Volume 134 — Federal Reporter

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>This is an appeal from a decree which dismissed a bill in equity exhibited by the complainants below, Joseph A. Williams and Annie Williams, to enjoin the prosecution of an action at law which the defendant Richard M. Neely had brought against them in the court below to enforce the payment of their promissory note for $3,500, dated March 1, 1893, and due March 1, 1898, and to obtain a decree adjudicating the claims of the defendants in this suit to three quarter sections of land in the state of Nebraska. The material facts disclosed at the final hearing were these: Under the will of Richard S. Malony, Sr., Richard S. Malony, Jr., and Annie H. Neely owned three quarter sections of land, subject to the liens of two legacies which were charged upon the lands by the will — one of $200 per year payable to the defendant Hannah Blake, and one of $100 per year payable to the defendant Sarah Foss. They sold one of these tracts to the defendant Stanley B. Wilson, another to the defendant Wenzel Herdlichtka, and the third to the complainant Joseph A. Williams. Before the sale of the third tract, Richard S. Malony had conveyed, his share in it to Annie I-I. Neely, who made the contract of sale and the deed to the complainants. Each sale was made for $6,000, the full value of a title to each tract free from all incumbrances, and Wilson and Herdlichtka have paid for their quarters in full. The facts and conclusions which have been recited are res adjudicata between the parties to this suit by virtue of a decree of the district court of Richardson county, in the state of Nebraska, in a suit to which they were parties, and that suit is still pending under an order of the Supreme Court of that state to the district court to ascertain the amount owing by the complainant Joseph A. Williams herein on account of the purchase of his tract, to take control thereof, and, in case the law and the facts should be found to justify that course, to apply that amount in payment of the amounts due to the annuitants, Hannah Blake and Sarah Foss.</p> <p>On February 6, 1902, Annie H. Neely and Richard S. Malony, Jr., as principals, and the defendant Richard M. Neely and others as sureties, executed a bond in the penal sum of $1,000 to the county judge of Richardson county, conditioned, among other things, that they should pay and discharge all legacies chargeable upon the estate of Richard S. Malony, Sr., or such dividends thereon as should be decreed by the county court. The defendant Richard M. Neely was the agent of his mother, Annie H. Neely, to sell the quarter section of land which was purchased by the complainant Joseph A. Williams. In October, 1892, he made and signed a written contract, as the agent of his mother, to sell and convey this land to Williams for $6,000, $500 of which was then paid, and the remainder was to be paid $2,000 on March 1, 1893, and $3,500 on March 1, 1898. About March 1, 1893, in performance of this contract, Williams paid this $2,000, and he and his wife made a note and a mortgage upon the property for $3,500, and Annie H. Neely executed a warranty deed of it to him. These instruments were prepared by Annie H. Neely, or by one of her agents, and the note and mortgage were made payable to Richard M. Neely, but the only consideration for them was the land the complainants purchased. Richard M. Neely never paid them anything for the note or mortgage. What amount, if anything, he paid his mother for them, is left in grave doubt by the evidence, and, in our view of the case, is not material.</p> <p>On April 18, 1902, Richard M. Neely brought an action at law against the complainants on the note, and they answered the facts which have been recited. The court held at the trial of that action that these facts constituted no defense to the note at law, and this suit was instituted, and the action at law was stayed to abide its determination. The same court has now held that these facts present no reason for relief in equity, and this conclusion is challenged by the appeal.</p>

<p>1. Chinese Exclusion — Judgment of District Court — Mode of Review.</p> <p>An appeal is the proper proceeding for the review by the Circuit Court of Appeals of a judgment of a District Court rendered on appeal from an order of a commissioner for the deportation of a Chinese person arrested under section 13 of Act Sept. 13, 1888, c. 1015, 25 Stat. 479 [U. S. Comp. St. 1901, p. 1317].</p> <p>2. Same — Nature of Proceedings for Deportation — Rules of Evidence.</p> <p>A proceeding for the deportation of a Chinese person under the exclusion acts is civil, and not criminal, in its nature, and the constitutional provisions which safeguard the rights of persons accused of crime do not apply therein. Admissions or statements of a defendant, voluntarily made to the officers by whom he is arrested in answer to questions put by them either before or after his arrest, are admissible in evidence against him, and the government has the right to call and examine him as a witness.-</p> <p>3. Same — Proceeding for Deportation — Issues and Proof.</p> <p>In a proceeding for the deportation of a person under Chinese Exclusion Act Sept. 13, 1888, C. 1015, § 13, 25 Stat 479 [U. S. Comp. St. 1901, p. 1317], as affected by Act May 5, 1892, c. 60, § 3, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1320], two questions are put in issue by defendant’s plea of not guilty: First, whether or not he is a Chinese person or person of Chinese descent; and, second, if so, whether he is entitled to be and remain in the United States — the burden of proof on the latter issue being on the defendant. Upon either issue proof to the satisfaction of the commissioner or the court is all that is required, and upon the issue as to race the appearance of defendant, his color, manner of wearing his hair, his dress and language may properly be taken into consideration by the commissioner or court; and inspectors and interpreters employed by the government in the enforcement of the exclusion laws, who state their ability from practical experience to identify persons of the Chinese race from such characteristics, are competent to testify upon such issue, although they may have no theoretical knowledge of the science of ethnology.</p> <p>4. Same — Evidence Considered.</p> <p>Evidence before a commissioner in a proceeding for deportation considered, and held sufficient to sustain his finding that defendant was a Chinese person, and to warrant his order of deportation, in the absence of any evidence of defendant’s right to remain in the United States.</p> <p>¶ 4. Citizenship of the Chinese, see notes to Gee Fook Sing v. United Stales, 1 C. C. A. 212; Lee Sing Far v. Same, 35 C. C. A. 332.</p>

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

<p>1. Practice — Splitting Cause of Action Bars.</p> <p>One who avails himself, by action or by defense to an action, of a part of an indivisible claim' or cause of action, thereby estops himself from again maintaining an action or defense founded upon it One may not split his cause of action.</p> <p>2. Same — Defendant has Option to Use Facts Constituting Defense and Affirmative Cause of Action as Either, but not as Both.</p> <p>A defendant who has a claim which constitutes a defense to the action against him and an affirmative cause of action against the plaintiff has the option to use it for defense or for attack, but he cannot do both.</p> <p>If he avails himself of any part of it in defense of the action against him, he is thereby conclusively estopped from subsequently maintaining an action against the plaintiff to recover any portion of it, and he loses the excess.</p> <p>3. Contract to Convey — Damages fob Breach.</p> <p>The measure of damages for the total breach of a covenant to convey is the value of the land which the vendor agreed to convey, whenever the purchase price has been paid, and whenever a prima facie liability of the vendee to pay it exists, which has not been released, abandoned, or adjudicated adversely, and which the vendor insists upon enforcing.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 1047-1058.]</p> <p>4. Vendee’s Note — Breach of Vendor’s Contract — Damages.</p> <p>Where each party has partially performed, and has accepted the benefits of partial performance by the other party, proof of the amount of damages from the breach of the vendor’s contract to convey is indispensable to the defense of want of consideration of the vendee’s promissory note for the purchase price, based upon such a breach, because the breach constitutes a defense to the amount of the damages from it only.</p> <p>5. Action — Splitting Causes.</p> <p>The vendor sued his vendee for $6,000, balance owing upon his note for $16,000, which was a part of the consideration for a contract for the sale of a large amount of real estate. A portion of this real estate had been conveyed to the vendee pursuant to the contract. The vendee denied liability to pay the balance of his note, because the vendor had lost title to the portion of the property which it had not conveyed to him. The court found the property which had not been conveyed to be worth $25,000, and rendered a judgment for the defendant. The vendee then brought an action to recover of the vendor the difference between $25,000, the value of the property, and $6,000, the amount unpaid upon his note. Hold, the vendee was estopped by the former suit to maintain the action. He could not thus split his cause of action.</p> <p>Hook, Circuit Judge, dissenting.</p> <p>{Syllabus by the Court)</p>

<p>Petition to Review an Order of the District Court of the United States for the Western District of Kentucky, in Bankruptcy.</p>

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

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

<p>L Internal Revenue — Unlawful Importation — Statutes—Forfeitures.</p> <p>Where it was charged that certain precious stones and jewelry were imported with intent to defraud the United States of duty thereon, a proceeding in rem to forfeit the same was properly brought under Rev. St. § 3082 [U. S. Comp. St. 1901, p. 2014], providing for forfeiture of merchandise fraudulently imported.</p> <p>2. Same.</p> <p>But such proceeding in rem does not lie under said section 3082, Rev. St. [U. S. Comp. St. 1901, p. 2014], to forfeit money arising from the sale in this country of goods fraudulently imported.</p> <p>8. Same — Indictment—Acquittal—Bar.</p> <p>Where a person charged to have fraudulently imported certain merchandise with intent to defraud the United States of duty legally payable thereon was tried and acquitted, such acquittal was a bar to a further proceeding to forfeit the merchandise as against him.</p> <p>4. Same — Nolle Prosequi.</p> <p>An information having been filed to forfeit certain merchandise and money for fraudulent importation, with intent to defraud the United States of duty, indictments were found against the alleged importer and his wife; and on trial thereof the importer was acquitted, after which the indictment against the wife was nolled. Held, that such nolle prosequi was not a judgment of acquittal, and was, therefore no bar to the proceeding to forfeit as against the wife.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Kentucky. For opinion below, see 134 Fed. 441.</p>

This cause comes here upon appeal from a decree of the Circuit Court, Northern District of New York, dismissing the bill.

<p>1. Bankruptcy — Claims—Limitations.</p> <p>An indebtedness of one member of a bankrupt firm for money advanced on specified dates to be used in his business before the firm was organized, on which no payments of principal or interest were made, was barred by the six-years limitation provided by Code Ala. 1896, § 2796.</p> <p>2. Same — Firm Debt — Allowance.</p> <p>One of the members of a bankrupt firm, being indebted to his father-in-law, disclosed such indebtedness to his partner on the formation of the firm, and the partner thereupon assumed one-half thereof as a part payment for his interest in the firm, whereupon a duebill was executed specifying the dates and amounts of the advancements, and signed in the firm name. Held, that such duebill thereby became a new indebtedness of the firm, and, not being barred by limitations at the time bankruptcy proceedings were instituted against the firm, was allowable as a claim against it, though the original indebtedness was barred.</p>

<p>Appeal from the Circuit Court of the United States for the District of South Carolina, at Charleston.</p>

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

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

<p>L Collision — Steamships—Excessive Speed in Fog.</p> <p>Six knots is an excessive speed for a steamship in a thick fog in a frequented part of the ocean, and charges the ship with fault where a collision occurs.</p> <p>2. Same — Navigating in Fog — Violation op Sixteenth Aeticle op-International Rules.</p> <p>A steamship must be held in fault for a collision with another in a fog, notwithstanding the clear fault of the latter in running at an excessive speed, where she was likewise maintaining an excessive speed, and also violated article 16 of the international navigation rules (Act Aug. 19, 1890, c. 802, 26 Stat. 326 [U. S. Comp. St. 1901, p. 2868]) by failing to stop her engines on hearing the fog signals of the other vessel apparently forward of her beam.</p> <p>3. Admiralty Jurisdiction — Death by Wbongpul Act on High Seas — Enforcement op State Statute.</p> <p>A suit may be maintained in a court of admiralty to recover damages from a vessel at fault for a collision on the high seas for loss of life resulting from the sinking of the other vessel, where a right of recovery for wrongful death is given by the statutes of the state in which both vessels belonged, both being a part of the territory of such state and subject to its laws.</p>

<p>1. Bankruptcy — Secured Claims — Insurance Policies — Ownership.</p> <p>Where it appeared on the face of one of the notes secured by insurance policies on the life of one of the members of a bankrupt firm that the firm pledged the policies, it would not be assumed, in determining the validity of the claim on the notes, that the firm had no interest in the policies.</p> <p>2. Securities — Fraudulent Sale.</p> <p>Bankr. Act July 1, 1898, c. 541, § 57, subd. “h,” 30 Stat. 560 [U. S. Comp. St 1901, p. 3443], provides that the value of securities held by secured creditors shall be determined by converting them into money according to the terms of the agreement, or by arbitration, compromise, or litigation, as the court may direct, and that the amount of such value shall be credited on the claims, and a dividend paid only on the unpaid balance. Held, that where a creditor of a bankrupt firm held insurance policies on the life of one of its members of the face value of $60,000 as security, it had no authority to sell the same to itself at a pretended sale at auction for $10,250, after a petition in bankruptcy had been filed against the firm, but before adjudication, without other authority than the contract of pledge, and without notice to the pledgors or other parties in interest.</p> <p>3. Same — Claims—Disallowance.</p> <p>A sale so fraudulently made warranted the disallowance of the creditor’s claim secured by the policies.</p>

<p>1. Removal oe Causes — Fedebal Question — 'What Constitutes.</p> <p>To entitle a party to remove a cause from a state to a federal court upon the ground that a federal question is involved, it is necessary (1) that that fact appear from the plaintiff’s statement of facts in the complaint ; (2) that that allegation is real and substantial, and not without color or merit; (3) that it appear from the complaint that, in some aspect which the case may assume, a federal question may really be involved, and that it is set up in good faith; (4) that, if there is a doubt as to the right to remove, the doubt must be resolved against jurisdiction.</p> <p>2. Same.</p> <p>When the proposition claimed to raise the federal question has been definitely determined by the Supreme Court of the United States, it ceases to be a federal question, within the meaning of the removal acts of Congress.</p> <p>(Syllabus by the Court.)</p>

In Bankruptcy. Motion to show cause why bankrupt should not produce books and pay over funds in his hands referred to a referee.

<p>1. Perjury — Indictment—Willfulness—Statutes.</p> <p>It is essential to the sufficiency of an indictment for perjury under Timber and Stone Act, § 2 (Act ,June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545]), providing that if any person, taking the oath prescribed, shall swear falsely in the premises, he shall be subject to all the penalties of perjury, etc., that it should allege that the act of false swearing was “willfully” done.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Perjury, § 67.]</p> <p>2. Same.</p> <p>An indictment for perjury, consisting of an alleged false statement sworn to by defendant for the purpose of purchasing lands as required by Timber and Stone Act, § 2 (Act June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545]), set out an exact copy of the statement, including the oath, and after directly alleging that the application was made to purchase the land for speculation, and not for defendant’s exclusive use and benefit, as testified by him, and directly alleging the existence of a contract to transfer the title, and that defendant’s sole purpose was to procure the title for the benefit of another, charged that defendant on the date specified, etc., in and by said statement in writing, verified upon his oath, before the receiver of the land office, “willfully, corruptly, feloniously, and contrary to the same oath of him,” the said defendant, etc., subscribed material matters contained in the statement, which he did not then believe to be true, and which he knew were not true, in a case where a law of the United States authorized an oath to be administered, etc. Held, that such allegation of “willfulness” should be construed as a part of the charge in the indictment, and not merely as a conclusion of the pleader, within Rev. St. § 1025 [U. S. Comp. St. 1901, p. 720], providing that no indictment, etc., shall be found insufficient by reason of a defect in matter of form only, the indictment further concluding with an allegation that defendant did willfully commit perjury, against the peace and dignity of the United States, etc.</p> <p>3. Same — Authority of Officer.</p> <p>Under Timber and Stone Act, § 2 (Act June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545]), requiring entry statements to be verified by oath of the applicant before the register or receiver of the land office within the district where the land is situated, and section 2246, Rev. St. [U. S. Comp. St. 1901, p. 1371], authorizing such receiver or register to administer any oath required by law in connection with the entry or purchase of any tract of public lands, the courts will take judicial notice of the qualification of the receiver of the land office to administer an path, and hence an averment of the fact is not essential to the validity of an indictment for perjury committed by false swearing in an entry statement verified before him. .</p>

<p>Motion by Defendant for Judgment Notwithstanding the Verdict.</p>

<p>Motion to Punish for Contempt.</p>

<p>1. Injunction — Breach—Contempt.</p> <p>No one can be punished in contempt proceedings for disregarding a restraining order in a case for which the law furnishes a plain, adequate, and complete remedy, where the jurisdiction to make such order is seasonably questioned and ascertained not to exist</p> <p>(Syllabus by the Court)</p>

<p>1. Copyrights — Infringement—Bill—Mtjltifariousness.</p> <p>Where it was convenient for the court that two causes of action for-infringement of copyright, one with reference to certain cartoons and the-other with reference to a play based thereon, should be joined in the-same bill, it was within the discretion of the court to permit such joinder.</p> <p>2. Same — Demurrer.</p> <p>Where it was admitted that a bill to enjoin infringement of certain-copyrights stated a cause of action arising from the alleged infringement of two dramatic compositions, and a demurrer failed to point out specifically what sentences or paragraphs of the bill were demurred to, it could not be sustained.</p> <p>3. Same — Copyright—Cartoons.</p> <p>Where certain cartoons were copyrighted, and later formed the basis-of a farce comedy, it will not be held that there was no dramatic right in such cartoons which could be made the subject of copyright, on demurrer to a bill for alleged infringement thereof.</p> <p>4. Same — Demurrer—Defect of Parties. .</p> <p>Where a bill is filed to enjoin the infringement of copyright claimed by plaintiff in two dramatic compositions, the right to the use of which plaintiff acquired through assignments from the different owners of such plays, a demurrer to the bill for want of proper parties plaintiff, on the-ground that the assignor of one of the plays should have been made a party, cannot be sustained, where defendant has not pointed out specifically the parts of the bill objected to; and the demurrer cannot be-sustained for want of parties as to the whole bill.</p>

On Motion to Remand to State Court. This suit was brought by the plaintiff, as a passenger, to recover damages for personal Injuries sustained while attempting to .cross an open culvert, which the petition alleges was negligently constructed and maintained by the two defendants. The question to be considered arises upon a motion to remand the cause to the state court.

