Volume 136 — Federal Reporter

<p>1. Federal Courts — Jurisdiction—Suit fob Partition.</p> <p>A suit for partition is a local action within the provisions of Act March 3, 1875, c. 137, § 8, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], and. one in which any question between any of the parties, plaintiffs or defendants, affecting their rights or interests in the land may be put in issue and determined; and a federal court is not without jurisdiction because questions may arise between plaintiffs who are citizens of the same state, nor will it make a realignment of parties to defeat its jurisdiction because such questions may arise, where the bill, although properly setting out the interest of each party in the premises, does not disclose any controversy which renders it necessary.</p> <p>2. Abatement — Another Action Pending — Federal and State Courts.</p> <p>The pendency of a suit in a state court cannot be pleaded in bar of a suit between the same parties on the same cause of action in a federal court.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent Dig. Abatement and Revival, §§ 87-92.</p> <p>Pendency of action in state or federal court as ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.]</p> <p>3. Res Judicata — Validity of Judgment — Affirmance in-Direct Proceedings.</p> <p>Where a question as to the validity of a judgment of the Supreme Court of a state was raised in such court by a petition for rehearing, and decided adversely to the petitioner, who thereupon removed the case to the Supreme Court of the United States by writ of error, where the same question was "raised, and the judgment of the state court was affirmed, such question is res judicata, and cannot be again raised collaterally between the parties.</p> <p>4. Same — Matters Concluded by Judgment.</p> <p>The heirs of a deceased wife brought suit in a state court to recover a half interest in certain real estate as community property in which their mother’s interest descended to them." At the time of her death plaintiffs were minors, and their interests in the- property were thereafter sold and conveyed by their guardian to their father under an order of the probate court The father then mortgaged the entire property to the defendant in the suit for money borrowed to improve the same, and such defendant subsequently bought it in on a foreclosure of the mortgage. By the final judgment of the court, entered pursuant to a mandate of the Supreme Court of the state, the guardian’s deed, the mortgages to the defendant, and the conveyance based thereon were held void and set aside as to the half interest in the property held by the wife, and plaintiffs were adjudged the owners of an unincumbered, undivided half interest in the property, together with the tenements, hereditaments, and appurtenances thereto belonging, free and clear of all incumbrances, and free from any right or title of the defendant thereto. The defendant moved the Supreme Court to modify its decree so as to leave open for adjudication by the court below all questions as to the rents, taxes, and repairs, and the value of permanent improvements placed on the premises with money borrowed from it as mortgagee, which motion was denied. Held, that the judgment was an adjudication of the defendants’ rights with respect to the improvements, rents, etc., and that such rights could not be again contested in a subsequent suit for partition brought by the heirs.</p> <p>5. Tenancy 'in Common — Recovery from Co-tenants for Improvements— Bona Fide Purchaser.</p> <p>A tenant in common, who became such through a purchase by which he supposedly acquired the entire title, can only recover from his co-tenants for improvements made upon the property where he occupies the position of a bona fide purchaser; and he does not have such stand ing as against his co-tenants where at the time of his purchase he had full knowledge with respect to conveyances which purported to divest them of their interest, but which were in law fraudulent and void, merely because through mistake of law he relied on their sufficiency.</p> <p>6. Same.</p> <p>A mortgagee, who acquired title to the property through foreclosure, and who had full knowledge, when he took the mortgage, of probate proceedings by which it had been sought to vest the interest of certain minor heirs in the property in the mortgagor, which proceedings were fraudulent in law, and were afterward set aside, is not entitled, as a tenant in common with such heirs, to recover from them for improvements placed on the property by the mortgagor either as a bona fide purchaser or through subrogation to the rights of the mortgagor, who, being a purchaser mala fides, could not recover for such improvements.</p>

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>In May, 1898, the plaintiff in error, hereinafter for convenience called the “Bridge Company,” had under construction a bridge over the Ouachita river, at Monroe, in the state of Louisiana; and the defendant in error, hereinafter designated for convenience as the “Brick Company,” was then engaged in the manufacture of brick at Malvern, state of Arkansas. A contract at that time was entered into between said parties, whereby the Brick Company was to furnish the Bridge Company brick to be used in said bridge work. On December 7, 1898, the Brick Company brought suit by attachment against the Bridge Company in the state circuit court at Hot Springs, Ark. for the recovery of $438.27 on account of balance due for brick sold and delivered, growing out of said contract. To this action the Bridge Company filed answer on the 16th day of February, 1899, which began as follows: “Comes the defendant, by Rose & Coleman, its attorneys, and for answer and by way of counterclaim says: Defendant admits that it is a corporation duly organized under the laws of the state of New York and engaged in the business of building bridges. It admits that at or about the time mentioned. in the complaint the plaintiff contracted to sell to the defendant a kiln of brick containing about five hundred thousand of brick, more or less, and to ship the same to the defendant at Monroe, La., at the rate of six ears a day.” The answer then alleged that the plaintiff was informed at the time that 'the brick were to be used for building piers in said bridge, and that the contract for construction of the bridge required that plaintiff’s brick should be used therein, and that with this knowledge the plaintiff sold to the defendant a particular kiln of brick that was then being burned; that in pursuance of said contract the brick mentioned in the co'mplaint were shipped to the defendant; that the plaintiff refused and failed to carry out its said contract by delivering the brick, although often requested thereto; that the plaintiff was notified by defendant that it could not carry out its building contract without said brick, and that in consequence of plaintiff’s failure to keep and perform said contract it sustained great loss and damage, in the manner set forth in the answer; that it had to buy brick from other sources at an advance price of two dollars per thousand over the contract price with the plaintiff; and that in consequence of the delay to obtain the material a rise in the river injured defendant’s work in process of construction. It asked judgment against the plaintiff in the sum of $4,600. To this answer the Brick Company, on the 16th day of February, 1899, made reply. It denied that it ever contracted to sell the Bridge Company a kiln of brick, or any particular quantity, but only agreed as to the price to be paid for the quantity delivered. It denied any information that the Bridge Company’s contract prohibited it from using any brick other than those of the Brick Company. It denied that it failed or refused to carry out its contract with the defendant, or that the defendant was compelled to stop work by any action or nonaction on the part of the plaintiff, and took issue on other new ■matter pleaded in the answer. In the' second paragraph of the reply it alleged that on December 10, 1898, after the institution of plaintiff’s suit against defendant, the defendant brought suit in the Circuit Court of the United States for the Eastern District of Arkansas, in ■ which the Bridge Company set up and relied upon the same identical cause of action set out in its counterclaim in this action, which suit was still pending and undetermined.</p> <p>At the trial term of said suit in the state court the Bridge Company made application for a continuance until the next term of court; and afterwards, on the 14th day of March, 1899, the cause was continued by consent until the August term, 1899. At said August term, the cause coming on for trial, the record recites that the plaintiff appeared by its attorney, and the defendant is three times called and comes not. “Whereupon the cause is submitted to the court on the complaint of the plaintiff, the affidavit for attachment, the answer of the defendant heretofore filed, and reply of the plaintiff, and written and oral evidence introduced in open court; and the cour-t, being well and sufficiently advised as to what judgment to render herein, finds the issues of law and of fact for the plaintiff, and finds the following facts.” The judgment then proceeded to recite that the defendant was indebted to the plaintiff in the sum of $438.27, with interest on $351.2i7 of said sum from the lOtii day of November, 1898, at 6 per cent, per annum, and with interest on $87 of said sum from the 1st day of December, 1898, at 6 per cent, per annum, for which sum judgment was rendered, which was directed to be executed on the attached property. It appears that one Jabez M. Smith had been appointed attorney ad litem for the defendant, and there was taxed in said judgment the sum of $10 as costs for his services. It seems that to the action pending in the United States Circuit Court, referred to in the answer, the Brick Company appeared, and, inter alia, interposed the plea of res adjudicata, based upon said judgment in the state court. That action was afterwards discontinued; and on the 31st day of July, 1901, the present suit was instituted by the Bridge Company against the Brick Company in the said United States Circuit Court in which the Bridge Company sets out substantially the same facts pleaded in its answer and counterclaim in said action in the state court respecting said contract and its breaches by the Brick Company, and prays judgment for the sum of $3,000. To this suit the Brick Company made answer, setting up the sale and delivery of the brick, which was the basis of its action in the state court, aggregating the sum of $1,479, and, after allowing credits, left due and unpaid a balance in the sum of $438.27, for which it brought suit as aforesaid and recovered judgment in the state court. The answer then set out in detail the appearance and answer of the Bridge Company to said suit in the state court, and the facts pleaded and alleged therein, substantially the same as the facts and matters alleged in the present suit, and pleaded the judgment therein as res adjudicata. The answer then further pleaded substantially the same facts set up in its reply to the action in the state court respecting said contract, claiming that it fully complied with the contract it did make, and that the Bridge Company failed to keep the contract on its part by paying the Brick Company for the brick delivered. The Bridge Company demurred to that portion of the answer which set up the plea of res adjudicata, which demurrer was overruled.</p> <p>It appears from the transcript of fhe record and proceedings from the state court in said case of the Brick Company against the Bridge Company that the judgment originally entered therein omitted, in the recitation, the words “and reply of plaintiff” in the paragraph, to wit: “Whereupon this caS-e is submitted to the court upon the complaint of plaintiff, the affidavit for attachment, the answer of the defendant heretofore filed, and written and oral evidence introduced in open court.” This judgment of the state circuit court, on the 10th day of February, 1900, was amended by an entry nunc pro tune, which is as follows: “On this day comes the plaintiff and suggests to the court a diminution of the record in this action; and, it being within the knowledge of this court that this case was on the 17th day of August, 1899, submitted to the court upon the complaint of plaintiff, the answer of the defendant, and the reply of the plaintiff, and written and oral evidence, and that the record of the judgment fails to mention the reply as one of the pleadings on which the case was submitted, it is by the court ordered that the record on the trial and judgment of this action made on the 17th day of August, 1899, as appears on page 43, Record B of the records of this court, be amended by interlineation, so as to show that the cause was submitted on the reply of the plaintiff to defendant’s answer, among other pleadings, and the amendment is accordingly made.” A trial by jury having been waived on written stipulation of the parties, the cause was submitted to the court for trial. The court made a finding of the facts substantially as aforesaid respecting the judgment obtained in the state court, and the nunc pro tunc entry inserting the word “reply” as aforesaid, which the court finds was made without notice to the Bridge Company and without its knowledge. Evidence was introduced to disprove the allegations in the counterclaim. Upon such findings the court decided that the defendant, the Clark Pressed Brick Company, was entitled to judgment sustaining its plea of res adjudicata, and rendered judgment for the defendant, to reverse which judgment the Bridge Company prosecutes this writ of error.</p>

<p>Appeal from the District Court of the United States for the Northern District of West Virginia, at Clarksburg, in Bankruptcy.</p>

On May 3, 1901, the appellant filed its bill in equity against the appellee to enjoin obstruction to the navigation of the Wishkah river.

