankrupt held it is not applicable to liens which, although valid as to the bankrupt, are invalid as to creditors.</p> <p>2. Same — Attachments—Preservation op Liens.</p> <p>Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], provides that attachments and other liens obtained against an insolvent within four months prior to the filing of a petition in bankruptcy against him shall be void in case he is adjudged a bankrupt, and the property affected by such attachments or liens shall be released from the same, and pass to the trustee as part of the estate of the bankrupt, unless the court shall order the lien to be preserved for the benefit of the estate. Creditors of an insolvent attached, under the Virginia law giving them that right, property which the insolvent had conveyed, but deeds to which had not been recorded. After the attachment the deeds were recorded, and within four months from the attachment the insolvent was adjudged a bankrupt. Held, that the- attachment liens could be. preserved for the benefit of the bankrupt’s estate, although the property subject thereto did not belong to the bankrupt, except as to the attaching creditors, and could not have been reached by the trustee, except for the attachments.</p> <p>3. Same — Counsel Fees.</p> <p>It was proper for the bankruptcy court to allow attachment creditors who had obtained liens on property which the trustee could not have otherwise reached a reasonable compensation for attorney’s fees, on ordering the attachment liens preserved for the benefit of the estate.</p> <p>Purnell, District Judge, dissents from paragraph 2.</p>

Cooper Sheftall, defendant in error, was conductor of a freight train of the Texas & Pacific Railway Company, plaintiff in error.

In Admiralty. The Ashland National Bank filed its libel against the steamer Worthington, of the port of Chicago. Ill., to recover the sum of $300, advanced at the port of Ashland, Wis., for the use of the vessel. The Chamberlain Transportation Company, a corporation of the state of Illinois, the owner, intervened, and bonded the vessel.

<p>1. Unfair Competition — Tags—Evidence.</p> <p>Where the method of putting up complainant’s plug tobacco was shown to be in common use and not distinctive, defendant’s use of a yellow tin label or tag circular in shape, and about an inch in diameter, but com taining printed matter essentially different from that used on complainant’s label, was insufficient to establish unfair competition.</p> <p>2. Same — Trade-Marks—Prior Appropriation.</p> <p>Where tin tags of all colors, including yellow, of various sizes, had been used by tobacco manufacturers for several years, and a yellow tag similar in appearance to that used by complainant had been in use, without complainant’s objection, by another manufacturer for 10 years, the size and color of such tag was not of itself such a distinction as either complainant or defendant could appropriate as a trade-mark.</p> <p>¶ 1. Unfair competition in trade, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.</p>

<p>1. Patents — Infringement—Change of Form.</p> <p>Infringement is not avoided by a mere change of form or location of parts, if the same principle is used through the same mode of operation, to accomplish the same result, even though an additional beneficial result is attained through the change.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. §§ 372, 373.</p> <p>2. Same — Prior Use — Evidence to Establish.</p> <p>Under the rule that prior use to defeat a patent must be proved beyond a reasonable doubt, the testimony of a single witness, who depends entirely on his memory for the date, and is not corroborated by any facts or circumstances shown, is not sufficient.</p> <p>3. Same — Anticipation—Foreign Patent.</p> <p>A foreign patent, to constitute an anticipation which will defeat a subsequent American patent granted to one who had no knowledge of the foreign invention, under Rev. St. § 4923 [U. S. Comp. St. 1901, p. 3396], must describe the invention in such full, clear, and exact terms as to enable any person skilled in the art to construct the device patented.</p> <p>4. Same — Infringement—Switch-Stands.</p> <p>The Strom patent, No. 498,196, for a railroad switch-stand, the essential feature of which is a construction and arrangement of the parts such as to break the force of the wheel thrust of cars when the switch is operated automatically, and prevent the breaking of the gearing, was not anticipated, and discloses invention. Also held infringed.</p>

<p>1. Patents — Action for Infringement — Sufficiency of Complaint.</p> <p>Tie complaint in an action to recover damages for infringement of a patent must show on its face that plaintiff has complied with the requirements of Rev. St. § 4900 [U. S. Comp. St. 1901, p. 3388], by causing the patented article, or the package in which it is contained, to be marked in some suitable manner with the word “Patented.”</p>

In Equity. Application for an injunction enjoining and restraining Patrick Caulfield and James Caulfield, creditors of said bankrupt, and John P. Quigley, chief of the fire department of the city of Syracuse, N. Y., and also such others as may be aiding and abetting, from further prosecuting against said bankrupt, Allen M. Hicks, who is a member of the fire department of the city of Syracuse, N. Y., the charge “that the said Allen M. Hicks has been guilty of neglect of…