In Bankruptcy. In this matter one Thomas J. Conroy, as creditor, in his own behalf and that of Sarah R. Greene, deceased, objected to the payment of any moneys realized from the sale of furniture of said ■bankrupt which was held under a chattel mortgage owned by Bertram L,.

<p>1. Removal of Causes — Ejectment—Issue Taken as to Value of Land-Burden of Proof.</p> <p>Where, on a petition for the removal of an action of ejectment, the value of the land is traversed, it must be established by the removing party by proof.' This, as the matter in controversy, is a jurisdictional fact, which cannot be left in doubt, as it must be where petition and answer contradict each other.</p> <p>2. Same — Removal by One Defendant — Parties Joined in Ejectment — Disclaimer.</p> <p>Where a person found in possession of part of the property on the service of a summons in ejectment was thereupon brought in as a defendant, and served as provided by the Pennsylvania statute, he becomes a party for all purposes, and, if a citizen of the same state as plaintiff, the cause is not removable by the original defendant unless a separable controversy is shown; nor is the filing of a disclaimer by such person in the federal court sufficient to sustain the removal, the question of his possession and consequent liability for costs and mesné profits remaining, which the federal court is not competent to try.</p>

<p>1. Bankruptcy—Adjudication—Res Judicata—Application to Vacate.</p> <p>An adjudication in bankruptcy is res judicata of the question, of the bankrupt’s residence as against a creditor who has acquiesced in the adjudication and has proved bis claim prior to filing a petition to vacate such adjudication because of the bankrupt’s alleged nonresidence.</p>

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

<p>1. Master and Servant — Injuries to Servant — Defective Machinery — Assumed Risk.</p> <p>Where an immature servant was not aware of the unusual danger resulting to him from the defective condition of a saw at which he was directed to work, he did not assume the risk thereof.</p> <p>¶ 1. Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.</p> <p>See Master and Servant, vol. 34, Cent. Dig. § 603.</p> <p>2. Same — Question for Jury.</p> <p>In an action for injuries to an immature servant caused by defective machinery, evidence held to require submission of the question of defendant’s negligence to the jury.</p>

<p>1. Bankeuptcy — Compositions—Taxes.</p> <p>Though Bankr. Act July 1, 1898, § 12b, c. 541, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3427], requiring the bankrupt, on making a composition, to deposit the money necessary to pay all debts which have priority and the costs of the proceedings, makes no mention of taxes, the deposit must nevertheless provide for the payment of taxes, which by section 64 are made a preferred claim against the bankrupt’s assets.</p> <p>2. Same.</p> <p>Where a city tax was assessed against a bankrupt’s property on May 1,1899, prior to his being adjudged a bankrupt on August 8th, such taxes became “legally due and owing” on the day they were assessed, within Bankr. Act July 1, 1898, § 64, c. 541, 30 Stat. 563 [U, S. Comp. St. 1901, p. 3448], making such taxes a preferred claim against the bankrupt’s estate, though the taxes were not payable until after the adjudication.</p>

<p>1. Shipping — Salvage—Property op United States — Vessels—Ownership.</p> <p>That two vessels were owned by the United Státes is not sufficient to deprive the master and crew of one of them of their right to salvage compensation for services rendered in saving personal property belonging to the United States from the wreck of the other.</p>

<p>1, Shipping — Injury to Stevedores — Absence op Hatch Support — Responsibility oe Ship.</p> <p>Where the ship had been turned over to the stevedores, who had for some days been engaged in receiving and storing cargo, and had the hatches and their covers at their disposal, the ship could not be held (responsible for an injury to a stevedore, caused by the want of a fore- and-after to support the hatch covers, in the absence of evidence that the ship, which had fulfilled its primary duty of originally supplying the fore-and afters, Instead of the stevedores, had misplaced the fore-and-after.</p> <p>2. Same — Negligence oe Stevedoees.</p> <p>Fault in the action of the stevedores or contracting stevedore in employing but one fore-and-after to support the hatch, in consequence of which a stevedore was injured, is no ground for action against the ship.</p> <p>3. Same — Dieections oe Mate.</p> <p>Where it was obvious from the number, dimensions, and notches of a hatch cover that it did not belong on the part of the hatch over which the stevedores placed it, and, had they tried, they could have discovered that it belonged to another part of the hatch, one of their number could not hold the ship responsible for injuries caused by the failure of the cover to fit the hatch, although the ship’s mate told the stevedore’s foreman that the covers would fit.</p> <p>4. Same — Negligence oe Stevedoees.</p> <p>Where some hatch covers had been repaired by fresh wood, so that the number indicating their proper places was obliterated, it was the duty of stevedores engaged in covering the hatches to ascertain, by trying the different covers, where they belonged.</p> <p>n. Same — Liability oe Ship. .</p> <p>The laying by stevedores of a hatch cover marked “XII” or “X” as the second cover, with a margin of but one-fourth of an inch support at one end, and no fore-and-after to support it, whereas there were covers at hand which would have added nearly a half inch to the support, was a reckless use of appliances, the consequences of which, resulting in injury to a stevedore, were not chargeable to the ship.</p>

<p>1. Federal Courts — Removed Causes — Jurisdiction—Motion to Dismiss.</p> <p>The filing of a petition by a defendant in a state court, to remove the cause to the proper Circuit Court of the United States does not prevent defendant, after the case is removed, from moving in the federal court to dismiss it for want of jurisdiction of defendant’s person, he having appeared specially in the federal court for that purpose.</p> <p>2. Same — Residence.</p> <p>Where both plaintiff and defendant, in a suit in a state court, were foreign corporations, but were doing business within the state, and were amenable to its laws, but neither were residents of the judicial district of the federal court to which defendant sought to remove the cause, for the purpose of avoiding its liability to plaintiff in the state court, the federal court would not assume jurisdiction without the consent of both parties.</p>

<p>L Judgment against Bank — Effect op Liquidation Peoceedings under State Statute as to Stating Execution.</p> <p>Where, pending an action in a federal court against a New Hampshire bank, an assignee was appointed by the state court under Pub. St. N. H. 1891, c. 162, in whom the assets of the defendant bank were vested, and thereafter judgment was rendered against it by the federal court, in view of the uncertainty as to the rights of the parties under such statute, and especially of the fact that defendant has a clear remedy at’common law against any wrongful enforcement of the judgment, the federal court will not interpose summarily by denying an execution to plaintiff which might be prejudicial to his rights.</p>

<p>In Tort. On rule to show cause why verdict should not be set aside, and a new trial granted.</p>

In Bankruptcy. On petition of Stanley Zbanek and Frank Eobins for review of orders of referee denying to each of them priority of payment of their respective claims from the bankrupt estate. The Burton Bros. Manufacturing Company was adjudged bankrupt by this court upon a petition filed August 20, 1904. Each of the petitioners filed á claim against that estate upon a judgment not exceeding $100 in his favor against the bankrupt dated June 18, 1904, when it was insolvent.

<p>3. Shipping — Liability op Vessel — Injury to Passenger — Negligence op Physician.</p> <p>The errors, mistakes, or negligence of a ship’s doctor in earing for a passenger are not imputable to the ship, where it was not guilty of negligence in selecting him.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 543.]</p>

<p>In Admiralty. On petition for rehearing.</p>

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

This is an action of assumpsit for the recovery of thé price of distillery slops contracted to the defendant, to be delivered at a certain feeding lot, being all of the slop made from a daily consumption of 1,200 bushels of grain during the operation of the Cedar Brook Distillery between December 25, 1902, and May 25, 1903.

<p>1. Criminal Law — Assignments of Error — Sufficiency.</p> <p>Assignments of error in a criminal case, based on the admission of evidence, which fail to set out the evidence so admitted, as required by rule 11 of the Circuit Court of Appeals (90 Fed. czlvi, 31 C. C. A. cxlvi), will not be considered by such court.</p> <p>2. Indictment — Motion to Quash — Review of Ruling.</p> <p>A motion to quash an indictment is addressed to the discretion of the court, and in the federal courts the refusal to quash will not be reviewed in an appellate court.</p> <p>3. Same — Evidence before Grand Jury — Investigation by Trial Court.</p> <p>It is not the duty of a trial court, on a motion to quash an indictment, to investigate the character of the evidence taken by the grand jury, in order to ascertain if a portion of it was incompetent or illegal, or if it was insufficient to justify the finding of the indictment, and such matters should not be gone into unless in exceptional cases, where the ends of justice imperatively require it.</p> <p>4. Same — Joinder of Offenses.</p> <p>Charges against the same defendants for conspiracy to defraud the United States, based on Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], and for receiving money from their alleged co-conspirator for aiding to-procure a contract from the government, and for services rendered in relation to the same, based on sections 1781, 1782 [U. S. Comp. St. 1901, pp. 1212, 1213], defendants being clerks in a department, and such charges all relating to the same transaction, may properly be joined in different counts in the same indictment under Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720],</p> <p>5. Same — Requiring Election between Counts.</p> <p>Where the different counts of an indictment, while charging different offenses, all relate to the same transaction, so that the evidence offered to sustain one is also admissible under the others, the court may properly refuse to require the government to elect between them.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 444, 451, 452.</p> <p>6. Criminal Law — Ruling on Motion for Election between Counts — Review on Error.</p> <p>A motion- to require the government to elect between the counts in an indictment is addressed to the discretion of the court, and the ruling thereon is not reviewable on a writ of error in the federal courts.</p> <p>7. Conspiracy to Defraud the United States — Requisites of Offense.</p> <p>It is not necessary, to sustain an indictment under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3670], which makes it an offense to conspire “to defraud the United States in any manner or for any purpose,” that the consummation of the conspiracy would have caused pecuniary loss to the government, where the defendants are its officers or employés.</p> <p>8. United States — Offenses by Officers — Clerks in Departments.</p> <p>A clerk in one of the departments is subject to indictment under Rev. St. § 1781, or section 1782 [U. S. Comp. St. 1901, pp. 1212, 1213], as an “officer and agent” or an “officer and clerk” of the United States.</p> <p>9. Conspiracy — Instructions—Intent.</p> <p>Instructions with respect to the intent necessary to be found to warrant a conviction of defendants on a charge of conspiracy to defraud the United States, which charged, in effect, that, if defendants intended the consequences which naturally and in fact resulted from their acts, and such result was to defraud the government, they could not be acquitted because they may not have thought the government would be defrauded, considered and approved.</p>

The Kingwood Coal Company was a corporation engaged in the mining and shipping of coal in Preston county, W. Va., on the line of the West Virginia Northern Railroad Company, and the Irona Coal Company and the Atlantic Coal & Coke Company were also so engaged, the mines of the three companies being the only collieries so located and operated.

An order was heretofore entered reversing the judgment of the Circuit Court and remanding this cause, with directions to dismiss unless by appropriate proceedings jurisdiction was made to appear. 130 Fed. 770.

<p>1. Municipal Corporations — Contracts—Statutory Reduction op Poweb op Taxation.</p> <p>Where a statute has invested a municipal corporation with the power of local taxation to enable it to meet its engagements under a contract which it is thereby authorized to make, the power of taxation thus conferred enters into and becomes a part of the contract, and may not be withdrawn or lessened until its obligations are satisfied.</p> <p>2. Same — Iowa Statute — Reduction op Assessed Value op Property.</p> <p>Code Iowa 1897, § 1305, which provides that for purposes of taxation “all property shall be valued at its actual value, which shall be entered opposite each item, and shall be assessed at twenty-five per cent, of such actual value,” is invalid in so far as it affects the ability of a city to meet a pre-existing contract to pay water rentals, made when the statute required property to be assessed at its “true cash value,” ánd when the city was authorized to levy a special tax to pay water rentals, not exceeding five mills on the dollar on property benefited, and the city may be compelled to levy a tax based on the actual value of such property, as shown by the assessment roll, where it is necessary to meet its contract</p>

<p>1. Clerks of Circuit Courts — Commission.</p> <p>A clerk of a Circuit Court is not entitled under Rev. St. § 828 [U. S. Comp. St. 1901, p. 635], to a commission on the proceeds of mortgaged property sold under a foreclosure decree, which by order of the court is paid by the master making the sale directly to the mortgagee.</p> <p>2. Same.</p> <p>To entitle a clerk of a Circuit Court to a commission for “receiving, keeping, and paying out money,” under Rev. St. § 828 [U. S. Comp. St. 1901, p. 635], such money must be paid to him or be subject to his order, so that he becomes responsible'for its keeping and payment. A fund paid by a master into a United States depository, pursuant to an order of the court, and subject to be withdrawn on its order, is neither actually nor constructively in the keeping of the clerk, and he is not entitled to a commission thereon when it is so paid out.</p> <p>3. Same.</p> <p>Railroad bonds deposited in a Circuit Court as collateral security by its order, and kept in a bank vault to which the clerk kept the key, are not “money,” and the clerk is not entitled to a commission thereon, under Rev. St. § 828 [U. S. Comp. St. 1901, p. 635], when by order of the court he takes them from the bank and surrenders them to the depositor; nor is there any authority outside of the statute for the allowance of such a commission.</p>

<p>1. Bankruptcy — Value of Goods — Proceedings by Trustee — Appeal.</p> <p>Where goods in possession of the bankrupt were delivered to a claimant, and he was thereafter ordered to pay the value of the goods to the trustee, in summary proceedings brought against him on an order to show cause, he was entitled to appeal from such order to the Circuit Court of Appeals, under Bankr. Act July 1, 1898, c. 541, § 24a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431], authorizing appeals in “controversies arising in bankruptcy proceedings,” though the order was not appealable under section 25a (30 Stat. 553 [U. S. Comp. St. 1901, p. 3432]), giving such court revisory and superintending powers over the “proceedings of the several inferior courts of bankruptcy,” etc.</p> <p>2. Same — Proceedings—Order to Show Cause.</p> <p>Where a receiver in bankruptcy delivered certain goods in the possession of a bankrupt to a claimant on the ground that the title to the property was in the claimant, and not in the bankrupt, the court’s custody of the property was thereby surrendered, and the bankrupt’s trustee was not thereafter entitled to recover the value of the property against the claimant in summary proceedings on an order to show cause.</p>

<p>1. Bankruptcy — Hotels.</p> <p>A hotel company engaged in furnishing rooms and meals to guests is not a corporation principally engaged in trading or mercantile pursuits, and therefore cannot be adjudged a bankrupt, within Bankr. Act July 1, 1898, c. 541, § 4, 30 Stat. 547 [Ú. S. Comp. St. 1901, p. 3423],</p> <p>[Ed. Note. — What persons are subject to bankruptcy laws, see note to Mattoon Nat. Bank v. Eirst Nat. Bank, 42 C. C. A. 4.]</p>

<p>1. Bankruptcy — Vested Remainders — Duty to Schedule.</p> <p>A bankrupt’s grandfather bequeathed two-thirds of the income of his estate to his widow for life, and the other one-third to his daughter E. for life or before marriage, and that in the event of the death of the widow before the marriage or death of E. two-thirds of the income should be paid to E. and the balance to his daughter M. A subsequent clause of the will provided that at the marriage or death of E. the remainder of the estate should be sold, and the proceeds divided equally among all of his children, share and share alike, except his son G., and that, if other of his children should die, leaving children living at testator’s death, the share of such deceased child should be given to his or her child or children. Testator left him surviving a widow and five children. One of the testator’s sons other than G. thereafter died intestate, unmarried, and without issue, as did his daughter M., who left four children, one of whom was the bankrupt. Held, that the bankrupt had a vested interest in his grandfather’s estate, which he was required to schedule as a part of his estate in bankruptcy.</p> <p>2. Same — Interest in Estates — Failure to Schedule — Fraud—Discharge.</p> <p>Where the question whether a bankrupt’s interest in his grandfather’s estate was vested or contingent was difficult of solution, and the bankrupt had previously been advised by counsel that he had no interest in his grandfather’s estate on which he could raise money, his failure to schedule such interest as a part of his estate in bankruptcy did not preclude his discharge on the ground that he had “knowingly and fraudulently” concealed, while a bankrupt, property belonging to his estate in bankruptcy.</p>

About six o’clock in the evening of the 26th of November, 1901, Edwin K. Tomlinson, a traveler upon a country highway in South Dakota, was killed at a railroad crossing by a passenger train of the Chicago, Milwaukee & St. Paul Railway Company. An action was brought under a statute of that state by Hattie Tomlinson, his widow, to recover damages upon the ground that the accident was caused by the negligence of the railway company.

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

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of New York, in Bankruptcy. This cause comes here upon petition to review an order of the District Court affirming a ruling of the referee- in bankruptcy to the effect that the trustee, who happens to be an attorney and counselor at law, is entitled to extra compensation for legal services rendered to the estate.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p> <p>This cause comes here upon petition by the alleged bankrupt to review an order of the District Judge, Southern District of New York, which provided that the “issues of law and fact raised by the answer to the involuntary petition herein be, and the same hereby are, referred to E. F. Smith, Esq., as special commissioner to take testimony therein, and report this, with his opinion, to this court.”</p>

<p>1. Patents — Covenant Not to Contest Validity — Construction.</p> <p>A covenant in a lease of patented machinery that the lessee will not contest the validity of the patent must be construed with reference to the grant expressed on the face of the patent, and, where it is for the full term of 17 years, the covenantor is debarred from setting up as a defense to a suit for infringement that the patent expired before the expiration of such term by reason of the expiration of a prior foreign patent for the same invention.</p>

On application for attachment against a witness for refusal to produce books in compliance with a subpcena duces tecum on the taking of his deposition.