Herron recovered a judgment against the railway company for damages suffered through the burning of his hay and other property by fire claimed to have been communicated thereto through the negligence of the company.1 Without contradiction, the evidence established plaintiff’s ownership of the property; its value; its destruction by fire in the afternoon of the day named; the location of the property at a distance of about three miles northeasterly from defendant’s railroad;…

<p>1. Post Office — Fraudulent Use of Malls — Scheme to Defraud.</p> <p>An indictment alleged that defendant and another devised a scheme to defraud certain persons named, “which said scheme to defraud was to be effected by opening correspondence and communication with such persons and by distributing advertisements, circulars, prospectuses and letters by means of the post-office establishment of the United States and by inciting such persons to open a correspondence through such post-office establishment, with them, the said [defendants named], concerning said scheme, which scheme was then and there as follows, to wit,” etc., followed by a specification of the scheme, in which it was alleged that defendants made through the mails a number of representations, which were all false and known by them to be false, and that, in reliance upon such representations, persons named in the indictment were induced to, and did, give to defendant and his associate certain sums of money, and that, in furtherance of such scheme, a certain specified letter was placed in the mails, etc. Held, that the indictment was not fatally defective, in that it was not directly charged therein, and that it did not appear therefrom, that the alleged scheme to defraud included or contemplated a use of the mails or post-office establishment of the United States.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Post Office, § 72.]</p> <p>2. Same — Falsity of Representations.</p> <p>Where an indictment for misuse of the mails in furtherance of a scheme to defraud alleged that the representations made by letters, circulars, etc., sent through the mails, were utterly false and untrue in fact, and were known by defendant and his accomplice to be so, and it did not appear that defendant made any objection to the introduction of evidence on such branch of the case, he could not object for the first time on appeal that the indictment did not negative the truth of the representations alleged, on the ground that the allegations made were mere conclusions of law.</p> <p>3. Same.</p> <p>The gist of the offense being the scheme to use the mails in furtherance of a purpose to defraud, and an act done to carry out the same, and not the obtaining of money by means of false representations, the indictment was not defective for failure to negative the truth of such representations.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Post Office, § 72.]</p> <p>4. Same — Intent to Defraud.</p> <p>Where an indictment for misuse of the mails charged a scheme to defraud by means of false representations to be disseminated through the mails, that the scheme was carried out, that the representations were false and fraudulent, and that thereby certain named persons were induced to part with their money and give it to defendant, it was not necessary that the indictment should also allege that the scheme was formed by defendant with intent to defraud.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Post Office, § 72.]</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 California.</p> <p>On June 5, 1904, a complaint was filed by F. Ramos before a United States commissioner for the District of Hawaii, charging John Kerr, the appellant herein, with having assaulted and beaten the complainant on May 19, 1904, on board the United States army transport Buford, on the high seas, within, the admiralty and maritime jurisdiction of the United States, to wit, on the Pacific Ocean, and alleging that said appellant was an officer on said army transport, and a member of the crew thereof, and that said “District of Hawaii is the first district and jurisdiction into which said vessel has come' since said 19th day of May, 1904.” Thereupon said commissioner issued a warrant of arrest directing the United States marshal for the District of Hawaii to arrest the appellant. The marshal returned the warrant unexecuted, stating in his return that he could not find the appellant, who, he-alleged on information, had departed from the District of Hawaii on June 4, 1904, the day before the filing of the complaint. On June 29, 1904, Benjamin L. McKinley, Assistant United States Attorney for the Northern District of California, filed a complaint before a United States commissioner for that district, alleging the assault as stated in the complaint of said Kamos, and stating further that said District of Hawaii was the first district and jurisdiction into which said vessel had come since said assault; that a complaint had been filed in said District'of Hawaii as above stated, but that the appellant had fled from the District of Hawaii, and was now-, at large in the Northern District of California. A warrant was thereupon issued by the commissioner, and the appellant was arrested thereon, and upon a hearing had before said commissioner on June 29, 1904, he was held to answer on said charge before the United States District Court for the District of Hawaii. On July 1, 1904, said Assistant United States Attorney moved the District Judge for the Northern District of California for a warrant of re-1 moval of the appellant to the District of Hawaii on said charge. The motion was opposed by the appellant. The District Judge ordered the issuance of the warrant of removal directed to the United States marshal, the appellee herein. Thereafter, on July 2, 19Ó4, the appellant presented to the Circuit Court of the United States for the Northern District of California his petition for a writ of habeas corpus, directed to the appellee, also a petition for a writ of certiorari. In his petitions he stated the facts which have been above set forth, and further alleged that the order of removal was not warranted by law, because the District Court of Hawaii had no jurisdiction to try said charge, that the proper trial court was the District Court for the Northern District of California. The writs were issued, and upon the hearing the Circuit Court máde its order discharging both writs, holding that the appellant was not illegally restrained of his liberty. From that judgment the present appeal is taken.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of California.</p> <p>The defendant in error brought an action to recover damages for personal -injuries sustained while he was in the employment of the plaintiff in errólas locomotive engineer in a head-on collision between a limited passenger train west bound, known as “Train No. 3,” and a passenger train east bound, known as “Train No. 4,” on which the defendant in error was on duty as an engineer. He claimed that the collision and his injuries were caused by the negligence of a train dispatcher of the plaintiff in error. - The train dispatching office was at Needles, and its jurisdiction extended eastward from Needles to Seligman, Ariz., as well as over the division westward from Needles. The office was in charge of two chief dispatchers and six assistants, three of the latter being assigned to each division. Assistant dispatcher E. L. Moore was on duty and in charge of the work on the Arizona division, at and before the time of the collision. On November 20, 1901, at 4:22 o’clock in the morning, train No. 3, west bound, and about two hours late, was at Kingman, and train No. 4, east bound, and about twenty:two minutes late, was at Needles. Both trains were run on regular schedule or time cards when on time or but slightly delayed. On account of the unusual delay of train No. 3 on that morning, it became necessary to issue special orders for the operation of both trains over the Arizona division. At 4:12 a. m. Train Dispatcher Moore promulgated a special order No. 22 in words as follows: “No. 3 eng. 482 has right of track over No. 4 eng. 444 & 450 to Needles but will run 1 (one) hour & 50 mins, late Kingman to Needles.” Copies of this order were sent to Kingman and Needles, and were delivered to train No. 4 before 4:22 a. m., and to train No. 3 upon her arrival at Kingman at 4:21 of 4:22. At 4:22 train No. 4 departed from Needles, and ran east to Mellen, a distance of 11.9 miles, arriving there some time between 4:42 and 4:45, and stopped there upon a signal that there were orders to be delivered to it. At 4:21, it being apparent that No. 3 was more delayed in arriving at Kingman than had been expected, Train Dispatcher Moore promulgated special order No. 23, as follows: “No. 3 eng. 482 will run two (2) hours late Kingman to Needles.” Copies of this order were sent to Kingman and were delivered to No. 3 at the same time that order No. 22 was delivered to Train No. 4 on its arrival at Mellen. The effect of these orders, when taken with the general rules of the company, was that No. 3 was to be run in accordance with the time card, except that it was to run two hours behind the scheduled time, and was to have the right of track over the other train, and train No. 4 was ■to look out for No. 3, and. run with reference to its movement, as provided for by the special orders in connection with the time-table. These orders and the time-table would have made Franconia the probable place of passing of the trains. The crew of No. 4 left Mellen with the intention of running to Franconia, and there going upon the siding. Train No. 3 left Kingman At 4:31, six minutes late, according to its schedule as provided by the special ■order No. 23 and the time card. Yucca, which was 23.9 miles west of King-man and 12.8 miles east of Franconia, was the only, night telegraph office between those two points. Train No. 3, according to the special order No. 23 and the time card, should have passed Yucca at 4:57. It passed there at 4:55, or two minutes ahead of its schedule time. At 4:58 or 4:59 the local telegraph operator at Yucca reported to the train dispatcher Moore that No. 3 passed Yucca at 4:55. Train No. 4 left Mellen, which was the only night telegraph office between Needles and Franconia, between 4:45 and 4:47, and ran 6.8 miles to Powell, arriving there at 5 o’clock. A stop of three of four minutes was made there for the purpose of adjusting the flow of fuel oil in one ■of the locomotives, and the train then proceeded toward Franconia. In the meantime Train No. 3 arrived at Franconia six minutes ahead of the schedule time under the special order for leaving that station. The engineer, on approaching that station, whistled his signal to inquire if there were any orders there for his train, and received by semaphore signal from the operator the reply, “No orders from the train dispatcher.” He went on his way without stopping at Franconia, and while going at a speed of from 60 to 70 miles an hour, at about IV4 miles from Franconia, collided with train No. 4, which was running at a speed of from 40 to 50 miles an hour. Both trains were wrecked, a number of persons were killed, and several others, including the ■defendant in error, sustained serious injuries. The operator at Franconia had no orders that morning for either No. 3 or No. 4. The defendant in error, but for the collision, could have reached and placed train No. 4 on the siding at Franconia station two or three minutes before train No. 3 was due there. The plaintiff in error’s rule No. 385 only requires the train not having the right of track to take a siding and be clear of the main track before the leaving time of the opposing train. The plaintiff in error answered the complaint, denying that it was negligent, and alleging that the injuries received by the defendant in error were the result of his own negligence and carelessness and that of his fellow servants and co-employés. The case, by the stipulation of the parties, was tried before the court without a jury, and the court found that the train dispatcher Moore was negligent in failing to use ordinary and reasonable care and precaution to prevent said engines and trains from colliding and in failing to give proper orders as to the movements of one of said engines and trains. Judgment was entered for the defendant in error in the sum of $9,000, with costs.</p>

<p>1. Bankruptcy — Original Petition — Amendment.</p> <p>An original bankruptcy petition cannot be amended by setting out acts of bankruptcy not originally referred to, and occurring more than four months before the application for an order allowing the amendment.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§ 126-129.]</p> <p>2. Same — Involuntary Petition — Number of Creditors — Amendment.</p> <p>Bankr. Act July 1, 1898, c. 541, ,§ 59f, 30 Stat. 562 [ü. S. Comp. St. 1901, p. 3445], provides that creditors other than original petitioners may at any time enter their appearance and join in the petition. Section 59d (30 Stat. 561 [U. S. Comp. St. 1901, p. 3445]) provides that if the petition avers that the creditors are less than 12, and less than 3 have joined as petitioners, and the answer avers the existence of the larger number, there shall be filed with the answer a list, under oath, of all the creditors; and general order 11 (89 Fed. vii) authorizes the court to allow amendments to the petition on application of the petitioner. Held, that failure of an involuntary petition filed by a single creditor to allege that the creditors were less than 12 in number did not deprive the court of jurisdiction, where 3 creditors having provable claims had united in earlier proceedings, and the bankrupt did not deny the claims of such creditors, nor file a list of all of his creditors, with their addresses, under oath.</p> <p>3. Same — Construction of Petition.</p> <p>Where an involuntary bankruptcy petition was in fact an original petition, it was not deprived of its status as such by the fact that it contained a prayer of the petitioner to intervene in earlier proceedings as a cautionary measure, in order that the petitioner might be represented in the proceedings on the earlier petition for the administration and preservation of the estate.</p>

