Volume 135 — Federal Reporter

<p>1. Post Office—Use of Mails to Defraud—Elements of Offense.</p> <p>Where, in an indictment for using the mails in furtherance of a scheme or artifice to defraud, the only charge of fraud or bad faith was that defendant advertised to practice mental healing, and received pay to treat patients “when she did not intend to administer any treatment,” the mere averment that she was engaged in the business of mental healing does not state a scheme or artifice to defraud, within Rev. St. § 5480, as amended by Act March 2, 1889, c. 393, § 1, 25 Stat. 873 [U. S. Comp. St. 1901, p. 3697], but the gist of the offense as charged in such indictment is that she did not intend, when she so advertised and received money, to give the treatment for which she was paid, and such averment must be proved to warrant a conviction. [Ed. Note.—Use of mails to defraud, see note to Timmons v. United States, 30 C. C. A. 86.]</p> <p>2. Same—Practice of Mental Healing—Good Faith.</p> <p>Rev. St. § 5480, as amended by Act March 2, 1889, e. 393, § 1, 25 Stat. 873 [U. S. Comp. St. 1901, p. 3697], making it a criminal offense to use the mails in furtherance of a scheme or artifice to defraud, does not make any discrimination, with respect to the right to the use of the postal establishment of the United States by persons whose vocation is healing, between those who profess to cure by the use of mental science and those who use drugs; and, in a prosecution thereunder for such use of the mails, the question of the defendant’s good faith is the cardinal question. If she practiced in good faith, without the intention to defraud, she is not guilty, although in fact the theory and practice followed were worthless; but if, without belief in her practice, and with knowledge that her representations regarding it were false, she made them to defraud, the fact that mental healing is a lawful vocation does not prevent conviction.</p> <p>3. Same—Burden of Proof.</p> <p>The burden of proof in a criminal case is never upon the accused to-prove innocence, or to disprove evidence offered to establish crime. In a prosecution for the use of the mails to carry out a scheme to defraud in the practice of mental healing, it being charged in the indictment that the defendant’s promises to heal were impossible of performance, and evidence having been received on both sides of that issue, it was error to-instruct the jury that the burden rested on the defendant to prove to theirsatisfaetion that she possessed such power.</p> <p>4. Criminal Law—Instructions—Weight and Credibility of Testimony.</p> <p>While the judge of a federal court may express his opinion in a charge as to the weight or effect of evidence or the credibility of witnesses, he is not warranted in directing a jury that they should ignore evidence offered by a defendant as to the possession by her of certain powers of mental healing because it was contrary to well-established laws of nature. If the evidence is admissible, its credibility and weight are matters for the jury to determine.</p>

<p>1. Shipping—Charters—Freight—Weight of Cargo.</p> <p>In an action for breach of a charter party for a shipment of pipe, evidence held to sustain a finding that the weight of the pipe shipped, for the purpose of ascertaining the freight, was 3,258 tons, as claimed by the shippers.</p> <p>2. Same—Construction.</p> <p>Where a charter party provided for shipment of a complete cargo of cast iron pipe, “say about 3,400 gross tons," it should be construed as contemplating a margin beyond 3,400 tons, and was not fulfilled by a shipment of 3,258 tons.</p> <p>3. Same—Parol Evidence.</p> <p>Where a charter party for a complete cargo provided that the ship should receive on board the merchandise “hereinafter mentioned,” which was immediately succeeded by a clause providing that the shipper agreed to furnish the vessel a full and complete cargo both under and on deck of cast-iron pipe, “say about 3,400 gross tons,” correspondence between the owners and the brokers who negotiated the contract, in which the owners were advised that the shippers had contracted to deliver 3,400 gross tons of pipe to the Dutch government in the Island of Java, and in which the owners represented that the vessel was capable of carrying from 3,400 to 3,500 tons, was admissible to explain the charter; the master having refused to accept more cargo after 3,258 tons had been delivered aboard.</p> <p>4. Same.</p> <p>Where a charter party described the capacity of the ship as about 3,400 gross tons and fixed the freight rate at $8.00 per ton of 2,240 pounds, the representation as to the capacity of the ship should be construed as meaning 3,400 long tons.</p> <p>8. Same—Damages.</p> <p>Where a charter party obligated the ship to receive 3,400 gross tons of iron pipe, and the master refused to receive any more cargo after about 3,258 tons had been loaded, the shippers were entitled to recover the extra 'expense to which they were put in shipping the balance of the cargo to destination.</p> <p>6. Same—Damage.</p> <p>Where the master of a vessel refused to receive more cargo before all of the shipment contracted for had been loaded, whereupon a delay was occasioned to settle the matter, the ship was not entitled to collect demurrage therefor.</p>

The city of Superior, in the years 1890 and 1891, caused the improvement ■of Tower avenue and of Clough avenue in that city, and levied assessments upon the property benefited to pay the cost of the improvements. These assessments, in accordance with the provisions of the charter, were divided into five equal Installments, with interest on the unpaid installments, and were inserted in the tax roll of the city for each of the years 1891 to 1895, inclusive.

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

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

This is án appeal from an interlocutory decree granting a temporary injunction. John A. Graham filed the bill against Francis Irsch and D. Lehman. The material averments of the bill are as follows: (1) On May 5, 1891, Graham was indebted to Irsch in the sum of - $4,000. To secure this debt, he made his note and mortgage, payable to Irsch on demand. By the mortgage he conveyed to him an undivided interest in lands situated in the Southern District of Florida.

<p>1. Bankruptcy—Appeals—Controversies Arising in Bankruptcy Proceedings.</p> <p>Proceedings on a petition filed in a bankruptcy court by a mortgagee of a bankrupt asserting a right to the proceeds of the mortgaged property which has been sold by the trustee are not bankruptcy proceedings, but constitute a controversy arising in bankruptcy proceedings, reviewable by the Circuit Court of Appeals in the exercise of its general appellate jurisdiction under Bankr. Act July 1, 1898, c. 541, § 24a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431].</p> <p>[Ed. Note.—Appeal and review in bankruptcy cases, see note to In re Eggert. 43 C. C. A. 9.]</p> <p>2. Same—Rights of Mortgagee.</p> <p>Where a purchaser of property subject to a mortgage pending a suit In the state court to foreclose instituted voluntary proceedings in bankruptcy, manifestly intended to be adverse to the interests of the mortgagee, his attorney should not be made an allowance “for valuable services rendered in preserving” the mortgaged property, and given a lien therefor prior to the mortgage on the proceeds of the property when sold by the trustee.</p>

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

<p>Appeals from the District Court of the United States for the Southern District of Ohio.</p>

The bill was by the appellee, a citizen of the State of Illinois, against the appellant, the Kewanee Manufacturing Company, a citizen of the State of New Jersey, and appellant Laughlin, said in the bill to sometimes claim his citizenship in Missouri, and sometimes in Illinois, to restrain appellants from prosecuting a certain action at law, brought by the Kewanee Manufacturing Company against appellee, in the Circuit Court of the United States, for the Northern District of…

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

<p>1. Master and Servant—Injuries to Servant—Railroads—Statutes.</p> <p>Const. Miss. 1890, § 193, and Code 1892, § 3559, declare that every railroad employé shall have the same rights and remedies for injuries suffered by him from the act or omission of the corporation or its employés as are allowed by law to other persons where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, etc. Held, that Where a brakeman in an action for injuries alleged that the train on which he was injured was under the direction and control of the conductor and engineer, who were his superior officers, and that while plaintiff was between the rails to turn the angle cock and apply the air brakes to a heavy train on a down grade, as was his duty, the engineer suddenly, and without signal or warning to plaintiff, violently backed the engine against the train, so as to cause a cowcatcher on the rear of the tender to strike plaintiff, by reason of which his arm was caught between the cowcatcher and drawhead and crushed, the declaration stated a cause of action under the statute.</p> <p>2. Same—Dangerous Appliances—Question for Jury.</p> <p>Where, in an action for injuries to a brakeman by being caught between the rear pilot of the engine and the next car as he was applying the air brakes to a heavy train, plaintiff alleged- that the engine with such rear pilot was a dangerous appliance when attached to a freight train, in that when the tender was backed to a car the pilot extended under the car rendering the space between the tender and the car unsafe and dangerous to work in, and that when plaintiff was performing his duty in standing between the rails to turn on the air he was struck by such pilot, thrown down, and injured before the drawheads came together, such allegations, if proved, presented an issue of fact as to defendant’s negligence in furnishing defective appliances for submission to the jury.</p>

The declaration, after showing that the plaintiff, Mrs. Frank E. Butler, is a citizen and resident of the state of New Jersey, and that the defendant, the Garter & Russell Publishing Company, is a Florida corporation, is as follows: “(1) That, before and at the time of the committing of the grievances hereinafter alleged, the plaintiff, Mrs. Frank E. Butler, was a professional rifle shot, and had acquired great skill in the art of shooting a rifle, at both stationary and…

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

The declaration, in two counts, alleged that Kelly, a messenger of the Adams Express Company, while in the discharge of his duties in an express car in one of defendant’s trains, was killed in a collision that occurred through the “gross negligence” of the defendant. The first count charged that defendant’s “gross negligence” grew out of the train crews’ handling of the trains that collided; the second, out of the acts and omissions of the train dispatchers.

This cause comes here on appeal from an order of the District Court, Southern District of New York, confirming a report of a referee in bankruptcy which allowed the claim of the First National Bank of Jersey City for $8,519.27 against the bankrupt’s estate.

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

<p>1. Patents—Suit foe Infringement—Pleading.</p> <p>In a suit in equity for infringement of a patent the defenses of lack of invention and noninfringement cannot be made by plea, but only by answer.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, $ 521.]</p> <p>2. Same—Defenses Properly Made by Plea.</p> <p>A defense to a suit for infringement on the ground that the patent bears date more than six months later than the notice given to the applicant of the allowance of the application may properly be taken by plea.</p> <p>8. Same—'Validity—Issuance More than Six Months after Notice of Allowance.</p> <p>The provision of Rev. St. § 4885 [U. S. Comp. St. 1901, p. 3382], that “every patent shall bear date as of a day not later than six months from the time at which it was passed and allowed and notice thereof was sent to the applicant or his agent,” is directory merely, since the same section allows the applicant six months after notice in which to pay the final fee; and where, by reason of the accumulation of work in the office, the patent cannot be prepared and signed after such payment within the six months, and it is therefore reallowed and issued on a later date, it will not be held void for that reason, at least at the instance of a private party in a collateral proceeding.</p> <p>4. Same — Validity and Infringement — Spring Jacks for Telephone Switch Boards.</p> <p>The Scribner patent, No. 357,538, for improvements in spring-jack telephone switches, while for a combination of old devices, is for a new combination of great utility, and discloses invention. Also held infringed as to claims 3 and 5.</p> <p>5. Same.</p> <p>The Scribner and Warner patent, No. 488,033, for a telephone switch, based in part on the device of the prior Scribner patent, No. 357,538, was not anticipated by such patent, and discloses invention. Also held infringed as to claims 1 and 3.</p> <p>6. Same.</p> <p>The Scribner patent, No. 552,729, for improvements in telephone switches, .was not anticipated, and discloses invention. Also held infringed as to claims 2 and 4.</p> <p>7. Same—Invention—New Combination oe Old Elements.</p> <p>While' the mere assembling in a new organization of parts of old structures to perform the same functions in their new place that they did in the old is not invention, yet where they are so taken, and are organized in a new and useful manner, so as to produce a more beneficial result, there may be invention; and where the combination displays the exercise of intuitive skill and genius beyond that possessed and exercised by those well skilled in the practice of the art, and the discovery is of something new and useful, invention should be recognized.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, §§ 27-30.]</p>

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

<p>1. Patents—Co nstbuction op Claims.</p> <p>Tlie claims of a patent are to be fairly construed In the light of the specification and drawings, so as to cover, if possible, the invention, and thus save it, especially if it be a meritorious one.</p> <p>[Ed. Note—For cases in point, see vol. 38, Cent. Dig. Patents, § 235.]</p> <p>2. Same—Infringement—Bicycle Bells.</p> <p>The Ericson patent, No. 491,012, for a bicycle bell, was not anticipated, and the device shown discloses patentable invention, and represents a distinct advance in the art as compared with prior bells. Claims 1 to 4 construed, and held infringed.</p>

<p>Patents—Infringement—Watek-Closet Valve.</p> <p>The Cooper patent, No. 371,431, for a water-closet valve, the essential feature of which is a flange projecting downward from the valve to retard the flow of water while the valve is closing, was not anticipated, and is valid. Also held infringed as to claims 1 and 2.</p>

<p>1. Patents—Validity—Product of Previously Patented Process.</p> <p>' A patent for the product of a process is void where the same product had previously been produced by other processes.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, § 7.]</p> <p>2. Same—Artificial Husk.</p> <p>The Baur patent, No. 451,847, for artificial musk, is void in view of a disclaimer limiting it to the product of the process of patent No. 416,710 to the same patentee.</p>

In Equity. Suit for infringement of letters patent No. 333,373> for a process for making iron and steel castings, granted to Carl Gustave Wittenstrom December 29, 1885. On final hearing.

<p>Patents—Invention—Baseboards and Wainscoting.</p> <p>The Decker patent, No. 346,899, for baseboard and wainscoting construction, consisting essentially in fastening tbe carpet strip or bottom molding to tbe floor, and not to tbe baseboard, and using, -if desired, a top molding extending below and in front of tbe top of tbe baseboard, and fastened to tbe wall only, and not to tbe baseboard—tbe purpose being to cover by such moldings tbe spaces caused by the shrinking of the baseboard and the floor—is void for lack of patentable invention, and also for anticipation in tbe prior art.</p>

<p>Patents—Anticipation—Rock-Drilling Machinery.</p> <p>The Davis patents, Nos. 694,534 and 694,535, one for a rock-boring apparatus, and the other for the process of boring rock by similar apparatus, which consists of a hollow drill, which cuts around a core and is carried by a hollow drill rod, the essential feature of the invention of the patents being a cup placed on the drill rod into which the drillings are forced by a jet of water up through the drill rod, are void for anticipation by the prior patent, No. 555,640, to the same patentee, which shows a similar cup.</p>

<p>1. Equity—Original Bill in the Nature oe Supplemental Bill.</p> <p>Where a bill to restrain infringement of a patent by an assignee conformed in form and substance to the requirements of an original bill in the nature of a supplemental bill, it was not objectionable on the ground that it was a supplemental bill only.</p> <p>2. Patent—Infringement—Action by Assignee.</p> <p>Where,. pending a suit to restrain infringement of a patent, It was assigned, and the assignee filed an original bill in the nature of a supplemental bill, and claimed no title through persons not complainants in the original bill, but who joined in the assignment, the defendants could avail themselves of any equity or defense which had arisen since the original bill was filed, or which could be urged against the new complainant, but which did not exist against the original complainant; but in all other respects the assignee was entitled to the benefit of all the proceedings in the original suit.</p>

In Equity. Suit for infringement of letters patent No. 589,342 for an acetylene gas burner, granted August 31,1897, to E. J. Dolan. On motion for preliminary injunction.

This action is brought under section 6 of the act in regard to safety appliances, approved March 2, 1893, c. 196, 27 Stat. 532, as amended April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175], which provides a penalty of $100 for every violation of the act, and refers to the violation covered by section 2 of said act (27 Stat. 531 [U. S. Comp. St. 1901, p. 3174].

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

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

<p>1. Insolvent Corporation—Intervening Petition against Receivers—Parties.</p> <p>A bank made a loan of money to a corporation, taking its note, and, as collateral security, an issue of bonds of the corporation, together with an assignment of an underwriting agreement by which the subscribers agreed to take the issue of bonds at a stated price, but were to have also common stock of the company equal to 75 per cent, of the face value . of the bonds. The corporation becoming insolvent, the bank filed its petition against the receivers to require them to turn over the stock which had been issued and was in their possession, to enable it to enforce the underwriting agreement against the subscribers. The answer of the receivers disclosed that a suit was pending in another state, brought by the subscribers against the bank, claiming the right to have the underwriting agreement surrendered and canceled. Held that, in view of such controversy as to the validity of the agreement, the court could not determine the rights of the bank thereunder in a proceeding to which the subscribers thereto were not parties.</p> <p>2. Corporations—Execution oe Instrument—Seal as Evidence of Authority.</p> <p>The corporate seal affixed to an assignment purporting to be the act of a corporation by its president is prima facie evidence that the assignment was executed by corporate authority.</p> <p>[Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, § 1729.]</p> <p>3. Actions—Stay of Proceedings—Another Action Pending.</p> <p>The rule that, where two suits between the same parties and for the same cause of action are pending in different states, the remedy of the defendant is to apply to the court in which the second suit is brought to stay proceedings until the first suit is determined, cannot be applied where the parties to the two suits are not the same.</p>

<p>1. Corporations—Receivers—Petition foe Owners to Turn Over Property —Practice.</p> <p>A petition for an order on tbe receivers of an insolvent corporation, of wbicb the court has taken charge, to turn over certain property claimed by the petitioners, is simply an application for incidental administrative relief, and is not adapted to the determination of substantive issues. The only question to be considered, therefore, is whether the petitioners have shown such title to the property that the court ought in justice to direct the receivers to surrender it.</p> <p>2. Same—Merits of Controversy with Opposing Claimants.</p> <p>Where, in such case, the property claimed consisted in certain stock certificates made out to the subscribers to an underwriting agreement to take bonds, to -which the stock was to be a bonus, and the agreement and bonds had been transferred by the corporation to the petitioning bank as collateral security for a loan, but not the stock, except impliedly, the subscribers to the underwriting agreement, although made parties to the proceedings, were not entitled to set up therein, and have determined, the defenses which they had on the merits to the enforcement of the underwriting agreement against them.</p> <p>3. Corporations—Assignment op Agreement Underwriting Bonds—Construction—Matters Essential to Enforcement.</p> <p>Certain persons executed an underwriting agreement with a corporation by which they agreed to purchase bonds to be issued by it at a stated price, each to receive as a bonus common stock of the corporation equal to 75 per cent, of the face of the bonds taken by him. The bonds and stock in the several amounts called for by the agreement were executed, but, before the time arrived for their delivery, the bonds were pledged by the corporation to a bank to secure a loan, together with an assignment of ■ the underwriting agreement, authorizing the bank to enforce the same by suit in the company’s name in case of default. For some reason the stock was not delivered to the bank. Held, that the assignment carried with it, as a necessary incident to make it effective, the right to such stock, and that, the corporation having become insolvent and passed into the hands of receivers, the bank was entitled to an order requiring them to turn over to it the certificates of stock which had come into their possession, that it might tender the same, with the bonds, to the underwriters.</p> <p>4. Same—Assignability op Underwriting Agreement.</p> <p>An underwriting agreement with a corporation by which the subscribers agreed to purchase an issue of its bonds is assignable by the corporation to a pledgee of the bonds.</p> <p>5. Same—Authority op Oppicers—Pledge op Assets.</p> <p>Where the president and secretary of a corporation pledged certain of its bonds to secure a loan, at the same time giving the pledgee a written assignment of an underwriting agreement for such bonds, executed by them over the seal of the corporation, they were acting within the apparent scope of their authority; and the pledgee, who took the assignment without notice of any limitation on their authority, is not bound by such a limitation, but is entitled to enforce the contract in accordance with its terms.</p>

In Equity. Sur petition of Corn Exchange National Bank, and application of respondents for leave to appeal from the order of the court thereon.