<p>1. Public Lands — Cherokee Lands oe North Carolina — Manner ob Private Entry.</p> <p>The lands acquired by the state of North Carolina by treaties between the United States and the Cherokee Indians, known as “Cherokee Lands,” lying west of the line run by Meigs & Freeman in 1802, were by the subsequent legislation of the state to and including 1852 kept separate and distinct from the public lands of the state, and were not subject to private acquisition under the general entry and grant laws, but only under special laws applicable to them alone, and grants issued upon and entry of such lands under the general laws are unauthorized and void, and convey no title.</p> <p>2. Same.</p> <p>The provision of Rev. St. N. C. 1837, c. 42, § 1, that “it shall not be lawful for any entry taker to receive an entry for lands lying to the westward of the line run by Meigs & Freeman in the year 1802, * * * except the vacant and unsurveyed lands that have been acquired by treaty from the Cherokee Indians in the years 1817 and 1819,” if construed to authorize the entry of any of the Cherokee lands under the general entry and grant laws then in force, casts the burden upon one claiming under such an entry to show on the face of the grant itself that the land was at the time “vacant and unsurveyed,” and so within the exception.</p> <p>3. Same — Validity of Grant.</p> <p>Under the law of North Carolina in force in 1852 (Rev. St. 183T, c. 42, § 4), which authorized the justices of the peace of a county, when they deemed it necessary, to elect one person “to receive entries of claims for lands within such county,” an entry taker had no authority to receive an entry of lands lying in another county, and a grant based on such an entry is void.</p> <p>4. Same — Construction of Statute — Powers of Entry Taker.</p> <p>Pub. Laws N. C. 1850-51, p. 99, c. 39, which extended the jurisdiction of the courts and sheriffs of Macon and Haywood counties over the territory of the newly created county of Jackson, and also the authority of the “justices of the peace, constables, and other public officers heretofore appointed and living within the territory of Jackson,” cannot be extended by construction to extend the authority of the entry taker of public land claims of Macon county over lands lying in Jackson county, when he is not shown to have resided within such county.</p>

<p>1. Mines and Mining — Locations—Amendment.</p> <p>Locations may be amended, without the loss of original rights, except those inconsistent with the amendment; but new rights cannot be added which are inconsistent with the acquired rights of others.</p> <p>2. Same — Extension oe Location.</p> <p>Held, in accordance with the rulings of the appellate courts, that a junior locator may, for the purpose of acquiring extralateral rights, extend his surface location over prior locations when their owners do not object.</p> <p>3. Same — Monuments—Conclusiveness.</p> <p>A monument established by the locators of two different claims as the point through which the dividing line between them shall run is not binding upon subsequent purchasers, unless so made of record as to give notice to such purchasers.</p> <p>4. Same.</p> <p>The ledge may be followed between the perpendicular planes of its end lines, regardless of the fact that this may be more upon the course than upon the dip of the ledge.</p> <p>8. Same — Mineral-Bearing Ledge.</p> <p>When the mineral-bearing ledge consists of a mineralized zone or belt, without distinct walls, rather than a well-defined ledge, the practical mode of determining its legal width is by the lines beyond which ore is not found, or beyond which such indications of it do not exist, which would encourage the miner to continue his explorations with the expectation of compensation.</p> <p>6. Same — Following Ledge.</p> <p>The owner of a ledge may follow it continuously and indefinitely, except where intersected or crossed by the ledge or underground rights of a prior locator, and beyond such intervening right the junior owner may resume and follow his ledge.</p> <p>(Syllabus by the Court.)</p>

<p>1. Sales — Delivery to Vendee — Requisites.</p> <p>In the absence of a contrary agreement, the vendor is not bound to send or carry the goods to the vendee, but fulfills his obligations by leaving or placing them at the latter’s disposal, so that he may remove them without lawful obstruction.</p> <p>2. Same — Construction oe Contract — “e. o. b.”</p> <p>While the use of the phrase “f. o. b.,” or an equivalent expression, in a contract of sale, prima facie imposes on the purchaser the duty of furnishing the cars or vessel upon which the goods are to be transported from the place of delivery, yet the whole agreement, when taken with its attending circumstances, or the construction of the contract by the parties, may shift the obligation of furnishing the cars or vessel upon the seller.</p> <p>3. Same — Construction by Parties.</p> <p>A contract of sale, providing for a number of successive deliveries, called for cement f. o. b. at a certain point. The sentence in which this provision appeared related to the price of the cement. The seller, in acting under this contract, always obtained the cars itself, and, in correspondence with the buyers concerning its failure to ship promptly, never alluded to the duty of furnishing the cars as resting upon the buyers. The buyers never obtained the cars, and both parties evidently regarded the duty of obtaining them as resting on the seller. Held that, in view of the construction placed upon the contract by the parties, it was the seller’s duty to furnish cars for the shipment of the cement.</p> <p>4. Damages — Liquidated Damages — Construction oe Contract.</p> <p>A contract for the sale of cement provided that, if the seller failed to deliver a specified number of barrels, it should pay the buyers 15 cents per barrel as liquidated damages for each and every barrel short of the required number, and further provided that the seller would make all shipments within 10 days after the receipt of orders. Held that, although the latter provision followed the stipulation for liquidated damages, that stipulation covered both the failure to deliver within 10 days from order, and the total failure to deliver.</p> <p>5. Same — Liquidation or Uncertain Damages.</p> <p>It was competent for parties making a contract for a large quantity of cement, to be delivered at different times during an entire year, to stipulate for the payment of liquidated damages in case of the failure of the seller to ship the required amount of cement, where the experience of past years had shown that the price of cement fluctuated greatly, so that the damages which would actually result from a failure to deliver the cement at any time were uncertain.</p>

<p>1. Fish — State Regulations — Statutes—Constitutionality.</p> <p>Act S. C. Feb. 16,1904 (24 St. at Large, p. 385), prohibiting the shipment or transportation of “any shad fish beyond the limits of” the state, and declaring that any common carrier shipping or receiving for transportation any shad fish to points, beyond the state shall be guilty of a misdemeanor and fined, is unconstitutional and void, as prohibiting the transportation of shad fish caught beyond the limits of the state, which the state has no power to regulate.</p> <p>2. Same — Construction—Partial Constitutionality.</p> <p>Since the Legislature, in passing Act S. C. Feb. 16, 1904 (24 St. at Large, p. 385), prohibiting the transportation of “any shad fish” beyond the limits of the state, distinctly refused to limit the act to shad fish caught within the limits of the state, it could not be construed by the courts to be so limited, and, as limited, held constitutional.</p>

<p>1. Subornation of Perjury — Indictment—Time—Place.</p> <p>Where an indictment charged that defendant corruptly suborned and procured M. to appear before K., receiver of the United States land office within the district where certain timber land applied for was situated, and to make and subscribe before him a certain oath to a certain statement in writing, and the statement included in the indictment appeared to have been made at the land office in M., Mont., June 26, 1899, and the receiver’s certificate appended to the statement was subscribed and sworn to before him June 26, 1899, the indictment was not demurrable for failure to state the time or place of the commission of the ■offense.</p> <p>2. Same — Knowledge.</p> <p>Where an indictment for subornation of perjury alleged that M., the person alleged to have been suborned, falsely, feloniously, and willfully swore to matters set forth in an application to purchase public lands, and alleged that he did not make the application in good faith, but on speculation, under a contract with defendant respecting title, and that defendant knew that M. had made a contract by which the title he might acquire should inure to defendant’s benefit, and that he did not believe to be true the matters he procured M. to swear to, but knew them to be false and untrue, it sufficiently charged that M. knew the statements made by him were false, and that defendant knew that M. had knowledge ■of the falsity thereof.</p> <p>3. Same — Capacity op Officer.</p> <p>Where an indictment for subornation of perjury with reference to a sworn application to purchase public lands alleged that the person suborned appeared before R., who was then and there a receiver of the United States land office within the district where the land was situated, which appeared by the statement, which was a part of the indictment, to be M., Mont., the indictment sufficiently alleged the office held by R.</p>

<p>1. Sales — Failure to Deliver — Measure oe Damages.</p> <p>Where a contract for the sale of coal, to be delivered in monthly quantities, provided that each month’s delivery should be treated and considered as a separate and independent contract, the measure of the buyer’s damages for the seller’s failure to deliver the coal was the difference between the price he contracted to pay the seller, and the price which he was compelled to pay in the open market on the last day of each month for the amount of coal which the seller failed to deliver according to contract during the month.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 1178.</p> <p>2. Same — Evidence—Merits oe Claim.</p> <p>Evidence that the buyer was compelled to pay a higher price for coal in the open market than the price fixed by the contract of sale, whereas he was selling the coal to his customers at the figures at which he had originally contracted to sell it, while irrelevant on the issue of the seller’s liability for the breach of his contract, goes to show that the buyer is not insisting upon his legal rights without merit.</p> <p>3. Same — Defenses.</p> <p>The fact that the sellers of coal had themselves contracted for the purchase of sufficient coal to supply their customers had no bearing on the question of the sellers’ liability for a breach of a contract for the delivery of coal to one of their customers, except as evidence that they had used every precaution to be prepared to deliver the coal in compliance with the terms of their agreement, and were prevented from so doing solely by a shortage of ears.</p> <p>4. Same — Shortage oj? Oars.</p> <p>The fact that sellers took the precaution to contract for sufficient coal before they sold it to their customers did not excuse them from the effort to secure cars to ship the coal in, or to procure coal for delivery, if, as a matter of fact, they could have, with reasonable expenditure of money, purchased coal in the open market, or secured the cars to ship the coal for which they had contracted.</p>

<p>1. Lotteries — Prize Packages — Coupons.</p> <p>Defendant, to induce the sale of a cereal called “Mother’s Oats,” placed in each package a coupon on which one of the letters which spelled the word “Mother’s” was printed, and offered premiums to persons holding coupons which would spell the word “Mother’s”; the letter “O” being placed on only 1 coupon in 500. Held, that such scheme was a lottery, within Act Cong. March 2, 1895, c. 191, 28 Stat. 963 [3 U. S. Comp. St. 1901, p. 3178], providing that any person who shall cause to be carried from one state to another in the United States any paper, certificate, or instrument purporting to be or representing a ticket, chance, share, or interest in, or dependent upon the event of, a lottery, etc., or other similar enterprises offering prizes dependent upon lot or chance, shall be guilty, etc.</p> <p>[Ed. Note. — What constitutes a lottery, see note to MacDonald v. United States, 12 C. C. A. 346.]</p>

<p>1. Federal and State Courts — Conflicting Jurisdiction.</p> <p>Where a state court had assumed jurisdiction of a suit for the foreclosure of a railroad mortgage, had appointed a receiver, and entered a decree directing a sale, and had power to grant complainants relief with reference to certain rolling stock on which they claimed a lien, etc., a federal court would not thereafter assume jurisdiction of complainants’ bill to declare and enforce such lien.</p> <p>2. Same — Statutes—Injunction.</p> <p>Rev. St. § 720 [U. S. Comp. St. 1901, p. 581], prohibiting the issuance of an injunction by United States courts to stay proceedings in any state court, except in bankruptcy cases, prohibits the issuance of an injunction or restraining order against proceedings in a state court from the commencement of the suit until the judgment or decree is satisfied.</p> <p>[Ed. Note. — Federal courts restraining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p>

<p>1. Railroad Lands — Withdrawal from Entry — Conflicting Claims.</p> <p>Where certain railroad lands were withdrawn from pre-emption or homestead entry on the filing of the general route of a proposed railroad to which lands had been granted by Congress, such withdrawal of lands, which also came within the place limits of a subsequent grant to another railroad, excepted the lands from the subsequent grant, though, when the first railroad was afterwards built, its line was so changed that the lands did not come within its grant.</p>

<p>In Admiralty. Suit by seaman to recover for injuries'and for failure of the master to afford him proper surgical treatment.</p>

<p>1. Army — Minors—Enlistment—Desertion—Arrest—Habeas Corpus.</p> <p>Where a minor under the age of 18 years enlisted without the consent of his father, then living, and after his arrest for desertion, but before final hearing of a writ of habeas corpus by the father to obtain his discharge, formal charges of desertion and fraudulent enlistment, etc., were preferred against him by the military authorities, he could not be discharged under such writ until he had satisfied the charges pending against him by the government.</p>

<p>1. Bankruptcy — Property ok Bankrupt — Recovery—Third Person — Liability — Prooe.</p> <p>A trustee is not entitled to recover funds alleged to belong to a bankrupt from a third person unless the proof shows beyond a reasonable doubt that such person has the fund or property in his possession or control.</p> <p>2. Same — Evidence—Findings.</p> <p>Evidence in a proceeding to require a third party to pay over to a trustee in bankruptcy certain moneys claimed to be in his possession, but belonging to the bankrupt, held to sustain a decision by the referee in favor of the trustee.</p>

<p>1. Habeas Corpus — Criminal Convicted by State Court — Appeal—Allowance.</p> <p>A federal court will not allow an appeal from its decision refusing a writ of babeas corpus to release one convicted of murder by a state court, when on a previous writ of error tbe United States Supreme Court bad decided that no rights secured to tbe accused by tbe federal Constitution and laws bad been violated, and tbe only ground for tbe application was that defendant was never properly charged before a committing magistrate.</p>

<p>1. Bankruptcy — Assignees—Appointment—Necessity.</p> <p>A bankrupt, against whom proceedings were instituted in December, 1868, was alleged to have sold certain land to petitioner’s predecessors in interest prior to 1860, but petitioner alleged that the conveyance executed by the bankrupt omitted the land in controversy by mistake. Held, that a successor to the bankrupt’s assignee, who died in 1893, would not be appointed solely to enable petitioner to quiet her title to the land.</p>

<p>1. Death — Evidence.</p> <p>In an action for tlie alleged death of a passenger resulting from the sinking of a ferryboat in a collision, evidence reviewed, and held sufficient to sustain a finding that deceased was a passenger on the boat that sunk, and lost his life in the collision.</p> <p>2. Collision — Febkyb oats — Mutual Fault.</p> <p>Where two ferryboats approaching each other attempted to cross courses in a dense fog, when neither could see the other in time to avoid a collision, they were both at fault — the one for attempting the maneuver ; and the other in assenting to it and putting her wheel hard astarboard, causing ber to swing one point nearer to tbe other boat, though she immediately stopped and reversed her engines.</p> <p>3. Same — Limitation of Liability.</p> <p>Where, after collision, the corporation owning both boats filed a petition to limit its liability with reference to the boat lost only, and did not offer to surrender the colliding boat, an interlocutory decree that the owner of the boat lost was entitled to limit its liability to the appraised value of such boat with its freight pending was no bar to libelant’s subsequent action against the owner for damages for the death of a passenger in such collision, in which it was held that both boats were at fault, though libelant had appeared and presented a claim for such damages in the limitation proceeding.</p> <p>[Ed. Note.- — Limitation of vessel' owner’s liability, see note to The Longfellow, 45 O. O. A. 387.]</p> <p>4. Same — Judgments—Satisfaction.</p> <p>Where libelant appeared in a proceeding by the owner of certain ferryboats to limit liability as to one of them for a collision, and filed a claim for death of a passenger, the owner of the boats, on satisfying the decree in such proceeding, would be entitled to have the amount paid libelant thereunder deducted from the amount of damages awarded her in a subsequent suit for damages on the same cause of action.</p> <p>5. Same — Damages.</p> <p>Where deceased, at the time of his death in a collision at sea, was between 52 and 53 years of age, and had been living with his family, consisting of himself and seven children, damages to the extent of $5,000 were recoverable therefor.</p>

<p>1. Federal Courts — Removal of Cause — Separable Controversy — Action-foe Death.</p> <p>Where, in an action for death of a passenger, plaintiff joined the’ railroad company, a nonresident corporation, with certain of its employes, operating the colliding trains which caused the accident, whO' were of the same citizenship as plaintiff, but the only negligence averred was that of the servants in control of the trains, the corporation’s liability being based wholly on the fact that the acts of the servants were within the scope of their employments, and bound the company, the-complaint did not charge a joint tort, and hence the corporation was entitled to remove the cause to the federal court.</p> <p>[Ed. Note. — Separable controversy as ground for removal of cause to’ federal court, see notes to Robbing v. Ellenbogen, 18 C. C. A 86; Meckev. Yalleytown Mineral Co., 35 C. C. A. 155.]</p>

<p>In Admiralty. On motion for order on libelant to enter security: for costs.</p>

<p>1. Aliens — Penalty fob Bringing in Diseased Immigrants — Construction" OF gTATUTE.</p> <p>gection 9 of Act March 3, 1903 (32 gtat. 1215 [U. g. Comp. gt. gupp. 1903, p. 175]), making it unlawful for any person, transportation company, etc., to bring to the United gtates any alien afflicted with a loathsome or with a dangerous contagious disease, and providing that, if it shall appear to the satisfaction of the gecretary of Commerce and Labor that any alien so brought to the United gtates was afflicted with such a disease “at the time of foreign embarkation and that the existence of such disease might have been detected by means of a competent medical examination at such time,” such person or transportation company shall pay a fine .to the collector, to be enforced by withholding clearance papers from the vessel until its payment, is intended to apply only to a case where a diseased person is brought in by a vessel as a passenger or voluntarily, and when the vessel owner or transportation company has an opportunity to discover the existence of the disease by means of a medical examination before the alien is taken on board, and a vessel owner cannot be subjected to the penalty for bringing into port an alien who has stolen his passage, and whose presence on the vessel was not discovered before her sailing.</p>

<p>1. Bankruptcy — Discharge—Application—Filing—Time—Extension.</p> <p>Where a bankrupt failed to file his application for a discharge within a year after adjudication, as provided by Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], and made no affidavit in support of an application for an extension of time, an affidavit by one member of a firm of attorneys who had represented him in the bankruptcy proceedings, alleging that two members of the firm were absent for a considerable period before expiration of the time within which the petition for a discharge should have been filed, etc., and that affiant, who was the only remaining member of the firm, had been unable to keep up with the firm’s business, and that the filing of the petition was overlooked, was insufficient.</p>

<p>1. Copyrights — Pleadings—Evidence.</p> <p>Where, in a suit to restrain infringement of a copyright on a painting, defendant pleaded a subsequent exhibition of the painting at the Royal Academy in London as a publication thereof, and complainant took issue on the plea, evidence of restrictions on the exhibition of paintings at such exhibition, in that the public, other than members of the Academy and exhibitors and their families, were not entitled to admission, except on payment of an entrance fee, and that no permission to copy works during the exhibition could be granted, was competent as tending to negative the alleged publication.</p> <p>2. Same — Exhibition—Publication.</p> <p>Under Rev. St. §§ 4952, 4955, 4962 [U. S. Comp. St. 1901, pp. 3406, 3407, 3411], authorizing copyrights of paintings, etc., and requiring notice of such copyright to be published thereon, the exhibition of an original copyrighted painting at an academy, at which no person was entitled to copy the same, and to which the public, other than the members of the academy, were not admitted, except on payment of a fee, without a notice of copyright thereon, did not constitute such a publication as avoided the copyright.</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western District of New York, in Bankruptcy.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of New York, in Bankruptcy. Petition by trustee and creditors of the Waterloo Organ Company, bankrupt, to review an order affirming order of referee adjudging that the First National Bank of Waterloo is the owner and holder of 21 bonds, of $500 each, issued by the bankrupt, and allowing the claim of said bank as a valid obligation of the bankrupt.