<p>1. Error — Matters Reviewable — Waiver.</p> <p>A defendant waives the right to assign as error the overruling of a motion to direct a verdict in his favor made at the conclusion of plaintiff’s evidence, where he afterward introduces testimony, and the motion is not renewed.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, § 983.]</p> <p>2. Carriers — Action for Injury to Passenger — Instructions.</p> <p>Instructions given by the court in an action by a passenger against a railroad company to recover for a personal injury considered, and held to have fully and fairly stated the law applicable to the case as made by the evidence.</p>

<p>1. Customs Duties — Finding of Board of General Appraisers — Review.</p> <p>Findings of fact by a Board of General Appraisers were reviewed by the court on appeal, where it appeared that the decision was made by general appraisers who did not hear the testimony, which was all taken before another general appraiser, who. did not himself sign the decision.</p> <p>2. Same — Classification—Drilled Pearls — Pearls in Their Natural State — Similitude.</p> <p>Certain drilled pearls of exceptionally large size and fine quality were imported together, arranged in collections according to size, the largest in the center. It appeared that these collections had not been selected for a special piece of jewelry, but that the pearls were, to be sold separately on tlieir individual merits, and that they had not been advanced to a special value beyond- the aggregate amount of their individual values by an assortment and selection that fitted them for immediate transformation into a necklace or string of pearls. Held that, under the similitude clause in section 7, Tariff Act July 24, 1897, e. 11, 30 Stat. 205 [U. S. Oomp. St. 1901, p. 1693], they bear a closer resemblance to “pearls in their natural state not strung or set” than to “pearls set or strung,” which, are enumerated in paragraphs 436 and 434, respectively, of said act, chapter 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St 1901, p. 1676].</p>

<p>1. Banks — Collections—Remittance—Custom—Instructions.</p> <p>The instruction of a bank, in sending to one bank for collection a cheek on another bank, “Remit New York exchange,” authorizes the remittance only in accordance with custom, be that the sending of a draft drawn on a New York bánk by the bank to which the check was sent, or a draft drawn by another.</p> <p>2. Same — Trust Relation.</p> <p>Plaintiff deposited a check with defendant bank for collection as plaintiff’s agent. Defendant forwarded it to the F. bank for collection, with the instruction, “Remit New York exchange.” The F. bank remitted the proceeds of the collection by its own draft on a New York bank, which the New York bank, at direction of the receiver of the F. bank, who in the meantime had been appointed, refused to pay. Held, that the F. bank was liable as trustee for the money collected, there being no authorization by defendant that its relation should be changed to that of debtor, so that defendant was not liable.</p> <p>[Ed Note. — For cases in point, see vol. 6, Cent. Dig. Banks and Banking, § 575.]</p>

<p>1. Reformation of Instruments — Insurance Policies — Failure to Read-Negligence.</p> <p>Complainant employed brokers to obtain $60,000 of insurance on plantation buildings, which it was found necessary to distribute among 20 different insurers. In order to have the policies read exactly alike, riders were printed containing a description of the property, and a provision for concurrent insurance to the extent of $60,000, which were used on all but one of the policies, on which a printed rider previously used by complainant’s grantor, providing only for $45,000 concurrent insurance, was used by mistake. The policies were similar in form, each containing about 4,000 words. Held, that the complainant was not guilty of negligence in failing to read the policy before loss and discovering the mistake, precluding a reformation.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 265-272.]</p> <p>2. Same — Evidence.</p> <p>In a suit to reform an insurance policy, the evidence was held to require a finding that a rider only authorizing $45,000 concurrent insurance had been attached to the policy, by mistake of both parties, in place of a rider-provided, authorizing concurrent insurance to the extent of $60,000.</p>

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

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

<p>Appeal from the District Court of the United States for the Eastern-District of Virginia, in Admiralty.</p>

The appellee was the complainant in a bill brought to set aside a settlement he had made with the appellant on March 20, 1902, for injuries which he received .while in the employment of the appellant as a brakeman on its railroad.

<p>1. Federal Courts — Removal oe Cause — Appearance.</p> <p>The filing of a petition.for removal of a cause to the proper Circuit Court of the United States in a state court, where the action is pending, amounts to a special appearance by defendant in the state court only, and does not, therefore, prevent it, after removal, from moving in the federal court to dismiss the action for want of jurisdiction of defendant’s person, either in the state or federal court.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appearance, §9 50, 89; vol. 42, Cent. Dig. Removal of Causes, § 238.]</p> <p>2. Same — Process—Service.</p> <p>Where two corporations originally joined as defendants were separately organized, had different officials, and their interests were dissimilar, service of process on an individual as agent of one of the corporations, which he did not represent in any manner, was insufficient to confer jurisdiction over such corporation or the other corporate defendant, which he did in fact represent.</p> <p>3. Same — Corporations—Reports oe Agent — Slander—Corporate Liability.</p> <p>Where, in an action against a corporation for slanderous words spoken by its agent with reference to an alleged embezzlement by plaintiff, it appeared that the slander was uttered by the agent after he had left plaintiff’s presence and gone to another locality, where he was not engaged in the performance of any duty under the terms of his employment, which was expressly limited by contract, and alleged in the com plaint as only extending to the “checking up of accounts,” the corporation was not liable therefor.</p> <p>4. Same — Direction oe Verdict.</p> <p>It is the duty of the court to direct a verdict for either party where the evidence is undisputed, or the proof is of such conclusive character that the court, in the exercise of its judicial discretion, would be compelled to set aside a verdict if one should be returned in opposition to the one directed.</p>

<p>Shipping — Freight—Lien—Delivery op Cargo.</p> <p>A charter party provided that freight should be payable in cash on delivery of each cargo, that the ship should have a lien on all cargo and subfreights for freight money due under the contracts though the cargoes might have been delivered. The consignee at first paid the freight to the steamship company, and remitted to the shipper for the value of the cargo, but thereafter insisted on paying the entire amount to the shipper, leaving the latter to settle for freight. Held that, the consignee having remitted to the shippers for a cargo after delivery, including freight, which remittance was received by the shipper’s receivers, the money so received was impressed with a trust in favor of the shipowner for freight.</p>

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

District of New York. Writ of error by the defendant in the court below to review a judgment for the plaintiffs entered upon overruling a demurrer to the complaint.

<p>1. Bankruptcy — Discharge op Bankrupt — Limitation of Right.</p> <p>Under Act Cong. Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], amending section 14, subsec. “b,” cl. 5, Bankr.' Law July 1, 1898, c. 541, 30 Sat. 550 [U. S. Comp. St. 1901, p. 3428], so as to authorize the discharge of a bankrupt “unless he has * * * in voluntary proceedings been granted a discharge ip bankruptcy within six years,” a bankrupt cannot procure a discharge on own own application, either in voluntary or in involuntary proceedings, where within six years he has been granted a discharge in voluntary proceedings. The words “in voluntary proceedings” refer to the proceedings in which the prior discharge was granted, and not to the proceedings in which the second discharge is sought.</p> <p>2. Same — Amendment to Statute — Retroactive Operation.</p> <p>Act Cong. Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 411], amending section 14, subsec. “b,” cl. 5, Bankr. Law July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], so as to withhold from the bankrupt his previous existing right of discharge in cases where he has in voluntary proceedings been granted a discharge within six years, is not, as applied to a bankrupt who petitions for a discharge after the passage of the amendment, objectionable as retroactive.</p>

<p>1. Construction on State Statutes and Constitutions — Federal Courts Follow State Court.</p> <p>The national courts follow the construction of the Constitution and statutes of a state given by its highest judicial tribunal in eases that involve no question of general or commercial law and no question of right under the Constitution or laws of the nation.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent Dig. Courts, §§ 956, 957. 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. Fellow Servant Law — State Court Holds Applicable to Minins Corporations.</p> <p>The Supreme Court of Minnesota has held that the fellow servant law of that state (section 2701, Gen. St. Minn. 1894) applies to a mining corporation which is not a railroad corporation, but which owns and uses a short line of railroad to mine its ore; that the statute applies to “all persons and corporations operating a line of railroad incident to which are the hazards and risks intended to be guarded against by the Legislature.”</p> <p>3. Same — Not Violative of Constitution of United States. A fellow servant law thus construed is not so clearly beyond the limits of the police power of the state that it must be declared violative of the Constitution of the United States.</p> <p>(Syllabus by the Court.)</p>

<p>Master and Servant — Injuries to Servant — Inexperience—Warning.</p> <p>Where defendant directed an inexperienced servant to adjust a belt on a pulley shaft, without instructing him with reference to a collar and set screws projecting from the shaft, by which he was caught and seriously injured while endeavoring to adjust the belt, defendant was guilty of negligence entitling plaintiff to recover for injuries so sustained.</p> <p>[Ed. Note. — For eases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 314, 315.]</p>

<p>Master and Servant — Injury to Servant — Fellow Servant — Incompetency —Assumed Risk.</p> <p>Plaintiff, the most experienced of 14 men working in the yard of defendant’s railroad shops, had knowledge of the incompetency of four other servants to pile lumber, and that they had piled lumber in the yard. Plaintiff, with another servant, had previously fixed a leaning pile that was likely to fall, which had been piled by such incompetent servants, but made no objection to their employment, and was injured while taking lumber from another pile which had also been improperly piled by them. The defects in such pile were in plain view, and plaintiff’s only excuse for not seeing it was that he did not take particular notice, because his attention was on his work. Held, that plaintiff assumed the risk.</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. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p>Trial — Direction of Verdict — Failure to Prove Material Allegation.</p> <p>Where, in an action to recover for personal injuries alleged to have been received by plaintiff, while in defendant’s employ as a servant, through the failure of defendant to furnish suitable and safe appliances for use in unloading a heavy piece of machinery, the only evidence was that introduced by plaintiff, which showed,' without conflict, that at the time of the injury plaintiff was assisting an independent contractor, who was transporting and delivering the machinery, and that he had never been employed by defendant, the court' properly directed a verdict for defendant, since, without proof of the relation of master and servant, a verdict for plaintiff could not have been sustained.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 146; vol. 46, Cent. Dig. Trial, §§ 379-389.]</p>