<p>1. Habeas Corpus — Issuance—Judgment op State Court.</p> <p>The federal courts and judges have the power under the acts of Congress to discharge prisoners restrained of their liberty in violation of the Constitution of the United States under judgments of the state courts. Rev. St. §§ 751-755 [U. S. Comp. St. 1901, pp. 592, 593].</p> <p>But the law of the land which has been established by repeated decisions of the Supreme Court is that this power should not be exercised where the judgment of the state court under which the petitioner is confined is reviewable by appeal or by writ of error; but in such cases the petitioner should be put to that remedy, save in exceptional cases, such as those in which the prisoner is confined for an act done or omitted by him under the Constitution or laws of the nation, in pursuance of its authority, or under the laws and authority of a foreign government of which he is a subject. Markuson v. Boucher, 20 Sup. Ct. 76, 175 U. S. 184, 185. 44 L. Ed. 124; Pepke v. Cronan, 15 Sup. Ct. 34, 155 U. S. 100, 39 L. Ed. 84; Reid v. Jones, 23 Sup. Ct. 89, 187 U. S. 153, 154, 47 L. Ed. 116; New York y. Eno, 15 Sup. Ct. 30, 155 U. S. 89, 96, 97. 98, 39 L. Ed. 80; Baker v. Grice, 18 Sup. Ct. 323, 169 U. S. 284, 294, 42 L. Ed. 748.</p> <p>¶ 1. Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C. C. A. 4.</p> <p>2. Same — Neither Want of Jurisdiction nob Brevity of Imprisonment Authorizes Writ.</p> <p>Under these decisions of the Supreme Court, neither the fact that the petition shows'that the state court was without any jurisdiction of the proceeding in which its judgment was rendered (New York v. Eno, 15 Sup. Ct. 30, 155 U. S. 88, 89, 90, 93, 96, 98, 39 L. Ed. 80), nor the fact that the term of the petitioner’s imprisonment will expire before a hearing can be had in the ordinary course of proceedings upon the writ of error or ai>peal (Markuson v. Boucher, 20 Sup. Ct. 76, 175 U. S. 184, 44 L. Ed. 124), ordinarily withdraws a case from the effect of this general rule.</p> <p>3. Same — Sentence for Contempt of Supreme Court of Colorado — Review by Writ of Error.</p> <p>The petition for the writ discloses the alleged facts that the prisoner is .confined in jail at Denver for the violation of a writ of injunction issued by the Supreme Court of Colorado upon a complaint of the lieople of that state, on the relation of their Attorney General and others, for the purpose of preventing frauds in an election; that there was no statute of that state which authorized such a suit; that that court had no jurisdiction of the original suit, or of the proceedings against the prisoner for a violation of the injunction; that his confinement was in violation of the Constitution of the United States; that in the proceedings against him before the Suprepie Court of Colorado he set up the right and immunity which he now claims under the Constitution .of the United States, and that court decided against that right and immunity; that other citizens of Colorado' have been arrested, and still others are to be arrested and tried by the Supreme Court of that state, for similar violations of the injunction'; that other citizens have already been tried and sentenced; and that the Supreme Court of Colorado is proceeding in the original suit to supervise the election and to canvass the votes, in alleged violation of the laws of that state.</p> <p>Sold, (1) the petition shows that the judgment of the Supreme Court under which the prisoner is confined is reviewable by the Supreme Court of the United States by writ of error (Tinsley v. Anderson, 18 Sup. Ct. 805, 171 U. S. 101, 105, 43 L. Ed. 91); (2) the Supreme Court of the United States has repeatedly decided that, in a case of the character of that presented by this petition, a federal judge should deny the application for the writ; and, (3) if this question were not determined by those decisions, the character of the original suit and of the proceedings under it, the gravity of the questions they present, the fact that a decision of the Supreme Court of the United States, which may prevent confusion and conflict of opinion, may finally determine every doubtful legal question, may speedily terminate all controversy and litigation, and may authoritatively direct the action of the Supreme Court of Colorado, is' available to' the petitioner and to all others in a similar situation, while, even if a circuit judge should grant the writ here sought, should be of the opinion'that the petitioner was restrained of his liberty in violation of the Constitution, and should discharge him, that adjudication would only determine that this particular prisoner should be discharged, would leave ev.ery other question without authoritative decision, and would introduce a conflict of opinion and tend to increase controversy and litigation —all these considerations would demonstrate the wisdom and applicability of the general rule here, rather than that this case should constitute an exception tó it, and would persuade that the application for the writ should be denied, rather than that it should be granted.</p> <p>4. Same — Denial of Application.</p> <p>When the petition for a writ of habeas corpus shows that the petitioner is, not legally entitled to it, the writ should not be issued, but the application for it should be denied, and the petition should be dismissed. Rev. St, § 755 [U, S. Comp. St. 1901, p. 593].</p> <p>(Syllabus by the Court.)</p>

<p>1. Mining Claims — Conflicting Locations — Priority of Right.</p> <p>So long as a prior location of a mining claim is subsisting, no rights in any of the ground covered by such claim can be acquired by a junior locator.</p> <p>2. Same — Amended Certificate of Location — Nevada Statute,</p> <p>Cutting’s Comp. Ann. Laws Nev. §§ 210, 213, were enacted for the benefit of locators of mining claims, giving them 90 days to perfect their location, to cure defects, if any existed, in the original notice or the marking of the boundaries, mistakes in the directions and courses, etc. Such statute does not require the filing of an amended certificate of location where the original notice is clear, definite, and certain, and the boundaries of the claim so marked and monumented that they can be readily traced and determined, in which case such notice may be filed and recorded as a certificate of location.</p> <p>3. Same — Conflicting Claims — Evidence Considered.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting on adverse claimants to show that any part of mining ground sought to be patented by defendant was within the boundaries of a claim as previously located by plaintiffs and their grantors.</p> <p>¶ 1. See Mines and Minerals, vol. 34, Cent. Dig. §§ 65, 68.</p>

At Law. Rule for judgment non obstante veredicto on reserved points. Action at law to enforce the liability of a stockholder of a corporation imposed by statute in favor of creditors.

<p>1. Conditional Sales — Effect—State Law.</p> <p>Under the law of Kentucky, a conditional sale of merchandise, by which the seller retains title until the purchase price is paid, and has power to retake possession if the price is not paid, is an absolute sale, with a mortgage back to secure the price.</p> <p>2. Bankruptcy — Conditional Sales — Failure to Record — Creditors— I-Siority.</p> <p>Ky. St. 1903, § 496, provides that no deed of trust or mortgage conveying real or personal estate shall be valid against creditors until acknowledged or proved according to law and lodged for record; and Bankr. Act July 1, 1898, c. 541, § 64, cl. “b” (5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], provides that debts owing to any person who by the laws of the states or the United States is entitled to priority shall have priority in bankruptcy. Held, that the seller of merchandise to a bankrupt under an unrecorded conditional sale, though entitled to priority as against prior creditors of the bankrupt, was not entitled to priority as against subsequent creditors without notice, notwithstanding such, creditors had no lien or “hold” on the property, other than the caveat afforded by the bankruptcy adjudication,</p>

<p>1. Trial — Instructions—Confinement of Recovery to Pleadings.</p> <p>In an action for injuries to a servant, plaintiff alleged certain acts of negligence, and later offered to amend by alleging that be was ordered into the place where he. was injured, and went there under fear of punishment. The court rejected this amendment on the ground that it would introduce a new cause of action, and charged the jury that plaintiff could not recover by reason of being ordered into the place where he was injured, if he was injured from that cause alone, separate and apart from any other act of negligence. Held, that in so far as the case was affected by the offer to amend, and by evidence which might have been introduced as to the act of negligence charged in the amendment, there was, in view of the instructions, no error of which defendant could complain.</p> <p>2. -Master and Servant — Injuries to Servant — Pleading—Variance.</p> <p>In an action for injuries to a servant, evidence held to show that plaintiff was Injured by the swinging of a scale board, as alleged in his petition, and not by reason of having been ordered under the scale board, as alleged in a rejected amendment.</p> <p>’3. Same — Convicts Employed by Lessee — Question of Accident.</p> <p>In an action by a convict for injuries sustained by him while in the service of a lessee of the state, where the whole evidence showed that the injury was caused by a known risk of the service, the question of accident was not in the case, and it was unnecessary for the court to charge thereon.</p> <p>4. Same — Assumption op Risk.</p> <p>A convict who is leased out by the state to an employer cannot re- ■ cover for injuries which he sustains by having voluntarily placed himself in a position of danger, but, as he does not engage in the service of his own free will, he does not assume the risks visible in, and ordinarily incident to, the service, which a free man engaging therein would be charged with having assumed.</p> <p>¶ 4. Risks assumed by servant, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p>

<p>In Bankruptcy. On rule to show cause.</p>

In Equity. On motion to remand. The complainant filed her bill in the chancery court of Jackson county, state of Arkansas, to remove as a cloud on her title to certain lands two deeds, under which the defendant mortgage company claims title to the same realty.