<p>1. Appeal — Review—Harmless Error.</p> <p>Where the demurrer of a defendant to a replication setting up an estoppel, going to the right of the defendant to maintain the defense pleaded as to a part of the claim sued on, was overruled, and defendant thereupon rejoined, and went to trial on the issues made by the declaration and plea, a finding and judgment for plaintiff on such issues renders the ruling on the demurrer immaterial, and it will not be reviewed in the appellate court.</p> <p>2. Trial — Demurrer to Evidence — Operation and Effect.</p> <p>A demurrer to evidence admits all the facts directly proved by, or that a jury might fairly infer from, the evidence, and the court is justified in finding a fact in favor of the demurrant only when the evidence is such that a contrary finding, if made by a jury, would be set aside.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent Dig. Trial, § 356.]</p> <p>Morris, District Judge, dissenting.</p>

The following is the opinion of the Circuit Court (Thompson, District Judge): The line of the railway of the defendant the Cincinnati & Muskingum Valley Railroad Company crosses the Muskingum river about seven miles below Dresden, Ohio. The bridge upon which it crosses the river, and over which its trains are run, was built in 1870, under authority granted to it by ■the Board of Public Works of the state of Ohio, and was a lawful structure.

<p>Appeal from the District Court of the United States for the Southern District -of New York.</p> <p>This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the steam tug Prudence solely in fault for a collision between the schooner William D. Marvel' and the barge Drifton in tow of the tug. The opinion of the District Court is reported 124 Fed. 939.</p>

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (126 Fed. 894), affirming a decision of the Board of General Appraisers (G. A. 4,768, T. D. 22,497), which sustained the collector of the port of New York as to the rate of duty on certain merchandise imported under the tariff act July 24, 1897, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626].

<p>1. Coepobations — Pledge of Stock — Rights of Pledgee.</p> <p>A pledgee of stock has such an equitable interest therein as will entitle him to be heard in a court of equity, to the same extent, at least, as the pledgor, concerning its preservation and the protection of his interests therein.</p> <p>2. Courts — Jurisdiction of Federal Court — Diverse Citizenship.</p> <p>Under Act Cong. March 3, 1887, c. 373, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], withdrawing from the cognizance of the Circuit and District Courts any suit by an assignee on a promissory note or other chose in action, unless such suit might have been prosecuted in such court if no assignment had been made, a pledgee of stock cannot, on account of the diverse citizenship existing between himself and the corporation, sue the corporation in the federal court for the appointment of a receiver where his pledgor is a resident of the state of which the corporation is a citizen.</p> <p>[Ed. Note. — Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>3. Same — Appeal—Denial of Jurisdiction.</p> <p>Where the record before the Circuit Court of Appeals clearly shows the want of jurisdiction of the federal courts in the premises, it is its duty to deny jurisdiction on its own motion if the question is not raised by appellant.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 816, 818.]</p>

<p>1. Appeal — Final Decision — Decree in Part Final and in Part Interlocutory.</p> <p>Where a bill in a Circuit Court set up four distinct causes of action, one for infringement of a patent, one for infringement of a trade-mark, and two for unfair competition, a decree dismissing the bill as to the first three causes of action is a “final decision” thereon, in such sense as to be appealable, although as to the fourth cause of action the bill is sustained and an accounting is directed thereunder.</p> <p>[Ed. Note. — Finality of judgment for purpose of review, see notes to Central Trust Co. v. Madden, 17 C. C. A. 238, and Prescott & A. C. Ry. Co. v. Atchison, T. .& S. F. R. Co., 28 C. C. A. 482.]</p> <p>2. Unfair Competition — Imitation of Dress — Intent to Deceive.</p> <p>Complainants established the manufacture of a peculiar style of men’s drawers, having a strip of elastic knitted material inserted at the seams. The body of the garment was white, and the seam strips made of Egyptian yarn, the natural color of which is yellow or buff, and which was selected deliberately and because of its distinctive color. Complainants also adopted the name “Scriven’s Elastic Seam,” and the arbitrary number “50,” which were stamped upon each garment. Thirteen years or more later, and after complainants’ garment had become well known by reason of such distinctive features, and had acquired a high reputation and large sale on its merits, defendants began the manufacture and sale of an inferior and cheaper garment, but having the same general appearance. They were stamped with the words “Standard Stretchy Seam” and the same numeral, “50,” in a style imitating that of complainants. When complainants changed the form of their stamp, defendants changed theirs to correspond. They also advertised their goods as “Elastic Seam Drawers.” In some cases defendants also used a cheaper .domestic yarn in making the seam strips, dyed to imitate the Egyptian yarn used by complainants. Beld that, aside from any question of trade-mark or of defendants’ right to make and sell their goods without resorting to deception, such facts showed a deliberate intention to deceive purchasers by palming off their goods as those of complainants, which constituted unfair competition, and entitled complainants to an injunction; it being further shown that purchasers were in fact deceived, and that defendants’ goods were largely advertised and sold by dealers as “Seriven’s.”</p> <p>[Ed. Note. — Unfair competition, see notes to Scheuer v. Mueller, 20 O. C. A. 163, and Rare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>3. Same — Grounds for Relief.</p> <p>The general principle that no man has a right to pass off his goods as and for the goods of another is broader than the rules applicable to strict trade-mark, and extends to all cases of unfair competition; the difference between eases for infringement of trade-mark and those for relief against unfair competition being mainly in the matter of proof, the imitation of a trade-mark raising a conclusion presumptive of fraud, while in cases of unfair competition actual fraud or misleading of the public, or conduct calculated and intended to mislead it, must be shown by the proofs.</p> <p>4. Patents — Inebingement—Undergarments.</p> <p>The Scriven patents, No. 378,465 and No. 472,555, each for improvements in undergarments, construed, and held not infringed.</p>

<p>1. Patents — Anticipation—Cloth-Measuring Machines.</p> <p>Tbe Windle patent, No. 507,300, for a cloth-measuring machine — the feature of novelty claimed being the use of a split and expansible ring for the ends nf the measuring cylinder, and means for forcing the ends apart so as to enlarge the circumference of the cylinder to adapt it to the varying elasticity of the cloth to be measured — is void for anticipation ; such rings having been previously used on other machines made and sold by the patentee.</p> <p>'2. Same — Description of Invention — Resort to Drawings.</p> <p>While a doubtful or ambiguous description in the specification of a patent may be aided and made plain by the drawings, they cannot supply the entire absence of any written description of a feature of the invention.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent Dig. Patents, § 243.]</p>

This action was commenced in the Southern District of New York for the infringement of letters patent No. 474,811, granted to Charles A. Catlin, assignor to the Rumford Chemical Works, of Providence, R. I., May 17, 1892, for improvements in baking preparations. The Circuit Court (125 Fed. 231) dismissed the bill upon the authority of Glue Co. v. Upton, 97 U. S. 3, 24 L. Ed. 985.

531,711 for flooring, granted to Thomas Wilce and John P. Burnham, January 1, 1895. Appellants’ bill for infringements of letters patent No. 531,711, Jan. 1, 1895, to Wilce and another, for improvements in flooring, was dismissed for want of equity.

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

The plaintiff in error, who was the defendant below, brings this writ of error to review a judgment of $3,263.95, recovered against it in the Circuit Court for the Southern District of New York for royalties under a written agreement between the parties, dated August 21, 1901. The defendant in error, plaintiff below, is the inventor of certain improvements in chocolate coating machinery for which various letters patent were granted.

<p>1. Patents — Ineeingement—Sewing Machine Rueelees.</p> <p>The Parsons patent, No. 354,577, for a sewing machine ruffler, held valid as to claims 2, 7, and 8, but, as limited by the prior art, not infringed.</p>

<p>.1. Patents — Infringement—Machines for Braiding Whiplashes.</p> <p>The Turner patent, No. 432,582, for improvements in racers used in machines for braiding whiplashes, claim 3, must be limited to the combination of the specific elements described, and, as so limited, is not infringed by the machine of the Hassler patent, No. 683,276, which lacks one of the essential and characteristic elements of such combination.</p>

In Equity. Suit for infringement of reissued letters patent No. 12,058, for a tension for braiding-carriers, granted November 25, 1902, to Julius A. Turner. On final hearing.

<p>In Equity. On motion for rehearing.</p>

Habeas Corpus. The petitioner applies for discharge on habeas corpus, on the ground that the indictment under which he is held does not charge any offense against the laws of the United States. He is indicted, with others, for conspiracy, and acts done in furtherance • of it, under sections 5508 and 5509 of the Revised Statutes [U. S. Comp. St. 1901, p. 3712], The indictment contains six counts.

At Law. On demurrer to complaint. The plaintiff in this action elaims $2,500 damages from the defendants, who, as judges of the election of the Fourth Ward of the city of Little Rock, county of Pulaski, state of Arkansas, held on November 8, 1904, for the election of a member of the House of Representatives of the United States, refused to permit him to cast his vote for such member of Congress.

<p>1. Judgments — Res Adjudicata — Scope of Decision — Subsequent Change of Circumstances.</p> <p>A decision of a state Court of Appeals that certain parties had no property rights in a railroad switch over another’s land, but were entitled to car service during the continuance of a certain contract between the railroad and that other, because the switch was operated by the railroad as a common carrier, was res adjudicata in a subsequent suit between the parties or their privies on the question of their property rights in the switch, but did not preclude inquiry into the rights of the parties in the use of the switch, where subsequently to the decision the contract relied on by the decision was abrogated, and the railroad had sold the switch to the owner of the land over which it was laid.</p> <p>2. Railroads — Private Switches — Use for Public Business.</p> <p>Persons who have no property rights in a private switch over another’s land cannot compel the latter to permit the railroad to receive and ship their freight over the switch to the railroad’s own track.</p> <p>3. Same — Sale of Switch — Right of Stranger to Complain.</p> <p>A contract by which a railroad operates, in its capacity as common carrier, a switch over private property, may be abrogated at will by the railroad and the owner of the property, and the switch may be sold to the latter, regardless of the motives of the parties to the contract in so doing; and a stranger to the contract, who is interested in the main- ■ tenance of the switch by the railroad as a carrier, cannot complain of the contract as fraudulent merely because the purchase price was not paid in cash, but promissory notes were given therefor.</p> <p>4. Same — Fraudulent Transactions — Burden of Proof.</p> <p>The burden is on a stranger to a transaction whereby a railroad sold a switch to the owner of the land over which it ran to prove that the transaction was merely a pretended sale.</p> <p>5. Carriers — Duty to Receive Freight — Private Switches.</p> <p>A common carrier cannot be required to receive freight on or along a private switch, but its duty, in that regard is confined and limited to its own depots or shipping and receiving points.</p> <p>6. Easements — Rights of Ingress and Egress — Use of Artificial Appliances.</p> <p>While the owners of cutting-stone rights have the right of ingress and egress for their stone, yet such right does not entitle them to the use of structures and facilities, such as a railroad track, erected by the owner of the servient estate for his own use, unless they acquire such right by private negotiations or by proper condemnation proceedings.</p> <p>7. Same — Use of Another’s Appliances — Absence of Inconvenience.</p> <p>The fact that the owner of cutting-stone rights could use a private side track constructed on the land of the owner of the servient estate without any inconvenience to the latter does not give him any legal or equitable' right to require the latter to afford him such use.</p> <p>8. Injunctions — Proceedings in State Courts — Interference bt Federal-Courts.</p> <p>A decree of the Circuit Court enjoining a party from setting up any' claim to the right to use a railroad switch which the state court had held that he was entitled to use is not an injunction of proceedings in the state-court, in violation of Rev. St. § 720 [U. S. Comp. St. 1901, p. 581], where, since the decision of the state court was made, the railroad had sold the switch to a private owner, at whose instance the injunction was obtained.</p> <p>[Ed. Note. — Federal courts enjoining proceedings in state courts, see notes to Garner v. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p> <p>9. Judgments — Res Adjudicata.</p> <p>A judgment rendered on the merits by a court of competent jurisdiction in any proceeding at law or in equity precludes and bars subsequent litigation between the same parties or their privies on the same cause of action.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1242-1253.]</p> <p>10. Same — Scope—Issues Determined.</p> <p>A judgment is conclusive between the parties and their privies not only as to the issues actually involved and determined, but also as to such issues as might have been raised upon the cause of action set up in the suit in which it was rendered.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1241.]</p> <p>11. Same — After-Occurring Facts.</p> <p>A judgment is conclusive only as to the matters capable of being controverted between the parties at the time and as to the conditions then existing, and cannot operate as an estoppel as to after-occurring facts, not involved in the suit in which the judgment was rendered.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1267.]</p> <p>12. Quieting Title — Removal of Cloud — Decree—Scope.</p> <p>An unfounded claim by an owner of cutting-stone rights to the right to use a side track built by the owner of the land constitutes a cloud on the latter’s title, which he may have removed by a decree quieting the title, and enjoining the claimant from ever again making the claim; but the decree should clearly and explicitly exempt from its operation the right of the claimant to exercise his cutting-stone rights and his right to the use of the surface of the land in all such reasonable ways as may be necessary to make such right effective.</p>

<p>1. Admiralty — Jurisdiction—Maritime Contract.</p> <p>A traffic agreement between a railroad company and the owner of certain steamships, which were to be used in connection with the railroad of the first party as a part of a through line of transportation, by which agreement the parties were to co-operate in the operation of such line and divide the receipts as connecting carriers, as therein specified in detail, is not maritime in its nature, and a court of admiralty is without jurisdiction of a suit for its breach.</p>

<p>1. Monopolies — Action fob Violation of Anti-Trust Act — Pleading.</p> <p>Section 1 of the Sherman anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 fU. S. Comp. St. 1901, p. 3200]), which declares illegal “every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations,” makes a distinction between a contract and a combination or conspiracy in restraint of trade, and a declaration in a suit based on section 7 (26 Stat. 210 [U. S. Comp. St. 1901, p. 3202]) to recover damages resulting to plaintiff from a violation of such provision, which alleges in a single count that defendant entered into a “contract, combination, and conspiracy” in restraint of trade, is bad for duplicity.</p> <p>2. Same.</p> <p>A declaration in an action brought under section 7 of the Sherman, anti-trust act (Act July 2, 1890, e. 647, 26 Stat. 210 [U. S. Comp. St 1901» p. 3202]) to recover damages for a violation of section 1 of the act, construed, and held bad for indefiniteness and uncertainty in describing the alleged combination and conspiracy entered into by defendant and the-acts done which resulted in damage to plaintiff.</p>

On Demurrer to Petition. On the 2d day of March, 1867, Samuel J. Broadwell and wife made a lease of certain real estate in the city of Cincinnati, Ohio, to one William W. Dawson for a term of 99 years, renewable forever; the rentals payable at specified periods during each year. The lessor and the lessee were both citizens of Hamilton county, Ohio, at the time of the execution of said lease, and so resided there until their respective deaths.