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

<p>1. Equity Jurisdiction—Adequate Remedy at Law—Suit for Cancellation of-Note.</p> <p>A federal court of equity has jurisdiction of a suit for the cancellation of a promissory note alleged to have been obtained from complainant by fraud, the remedy at law not being plain, adequate, and complete.</p> <p>2. Corporations—Fraud of Promoters—Basis for Equitable Relief.</p> <p>False and fraudulent representations made in a prospectus issued by the promoters of a corporation respecting the value of property which was to be transferred by them to the corporation when organized, afford ground for equitable relief against the corporation in behalf of one who subscribed for its stock in reliance on such representations.</p> <p>[Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 244^-265.</p> <p>Acts of corporators and promoters, see note to Yeiser v. United States Board & Paper Co., 46 C. C. A. 576.]</p>

<p>1., Trade-Marks—Words Indicating Quality.</p> <p>The words “Toothache Gum,” used to designate a medicinal preparation for the relief of toothache, were suggestive of the ailment and its probable cure, and designated quality, rather than the origin or ownership of the article, and' were therefore not subject to appropriation as a technical trade-mark.</p> <p>[Ed. Note.—Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Col v. Warner, 50 C. C. A. 323.]</p> <p>2. Same—Unfair Competition—Fraud.</p> <p>Where, in a suit for unfair competition, it was apparent that confusion was likely to arise because of defendant’s imitation of plaintiff’s package, an intent to defraud would be presumed.</p> <p>[Ed. Note.—Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.]</p> <p>3. Same—Evidence.</p> <p>In a suit to restrain defendant from alleged unfair competition in the sale of “Toothache Gum” in packages similar to complainant’s package, evidence held to show such a similarity as to entitle complainant to an. injunction.</p> <p>4. Same—Laches.</p> <p>Where complainant, the original manufacturer of “Dent’s Toothache Gum,” had no knowledge of defendant’s use in the United States or elsewhere of the words “Royal Toothache Gum” to designate his commodity until 1902, and plaintiff brought suit promptly thereafter to enjoin such use, and to restrain defendant from selling his commodity in packages similar to complainant’s packages, complainant was not barred from relief by laches.</p> <p>[Ed. Note.—Laches as a defense in suits for infringement of trade-mark or trade-name, see notes to Taylor v. Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>5. Same—Injunction—Damages.</p> <p>Where, in a suit for unlawful competition, the gist of the action was defendant’s use of a label similar to that used by complainant, the fact that defendant’s use thereof at the time suit was brought had been inconsiderable did not warrant the refusal of an injunction, though the use-was insufficient to entitle complainant to an accounting.</p>

<p>1. Unfate Competition—Imitating Package.</p> <p>Though the words “Toothache Gum” are descriptive, and therefore may riot be appropriated as a technical trade-mark, defendant may, on the ground of unfair competition, be enjoined from using the words in connection with a style of type used by complainant, and on a label of similar color.</p> <p>[Ed. Note.—Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Actions—Persons Using Trade-Name.</p> <p>Laws N. Y. 1900, p. 452, c. 216, § 363b, forbidding the carrying on of business under an assumed name, does not prevent institution of an action by one who has assumed a trade-name.</p> <p>[Ed. Note.—For eases in point, see vol. 36, Cent. Dig. Names, § 7.]</p>

<p>1. Bankruptcy—Priority Between Creditors—Effect of Withholding Mortgage from Record.</p> <p>The act of a creditor in withholding from record a chattel mortgage securing his debt, by agreement with the mortgagor, until the latter’s bankruptcy, while it may render the mortgage invalid as a lien as against subsequent creditors without notice, does not of itself affect his right to prove his debt in bankruptcy, nor subordinate it to the claims of subsequent creditors.</p> <p>2. Same—Participation in Debtor’s Fraud.</p> <p>A creditor holding an unrecorded chattel mortgage securing his debt, at whose instance the debtor obtained a loan from a bank on a written statement showing his property free from incumbrance, and who received part payment of his debt from the proceeds, will be postponed in bankruptcy, as to the remainder of his claim, to the debt of the bank.</p>

<p>1. Customs Duties—Merchandise Entitled to Debenture.</p> <p>Tke provision in section 3030, Rev. St. [U. S. Comp. St. 1901, p. 1995], for “merchandise entitled to debenture,” has reference to merchandise in a customs, bonded warehouse, in regard to which its owner or the importer is entitled to a certificate in due form showing the amount of duties paid thereon, and that it has been duly entered for export to a foreign country.</p> <p>2. Same—Merchandise in Unsafe Packages—Transfer of Merchandise in Warehouse.</p> <p>Under section 3030, Rev. St. [U. S. Comp. St. 1901, p. 1995], merchandise in customs bonded warehouses may not ,be transferred from the original packages for safety or preservation while in warehouse, unless it is entered for exportation. The importer’s only remedy is to remove the merchandise from the warehouse into his own possession.</p> <p>3. Pleading—Statement of Legal Conclusion.</p> <p>The expression “merchandise entitled to debenture,” in section 3030, Rev. St. [U. S. Comp. St. 1901, p. 1995], is there used as a sort of legal conclusion based upon other provisions, and, in order to be sufficient, a pleading founded on section 3030 should allege that the antecedent provisions have been met. It is not enough merely to state that the merchandise is “entitled to debenture,” without averring the facts the existence of which makes it so entitled.</p>

<p>In Equity. Suit to enjoin unfair competition.</p>

<p>In Equity. Hearing on master’s interlocutory reports.</p>

<p>1. Partnership—Termination.</p> <p>Complainant and defendant entered into a partnership terminable at will, and became selling agents for the J. Company, manufacturers of railway supplies. Thereafter the J. Company sold its physical properties to the F. Steel Company, which operated the plant through a new corporation known as the L. Steel Company. Thereafter complainant and defendant, as a firm, wrote the president of the L. Steel Company, asking confirmation in writing of their employment as selling agents, and for an agreement that such employment should not be terminated except on 12 months’ notice, which agreement was confirmed by a reply to such letter. Held that, though such correspondence amounted to a contract that the firm’s agency should not be terminated except on 12 months’ notice, such contract did not prevent defendant from dissolving the partnership by notice to complainant at will.</p> <p>2. Same—Good Faith.</p> <p>Where a partnership was terminable at will, it may be dissolved by one of the partners without regard to the question of good faith or reasonableness of time or circumstance.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Partnership, § 600.]</p> <p>8. Same—Effect.</p> <p>Where a manufacturing corporation employed a firm to act as its selling agents, the dissolution of the firm operated to terminate the contract of employment</p>

<p>1. Federal Courts—Jurisdiction.</p> <p>The national courts inferior to the Supreme Court can exercise .such jurisdiction and powers only as are expressly conferred on them by Congress.</p> <p>[Ed. Note.—For eases in point, see vol. 13, Cent. Dig. Courts, §§ 792-805.}</p> <p>2. Same—Action on Bond oe Government Contractor—United States as Use Plaintiff.</p> <p>An action on the bond of a contractor for government work brought under Act Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523), in the name of the United States for the use of a person who furnished labor or materials in the prosecution of the work, is not one in which the United States is plaintiff or petitioner, within the meaning and intent of section 1 of the judiciary act of August 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], but one in which it is merely a nominal party, and, in the absence of express provisions therefor in the statute giving the right of action, a federal court is without jurisdiction thereof unless the requisite diversity of citizenship and amount in controversy are affirmatively shown.</p>

<p>Rewards—Performance of Service—Reward for Arrest.</p> <p>A reward offered “for the arrest of each of the parties convicted” of a stated crime is not earned by merely giving information to an officer which leads to the arrest of a person subsequently convicted.</p> <p>[Ed. Note.—For cases in point, see vol. 42, Cent. Dig. Rewards, §§ 7-13.]</p>

<p>Bankruptcy—Trustees—Election—Right to Vote—Attorneys.</p> <p>Where an attorney’s retainer for a bankrupt was limited to the filing of the bankrupt’s petition, and the latter paid him no fee, the attorney was not disqualified to accept claims from creditors sent to him thereafter without his solicitation or the procurement of the bankrupt, and to vote on such claims for the election of a trustee.</p>

<p>Involuntary Bankruptcy—Jurisdiction—Residence—Estoppel.</p> <p>An involuntary bankruptcy proceeding having been commenced against decedent in Arkansas, he filed a sworn plea to the jurisdiction, denying his residence in that state, and asserting that he was a resident of Colorado', whereupon the proceeding was dismissed, and the creditors, at considerable expense, commenced a new proceeding in Colorado, pending which the bankrupt died. Held, that the bankrupt’s administrator was estopped to deny in such proceeding that the bankrupt was a resident of Colorado.</p>

<p>In Bankruptcy. On demurrer to petition.</p>

<p>1. Removal of Causes—Diverse Citizenship—Joinder of Domestic Cobpobation.</p> <p>The Circuit Court has no jurisdiction over an action by a citizen of this state for injuries, brought against both a domestic and a foreign corporation, where there is any right of action, or any reasonable ground to claim a right of action, against the domestic corporation, and where no separable controversy is claimed to exist.</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>2. Railroads—Leases—Continuing Liability of Lessor.</p> <p>Under Rev. St. Mo. 1899, § 1060, authorizing foreign railroad corporations to lease or purchase lines of railroad within the state, and declaring a domestic corporation which so leases its lines to a foreign corporation, “liable as if it operated the road itself,” a domestic corporation which has leased its road to a foreign corporation is liable for injuries-inflicted by the lessee in the operation of the road.</p> <p>[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 802-816.]</p> <p>3. Same—Debatable Liability—Decision by State Coubt.</p> <p>Where a domestic corporation is joined as defendant with a foreign corporation, plaintiff has the right to a trial in the state court if the liability of the domestic corporation is fairly debatable, unless his conduct in joining the domestic corporation amounts to a fraudulent interference with the jurisdiction of the federal courts.</p> <p>4 Same—Petitions bob Removal—Gbounds.</p> <p>A contention that a suit against a domestic and against a foreign corporation presents a separable controversy, and is removable to the Circuit Court, under the judiciary act of March 3, 1887, c. 373, 24 Stat. 552, as amended by the act of August 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], cannot be considered on the hearing of a petition for removal where the petition is not grounded on any such proposition.</p> <p>[Ed. Note.—Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.]</p>

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

<p>1. ■ Shipping—Injuries to Stevedore—Death—Actions—Survival.</p> <p>Act Pa. 1851, § 18 (P. L. 674), declares that no action to recover damages for injury to the person by negligence shall abate by reason of plaintiff’s death, but the personal representative of the deceased may be substituted as plaintiff. Section 19 provides that whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of such deceased, or, if there be no widow, the personal representatives, may maintain an action and recover damages for the death thus occasioned, and Act 1855 (P. h. 309) designates the persons who may exercise the right conferred by section 19. Held that, while section 19 created a new right to sue, section 18 merely continued a common-law right of action for personal injury after plaintiff’s death, and hence, under such section, where a stevedore in his lifetime filed a libel in admiralty against a ship for injuries sustained in unloading by the ship’s alleged negligence, the libel did not abate on libelant’s death, but might be properly continued in the name of his personal representative.</p> <p>2. Same—Bonds—Discharge.</p> <p>A bond, having been executed to relieve the ship from liability under a libel for injuries to a stevedore, was continued in force after libelant’s death to secure any judgment which libelant’s personal representative might subsequently recover.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The subject of these proceedings is a decision affirming the assessment of duty by the collector of customs at the port of New York on merchandise imported by R. J. Waddell & Co. This merchandise consisted of a variety of stones, classified as dutiable under section 6, Tariff Act July 24, 1897, c. 11, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), as unenumerated manufactured articles.

<p>Customs Duties—Classification—Measurement of Imitation Peecious Stones—“Dimensions.”</p> <p>In the provision in paragraph 435, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for “imitations * * * of precious stones * * * not exceeding an inch in dimensions,” the measurement contemplated is that of any single dimension.</p>

<p>Master and Servant—Injury to Servant—Voluntarily Undertaking Dangerous Work.</p> <p>Plaintiff, a foreigner of fair intelligence and with considerable knowledge of the English language, was employed as a laborer in defendant’s foundry and grinding room. A belt having been thrown off the pulleys in the grinding room’, he undertook to put it on while the shafting was in motion, and, in so doing, his arm was caught in a loop in the belt and torn off. The operation was a dangerous one, and required skill which he did not possess. He was not directed to put on the belt by any one in authority over him, but was twice warned against it by a fellow workman after he had commenced. Helé, that the injury was not due to any negligence of defendant, but solely to that of plaintiff, for which he could not recover.</p>

<p>1. Bankruptcy— Preferences—Reasonable Cause to Believe Debtor Insolvent.</p> <p>Grounds for reasonable belief in the present inability of a debtor to-pay his debts in the course of business are not necessarily grounds for believing that he is insolvent within the definition of insolvency contained in Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp, St. 1901, p. 3418], so as to require the creditor to surrender payments received as preferences.</p> <p>[Ed. Note.—For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 256.]</p> <p>2. Same.</p> <p>Something less than a year before his bankruptcy a debtor owed a creditor about $30,000, and on being pressed for payment made a payment of $8,000, and obtained an extension on the remainder. There had been large business transactions between the parties for years, which were-continued, and during the time prior to his bankruptcy large ereditswere extended to the bankrupt, but large payments were also made. At the time agreed the old indebtedness was not paid, but shortly thereafter a payment of $10,000 was made. At that time the creditor applied to Dun’s Commercial Agency and to another, from both of whom-favorable reports were received as to the debtor’s condition. Held, that the creditor did not have reasonable cause to believe the debtor insolvent. within the meaning of the bankruptcy act, so as to require It to surrender payments received within four months prior to the bankruptcy as preferences under Bankr. Act July 1, 1898, e. 541, § 57g, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], before proving its claim, although the bankrupt was in fact insolvent.</p>

<p>1. Appeal-Designation op Record.</p> <p>The court of bankruptcy from which an appeal is taken has no .-Jurisdiction to designate what records shall be certified on which the appellate court shall determine the appeal.</p> <p>[Ed. Note.—Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same—Statutes.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], providing that appeals, as in equity cases, may be taken in bankruptcy to the Circuit Court of Appeals, and Act March 3, 1891, c. 517, § 11, 26 Stat. 829 [U. S. Comp. St. 1901, p. 552), providing that all provisions in force regulating the methods and systems of review through appeals or writs of error shall regulate appeals and writs of error to the Circuit Court of Appeals, on an appeal to that court in a bankruptcy proceeding, in the absence of stipulation, the whole of the record, in the strict sense of the word, must be transmitted to the appellate court, as required by Rev. St. §§ 698, 750 [U. S. Comp. St. 1901, pp. 568, 591].</p> <p>3. Same—Designation oe Recoed—Certioeabi.</p> <p>Where the parties to an appeal to the Circuit Court of Appeals in bankruptcy were unable to agree as to the contents of the appeal record, it was the duty of the appellant to file a praecipe with the clerk, pointing out specifically what records, in his judgment, should be certified, leaving appellee, if in his opinion the records certified are insufficient, to suggest a diminution of the record and ask for certiorari.</p>