<p>Appeal from the District Court of the United States for the District of Montana.</p> <p>The United States instituted a suit in equity against the appellant under the provisions of the act of Congress entitled “An act to prevent unlawful occupancy of the public lands.” Chapter 149, p. 477, Supp. Rev. St. U. S. Act Feb. 25, 1885, c. 149, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524], The bill of complaint alleges that an affidavit was filed with the United States District Attorney, as provided for in the second section of the act; that the United States owns the lands described in the complaint, and that the same are public lands; that the appellant has violated the provisions of said act by unlawfully inclosing and fencing said lands, and maintaining said unlawful inclosure over the same, occuping and asserting exclusive right and control thereof, and disallowing all other persons and all other stock except his own, or by his permission, to go upon or pass over said lands; that, by force, threats, and intimidations, and by fencing and inclosing, and other unlawful means, he has prevented and obstructed, and combined and confederated with others to prevent and obstruct, any and all persons from peaceably entering upon and establishing a settlement and residence on said described lands or any thereof; that at all times stated in the bill the appellant has prevented and obstructed, and does now prevent and obstruct, free passage and transit over and through said lands, or any part of the same, by fences and other unlawful means. The appellant answered the bill, denying that said lands, or any portion thereof, are or have at any time been inclosed with any fences erected or maintained by him; denying that the lands are in his possession or exclusive use or occupancy; denying that he ever erected or maintained, or now maintains, any fences upon any of said described lands; denying that he has any use or occupation of said lands, except that certain stock, cattle, and animals belonging to him roam over and graze upon the same, as by law they may do, said lands being a part of the public domain; and denying that the appellant has or does assert or exercise exclusive right or control over the lands, or any part thereof, or that he has disallowed other persons or stock to go upon or pass over said lands, or that he has combined or does combine with others to prevent other persons from peaceably entering upon and establishing settlement and residence thereon. Upon the testimony the court entered a decree in favor of the appellee and against the appellant; finding that at the time of the commencement of the suit the appellant was maintaining and controlling, and has since that time maintained and controlled, strong and substantial fences upon the lands described in the bill, and that he was without right in so doing. The decree required the appellant to take down and remove all the fences surrounding said lands, and enjoined him from further interfering with said lands, and ordered that, in case of his failure to comply with the decree, the United States marshal remove said fences.</p>

<p>1. Logging Railroads — Maintenance—Care Required.</p> <p>A corporation operating a logging road solely for its own purposes, and on which no freight or passengers are carried, is not required to maintain the road with the same degree of care as is required of commercial railroads.</p> <p>[Ed. Note. — For eases in point, see vol. 34, Cent. Dig. Master and Servant, § 221.]</p> <p>X Same — Injuries to Servant — Contributory Negligence.</p> <p>Where a brakeman on a logging railroad was injured by the derailment of one of the cars while he was riding on the floor of the rear end of the engine, with his feet hanging between the engine and the first car, and there was no reason why he could not have occupied a seat in the cab of the engine, as he had been directed to do, where he would have been safer than in the place selécted by him, and where he would not have been injured, he was guilty of contributory negligence, precluding recovery.</p>

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, in Bankruptcy.</p>

This appeal is from a decree in admiralty on a libel in personam. The libel propounds: That the libelant was owner of the Swedish bark Heidi, and chartered her to respondent to carry a cargo of sawn timber anfl/or deals anfl/or boards, at charterer’s option, to a port on the continent between Hamburg and Havre, on signing bills of lading, and there to deliver the same.

Sarah Maloney, being possessed of a ticket entitling her to be carried as a passenger over the railroad of the Southern Pacific Company from Ogden, Utah, to San Francisco, California, and desiring to take a train which was standing at the company’s station at Ogden, between 1 and 2 o’clock in the morning, and was about to start to San Francisco, made inquiry of a colored porter connected with that train respecting the location of the chair car, whereupon the porter offered…

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

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

This is a libel in personam, brought by the appellee, J. M. Widmer, for himself, and as the assignee of others, to recover from the appellant, La Conner Trading & Transportation Company, for loss and damage sustained by the libelant and his assignors by reason of the unreasonable delay in transporting 19 horses from Seattle, Wash., to Skagway, Alaska, in the year 1898, on the bark Enoch Talbot, as a common carrier of merchandise and live stock upon contracts of shipment,…

<p>1. Contracts — Execution—Undisclosed Principal.</p> <p>Where the N. Coal Company was a general coal dealer, and not the selling agent of defendant, but bought coal from defendant and others, which was sold to whomsoever it pleased, defendant was not liable as an undisclosed principal for the N. Company’s breach of a contract for the sale of coal to plaintiff.</p> <p>2. Same — Evidence—Declarations op Agent.</p> <p>In a suit by a third person, directly against an alleged undisclosed principal, for breach of a contract made by the alleged agent, declarations of such agent as to the character of his authority are incompetent.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 416-419.]</p> <p>3. Same — Declarations Against Interest.</p> <p>Declarations against interest, made by such an agent, as to the character of the business relations existing between him and the alleged principal, are competent in such action, when the alleged agent is offered as plaintiff’s witness.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Virginia.</p> <p>On Motion of Plaintiff in Error to Set Aside Judgment.</p>

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

<p>1. Appeal — Interlocutory Order Granting Injunction.</p> <p>Tbe fixing of the bond to be given on appeal from an interlocutory or-' der granting an injunction rests in the discretion of the trial court, under'the provisions of Act June 6, 1900, c. 803, § 7, 31 Stat 660 [U. S. Comp. St 1901, p. 550], and its order is not reviewable on the appeal; nor does such an appeal affect the proceedings in the court below, except as to such injunction, unless a stay is granted by that court.</p> <p>[Ed. Note. — Finality of judgments and decrees for purposes of review, see notes to Brush Electric Co. v. Electric Imp. Co., 2 C. C. A. 379; Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.]</p>

<p>. Attorney and Client — Construction oe Contract — Extra Services.</p> <p>A decree construing a contract for the services of an attorney, and allowing him compensation for services rendered outside of those contracted for, reviewed and affirmed.</p>

This cause comes here upon appeal from a judgment of the United States Circuit Court for the Southern District of New York (128 Fed. 473), affirming the decision of the Board of General Appraisers, which had reversed the classification of the collector of the port of New York. Note United States v. Wanamaker (C. C.) 136 Fed. 266.

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

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

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

<p>1. Patents — Designs—Metal Basket.</p> <p>The Bennett design patent, No. 25,927, for a design for a basket made of metal, is void for anticipation by the patentee’s prior mechanical patent No. 541,805, and also because the design shown has no novel element of beauty to commend it to the eye and render it patentable.</p> <p>2. Same — Action at Law fob Infringement — Matters of Which Coubt mat Take Judicial Notice.</p> <p>In an action for infringement of a patent for a design for a basket, irrespective of the evidence of anticipatory devices, the court may take judicial notice of the ordinary and conventional bushel basket.</p> <p>3. Same — Questions fob Court.</p> <p>Where a patent is void on its face, or is shown to have been anticipated by prior patents, or where the presumption of novelty arising from the grant is overcome by proof of the prior art, or by facts or which the court may take judicial notice, it is the duty of the court to so instruct the jury in an action at law for its infringement.</p>

<p>In Equity. In the matter of petition for attachment for contempt.</p>

<p>1. Patents — Novelty—Sufficiency of Description in Prior Publication.</p> <p>A prior publication in a paper, patent, or otherwise, will not negative the novelty of an invention unless it describes a complete and operative, invention capable of being put into practical operation, or contains such a disclosure of the invention that any omission would ordinarily be supplied by one skilled in the art.</p> <p>2. Same — Infringement—Imperfect Construction of Infringing Article.</p> <p>Infringement cannot be avoided by simply constructing the patented thing so imperfectly that its utility is diminished, but such a colorable variation or change is merely evidence of an attempt at evasion by narrowing the function of usefulness of the device infringed.</p> <p>3. Same — Bottle Stoppers.</p> <p>The Painter patents, No. 468,258, covering broadly a bottle-sealing device consisting of a flat disk of wood or similar material inclosed in a hard metal cap, preferably of tin plate, having a pendent flange provided with corrugations, and adapted to be bent into locking contact with a shoulder on the neck of the bottle, and No. 582,762, for a specific form of construction of such general invention, were not anticipated nor deprived of patentable invention or novelty by anything in the prior art. Claims 1, 2, and 3 of the first patent and 1 and 2 of the second also held infringed by the device of the Patterson patent, No. 682,995.</p>

<p>In Equity. Suit for infringement of letters patent No. 29,793 for a design for a horseshoe calk, granted December 13, 1898, and No. 666,583, for a horseshoe calk, granted January 22, 1901, both to John R. Williams. On final hearing.</p>

In Equity. Suit for infringement of letters patent No. 633,772, for an automatic electric circuit breaker, granted to G. Wright and C. Aalborg, March 23, 1899. On final hearing.

<p>Patents — Infbinoement—Tread fob Bicycle Pedals.</p> <p>The Curtis patent, No. 533.867, for a detachable rubber-faced foot-rest for bicycle pedals, claims 1 and 2, were not anticipated, and disclose invention. Claims 3 and 4 are void, as too indefinite and uncertain. Said claims 1 and 2 also held infringed by the device of the Wirtz' patent, No. 679,043.</p>

<p>In Equity. Suit for infringement of letters patent No. 573,205, for a gas-heater, granted to John W. Carter December 15, 1896. On final hearing.</p>

<p>In Equity. On motion for preliminary injunction, and counter motions to vacate indemnity bond and for other relief.</p>

<p>1. States — Attorney General — Powers.</p> <p>Under Const. Ark. art. 6, § 22, providing that the Attorney General shall perform such duties as may be prescribed by law, he has no powers except such as are given by the statutes of the state.</p> <p>[Ed. Note. — Eor cases in point, see vol. 5, Cent. Dig. Attorney General, §§ 5-7.]</p> <p>2. Same — Taxation—Assessments—Appearance for State.</p> <p>Kirby’s Dig. art. 6, c. 62, defining the duties of the Attorney General, provides that he shall have authority to represent the state, in any court other than the Supreme Court, only in quo warranto proceedings and actions to prosecute suits against officers indebted to the state for moneys collected and unaccounted for. By other special acts he is also authorized to appear for the state in actions to recover back taxes and in antitrust cases, etc.; and section 7182 declares that, whenever a cause is brought against a county assessor for the collection of public revenues, he shall be allowed reasonable fees of counsel, etc. Held, in a suit against the State Board of Railroad Commissioners to restrain the collection of taxes on assessments made by them, the Attorney General had no power to intervene on behalf of the state.</p> <p>S. Taxation — Railroads—Railroad Commissioners — Assessments—Powers.</p> <p>Kirby’s Dig. § 6954, provides that the Board of Railroad Commissioners authorized to assess railroad property for taxes shall hold their annual meetings on the first Monday in June in each year, and also declares that the Governor shall have the right to convene the board in special session at any time. Held,, that the making of an assessment by such board at its meeting in June did not exhaust its power, but that the board was a continuous body, and therefore, after having made an assessment, it had the power to modify the same for the purpose of compromising litigation.</p> <p>4. Same — Review.</p> <p>The propriety of a modification of a railroad tax assessment by the Arkansas State Board of Railroad Commissioners for the purpose of compromising litigation, in the absence of fraud or other misconduct, is conclusive on the courts.</p>