<p>In Bankruptcy.</p>

<p>1. Vendor and Purchaser — Contract for Sale oe Real Estate — Failure oe Vendor to Perform — Recovery by Vendee oe Consideration Paid.</p> <p>Where a vendee under an unexecuted contract for the sale of real estate has paid a part of the purchase money, and the vendor fails to complete his engagement, the vendee may disaffirm the contract and bring an action for money had and received.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 973, 982.]</p> <p>2. Same — Ad Diem; Pereormance — Time—When Essential — Disaeeirmance by Vendee.</p> <p>When the vendor is in no default, but, on the contrary, is ready and willing to perform on his part, the vendee cannot recover the consideration paid. But the time fixed for performance by the vendor is deemed of the essence of the contract, so that, if he is not able to perform on that day, the vendee may elect to consider the contract at an end and sue.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 973, 981.]</p> <p>3. Same.</p> <p>Where, therefore, defendant sold plaintiff an option for the purchase of certain real estate, which was to he exercised by a specified date, and contracted to procure a conveyance of the property to plaintiff on that date, free from incumbrance, and plaintiff made a payment down, and agreed to pay a further sum, together with the purchase price of the property, on the delivery of such conveyance, and it was afterwards discovered by the parties that there was a mortgage on the property, which was not due, and, on the day when the option expired, defendant surrendered the same, and took a new one from the owner of the property, by which it was to be conveyed subject to the mortgage, which was to be assumed by the grantee, as part of the purchase price, and such a conveyance was tendered to plaintiff and refused by him, held, that time was of the essence of the contract; that plaintiff was not bound to accept the conveyance offered, but, on the failure of defendant to obtain the conveyance stipulated for, on the day named, he was entitled to rescind the contract, and recover the amount paid thereon, in an action for money had and received.</p> <p>4. Same — Necessity of Tender of Performance.</p> <p>Where one party to an executory contract has placed it out of his power to perform in accordance with its terms, a tender of performance by the other party is not necessary to entitle him to rescind, and recover a payment made thereon, when the time for performance by the other has expired.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, § 1236.]</p> <p>5. Same — Construction—Contingency Not Peovided for.</p> <p>A provision in a contract that a partial payment made thereon shall be returned in a certain contingency does not preclude its recovery by the party making it, on the happening of another contingency, not provided for, which prevents performance of the contract by the other party.</p>

<p>1. Federal Courts — Action Against Executors — Accounting—Jurisdiction.</p> <p>Where the surviving partner of a firm is one of the executors of the estate of his deceased partner, the settlement of which is pending in the probate court of the state, a bill in equity will not lie in the federal Circuit Court to compel an accounting between such executors involving an accounting by the surviving partner of his deceased partner’s interest in the firm, such proceeding being within the jurisdiction of the probate court.</p> <p>2. Same — Diverse Citizenship — Incidental Relief.</p> <p>Complainant, a nonresident distributee of the estate of a deceased partner, the administration of which was pending in the probate court of the state of his decease, filed a bill in the federal Circuit Court to compel the executors of the deceased partner, one of whom was the surviving partner, to account, and prayed judgment directing an account between the two executors other than the surviving partner and such surviving partner, together with an accounting concerning the partnership affairs between such surviving partner and the estate. Held, that the accounting concerning the partnership affairs was the principal object of the bill, and, there being no diversity of citizenship between such executors, and no federal question involved, the court was without jurisdiction.</p> <p>[Ed. Note. — Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. O. A. 249; Mason v. Dullagham, 27 O. C. A. 298.]</p>

<p>1. Federal Courts — State Statutes — Validity— State Decisions.</p> <p>Where a taxpayers’ action was brought in the federal court to determine whether Pa. Act April 14, 1903 (P. E. 1903, p. 175), increasing the salaries of state judges, infringed the state Constitution, and before the determination of a motion to dismiss the bill the state Supreme Court decided that the act was constitutional, such decision was binding on the federal court.</p> <p>[Ed. Note. — State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Same.</p> <p>The Supreme Court of the state having jurisdiction over the subject-matter and parties to the suit in which such question was determined, the validity of such determination could not be reviewed in the federal courts on the ground that the decision was rendered by a single justice as constituting the court, the other justices having refused to take any part by reason of alleged disqualification.</p>

<p>In Bankruptcy.</p>

<p>1. Corporations — Insolvency—Receivers—Effect.</p> <p>Neither the pendency of a creditors’ suit against an insolvent corporation, nor the appointment of a receiver of its assets, nor a decree for the sale thereof affects corporate existence, or prevents the corporation from acting as such and incurring indebtedness.</p> <p>[Ed. Note. — Eor cases in point, see vol. 12, Cent. Dig. Corporations, § 2388.]</p> <p>2. Same — Creditors’ Suit — Pendency—Federal Courts — Lis Pendens.</p> <p>A creditors’ suit pending against an insolvent corporation in the federal court is constructive notice of lis pendens with respect to all property of the corporation in the district and division.</p> <p>3. Same — Creditors Pendente Lite — Rights.</p> <p>Where creditors of an insolvent corporation became such pending a creditors’ suit in the federal courts to subject the corporation’s assets to the payment of its debts, and were enjoined from prosecuting their legal remedies in the state courts, they were entitled to intervene in the proceedings in the federal court, and to participate only in such assets as remained after payment of the claims of creditors existing at the time the creditors’ bill was filed.</p>

<p>1. Bankruptcy — Proceedings—Abatement—Death op Bankrupt.</p> <p>Proceedings in bankruptcy do not abate by the death of the alleged bankrupt after a petition is filed, and before adjudication.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 134.]</p> <p>2. Same — Bankrupt Act — Instruction—Receivers.</p> <p>Bankr. Act July 1, 1898, c. 541, § 3a, subd. 4, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], as amended by Act Feb. 5,1903, c. 487,32 Stat. 797 [Supp. U. S. Comp. St. 1903, p. 410], providing that an act of bankruptcy takes place when, because of insolvency, a receiver or trustee has been put in charge of a person’s property under the laws of the state, is not limited to cases in which a receiver or trustee has been appointed under the laws of the state providing for administration of insolvents’ estates.</p> <p>3. Same — Estoppel.</p> <p>Where a judgment creditor of an alleged bankrupt filed a creditors’ bill, in which he obtained the appointment of a receiver for the bankrupt’s property because of his alleged insolvency, among other grounds, the creditor was estopped from denying that the bankrupt was insolvent at the time such receiver was appointed in subsequent involuntary bankruptcy proceedings instituted by other creditors.</p> <p>4. Same — Insolvency.</p> <p>The appointment of a receiver in a judgment creditor’s suit against an alleged bankrupt in a state court, because of the idebtor’s insolvency, among other things, constituted an act of bankruptcy, within Bankr. Act July 1, 1898, c. 541, § 3a, subd. 4, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [Supp. U. S. Comp. St. 1903, p. 410].</p>

<p>1. New Trial — Grounds—Excessive Yerdict.</p> <p>A court may modify a verdict in favor of the plaintiff, in an action for a personal injury, as excessive, where it appears from evidence produced in support of the motion for a new trial, with respect to the present condition of plaintiff’s health, that recovery from the effects of the injury has been more rapid and complete than was anticipated by the physicians on whose testimony the verdict was based.</p>

<p>1. Corporations — Stock Subscriptions — Fraud—Equitable Relief — Rescission.</p> <p>Where a stock subscription was obtained by fraud, the subscriber was entitled to maintain a bill in equity to annul the same without alleging or proving that he had sustained pecuniary loss by reason of the fraud.</p>

<p>Motion to Show Cause Why the Service of Subpoena should not be Set Aside.</p>

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

Appeal and Cross-Appeal from the Circuit Court of the United. States for the Northern Division of the Northern District of Illinois. The appellant receiver brought this suit against the appellees named in the title of cause 1,054 to avoid certain alleged fraudulent transfers of stock and to recover from the transferror, Charles P. Dewey,' an assessment of $86 a share on 105 shares in the defunct bank.

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

<p>1. Shipping — Construction op Bill op Lading — Duty and Bisk op Towage.</p> <p>A provision in a bill of lading for a cargo of coal to be delivered at Portland, Me., wbicb required the consignee “to tow vessel in and out of Back Bay free,” is not a contract to pay for the towage merely, but to provide the same.</p> <p>2. Towage — Duties and Liability op Tug.</p> <p>A tug is bound to exercise proper diligence In ascertaining the condition of the channels and other waters where she assumes to tow vessels, and, if it involves any special hazard, in making it known to the tow. If she performs such duties, and damage results to the tow, which could not have been prevented by the exercise of reasonable care and skill in the act of towing, she is not liable therefor; but, if she fails in such duties, she is liable for the consequences, whatever amount of care she may use in the act of towing, and she is also liable if, having performed such duties, damage results from her negligence in the immediate act of towing, which might have been avoided by reasonable care, notwithstanding the hazards.</p> <p>3. Same — Negligence oe Tugs.</p> <p>Tugs employed by the consignee of the cargo, who had contracted to perform the towage, undertook to tow a schooner heavily laden with eoal through a channel and over a bar, where the water at the then state of the tide lacked some two feet of being sufficient for her draft at the stern. Having grounded forward, instead of drawing her off astern, as suggested by her master, they attempted to jump her over, which attempt was unsuccessfully renewed on two succeeding days, in consequence of which she was strained and injured, and it became necessary to lighten her cargo. The master of the schooner was unfamiliar with the channel, but it was well known to the captain in charge of the tugs, who knew the depth of water on the bar and the draft of the schooner. Held, that the acts of the tugs in persisting in their attempts to pull the schooner over the bar after she grounded were negligent, and rendered the consignee, for whom they were acting, liable for the resulting injury.</p>

<p>1. Collision — Sinking ok Vessel — Measure ok Damages.</p> <p>The damages recoverable by the owner of a vessel sunk in collision, when she is a total loss, is her value and interest; and to this may be added the necessary expense of raising her, wnpn that is necessary to determine whether or not she can be repaired advantageously; and, when she is sunk in a place where she is liable to be an obstruction to navigation, the expense of removing her may be added. If she was not a total loss, the measure of damages is the reasonable expense of raising and repairing her to an extent sufficient to put her in as good condition as she was before the collision; the burden being on the owner, in any case, to prove the extent of his loss.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 283, 287.]</p> <p>2. Same.</p> <p>The owner of a vessel sunk in collision had her raised and repaired, without any survey, or apparently in any way ascertaining whether she was worth the expense or the reasonable cost of putting her in as good condition as before the collision. Held, that evidence of the amount so expended did not furnish a measure of the damages recoverable from the offending vessel, and, it being shown that her value when she was sunk was far less than the amount so expended, that the recovery should be limited tp such value, with interest.</p>

On November 6, 1903, certain creditors filed in the court below a petition for adjudication of bankruptcy against Kolin, and upon that day a receiver of the estate was appointed, who thereupon took possession of the property of the bankrupt.

The receiver appointed by the District Court upon the filing of a petition in involuntary bankruptcy against Flanders, a wholesale leather merchant at the city of Chicago, took possession of the bankrupt’s property, including the leather which is the subject of this controversy.

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

<p>In Admiralty. Consolidated libels. On exceptions to commissioner’s report.</p>

<p>1. Bankruptcy — Form op Proceedings — Pendency—Discharge—Bar.</p> <p>That a proceeding against the bankrupt under Bankr. Act March 2, 1867, c. 176, 14 Stat. 517, was pending and undisposed of at the time he applied for a discharge in new proceedings instituted under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], was no bar to such discharge from a debt proved in the former proceedings, which had been kept alive by judgment, etc.</p>

<p>1. Seamen — Master of Tramp Steamship — Right to Discharge.</p> <p>The master of a .steamship seeking cargoes wherever they can be obtained, who is not employed for any particular voyage or for any stated time, may be discharged by the owners at any time, without assigning any cause and without incurring liability for damages, unless they have surrendered that right by the contract of employment.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 250.]</p> <p>2. Same — Wages—Discharge in Foreign Port.</p> <p>Where, by his contract of employment, the master of a steamship was to be returned to the port of shipment at the termination of his employment, and he was discharged at a foreign port, he is entitled to recover wages until his arrival at the port of employment, and the expense of his passage there.</p> <p>3. Same — Expense of Sickness.</p> <p>A seaman is not entitled to recover from the owner of the vessel the expenses incident to his sickness, occurring after his rightful discharge in a foreign port, although he may, under his contract, be entitled to wages until his arrival at the port of his employment.</p> <p>4. Same — Alleged Negligence of Master — Evidence Considered.</p> <p>Evidence considered, and held insufficient to sustain allegations of negligence or incompetence on the part of a master in connection with the grounding of his vessel in a strange harbor, such as to entitle the owners to recoup the damages sustained by them against his claim for wages.</p>

<p>1. Attobneys — Substitution—Conditions.</p> <p>Where plaintiff’s attorneys were employed under a contract for fees-contingent on their ultimate success in the litigation, it was within the discretion of the court to make an order granting plaintiff a substitution »f attorneys on a disagreement with them, conditional on plaintiff’s payment of a reasonable compensation for the services already rendered and for their disbursements.</p> <p>[Ed. Note. — For cases in point, see vol. 5, Cent. Dig. Attorney and Client, § 114.]</p>

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

This cause comes here on appeal from a decree of the United States Circuit Court for the Southern District of New York, adjudicating the validity and infringement of claims 2, 4, 6,10, and 12 of reissued patent No. 11,250, granted June 28,1892, and of claim 1 of patent No.'470,340, dated March 8, 1892, both granted to Edward Weston, and owned by complainant.

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

<p>1. Patents — Action at Law for Infringement — Issues and Proof as to Limitation.</p> <p>Act March 3, 1897, amendatory of Rev. St. § 4921 (29 Stat. 694, c. 391 [U. S. Comp. St. 1901, p. 3395]), ahd which provides that, in any suit or action for infringement of a patent, there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill or the issuing of the writ in such suit or action, applies not only to suits in equity under said section 4921, but also to actions on the case to recover damages for infringement, brought under section 4919 [U. S. Comp. St. 1901, p. 3394], The amendment is not a statute of limitation, but a qualification upon the right of recovery, and need not, therefore, be specially pleaded by defendant in an action under section 4919; but, in view of the fact that the condition is imposed by a later enactment, and is not an exception in the original statute giving the remedy, it is a matter of defense, and the general rule in trespass applies — that the time is immaterial — and plaintiff (by force of Code Va. 1904, § 3245) is not required to allege the time of infringement, nor to prove it if stated under a videlicet; but defendant, if he seeks to avoid recovery on the ground that the infringements proved by plaintiff were committed more than six years before suit, has the burden of proving such fact, which he may do under the general issue.</p>

<p>1. Patents — Infringement—Oil Burners.</p> <p>Tbe question of infringement of the Jeavons patent No. 475,401, for an oil burner, by the device of a subsequent patent, held too doubtful on the evidence to warrant the granting of a preliminary injunction.</p>

<p>On Demurrers to Indictments.</p>

<p>1. Ejectment — Possession—Ouster.</p> <p>As a general rule, ejectment, being a possessory action, cannot be maintained for land of which plaintiff is in possession, but it must be affirmatively proved that there has been a disseisin of the plaintiff, and a natural ouster as well as a wrongful possession by defendant.</p> <p>[Ed. Note. — For cases in point, see v'ol. 17, Cent. Dig. Ejectment, §§ 65-73.]</p> <p>2. Mines — Claims—Relocation—Forfeiture.</p> <p>A relocator of a mining claim is not a discoverer of the mineral contained therein, but an appropriator thereof, and cannot hold the ground except on proof that the original locator had abandoned or forfeited his right by failure to comply with the mining laws.</p> <p>3. Same — Statutes — Compliance — Notice of Location — Description of Claim.</p> <p>Where a notice of location of a lode mining claim contained a substantial, though not a literal, compliance with Comp. Laws Nev. 1900, § 208, requiring such notices to specify, among other things, the width of the location on each side of the center of the vein, etc., it was sufficient.</p> <p>4. Same — United States Statutes — Local Regulations.</p> <p>Rev. St. § 2324 [U. S. Comp. St. 1901, p. 1426], providing that all records of mines, as hereafter made, shall contain the name or names of the locators, the date of location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim, and providing that miners of each mining district may make regulations, not in conflict with the laws of the United States or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, and amount of work necessary to hold possession of a mining claim, etc., necessarily implies that provisions with reference to record of notice of location of such claims would be required either by the rules or regulations of miners or by the Legislature of the state.</p> <p>5. Same — Statutes—Mandatory and Directory Provisions.</p> <p>Oomp. Laws Nev. 1900, § 210, providing for the location of lode mining claims, declares that within 90 days of the date of posting the location notice of the claim the locator shall record his claim with the mining district recorder and the county recorder of the mining district or county in which such claim is situated, by a location certificate, etc. Held that, the statute not providing for a forfeiture for failure to record within the time specified, such failure was insufficient to work a forfeiture of the locator’s rights.</p> <p>6. Same — Possession—Re-entry.</p> <p>Where an original locator of a lode mining claim performed the necessary assessment work on the claim for the previous year, the fact that he was absent from the ground, and that during such absence some of the boundary stakes had fallen down, and that others had made a relocation of the claim, did not deprive him of the right to re-enter to do the annual assessment work for the succeeding year; his prior location not having been terminated by abandonment or forfeiture.</p>

In Bankruptcy. On petition of W. C. Allen for review of a ruling of the referee of August 10, 1904, refusing to allow said bankrupt’s claim of homestead exemption.

<p>1. Bankruptcy — Conveyance with Intent to Defraud — Purchasers in Good Faith.</p> <p>It is incumbent on a purchaser of property from one who is in fact insolvent, and subject to be adjudged a bankrupt, to exercise ordinary prudence and diligence to ascertain whether or not the seller can make a transfer of the property that will not be in violation of the bankruptcy law; and where the sale was in fact made with intent to hinder, delay, or defraud his creditors, and within four months prior to his bankruptcy, the title of the purchaser can only be sustained as against creditors of the bankrupt under Bankr. Act July 1, 1898, e. 541, § 67e, 30 Stat. 564 [ü. S. Comp. St. 1901, p. 3449], by showing that such diligence was exercised, and that the purchase was in good faith, and for a present fair consideration.</p> <p>2. Same.</p> <p>A bankrupt was a retail merchant in a small town, practically his entire property consisting of his stock of goods. Within four months prior to his bankruptcy, and when insolvent, with intent to hinder and delay certain of his creditors, he sold and transferred his entire stock to a firm whose members resided in the same town, receiving therefor as the principal consideration a farm, which, at his request, was conveyed to his wife. As a further consideration, the purchasers paid a debt owing by him to a local bank, of which two of the purchasers were stockholders and one was president. Such bank also held a number of collections against the bankrupt, which were unpaid. The purchasers made no inquiry as to his financial condition or his purpose in selling, and the consideration paid was less than the fair value of the stock. Held, that they were not protected as purchasers in good faith, but the transfer was void under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat 564 [U. S. Comp. St 1901, p. 3449].</p>

In Equity. The ease No. 2,406 will be first considered. The complainant is a corporation organized under the laws of Iowa as a savings bank, and located at Des Moines. The defendant is the county treasurer. The bill alleges and the evidence shows that the assessments made by the assessor were for the years as follows: For the year 1898, $62,320; for the year 1899, $13,250; for the year 1900, $40,000; for the year 1901, $56,297.