<p>1. Bankruptcy—Sale of Assets—Composition.</p> <p>Where the money necessary to pay taxes and other debts having priority, required to be deposited by Bankr. Act July 1, 1898, e. 541, § 12b, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3427], as a condition to the enforcement of a .composition, had not been deposited, though several months had intervened since the court declared that such deposit must be made before any composition could be confirmed, the pendency of the petition for such composition was no defense to a petition for the sale of the bankrupt’s assets.</p> <p>2. Same—Petition—Filing—Referee.</p> <p>A petition by a bankrupt’s trustee for authority to sell property of the bankrupt was properly filed with the referee, instead of the clerk of the court, though Bankr. Act, § 70b (30 Stat. 566 [U. S. Comp. St. 1901, p. 3451]), declares that real and personal property, when practicable, shall be sold subject to the approval of the court</p> <p>3. Same—Trustees—Appointment.</p> <p>Bankrupt Act July 1, 1898, c. 541, § 44, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3438], provides that the creditors of a bankrupt shall at their first meeting after the adjudication, or after a vacancy has occurred in the office of trustee, etc., appoint one trustee or three trustees of the estate, and, if the creditors do not appoint a trustee of trustees, the court shall do so. Held, that where the creditors of a bankrupt appointed two trustees at their first meeting, who applied for a sale of the bankrupt’s assets, pending which a third trustee was elected, who qualified, and joined in the petition for sale, the fact that the petition was presented by two trustees only in the first instance was no objection thereto, since, if title to the bankrupt’s estate was not vested in the two trustees on their appointment and qualification it became vested in the three on the appointment and qualification of the third, as provided by Bankr. Act, § 70 (30 Stat. 565 [U. S. Comp. St. 1901, p. 3451]).</p> <p>4. Same—Vacancy—Power of Referee.</p> <p>Where creditors of a bankrupt elected two trustees at the first meeting, instead of three, as required by Bankr. Act, § 44 (30 Stat. 557 [ü. S. Comp. St. 1901, p. 3438]), the referee had no power to fill the vacancy in the office of the third trustee, unless the creditors, after the calling of another meeting by the referee, had themselves failed to fill the same.</p>

<p>Action to recover legacy taxes paid. On demurrer to plaintiff’s statement.</p>

<p>Bankruptcy—Homestead—Abandonment.</p> <p>A bankrupt, having a homestead and a large family In Washington, removed, with certain of his children, to Oregon to obtain work. He was a tinner, and desired to start a shop where his homestead was located, his purpose being to earn sufficient money in Oregon to do so. He had accumulated some money and a part of the necessary tools, and had paid the interest on the purchase-money mortgage on the homestead, when, being unable to keep up two separate establishments, his wife, who had remained on the homestead, joined him in Oregon. His bankruptcy petition, however, merely alleged that he had “resided and was employed” in Oregon for six months preceding a filing of the petition, but did not allege that he had a domicile in such state. Meld,, that such facts did not show an abandonment of the bankrupt’s homestead in Washington.</p>

<p>In Equity. On petition of receiver for authority to assess preferred stockholders.</p>

<p>1. Public Lands—Grants—Conditions—Conveyance—Objections.</p> <p>Act Cong. March 3, 1869, c. 150, 15 Stat. 340, granted certain lands to the state of Oregon in aid of military road construction, on condition that the lands should not be sold to any one person, except in quantities not greater than a quarter section, and at a price not exceeding $2.50 per acre. The succeeding year the state granted the lands in question to the road company in bulk, and by Act June 18, 1874, c. 305, 18 Stat. 80 [U. S. •Comp. St. 1901, p. 1517], Congress, authorized the issuance of patents to the state as fast as the lands should be selected and certified under the grant, under which act patents were issued to the road company for the granted lands. Held, that under such circumstances the United States, and not a subsequent applicant to purchase, was the only authority entitled to object to the nonperformance of the conditions with reference to disposition of such lands.</p> <p>2. Same—Laches.</p> <p>Complainant, having permitted a long period of time to elapse, was barred by laches from maintaining a bill to compel defendant to convey a portion of the land to him on payment of the price specified in the grant.</p>

<p>Coixisioif -Damages—Demurrage.</p> <p>Where, at the instance of claimant, the cost of repairing a vessel injured in collision has been adopted as the measure of damages to the 11-belant, he is entitled to recover, by way of demurrage, compensation for the loss of her use during repair, or, where she was sold without repairing, but before the repairs could have been completed, he may recover demurrage to the time of sale.</p> <p>[Ed. Note.—Demurrage, definitions and general principles, see notes to Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p>

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

<p>Shipping—Charter Party—Measurement of Timber.</p> <p>A provision in a charter party for the carriage of a cargo of timber from a Cuban port to New York, fixing the freight per thousand feet, “Cuban invoice,” means the same as “Cuban invoice measure”—the term having a known meaning in the trade, as relating to a peculiar system of measurement; and the vessel owners are bound by such provision, although the agents who negotiated the charter had no actual knowledge of such meaning.</p>

<p>Collision—Cargo Damage Recovered from One Vessel—Action to Enforce Contribution by Other Vessel Equally in Fault.</p> <p>Where, in. a suit for collision, although both vessels were adjudged in fault, the libeled vessel was held liable for all cargo damage, the other not being in court, a subsequent suit against such other vessel to recoup one-half the damages so paid rests upon the doctrine of contribution, rather than of subrogation, and it is no defense that actions against the respondent vessel by her cargo owners are barred by limitation.</p>

On Application for Review of a Decision of the Board of General Appraisers. The decision under consideration (G. A. 5,402, T. D. 24,614) affirmed the assessment of duty hy the collector of customs at the port of New York on merchandise imported by Benedict & Warner.

On Application for Review of a Decision of the Board of General Appraisers. The decision in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Leber & Meyer. Note In re Montgomery, G. A. 4,904, T. D. 22,949.

<p>Customs Duties—Protest—Sufficiency—Reference to Similitude Clause.</p> <p>Where imported merchandise is subject to the provisions of the so-called similitude clause in Tariff Act Aug. 27, 1894, c. 349, § 4, 28 Stat. 547, prescribing that any article not enumerated in the tariff shall pay the rate of duty applicable to the mmerated article which it most resembles, held, that an importer, in protesting against an erroneous assessment of duty on such merchandise, need not refer in his protest directly to said provisions. If he cites the provision enumerating the article which his merchandise resembles, it is a sufficient compliance with Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat 137 [U. S. Comp. St. 1901, p. 1933], requiring that protests shall set forth “distinctly and specifically” the grounds of the importer’s objections.</p>

<p>Federal Courts—Service or Process in Actions at Law—Conformity Statute.</p> <p>Tbe federal conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]), wbicb provides that the practice and procedure in civil causes at law in the federal courts shall conform, “as near as may be,” to the state practice, does not require the federal court in the District of Connecticut, in an action against a town, to deviate from its long-established practice, under which service is made by the marshal by having copies of the process made and attested by the clerk, and to follow Gen. St. Conn. 1902, § 571, which provides that in actions against towns a true and attested copy of the process, including the declaration or complaint, shall be served on the clerk or a selectman of the defendant, and which, under the decisions of the state courts, requires the copies to be attested by the officer making the service.</p>

<p>Customs Duties—Classification—Fruit in Spirits—Cherries in Maraschino—Unenumerated Articles.</p> <p>Held, tbat certain fruit in spirits, consisting of cherries in maraschino, is not dutiable under paragraph 218, Tariff Act August 27, 1894, c. 349, § 1, Schedule G, 28 Stat. 524, relating to “fruits preserved in sirup,” but under section 3 of said act (28 Stat. 547), as unenumerated manufactured articles.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision in question, which is known as G. A. 5,470, T. D. 24,778, reversed the assessment of duty on merchandise imported by R. F. Downing & Co. into the port of New York. It related to the construction of the proviso in paragraph 626, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1685), providing for a countervailing duty on petroleum and its products, in the following terms: “Provided, that if there be imported into the United States crude petroleum, or the products of crude petroleum, produced in any country which imposes a duty on petroleum or its products exported from the United States, there shall in such cases be levied, paid, and collected a duty upon said crude petroleum or its products so imported equal to the duty imposed by such country.” The merchandise consisted of paraffin manufactured in Germany from petroleum produced in Russia. Both of these countries impose a duty on petroleum and on paraffin when imported from' the United States. The question to be decided was whether the duty to be levied on the paraffin under consideration should equal the rate imposed by the country of manufacture (Germany) on like merchandise when imported from the United States, or that imposed by the country of production of the petroleum (Russia). The collector of customs adopted the first of these alternatives, against the contention of the importers that he should have applied the rate imposed by Russia on petroleum or its products imported from the United States.</p> <p>In a previous decision (Re Vacuum Oil Company, G. A. 4,853, T. D. 22,763) the board had considered a somewhat similar state of facts, the only difference from the present case being that the paraffin then in question was made in, and imported from, England, which country imposes no duty on petroleum or its products when imported from the United States. It was there held that the countervailing duty should equal that imposed by Russia, the country of origin of the petroleum from which the paraffin was produced, on petroleum imported into that country from' the United States; and it was observed by the board, per Fischer, General Appraiser: “The fact being admitted that the crude oil from which this product was made was produced in Russia, a country imposing a duty upon petroleum imported from the United States equivalent to the rate assessed in this case, the only question to be determined is whether the fact that the oil was refined in England removes it from the operation of the proviso. We are clearly of opinion that it does not. A careful reading of the proviso shows that Congress did not speak of the origin of the products made from crude petroleum, but only of the origin of the crude petroleum from which the products were made. The article before us is a product of crude petroleum produced in Russia, and therefore is one of the very articles covered by the language of the proviso, namely, a product ‘of crude petroleum produced in a country which imposes a duty,’ etc. The clear intent of the law is to impose a countervailing duty against the country producing the crude oil, and not against a country producing something from that crude oil.” Following the conclusion in that case, the Board sustained the importers’ contention, namely, that the Russian rate governed. The government thereupon brought these proceedings for review.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy—Discharge—Application—Extension of Time.</p> <p>Where a bankrupt resided in a city where access to his attorneys was easy, and he failed to apply for a discharge until the latter part of the year within which he was entitled to make the application, when sickness in his family was alleged to have prevented him from filing his application within the year, but it did not appear that such sickness or other cause prevented the attorneys from preparing the petition for his signature and verification during the time prescribed, he was not entitled to-an extension of time in the discretion of the court, as authorized by Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427].</p> <p>[Ifid. Note.—Bor cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 694.]</p>

<p>Customs Duties—Classification—Rhinestones—Paste Buttons.</p> <p>Certain so-called rhinestones, articles composed of metal and paste, the latter being the more valuable component, which are merely used to decorate and ornament women’s outer apparel, are dutiable as manufactures of paste, not specially provided for, under paragraph 112, Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635], They are excluded from the provision in paragraph 414 of said act, c. 11, § 1, Schedule N, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674], for “buttons made of glass,” because they are not" strictly buttons, and because, though paste is a species of glass, it is differentiated therefrom elsewhere in the tariff as a separate substance.</p>

<p>Shipping—Liability op Vessel—Injtjby to Contbactob’s Employ:®.</p> <p>Where a workman employed by a contractor to do work on a steamship while she lay at a wharf undertook to climb from the wharf to the deck by means of a ladder which had been temporarily in use and had not been removed, after he was told to use the gangway, and when, by reason of the rising tide, the ladder had been lifted from the dock, and hung by a small cord to the rail, his injury by the falling of the ladder was due solely to his own negligence, and not to any fault or negligence on the part of the ship.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Hensel, Bruckmann & Lorbacher. This merchandise was known' as “time detectors,” and consisted of watch movements inclosed in cases, having only an hour hand, and equipped with a paper revolvable dial and other registering apparatus ; being intended for use in buildings in which watchmen are stationed, for the purpose of recording the watchman’s rounds. They were classified as manufactures of metal, under paragraph 193, Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645], and were claimed by the importers to be dutiable under paragraph 191 of said act (30 Stat. 166 [U. S. Comp. St. 1901, p. 1645]), relating to “watch movements, whether imported in cases or not,” etc. This contention was overruled, as indicated above, on the authority of a former decision of the board. Re United States Express Company, G. A. 5,038, T. D. 23,401.</p>

<p>Removal oe Causes—Jurisdiction—Suit in Rem.</p> <p>A suit begun in a state court by attachment of property, and removed into a federal eourt, will not there be dismissed for want of jurisdiction because there has been no personal service on defendant, custody of the res being recognized as giving jurisdiction.</p>

<p>1. Criminal Law—Review on Appeal—Sufficiency of Evidence.</p> <p>The credibility of witnesses and the probative force of facts introduced in evidence 'are matters solely within the province of the jury to determine. An appellate court cannot weigh the evidence, and the sole question thereon for its determination is whether there is any legal evidence to sustain the verdict.</p> <p>2. Larceny—Sufficiency of Evidence.</p> <p>It is not necessary to a conviction for larceny of money that the money, or any part of it, should be shown to have been in defendant’s possession.</p> <p>3. Criminal Law—Proof of Corpus Delicti.</p> <p>It is now the well-settled rule that in all criminal cases the corpus delicti, as well as that defendant committed the crime, may be proved by circumstantial evidence.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1269.]</p> <p>4. Larceny—Sufficiency of Evidence.</p> <p>Circumstantial evidence considered, and held sufficient to sustain a conviction for larceny.</p> <p>5. Criminal Law—Instructions—Circumstantial Evidence.</p> <p>Instructions upon circumstantial evidence in a criminal prosecution considered and approved.</p> <p>6. Larceny—Sufficiency of Indictment—Averment of Ownership of Pr'operty.</p> <p>An indictment under Act March 3, 1875, 18 Stat. 479 [U. S. Comp. St. 1901, p. 3675], which charges defendant with stealing money “belonging to” the United States, sufficiently avers the ownership of the property stolen.</p> <p>[Ed. Note.—For cases in point, see vol. 32, Cent Dig. Larceny, § 81.]</p> <p>7. Criminal Law—Admission of Evidence—Harmless Error.</p> <p>The admission of irrelevant testimony in a criminal case, which was afterward stricken out on motion of defendant’s counsel, and which the jury were instructed to disregard, was not prejudicial.</p> <p>8. Larceny—Evidence to Show Motive—Financial Condition of Defendant.</p> <p>While evidence to show motive is not essential to conviction in a criminal prosecution, where the guilt of defendant is clearly established it is admissible; and in a prosecution for larceny of money, where the evidence was largely circumstantial, it was not error to admit evidence to show that defendant was in debt at the time as tending to some extent to show a motive for the crime.</p> <p>9. Witnesses—Impeachment—Evidence of Reputation.</p> <p>Where the reputation of a witness for truthfulness is assailed, the party calling him has the right to introduce testimony to show that his reputation is good not only at the time, but that it has always been good.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1167-1169.]</p> <p>10. Larceny—Evidence.</p> <p>Where defendant charged with larceny of money from a mint while employed therein as clerk, to account for his presence there at unusual hours, testified that he went to check up the pay rolls, it was competent for the government to show the length of time required to perform such, work.</p> <p>11. Criminal Law—Argument of Counsel.</p> <p>Where counsel for defendant In a criminal case based an argument to the jury on an assumption of facts not shown by the evidence, he cannot assign it as error that counsel for the prosecution, in answering such argument, also went outside the record.</p> <p>12. Same—Misconduct of Counsel—Offer of Incompetent Evidence.</p> <p>Where it was sought to be shown on the cross-examination of a witness for the prosecution that he had not mentioned certain facts to which he testified at the timé of their occurrence, the action of the district attorney in attempting to show by a subsequent witness that such mention had been made by the previous witness, while the evidence may not have been admissible, was not such misconduct as to be ground for reversing a judgment of conviction.</p> <p>13. Same.</p> <p>Offers of evidence by the prosecution with respect to prior convictions of defendant for other offenses held not prejudicial to defendant’s rights in view of the rulings and charge of the court.</p> <p>14. Same—Instructions—Refusal of Requests.</p> <p>The refusal of requests for instructions is not error where the court in the charge given clearly and correctly covers all the principles applicable in the case.</p>

<p>1. Personal Injury—Damages—Mental Pain Separable prom Bodily Suppering Inadmissible.</p> <p>In actions for personal injury the plaintiff may recover for the bodily suffering and mental pain which are inseparable and which necessarily and inevitably result from the injury. But mortification and distress of mind from the contemplation of the crippled condition and of its effect upon the esteem of his fellows, that mental pain which is separable from the bodily suffering caused by the injury, is too remote, indefinite, and intangible to constitute an element of the damages in such a case, and evidence of it is inadmissible.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, §§ 100, 222, 255-259, 479.</p> <p>Mental suffering as an element of damages* see note to Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C. C. A. 556.]</p> <p>2. Negligence—Duty op Master to Employ Competent Servants.</p> <p>It is the duty of the master to exercise reasonable care to employ competent servants, and, when he has exercised this care, this duty is discharged.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 336.] i</p> <p>8. Same—Duty op Master to Discharge Incompetent Servant.</p> <p>Another duty of the master is to discharge a servant when he knows or by the exercise of reasonable diligence would have known, that the servant has contracted the habit or character of negligence, of drunkenness, or of lack of skill, so that he is incompetent.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 342-346.]</p> <p>4. Same—Care Required to Ascertain Habits op Competent Servants— Presumption that Competent Servant Remains so.</p> <p>The diligence required of the master to learn the habits or characters of servants employed with due care is not of that degree demanded in his employment of servants or in his inspection of machinery, because careful and skillful men grow more careful and skillful, and the legal presumption is that servants once competent continue so. The master may rely upon the presumption of competency until he has notice or knowledge to the contrary.</p> <p>5. Same—Reasonable Care or Diligence Required Not That Which Employer Uses to Protect His Own Person. '</p> <p>The reasonable diligence and care which the master is required to exercise here is not that high degree of care which a prudent business man would use if the want of it endangered his own person. It is that degree of care which prudent railway officials exercise under like circumstances, that care which such officials charged with the duty of discharging servants employed with due care commonly exercise as soon as they know, or by the exercise of reasonable diligence would know, that such servants have become incompetent.</p> <p>G. Same—Assumption of Risk—Occasional'Acts of Negligence.</p> <p>Servants assume the risk of the occasional acts of negligence of their fellow servants, and the master is not liable for them, but the servants may by notice cast the risk of the habitual negligence of their co-employes upon the master.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 567-573.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. Ry. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>7. Same—Specific Acts of Negligence—Those Known to Master Admissible to Pkove Incompetence of Servant.</p> <p>Evidence of specific acts of negligence known to the master, and of acts of negligence like those which cause the death of passengers, so notorious that the master must have known of them if he exercised reasonable diligence, is admissible to prove the habit or character for incompetence of a servant who is employed with due care.</p> <p>8. Same—Specific Acts of Negligence—Those Unknown to Master Inadmissible to Prove Incompetence of Servants.</p> <p>Specific acts of negligence, of drunkenness, of lack of skill, or of incompetence, of which the master had no notice, are inadmissible to prove the incompetence of a servant employed with due care. The proper proof of habit and character, as of reputation, in such a case, is the testimony of witnesses qualified to speak of them, subject to proper cross-examination relative to the facts upon which their testimony is based.</p> <p>9. Same—General Reputation—Reputation in a Particular Class.</p> <p>After proof of the incompetence of a servant, his general reputation among those acquainted with him or his work is competent to prove notice of the habit of incompetence to the master. But reputation among a particular class, which obviously includes but a part of those who knew his character or work, is inadmissible for this purpose.</p> <p>10. Practice—Refusal to Give Several Requests—Single Exception.</p> <p>A single exception to a refusal to give a number of requests to submit to the jury several propositions of law and of fact is futile, if any of those propositions is erroneous or inapplicable.</p> <p>(Syllabus by the Court.)</p>