<p>Contracts — Trusts—Organization.</p> <p>Where a holding corporation was organized to control the patents and business of all the wire glass manufacturing companies, including defendant, and the latter received its proportion of the stock of the holding company as its share of the consideration for a transfer of patents, etc., and was entitled to be represented on the holding company’s board of directors, the organization of such company, etc., constituted a “combination” within a contract by which plaintiff gave defendant a license to use certain patents in the manufacture of such glass, providing that if defendant should enter any trust, pool, combination, or trade arrangement with other manufacturers to control the output or regulate the prices of wire glass, plaintiff should be deemed beneficiary under such contract, combination, or trade arrangement.</p>

<p>1. Federal Courts — Removal oe Causes — Prejudice oe Inhabitants.</p> <p>The statute authorizing removal of a cause from a state to federal court at any time before trial, where defendant is a nonresident and cannot obtain justice in 'the state court on account of prejudice or local influence, does not require that the removal petition shall be filed at the term at which the case first stood for trial.</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 — Petition—Nonresidence—Allegation.</p> <p>A petition for removal of a cause from a state to a federal court on account of prejudice or local influence, alleging that defendant was at the time of the commencement of the suit, and still is, a citizen of a state other than that in which the suit was begun, and of no other state, was sufficient to show that he was a nonresident of the state where sued.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, §§ 181-183.</p> <p>Averments of citizenship to show jurisdiction of federal courts, see notes to Shipp v. Williams, 10 C. C. A. 261; Mason v. Dullagham, 27 C. C. A. 303.]</p> <p>3. Same — Joint Defendants.</p> <p>Under the statute providing that “any defendant,” being a nonresident and a citizen of any state, who makes it appear to the satisfaction of the court that he cannot obtain justice in the state court where the action is pending, or'in any court to which he may have the right to remove his case, on account of prejudice or local influence, is entitled to have the same removed .to the federal court, the right of a defendant so to remove is not affected by the fact that a codefendant is a resident and citizen of the state where the suit was brought.</p> <p>4. Same — Verification.</p> <p>Where a removal petition on the ground of prejudice or local influence was supported by affidavits of parties who averred that they were thoroughly conversant with the facts alleged in the petition, it was immaterial that the petition was not verified by petitioner, but by his duly authorized agent.</p> <p>5. Same — Change of Venue.</p> <p>Where, under the laws of a state in which a nonresident was sued, a change of venue for prejudice or local influence was wholly within the discretion of the trial judge, such defendant was not required to show that he could not obtain justice in the counties of the state to which the cause might be removed by the state court, in order to entitle him to remove the cause to the federal court on such ground.</p> <p>.6. Same — Burden of Proof.</p> <p>A cause having been removed to the federal court on evidence sufficient to satisfy it at the time of the removal that defendant could not obtain a fair and impartial trial in the state court, on account of local prejudice against him, the burden of proof, on a motion to remand,' was on. plaintiff to show that such local prejudice1 did not exist.</p> <p>7. Same — Local Prejudice — Evidence.</p> <p>Evidence reviewed, and held sufficient to sustain the removal of a cause from a state to a federal court by a nonresident defendant on the ground of local prejudice.</p>

On Demurrer to the Petition. August 6, 1904, the plaintiff filed its petition in this court, in two counts, against Chas.

<p>1. Marriage Settlements — Record—State Law.</p> <p>Code Ga. 1895, § 2483, provides that every marriage contract and every voluntary settlement made by the husband on the wife must be recorded within three months after execution, in order to make it effective as against purchasers and creditors without notice; that, if the contract or settlement is made in another state, and the parties subsequently move within the state, the record must be made within three months after the removal; and, if the settled property be within the state, and the parties reside in another, the record must be made in the county where the property is within the time specified. Held, that such section did not require the record of an antenuptial contract between a woman who was a resident and a man who was a nonresident, by which the latter attempted to release certain supposed rights in her property located within the state.</p> <p>2. Same — Antenuptial Contracts — Construction.</p> <p>An antenuptial contract provided that the husband agreed that all property acquired by his wife should be and remain her separate property, free from his debts, and at her death should vest in her children, if any, living, otherwise it should go to the husband if he survived her, unless she provided a different disposition by will; that the rents and profits of such property should be controlled and managed by the husband for the mutual support of both husband and wife and their children; and that the property might be conveyed for reinvestment by their uniting in the execution of deeds for the same. Held, that such contract was merely a recognition of the wife’s rights as they then existed, and did not amount to a conveyance by the wife of any interest to the remaindermen.</p> <p>3. Same — Conveyances—Parties—Joinder.</p> <p>Where an antenuptial contract between a husband and wife provided that the wife’s separate property might be thereafter conveyed by deed in which both joined, and the husband induced the wife to separately convey the property to a bona fide purchaser without notice of such antenuptial contract, for full value, and the husband was present at the execution of the deed, he was bound in equity to join therein, and could therefore be compelled to do so for the purpose of perfecting the purchaser’s title.</p>

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

<p>Customs Duties — Ping-Pong Balls — Toys.</p> <p>Held, that ping-pong balls, which were sometimes sold as toys before the game of ping-pong was invented, and which have been occasionally sold for the same purpose since the game went out of vogue, but which, when imported, were not intended to be used chiefly as toys, but in the game of ping-pong, are not dutiable as “toys,” under paragraph 418, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674].</p>

<p>On Application for Review of Decisions of the Board of United States General Appraisers.</p> <p>The decisions in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Kurtz, Stuboeck & Co. and C. Schmitz & Co. Note G. A. 4,687, T. D. 22,124.</p>

<p>Shipping — Steamboat Causing Dangebous Swell — Liability fob Damage to Boat in Tow.</p> <p>A steamboat navigating New York Bay at a high rate of speed held in fault for creating a dangerous swell, and liable for the resulting injury to a canal boat laden with coal, forming one of a flotilla in tow, which was knocked by the swell against other boats in the tow, loosening the planking at her bow, from which cause she afterward sank, with her cargo. The canal boat also held in fault for the neglect of her master to advise the master of the towing tug of her condition, which might have prevented her loss.</p>

<p>Shipping — Proceeding por Limitation op Liability — Costs.</p> <p>In a proceeding for limitation of liability, where there is an appraisal, and a stipulation for value given, the petitioner is entitled to a single docket fee, and may deduct from the fund the expenses of administration, but this may not include the cost of procuring the stipulation, nor the expense of giving the same, nor of the appraisal; each person claiming damages, and recovering the same, is entitled to a separate proctor’s fee, payable herein by the stipulators for costs, and not out of the fund.</p>

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

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

The statute of Missouri (article 3, c. 119, Rev. St. 1899) in force at the time of the incorporation of the Merchants’ Life Association authorized the organization of insurance companies on what is popularly known as the “assessment plan.” Section 7901 declares that: “Every contract whereby a benefit is to accrue to a person or persons named therein, upon the death or physical disability of a person also named therein, the payment of which said benefit is in any manner or…

As the case was determined in the court below on demurrer to the bill on the ground that it did not state facts sufficient to entitle the complainant to a standing in a court of equity, it becomes necessary to set out the substantive allegations of the bill.

<p>1. Railroads — Action for Wrongful Death — Tort of Servant.</p> <p>Under section 746, Rev. Code Civ. Proc. S. D., giving to the widow of the deceased a right of action for damage’s against a railroad company for the killing of her husband, by reason of the neglect, carelessness, or unskillfulness of the corporation, its agents, servants, and employes, the cause of action must come strictly within the terms of the statute conferring the right, and cannot be extended to any other subject or embrace any other quality of liability.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, §§ 10', 11,15.]</p> <p>2. Same — Torts of Employes — Scope of Employment.</p> <p>Such loss of life must result from the negligence, carelessness, or unskillfulness of such agent and servant while engaged in and about the work assigned him by the master. Therefore, where the act complained of is the killing of plaintiff’s husband by defendant’s station agent while deceased was signing a receipt book for a package, it cannot be assumed that such package pertained to railroad freight matter, when the evidence showed that the wrongdoer was not only at the time and place acting as agent for an express company, as well as the railroad company, without some evidence warranting the inference that the package pertained to railroad freight, rather than express matter.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, § 16.]</p> <p>3. Same.</p> <p>There is a marked distinction between an act done by the servant during his employment and an act done within the scope of his employment. To bind the master for an injury done by the servant, the servant must at the time be acting for the master within the scope of the duty assigned him.</p> <p>•4. Same.</p> <p>The distinction between the liability of the master for the wrongful acts of the servant in the instance of the relation of carrier and passenger, or hotel keepers and proprietors of theaters and their guests, and that of the proprietor of a mere business house or railroad station, as to persons coming on the premises to transact some matter connected with its general business, pointed out.</p> <p>5. Same — Evidence.</p> <p>The deceased, having called at the railroad station to inquire of the agent as to whether any demurrage would be charged on account of his failure to unload a car of coal that day, and, being assured in the negative, turned to walk out of the room, when the agent said to him, “There is a package here for you,” and handed to him, through the ticket window, a small book to be signed. Just as deceased started to sign his name therein, the agent picked up a pistol, and without a word shot the party to death. Held, that the widow could not recover damages against the railroad company for such wanton act of killing.</p> <p>(Syllabus by the Court.)</p>

This is an action brought in the court below by J. M. Chantry, defendant in error, against the Mexican Central Railway Company, Limited, plaintiff in error, to recover damages for injuries received at Ganitas, Mexico, on or about the 27th of March, 1902; said Chantry then being engaged in his employment as a freight conductor for the railway company.