<p>1. Collision — Steam Vessels Cbossing — Change of Coubse by Privileged-Vessel.</p> <p>Tlie steamship Nacoochee and the ferry boats Princeton and Susqehanna were all passing down the North river in the daytime, on intersecting courses, the Nacoochee in the center and the Susquehanna on the west, thus being the privileged vessel. By agreement, understood by all, the Princeton crossed ahead of the Nacoochee; but, having no agreement with the Susquehanna, ported to pass under her stern, when the latter swung to port to pass under the stern of the Nacoochee, in accordance with an agreement between them not known to the Princeton. This movement was not made until the Princeton was within 400 or 500 feet, and to avoid collision she went astern, and was struck by the Nacoochee. Helé, that the Susquehanna was in fault for changing her course in violation of the starboard hand rule without agreement with or notice to the Princeton, and that such fault was the proximate cause of the collision, the Princeton having no other course open to her after the movement was made than to back as she did; that the Princeton was not in fault, such as to relieve the Susquehanna from full liability, her fault, if any, in failing to avoid the Nacoochee having been committed when in extremis, through the prior fault of the Susquehanna.</p>

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

<p>In Admiralty. Suit to recover for shortage of cargo and damage to other portions.</p>

In Equity. On motion by complainants for leave to dismiss the bill and objections thereto of A. N. Bort, cross-complainant.

<p>Judgment on a Case Stated.</p>

On Hearing of Application for a Discharge. The following opinion of Special Commissioner Dexter states the case: The issues on specifications of the grounds of objection to the bankrupt’s discharge having been referred to me as special commissioner to ascertain and report the facts, and the respective counsel for the bankrupt and the objecting creditors having appeared before me on due notice, and the proofs offered by them respectively having been heard and considered, and…

In Admiralty. Cross-libels to recover damages for injuries to the Multnomah, caused by colliding with the French bark Amiral Cecille in Tacoma Harbor in a dense fog; and for the loss to the owner of the bark from her detention by the marshal pursuant to a writ of attachment in this suit. Decision on the merits in favor of the libelant for half damages and costs. Cross-libel dismissed, with costs.

<p>On Application for Review of a Decision of the Board of General Appraisers.</p> <p>This case involves the question of the sufficiency of a protest against the assessment of duty on imported merchandise, and requires a construction of section 14, Customs Administrative Act June 10, 1890, c. 407, 36 Stat. 136 [U. S. Comp. St. 1901, p. 1933], which provides that a protest against the assessment of duty by a collector of customs must set forth “distinctly and specifically * * * the reasons for” the importer’s obj ections to 'the assessment.</p> <p>This is an appeal by the Solvay Process Company for a review of the decision of the Board of United States General Appraisers imposing a duty of 35 per centum ad valorem, under Tariff Act July 24, 1897, e. 11, § 1, par. 97, Schedule B, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], upon fire brick over 10 pounds in weight, designed for linings to retort coal ovens. ■ This duty was assessed, ¿nd the Board of General Appraisers affirmed the action of the collector at Syracuse, N. Y., in imposing this rate of duty, notwithstanding the decision of the Circuit Court, Southern District of New York, in Wing et al. v. U. S., decided December 10, 1902, and reported 119 Fed. 479, and from which decision the United States did not appeal. •</p>

<p>In Bankruptcy.</p>

<p>1. Malicious Prosecution — Acquittal—Evidence—Compromise.</p> <p>In an action for malicious prosecution, evidence that the direction of plaintiff’s acquittal in the prosecution was the result of a compromise in the disposition of a case against plaintiff and certain others, not tending to contradict the record, was admissible as bearing on the question of probable cause.</p> <p>2. Same — Prima Facie Evidence.</p> <p>Where, in an action for malicious prosecution, there was evidence that plaintiff’s acquittal, which was directed by the court, was the result of a compromise in a prosecution against plaintiff and others, such acquittal was not conclusive of plaintiff’s innocence or of want of probable cause.</p> <p>3. Same — Character—Evidence.</p> <p>In an action for malicious prosecution, plaintiff was not entitled to introduce evidence of his good character before his character had been attacked.</p> <p>4. Same — Direction of Verdict.</p> <p>Where, in an action for malicious prosecution, the facts as proved were sufficient to rebut the presumption of want of probable cause arising from plaintiff’s acquittal, the court would have been warranted in directing a verdict for defendant.</p>

<p>Petition for Review.</p>

<p>1. Master and Servant — Injury oe Servant — Negligence of Fellow Servant.</p> <p>The foreman of a gang of workmen employed by defendant, of which plaintiff was one, directed them to remove a pile of iron braces, weighing 80 or 90 pounds each. The piles were about five feet high, and unstable. Instead of acting on the suggestion of some of the men, and pushing the pile over, taking the braces from the ground, the foreman ordered them taken from the top of the pile, which fell during the work, and plaintiff was injured. Held that, while the foreman was negligent, it was not negligence in the performance of the master’s duty to furnish the men a safe place to work, but in the performance of his own duty to direct the work to be done in a proper and safe manner, as to which he and plaintiff were fellow servants, and for which negligence defendant was not responsible to plaintiff.</p> <p>[Ed. Note. — Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p>

<p>1. Contract — Action to Enforce — Sufficiency of Affidavit of Defense.</p> <p>An affidavit of defense construed, and held insufficient, as admitting facts showing that the original contract between the parties was modified by a supplementary agreement set up by plaintiff, and upon the validity of which his right of recovery depended.</p>

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

<p>In Admiralty. On motion to set aside order.</p>

<p>1. Collision — Violation of Rules — Conditions Justifying Tows in Passing to the Left.</p> <p>The passing of two tugs with large tows on hawsers starboard to starboard. when meeting in the Hudson river below Poughkeepsie bridge, held not a violation of article 18, rule 1, of the statute governing river navigation (Act June 7, 1897, c. 4, 30 Stat. 100 [TJ. S. Comp. St. 1901, p. 2881]), it being shown that such had been the custom since the bridge was built, and was necessary to enable the up-bound tow to properly approach the bridge to pass through the center span safely.</p> <p>2. Same — Tows—Inevitable Accident.</p> <p>A collision between vessels forming a part of two large and long tows when passing each other in Hudson river held not due to a violation oí the navigation rules by the tugs in passing starboard to starboard, nor to any fault of the tugs, but to inevitable accident, the tows having been driven together by a sudden and severe windstorm when they were passing at a proper and usually safe distance.</p>

In this case it is agreed that the records in the internal revenue office show the facts to be as follows: (1) E. B. Cole was a distiller of spirits from fruit and during the season of 1900, from August 1st to November 15th, reported on forms 15 to have distilled 18,248 gallons of apple pomace.

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

<p>On Application for Review of a Decision of the Board of General Appraisers.</p> <p>This case relates to paper bags imported at the port of New York by Adolf Kraut, which were elaborately printed with advertising matter relating to the goods intended to be packed and sold In the bags. They were classified as manufactures of paper, under paragraph 407, Tariff Act July 24, 1897, c. 11, § 1, Schedule M, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], and were claimed by the importer to be dutiable as “printed matter,” under paragraph 403 of said act, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673]. This contention was overruled by the Board of General Appraisers. (G. A. 5,606, T. D. 25,087.) The opinion of the board reads in part as follows:</p> <p>Fischer, General Appraiser. The claim that paper bags upon which there appears printed matter are dutiable as printed matter under the provisions of paragraph 403 was decided by this board adversely to the importer in an unpublished decision filed June 26, 1902, in the matter of protest 78,671-F of Adolf Kraut. The board in that ease said: “The fact that the bags have printed matter thereon will not make them dutiable under paragraph 403. The articles are paper bags, and have become by a process of manufacture a distinct article for use as such, and the printing thereon is merely incidental thereto, and is not a controlling feature.” It may be observed that cartons and boxes made of paper frequently have on the outside some printing to indicate the character, quantity, or quality of the merchandise packed .and sold therein, yet it cannot be said that those articles are properly dutiable as printed matter; and these bags are in this particular in precisely the same category. The board decision referred to above was affirmed, without opinion, by the Circuit Court for the Southern District of New York, December 17, 1903, in the case of Kraut v. United States, 130 Fed. 392.</p>

<p>1. Shipping — Liability of Scow for Loss of Cargo of Stone — Lying in Exposed Position.</p> <p>The owner of a scow chartered by the day, with a man in charge, is liable to the charterer for loss of her cargo of stone by her careening while she lay in an exposed position at the end of a pier where she was left by a tug, through the neglect of her master to haul her into the slip, where she would have been protected, which he could have done without difficulty.</p>

<p>1. Trusts — Stock—Issuance—Equitable Liens.</p> <p>Where defendant held stock in trust for M., which was subject to defendant’s equitable claim for services rendered in executing the trust, and complainant’s only claim to certain of such stock was through M., complainant could not maintain a bill to compel defendant to transfer the stock to him without offering to satisfy defendant’s claim thereon.</p>

On September 1, 1902, J. A. Larsen and others, owners of the Norwegian ship Hercules, instituted a common-law action against the S. P. Shotter Company in the city court of Savannah, Ga., to recover $5,000 alleged damages occasioned by the refusal of the S. P. Shotter Company to load the Hercules at the port of Savannah between the 3d and 30th of December, 1901; the claim being that the said ship was ready for loading under charter party on said dates.

The plaintiff in error sued in assumpsit to recover the value of certain coal consigned to the defendant, and lost while in the defendant’s possession; also to recover the balance due upon open account, and for the proceeds of the sale of certain other coal consigned and not accounted for. The plaintiff in error, a corporation of the state of West Virginia, shipped coal, upon consignment, to the defendant in error at Ashland, Wis.

On July 21, 1890, the United States of America filed its- bill of complaint in the Circuit Court of the United States for the District of Minnesota against the Northern Pacific Railroad Company, the Northwestern Telegraph Company, and the Western Union Telegraph Company, the averments of which were substantially as follows: The Northern Pacific Railroad Company was incorporated by an act of Congress approved July 2, 1864 (13 Stat. 365, c. 217), for the purpose of building…

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

This is a suit in equity by the Western German Bank, a corporation under the laws of the state of Ohio, against the First National Bank of Florida, a corporation under the laws of the United States, having its place of business in Jacksonville, Fla., and Joseph W. Norvell, receiver of the latter bank. The demurrer having been sustained to the original bill, the complainant amended the bill, and a demurrer was interposed to the amended bill, which the court sustained.

<p>1. Shipping — Rights op Mortgagee — Freights.</p> <p>The owners and mortgagors of a ship, who are allowed to remain in possession • by the mortgagee, are at liberty in the meantime to make contracts for her employment; but on taking possession the mortgagee takes the right to all the freight which is then accruing under such contracts, but not to freights which have been received by the mortgagor, although for the voyage then current.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 105.]</p> <p>2. Same — Advance Payments on Freight — Authority op Mastee.</p> <p>The owners of a steamship, who had given a mortgage thereon, but who remained in possession, chartered her for a voyage; the charter party providing for advances by the charterers to the master at different ports, not exceeding a stated amount, to be deducted on final settlement of freights, and that the balance of freight money should be paid on unloading and right delivery of cargo. Such advances were made, and also additional advances, for which the master gave receipts, indorsed on the charter party, stating that the money was received as advance freight. On reaching the port of delivery, the mortgagee took possession of the vessel. Held, that, while it was competent for the parties to the charter by agreement to enlarge the provision for advances to be applied on the freight, the master, as such, had no authority to change the provisions of the charter party, and that in the absence of proof that the additional advances were required by the necessities of the ship, or that the master’s action was authorized or ratified by the owners before possession was taken by the mortgagee, the latter was entitled to recover all the freight due by the terms of the charter.</p> <p>3. Admiralty — Rehearing—Grounds.</p> <p>A rehearing in admiralty cannot be granted to allow a party, after an adverse decision, to introduce further evidence, which was fully known to such party, and might have been introduced on the original hearing, but was not, because of an error of judgment on the part of counsel as to its materiality.</p>

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

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

This cause comes here upon appeal from a decree of the Circuit Court, District of Connecticut, sustaining United States patent No. 468,077, February 2, 1892, and finding infringement of its first and second (¿aims. The opinion of the Circuit Court is reported in 131 Fed. 273.

<p>Petition for Revision of Proceedings of the District Court of the United States for the District of New Jersey.</p>

<p>1. Reference — Hearing—Review of Evidence.</p> <p>Where, on exceptions to a master’s report, the evidence, other than certain exhibits, was not before the court, the finding of fact by the master would be taken as true.</p> <p>2. Fraudulent Conveyance — Evidence.</p> <p>On an intervening petition by a receiver of an insolvent Massachusetts corporation against the receiver of a Maine corporation to set aside an alleged fraudulent conveyance by the Massachusetts company to the Maine company, where it appeared that the Massachusetts company conveyed to the Maine company merchandise to the amount of about $136,000, and realized in cash from the Maine company, and in cancellation of the liabilities of the Massachusetts company, $186,000, there was no evidence of any fraudulent intent towards . creditors of the Massachusetts company, and where all the questionable acts of the person in control of the Massachusetts company, and from which a fraudulent intent could be inferred, were directed towards satisfying the claims of the Massachusetts company, to the injury sometimes of the Maine company, it was insufficient to show the intent to hinder, delay, and defraud tie creditors of the Massachusetts company.</p>

<p>1. Shipping — Proceedings for Limitation of Liability — Right to Maintain.</p> <p>Tbe claim of a passenger on a steam ferryboat for damages growing out of a collision is one for a maritime tort within the jurisdiction of a court of admiralty, and against which the owner of the vessel is entitled to a limitation of liability, although such owner is a railroad company operating the vessel in connection with its road, and the passenger was being carried on a ticket which entitled him to both land and water carriage.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 644.</p> <p>Limitation of shipowners’ liability, see note to The Longfellow, 45 C. C. A. 387.] •</p> <p>2. Same.</p> <p>The right of fhe owner of a vessel to a limitation of liability for damages resulting from a collision on a surrender of such vessel is not affected by the fact that it was also the owner of the other vessel concerned in the collision, which is not surrendered, even though such vessel was partly in fault for the collision, where such ownership is not disclosed in the petition, since in such case the liability of the petitioner as owner of the vessel surrendered is all that is before the court for consideration or adjudication, and the right of damage claimants to proceed against the other vessel or against petitioner as its owner will not be affected by the proceeding.</p>

<p>1. Costs — Requiring Security from Nonresident — Suit by Receiver of National Bank.</p> <p>On motion therefor, defendants, sued by a nonresident receiver of a national bank, are entitled to require plaintiff to give security for costs, where such security would be required by the laws of the state under the conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), unless plaintiff by a certificate filed brings himself within the provisions of Rev. St. § 1001 [U. S. Comp. St. 1901, p. 718].</p> <p>2. Interest — Judgments on Written Obligations — Legal Rate.</p> <p>Under the law of Virginia, where an obligation bears interest at a specified rate a judgment thereon should be for the principal and interest thereon at the agreed rate until payment. Where no rate is specified, the judgment should be for interest at the legal rate in the state where the obligation is to be performed, which, in the absence of proof, will be presumed to be the same as in the state where the action is brought.</p> <p>3. Notes — Protest—Evidence of Notice to Indorser.</p> <p>Under the law merchant it is not a part of a notary’s official duty in protesting a note to give notice of dishonor to an indorser, and his certificate that he sent such notice is not even prima facie evidence of such fact in the absence of a statute making it so, or proof that the notary is not alive and capable of testifying.</p> <p>4. Abatement — Suit Prematurely Brought — Notice of Motion for Judgment under Virginia Statute.</p> <p>A notice of motion for judgment on a note under Code Va. 1887, § 3211 [Ann. Code 1904, p. 1686], which authorizes judgment on a contract for money to be obtained on motion after 15 days’ notice to the defendant, if served before the liability of defendant has matured, is subject to a plea in abatement, the same as a declaration prematurely filed would be.</p> <p>5. Same — Matter Properly Presented by Plea.</p> <p>Matter in abatement dehors the record is properly presented by a plea in abatement.</p> <p>6. Notes — Joint Action against Maker and Indorser — Defenses.</p> <p>Where one of two joint defendants alone pleads matter which is not merely personal to such defendant, but which goes to the right to sue, judgment cannot be rendered against the other defendant, if the plea be well taken. Code Va. 1904, § 3395, does not here apply.</p> <p>7. Jurisdiction of Federal Courts — Action by Receiver .of National Bank.</p> <p>An action by a receiver of a national bank to collect a debt due the bank is one brought under authority of Rev. St. § 5234 [U. S. Comp. St. 1901, p. 3507], and is within the jurisdiction of a federal court, regardless of the amount in controversy.</p> <p>[Ed. Note. — Actions by and against receivers and agents of national banks, see note to McCartney v. Earle, 53 C. C. A. 398.]</p>

<p>In Admiralty. Suits against tug for loss of tows.</p>

<p>1. Shipping — Dumping op Cargo by Barge — Unseaworthiness.</p> <p>A barge held liable in damages for dumping a large part of her cargo of copper ore which she was discharging from a steamship, and for injury to the ship, on the ground of unseaworthiness, due to weakness from long use in the same business, which caused her to careen after she had taken on her load, although the weather was calm and the water smooth.</p> <p>2. Same — Damages Adjudged against Barge — Liability op Charterer to Owner.</p> <p>The owner of a barge, who chartered her to a lighterage company, has no recourse against the charterer to recover damages adjudged against her because of her unseaworthiness for the use to which she was put, where he knew of such use when the charter was made, and the charterer is not otherwise shown to have been negligent.</p>

<p>In Admiralty. Suit by injured seaman for damages, wages, and expense of cure.</p>

<p>1. Bankruptcy — Discharge—False Oath in Proceedings.</p> <p>False testimony given by a bankrupt on his examination in respect to his ownership of, or interest in, property conveyed to his wife some years before the bankruptcy proceedings, constitutes the making of a false oath in relation to a proceeding in bankruptcy, within the meaning of Bankr. Act July 1, 1898, c. 541, § 29b (2), 30 Stat. 554 [TJ. S. Comp. St. 1901, p. 3433], which subjects him to punishment by imprisonment if the testimony was knowingly and fraudulently false, and requires a denial of his discharge; the matter being a legitimate subject of inquiry.</p> <p>2. Same — Right to Oppose Discharge — Parties in Interest.</p> <p>One who has a suit pending against a bankrupt for the recovery of a debt which is contested is a party in interest, and entitled to contest the bankrupt’s right to a discharge, although his claim has not been proved in the bankruptcy proceedings.</p>

<p>Courts — Jurisdiction—Comity.</p> <p>Where it was contended, that a trust created by a will terminated on the death of testator’s son-in-law, who was the trustee, and that the beneficiaries thereafter possessed an absolute interest in the trust estate, but after the trustee’s death the Chancellor, having jurisdiction of testator’s estate, appointed complainant as trustee under the will, and he sued the former trustee’s executor in the federal courts for an accounting, such suit would be held open pending proceedings before such Chancellor to construe the will and determine whether plaintiff’s appointment had not been inadvertently made.</p>

This is a suit to quiet the title to four mining claims in the West Mountains Mining District, Utah, and to bodies of ore beneath their surfaces.