<p>Appeals from the Circuit Court of the United States for the District of Nebraska.</p> <p>These are appeals from a decree of the Circuit Court of the United States for the District of Nebraska enforcing the liability of the appellants as shareholders of the American National Bank of Omaha. In December, 1895, the managing officers of that bank anticipated the withdrawal, about the first of the following year, of a large amount of deposits. The condition of the bank was such that it had not available funds sufficient to meet the expected demands and to thereafter continue in business and comply with the requirements of the national banking act. Consequently on December 21, 1895, a contract was entered into with the Union National Bank of the same city, the terms of which, so far as need be recited, are as follows: The Union National assumed the payment of the liabilities of the American National to its depositors and on account of bills payable, and in return was to receive its cash, cash items, and such bills receivable as the former was willing to accept at par and without recourse. The difference between the aggregate of the amounts so received and the gross amount of liabilities assumed was to be represented by three nonnegotiable promissory notes of the American National, the payment of which was to be secured by a pledge of all of its remaining assets to Thomas L. Kimball as trustee. This contract was carried out. The Union National moved into and took possession of the quarters of the retiring bank. It was ascertained that the total indebtedness of the American National on account of deposits, demand and time certificates and bills payable, which were assumed by the Union National, amounted to $289,097.30; that the cash, cash items, and bills receivable taken without recourse by the Union National aggregated $88,097.30; that a balance of $201,000 remained. To evidence this balance the president and cashier of the American National executed to the Union National three nonnegotiable promissory notes, each for $67,000, payable, respectively, in one, two, and three years from their date, December 23, 1895. In accordance with the contract the remaining assets of the American National were placed in the hands of Thomas L. Kim-ball, the president of the American National, as trustee for the contracting parties and for the protection of their respective rights under the contract. Kimball as trustee retained possession and controlled the collection of them until his death, which occurred during the pendency of the complainant’s suit, when his successor, James Burness, was appointed and thereafter continued in the performance of the trust duties. The assets which were pledged to the Union National, although of large amount in face value, were found to be of little actual worth. The execution of the contract of December 21, 1895, by the president and cashier of the American National, was directed by resolution of the board of directors of that bank. On January 14, 1896, an annual meeting of the shareholders of that bank was held, at which were represented 1,665% shares out of a total of 2,000. At this meeting a resolution was adopted instructing the directors to take action looking to the liquidation of the bank. On February 25, 1896, another meeting of the shareholders was held, at which were represented 1,696 shares, and at which a resolution for the voluntary liquidation of the bank was adopted by an affirmative vote of 1,639% shares. Thomas L. Kimball, theretofore appointed as trustee of the remaining assets of the bank, by the contract of December 21, 1895, was designated in the resolution as the agent and trustee of the shareholders in the liquidation proceedings. All of the subsequent proceedings provided by law for voluntary liquidation were thereupon duly adopted. The Union National fulfilled its obligations under the contract, having taken up the liabilities assumed by it. It being found that the trustee was meeting with little success in the collection of the assets, and that the principal, of the note first maturing had been but slightly reduced, this suit was instituted August 8, 1898, by Sumner Wallace, a citizen of New Hampshire, as the assignee of the note, against the Union National, Thomas L. Kimball, trustee, and the American National and its stockholders, including the appellants. By an amended bill the complainant sought, on behalf of himself and all of the other creditors of the American National, the winding up of the affairs of that bank, the determination of the amount due him upon his note, the subjection of the remaining assets to the payment of his claim, the ascertainment of all of the creditors and the amounts of their claims, and the enforcement of the liability of the stockholders. The complainant had not reduced his note to judgment prior to the institution of the suit. During the progress of the suit the uncollected assets were sold by order of the court and the proceeds accounted for. Upon final hearing a decree was entered ascertaining the amounts due the complainant and the Union National after the application of all credits, the number of shares of stock held by each shareholder of the Americal National, and against each defendant shareholder for $97.23 per share of stock held by him. The amount of the recovery was appropriately apportioned between the two creditors. From this decree the appeals were prosecuted.</p>

<p>1. Federal Courts—Following State Decisions—Validity op Municipal Bonds,</p> <p>The federal courts, in determining the validity of a legislative act under which municipal bonds in suit were issued, under the state Constitution, will follow the construction placed upon the Constitution by the highest court of the state at the time the bonds were issued and sold.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, § 956.</p> <p>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. Municipal Bonds—Boad Improvement—Validity op Ohio Statute.</p> <p>Act Ohio March 21,1894 (91 Ohio Laws, p. 543), which authorized counties of a certain population, on petition of a majority of the landowners in any election precinct, to levy an extra tax thereon, and an issuance of bonds in anticipation of such tax, for improvement of the public roads, was not a law of a general nature within the meaning of Const. Ohio, art. 2, § 26, providing that “all laws of a general nature shall have a uniform operation throughout the state,” as such provision was judicially construed by the Supreme Court of the state when such act was passed, and bonds issued thereunder are valid and enfprceable, although, subsequent to their issuance, a construction was placed upon the constitutional provision which would render the act invalid.</p> <p>3. Statutes—Constitutionality—Act Conferring Corporate Powers.</p> <p>The mere fact that a special legislative act authorizing the appointment by a county board of road commissioners for a district in certain cases declares that such commissioners “shall be a body corporate with the powers and duties hereinafter specified” does not render the act invalid under Const. Ohio, art. 13, § 1, providing that “the General Assembly shall pass no special act conferring corporate powers,” as such provision is construed by the Supreme Court of the state, where the powers and duties enumerated are only such as are ordinarily conferred and imposed upon officers or boards charged with the supervision of public improvements.</p> <p>4. Municipal Bonds—Boad Improvements—Estoppel by Becitals.</p> <p>Under Act Ohio March 21, 1894 (91 Ohio Laws, p. 543), which authorizes the board of commissioners of a county, on petition therefor, to appoint road commissioners for a district, who shall have power to issue bonds for road improvements, to be attested and registered by the county auditor, and at once reported to the county board, which has general charge of the improvement and the levying of the tax to pay the bonds, with power to remove any of the road commissioners and fill the vacancy, such commissioners, in the issuance of the bonds, as well as in supervising the work done, act simply as agents for the county board, and recitals made by them in the bonds that all things required by the act as conditions precedent to their issuance have been properly done and performed must be regarded as having been made by authority of the county board, and create an estoppel in favor of a bona fide purchaser of the bonds, which precludes a defense thereto on the ground of any irregularity in the action of the board as well as of the road commissioners.</p>

<p>Eeboe—Review. ,</p> <p>Where it is determined.by the appellate court, on an assignment of error presenting the question, that the evidence, which is all in the record, no.t only warranted but required the verdict that was rendered, further assignments of error relating to the giving and refusal of instructions become immaterial, and will not be considered.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4035-4036.]</p>

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

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

In Admiralty. This is a libel in rem filed by the Ionia Transportation Company, the owner of the steamer Ionia, against her cargo of coal, for demurrage, for delay in unloading at the port of Racine. The second article of the libel charges that in October, 1903, the Kanawha Fuel Company shipped on board the steamer Ionia, lying at the port of Toledo, in the state of Ohio, a cargo of coal, to be therein carried from the port of Toledo to the port of Racine.

<p>Bankbuptoy—Coubts^Jubisdiction—Attachments—Stay.</p> <p>Bankr. Act July 1, 1898, c. 541, § 11, cl. a, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426], provides that a suit which is founded on a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition, etc. Reid, that , such section did not give a bankruptcy court jurisdiction to stay a suit by a creditor of the bankrupt in a state court, and to restrain such creditor from proceeding to enforce an attachment lien under the state law, the state court having acquired jurisdiction of the parties and subject-matter, and taken possession of the property prior to the filing of the bankruptcy petition.</p>

<p>1. Damages—Bbeach of Contea ct—Recoupment fob Delay in Pebfobmance.</p> <p>Plaintiff, having contracted to build two bridges for defendant, fáiled to complete the same by the dates specified in the contract. The bridges were required to connect extensions of certain lines of electric railway owned by defendant, which were to be consolidated and operated as a single system, of which purpose plaintiff was advised. Defendant entered upon the construction of its extensions, which . could have been completed by the time the last bridge was to be finished, but were not because it became apparent that the bridge would not then be ready, iEeld, that the measure of the damages defendant was entitled to recover for breach of the contract by way of recoupment against the contract price was the interest at the legal rate on the money expended by it upon the Improvements and extensions which were reasonably within the view of the parties when the contracts were made from the date when the last bridge should have been completed, or from the times thereafter when such expenditures were made to the date of its completion.</p> <p>2. Error—Review—Action Tried to Court.</p> <p>Where a jury is waived by stipulation in an action at law in a federal court, its findings of fact are conclusive in the appellate court, and only the questions of law applicable thereto can be considered.</p>

<p>In Error to the District Court of the United States for the Eastern District of Michigan.</p> <p>These proceedings were brought by Henry Sapery, survivor of himself and Sarah Sapery, deceased, copartners as the Syracuse Smelting Works, claimant of certain merchandise seized for violation of the customs laws.</p>

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

<p>Petition for Writ of Mandamus or Writ of Certiorari. Sur rule to show cause.</p>

This cause comes here upon a writ of error by plaintiff below to review a judgment in favor of defendant in error, who was defendant below. The cause was tried in the Circuit Court, Southern District of New York. The facts were stipulated, and at the conelusion of the trial the court directed a verdict for the defendant, to which exception was duly reserved. The facts sufficiently appear in the opinion.

<p>■Collision—Steamboat and Ferryboat Crossing—Steamer too Close Inshore.</p> <p>A steamboat proceeding through Hell Gate toward New York held solely in fault for a collision with a ferryboat which had just left her slip at Astoria, on the ground that she was proceeding too close inshore as she rounded Hallett’s Point, and also for not keeping her course under the starboard-hand rule, although the ferryboat gave the proper signal, and her course indicated that she intended to pass under the steamer’s stern, as required by the rule.</p>

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

<p>Customs Duties—Classification—Half Pearls. .</p> <p>Half pearls, consisting of the better part of the true pearl, from which blemishes or flaws have been removed by sawing or splitting, and which are not adapted for stringing, but are chiefly used for jewelry settings, are dutiable by similitude, under paragraph 436, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], covering pearls in their natural state, not strung or set.</p>

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

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

<p>1. Tbial—Effect of Motions by Both Pasties fob Dibection of Vebdict.</p> <p>Where both parties move for direction of a verdict, it is an affirmance on the part of each that there is no disputed question of fact which could operate to deflect or control the questions of law.</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, § 400.]</p> <p>2. Public Lands—Louisiana State Swamp Lands—Pbe-emption Rights.</p> <p>Pre-emption rights cannot be acquired, under Act La. No. 21, p. 31, of 1886, in lands which have been granted to one of the levee boards of the state.</p>

<p>Patents—Invention—Manufacture of Tubing.</p> <p>The Patterson patent, No. 581,251, for the manufacture of tubing, covering the method, by charging the plates into the furnace from the rear and withdrawing them from the front by means of tongs or other suitable device, which also draws them through the welding bell, is void for lack of patentable invention. The advantages of back charging in the manufacture of such pipe, as was practiced in the making of lap-weld pipe, were previously known, and it was practiced by at least one method. The method of the patent was merely a part of the steady evolution and development of the art in mechanical means, not involving invention.</p>

<p>1. Patents—Invention—Resolving Doubt in Favob of Patent.</p> <p>Where the question of the validity of a patent is in doubt, the doubt should rather be resolved in favor of than against the patent.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent Dig. Patents, §S 35, 53, 62.]</p> <p>.2. Same—Oil Bubners.</p> <p>The Jeavons patent, No. 702,560, for an oil burner, the important feature of which is the making of the stem of the needle valve which controls the oil supply to the burner of such size as to about fill the bore of its enveloping sleeve, so that it may be unthreaded from the valve body and used as a plunger in such sleeve to remove any obstruction in the valve orifice, shows a modification of prior forms of construction, which adds a new and useful function and discloses invention. Also held infringed as to claims 1 to 6.</p>

<p>In Equity. Suit for infringement of letters patent No. 644,464, for an artificial limb suspender, granted to James F. Rowley February 27, 1900. On final hearing.</p>

<p>1. Res Judicata—Mutuality of Estoppel—Refusal to Disclose Connection with Suit.</p> <p>A defendant cannot plead in bar to a suit for infringement a prior judgment, to which it was not nominally a party, on the ground that it in fact defended the action, where during its pendency, and until after the decision of the appellate court in favor of the defendant therein, it persistently refused to admit its connection therewith, and also during such time in another suit filed á sworn answer denying such connection.</p> <p>2. Patents—Injunction Against Infringement—Electric Motors.</p> <p>A preliminary injunction granted restraining infringement of the Tesla patents, Nos. 511,559 and 511,560, for a method of transmitting electrical power and an electric motor, on prior adjudications sustaining such patents and admitted infringement by defendant.</p>

<p>Constitutional Law — Impairment of Obligation of Contract — Street Railway Franchises.</p> <p>By a city ordinance duly passed under legislative authority, two separate railroad companies, theretofore operating independent lines, were authorized to consolidate, subject to the conditions therein imposed, which required the consolidated company to run through cars, and to carry passengers between any two points on the consolidated lines for a single fare. The franchise of one of the constituent companies expired by its terms in 1904, and that of the other in 1908. By a subsequent ordinance the consolidated company was authorized to use electric power on all of its lines, and by others to build and operate various extensions in connection with its main line; such extension ordinances severally providing that “the right herein granted shall terminate with the present grant of the main line, to wit, on the 10th day of February, 1908.” All of such ordinances were required to be, and were, accepted by the company and complied with. Reid, that they created contracts which bound the company to operate all of its lines as a unitary system until February, 1908, and conferred upon it the corresponding right to do so, and that an ordinance passed in 1904 granting a renewal of the franchise of the constituent company, which expired in that year, to a new company, to the exclusion of the consolidated company, was unconstitutional and void, as impairing the obligation of such contracts.</p>

<p>Chinese Exclusion—Scope op Treaties and Legislation—Chinese Person Other than Laborer Previously Domiciled in United States.</p> <p>Neither the Chinese treaty of 1880, nor subsequent legislation relating to Chinese exclusion, has any relation to Chinese persons, not of the laboring class, who were at the time of the adoption of that treaty domiciled in the United States, and who have since continued to reside therein; and such a person who temporarily leaves the country, with the intention of returning, cannot be excluded on his return because he is not included in one of the classes expressly excepted from the operation of the exclusion acts, and who alone are permitted to enter the United States by rules 1 and 2 of the regulations adopted by the Department of Commerce and Labor; such rules being applicable only to persons seeking to enter for the first time.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Aliens, § 85.</p> <p>Citizenship of the Chinese, see note 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>On Demurrer to Complaint.</p>

On Demurrers to Indictment. Each of the four defendants has filed a demurrer to the indictment in this case, and specified causes of demurrer which are the same in form and substance. The indictment charges the defendants with a conspiracy to defraud the United States by manufacturing and selling, for use in making life preservers, compressed cork blocks with pieces of iron concealed in their centers. Section 5440 of the Revised Statutes [U. S. Comp.