<p>In Bankruptcy.</p>

<p>In Admiralty. Suit to recover for short delivery of cargo.</p>

<p>1. Injunction — Inducing Violation of Contbact — Injuby to Business.</p> <p>Complainant is a manufacturer of proprietary medicines put up In distinctive packages, and sold only through wholesale and retail dealers in drugs, with whom complainant has contracts providing that the medicines shall be sold only at certain uniform prices, and to no other dealer than such as become parties to the contract, a list of whom is furnished by complainant. Defendant, a retail druggist who was not on the list, procured the medicines through another, who in selling them violated Ms contract, and in selling the same defendant mutilated the packages so as to prevent identification, and in some cases emptied the original package into a plain package. He also sold the medicines at prices below those fixed by the contract. Held, that such contracts were legal and enforceable, and that complainant was entitled to an injunction restraining defendant from interfering with the contracts by inducing their violation by parties thereto, and also from selling the medicines as complainant’s in other than the original packages and at the contract price, to the injury of complainant’s business and good will.</p>

<p>Submitted on Demurrer to the Petitions upon the Ground that the Court has no Jurisdiction of the Actions.</p>

<p>In Bankruptcy. On bills of appraisers.</p>

<p>In Bankruptcy.</p>

<p>On Application for Review of a Decision of the Board of General Appraisers.</p> <p>The decision in question (G. A. 5,257, T. D. 24,155) relates to an importation at the port of New York by Hardt von Bernuth & Co.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy — Stating Proceedings in State Court — Distress rob Kent.</p> <p>Where, after distress by a landlord, the tenant is adjudicated a bankrupt, the necessary effect is to put the property under the control of the bankruptcy court, which will stay further proceedings with the distress, and require the landlord to submit his rights to that court for adjudication.</p>

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

<p>In Bankruptcy. On petition for discharge.</p>

<p>1. Bankruptcy — Trading Pursuits — Soliciting Advertisements.</p> <p>A corporation engaged in the business of soliciting advertisements and placing them in newspapers at rates previously obtained from such papers is not engaged in a trading pursuit, within the meaning of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], and cannot be adjudged an involuntary bankrupt thereunder.</p>

<p>1. Federal Courts — Suit against Defendants in Different Districts — Jurisdiction.</p> <p>The practice in the Second Circuit follows a decision holding that Rev. St. § 740 [U. S. Comp. St. 1901, p. 587], which provides that where defendants reside in different federal districts in the same state an action may be brought in either, and a duplicate writ issued to the other district or districts, was not repealed directly by the judiciary act of March 3, 1887, as amended by Act Aug. 13, 1888 (25 Stat. 433, c. 866 [U. S. Comp. St. 1901, p. 508]), nor by implication by the provisions of section 1, that a suit shall be brought only in the district of which either plaintiff or defendant is an inhabitant</p>

<p>On Motion by Complainant to Overrule Plea.</p>

On Application for Review of a Decision of the Board of General Appraisers. This application was made by the United States, and relates to a decision (G. A. 5,432, T. D. 24,702), which reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Henry D. Klotz. Note U. S. v. Stewart (C. C.) 133 Fed. 811.

<p>1. Customs Duties — Classification—Re-Reeled Silk.</p> <p>Raw tussah silk, in the same condition as when reeled from' cocoons^ except that it has been transferred from the large reels on which it was; taken from the cocoons to smaller reels, the result of this process not. being any change in the condition of the silk other than to adapt the, skeins thus produced to American spinning machines, is held not to be dutiable as “silk partially manufactured from cocoons,” under paragraph 384, Tariff Act July 24. 1897, c. 11, § 1, Schedule L, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668], but to be free of duty under paragraph 660, as “silk, raw, or as reeled from the cocoon, but not * * * advanced in any way” (chapter 11, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688]).</p>

<p>In Bankruptcy. On motion for adjudication on petition and answer.</p>

<p>1. Insurance — Assignment—Rights oe Pledgor.</p> <p>An assignment of a life policy as collateral vests In tlie assignee a title sufficient to enable him to collect the proceeds thereof.</p> <p>2. Same.</p> <p>An assignment of a life policy as collateral security does not divest the assignor of the general property therein, and hence a tender of the debt extinguishes the assignee’s lien, and entitles the assignor to possession of the policy.</p> <p>3. Same — Payment—Liability oe Insurer.</p> <p>Where an insurance company had knowledge that a pledgee of a policy, though having received an amount thereon exceeding the debt, improperly declared his intention to collect and appropriate the balance due on the policy, and the company, not disputing its liability, agreed to hold such balance until legally authorized to dispose thereof, the insured was entitled to maintain an action at law against the company therefor.</p> <p>¶ 1. See Insurance, vol. 28, Cent. Dig. §§ 492, 1569.</p>

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

<p>1. Bankruptcy — Exemptions—State Law.</p> <p>A bankrupt is entitled only to such exemptions as he would be entitled to if proceeded against under the state law.</p> <p>2. Same — Claim—Time.</p> <p>Where an involuntary bankrupt neglected to file his claim for exemptions within the time specified by Bankr. Act July 1, 1898, c. 541, § 7, cl. 8, 30 Stat. 548 [U. S. Comp. St. 1901, p. 3424], or before a sale of his assets as required by the state law, which sale would be rendered nugatory by the allowance of the exemptions, his right thereto was waived, though he gave notice of his claim of exemptions in his schedules.</p> <p>8. Same — Objection to Sale.</p> <p>Where a bankrupt neglected to file a claim for exemptions until after a sale of his assets, his claim thereto was not saved by his having appeared and objected to the order of sale on the ground that his exemptions had not been allowed.</p>

<p>1. Bankrupts — Discharge—Burden or Proof.</p> <p>On an application for a bankrupt’s discharge the burden of proof is on tbe opposing creditors to establish the truth of the charge set out in the specification by clear and convincing evidence.</p> <p>2. Bankruptcy — Discharge—Account Books — Misleading Entries.</p> <p>Where the books of a bankrupt firm fully disclosed a transaction alleged to be fraudulently entered, and though the entries were made to deceive general creditors they were not made with an intent to falsify the books, which were kept by a bookkeeper, such entries were insufficient to bar a discharge in bankruptcy of the member of the firm responsible for the entry.</p> <p>3. Same — Disclosure of Assets — False Oath — Intent.</p> <p>Where a bankrupt firm did not anticipate any reversion in certain lumber transferred to a creditor, and one of the partners testified that the firm was morally certain that the creditor would not realize near the amount of the firm’s debt, such partner’s oath to the schedules, omitting such reversionary interest, was insufficient to bar his discharge.</p> <p>¶ 1. See Bankruptcy, vol. 6, Cent. Dig. § 720.</p>