Petitions to Review and Revise an Order of the District Court of the United States for the Northern District of Illinois, in Bankruptcy. Held: are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.

This is an appeal in admiralty from a decree of the district court dismissing a libel sued out by the United States against the Gasoline Boat Ben R., its tackle, furniture, etc. The proceeding was brought for the purpose of enforcing against the boat two penalties, of $500 each, alleged to have been incurred for navigating without inspection and without a licensed engineer.

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

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

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

<p>1. Amendment of Pleadings — Discretion of Court.</p> <p>The allowance of amendments to pleadings is a matter purely discretionary with the trial court, and its action is not reviewable unless there has been a gross abuse of discretion. The allowance of amendments to a declaration which do not change the cause of action, or which affect only the mode of proving damages, is clearly within the court’s discretion.</p> <p>2. Evidence — Varying Written Contract by Paro5>-Application of Rule.</p> <p>In an action against a partnership on a writing evidencing a sale of goods by plaintiff, and containing all the essentials of a contract, by specifying the kind and quantity of goods bought and the price to be paid, the fact that it was signed only with the surname of a person as buyer, and that parol evidence was necessary and was given by plaintiff to identity such person as a partner in defendant firm, and to show that he contracted for and on its behalf, does not change its.character as a written contract, or render admissible parol evidence on the part of defendant to vary or contradict its terms by adding a condition not therein expressed.</p> <p>3. Sale — Construction of Contract.</p> <p>A provision in a written contract for the sale and purchase of a stated quantity of goods, “deliveries to be made as wanted until further agreement.” does not give the purchaser the right to decline to take the goods bought, no matter when tendered, but he is bound to accept them within a reasonable time; and, in an action for breach of the contract by his refusal to take the goods, what1 constituted a reasonable time is a question for the jury.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, §§ 356, 447.]</p> <p>Acheson, Circuit Judge, dissenting.</p>

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

These were two suits in admiralty, involving liability for demurrage in the case of two steamships — the Planet Neptune and the Meridian— each laden with coal. The opinion of the District Court in the case of The Planet Neptune, written by Dowell, District Judge, is as follows: This is a libel for demurrage. The charter party guarantied discharge at the rate of 1,000 tons a day if the vessel could deliver at that rate.

<p>1. Shipping — Discharge—Injuries to Servant — Defective Cable — Negligence — Inspection.</p> <p>Plaintiff, a stevedore, was injured by the pulling out of the splicing of a cable used in unloading buckets of ore weighing about 2,000 pounds. The cable, of foreign manufacture, had been received from a sister ship, and was capable of lifting about 10 tons. Before the unloading was begun, the day prior to the accident, only a visual inspection of the cable was made, and it appeared that, if the tarred twine serving covering the splice had been removed, the defectiveness of the splice would have been discovered. Held, that the ship was guilty of negligence in failing to properly inspect.</p> <p>• [Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 349-351.]</p> <p>2. Same — Contributory Negligence.</p> <p>Evidence that the splice was not smooth, and that libelant noticed the ends of wires protruding some two or three hours before the accident, and that he failed to report the same because he thought it was spliced so that it would not come apart, was insufficient to charge him with contributory negligence.</p> <p>Dallas, Circuit Judge, dissenting.</p>

<p>Insurance — Contract—Breach—Rescission—Election.</p> <p>An insurance society, having issued to plaintiff a certificate for $5,000, passed a by-law reducing insurance certificates of $5,000 to $2,000, and thereafter refused to consider plaintiff’s certificate in force for more than that sum. Plaintiff protested against such attempted reduction, offered to pay assessments on the full face of his certificate, and thereafter paid assessments based on the reduced amount under protest for a period of Awo years and five months, when he notified defendant of his intention to cancel the insurance, and demanded repayment of assessments paid. Held that, though plaintiff was entitled to such relief on defendant’s breach of its contract in the first instance, he, having elected to treat the contract as continuing, notwithstanding defendant’s breach, by payment of assessments during such time, was not entitled to make a second election to rescind.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 457-464, 1888.</p> <p>Mutual benefit insurance contracts as affected by subsequent provisions and amendments of charter, constitution or by-laws, see note to Supreme Council A. L. H. v. Champe, 63 C. C. A. 285.]</p>

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

<p>1. Copyright — Infringement—Preliminary Injunction — Review.</p> <p>The granting of a preliminary injunction in a suit for infringement of a copyright being within the discretion of the trial court, an order granting the same will not be set aside on appeal unless it is clearly shown that the court abused its discretion, or was mistaken in its view of the situation.</p> <p>■ 2. Same — Objections not Made at Trial.</p> <p>Where, on an application for a preliminary injunction in a suit for infringement of a copyright, defendant did not object or introduce proof to show that complainants’ articles, alleged to have been infringed, were not derived from original sources, such objection could not be considered on appeal from an order granting such injunction.</p> <p>3. Same — Laches.</p> <p>Where, in a suit for infringement of copyright, it appeared that complainants and their predecessors in title had no knowledge of the alleged infringing articles until December, 1902, less than a year and a half before suit brought, and that complainants prior to that time were not charged with notice thereof, and the infringing articles did not appear in defendant’s publication at first, complainants were not barred by laches.</p> <p>[Ed. Note. — For eases in point, see vol. 11, Cent. Dig. Copyrights, § 70.</p> <p>Laches as a defense to action for infringement of copyright, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>Acheson, Circuit Judge, dissenting.</p>

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

The Pacific Lumber Company, plaintiff in error, and plaintiff below, is a California corporation engaged extensively in the manufacture and sale of redwood lumber and shingles, and during the year 1897 had made large sales of such products to the Chicago Lumber Company of Denver, which at the end of January, 1898, was indebted to the plaintiff in about the sum of $2,-700.

<p>Mandamus. On demurrer to petition.</p> <p>The petition here represents that upon a petition filed in the bankruptcy side of the District Court of the United States for the Southern District of Illinois, to adjudge the relator an involuntary bankrupt, and the resistance 'of the relator, that it was not a company engaged principally in mercantile pursuits, an order was entered finding that the court had no jurisdiction to declare the relator a bankrupt; sustaining a demurrer to the petition; and dismissing the petition.</p> <p>The petition in the District Court to have the relator declared a bankrupt, was filed on the fifteenth day of June, 1900, and the order of dismissal was not entered until the sixth day of February, 1903. In the meantime, a receiver pendente lite was appointed to control and manage the property; who was directed to issue receiver’s certificates to the amount of five thousand dollars, bearing interest at six per cent, and to borrow money upon the same.</p> <p>The petition in this court further represents that the money was raised; that the receiver is still in possession of the property; and that the District Court is now entertaining a petition for the sale of the property, to answer to the obligations incurred by the receiver in the issuance of the certificates. The petition prays for a writ of mandamus directed to the respondent, commanding him forthwith to make such orders and entries as may be proper, and necessary, to enforce its judgment of dismissal; to restore to the petitioner completely and entirely, the property without loss or diminution; and for such other order as may be made in the premises.</p> <p>To this petition the respondent has demurred upon the following grounds, among others: That no proper application has been made by the relator to the respondent to take the action asked for by the former, and no unwarrantable refusal to so act is shown; that the relator does not show that he has a clear legal right to the performance of the alleged duty at the hands of the respondent; that it does not appear that the law affords no other adequate and specific remedy; that the relator has other adequate and specific remedy; and that the relator has slept upon its rights for an unreasonable length of time.</p>

<p>Res Judicata — Matters Concluded by Decree — Effect of Affirmance on Other Grounds.</p> <p>A question expressly determined by a court of equity, whose decree is affirmed on appeal, is res judicata between the parties, although such question was not considered by the appellate court, whose affirmance was based on other grounds.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1026, 1156.]</p>

<p>Customs Duties — Classification—Buffalo Hides — Cattle.</p> <p>The hide of the mud buffalo of the Straits Settlements, an animal killed in the chase, is not within the provision for “hides of cattle” in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 437, 30 Stat. 151 [U. S. Comp. St. .1901, p. 1676], but is free of duty under section 2, Free List, par. 664, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1688], covering “hides not specially provided for.”</p>

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

<p>Bankbuptcy — Review on Appeal — Findings of Fact.</p> <p>A finding of fact by a referee, approved by the district judge on review, will not be disturbed by the appellate court, unless manifestly unsupported by the evidence.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This action was commenced November 13, 1877. The original opinion, sustaining the patent on final hearing, was filed November 9, 1881, and is reported under the title of Campbell v. The Mayor, etc. (C. C.) 9 Fed. 500. The opinion sustaining the demurrer to supplemental bill is reported in 35 Fed. 14. The opinion dismissing the bill on rehearing because of public use for more than two years prior to the application is at 35 Fed. 504, 1 L. ft. A. 48. The opinion reopening the case for additional proof upon the question of public use and permitting the complainant to show that such use was, as to the inventor, surreptitious and fraudulent, is at 36 Fed. 261. The opinion denying complainant’s motion to suppress testimony is at 45 Fed. 243. The opinion reinstating the original interlocutory decree (9 Fed. 500) on the ground that the prior public uses occurred without the knowledge of the inventor and while he was using due diligence in perfecting his invention by experiment is at 47 Fed. 515. The opinion on exceptions to report of master is at 81 Fed. 182.</p>

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

<p>1. Patents — Infringement—Lanterns.</p> <p>The Wright patent, No. 476,506, for an improvement in wick-raiser attachments for lanterns, is merely for a new combination of old parts performing an old function, and entitled to only a narrow construction in view of the prior art. As so construed, held not infringed.</p>

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

<p>1. Patents — Suit for Infringement — Title to Support.</p> <p>A bill of sale executed by a corporation, shown to have been at the time the owner of certain patents, conveying all of its stock in trade, assets, and property, specifically including “the patent properties which are held by the party of the first part,” vested the purchaser with title to such patents, which will support a suit for their infringement, al-. though no patents were specifically described therein.</p> <p>2. Same — Validity and Infringement — Motor for Mechanical Musical Instruments.</p> <p>The Kelly patents, Nos. 356,690 and 357,933, both relating to motors, in which bellows are employed to rotate a shaft for use in mechanism for playing musical instruments, cover combinations of elements not anticipated in the prior art, and which, in view of the peculiar adaptability •of the motor shown for feeding the music sheet over the tracker board in playing a musical instrument, or for other analogous uses requiring light, quick, and sensitive work, disclose patentable invention. Claims 1 and 3 of the first' patent and 1 of the second held, infringed by a motor having in principle the same mode of operation and used to operate a mechanical piano player, whether or not such player comes within the strict definition of a “musical instrument.”</p>

<p>7. Patents — Assignment of Interest — Infringement—Suit for Damages— Parties — Violation of Injunction.</p> <p>Where in a suit for infringement of letters patent an interlocutory decree was made for an injunction and an account, and thereafter the complainant assigned to third persons its entire right, title and interest in and to the letters patent, and took from them a mere license, non-exclusive, and non-assignable except to the successors or assigns of the business then carried on by the complainant, held, (a) that the complainant could not, in the suit as it then stood with respect to parties, recover profits or damages on account of infringement occurring after the execution of the assignment, or proceed against the defendant for a violation of the injunction by reason of such infringement; (b) that to secure an account, in equity, of profits or damages for such infringement it would he necessary to resort to an original bill or a bill of a supplemental nature brought by the licensee and assignees as co-complainants; (c) that in order that proceedings might properly be had for violation of the injunction, by reason of such infringement while the complainant remained a mere licensee, recourse should be had to a bill of the latter character.</p> <p>[Ed. Note. — Accounting by infringer of patent for profits, see note to Brickill v. City of New York, 50 C. C. A. 8.]</p> <p>2. Same — Violation of Injunction — Contempt.</p> <p>Where alleged infringing machines were made and sold by the defendant under letters patent granted to him after the issue of the patent in suit, and before constructing them he consulted counsel and an expert and was advised by them, and believed, that such machines would not embody or contain tbe subject-matter of tbe patent m suit, be should not, in view of his innocence of intention, although an infringer in fact, be punished in contempt^ proceedings, where they are in no sense remedial, but solely of a punitive character.</p> <p>(Syllabus by the Court.)</p>

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

<p>In Equity. Suit for infringement of patent. On objections to interlocutory decree.</p>

In Equity. Suit for infringement of copyright. On exceptions to master’s report. This cause has already been before the court in the matter of a preliminary injunction. 129 Fed. 761.

<p>In Admiralty. Fibel for penalty for transportation by ferryboat of gasoline automobile without extinguishment of fire.</p>

In Bankruptcy. On exceptions to report of special master upon the petition of the Sabine Tram Company praying for delivery of property.

<p>In Equity. In matter of claims against fund in court.</p>

<p>Shipping — Demubeage on Lumbeb Cabgo — Rules op New Yoek Maeitime Association.</p> <p>A charter party for the carriage of a cargo of lumber from a southern port to New York, providing that the lay days for discharging should be “as customary,” held not to make rule 7 of the New York Maritime Association rules applicable in the computation of demurrage, in the absence of any reference thereto, and especially in view of the uncertainty as to the meaning of the term “board measure” as employed in the rule.</p> <p>[Ed. Note. — Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657 ; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A 4.]</p>

<p>1. Life Insurance — Construction of Contract — Grace fob Payment of Premiums.</p> <p>A life insurance policy for a term of 5 years, with a stipulation for renewal at a higher rate of premium, recited that it was issued in consideration of the payment in advance of a stated premium “on or before the 28th day of December in every year” during its continuance. It provided that it should not go into effect until the first premium had been actually paid “during the lifetime and good health of the assured,” and contained this further provision: “A grace of thirty days will be allowed in the payment of premiums hereafter due on this policy, provided always that when advantage is taken of this grace, interest at the rate of five per cent, per annum shall be paid to the Society for the time deferred.” During the 5-year term, the insured died within 30 days after the 28th of December, the premium then due not having been paid; and within the 30 days such premium', with interest, was tendered and refused. Held, that the policy came within the settled rule that all life insurance contracts are intended to run. for the life of the insured, subject to forfeiture for nonpayment of premiums, and not merely from year to year, the payment of each premium effecting a renewal, and that under the provision for grace the policy was continued in force during the 30 days, within which time the premium might be paid by the insured, or on his death by his representatives.</p> <p>2. Same — Termination of Policy — Declaration by Insured.</p> <p>A statement by an insured that he did not intend to pay a premium on his policy, which was due, but not then demandible, made to an agent who had no authority to change the contract on behalf of the company, did not have the effect of terminating the policy.</p>