<p>Specific Performance—Contract by Water Company to Sell Plant to City—Informality in Appraisement.</p> <p>Where the grant by a city of a franchise to a water company was conditioned by an agreement that the city should have the right, at its option, to buy the company’s plant at the end of 10 years, a provision of the agreement for the appointment by each party of an appraiser, who, with another selected by them, should fix the value of the properly, did not make such appraisement a fundamental condition to the city’s right to exercise its option, but it was merely an administrative detail, the purpose of which was to ascertain the fair market value of the property ; and, the city having the absolute right to enforce the condition on which the franchise was granted on complying with the provision on its own part, the company cannot avoid carrying out its contract by repudiating an appraisement, fairly made, on the ground that the appraiser selected by resolution of its directors, and who was its general manager, substituted another in his place, to which it never gave its formal assent, where its officers and counsel, with full knowledge of the substitution, participated in the appraisement proceedings without objection.</p>

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

<p>1. Water Courses—Diversion for Irrigation.</p> <p>Tbie right to divert running waters for irrigating lands in an arid country is not controlled or affected by political divisions. It is the same in all states through which the stream so diverted may pass.</p> <p>2. Same—In Wyoming and Colorado.</p> <p>An appropriation of water in the state of Wyoming from a stream which rises in Colorado for irrigating lands in Wyoming is valid as against a subsequent appropriation in Colorado from the same stream for irrigating lands in Colorado.</p> <p>3. Same—Practice—Police Regulations in Wyoming,.</p> <p>In a suit by settlers in Wyoming on a stream which rises in Colorado to restrain the diversion of water from such stream in Colorado, complainants need not aver or prove that they have conformed to police regulations of the state of Wyoming regulating the distribution of water in that state.</p> <p>4. Equity—Cross-Bill in an Answer. -</p> <p>In a suit in equity, a charge in an answer, which is denominated a “cross-bill,” may be accepted as a statement of respondents’ case, notwithstanding the misnomer calling the answer a cross-bill.</p>

<p>1. Bankruptcy—Liens—Mortgage Executed Pursuant to Prior Agreement.</p> <p>A parol agreement by a borrower, when the loan was made, to give security upon the property which was to be purchased with the borrowed money, does not render valid a mortgage given pursuant thereto within four months prior to the borrower’s bankruptcy, and when he was insolvent, which constitutes a voidable preference under Bankr. Act July 1, 1898, c. 541, § 60b, 80 Stat. 562 [U. S. Comp. St 1901, p. 3445].</p> <p>2. Same—Mortgage Given in Part tor Present Consideration.</p> <p>A mortgage given by an insolvent within four months prior to his bankruptcy, in part to secure an antecedent debt and in part to secure a loan made at the time, is valid to the extent of the latter consideration.</p>

<p>1. Perjury — Internal Revenue Bond — Sureties—Justification—Oaths— Deputy Collector—Powers.</p> <p>Rev. St. § 3165, as amended by Act Cong. March 1, 1879, c. 125, § 2, 20 Stat 329 [U. S. Comp. St. 1901, p. 2057], authorizes every collector and deputy collector to administer oaths touching any part of the administration of the internal revenue laws, or where such oaths are authorized by law, or by regulations authorized by law. Internal Revenue Laws 1900, p. 47, § 321 (Rev. St. U. S. § 321 [U. S. Comp. St. 1901, p. 186]), gives the internal revenue commissioner general supervision of the collection of taxes imposed by any internal revenue law, and authorizes him to prepare and distribute instructions, regulations, etc., pertaining thereto; and one of the regulations providing for the collection of taxes on distilled spirits required collectors to examine distillers’ sureties, and to require them to “justify” on a prescribed form. Held, that under such provision an oath taken by a distiller’s surety, with reference to his qualifications, before a deputy collector, was an oath taken in a case in which “a law of the United States authorizes an oath to be administered,” within Rev. St. U. S. § 5392 [U. S. Comp. St. 1901, p. 3653], defining perjury.</p> <p>2. Same—State Law.</p> <p>Where defendant swore falsely, as to his qualifications to become a surety on a distiller’s bond, before a deputy internal revenue collector, he was properly charged with perjury thereon, as defined by Rev. St U. S. § 5392 [U. S. Comp. St. 1901, p. 3653], though under the state law perjury could only be committed in a judicial proceeding, other false oaths being defined and punished as “false swearing.”</p> <p>3. Same—Notaries Public—Justice of the Peace.</p> <p>Act Cong. March 15, 1876, c. 304, 19 Stat. 206 [U. S. Comp. St. 1901, p. 662], provides that notaries public of the several states, etc., are authorized to take affidavits in the same manner and with the same effect as commissioners of the United States Circuit Court may lawfully take or do. Held, that since a United States commissioner was authorized by Act Cong. May 28, 1896, c. 252, 29 Stat. 184 [U. S. Comp. St. 1901, pp. 499, 500], to take the oath of a proposed surety on a liquor distiller’s bond, on which perjury might be assigned, an indictment for perjury in the taking of such oath was not defective on the ground that the officer administering it styled himself as “notary public and ex officio justice of the peace.”</p>

<p>In Admiralty. Suit to recover a general'average contribution from cargo owner.</p>

<p>On Review of the Decision of the Board of General Appraisers Sustaining the Protest of the Defendant against the Action of the Deputy Collector at Minneapolis, Minn.</p>

<p>In Admiralty. Suit to recover damages arising from alleged neglect of pilot.</p> <p>On the early morning of the 14th of January, 1901, a collision occurred in Chesapeake Bay, near Thimble Light, between the George Churchman, a three-masted schooner, and the steamship Santuit, at the time in charge of respondent Guy, a member of the Virginia Pilot Association. Subsequently to the collision, upon threatened suit by the Churchman against the Santuit, the latter adjusted and paid the damages occasioned by such collision, amounting to $3,175, and Donald, the owner of the Santuit, afterwards filed this libel against the pilot and 26 others, the individual members of the Virginia Pilot Association, to recover the amount thus paid, alleging that the collision in question resulted solely from the negligence of the pilot, Guy. Exceptions were duly taken to this libel, raising the questiofi of the liability of the pilots’ association, and the individual members thereof, for the acts of one of them, and whether or not, if liable, they should be held to answer at the suit of the libelant, who voluntarily settled the claim asserted against his steamship. The legal questions thus raised were decided adversely to the exceptants, and will be found reported in 127 Fed. 228, to which reference may be had.</p>

<p>1. Bankruptcy—Discharge—Concealment oe Property.</p> <p>The portion of the monthly salary of a public officer of a state which was earned, but not payable, at the time of his filing a petition in bankruptcy, did not pass to his trustee, and his failure to schedule the same was not, therefore, a concealment of property which defeats his right to a discharge.</p> <p>2. Same.</p> <p>Specifications of objection to the discharge of a bankrupt on various grounds considered, and held not sustained by the evidence.</p>

<p>Unfair Competition—Simulation of Trade-Names—Mail-Order Business.</p> <p>Complainant became the owner of the business and good will of an establishment in New York engaged in supplying clothing for infants and children under the name of “Best & Co., Biliputian Bazaar,” which advertised extensively, and had established a large mail-order business throughout the country. Defendant, the son of a former proprietor of the New York business, established a similar business in Chicago; using the name “A. S. Best & Co.,” and placing on his sign the words “Biliputian Outfitters,” and “Formerly with Best & Co., New York.” He also engaged in the mail-order business. Held, that it was the evident purpose of defendant to obtain the benefit of the advertising and standing of complainant’s business, and that complainant was entitled to an injunction restraining defendant from using the name “Best & Co.,” with or without prefixes, and also the name “Liliputian” in connection therewith, in competition with his own business. •</p> <p>[Ed. Note.—Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.]</p>

<p>Guaranty—Contract—Nonperformance—Discharge of Guarantor.</p> <p>A contract employing defendant’s son as plaintiff’s broker, which was signed by defendant as guarantor, required that the son should give a fidelity bond in such sum, and with such company as surety, as plaintiff should designate; plaintiff to pay the premium. Plaintiff sent the son a blank application for a bond, in a company selected by it, which he properly executed and returned to plaintiff, but the latter failed to obtain the bond until after the son’s defalcation. Held, that such bond was for the security of both plaintiff and the guarantor, and that plaintiff’s failure to obtain the same discharged defendant from liability on the guaranty.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. Certificate of referee.</p>

<p>Bankeuptcy—Acts—Attachment.</p> <p>A creditor’s petition in an involuntary bankrupt proceeding, which merely alleges as an act of bankruptcy that an attachment has been made of the debtor’s property in a legal proceeding, without reference to the disposition thereof, is insufficient, under Bankr. Act' July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. 1903, p. 410], providing that if the bankrupt suffer or permit, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before sale or final disposition of any property affected by snch preference vacated or discharged the same, he shall have committed an act of bankruptcy.</p>

<p>Admiralty—Allowance or Interest—Discretion of Court.</p> <p>While interest is recoverable in admiralty as a matter of right on claims arising out of contract, as on a claim for freight, the allowance of interest by way of damages, as in cases of collision or other cases of pure damage, as well as the allowance of costs, is in the discretion of the court.</p> <p>[Ed. Note.—For eases in point, see vol. 1, Cent. Dig. Admiralty, § 796; vol. 10, Cent Dig. Collision, § 284.]</p>

<p>In Admiralty. Sustaining exceptions to costs of commissioner.</p>

<p>Bankbottcy—Exemption—Time of Claiming—Amendment of Notice.</p> <p>While a notice in general language, both in a voluntary and involuntary petition in bankruptcy, of an intention to claim the exemption, may be amended if done in time, yet where the notice in either case is so general as not to indicate to the trustee what specific articles the bankrupt claims as his exemption, and-the bankrupt files no schedule and makes no request upon the trustee to set aside specific articles of exemption until after the sale, he must be regarded as having waived his right of exemption, and he cannot claim the amount thereof out of the proceeds of sale.</p>

<p>In Bankruptcy. On motion for new trial in involuntary proceedings.</p>

For opinion below, see 126 Fed. 968. This suit was originally instituted by plaintiff in error (hereafter called "plaintiff”) against the… Held: possessed, or owned, and does not now own, possess, or hold, any property or assets of any character, save and except the mining properties, and issues, profits, and emoluments therefrom; that, after the issue and delivery of the 1,000,000 shares of capital stock to Stratton, he remained the owner thereof for a long period of time;…

<p>1. Evidence—Relevancy on Issue or Negligence—Habitual Intoxication.</p> <p>Where the destruction of a large quantity of cotton by fire while it was piled in and around sheds on a dock was charged to have been due to a course of negligent conduct on the part of the agents and servants of defendant, which was in possession of the cotton as carrier, in so piling the cotton as to subject it to unnecessary danger, and as to render it difficult to discover a fire, if one should start, in time to stop it; in allowing cotton to be piled over the fire apparatus provided, so that it could not be used; and in failing to provide sufficient or competent watchmen —it was competent for plaintiff to show that defendant’s superintendent in charge of the dock, whose duty it was to attend to such matters, habitually became intoxicated and neglected his duties during the time the cotton was being placed on the dock.</p> <p>2. Witnesses—Examination—Responsiveness of Answer.</p> <p>To a question whether the gangways left between piles of baled cotton were straight, “or how were they?” an answer which, after stating that they were usually straight, added that “sometimes the cotton might happen to fall off and block them a little,” was responsive; the immediate question to which the examination was directed being as to whether the gangways were so left as to enable watchmen to readily discover a fire, should one start in the cotton.</p> <p>3. Depositions—Sufficiency of Objections. »</p> <p>A general objection to a question asked a witness on the taking of his deposition, as immaterial and irrelevant, without stating any specific-ground, was properly overruled.</p> <p>4. Error—Review—Admission of Evidence.</p> <p>Error cannot be assigned in the appellate court to the admission in evidence of letters, a portion of which was relevant, on the ground that other parts were not, where no motion was made to strike out the irrelevant parts.</p> <p>0. Evidence—Relevancy.</p> <p>Upon the issue as to the negligence of a railroad company in failing to employ a sufficient number of watchmen to guard a large quantity of cotton piled upon its wharf against fire, evidence as to the existence at 'the time of labor disturbances relating to men employed on ships loading at such wharf was competent.</p> <p>6. Negligence—Instbuctions—Proximate Cause.</p> <p>In an action to recover damages for loss of property by fire, while In defendant’s possession as carrier, through the alleged negligence of defendant in failing to take proper measures for its protection, the failure of the court to specifically define in its instructions the distinction between proximate and remote causes was not reversible error, where the jury were told that, to authorize a recovery, the defendant must not only have been negligent, but its negligence must have been the “direct cause” of the loss.</p> <p>7. Tbial—Instructions—Refusal of Requests.</p> <p>Instructions requested, although technically correct, are properly re-. fused where the court, in its general charge, has covered the ground in different language.</p> <p>8. Same.</p> <p>Instructions requested in an action for negligence considered, and held properly refused, as either covered by the general charge, or as omitting pertinent facts shown by the evidence.</p>

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

The Indian Land & Trust Company, a corporation, exhibited its bill in equity against J. Blair Shoenfelt, United States Indian agent, Samantha Barnett, and T. A. Barnett, the guardian of Sally Hodge, a minor, in the United States Court in the Indian Territory, in the Western District at Muskogee.

The Choctaw Construction Company and the Choctaw, Oklahoma & Gulf Railroad Company sued the American Surety Company to recover damages alleged to have been sustained by the failure of certain contractors, for whom the defendant was surety, to fulfill a contract for the sale and delivery of railroad ties. The construction company was engaged in building a railroad in Arkansas, and the railroad company was engaged in building one in the Indian Territory.

At the conclusion of the evidence offered by plaintiffs in error in support of the two counts of their declaration, the court directed the jury to return a verdict for the defendant.

This is an appeal by the trustee of the above-named bankrupts from an order of the District Court of the Southern District of New York, affirming the decision of the referee in bankruptcy which dismissed the objections of the trustee to the proof of claim filed by Emma B. Dresser and allowed the said claim. The claim was filed originally August 26, 1903. January 21, 1904, the trustee filed objections. March 3, 1904, the claimant filed an amended proof of claim.

The defendant in error filed this suit June 24, 1902, in the Second Judicial District Court of Bossier Parish, state of Louisiana, charging that the plaintiff in error (defendant below) was a corporation organized under the laws-of the state of Missouri, and owned and operated a line of road through said parish of Bossier, and that on its line near Bolinger is a heavy grade; that on March 21, 1902, his wife, in going over to Bolinger, passed along a pathway through his field…

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

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

<p>1. Pasties—Standing in Coubt—Disposition on Question.</p> <p>Ordinarily questions involving the standing of a party in court are influenced largely by the knowledge of the court as to the history of the proceeding, and are disposed of summarily upon discretion.</p> <p>2. Aliens—Chinese Exclusion—Appeal from Commissioner—Waiver.</p> <p>Where a Chinaman who had been ordered deported by the commissioner, and had perfected an appeal to the District Court within the statutory-period, entered into an agreement which purported to waive his right of appeal, but nevertheless appeared and demanded to be heard upon his appeal, which was still pending, and which had not been dismissed under the agreement, his status under his appeal so far involved his statutory right to an appeal as to render the question whether his executory agreement amounted to a complete and absolute waiver thereof or not, reviewable by the Circuit Court of Appeals.</p> <p>3. Same.</p> <p>Where a Chinaman who had been ordered deported by the commissioner perfected an appeal to the District Court within the statutory period, his right to appear and be heard upon his appeal was not forfeited by an agreement purporting to waive his appeal, which had remained merely executory, and under which the appeal had not been dismissed, nor the order of the commissioner affirmed, and in reliance on which nothing had been done.</p>

<p>1. Towage—Injury to Tow—Excessive Length of Line.</p> <p>The sinking of a barge in tow in the Schuylkill by striking against the-cribbing of a bridge while passing through the draw held due solely to the fault of the tug for towing with too long hawsers.</p> <p>2. Evidence—Admissions—Res Gestas.</p> <p>Statements made by the master of a barge which was sunk by collision-with a bridge, made at a subsequent time and different place, as to the-cause of the accident, are not admissible in a suit to recover for the loss, either as admissions binding the owner or as res gestee.</p> <p>3. Towage—Negligence of Tug—Liability for Loss of Tow.</p> <p>Where the striking of a barge in tow against the cribbing of a city bridge was due to the fault of the tug, she cannot shift the liability upon the city on the ground that if the cribbing had been in perfect condition, the collision would not have injured the barge.</p> <p>[Ed. Note.—For cases in point, see vol. 45, Cent Dig. Towage, §§ 11, 19.]</p>

The Tompkins County National Bank of Ithaca, N. Y., and the Bangor Savings Bank of Bangor, Me., having recovered judgments in the Circuit Court of the United States for the District of Nebraska against the city of Beatrice, Neb., upon certain municipal bonds and coupons, instituted proceedings in mandamus against the treasurer, mayor, and- council of the city to enforce the application thereon o“f funds in the city treasury and the levy and collection of taxes for the…

<p>Collision—Tow and Anchored Scow—Defective Steering Gear.</p> <p>A collision between the first of two tows on a long hawser and an anchored scow helé to have been due solely to the fault of the tow, whose steering gear had been out of order for some days, to the knowledge of the master and owners, by reason of which she failed 0to follow the tug, which had no knowledge of her defective condition, and was entitled to assume that she could be steered.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, §§ 73-81.]</p>

<p>Caekiees—Wrongful Ejection of Passengee—Damages.</p> <p>A judgment in favor of a passenger for $200 damages for wrongful ejection from a car on defendant’s railroad affirmed on the authority of Pullman’s Palace Car Co. v. King, 99 Fed. 380, 39 C. C. A. 573.</p>

Appeals from the Circuit Court of the United States for the Western and Southern Districts of New York. This cause comes here on appeal from two decrees of the United States Circuit Court for the Southern and Western Districts of New York, respectively (120 Fed. 952, 955), adjudging the validity of complainants’ patent No. 590,297, granted to John Buckley, September 21, 1897, and finding infringement, and directing an injunction and accounting.

<p>Patents—Validity and Infbingement—Flat Knit Caps.</p> <p>The Kahn patent, No. 669,011, claims 1 and 2, for a method of forming flat knit caps by expanding a tube of knitted fabric, having a band-forming selvage at one end, and setting it in the desired shape, instead of shaping the cap in the knitting as previously practiced, the result being to greatly increase the rapidity with which the caps can be made, and lessen the cost, disclosed patentable invention. Claim 3 for the product is void for lack of novelty. Claims 1 and 2 also held infringed.</p>

For opinion below, see 127 Fed. 158. This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, upon pleadings and proofs, dismissing the bill of complaint in a suit brought for infringement of United States patent 619,567, issued February 14, 1899, to William Hamilton for an improvement in face plates for burial caskets.

This cause comes here upon appeal from a final decree of the United States Circuit Court for the Southern District of New York granting an injunction and accounting in a suit in equity to restrain the infringement of letters patent No. 631,545, dated August 22, 1899, granted to Christian E. Loetzer, for an improved hydrant, and by him assigned to the complainant (appellee).