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

<p>1. Release — Execution—Duress.</p> <p>Evidence reviewed, and held to negative a claim that a release of a cause of action for injuries was without consideration, and was executed by libelant through fear of imprisonment.</p> <p>2. Same — Default—Costs.</p> <p>Where, after a libel in admiralty had been filed, respondent made default, and settled the case out of court, he was not entitled to have a release executed on such settlement filed in satisfaction of a judgment recovered against him by default, except on payment of costs authorized by Rev. St. § 983 [U. S. Comp. St. 1901, p. 706].</p>

<p>1. Carriers — Relation of Carrier and Passenger — Presumption from Carriage in Private Vehicle.</p> <p>There is no presumption that a person riding in a private vehicle of another is being carried as a passenger for hire, as would be the case if the owner of the vehicle wore a common carrier of passengers, and an allegation of such fact in a pleading must be sustained by proof.</p> <p>2. Negligence — Action for Damages — Sufficiency of Proof.</p> <p>Plaintiff brought an action to recover for the death of her intestate, alleged to have resulted from the negligence of defendant’s servant in driving a wagon owned by defendant and employed in its business as a brewer, in which it was alleged the decedent was being carried as a passenger for hire. Held, that the allegation that deceased was being carried for hire was an essential part of plaintiff’s case, and must be proved.</p>

<p>On Petition of John Van Deursen to Vacate Order of Discharge.</p>

<p>In Equity. Overruling motion for the appointment of a receiver and an injunction.</p>

<p>In Bankruptcy. On certificate of referee concerning rejection of certain claims.</p>

<p>1. Customs Duties — Classification—Pineapples in Own Juice — Eruit Preserved in Sugar.</p> <p>In construing paragraph 263, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1651], providing a certain rate of duty on “fruits preserved in sugar, molasses, spirits, or in their own juice,” and a lower rate on “pineapples preserved in their own juice,” held, that it was not the intention of Congress to impose the added duty in the former provision on account of sugar added for preservation of the fruit, and that the latter provision applies to preserved pineapples, as distinguished from other fruits, without reference to whether sugar is used in their preparation. Held, also, that certain canned pineapples, containing an amount of sugar that is not sufficient to preserve the fruit from spoiling if exposed to the open air, but serves as a flavoring only, are dutiable under the latter provision.</p>

On Application for Review of Decisions of the Board of General Appraisers. The decisions in question reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Perry, Ryer & Co. and Wirt Leland. The following is the opinion of the board in one of the decisions in question (G. A. 5,571, T. D. 25,986):

On Application for Review of Decisions of the Board of General Appraisers. These proceedings were instituted by the United States, and the decisions in question cover merchandise imported at the port of New York by Acker, Merrall & Condit and Holtz & Freystedt.

<p>1. Bridges — Injury of Person from Defect — Liability of Bridge Company.</p> <p>An instruction that a bridge company is liable for an injury resulting to a person crossing its bridge without negligence, from a defect in tho bridge, whether it had notice of the defect or not, is too broad, even under the Pennsylvania rule, and properly refused, where it mab.es no exception as to the cause of the defect.</p> <p>2. Damages — Amount—Province of Jury.</p> <p>Damages awarded by a jury for a personal injury on conflicting evidence held not so insufficient as to justify the granting of a new trial.</p>

<p>1. Bankruptcy — Involuntary Proceedings — Sufficiency of Petition.</p> <p>Petitioning creditors are bound to as full a disclosure in tbeir petition in respect to the acts of bankruptcy charged as their information enables them to make, supplemented by an explanation of its lack of completeness, so far as it may be thns lacking, and their case must rest on something more than rumor or vague hearsay or mere suspicion.</p> <p>2. Same.</p> <p>An averment of an act of bankruptcy in a creditors’ petition by the making of a transfer of property for an “improper” consideration is not sufficient, nor is a general averment of the payment of money with intent to prefer creditors, unless the names of snch creditors and the amounts paid are set out with as much detail as possible.</p>

<p>1. Equity Peactice — Rerearings—Newly Discovered Evidence.</p> <p>Defendant agreed, to pay plaintiff one-balf of anything she could collect on a judgment held by defendant. An attachment suit was accordingly brought, but defendant dismissed the same, and compromised with the judgment debtor. Plaintiff sued to recover her proportion of the amount due on the judgment, but failed to show, by competent evidence, that the debtor owned any particular property which was covered by the attachments. Consequently a decree was entered allowing plaintiff merely one-half of what defendant actually received from the judgment debtor. On motion for rehearing plaintiff offered to show, by alleged newly discovered evidence, certain facts as to the interest the judgment debtor had in his father’s estate which could be reached by the attachment. The inventory of the estate had been on file in the probate court for years, and the interest of the judgment debtor could have been proved before the testimony was closed, by proving the appraisal and calling the administrator. So, in the attachment suit, judgment could have been taken and execution levied upon such interest, or the administrator could have been followed and compelled to make disclosure under the state procedure. None of these things was done. Held, that no sufficient diligence was shown to warrant a rehearing.</p> <p>2. Parties — Persons Beneficially Interested — Protection of Rights.</p> <p>The court will protect a party interested in the judgment to be obtained in a suit, and who has control of the same by counsel, against any unjust discharge by the plaintiff of record and party interested in the remainder of the judgment.</p> <p>3. Courts — Jurisdiction of Federal Courts — Want of Diverse Citizenship.</p> <p>One not a party to a suit in a federal court, and who, for want of diverse citizenship, cannot be made a party, cannot be followed in that court on the ground of collusion between himself and defendant to defeat plaintiff’s rights.</p>

<p>In Admiralty.</p> <p>Action upon insurance policy to recover damages caused by the sinking of a steam canal boat while lying at a dock in Jersey City on the night of June 10, 1903, during the absence of the master and crew. Several persons visited the boat at intervals to see that she was in safety, but between the times of their visits she filled and sunk. The policy contained the following provision: “Warranted by the insured that the said vessel * * * shall at all times have a competent watchman on board.”</p>

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

This was an action by Bolles against Rucker upon the following contract which was set forth at length in the complaint: “This agreement made this sixteenth day of April, A. D. 1892, by and between A. W. Rucker, of the County of Arapahoe and State of Colorado, party of the first part, and Richard J. Bolles, of the City of New York and State of New York, party of the second part, Witnesseth: “That said party of the first part in consideration of the sum of twenty-seven…