On November 30, 1902, the plaintiff, a corporation engaged in the business of dealing in stocks, bonds, grain, provisions, and merchandise, filed a complaint against the United States in the Circuit Court of the Western District of Missouri to recover back $4,811.76, which it alleged the collector of internal revenue had unlawfully exacted from it, against its protest, by threats and duress, between July 1, 1898, and August 15, 1899, under a misconstruction of the act of…

<p>1. Contract op Employment — Construction.</p> <p>Plaintiff, on January 29, 1895, offered to assist defendant in obtaining a foreign connection for the sale of its materials to a French syndicate, and on February 4th defendant replied that it would be glad to arrange with such syndicate, and that, if plaintiff could bring about a satisfactory deal, he should be liberally paid. On February 8th plaintiff wrote defendant with reference to the matter, stating that he was at defendant’s command to act on any plan defendant should suggest. Both defendant and the French syndicate, however, at this time were not ready to make new connections, and nothing was arranged until the following September 20th, when further letters passed between the parties, which resulted in the completion of negotiations. Held, that such facts did not establish a variance as showing a contract not made until September, instead of in February, as alleged.</p> <p>2. Same — Damages—Excessiveness—Appeal—Review.</p> <p>In an action to recover the reasonable value of plaintiff’s services, performed at defendant’s request, the excessiveness of the verdict is a question for consideration of the trial court on a motion for a new trial, and cannot be reviewed on appeal.</p> <p>3. Same — Value op Services — Evidence.</p> <p>Where defendant had agreed to pay plaintiff the reasonable value of his services, without reference to any fixed custom to pay any definite price, evidence of witnesses familiar with such services that it was usual to pay a percentage of from 2 to 5 per cent, of the value of the goods, sold as -the result of the efforts of the employe, was not objectionable as failing to show that there was any fixed custom to pay a definite price.</p> <p>[Ed. Note. — For cases in point, see vol. 8, Cent. Dig. Brokers, § 113.]</p> <p>4. Same.</p> <p>In an action for the reasonable value of plaintiff’s services it was no objection to a recovery that the witnesses disagreed as to the price usually paid for such services, the jury not being bound to find in accordance with the testimony of any of the witnesses, but entitled to exercise their own judgment on their estimate of the value of the services.</p> <p>5. Same — Value op Services — Establishment op Amount by Employer.</p> <p>Where defendant agreed to pay plaintiff the reasonable value of his services, and there was no agreement that such value should be fixed by defendant, at least until after the services had been performed, such a stipulation subsequently made was unilateral, without consideration, and not enforceable.</p> <p>6. Same — Evidence.</p> <p>In an action for the reasonable value of plaintiff’s services, correspondence held insufficient to establish an agreement to accept a check for $500 in full for plaintiff’s services.</p> <p>7. Same — Instructions.</p> <p>Where, in an action for services, the court charged that the jury must find “what plaintiff did, if anything, under the contract, which induced the making of this contract,” and that the burden of proof was on plaintiff to show that by his conduct subsequent thereto he did something that influenced a syndicate to enter into a subsequent contract with defendant, it was not error for the court to refuse a requested instruction that he must have rendered services for and' at defendant’s instance and request, and, if he did anything not done at defendant’s request, but at the request of another, he could not recover.</p> <p>8. Same.</p> <p>Where plaintiff was employed to negotiate a contract for the sale of defendant’s materials to a French syndicate under a contract which did not stipulate that he was to be the sole factor in accomplishing the object sought, he was entitled to recover the reasonable value of his services, though he did not do all that was done to promote it</p> <p>9. Same — Evidence—Declarations oe Agents.</p> <p>Where, in an action for plaintiff’s services in promoting a foreign contract for the sale of defendant’s materials, the value of materials sold was material to the question of the reasonable value of plaintiff’s services, the admission of evidence of a conversation had between plaintiff and defendant’s vice president during the time materials were sold under the contract, as to the amount of such sales, which conversation did not occur until after such vice president had left defendant’s employ, was prejudicial error.</p>

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

<p>1. Contracts — Construction.</p> <p>Where a proposal to furnish granite for the construction of a bridge contained a provision that the granite was to be Crotch Island granite, from the quarries of G. & S. and J. B. G. — it being the intention of the writer to use both quarries in obtaining the stone — such statement amounted to a mere intention to use both quarries, and not an agreement to do so, so that, on the offer being accepted, plaintiff’s inability to obtain granite from the J. B. G. quarry did not constitute a breach of the contract; there being evidence that the other quarry could have been so worked as to have furnished all the stone required within the time prescribed.</p> <p>2. Same — Measure of Damages.</p> <p>In an action for breach of a contract to purchase dimension granite of plaintiff for the construction of a bridge, to be the product of one or both of two named quarries, the measure of damages is the difference between the contract price and the cost of performance of the contract.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 1106.]</p> <p>3. Same — Federal Courts — Motion for New Trial — Review.</p> <p>A decision on a motion for a new trial is not the subject of review in a federal appellate court.</p> <p>4. Same — Objections to Evidence — Scope.</p> <p>Where, in an action for breach of a contract to purchase dimension granite, defendant objected to a question asked for the purpose of determining the cost per cubic yard of producing the rough dimension granite blocks in connection with the contract, on the ground that it was not the correct way to establish the measure of damages, such objection was insufficient to present the question that the issue was not the cost of production to plaintiff, but the fair and reasonable cost</p> <p>5. Same — Conditions—Parol Evidence.</p> <p>Where a written acceptance of an offer to furnish dimension granite for bridge construction stated that it should become effective only when the contract was made between the acceptor and a steel company approved by a bridge commission, such condition will be presumed to be exclusive, and parol evidence is therefore inadmissible to prove other conditions precedent.</p> <p>6. Same — Motion to Dismiss — Objections—Scope.</p> <p>Where, in an action for breach of a contract to purchase dimension granite, defendant moved to dismiss the complaint on the ground that there was no evidence to establish damages under the rule of law applicable to the facts in the case, such objection was insufficient to raise the question that there was no sufficient proof on which prospective profits could be estimated, for the reason that the value of the stone in the ledge was not proved.</p> <p>7. Same — Construction of Words — Parol Evidence.</p> <p>Where a proposal to furnish dimension granite for bridge construction recited that the granite should be in accordance with specifications and acceptable to the engineer, the phrase “acceptable to the engineer” was not ambiguous, and parol evidence was therefore inadmissible to explain the same.</p> <p>8. Same — Evidence.</p> <p>In an action for breach of a contract, the exclusion of a question put to defendant’s, president, asking him whether a phrase in the contract was inserted by reason of any suggestion made by him, was proper.</p> <p>9. Same — Construction or Contract. '</p> <p>Where plaintiff’s proposal to furnish all the dimension granite required in the construction of certain bridge approaches, to be in accordance with specifications and acceptable to the engineer, was accepted, subject to the approval of the commission, as per official contract form and specifications, he was entitled to furnish as much dimension granite as it would take to make the construction walls as specified in the contract approved-by the bridge commission, and not only so much as defendant might choose to call for.</p>

<p>1. Federal Courts — Findings by Trial Judge — Review.</p> <p>The Circuit Court of Appeals will not disturb the conclusion of a trial judge on disputed questions of fact where the hearing was on oral testimony, except for cogent reasons, such as a palpable mistake or misconception of the decided weight of the evidence.</p> <p>2. Bankruptcy — Discharge—Objections—False Oath — Schedules.</p> <p>On an application for bankrupt’s discharge, evidence hela to sustain a finding that the bankrupts had been guilty of making a false oath to their schedules, etc., in fraudulently failing to schedule certain money received shortly before the bankruptcy proceedings were instituted, and claimed by them to have been stolen.</p>

<p>Appeal from the District Court of the United States for the District of Kansas.</p> <p>This is an appeal from a decree of the District Court, sitting in bankruptcy, which reversed an order of the referee that the appellant, Watson, should be allowed a claim of $1,437.50 for damages for the breach by P. A. Brown, by. means of his adjudication as a bankrupt, of a lease which he had taken from the appellant On May 1, 1902, Brown leased of Watson a storeroom in a building about to be erected for ¡a term of 10 years from October 1, .1902, and agreed to pay a monthly rental of $60 in advance during the term. He paid this rent to March 1, 1903. On February 6, 1903, a petition in bankruptcy was filed against him, and receivers were appointed, who took possession of his personal property in the rented premises. On April 2, 1903, he was adjudged a bankrupt, and a trustee was appointed. On March 2, 1903, Watson and Brown made a written contract which recited that it had become impossible for Brown to comply with the terms of his lease, and that he was obligated to his lessor thereby in the sum of $6,900, and in which he acknowledged himself to be indebted to Watson in the sum of $2,300, and surrendered to him all his rights and privileges under the lease, while Watson by the same contract released Brown from any further obligation to pay rent for the leased premises. Afterwards Watson filed his proof of claim for $2,300 against the estate of Brown, which was founded on the lease and on the contract of March 2, 1903. He also filed a petition for the liquidation of this claim, in which he alleged that' he had incurred extraordinary expense in the construction of the building in expectation of the rental, that the rental value of the premises was only $40 per month, and that he had sustained damages to the amount of $20 per month from March 1, 1902, until the end of the term of the lease, which amounted in the aggregate to $2,300. The referee found the rental value of the premises to be $47.50 per month, and allowed the claim of Watson for $1,437.50 for damages for a breach of the lease. Upon a petition for review, the District Court reversed this decision, and directed the referee to disallow the claim.</p>

<p>1. Res Adjudicata — Identity oe Names — Evidence of Identity of Parties.</p> <p>Identity, of parties is as essential to the estoppel of res adjudicata as identity of causes of action.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1080.]</p> <p>Identity of names is presumptive, but it is not conclusive evidence of identity of persons.</p> <p>[Ed. Note. — For eases in point, see vol. 30, Cent.' Dig. Judgment, § 1819.]</p> <p>2. Same — Descriptions in Record to Identify Parties.</p> <p>Where the pleading upon which a judgment or decree is based discloses the fact that there were two persons with the same name who may be identified by their descriptions in the pleading, and that one of these persons was made a party to the suit, and the other was not, the latter may exempt himself from the estoppel of the decree by applying to himself by competent evidence the description in the pleading.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to 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 District of Kansas.</p>

<p>Federal Courts — Enjoining Enforcement of State Judgment — Comitt.</p> <p>The defendant in an action at law in a state court, who was a nonresident of the state and might have removed the cause, went to trial in the state court instead, and, after an adverse verdict and the overruling of his motion for a new trial, appealed to the Supreme Court of the state, which affirmed the judgment. Thereafter he instituted a suit in equity in the same court to set aside the judgment and enjoin its enforcement, on the ground that it was procured by fraud and perjury. This suit was heard on motion for a preliminary injunction, which was denied. Held, that a federal court was justified in refusing to interfere by injunction to restrain collection of the judgment on practically the same ground that had been passed on by the state court, the application being supported by the same affidavits, with no additional evidence except such as was merely cumulative.</p> <p>[Ed. Note. — Federal courts enjoining proceedings in state courts, see notes to Garner v. Bank, 16 C. C. A. 90; Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.</p> <p>Conclusiveness of judgments between state and federal courts, see notes to Railroad Co. v. Morgan, 21 C. C. A. 478; Bank v. Memphis, 49 C. C. A. 468.]</p>

On the 10th day of December, 1902, the plaintiff brought suit against the Alien-Miles Company on complaint and summons, and on the 26th day of February, 1903, sued out a writ of garnishment, which was directed to and served on the Fourth National Bank of Atlanta, Ga., as the debtor of the said defendant.