<p>Patents—Infringement by Corporation—Liability of Officers.</p> <p>Tbe president of a corporation not alleged to be insolvent cannot properly be joined with the corporation as defendant in a bill for an injunction and accounting for an alleged infringement of a patent by the corporation merely because as such president he directs the business of the corporation.</p>

In Equity. Suit for infringement of letters patent No. 701,776, for a combined mold and oven for making biscuit cups, granted to Antonio Valvona June 2,1902. On final hearing.

In Equity. Suit for infringement of letters patent No. 406,146, for a method of making lead traps, granted to Alpheus A. Robinson July 2, 1889. On final hearing.

<p>Patents—Infringement—Multiplying Camera.</p> <p>Tbe Jenkins patent, No. 620,036, for a multiplying camera, held valid, and infringed by á camera having tbe same construction, except that instead of tbe ‘‘cellular box” of tbe patented device, having separate cells, in front of each of which a lens is moved successively on a slide having both a horizontal and vertical movement, it employs a single cell, which is fastened to the slide, and moves with the lens; such construction being the equivalent of that of the patent.</p>

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

<p>Equity—Laches—Suit to Enforce Trust.</p> <p>Where defendant, on resigning the presidency of a railroad company, retained the title to certain property in another state, which had been donated to induce or aid in an extension of the road, claiming that the property was his own and did not pass to the company, which claim was shortly thereafter known to the officers of the company, a delay of over nine years before bringing suit to establish and enforce the trust, in the absence of any showing in excuse, was such laches as to bar the right to relief, where actions at law to recover the property would have been barred, under the laws of the state, in from three to seven years.</p> <p>[Ed. Note.—For cases in point, see vol. 19, Cent Dig. Equity, §§ 191-196; vol. 47, Cent Dig. Trusts, §§ 568-573.]</p>

<p>In Admiralty. Suit and cross-libel for collision.</p>

<p>1. Statutes—Constitutionality of Repeal—Vested Rights.</p> <p>Act Ark. Feb. 27, 1875 (Acts 1874-75, p. 189), authorized cities to call in outstanding warrants, and to reject such as were spurious, and to reissue those found to be genuine; but, as construed by the Supreme Court of the state, it gave a city no power to compel a holder to present his warrant thereunder, or to bar him of relief if he failed to do so. Held, that it was within the province of the Legislature to repeal such act, and the repeal was effective with respect to warrants then outstanding, since it did not deprive a city of any vested right.</p> <p>2. Municipal Coeporations—Power to Call in Warrants fob Cancellation—Arkansas Statute.</p> <p>Act Ark. March 27, 1893 (Acts 1893, p. 169), which empowers cities to call in outstanding warrants by order for cancellation and reissue not oftener than once a year, and provides that, if any warrant is not presented pursuant to such an order, it shall be barred, is not retroactive, and does not apply to warrants issued before its passage. If otherwise construed, it is unconstitutional, as impairing the obligation of contracts.</p> <p>3. Same—City Wabbants—Authority to Affix Seal.</p> <p>Sand. & H. Dig. Ark. § 5273, which provides that “each city council shall cause to be provided for its clerk’s office a seal * * * which seal shall be affixed to all transcripts, orders or certificates which it may be necessary or proper to authenticate under the provisions of this act or of any by-law or ordinance of the city,” does not authorize the affixing of the clerk’s seal to city warrants, nor does any other provision of Act March 9, 1875 (Acts 1874-75, p. 27), of which said section was a part; and, in the absence of a by-law or ordinance providing therefor, such affixing of the seal is unauthorized, and adds nothing to the dignity or effect of the instrument.</p> <p>4. Same—Limitation—Arkansas Statute.</p> <p>Under the law of Arkansas, the five-years statute of limitations covering unsealed instruments applies to actions on city warrants which are unsealed, or to which a seal has been affixed without authority of law; and, such warrants being payable on demand, the statute begins to run from the time of their delivery.</p>

<p>In Admiralty. Suit to recover extra pilotage.</p>

<p>In Admiralty. Suit by passenger to recover damages for ejection from steamship.</p>

<p>1. Cancellation oe Contract—Grounds—Construction.</p> <p>A contract assigned the legal title to a patent for a gas producer to a trustee for the benefit of a corporation, in consideration of the payment by the assignee of a stipulated share of all royalties received from licenses. The company subsequently found it desirable, for the purpose of introducing the invention, to build the producers itself, and engaged in such business at a profit, granting licenses to those for whom it built. The contract contained no provision respecting such building operations which were not at that time, contemplated, but the patentee was fully advised of the company’s action, and from time to time expressed his approval thereof. He also acquiesced in the substitution of a new trustee who paid a large sum for an interest in the company and in the patent. Helé, that in the absence of any provision in the contract, and under the facts shown, the building operations of the company did not constitute a violation of the contract which entitled the patentee to a cancellation thereof, nor was he entitled thereunder to a share of the profits from such business.</p> <p>2. Same.</p> <p>A provision of the contract requiring the company to keep accounts showing the licenses granted which should be subject to the inspection of the patentee did not give him the right to inspection of the books covering the construction work, and a refusal to permit such inspection therefore constituted no ground for cancellation of the contract</p>

<p>Stbeets—Dedication—Acceptance—Evidence.</p> <p>Where a space in an outlying town addition for a street was marked “closed” on the plat as recorded, and the owner of the land promptly asserted his ownership over it whenever occasion required, and it was never improved by the town, and used by the public only as outlying property connected with the town, there was no dedication thereof sufficient to subject it to a highway easement.</p>

In Bankruptcy. On. application for discharge. Under the standing rules of this court the referees in bankruptcy are required to report upon applications for discharge, and in this case the referee’s recommendation is adverse to the granting of the same, and.from which report the following appears: First.

<p>1. Bankruptcy—Sales—Vendor’s Lien—Retention op Property.</p> <p>Where claimant sold tobacco to a bankrupt, receiving the bankrupt’s notes as conditional payment, and claimant retained possession of the tobacco in question until after the bankrupt’s adjudication and until the notes matured and were unpaid, the title to the property so retained did not pass to the bankrupt’s trustee, except subject to the claimant’s existing lien for the unpaid portion of the price.</p> <p>2. Same—Extension op Credit—Waiver op Lien.</p> <p>Though claimant waived his right to a vendor’s lien by extending credit to the bankrupt, such lien was immediately revived, on the bankrupt becoming insolvent, as to so much of the tobacco as remained in claimant’s possession.</p>

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

On Demurrer to Special Plea. Civil action by the United States to collect a fine of $500, for which the defendant is alleged to have become liable under section 3449, Rev. St. [U. S. Comp. St. 1901, p. 2277], for having caused the transportation of certain casks containing bottled beer from its place of business, in the city of Seattle, to a place in Chelan county, in this state; said casks being falsely marked and designated as containing bottled soda water.

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

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

<p>1. Involuntary Bankruptcy—Petition—Provable Claims—Maturity.</p> <p>Where an Involuntary bankruptcy petition stated that the claims of the creditors signing the same were for goods sold and delivered, and that the alleged bankrupts purchased the same within a year from the date of the petition, it conformed to general order 37 (18 Sup. Ct. x), and was not objectionable for failure to state when the several amounts became due, the amount of the securities held, nor the manner in which the value of the securities was fixed.</p> <p>2. Same—Acts op Bankruptcy.</p> <p>Allegations of acts of bankruptcy in an Involuntary petition In the language of the act, without setting forth any other facts or circumstances, are insufficient.</p> <p>3. Same—Concealment op Assets.</p> <p>An involuntary bankruptcy petition, alleging that the alleged bankrupts within four months next preceding the filing of the petition committed an act of bankruptcy, in that within certain dates they removed, transferred, and concealed a large portion of their property, consisting of pieces of woolen goods, silks, linens, etc., from their place of business, with the intent to hinder, delay, and defraud creditors, and that petitioners are informed and believe that the goods removed, transferred, and concealed were of the value of at least $10,000, and that petitioners have Been unable to ascertain to what place the goods have been removed, was not demurrable on the ground that it stated merely conclusions, and not facts constituting an act of bankruptcy.</p>

<p>In Admiralty. Suit to recover freight and demurrage.</p>

<p>In Admiralty. On exceptions to amended libel.</p>

<p>1. Vendob and Purchaser—Rescission of Contract—Use and Occupation.</p> <p>Complainant, while in possession of certain land under contract of purchase, erected certain buildings thereon, which were occupied by defendant, and thereafter rescinded the- contract and relinquished to the vendor all rights, issues, and profits theretofore arising1 from the land. Complainant then recovered from the vendor all moneys paid by him on the contract of purchase, with interest, and then sued defendant for use and.occupation of such building. Held, that the profits derived from such use and occupation belonged to the vendor, and, he having demanded that defendant attorn to him therefor, complainant was not entitled to recover.</p> <p>2. Same—Acts of Agent—Defenses.</p> <p>Where the improvements for the use of which suit was brought had been constructed by complainant while he was manager of defendant, and paid for with defendant’s money, the buildings so constructed, so far as complainant was concerned, were the property of defendant, for the use of which defendant was not liable to complainant.</p>

<p>L Federal Courts—Jurisdiction—Partnership—Citizenship.</p> <p>Where a declaration by a partnership organized under Comp. Laws Mich. 1897, c. 160, §§ 6079, 6089, providing for the organization of limited partnerships in joint-stock corporations, etc., alleged that plaintiff was such a partnership, organized as stated, having- its principal place of business in K., and authorized to sue and be sued in the name of Y. Company, Limited, and that each and every member and partner of such association was a citizen of Michigan, such allegation sufficiently charged the citizenship of the parties comprising the firm to confer jurisdiction; such associations being quasi corporations.</p> <p>[Ed. Note.—Averments of citizenship to show jurisdiction of federal courts, see note to Shipp v. Williams, 10 C. C. A. 261; Mason v. Dullagham, 27 C. C. A. 303.]</p> <p>2. Same—Plea in Abatement.</p> <p>Where a declaration in an action by a partnership averred that the members thereof were all citizens of the state of Michigan, the defendant was entitled to challenge such averment, under the Illinois practice, by plea In abatement, unless waived by pleading to the merits.</p> <p>8. Same—Assumpsit—Money Received.</p> <p>An original declaration contained ordinary common counts on promises, after which complainant filed an amended declaration alleging the employment of defendant as plaintiff’s advertising agent under an agreement to pay defendant the actual cost price of such advertising, and 10 per cent, additional as compensation, and alleged that defendant fraudulently rendered false accounts of the cost of advertising inserted, and that plaintiff, being wholly ignorant thereof, overpaid defendant large sums of money sued for, which defendant unlawfully withholds from plaintiff, and for which it refuses to account. Held, that the averment of fraud in the amended declaration should be disregarded as immaterial, and that both declarations therefore stated a similar cause of action to recover money under a quasi contract.</p>

<p>Collision—Steameb and Schooneb Meeting—Excessive Speed in Fog.</p> <p>A steamer held In fault for a collision with a schooner in Long Island Sound in a fog because of her excessive speed of 10 knots, and her change of course after the schooner was seen on nearly a meeting course. The schooner held not chargeable with contributory fault, although her speed was about six knots, it appearing that the fog was not thick where she was, and that she was reducing sail as she entered the dense fog.</p> <p>[Ed. Note.—Collision rules—Speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

<p>Motion to Remand Action to the State Court.</p>

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

<p>In Bankruptcy.</p>

This is a second appeal. The former was from a decree sustaining a plea of res adjudicata and dismissing the bill. That decree we reversed for reasons appearing in our opinion reported under same style in 121 Fed., at page 313 et seq., 57 G. C. A. 9. When the case was remanded the defendant filed a demurrer. This was irregular after the former pie:.. But no objection was made below and no error assigned here.

The IEtna Indemnity Company, the plaintiff In error, a corporation organized under the laws of the state of Connecticut, having among other powers that of prosecuting a general surety business, and, as surety, to execute all classes of bonds and undertakings, including contractors’ bonds, had prior to March, 1902, complied with the laws of the states of Washington and Oregon regulating foreign surety companies, and, through its agents, Clemens & O’Bryan, of Portland, Or.,…

On October 9, 1903, the Boatmen’s Bank of St. Louis, Mo,, a corporation of the state of Missouri, brought an action of replevin in the United States Circuit Court for the District of Kansas against D. G. Fritzlen, Edna P. Fritzlen, his wife, and W. H. Weldon, residents and citizens of the state of Kansas, to recover the possession of certain cattle and other personal property ; and on October 16, 1903, the marshal took this property from the defendant D. G. Fritzlen, and…

This was an action brought by Robert B. Petty and Henry H. Negley, executors of the last will of Catharine R. Negley, deceased, against Charles E. Moore and William B. Chick, copartners as Moore & Chick, to recover certain moneys in the hands of defendants, received from the sale of a tract of land. The executors claimed that the land, when sold, belonged to the estate in their charge, and that the sale was made by defendants while acting ar their agents.

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

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

The bill in this cause was filed in the circuit court of Cabell county, W. Va., by J. H. Russell and D. W. Emmons, plaintiffs, suing on behalf of themselves and for the use and benefit of all other stockholders in the National Mutual Building & Loan Association of New York, a corporation of said state, conducting business and having estate in the state of West Virginia, and George J. Peet, trustee; and by appropriate proceedings the cause was duly removed into the United…

<p>1. Equity Pleading—Responsiveness of Answer.</p> <p>A denial in the answer in a suit for infringement of a patent that the patentee was the first inventor of the improvement described in the patent named in the bill, specifying it by number, is sufficient to raise the issue of invention, although the title of the patent as stated in the answer may be technically inaccurate.</p> <p>2. Same—Replication.</p> <p>The replication to an answer in equity cannot be made to perform the office of exceptions.</p> <p>3. Res Judicata—Decree Dismissing Bill Without Prejudice.</p> <p>A suit dismissed without prejudice is not a bar to a second suit, nor conclusive of any issue joined in favor of the complainant.</p>

<p>Manufacturing Companies—Supplies—Liens—Statutes—Construction.</p> <p>Code Va. 1887, § 2485 (Code 1904, p. 1246), provides that all persons furnishing supplies to a mining or manufacturing company necessary to the operation of the same shall have a prior lién on the personal property of the company other than that forming part of its plant to the extent of money due for such supplies, and a lien on all the estate, real and personal, of the company subject to any lien by deed of trust, mortgage, hypothecation, sale, or conveyance made or executed and duly admitted to record prior to the date the supplies were furnished; and section 2486 (page 1249) provides that no person shall be entitled to the lien so given unless he shall file and procure to be recorded a sworn statement of his claim within 90 days after maturity of the last item of his bill. Held, that the lien specified by section 2485 attached at the time the supplies were furnished, and not at the time the claim was filed under section 2486, so that an adjudication in bankruptcy against the debtor between the date of maturity of the last item of the account for supplies and the filing and recording of the claim did not destroy the claimant’s right to priority in the distribution of the bankrupt’s estate.</p>

The plaintiff in error, whose true name is alleged to be unknown, was jointly indicted with William F. Dasha, Thomas J. Dempsey, and Thomas T. Burnett for the crime of conspiracy, based upon section 5440 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3676].

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

<p>Petition for Revision of Proceedings 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 West Virginia.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of California, in Bankruptcy.</p>

<p>1. Federal Courts—Jurisdiction—Appeal.</p> <p>Ou appeal to the Circuit Court of Appeals in an action removed from the state court it is the duty of the Court of Appeals to determine whether the record exhibits a case properly removable, regardless of whether any objection was taken to the jurisdiction of the federal court either in the court below or on appeal.</p> <p>[Ed. Note.—Review of jurisdiction of circuit courts, see note to Excelsior Wooden-Pipe Co. v. Pacific Bridge Co., 48 C. C. A. 351.]</p> <p>2. Same—Diversity op Citizenship—Removal Petition—Designation op Complainant.</p> <p>Where a suit in equity was removed to the federal court on the ground of diversity of citizenship, an allegation that plaintiff was and is “a citizen of the state of Michigan,” plaintiff elsewhere being styled a “partnership association organized and existing under the laws of the state of Michigan,” in the absence of some further averment concerning the citizenship of the members of the association, was insufficient to establish that plaintiff was a citizen of the state of Michigan for the purposes of federal jurisdiction, unless plaintiff was a corporation of that state.</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—Partnerships—State Laws—Corporations.</p> <p>Const. Mich. art. 15, § 11, provides that “the term ‘corporations’ as used in the preceding sections of the article, shall be construed to include all associations and joint stock companies having any of the powers or privileges of corporations, not possessed by individuals or partnerships.” 2 Comp. Laws Mich. pp. 1883, 1888, as amended by Pub. Acts 1903, pp. 398-404, provide for the organization of “limited partnerships,” and also for partnership associations in which the capital subscribed is alone responsible for the debt of the association, but they are not declared by the statute to be corporations, though some of the powers of a corporation are conferred on them. Held, that such an association was not a corporation so as to become a citizen of the state in which it had its domicile for the purposes of federal jurisdiction, independent of the individuals composing it.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, §§ 860, 861.]</p>

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

The following is the opinion of Dowell, District Judge, in the court below: The charter party in this case provided: “(8) The cargo to be taken from alongside by consignee at port of discharge, free of expense and risk to the steamer as fast as steamer can deliver, weather permitting, Sundays and holidays excepted, provided steamer can deliver it at this rate; if longer detained, consignees to pay steamer demurrage at the rate of fourpence per net register ton per running…