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

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

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

<p>1. Federal Courts — Habeas Corpus — Jurisdiction.</p> <p>Rev. St. § 753 [U. S. Comp. St. 1901, p. 592], confers on a Circuit Court of the United States jurisdiction to issue a writ of habeas corpus to bring before it a person imprisoned by a state for an act alleged in his petition to have been done in the lawful execution of a writ issued by said court, aud to discharge him if it be found that such allegation is true.</p> <p>2. Same — Persons Imprisoned for Act Done Pursuant to Laws of United States.</p> <p>Petitioners were called upon to act as members of a posse comitatus to assist in the arrest of a man indicted in a federal court for resisting its officers. He was a dangerous and desperate man, and had declared that he would not be taken alive, as petitioners knew, and they also knew that he had been an active member of an armed mob which had previously resisted the officers and prevented their service of a process of the court. They were ordered to go toward his house from the rear while the officers approached it in front. Seeing the officers coming, he ran out at the rear with a pistol in his hand, and toward petitioners, who twice ordered him to halt, but he kept on until quite close, when, seeing him turn toward a large tree, and believing that he intended to shelter himself behind it and open fire on them, they both fired at him and killed him. Held, that what they did was done in the lawful discharge of a duty imposed on them by the laws of the United States and was justified; that they were not subject to prosecution therefor by the state; and that on their arrest and imprisonment on a charge of murder they were properly discharged on a writ of habeas corpus by the federal court.</p>

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

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

<p>1. Bankruptcy — Preferences—Recovery—Insolvency—Question for Jury.</p> <p>In an action by a trustee in bankruptcy to recover an alleged preference, tbe fact of preference, having been proved, evidence held, sufficient to require submission to tbe jury of tbe question whether tbe preferred creditor bad reasonable cause to believe that it was intended thereby to give him a preference.</p>

<p>1. Federal Courts — Trial—Direction oe Verdict.</p> <p>Where, in an action for injuries to a switchman, the evidence, though conflicting, was so conclusive in support of defendant’s claim that it would have been the duty of the trial judge to have set aside a verdict to the contrary, it was his duty to direct a verdict for defendant.</p> <p>¶ 1. See Trial, vol. 46, Cent. Dig. § 383.</p> <p>2. Same — Railroads—Unfilled Spaces — Negligence—Evidence.</p> <p>In an action for injuries to a switchman by his catching his foot Id an excavation under a spring rail frog, evidence held insufficient to establish defendant’s negligence in maintaining such excavation.</p> <p>3, Same — Assumed Risk.</p> <p>AVhere defendant railroad company maintained from 25 to 30 spring rail frogs, with necessary excavations under the spring rails, in the yards in which plaintiff had been working as a switchman for some six months prior to his injury by having his foot caught in one of such excavations, it was his duty to take notice thereof, and he therefore assumed the risk of the danger incident thereto.</p> <p>¶ 3. Assumption of risks incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p>

<p>1. Accident Insurance — Premiums—Payment—Waiver.</p> <p>Deceased accepted an accident policy, providing that it should not take effect unless the premium was actually paid prior to any accident on which claim was made, and that no waiver of the contract should be binding on the insurer unless indorsed on or attached to the policy, and signed by the president or secretary of the company. Held, that where the insurer did not charge premiums oh policies to its agents until they were actually received, a subagent bad no authority to accept a note from deceased in lieu of cash for the first premium, and to thereby waive the provisions of the policy.</p>

<p>1. Intoxicating Liquors — Shipment—Designation op Parties.</p> <p>Tlie words, “Glass; this side up, with care,” written on a box containing bottles of whisky, are a mere caution to the carrier, and not a false designation of the contents of the box, within the meaning of Rev. St. § 3449 [U. S. Comp. St. 1901, p. 2277], subjecting to a penalty any person who ships liquors under any other than the proper name or brand.</p> <p>2. Same.</p> <p>Rev. St. § 3449 [U. S. Comp. St. 1901, p. 2277], subjecting to a penalty any person shipping liquors under any other than the proper name or brand, merely applies to their shipment under a false brand or designation, and not to their shipment without any name or brand being placed thereon.</p> <p>3. Same — Statutes—Construction.</p> <p>Rev. St. § 3449 [U. S. Comp. St. 1901, p. 2277], providing that any person shipping liquors under any other than the proper name or brand shall forfeit the liquors, and be subject to pay a fine of $500, is highly penal in character, and should be strictly construed.</p> <p>4. Same.</p> <p>Rev. St. § 3449 [U. S. Comp. St. 1901, p. 2277], subjecting to a penalty any person shipping liquors under any other than the proper name or brand, applies only to shipments by distillers, brewers, manufacturers of wine, rectifiers, and wholesale dealers in spirits or fermented liquors or wines, and not to all persons generally.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of New York, in Bankruptcy. This cause comes here upon petition to review an order of the District Court, Western District of New Tork, affirming a ruling of the referee to the effect that the creditors of the bankrupt partnership shall share with the creditors of the individual partners in the estates of such individual partners.

<p>1. Sales — Breach of Contract — Damages—Evidence—Relevancy.</p> <p>In an action for breach of a contract for the sale and delivery of lumber, to have been delivered on March 21, 1903, it was not an abuse of the trial court’s discretion to permit evidence of the value of such lumber at the place of delivery on March 7, 1903, and in the May following, as too remore in point of time; the court having properly instructed the jury that defendant was liable only tor the difference between the contract price and the market value of the lumber not delivered on the day and at the place specified for delivery.</p>

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

<p>1. Patents — Invention—Combination of Old Elements.</p> <p>There is no invention in selecting and putting together the most desirable parts of different machines in the same art, making a new machine in which each part operates in the same way as it did in the old, and effects the same result.</p> <p>¶ 1. See Patents, vol. 38, Cent. Dig. §§ 27-29.</p> <p>2. Same — Infringement—Saw-Stretching Machines.</p> <p>The Rich patent, No. 548,394, for a saw-stretohing machine, discloses invention in combining with elements of different prior machines an improved mechanism for moving the rolls to change their place of bearing upon the saw, which has given the machine popularity and a wide sale; but, its validity being dependent alone on such single feature, the patent must be narrowly construed, and is not infringed by a machine in which a different mechanism is used for moving the rolls, although it accomplishes the same result.</p> <p>3. Same — Improver.</p> <p>If validity is given to a patent only by an improvement of a narrow character, just sufficient to cross the line which divides mechanical improvement from patentable invention, the inventor will be protected only as to such improvement as is specifically described, and is but little aided by the doctrine of “equivalents,” which term has a variable meaning and is measured by the character of the invention.</p>