<p>Habeas Corpus.</p>

<p>In Equity. Proceeding to enforce order of Interstate Commerce Commission.</p>

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

<p>In Equity. On motion for preliminary injunction.</p> <p>Complainants, who are citizens of Portugal, farmers and landowners in the state of California, pray for an injunction against the respondents, as individuals, and also as members of the board of supervisors of the county of Yolo, state of California, to restrain them from considering or acting upon a petition of respondent Glide praying for the formation or organization of a certain swamp-land reclamation district, referred to in the petition, or from taking any action whatever in the premises, and that the respondent Glide be restrained from taking any action in the matter of the division of a certain reclamation district or the formation of an independent reclamation district, or from taking or interfering with the levees of a certain reclamation district (No. 307). Complainants allege that the land concerning which this action is brought is what is commonly known as “swamp land,” but that by the erection of certain levees and pumping plants the lands have been reclaimed. It is alleged that the lands are situated in Reclamation District No. 307 of the state of California, said reclamation district having a board of trustees, and having been organized pursuant to the laws of the state of California in 1877; that various assessments have been made upon the landowners within the district for building levees; that the said district is provided with a levee running on its northerly and westerly sides, and known as “Babel Slough Levee,” and joining with the Sacramento River levee, and also by a levee along the Sacramento river to the southeastern portion of said district, and then by a cross-levee, and that said levees have been constructed for more than 10 years; that there is a pumping plant; that there are 70 landowners in the district; that the natural trend of the lands is in a southerly direction; that very large sums of money have been spent, through the board of trustees, for strengthening the levees; and that, by reason of the expenditures and the improvements, all the lands in the district have been fully reclaimed, and been in crops; that the Babel Slough levee forms a natural barrier and protection against flood waters; and that the lands, by the lapse of ages, have become hard and compact. It is alleged that a certain levee along the Sacramento river forms a natural barrier against flood waters, and a firm foundation for the erection of levees, and that the boundaries of the reclamation district consist of the natural barrier formed by the slough levee and by the levee along the Sacramento river, improved by the expenditure of money, and also the back levee connecting same, constructed by the landowners of the district, and that all of the lands of Reclamation District No. 307 are capable of reclamation in but the one mode described, and that, if it were not for the maintenance and protection of all the levees of the district, the lands would again become swamp and overflowed, and the property of the complainants would become ruined and valueless. It is alleged that certain assessments were made to reclaim the lands, and that large sums were collected; that the respondent Glide is the owner of certain lands situated in Reclamation District No. 307, and that his lands are protected from overflow by the boundaries and levees of the district, as built and erected by the complainants and their predecessors ; that Glide’s lands are traversed by ditches in said district, and that the waters are let down into the main ditch owned and controlled by the district, and are thereupon pumped into the Sacramento river; that Glide’s lands are not capable of independent reclamation, but have been fully reclaimed by the district reclamation works. It is then alleged that the other respondents are members of the board of supervisors of the county ofTolo; that one of them (Snider) is brother-in-law to Glide, and that Glide has not contributed to reclaim his lands, except as a landowner in said reclamation district, but that, notwithstanding this, Glide has made a petition praying that certain lands of his be set apart into a separate reclamation district; and that the supervisors will set off the lands belonging to Glide into a separate district, and will transfer to Glide the property of the district, namely, the levees and canals and ditches on Glide’s land, and deprive the complainants of the use and benefit thereof, and of the protection afforded by certain levees, and forming part of the continuous system of reclamation works of the district. It is alleged that no notice was given by Glide before the filing of his petition, and that the board of supervisors, without hearing testimony, arbitrarily agreed to vote for the petition of Glide, and to separate his lands from the other lands of Reclamation District 307, and that it agreed to convey-to him that portion of the Babel Slough fronting on his premises and certain other portions of levees, and to deprive complainants of their rights in such levees, and, unless enjoined, they will make an order allowing Glide to use as his sole and separate property-certain levees, to the great damage of the complainants; that if the supervisors do as they threaten to do, and if thereby they deprive Reclamation District No. 307 and the lands therein of the protection of said levees, it will be necessary to build other levees at great cost; and that it will be impossible to build a barrier in a certain place, owing to the fact that the southern-boundary of Glide’s land is what is known as “reclaimed tule land,” and no foundation could be obtained. It is further alleged that Snider is disqualified from acting by' reason of his relationship to Glide, but, notwithstanding this, he will vote in favor of granting Glide’s petition. It is alleged that in 1877, when the reclamation district was formed, the predecessors in interest of Glide agreed to the formation of the district, and that it was decided then that all the lands were capable of reclamation in but one mode, and that the action of the supervisors had at that time has never been modified or amended, and that Glide was one of the trustees for the reclamation district for many years, and participated in requests for assessment, and in the collection of certain moneys to carry on reclamation work, and that the defendants now intend and threaten to deprive these complainants of their interest in the levees to be given to Glide; that all of the complainants’ lands are highly productive, and have a rental value of at least $2,500 per annum, but that, if an order of separation should be made, their lands will be ruined, and the loss they will sustain will be $16,000; that the damages-cannot be compensated for in money, and can only be prevented by the interposition of a court of equity; and that, if the petition of Glide should be granted, complainants and other landowners will be in constant litigation with Glide, and will be compelled to go to great expense, and will be greatly injured, because their lands will be placed in their original condition, as unreclaimed swamp and overflowed lands.</p> <p>A temporary restraining order was issued by the court, and an order to show cause was made upon respondents, requiring them to show cause, if any they could, why a preliminary injunction should not issue as prayed for. Respondents other than Glide answered, denying that they had ever agreed with Glide or any one that they should set off the body of lands described in the petition of Glide, or that they would give or set off to Glide any portion of the Babel Slough levee or the Sacramento River levee, or that they would transfer to Glide any part of Reclamation District No. 307, or deprive complainants of the use and benefit thereof, or that they threatened or intended to set off said body of lands described in the petition of Glide into an independent reclamation district, and deny that they intend to make any order granting the petition of Glide, unless the evidence taken at the hearing shall fully justify such action. Respondents then allege that, when the petition of Glide was filed with the board of supervisors, due and legal notice was given by publication as required by law, and that a landowner appeared by counsel, requesting a continuance until May 8, 1903, and that before the petition came on for hearing the said landowner procured an injunction to be issued out of the superior court of the state of California, in and for the county of Yolo, enjoining these respondents from hearing or acting upon the petition of Glide. Respondents allege that they never at any time intended to act upon the petition of Glide without a full hearing of all parties interested, and that they did not intend and they never have intended to do any act or thing in relation to the granting of said petition, except to take such action as might be justified by the evidence to be introduced upon the hearing of said petition. Respondents then allege that in all respects they had acted in accordance with the laws of the state of California in respect to the hearing of the petition, and that they intend and have always intended to pursue the course and practice provided by law with reference to hearing the same.</p> <p>Glide filed a separate answer. He denies that the lands of the complainants are now, or that they ever have been, reclaimed; denies that Reclamation District No. 307 has constructed levees around all the exterior boundaries of said district; and alleges that certain of the levees are only partly constructed, and that the portion surrounding his lands were constructed by him and his predecessors, and not by the reclamation district. He denies that for five years preceding the filing of the complaint each and every acre of said land has been reclaimed, or that crops have been produced during the said period, and alleges that in 1902 the lands were covered with water, which prevented the raising of crops. He alleges that on the southern boundaries of said reclamation district, and at a point where the south levee of the district is built, water reached a great depth during high water, and that the ground on which the levee is built is weak and unable to sustain the pressure of the water against the outside of the levee. He denies that the complainants are owners of any interest in any of the levees surrounding the district; denies that the Babel Slough levee forms a natural barrier for protection against flood water, and that the levee along the Sacramento river forms a barrier sufficient to restrain the flood waters; and denies that the lands of said reclamation district are capable of but one mode of reclamation. He denies that certain assessments were legally made upon the land in manner required by law; denies that the trustees have expended 50 per cent, of the assessments, or any sum, for the purpose of strengthening and widening said levees. Denies that his lands are not capable of independent reclamation, and denies that the same are reclaimed by the reclamation works of the district or otherwise. He denies that the supervisors of the county intend to set off lands belonging to him from said reclamation district, unless the facts ascertained at the hearing will fully justify such action. Respondent then sets up that on April 7, 1903, he presented his petition to the board of supervisors, and the said board fixed May 6, 1903, to hear the petition; that this notice was published for four weeks next preceding the date fixed for the hearing, as required by law; and that the affidavit of publication, in due form, was filed with the said petition by the clerk of the board of supervisors. Denies that there was any agreement on the part of the supervisors to vote for the petition, or to separate his lands from the other lands in such reclamation district, or that they agreed to convey to him any pop tions of certain levees. Denies that the supervisors will separate his lands, or allow the formation of a reclamation district, unless the evidence introduced in support of his petition at the hearing shall fully and lawfully justify the making of said order. He denies that if the petition should be allowed, and a separate district formed, it will allow him to use and control, as his sole and separate property, the levees of the district, or any part thereof, or any levees situated in the said proposed district, but alleges that such levees as may be within the proposed district will belong to said district, and will be public property subject to the disposition of the state, and denies that action on the part of the board would subject the lands of the complainants to any greater danger from overflow than now exists. He denies that in 1877 or at any time the board of supervisors of the county made an order that all of the lands within said reclamation district were susceptible of but one mode of reclamation; denies that he ever received any money from any landowner or expended any money in constructing reclamation works in said district, but alleges that all collections were those of the board of trustees; denies all allegations of intent to deprive complainants of the benefit of reclamation works. As a separate defense, Glide alleges that the state courts have heretofore assumed jurisdiction of the subject-matter of this action, and are now maintaining jurisdiction thereof. He then sets up that an action was commenced in 1903 in the courts of the state to enjoin the board of supervisors from hearing or acting upon his petition, and that the hearing upon said petition has ever since been continued, and that on June 30, 1903, respondents herein appealed to the Supreme Court of the state of California from the order granting an injunction, and that the appeal is now pending in the said Supreme Court; that on June 25, 1904, one Dwyer, a landowner within said district, commenced action in the superior court of the state against respondents by filing a complaint, the allegations ■of which are substantially the same as those contained in the complaint herein, and that on June 24, 1904, the superior court of the county of Yolo, state of California, issued a writ of injunction restraining respondents from acting upon the petition of said Glide, other than to continue the hearing thereof, and that said injunction is now in force, and that respondents do not intend to do anything concerning the petition of Glide until the courts •of the state have finally decided the case upon its merits.</p> <p>The complainants filed certain affidavits which were read at the hearing before the court. One was made by J. C. Pierson, a civil engineer, wherein his professional opinion was given to the effect that all the lands of the district had been reclaimed, and that, if the petition of Glide were granted, great injury would be done to the lands of the complainants. The affidavits of the trustees of the reclamation district were also filed. Affiants therein •also say that, for reasons which are specified in their affidavits, the granting of the petition of Glide would greatly damage the value of the lands of these complainants, and that many lawsuits would result, and that the reclamation, which is now full and complete, would be destroyed and rendered incomplete and incapable of completion if the lands of Glide should be segregated as sought in the petition of Glide. The affidavit of J. C. Franks was filed. Affiant states that he is experienced in the construction of levees for purposes of protecting swamp lands from overflow, and that he has examined the levees in Reclamation District No. 307, and that they are amply' •sufficient to protect the lands from overflow, and that he has so reported that fact to one of the trustees of the district, and that the trustees employed him to widen and heighten certain levees, and that he performed the work and made them durable and permanent, and that the lands of the district were and have been fully reclaimed.</p> <p>The respondents filed an affidavit of P. N. Ashley, a civil engineer and surveyor, and county surveyor of the county of Yolo, state of California. He states that be is familiar with the lands embraced within the reclamation district, and the levee and works thereon; that some years ago he had made certain surveys and estimates for the reclamation district; and that the board of trustees adopted his report, and employed affiant as a civil engineer to superintend the works of reclamation, but that the board of trustees thereafter did not pursue the plan he had recommended, but followed a radically different one. Affiant attached a map to his affidavit, illustrating the exterior boundaries of the district described in the petition filed by Glide, and also the construction of levees as indicated upon the map and indicated in Glide’s petition. Affiant says that it would not be very difficult to build a levee along the south boundary of the proposed new district; that a firm foundation could be had, and that certain levees in the present reclamation district are a constant menace to the lands of the district, for the reason that Babel Slough levee along Glide’s lands is not large enough to prevent the high waters from overflowing said district. He avers that the-lands described in the petition of Glide are capable of independent reclamation, and he expresses the opinion that the lands contained in the reclamation district have not been fully reclaimed. A counter affidavit by Mr. Pierson is also filed, wherein he disputes the professional statements and opinions advanced by Mr. Ashley.</p>

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

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

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

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

<p>Bankruptcy — Involuntary Bankrupt — Construction Company.</p> <p>A construction company engaged in constructing bridges, wharves, bulkheads, and driving piles for foundations for buildings, etc., cannot be adjudged an involuntary bankrupt under Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St 1901, p. 3423], as a corporation engaged in “manufacturing, trading, or mercantile pursuits.”</p> <p>[Ed. Note. — What persons are subject to bankruptcy laws, see note to Mattoon Nat Bank v. Bank, 42 C. C. A. 4.]</p>

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

<p>In Admiralty. Suit for injury of barge at respondents’ dock.</p>

<p>1. Chinese Exclusion — Minor Son oe Merchant — Effect of Father’s Return to China.</p> <p>A Chinese minor lawfully entering the United States as the son of a Chinese merchant domiciled in this country lost such status on the return of his father to China to remain permanently, leaving the son, who was still a minor, in this country, and his status thereafter was determined by his own occupation.</p> <p>[Ed. Note. — Citizenship of the 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>2. Same — Registration Acts — Effect of Laborer’s Minority.</p> <p>The fact that a Chinese laborer was a minor 19 or 20 years old at the time of the passage of the registration acts did not exempt him from the duty of registering thereunder.</p>

In Admiralty. Suit to recover demurrage for detention of ship at Nome, Alaska, caused by failure of consignee to expedite discharge of cargo according to agreement contained in charter party. Heard on the merits. Decree for libelant. On the 7th day of July, 1903, libelants chartered to respondent the steamer Wyneric for the carriage of a cargo of coal from Nanaimo, British Columbia, to Nome, Alaska.

At Law. Action for libel. On demurrer to answer. The substantial portion of the complaint is: “(1) The defendant corporation was during the year 1903, and for many years previous thereto had been, the owner and publisher of a daily newspaper known as ‘The Evening Leader,’ which during said years was published in the city of New Haven, state of Connecticut, and had a large circulation in said city, and throughout the state of Connecticut and elsewhere. “(2) In the year 1903…

<p>Bankruptcy — Clerk’s Fees — Notice to Creditors.</p> <p>Bankr. Act July 1, 1898, c. 541, § 51, 30 Stat. 558 [U. S. Comp. St. 1901,. p. 3441], provides that clerks shall receive as full compensation in each estate a filing fee of $10, except where a fee is not required from a voluntary bankrupt. Section 58c, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444] provides that all notices shall be given by the referee, unless otherwise ordered by the judge, and general order 35, § 1 (89 Fed. xiii, 32 C. C. A. xxxiv), declares that the fees allowed to clerks shall be in full compensation of all services performed by them, etc., but “shall not include copies furnished to other persons or to expenses necessarily incurred in publishing or mailing notices or other papers.” District rule 8 (89 Fed. vi, 32 C. C. A. x) provides that the notice of final meeting shall be issued by the clerk in accordance with official form 57 (89 Fed. lvii, 32 C. C. A. lxxxi), which includes the petition for the bankrupt’s discharge, order of notice, jurat, etc. Held, that clerks were not entitled to charge a fee of 25 cents for each notice sent to creditors on notices of a petition for discharge, but were only entitled to the actual items of expense thereon for postage, stationery, and clerical work.</p>

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

<p>At Law. On motion for new trial, and for judgment notwithstanding the verdict.</p>

<p>In Admiralty. Suit by seaman for wages.</p>

<p>In Admiralty. Suit to recover for injury to boat by ice.</p>

<p>On Application for Review of a Decision of the Board of General Appraisers.</p> <p>The decision in question sustained protests by the Geo. Hall Coal Company against the assessment of duty by the collector of customs at the port of Rochester.</p>

<p>In Equity. On demurrer for want of jurisdiction.</p>

<p>Bankruptcy — Discharge—Grounds op Objection.</p> <p>Bankrupts who made a general assignment two years before the enactment of the bankruptcy act, and were not thereafter engaged in any business prior to the filing of their petition in bankruptcy, cannot be denied a discharge on the ground of a concealment of property at the time of the assignment, not shown by objecting creditors to have been in their possession at the time of the filing of the petition, nor because of their failure to keep books of account after they ceased doing business.</p>

<p>Shipping — Dead Freight — Right op Recovery Under Charter.</p> <p>Where the charter party required a charterer of a steamer to load her to full capacity or pay dead freight, and provided that all matters of such character should be settled on clearance, and on the statement of the first officer, made after examination, that she was loaded to her marks, the captain signed bills of lading for the cargo and delivered them to the charterer, who permitted her to sail on his own time, and although he had sufficient remaining cargo to supply any deficiency, the vessel cannot recover for dead freight on a subsequent claim that she was not fully loaded.</p>

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

<p>Shipping — Negligent Speed op Steamship Passing Dock — Swell Causing Lighter to Dump Deck Load.</p> <p>A large steauasbip leaving New York, which passed near a dock on Staten Island at a speed of not less than 12 miles, so that her swell caused a lighter discharging at the dock to dump a large part of her deck load of mahogany logs, some of which were lost, held in fault, and liable-for the loss and for damage to the lighter.</p>

<p>Collision — Ferryboat and Tow — Excessive Speed in Eog.</p> <p>A ferryboat, ■ which, on leaving her slip in Jersey City in a dense fog, ran into and sank a canal boat constituting a part of a large tow passing in front of the piers bound to a wharf in the vicinity, held in fault for the collision on the ground of excessive speed and because she did not hear the fog signals of the tugs. The tugs also held in fault for not having sufficient power to handle the tow with reasonable dispatch, thereby obstructing the ferry slips.</p> <p>[Ed. Note. — Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

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

<p>In Admiralty. Suit in rem by seaman to recover damages for personal injuries.</p>

<p>Bankruptcy — Preferential Transfer — Notice of Creditors.</p> <p>The owner of certain notes secured by chattel mortgage, duly filed, transferred them without intent to defraud his creditors, and the assignment was indorsed on the mortgage, and the mortgage and the assignment indorsed thereon were duly recorded. Held, that the failure of the bankrupt’s creditors to ascertain the fact of such assignment was chargeable to their own negligence, and such transfer was insufficient ground for the filing of a petition in bankruptcy more than four months thereafter, under Bankr. Act July 1, 1898, c. 541, § 3, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], providing for the filing of a petition against an insolvent who has committed an act of bankruptcy within four months of the commission of such act, which time shall not expire until four months after the date of the recording of such transfer, when the transfer was made with the intent of giving a preference, if by law such recording is required, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property; the possession required under the law being, as applied to intangible forms of personal property, such possession as is usual and ordinary.</p>

<p>Petition to-Revise to the District Court of the United States for the Western District of Texas.</p>

<p>Application for Rehearing.</p>

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

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

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

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

<p>Appeals 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 District of Washington.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p>

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

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

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p>

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