<p>1. Bankruptcy—Courts—Property of Bankrupt—Adverse Claims.</p> <p>Bankr. Act July 1, 1898, c. 541, § 2, cl. 3, 30 Stat. 545 [U. S. Corap. St. 1901, p. 3421], authorizes courts of bankruptcy to appoint receivers on application of parties in interest, where absolutely necessary for the preservation of bankrupts’ estates; section 23, as amended by Act Feb. 5, 1903, c. 487, § 8, 32 Stat. 798 [U. S. Comp. St. Supp. 1903, p. 413], confers jurisdiction on such courts, without the consent of the defendant, in suits to recover property, where the bankrupt has within a specified time made a preferential or fraudulent transfer of any of his property; and section 69 (30 Stat. 565 [U. S. Comp. St. 1901, p. 3450]) provides that a judge on proof that an alleged involuntary bankrupt has neglected or is about to so neglect his property that it has thereby deteriorated or is deteriorating, etc., shall issue a warrant to the marshal to seize and hold the same subject to further orders. Seld, that such sections authorize courts in bankruptcy to interfere with property alleged to belong to an involuntary bankrupt only in cases where the property of the bankrupt Is in possession of a party not an adverse claimant, and do not authorize an order requiring a sheriff claiming property of an alleged bankrupt adversely under an attachment issued out of the state court to surrender the same.</p> <p>2. Same.</p> <p>...... „ The court of bankruptcy, under such sections, had jurisdiction to entertain the proceedings to ascertain whether the claimant was in fact an adverse claimant, or whether he held the property as bailee of the bankrupt</p>

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

<p>1. Bankruptcy—Receivers—Appointment Before Adjudication—Bonds.</p> <p>Bankr. Act July 1, 1898, c. 541, § 3, subd. e, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], provides that whenever a petition is filed to have another adjudged a bankrupt, and an application is made to take charge of and hold his property prior to the adjudication, the petitioner shall file a bond for the payment, in ease the petition is dismissed, to the respondent of all costs, expenses, and damages occasioned by the seizure; and section 69 (30 Stat. 565 [U. S. Comp. St. 1901, p. 3450]) declares that a judge, on satisfactory proof that the bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, etc., may issue a warrant for the seizure of his property by the marshal, but that before such warrant is issued the petitioner shall give bond, conditioned to indemnify the bankrupt for such damages as he shall sustain in the event the seizure shall prove to have been wrongfully obtained. Held, that where an order appointing a receiver for an alleged bankrupt before adjudication required the petitioner to give a bond, but failed to fix the time when the bond should be filed, and did not require such filing before the receiver was directed to take possession, of the property, it was erroneous.</p> <p>2. Same—Vacation.</p> <p>Where an alleged bankrupt applied to vacate an order appointing a receiver of his property before adjudication, on the ground that the petitioner had not filed the bond required by Bankr. Act July 1, 1898, c. 541, §§ 3 (e), 69, 30 Stat. 547, 565 [U. S. Comp. St. 1901, pp. 3423, 3450], the fact that at the time the motion to vacate was filed another creditor had filed á petition for an adjudication against the bankrupt, and had applied for a receiver and filed a bond conditioned that if his petition were dismissed he would pay expenses and damages occasioned by the seizure and detention of the bankrupt’s property thereunder, did not authorize the denial of the motion to vacate such order.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal by claimant from a decree awarding as salvage the sum of $2,500 against its scow Hughes Brothers and Bangs for services rendered by libelants in towing said scow from a point about 150 feet northeast of the lighthouse on Dry Romer Shoal to Dong Dock, Staten Island.</p>

These are appeals from decrees of the District Court, Southern District of New York, holding the steam tug Ganoga in fault for the loss of the canal boat J. T. Hawkes, which she had in tow. The Hawkes filled and sank while rounding the Battery, the tow being ■bound from Jersey City to places in the East river. The opinion of the District Court is reported in 130 Fed. 399.

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

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

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

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

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

<p>1. Patents—Separate Inventions op Joint Patents—Cream Separators.</p> <p>The Melotte and Reuther patent, No. 521,722, for improvements in cream separators, is void, as covering separate inventions of the joint patentees.</p> <p>2. Same—Estoppel op Patentee.</p> <p>There is no estoppel which prevents a patentee from testifying contrary to the oath made by him when applying for the patent in a suit between his assignee and a third party.'</p>

<p>1. Patents—Infringement—Injunction—Services—Contempt.</p> <p>Where a copy of an injunction issued against the infringement of a patent was served on defendant’s attorneys, and a copy was inclosed in a letter properly addressed and mailed to defendant, such service was sufficient to sustain a proceeding for contempt, defendant being bound by the injunction if actual notice thereof was acquired by it, independent of service.</p> <p>[Ed. Note—For cases in point, see vol. 10, Cent. Dig. Contempt, §§ 68-70; vol. 27, Cent. Dig. Injunction, §§ 437, 445-447.]</p> <p>2. Same—Infringement—Findings.</p> <p>Where, in proceedings against defendant for contempt in selling certain valves alleged to infringe complainant’s patent in violation of an injunction, complainant’s statements were based on information derived from the parties in whose possession i. ,• infringing valves were found, and defendant did not deny making tne sales, the trial court was justified in finding that the valves were infringements.</p> <p>3. Same—Contempt Proceedings—Notice.</p> <p>Where, in a proceeding to punish defendant for contempt in violating an injunction restraining the infringement of a patent, notice of the commencement of such proceedings was properly given to defendant’s solicitors, and, under order of court, a notice of the application for attachment and a copy of the affidavits to be used thereon were sent to defendant by registered mail, and returned marked “Refused,” defendant not having controverted the charge of contempt, an objection that the notice of the proceedings was not properly served was unsustainable.</p> <p>4. Same—Punishment—Disposition of Fine—Review.</p> <p>Where in contempt proceedings a part only of the fine assessed against defendant was awarded to the complainant, the proceeding was reviewable by appeal, though, if the entire fine had been so awarded, the order could have been reviewed only on writ of error.</p> <p>5. Same—Limitation of Award.</p> <p>Where, in a proceeding to punish defendant for contempt in violating an injunction restraining infringement of a patent, the court found that complainant was entitled to a portion of the fine, only so much thereof should be so awarded as evidence disclosed would be sufficient to reimburse complainant for its expenses necessarily incurred in prosecuting the contempt proceeding and loss consequent on violation of injunction.</p>

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

<p>Patents—Validity—Cab Tbucks.</p> <p>An order granting a preliminary injunction against Infringement of the Brill patents, Nos. 627,898 and 627,900, for a car truck, reversed on the authority of a decision of an appellate court adjudging such patents invalid.</p>

In Equity. Suit for infringement of letters patent No. 684,165 for a method of regulating electric circuits, and No. 684,340 for a regulating device for arc lamp circuits, both granted to Malcolm H. Baker, October 8, 1901. On final hearing.

In Equity. Suits for infringement of letters patent No. 667,662, dated February 5, 1901, and No. 713,209, dated November 11, 1902, both granted to Thomas A. Edison for processes for duplicating phonographic records. On final hearing.

In Equity. On final hearing of bill alleging infringement of letters patent No. 421,244, issued to Chisholm & Chisholm February II, 1890, for a “method of hulling peas.”

<p>Patents—Anticipation—Method op Hulling Peas.</p> <p>The Chisholm patent, No. 421,244, for a method of hulling peas, held not anticipated, valid, and infringed.</p>

<p>Fobeign Exectjtobs—Actions Against.</p> <p>In the absence of statute expressly authorizing suit to be brought against a foreign executor, such an executor, not having taken any steps to collect nonresident assets, cannot be sued in a state other than that wherein he was appointed.</p> <p>[Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 2344.</p> <p>Citizenship of executors and administrators as affecting jurisdiction of federal courts, see note to Shipp v. Williams, 10 C. C. A. 252.]</p>

<p>1. Collision—Determining Fault—Character of Witnesses in Conflict.</p> <p>Where the testimony on behalf of one of two vessels in collision as to. what was done on such vessel is clear and positive, or is given by men who are intelligent, experienced, and apparently reliable, while that on behalf of the other as to what was done thereon is conflicting or is given by witnesses who are ignorant or inexperienced and manifestly unreliable,, such facts must be taken into account in weighing the testimony and determining which vessel was in fault.</p> <p>2. Same—Presumption from Violation of Statute.</p> <p>Where the navigation of one of two vessels in collision was at the-time in charge of an unlicensed mate, in violation of the positive provisions of Rev. St § 4438, as amended by Act Dec. 21, 1898, c. 29, 30 Stat. 764 [U. S. Comp. St. 1901, p. 3034], there is a presumption that such fact caused or contributed to the collision, and the vessel has the burden of showing that it could not have done so.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, § 257.]</p> <p>3. Same.</p> <p>While there is a presumption that the privileged one of two meeting vessels, which came into collision, obeyed the law and kept her course, yet, when such presumption is overthrown, and her fault is clearly established, and is in itself sufficient to account for the collision, she can only avoid full liability by proving the fault of the other vessel beyond reasonable doubt.</p> <p>4. Same—Sailing Vessels Meeting.</p> <p>A collision at sea in the night between two meeting schooners held, on conflicting testimony of their respective officers and crews, to have been solely due to the fault of the privileged vessel in changing her course just previous to the collision.</p>

<p>1. Trading Stamps—Advertising—Interference with Complainant’s Business.</p> <p>The bill alleged that complainant issued trading stamps for advertising purposes, which it sold to merchants under a contract providing that when the stamps were so issued they should be redeemed by complainant in goods; that complainant’s income was derived solely from the sale of the stamps to merchants who issued the stamps; that the only promise made to the public by complainant was that it would redeem stamps procured from merchants authorized by complainant to issue them; that defendants obtained large quantities of such stamps by means of collectors, etc., and reissued them to defendants’ customers in such quantities as they chose, without having any contract with complainant. On demurrers to bill, held, that complainant had the right to restrict the use of the stamps by con-' tract, and the stamps, having been once issued by a merchant, were functus officio, except for redemption, and, though transferable for that purpose, defendants’ use thereof was an improper interference with complainant’s business, which complainant was entitled to restrain.</p>

<p>1. Removal of Causes—Counterclaim—Change of Parties—Local Prejudice.</p> <p>Where, after judgment in favor of a nonresident plaintiff was affirmed as to the original cause of action, but was reversed as to a counterclaim, defendant obtained leave to amend the counterclaim by increasing the amount demanded, such amended counterclaim did not change the status of the parties so that the defendant became the plaintiff in the action and the plaintiff became the defendant, and entitle plaintiff to remove the cause to the federal courts, under Act Cong. 1887-88 (Act March 3, 1887, c. 373, § 1, 24 Stat. 553; Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 509]), authorizing removal by nonresident defendants on the ground of prejudice or local influence.</p> <p>[Ed. Note.—Prejudice or local influence ground for removal of cause to federal court, see note to P. Schwenk & Co. v. Strang, 8 C. C. A. 95.]</p> <p>2. Same—Concurrent Jurisdiction.</p> <p>Where an action containing a counterclaim had been tried in a state court, and a judgment in favor of plaintiff on the main cause of action affirmed, but reversed as to a counterclaim, the state court having assumed and exercised jurisdiction to try a part of the action, it could not thereafter be removed to the federal courts for retrial of the counterclaim.</p>

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

<p>1. Witnesses—Depositions—Dedimus.</p> <p>An affidavit that witnesses live more than 100 miles from the place of the trial of the action, without proof of a well-grounded apprehension of a failure or delay of justice, is insufficient for the issuance of a dedimus under Rev. St. § 866 [U. S. Comp. St. 1901, p. 663], providing that, in any case where it is necessary in order to prevent a failure or delay of justice, United States courts may grant a dedimus potestatem to take depositions according to common usage, etc.</p> <p>2. Same—Statutes.</p> <p>Act Cong. March 9, 1892, c. 14, 27 Stat. 7 [U. S. Comp. St. 1901, p. 664], providing that, in addition to the mode of taking depositions in the federal courts, depositions may be taken in the mode prescribed by the laws of the state in which the courts are held; merely relates to the manner of taking depositions, and neither enlarges nor restricts the grounds for taking them prescribed by Rev. St §§ 863, 866 [U. S. Comp. St. 1901, pp. 661, 663].</p> <p>3. Same.</p> <p>Rev. St. § 863 [U. S. Comp. St. 1901, p. 661], authorizes the taking of testimony of any witness in a civil case pending in a federal district or circuit court by depositions de bene esse, when the witness lives a greater distance from the place of trial than 100 miles, etc.; and Act Cong. March 9, 1892, c. 14, 27 Stat. 7 [U. S. Comp. St. 1901, p. 664], provides that, in addition to the taking of depositions in a federal court, depositions may be taken as prescribed by the laws of the state in which such courts are held. Held that, where a party to a suit in the federal court applied to take a deposition on the ground that the witness resided more than 100 miles from the place of trial, he was not limited by the act of 1892 to the mode of taking the deposition orally before an authority named in the notice, but was entitled to take the deposition in the mode prescribed by the laws of the state in which the court was held.</p> <p>4. Same—Notice—Obal Evidence.</p> <p>Equity rule 67, as amended by the rule adopted May 15, 1893, provides that either party may give notice that he desires the evidence to be adduced in the case to be taken orally, and thereupon all the witnesses to be examined shall be examined by one of the examiners of the court, or by an examiner to be specially appointed by the court, and that on due notice the court may, in its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing. Held, that where complainant gave notice that he desired the testimony to be adduced orally on final hearing, and the court thereupon ordered that the parties might adduce such portion of the testimony orally on the' final hearing as they desired, such order was not in conflict with and did not prevent a subsequent order for the taking of testimony by depositions.</p> <p>5. Same—Special Examinees Outside the District—Appointment.</p> <p>The mere fact that it is generally advantageous to examine experts orally is not a sufficient reason to justify an order appointing a special examiner to take their testimony orally outside the district.</p>

<p>1. Bankruptcy—Petition—Hearing—Receivers—Jurisdiction.</p> <p>Where a receiver was appointed by a state court for an alleged bankrupt corporation, the court of bankruptcy, on an involuntary petition against the corporation, had no jurisdiction of the receiver prior to the corporation being adjudged a bankrupt, no relief being sought as against him.</p> <p>2. Same—Corporations Subject to Bankruptcy—Irrigation Companies.</p> <p>An irrigation corporation, organized to furnish water for the irrigation of rice fields, was not a corporation engaged in “trading or in manufacturing or mercantile pursuits,” and therefore not subject to be adjudged an involuntary bankrupt, under Bankr. Act 1898, c. 3, § 4b (Act July 1, 1898, c. 541, 30 Stat 547 [U. S. Comp. St 1901, p. 3423]), providing that any natural person, except a wage earner, or a person engaged chiefly in farming or the tilling of the soil, and any corporation engaged principally in manufacturing, trading, etc., may be adjudged a bankrupt.</p> <p>[Ed. Note.—What persons are subject to bankruptcy laws, see note to Mattoon Nat Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>3. Same—Quasi Public Corporations.</p> <p>A quasi public corporation, engaged in furnishing water for irrigation purposes, clothed with the right of eminent domain, and subject to statutory restrictions on such power, is not amenable to the federal bankrupt act, on the ground of public policy.</p>

<p>1. Collision—Steam Vessels Meeting—Burden of Proof.</p> <p>The burdened vessel, having been found chargeable with faults sufficient In themselves to account for a collision, has the burden of proving that they could not have caused or contributed to it, and every reasonable doubt is to be resolved in favor of the other vessel.</p> <p>2. Same—Burdened Vessel—Steamship and Tug with Tow.</p> <p>A steamship meeting a tug incumbered with a tow is under the duty1 of keeping out of the way and avoiding any risk of collision.</p> <p>3. Same—Evidence Considered.</p> <p>A steamship, which, having met and passed a tug with a barge in tow, on a line, in the Elizabeth river,'at a distance of 300 feet, immediately stopped and reversed, throwing her stem around across the course of the barge, resulting in a collision, helé solely in fault therefor, not only because the,evidence failed to sustain her contention that the movement was-justified by a sheering of the barge toward her, rendering it necessary* but also because she failed to give notice by signal, as required by article 18, rule 3, and article 28, of the inland navigation rules (Act June 7* 1897, c. 4, 30 Stat 100, 102 [TJ. S. Comp. St 1901, pp. 2882, 2884]); it further appearing that there was ample room in the channel for her to have kept further away.</p> <p>4. Same—Failure to- Call Witnesses.</p> <p>Where the evidence in favor of one of two vessels in collision largely, preponderates, including the testimony of disinterested witnesses, the failure of the other to call members of her own crew who were in a position to know the facts is a circumstance entitled to be considered against her.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, § 258.]</p> <p>5. Same—Initiating Passing Agreement.</p> <p>The fact that a tug with a tow, on meeting a steamer, gave the first passing signal, does not make the steamer the privileged vessel.</p>

<p>At Law. On rule for more specific statement of claim.</p>

<p>In Bankruptcy. On petition for discharge, and specifications of objections thereto.</p>

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

<p>Damages—Evidence—Opinion oe Experts—Consideration by Juey.</p> <p>Where the evidence of damages consists of the opinions of experts, the jury may give such evidence credence, or may apply their own experience or knowledge of the situation to the subject submitted to them as indicated by the facts; and while, if they take the range of the expert testimony alone, without applying their own knowledge or judgment, they may not go higher than the highest nor lower than the lowest figure of the experts, yet they may ignore such testimony altogether, and award no damages, or only nominal damages, or such as are, in their judgment, proper.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent Dig. Evidence, §§ 2395-2398.]</p>

<p>Internal Revenue—Legacy Taxes—Effect of Repeal of Statute.</p> <p>Legacy taxes under the war revenue act of June 13, 1898, e. 448, 5 29, 30 Stat. 464, as amended by Act March 2, 1901, c. 806, § 10, 31 Stat. 946 [U. S. Comp. St. 1901, p. 2307], which by section 30 are made due and payable one year after the death of the testator, are not collectible on the estates of persons who died within one year prior to July 1, 1902, at which time the repeal of said section 29 took effect [U. S. Comp. St. Supp. 1903, p. 279].</p>