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

Petition for Revision of Proceeding of the District Court of the United States for the Eastern District of Texas, in Bankruptcy. For some time prior to October 17, 1902, the Pipkin Drug Company was doing a drug business in Beaumont, Tex.

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

<p>Chattel Mortgage — Foreclosure—Interlocutory Decree — Appeal.</p> <p>Where, in a suit to foreclose a mortgage and trust deed on a railroad contractor’s outfit, a railroad company intervened after the appointment of a receiver, and claimed a prior right to use such outfit under a contract with the mortgagor, a decree declining to determine the intervener’s right in limine, but permitting intervener to use the outfit pending the litigation, on conditions prescribed, was interlocutory only, and unappealable.</p>

<p>1. Federal Courts — Jurisdiction—Diverse Citizenship — Allegation as to Corporation.</p> <p>The allegation, as to a corporation, for the purpose of showing a federal Circuit Court’s jurisdiction on the ground of diverse citizenship, that it is a citizen of a certain state, is not enough. It should be shown it was created by the laws of that state.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 880. 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. Removal of Causes — Separable Controversy.</p> <p>In a suit for an undivided half interest in a single tract of land alleged to be wrongfully withheld by the two defendants, there is no separable controversy, so as to allow removal to the' federal Circuit Court, though the citizenship of plaintiffs and of only one of defendants is diverse.</p> <p>[Ed. Note. — Separable controversy 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 Error to the Circuit Court of the United States for the Northern District of Florida.</p>

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

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

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

<p>In Bankruptcy.</p> <p>This is the review of an order made by Edwin A. King, as referee In bankruptcy, on the 7th day of January, 1905, disallowing the claim of International Trust Company against the estate of said bankrupt, Troy & Cohoes Shirt Company, for the sum of $25,010.50, presented and proved February 26, 1904. The claim is upon five promissory notes of $5,000 each, made by said Troy & Cohoes Shirt Company, payable to its own order, and indorsed by it and others, and finally discounted by the said International Trust Company. The defense of the trustee sustained by the referee was and is that the maker of the notes received no consideration therefor; that the notes bore upon their face notice that they were accommodation notes; that the making and indorsement wras ultra vires; and that said International Trust Company, at the time it discounted the notes, was charged with full knowledge of the invalidity of the notes as against the bankrupt, Troy & Cohoes Shirt Company.</p>

<p>1. Shipptng — Charter Parties — Construction—Demurrage—Lay Days.</p> <p>Wliere a charter party provided that after 1 idle day the charterer had 10 days to load, and that for every day’s detention thereafter he should pay demurrage, he was entitled to 11 days to load, including Sundays, holidays, or stormy days.</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>2. Same.</p> <p>Where a charter party provided that the charterer, after 1 idle dav should have 10 “working days” to load, before demurrage should be charged, he was entitled to 11 days, excluding Sundays and holidays, but not stormy days.</p> <p>[Ed. Note. — Eor cases in point, see vol. 44, Cent. Dig. Shipping, §§ 568, 589, 590.]</p> <p>3. Same — Dangers oe the Sea.</p> <p>Where a charter party provided that the dangers of the seas, etc., should be mutually excepted, but the evidence was insufficient to show that the charterer was necessarily prevented by storms from properly loading the barge, he was not entitled to a deduction of demurrage on that ground.</p>

<p>1. ' Federal Courts — Removal of Causes — Filing Petition — Time—Preliminary Motions.</p> <p>Where a petition for removal of a cause to the federal court is filed before the time fixed by the statute or the rules of court for the filing of an answer, petitioner’s appearance and his hearing on a preliminary motion regarding an injunction did not constitute a waiver of his right to remove.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, §§ 10, 208.]</p> <p>2. Same — Separable Controversy — Parties.</p> <p>The parties who are not indispensable to the determination of a suit in the federal court may be dismissed or disregarded if their presence would oust or interfere with the jurisdiction of the court.</p> <p>3. Same.</p> <p>Where, in a suit to avoid a scheme and contract of B. & Co. to reorganize certain railroads, and to enforce specific performance of B. & Co.’s contract to convey to complainants their share of Certain pledged securities of the railroad companies, there was no allegation that the railroads had done or threatened to do any act in violation of, or to prevent performance of, the contracts, and the only prayer affecting the railroads was for an injunction to forbid them doing any act or taking any steps interfering with plaintiff’s rights, which prayer was unsupported by any averment of fact, the railroads were not indispensable parties.</p> <p>4. Same.</p> <p>Complainants, who were citizens of Missouri, sued B. & Co., nonresidents, to avoid a railroad reorganization contract and for specific performance of a contract of B. & Co. to convey to complainants their share of certain pledged securities of the railroads, without complainants consenting to certain alleged invalid conditions. The bill also alleged that defendant bank, of the same citizenship as complainants, through which the transaction was to be carried out, made the required payment of complainants’ share of the railroads’ indebtedness on complainants’ refusal to consent to the conditions, and claimed the right to receive complainants’ share of the securities, and demanded, as against the bank, that it be required to deliver to complainants their share of such securities on payment of their share of the indebtedness. Held that the bank was not a necessary party to the determination of the controversies between complainants and B. & Co., and that they were therefore entitled to remove the cause to the federal court.</p>

<p>1. W ar — Courts - Martial — J ud gments.</p> <p>Courts-martial being courts of inferior and limited jurisdiction, it must be made to clearly and affirmatively appear, in order to give effect totbeir judgments, that the cour,t was legally constituted, that it had jurisdiction of the person and offense charged, and that its judgment imposed was conformable to law.</p> <p>[Ed. Notes.- — For cases in point, see vol. 4, Cent. Dig. Courts-Martial,. § 90.]</p> <p>2. Same — Habeas Corpus.</p> <p>Where, on return to a writ of habeas corpus, the respondent alleged that he held the petitioner under a judgment of conviction by a military court-martial, the burden is on the respondent to show that the judgment was based on some provision of positive law.</p> <p>3. Same — Articles oe War — Construction.</p> <p>Whether a condition of war exists, within the fifty-eighth article of war, relating to the trial of certain offenses committed by soldiers, is-within the exclusive jurisdiction of the political department of the government.</p> <p>[Ed. Notes. — For cases in point, see vol. 4, Cent. Dig. Courts-Martial, § 95; vol. 48, Cent. Dig. War, § 217.]</p> <p>4. Same — “Boxer Uprising.”</p> <p>The “Boxer Uprising” in China, in June, 1900, during which the United States assembled an army of 15,000 men, over 5,000 of which were ordered to and did proceed to China to assist the forces of allied nations in quelling the uprising and to release the accredited representatives of the United States then imprisoned within the city of Pekin, during which the pay of the officers and men in the United States military service was increased to a war basis, constituted “a time of war,” within the fifty-eighth article of war, providing for the trial of certain offenses committed by soldiers in time of war by military court-martial.</p>

<p>1. Bankruptcy — Combination op Creditors — Assignment op Claims — Proop op Claims.</p> <p>Where several creditors of certain insolvent corporations, before bankruptcy proceedings were instituted, assigned their claims for value to a committee — the intention being that the committee should purchase the property of the insolvents from the receivers and trustees, and sell or dispose of it again in the interest of the assigning creditors — the committee held such claims as trustee of an express trust, or under a power coupled with an interest, and was therefore only entitled to prove all of the claims against the estate of one of the corporations in bankruptcy as a single claim.</p> <p>2. Same — Rights op Assignors.</p> <p>The beneficial interest of the assignors in the net proceeds of the claims so assigned after administering the trust by the committee was a mere equitable, unliquidated demand, prior to the settlement of the bankrupt’s estate, and was therefore not provable in bankruptcy as provided by Bankr. Act July 1, 1898, c. 541, § 63b, 30 Stat. 563 [U. S. Comp. St-1901, p. 3447].</p> <p>3. Same — Trusts—Actions—Cestuis Que Trust — Parties.</p> <p>Where a suit in the federal courts is brought to recover moneys for the benefit of a trust estate, the cestuis que trust are neither necessary nor proper parties.</p> <p>4. Same — Adequate Remedy at Law — State Statutes.</p> <p>Where creditors of a bankrupt before bankruptcy assigned their claims to a committee in trust to purchase the bankrupt’s property and sell the same for the benefit of the assignors, the latter had an adequate remedy at law by proof of their claims in bankruptcy proceedings by the committee, and hence were not entitled to prove their equitable interest as-claims against the bankrupt estate, notwithstanding the statutes of the state in which the proceedings were pending had abolished the distinction between legal and equitable proceedings, and had adopted a single form; of action by the real party in interest.</p> <p>5. Same — Trustee—Selection.</p> <p>Where creditors of a bankrupt prior to the institution of bankruptcy proceedings assigned their claims to a committee in trust for the purpose-of purchasing the bankrupt’s assets from the trustee, and selling them for the benefit of such assignors, as distinguished from the bankrupt’s general creditors, the committee was only entitled to a single vote in the selection of a trustee, and not to a vote for each of the claims so assigned.</p>

<p>Contempt oe Court — Violation oe Injunction — Evidence Considered.</p> <p>Evidence considered, and held to establish a contempt of court by defendants by selling and offering for sale large numbers of talking machine records, which they had on hand at the time of the granting and service of a preliminary injunction restraining such sale, and in violation of such injunction.</p>

<p>On Motion to Quash Service of Summons.</p>

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

<p>1. Admiralty — Advances to Bíaster — Drafts—Set-Off.</p> <p>Where a charter party provided that the charterers’ agents in foreign ports should be employed as brokers to attend to the ship’s business, and such -brokers procured libelants to purchase a draft drawn by the master to pay necessary and usual charges in the port where the ship received her cargo, which the master was bound to pay and did pay from the proceeds of the draft, the owners were not entitled to offset against the same, in the hands of the holder in good faith, claims against the charterers or their agents, either for dead freight or demurrage.</p> <p>2. Same — Freight—Possession by Master — Knowledge of Libelant.</p> <p>Where the purchaser of a draft drawn by the master of a vessel in a foreign port for advances to pay proper charges had no knowledge that at the time the draft was drawn the master was in possession of drafts for freight, which he could have used to pay such charges, but which he in fact forwarded to the owners, and which they received, the fact that the charter party provided that the captain’s ordinary disbursements at the port of loading should be advanced, payable from freight only, and that his disbursements might have been so paid, was no defense to the draft.</p>

In Bankruptcy. On petition of the trustee and certain creditors for review of the order of the referee allowing the claim of Euclid Sanders as a preferred claim to the amount of $395.