<p>1. Patents — Infringement.</p> <p>The claims of letters patent No. 421,244, elated February 11, 1890, granted to Charles P. Chisholm and John A. Chisholm for “improvements in the method of hulling peas,” sustained, and held to have been infringed.</p> <p>(Syllabus by the Court.)</p>

<p>In Equity. On plea to the jurisdiction.</p>

<p>In Equity. Suit for infringement of letters patent No. 600,186 for a fireproof window, granted to Voightman March 3, 1898. On final hearing.</p>

<p>1. Patents — Damages fob Infringement — Interest.</p> <p>Interest on damages awarded for infringement by final decree allowed, under tbe circumstances of tbe case, from tbe date of the master’s report, by which tbe damages as finally awarded were practically liquidated.</p>

<p>1. FF.np.RAT. Courts — Equity Jurisdiction — Suit to Quiet Title.</p> <p>Where a state statute authorizes a suit to quiet title regardless of possession, a federal court of equity in such state is a court of competent jurisdiction, in which a suit in support of an adverse claim to mining ground may be maintained under Rev. St. § 2326 [U. S. Comp. St. 1901, p. 1430], when it appears that neither of the parties is in possession.</p> <p>2. Same — Jurisdiction—Suit for Possession of Mining Claim.</p> <p>A suit brought under Rev. St. § 2326 [U. S. Comp. St. 1901, p. 1430], in support of an adverse claim to mining ground, is not necessarily one of federal cognizance, but the jurisdiction of a federal court is dependent on diversity of citizenship.</p> <p>3. Same — Diversity of Citizenship.</p> <p>Where a sale and conveyance of a mining claim are real, and not merely simulated, the motive of the sale is immaterial, so far as affecting the right of the grantee to maintain a suit for its possession in a federal court on the ground of diversity of citizenship.</p> <p>¶ 3. Diverse citizenship as a ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298</p> <p>4. Mining Claims — Suit in Support of Adverse Claim — Parties.</p> <p>A part owner of a mining claim, who joins with the other owners in filing an adverse claim under Rev. St. § 2326 [U. S. Comp. St. 1901, p. 1430], but afterwards becomes vested by conveyances with title to the interests of the others, may maintain the suit required by said section in support of the adverse claim in his own name.</p> <p>5. Same — Right of Relocation — Failure to Complete Assessment Work. . -</p> <p>Under Rev. St. § 2324, as amended in 1880 (Act Jan. 22, 1880, c. 9, § 2, 21 Stat. 61 [U. S. Comp. St. 1901, p. 1426]), which makes a mining claim subject to relocation on the failure of the original locators to do the required assessment work in any year, “provided the original locators * * * have not resumed work upon the claim after failure and before such location,” where the locators of a claim were at work thereon on the 31st of December, and that night left their tools in the cut, intending to resume work the next morning at the usual time, which they did, their possession and work were, in law, continuous; and one who made a relocation in the night, during their absence, was a trespasser,, and acquired no rights by the relocation.</p> <p>6. Same — Suit on Adverse Claim — Right of Defendant to Judgment.</p> <p>In a suit brought under Rev. St. § 2326 [U. S. Comp. St. 1901, p. 1430], by an adverse claimant to determine the right to the possession of mining claim, the title of each party is brought in question; and, to entitle the defendant to a judgment or decree establishing his title, even where the plaintiff’s case fails, he must prove that he did the assessment work for each year as required by the statute.</p>

<p>1. Animals — Transportation—Infectious Diseases — Department op Agriculture — Rules .</p> <p>Act Cong. May 29, 1884, c. 60 (23 Stat. 31 [U. S. Comp. St. 1901, p. 299]), providing for the regulation of the animal industry, and prohibiting the exportation of diseased animals out of quarantined districts, etc., being limited to cases where the animal in question was affected with an infectious or contagious disease, the Secretary of Agriculture had no authority to extend the same by a rule xirohibiting the taking of any horse outside of a quarantine district without first having it inspected by the bureau of animal industry, etc., regardless of whether it was diseased or had been exposed thereto.</p> <p>2. Same.</p> <p>Act Gong. June 3, 1902, c. 985 (32 Stat. 289), authorizing the Secretary of Agriculture to-apply any part of an appropriation to the general expenses of the bureau of animal industry in the purchase and destruction of diseased and exposed animals, and to the quarantine thereof, whenever in his judgment it is essential to prevent the spread of pleuropneumonia, tuberculosis, or other diseases of animals from one state to another, limited the power of the Secretary in these regards to diseased or exposed animals, and gave him no jurisdiction over animals not affected with or exposed to an infectious or contagious disease.</p> <p>3. Same.</p> <p>Act Cong. Feb. 2, 1903, c. 349 (32 Stat. 791, pt. 1 [U. S. Comp. St. Supp. 1903, p. 372]), transferred certain powers vested in the Secretary of the Treasury by Act Cong. May 29, 1884, c. 60, §§ 4, 5 (23 Stat. 32). relating to the importation of animals from foreign countries, to the Secretary of Agriculture. It also provided that animals inspected by the bureau of animal industry and certified to be free from disease might be shipped from one state to another without further inspection, and authorized the Secretary of Agriculture from time to time to establish rules and regulations concerning the exportation and transportation of live stock from any place within the United States where he may have reason to believe certain diseases exist, and that such rules and regulations shall have the force of law. Seld, that such act does not prohibit the shipment of animals free from disease, and that the Secretary of Agriculture had no' power thereunder to make rules and regulations with reference to such animals, the violation of which alone would constitute a crime.</p> <p>4. Same — Prospective Operation.</p> <p>Act Feb. 2, 1903, c. 349 (32 Stat. 791, pt. 1 [U. S. Comp. St. Supp. 1903, p. 372J), providing for the inspection of diseased animals, etc., declares that any person knowingly violating its provisions or the orders or regulations made in pursuance thereof shall be guilty of a misdemeanor, etc. Seld, that such provision affected only rules and regulations made thereafter, and did not have the retroactive effect of giving validity to a prior void order.</p>