<p>Bankruptcy—Dismissal op Involuntary Petition—Costs.</p> <p>Costs will be allowed to an alleged bankrupt on dismissal of an involuntary petition against him only after the filing of his bill of costs with the clerk and notice to the petitioning creditors.</p>

<p>In Admiralty. Suit in rem to enforce lien for repairs.</p>

<p>In Bankruptcy. Sur petition of the Magee Carpet Company for order on trustee to turn over property.</p>

<p>In Bankruptcy. Sur petition of Pollock & Caskel for order on trustee to turn over property.</p>

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

In Equity. The complainant filed a bill in this cause to subject a tract of real estate te the payment of a judgment which he had recovered in the United States Circuit Court for the Northern District of Texas against Sam White, Sr. The cause has been submitted to the court on the pleadings and the following stipulation of counsel: “For the purpose of submitting this cause for determination upon bill and answer it is agreed that the following facts are to be considered in…

<p>Bankruptcy—Recovery op Funds—Title.</p> <p>Where, in a proceeding by a bankrupt’s trustee to recover money from the manager of one of the bankrupt’s stores, the answer, admitted to be true, alleged that prior to the bankruptcy there were mutual accounts between defendant and the bankrupt, and that defendant applied to the payment of the balance due him by the bankrupt for salary the sum of $425.52, which he was authorized to do in accordance with his custom, and under an agreement with the bankrupt when he undertook the management of the business, the money so applied did not belong to the bankrupt’s estate at the time the petition was filed, and could not, therefore, be recovered in such proceeding.</p>

<p>1. ' Shipping—Injuries to Longshoreman—Negligence—Fellow Servants.</p> <p>Plaintiff, a longshoreman, was engaged in the bold of a barge, loading stone buckets, which, when loaded, were hoisted from the hold at a signal from a gangwayman by the operator of a steam winch. Libelant, with his partner, had loaded the bucket, and was in readiness to steady it so that it would clear the hatchway, and so informed the gangwayman, when the winchman negligently applied a full head of steam, suddenly snatching the bucket from its location upward against the starboard side of the hatch, where it hung under the coaming of the hatch, and then swung back to the port side, when the rope broke, and the bucket fell on libelant, causing his injuries. Held, that the injury was the result of the negligence of the winchman, who was not libelant’s fellow servant.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 492.]</p> <p>2. Same—Damages.</p> <p>Libelant, a longshoreman, 56 years of age, of robust health, good character and habits, and an excellent workman, having been in the service of his employers at the time of Ms injury for 10 years, and earning from $2 to $3 a day, was injured by the negligence of a barge winchman, resulting in a fracture of his thigh bone. He was confined to a hospital for two months, and at the time of the trial was still compelled to walk with crutches. He suffered considerable pain, and would not likely be able to follow his usual avocation. Held, that he was entitled to an allowance of $1,750 against the barge.</p> <p>LEd. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, §§ 359, 360.]</p>

<p>Action to Recover Rebate of Taxes Paid on Tobacco.</p>

<p>In Bankruptcy. On question certified by the referee, in substance, whether his general authority as referee extends to the consideration of an intervening petitioner’s claim to specific property or proceeds in the hands of the trustee, alleged to be the property of the petitioner, and not of the estate in bankruptcy.</p>

<p>Shipping—Damage to Cargo—Time op Delivery.</p> <p>A provision of a bill of lading requiring the consignee to be ready to receive the cargo as soon as the vessel was ready to unload, in default of which she was authorized to land, warehouse, or lighter the same at the consignee’s risk, does not relieve her from liability for damages arising from her failure to reasonably protect perishable goods landed on a dock upon a claim of delivery, where she refused to permit the consignee’s agents to remove them, although having no claim thereon for freight</p>

In Bankruptcy. Motion to confirm report of special master upon hearing of certain specifications filed in opposition to the bankrupt’s discharge.

In Bankruptcy. On review of the order of the referee taking jurisdiction of a controversy presented on behalf of the Merchants’ & Miners’ Bank, as petitioner, claiming ownership 'of certain shares of mining stock by purchase for the bank, through the bankrupt; such shares being in the hands of the secretary of the mining company for delivery to the owner.

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

<p>Bankruptcy—Opposition to Discharge—Entry op Appearance.</p> <p>General Order in Bankruptcy No. 32 (89 Fed. xiii), requiring creditors opposing a discharge to enter an appearance on the return day fixed by the order to show cause, allows a later filing, if at all, only on good cause shown for the delay.</p>

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

<p>In Equity.- On motion of complainant to retax costs.</p>

<p>On Motion to Strike Off Plea in Abatement.</p>

<p>Bankruptcy—Discharge—Pendency or Peoceedings—Restraining Aeeest.</p> <p>Bankruptcy proceedings .are still pending in the District Court, notwithstanding its dismissal of the petition to revoke the order of discharge of bankrupt, so as to authorize it by an order therein to restrain arrest of the bankrupt while the cause stands on review in the Circuit Court of Appeals on petition under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431].</p>

<p>Internal Revenue—Suit to Recover Taxes Paid—Statement of Claim.</p> <p>A statement of claim in a suit against a collector to recover internal revenue taxes assessed and collected from plaintiff as a broker under War Revenue Act June 13, 1898, c. 448, § 1, 30 Stat. 448, as amended by Act March 2, 1901, c. 806, § 1, 31 Stat. 938 [U. S. Comp. St. 1901, p. 2286], on the ground that plaintiff was not subject to such taxes, should set out the transactions on account of which they were assessed.</p>

<p>1. Shipping—Contract for Repairs—Custom of Measurement.</p> <p>Where it was the custom of a shipyard to add an arbitrary per cent., to the net measurement of timber used in repairing vessels, for wastage, a contract with such yard for making repairs to a vessel will be presumed to have been made with reference to such custom, in the absence of evidence to show otherwise.</p> <p>2; Same—Adjustment of Account.</p> <p>An account for materials and labor furnished in the repairing of a vessel considered and adjusted.</p> <p>8. Same—Demurrage—Basis for Allowance.</p> <p>The owner of a vessel cannot recover demurrage from a repairer on account of delay in completing the repairs, in the absence of contract, and of evidence showing an actual loss, or what her earnings during the detention would probably have been.</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. Trade-Marks—Infringement—“Hunter Whiskey.”</p> <p>Complainants and their predecessor since 1860 have sold a brand of whiskey for which they adopted and used as a trade-mark the arbitrary word “Hunter,” and their product became widely known throughout the country as “Hunter Whiskey,” and was the only whiskey known to the trade by that name, although the word “Hunter” was used by some other small dealers at various times, in combination with other words, as the name of a whiskey having a local market. Purchasers in bulk in some cases bottled the whiskey, using on the bottles white labels furnished by complainants, having thereon the words “Hunter Baltimore Rye Whiskey,” with the name of the immediate vender as bottler, and also a picture of a uniformed man on horseback. Complainants also sold some of their product in bottles having a dark label with the word “Hunter,” in white letters, conspicuously shown thereon, and a white medallion in the center, containing the same picture. After 1900 defendants began the sale of whiskey in bottles having a white label, with the picture of a huntsman on foot, with dogs, thereon, and the words “White Label Hunter Whiskey, Bottled by,” followed by their own name and address. Reid, that such labels were an infringement of complainants’ exclusive right of trade-mark in the word “Hunter,” and were calculated and evidently designed to induce the belief on the part of purchasers that the whiskey was that of complainants, bottled by defendants.</p> <p>2. Same—Right to Injunction—Prevention of Threatened Injury.</p> <p>The infringement of a trade-mark implies injury, and, where it is of such character as is calculated to deceive purchasers, the owner is not bound to wait until injury has actually resulted, before he can maintain a suit for relief by injunction.</p>

<p>At Law. On motion for stay of proceedings.</p>

<p>Motions—Rule to Show Cause—Sufficiency oe Motion P apees.</p> <p>Under the Pennsylvania practice, an affidavit filed as the foundation for a rule to show cause should contain concise averments of all the necessary facts to make a prima facie case for the relief sought.</p>

<p>In Bankruptcy. On review of referee’s decision on contested claim.</p>

On Application for Review of Decisions of the Board of United States General Appraisers. This case relates to three decisions of the Board of General Appraisers, which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by W. Helmrath. Among the issues raised was the question of whether the protests were sufficient under section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp.

<p>Customs Duties—Classification—Ornamental Feathers.</p> <p>Crude ostrich feathers, which in that condition are never used for ornamental purposesv but need to be dressed and otherwise manufactured before becoming suitable for such use, are dutiable as “feathers * * * crude,” and not as “ornamental feathers,” under paragraph 425, Tariff Act July 24, 1897, a. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675].</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question (G. A. 5,540, T. D. 24,910) affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by David Spero.

<p>Customs Duties—Measurement—Selvage oe Rugs.</p> <p>In assessing the duty “per square foot” provided for rugs In paragraphs 379, Tariff Act July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668], held, as to certain oriental rugs having a pile and a selvage, that the entire area of the rug, including the selvage, should be measured, in ascertaining the number of square feet,</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below related to merchandise imported by E. H. Bailey & Co. at the port of Philadelphia, and, following a previous decision of the board on the same subject (In re Stern, G. A. 4,306, T. D. 20,298), affirmed the assessment of duty by the collector of customs at that port.

On Application for Review of Decisions of the Board of United States General Appraisers. The decisions in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Menzel & Co., Meyer & Range, and Jules Weber. Note G. A. 5,424, T. D. 24,682.

On Application for Review of a Decision of the Board, of United States General Appraisers. For decision under review see G. A. 5,553, T. D. 24,939, which affirmed the assessment of duty on merchandise imported at the port of New York by A. Herzog.

<p>In Bankruptcy. On distribution of proceeds of bankrupt’s property.</p>

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

For opinion below, see 82 S. W. 855. This is an appeal from a decree of the United States Court of Appeals for the Indian Territory, which affirmed a dismissal for want of equity of a suit brought by C. W. Buster and others, who were not citizens of the Creek Nation, to prevent J, George Wright, Indian inspector of the Indian Territory, J. Blair Shoenfelt, the Indian agent for the Union agency, Guy P. Cobb, the tax collector for the Creek Nation, and John West, Indian…

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

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

<p>1. Res Judicata—Persons Concluded by Judgment—Bondholders of Railroad Company.</p> <p>A question as to the liability of the property of a railroad company to taxation, decided in a suit to which the company was a party, is not res judicata as against holders of mortgage bonds of the company, previously issued, where no one representing the mortgage interest was a party.</p> <p>2. Taxation—Suit to Enjoin Enforcement—Interest of Complainant.</p> <p>A holder of mortgage bonds of a railroad company has such an interest in its property as entitles him to maintain a suit to enjoin its illegal taxation, where a proper showing is made of the refusal of the mortgage trustee to prosecute such suit.</p> <p>[Ed. Note.—Persons entitled to injunction restraining, or damages for wrongful enforcement of, tax, see note to Bayles v. Dunn, 54 C. C. A. 550.]</p> <p>8. Same—Statutory Exemption ■ of Railroad Company—Effect of Reorganization under Maryland Statute.</p> <p>Code Md. 1888, art. 23, §§ 187, 188, which provide that on the sale of any railroad under a mortgage the purchaser shall be authorized to form a corporation to own and operate such railroad, which shall “possess all the powers, rights, immunities, privileges and franchises in respect to such railroad, and in respect to the real and personal property appertaining to the same which were possessed or enjoyed by the corporation which owned or held such railroad previous to such sale” under its charter or any statute of the state, are broad enough to pass to the reorganized company an exemption from taxation for a term of years conferred upon the original company by a special statute, the word “immunities” being an apt term to express the intention of the Legislature that an exemption from taxation should be Included in the rights vesting in the new company.</p> <p>4. Federal Courts—Following State Decisions—Construction of Statutes. •</p> <p>A federal court is not bound to follow the construction placed upon a state statute by the local courts in a suit involving rights under the statute which accrued prior to such construction.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, § 957.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hite v. Hite, 29 C. C. A. 553.]</p> <p>5. Constitutional Law—Impairment of Contract—Exemption from Taxation.</p> <p>Where, by special act of the Legislature of a state, a railroad company is exempted from state, county, and municipal taxation for a term of years, such grant creates a contract between the state and the company* and those who subsequently become its creditors or succeed to its rights* which is impaired by the state, within the inhibition of the federal Constitution, by the taxing of the company’s property by the local authorities under the general powers conferred on them by statute.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 303.]</p> <p>6. Taxation—Exemption of Railroad—Construction of Statute.</p> <p>A railroad company authorized by its charter to build a road between two terminal points on a designated route was by special act granted an exemption from taxation on its property for a term of years after completion of its road. It was also authorized generally by the sam& act to build or acquire by purchase other lines of road. Held, that the property exempted from taxation was limited to the road built under its charter and such other property as was necessary for its operation.</p>

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

<p>1. Vendor and Purchaser—Construction of Instrument—Contract of Sale or Option.</p> <p>Where an instrument purporting by its terms to be a contract for the sale of the coal underlying certain land was signed only by the owner of the land, and was thereafter referred to in all communications between the parties and in assignments of the instrument, and treated by all parties connected with the matter, as an option only, it will be so construed.</p> <p>2. Specific Performance—Contract Enforceable—Option to Purchase Coal Lands.</p> <p>Defendant, who was the owner of land underlaid with coal, executed a paper by which he agreed to sell the coal to one R. It provided that unless a first payment should be made by a date named, or as soon thereafter as the title should be examined and accepted, the agreement should be considered as rescinded. R. was acting as a broker in obtaining options for a company which sent defendant a written acceptance of the option, but did not make any payment at the time stipulated, nor when the abstract had been approved, and subsequently became insolvent and abandoned the purchase. About 18'months after the agreement, R. obtained an extension- agreement signed by himself and defendant, but not under seal, by which the time was extended to a day fixed, and R. agreed that, if payment was not made by such time, he.would surrender the “option” and all other papers. Such payment was not made, but several months thereafter R. transferred his rights to complainant, who-demanded a conveyance, which was refused. Held, that the agreement was merely an option, and time was of its essence, not only by its terms, but in view of the nature of the property, and that, under the facts shown, a court of equity would not decree its specific performance by defendant after the property had increased in value.</p>

On Petition for Review. This is a petition to superintend and revise in matter of law the proceeding of the District Court of the Second Judicial District of the territory of Oklahoma in the county of Kingfisher upon a petition of the Plymouth Cordage Company, a corporation, for an adjudication that its debtor, J. A. Smith, was a bankrupt. The petition for review was met in this court by a demurrer, so that all of its averments are admitted.

<p>1_ Equity—Right to Maintain Suit—Coming into Court with Clean Hands.</p> <p>The maxim of equity that a complainant must come into court with clean hands has reference to fraud or misconduct on the part of complainant in regard to the transaction which is the subject of controversy, and the fact that there was fraud or illegality in the organization of a corporation cannot be set up to defeat its right to maintain a suit for the enforcement of a contract made by it, and of which the defendant received and retains the benefit.</p> <p>[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Equity, § 186.]</p> <p>2. Corporations—Powers of Directors—Declaring Dividends.</p> <p>The directors of a corporation are impliedly vested with a discretionary power with regard to the time and manner of distributing its profits, and, in the absence of fraud or an abuse of discretion, their action in leaving profits earned in the business instead of distributing them to the stockholders in dividends is legal,' and constitutes no violation of the rights of a stockholder.</p> <p>[Ed. Note.—For cases in point, see vol. 12, Cent Dig. Corporations, §§ 1288, 1289.]</p> <p>S. Contract in Restraint of Trade—Consideration—Legality.</p> <p>Defendant entered the employment of complainant corporation under a contract by which, in addition to his salary, certain stock of the corporation was to be held for his benefit, and the profits or dividends applicable thereto were to be credited, to him toward the purchase price. The contract provided that should he leave the employment for the purpose of entering into a competing business his right to the stock should be forfeited, and he should be entitled only to such sum as had been actually credited to his stock account, but that should he be discharged or leave for any other purpose he should receive the book value of the stock, less the amount due thereon. The company earned a profit the first year, but the same was used in its business, and no dividend was declared and no credit passed to defendant on his stock. Shortly thereafter he left the employment. Held, that the payment to him by the company of the book value of the stock, less the purchase price, the amount paid being about 25 per cent, of the face value, constituted a good consideration for a contract by him not to enter into or assist in any competing business for a term of 10 years, and that such contract was legal and enforceable, being ancillary to and in accordance with the original contract of employment.</p> <p>4. Same—Territoriai, Restriction.</p> <p>A contract not to enter into business in competition with a complainant for a term of years, based on a good consideration, may lawfully extend to all territory wherein complainant’s trade is likely to go, having regard to the nature of the business.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 554-569.]</p>

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

The defendant in error brought an action against the plaintiff in error to recover damages for personal injuries sustained in a train wreck on February 17, 1901. The defendant in error was a mail clerk on a railroad train which was ditched near Mill City by the washing out of a fill or embankment. The "embankment was about 150 feet long, 24 feet high, and 16 feet wide at the roadbed, and sloped gradually downward and away.

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>For opinion below, see 131 Fed. 543.</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>Appeal from the District Court of the United States for the Southern District of New York. For opinion below, see 132 Fed. 148.</p>

<p>Appeal from the Circuit Court of the United States for the Western District-of New York. For opinion below, see 131 Fed: 265.</p>

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

<p>Appeals from the District Court of the United States for the Eastern District of New York.</p>

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

<p>In Error to the Circuit Court of the United States for the Southern District of Florida. On rehearing. For former opinion, see 135 Fed. 1.</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia. On rehearing. For former opinion, see 134 Fed. 705.</p>

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

<p>On Motion to Make Complaint More Definite and Certain.</p>