<p>1. Public Lands — Railroad Grant — Cancellation oe Patent.</p> <p>Where the United States relies upon a private entry of a tract of land, which was of record and uncanceled at the time of the attaching of a railroad grant under which the land "was patented, to except such tract from the grant, and as ground for cancellation of the patent, it must be shown either that the entryman was then residing on the land or that he had made final proof and payment, when without one or the other his right had been lost by abandonment.</p> <p>2. Same — Lands Excepted from Grant — Pre-emptions.</p> <p>Under a grant of lands to a railroad company which excepted from its operation such lands within the place limits as should be found to have been “granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of,” such exception includes lands upon which preemption filings had been made and accepted by the land office in con> pliance with the law relating to pre-emptions, although such lands had not been jjaid for at the time of the attaching of the grant.</p> <p>3. Same — Homestead Claims — Lands Occupied by Homestead Settlers.</p> <p>An exception from a railroad grant of lands which should be found to be “occupied by homestead settlers * * * or otherwise disposed of” includes lands so occupied with an intention to obtain title thereto under the homestead law, although no application for entry thereof had been made; and also lands for which such application had been made and accepted, whether occupied by the claimant at the time or not, such lands being within the term “otherwise disposed of.”</p> <p>4. Same — Attachin® of Grant — Approval of Map of Definite Location.</p> <p>The grant of lands to the Oregon & California Railroad Company (Act July 25, 1866, 14 Stat. 239, c. 242), which excepts lands disposed of, reserved, etc., with reference to the time when the company “shall file in the office of the Secretary of the Interior a map of the survey of said railroad,” at which time it is provided that “the Secretary of the Interior shall withdraw from sale public lands herein granted,” etc., does not attach to lands upon which homestead applications were made between the filing of the map of definite location and its approval by the Secretary of the Interior.</p> <p>5. Same — Cancellation oe Patents Erroneously Issued — Consteuction and Validity oe Statute.</p> <p>Act March 3, 1887, c. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], and March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], which give the United States the right to have canceled patents to lands erroneously issued under a railroad grant, and also to recover from the grantee the government price of lands so patented and sold to bona fide purchasers, are valid, and a suit to enforce such rights may be maintained in a court of equity.</p>

<p>1. Bankruptcy — Expenditures—Costs op Administration.</p> <p>Expenditures made by a receiver and trustee of a bankrupt’s estate for the sole benefit of general creditors, in carrying out contracts of the bankrupt which were thought to be profitable, are not “costs of administration,” within Bankr. Act July 1, 1898, c. 541, §§ 62, 64 (30 Stat. 562, 563 [U. S. Comp. St. 1901, pp. 3446, 3447]), requiring such costs to be paid out of the estate in which they are incurred as preferred claims.</p> <p>2. Same — Landlord’s Lien — Preservation.</p> <p>Where property belonging to a bankrupt more than sufficient to pay a landlord’s lien for unpaid rent thereon was sold under an agreement with the trustee that the lien should be transferred to the fund arising from the sale, the lien was preserved, and attached to such fund for the benefit of the landlord.</p> <p>3. Same — Bankrupt’s Business — Continuance—Expenditures—Lien Claims —Priority.</p> <p>A bankrupt’s receiver and trustee were empowered to continue the bankrupt’s business for the benefit of general creditors, as authorized by Bankr. Act July 1, 1898, c. 541, § 2, cl. 5 (30 Stat. 546 [U. S. Comp. St. 1901, p. 3421]), by a referee’s order providing that the trustee should have a first lien on all the bankrupt’s property for what he might advance for expenditures in so doing. The trustee continued the business, and in so doing made expenditures in addition to using a fund derived from other assets subject to a landlord’s lien, and on completion of the contract received a fund therefrom which was subject to a mechanic’s lien. Held that, neither of the lien creditors having consented to such expenditures or to the continuance of the business, their claims were payable from the fund derived from the contract prior to the claim of the trustee for additional expenditures.</p>

In Equity. Suit in equity by a trustee in bankruptcy to recover from defendants a preference alleged to have been given them by the bankrupt. Submitted on final hearing. C. B. Reinhart was adjudged bankrupt by this court August 25, 1903, upon a creditors’ petition filed against him July 7th, previous, and the complainant has been duly appointed trustee of his estate.

<p>1. Judgments — Res Judicata — Findings of Material Issues.</p> <p>A finding of the court, within the pleadings, on a material matter, and not on a-matter merely incidental or collateral to issues tendered thereby, is final and conclusive, and cannot be impeached in another proceeding.</p> <p>2. Bankruptcy — Discharge—Fraudulent Debts.</p> <p>The words “while acting as an officer or in any fiduciary capacity,found in section 17, cl. 4, Bankr. Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], excepting from the operation of a discharge in bankruptcy debts created by fraud, etc., while acting as an officer, etc., qualifies the words “fraud, embezzlement, misappropriation, or defalcation,” and are not restricted in their scope to the limitation of the word “defalcation.”</p> <p>3. Statutes — Construction—Technical Words.</p> <p>In enacting section 17, cl. 4, Bankr. Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], excepting from the operation of a discharge debts created by fraud, etc., while acting as an officer or in any fiduciary capacity, Congress must be presumed to have known the construction placed by the courts on the words “fiduciary capacity” as used in former bankrupt acts, and to have known that such words might be construed not to embrace officers of private corporations.</p> <p>4. Bankruptcy — Discharge—Fraudulent Debts of Officers — Who are Officers.</p> <p>The bankruptcy acts of 1841 and 1867 excepted from the operation of á discharge debt's contracted in consequence of a defalcation as a “public officer.” The act of July 1, 1898, c. 541, § 17, cl. 4, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], provides that the discharge shall release a bankrupt from all provable debts, except such as were created by fraud, embezzlement, or defalcation, while acting as an “officer.” Held, that it must be presumed that the change was intentional, and, by omitting the word “public,” officers of private corporations are included within the term “officer.”</p>

<p>1. Indemnity — Deposit to Indemnify Sureties — Recovery by Depositor.</p> <p>One who deposited a sum of money with a bank, to be held by it to indemnify certain persons from liability as sureties on injunction bonds given by him, can recover it back only by showing that such persons have been discharged from liability on the bonds, or that by some act of theirs they have forfeited their right to the indemnity; and a complaint does not state a cause of action on the former ground by an allegation that an execution issued on a judgment rendered in the action against the depositor was returned satisfied, where it also shows that the return was subsequently amended to show that the execution was not satisfied, and it is not alleged that the judgment was in fact paid, nor on the latter ground by allegations that the persons indemnified joined in a conspiracy to defeat an appeal taken by plaintiff from the judgment by causing the withdrawal of the supersedeas bond given or procured by them, where, under the law of the state, such appeal would only have been effective if taken from a subsequent order denying plaintiff’s motion for a new trial, and it does not appear that he made any attempt or intended to appeal therefrom.</p> <p>2. Same — Action to Recover Deposit — Parties.</p> <p>To an action to recover money deposited by plaintiff with a bank, to be held by it to indemnify third persons against liability as sureties for plaintiff, on the ground that by their acts and conduct they have forfeited the right to such indemnity, such persons are necessary parties.</p>

Action at law to recover damages for a personal injury suffered by the operator of an unguarded ripsaw. Tried by the court, a jury having been waived. Findings and judgment for the defendant.

<p>1. Aliens — Chinese Persons — Landing.</p> <p>Tbe transfer of a Chinese person from tbe vessel in which he was brought to the United States to a detention shed maintained by tbe owners of the vessel on their dock, where he was detained under guard pending determination of his right to enter the United States, did not constitute a “landing” of such person within Act Cong. May 6, 1882, c. 126, § 2, 22 Stat. 59, as amended by Act July 5,1884, c. 220, 23 Stat. 115 [U. S. Comp. St. 1901, p. 1306], prohibiting the master of any vessel from knowingly landing or permitting to be landed any Chinese laborer, etc.</p> <p>2. Same — Escape—Vessels—Liability op Master.</p> <p>Where a Chinese laborer escaped from the custody of the master of the vessel in which he was brought to a port of the United States, after being transferred to a detention shed pending determination of his right to enter, without the permission, connivance, knowledge, or negligence of such master, the latter was not guilty of knowingly permitting such Chinese person to land in the United States, within Act Cong. May 6,1882, c. 126, § 2, 22 Stat. 59, as amended by Act July 5, 1884, c. 220, 23 Stat. 115 [U. S. Comp. St. 1901, p. 1306].</p>

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

<p>On Petition for Rehearing.</p>

<p>Rule for a Preliminary Injunction.</p>

<p>In Bankruptcy.</p>

<p>On Return of a Writ of Habeas Corpus Sued Out by Basilio Piaza. Writ dismissed.</p>

<p>On Motion to Vacate Stay of Proceedings.</p>

<p>1. Bankruptcy — Trustee—Appointment—Referees—Refusal to Confirm.</p> <p>Where a trustee of a bankrupt was selected by the vote of a majority in number and amount of those present at the creditors’ meeting, the referee had no power to appoint a different trustee merely because he did not approve of the selection of the creditors.</p> <p>2. Same — Objections.</p> <p>Where serious charges were made with regard to the disposition of goods by an involuntary bankrupt just prior to the institution of the pro^ ceedings, it was no ground for the referee’s withholding his approval of the trustee chosen by the creditors that he had incurred the violent hostility of the bankrupt, nor that as receiver he had unreasonably delayed to account for the funds in his hands, thereby hindering their distribution to creditors, being accountable for any dereliction in the latter particular to the court which appointed him.</p>

Action for balance of wages due libelant as trimmer and fireman, and penalty for delay in payment, under section 4529, Rev. St. U. S.; [U. S. Comp. St. 1901, p. 3077]. The claimant set up in defense that libelant had been fined several days’ pay for disobedience of orders, and offered to pay the balance which it claimed was due. The evidence showed that the entries in the ship’s logbook were not made in accord-, anee with section 4597, Rev. St. U. S. [U. S. Comp.

<p>1. Contributory Negligence — Attempting to Cross Steamer’s Bows in Rowboat.</p> <p>A decedent was guilty, as matter of law, of contributory negligence wliicb precludes a recovery for his death, resulting from his attempting to cross in a small rowboat in front of two car floats in tow on either side of a tug, which were passing up the Delaware river, where it was full daylight, and he had an unobstructed view for a long distance, and must have seen the approaching vessels if he looked, and could have avoided any danger, if he looked in time, by stopping a minute or two until they passed.</p>

<p>1. Evidence — Requiring Production of Books.</p> <p>The court will, on motion, require a plaintiff to produce a book alleged by defendant to be material to the issues, in order that the questions raised thereon may be fully presented.</p> <p>¶ 1. See Evidence, vol. 20, Cent. Dig. §§ 1540, 1541.</p>

<p>1. Salvage — 'Validity op Contract — Excessive Charge.</p> <p>A contract to pay a tug $1,000 for the salvage of a yacht worth $20,000, which was stranded on the beach off Coney Island, where she was in danger of “sanding in,” which would have caused damage to her, or rendered it more difficult to get her off, held not to be excessive, especially in view of damage to the extent of $400 received by the tug in the service.</p> <p>¶ 1. Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.</p>

On Application for Review of a Decision of the Board of General Appraisers. ■ ' In the decision in question, G. A. 5,595, T. D. 25,038, the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the'’ port of New York on certain gloves imported by L. A. Douillet. These gloves-were made of leather, and were both piqué and embroidered.

<p>1. Banks — Bonds—Overdrafts—Actions—Affidavit of Defense.</p> <p>In an action by the receiver of a national bank on a bond and for an overdraft, an affidavit of defense alleging that the president of such bank prior to its failure was also president of another institution in which defendant was a depositor, and that the president falsely assured defendant of the soundness of such other institution, and that defendant thereby lost a sum in excess of the claim in suit, was insufficient.</p> <p>¶ 1. Actions by and against receivers and “agents” of national- banks, see note to McCartney v. Earle, 53 C. C. A. 398.</p>

<p>Petition to Amend Dismissed.</p>

Application by a military prisoner of the United States army, under sentence by a court-martial, to be restored to liberty, on the ground that the military court acted without legal authority. Heard on the petition and return to a writ of habeas corpus. Prisoner remanded.

<p>.1. Shipping — Injuries to Servant — Assumption oe Risk.</p> <p>Plaintiff, a kitchen boy on a steamship, was ordered to obtain kindling wood, and, contrary to orders, was directed by the ship’s carpenter to get the same from “below.” Plaintiff unsuccessfully endeavored to obtain a lantern, and then went through one of the hatches, which was only slightly open, and required further opening, to the between-decks, whence he fell through an open hatch to the bottom of the ship while groping for wood in the dark. Held, that plaintiff, in opening the hatch wider and going below, assumed the risk, and was not entitled to recover for his injuries.</p> <p>¶ l. Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p> <p>2. Same — Eellow Servants.</p> <p>A kitchen boy on a steamship was a fellow servant of the ship’s carpenter, and was therefore not entitled to recover for injuries sustained by the latter’s negligence.</p> <p>¶ 2. Who are fellow servants, see notes to Northern Pac. Co. v. Smith, 8 C. C. A. 668; Canadian Pac. Ry. Co, v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286.</p>

<p>1. Bankruptcy — Discharge—Insanity of Bankrupt.</p> <p>The insanity of a bankrupt, which has prevented his examination by creditors, and still continues, is not a bar to his discharge under Bankr. Act July 1, 1898, by which a discharge is made a matter of right unless certain objections are established, and which further provides in section 8, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3425], that “the death or insanity of a bankrupt shall not abate the proceedings, but the same shall be conducted and concluded in the same manner, so far as possible, as though he had not died or become insane.”</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>In Equity.</p> <p>Suit by Indian to recover lands alleged to have been wrongfully allotted.</p>

<p>In Equity.</p> <p>Suit by Indian to recover lands alleged to have been wrongfully allotted.</p>

<p>Petition for Discharge on Habeas Corpus.</p>