<p>1. Unfair Competition — Injunction—Plea.</p> <p>Tbe plea to a bill for injunction presenting a case of unfair competition in trade, arising fróm tbe manner in wbicb defendants bave used the word “Webster’s” to lead the public to believe their dictionaries are those manufactured by complainants, is insufficient, it not denying explicitly the averments that the term when, used on such dictionaries had acquired a meaning in the trade and with the public as signifying editions which were the product of complainants, and that defendants have used the word without any qualifying descriptive matter tending to show that their dictionaries are not the product of complainants; as, if such averments are true,' the word has acquired a secondary meaning, and complainants are entitled to protection against the misleading use of it, though any publishers, by reason of the expiration of the copyright on the literary product, are at liberty to use the word in a manner which distinguishes their dictionaries from those of complainants.</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. Same — Copying Characteristics.</p> <p>The principles which interdict unfair competition in trade will protect a publisher who has imparted to his books peculiar characteristics, which enable the public to distinguish them from books published by others and containing the same literary matter, against the copying of the characteristics, though the copyright on the literary matter has expired.</p> <p>3. Same — Pleas—Substitute for Answer.</p> <p>A plea to a bill for unfair competition which amounts substantially to a denial, with an allegation of evidential facts to disprove the charges of the bill, is improper, an answer being sufficient.</p>

<p>Collision — Tugs Meeting — Improver Maneuver for Passing.</p> <p>A tug passing up about the center of East river in the evening held on conflicting evidence solely in fault for a collision with a meeting tug on the ground that she attempted to cross the bows of the other tug and pass starboard to starboard, contrary to the proper signal given by the descending tug, and when the situation was such as to render a port to port passing the proper maneuver.</p>

<p>Mabine Insurance — Equipment of Yacht — Boats “of and in” Vessel.</p> <p>A marine policy insured “in port and at sea, * * * at all times, in all places and on all occasions, * * * upon the hull, spars,- sails, materials fittings, boats (including launches, steam or otherwise, if any), furniture, provisions, stores, * * * boilers, etc., of and in the schooner yacht Rosemary,” against all manner of marine perils, and the furniture and boats against fire when laid up on shore. Meld, that a naptha launch, part of the equipment of the yacht, carried on davits when she was under way, and used as a means of communication with the shore when in port, while being so used in the usual way between the yacht and shore was “of and in” the yacht, and covered by the policy.</p>

<p>Peeliminaby Injunction — When Granted.</p> <p>On an application for a preliminary injunction where the bill sought the recovery of shares of stock alleged to have been obtained by the defendants from the complainants through fraud and duress, the ease admittedly being within the jurisdiction of the court and wholly turning upon disputed questions of fact, and the only evidence adduced aside from the bill and answers consisting of exhibits, wholly inconclusive in themselves, and affidavits disclosing irreconcilable conflict on vital points, held, that, under the circumstances, and without any expression of opinion on the merits, a preliminary injunction should be awarded to preserve the property in litigation until the case could be disposed of on final hearing.</p> <p>[Ed. Note. — For eases in point, see vol. 27, Cent. Dig. Injunction, §§ 86-90, 305-309.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Collision — Tug with Long Tow and Schooner — Failure oe Tug to Keep out of the Way.</p> <p>A tug returning from the dumping grounds with two scows in tow on a line, the whole 1,400 feet in length, held solely in fault for a collision in New York Bay between the rear scow and a schooner beating her way in, for failure to exercise the care required, because of the length of the tow, to keep out of the schooner’s way; the schooner having properly held her course until danger of collision became imminent.</p> <p>2. Salvage — Rescue of Scow Adrift after Collision.</p> <p>A salvage award of $450 made to a tug for rescuing and taking to a place of safety a scow worth $4,500, which had gone adrift and filled after a collision in New York Bay, including the value of a hawser destroyed by the tug in the service.</p> <p>[Ed. Note. — Salvage awards in federal courts, see note to The Laming-ton, 30 C. C. A. 280.]</p>

<p>In Equity. Motion by complainants for a preliminary injunction. Motion by defendant the Kora Company for an injunction restraining complainants from interfering with its customers. Motion by defendants for a commission to take the testimony of witnesses in England.</p>

<p>In Equity. Suit to foreclose mortgage. On exceptions to anstver.</p>

<p>Intoxicating Liquors — Wrongful Sale — Internal Revenue Tax.</p> <p>Rev. St § 3244 [U. S. Comp. St 1901, p. 2096], defines a retail liquor dealer as any person who sells distilled spirits or wines in less quantities than five gallons at tbe same time, and section 3248 [page 2107] defines distilled spirits as" that substance known as “ethyl alcohol,” etc., commonly produced by fermentation of grain, starch, molasses, or sugar. including all dilutions and mixtures thereof. Held, that where a druggist, without paying the internal revenue tax imposed on retail liquor dealers, sold a medicinal preparation which was 88 per cent, proof spirits, more than sufficient to preserve the medicinal properties of any herbs, roots, or drugs contained therein, he was a retail liquor dealer within such sections.</p>

<p>1. Federal Courts — Removal of Causes — Joint-Stock Associations — Citizenship.</p> <p>A joint-stock company, though a legal entity, and suable in the name of its president under state laws, is not a corporation, and cannot be deemed to have citizenship for the purpose of removing actions against it to the federal courts.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, §§ 64-67%, 173.</p> <p>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. Same — State Courts — Jurisdiction.</p> <p>Where, prior to the filing of a petition for removal of a cause against a joint-stock express company, the state court' had acquired full jurisdiction over defendant’s persoh by the service of process on two of defendant’s agents, as authorized by New Jersey Practice Act 1903 (P. L. 1903, p. 545) § 40, defendant’s nonresident president, on entering an appearance, was not entitled to have the suit removed to the federal court.</p>

In Admiralty. Suit to recover salvage for towing a disabled passenger steamer to her port of destination. Decree for libelant.

On Demurrer to Answer. S. O. Courtney sent the following message from Arkansas City, Ark., to Blytheville, Ark., over the lines of defendant, addressed to Mrs. Belser: “Joe Whitehill died this morning. Tell Nely. [Signed] S. O. Courtney.” The complaint alleges that “Nely” is the plaintiff, Cornelia Whitehill, and the sister of Joe Whitehill, mentioned in the telegram.

<p>In Admiralty. Einal hearing.</p>

<p>Foreign Corporations — Process—Service on Officer — Jurisdiction.</p> <p>Service of process on a general officer of a foreign corporation, who voluntarily came into the state to adjust a difference between the corporation and plaintiff with reference to the subject-matter of the suit, while such agent was within the state, was sufficient to confer jurisdiction of the corporation.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, § 2613.</p> <p>Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3.] '</p>

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

<p>Salvage — Assisting in Moving Vessel from Burning Dock — Compensation.</p> <p>Two libelants, who were in a skiff and, at the request of the master of a steam lighter moored to a burning dock in the night, took him and two deckhands to the vessel, and assisted them in casting it loose and pushing it off, rescuing it from a position of imminent peril, held to have performed a salvage service, and to be entitled to an award of $200 therefor ; the vessel being worth $18,500.</p> <p>[Ed. Note. — Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

<p>On Certificate by Referee Concerning Claim of Clara V. Illingsworth.</p>

<p>1. Commeece — Tonnage Duties — Vessels Subject to Duty.</p> <p>A foreign-built vessel, owned entirely by a citizen of the United States, and entering a port of the United States from Manila, P. I., does not enter from a “foreign port or place,” and is therefore not subject to tonnage duty under Rev. St. § 4219 [U. S. Comp. St. 1901, p. 2848], as amended by Acts June 26, 1884, c. 121, 23 Stat. 57, and June 19, 1886, c. 421, 24 Stat. 81 [U. S. Comp. St. 1901, p. 2850], nor is she subject to such duty under Act March 8, 1902, e. 140, 32 Stat. 54 [U. S. Comp. St. Supp. 1903, p. 349], extending such duties to “foreign” vessels entering' from the Philippine Archipelago, since, while not “a vessel of the United States,” because not entitled to registry, she is an American, and not a foreign, vessel, by virtue of the citizenship of her owner.</p> <p>2- Same — Light Money — Proof to Entitle Vessel to Exemption. •</p> <p>The fact that the affidavit and proof showing the American ownership of an unregistered vessel entered at a port of the United States required by Rev. St. g 4226 [U. S. Comp. St. 1901, p. 2855], to exempt such vessel from the payment of light money under the preceding section was not made by the owner or master at the time of the entry does not deprive the vessel of the right to the exemption where such proof in due form was made to the collector within a short time thereafter.</p>

. The bill on which the decree appealed from was based, filed originally in the Circuit Court of Madison County, Illinois, is by the Farmers’ Loan and Trust Company, trustee, a corporation of New York, against the New England Water Works Company, a corporation of Rhode Island, the Alton Water Works Company, a corporation of Illinois, the American Loan and Trust Company, a corporation of Massachusetts, the United Water Works Company, a corporation of New York, the Boston…

In January, 1890, one William Ottinger, of Philadelphia, Pa., died testate, owning the N. W. % of. section 9, township 154, range 57 W., Nelson county, N. D. The designated trustees under the will of said Ottinger by death and resignation retired from the testatorship thereunder, and the appellee in due form of law became the administrator of the estate with the will annexed, and under proper proceedings became the ancillary administrator in said Nelson county, state of…

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This is an appeal from a final decree of the United States District Court for the Southern District of New York, in favor of libelant for cargo damage.</p>

This case is an appeal from a decree of the Circuit Court for the Middle District of Alabama foreclosing a mortgage in favor of the Atlanta National Building & Loan Association against an undivided one-half interest in certain real estate in the city of Montgomery, Ala. The issues in the case arose under the following state of facts: In 1873 Mrs. Susan W. Gilmer was left a widow with nine children — three’ sons and six daughters.

<p>Customs Duties — Bond foe Return of Unexamined Merchandise — Damages foe Breach — Necessity of Proof.</p> <p>Certain importers failed to return, on demand of the collector of customs, merchandise delivered to them' without examination; this failure constituting. a breach of the conditions of a bond given by them, under section 2899, Rev. St. [U. S. Comp. St. 1901, p. 1921], in double the estimated value of such merchandise. The collector, without proof of any damage suffered, sought to recover such double value. Held, that the penalty of the bond is not to be considered as liquidated damages; that the object of the bond is to protect the government in the assessment, valuation, and collection of duties, and to make good, within the limit named in the penalty, any damages incurred in case of breach; and that without proof of actual damages there could be no recovery.</p>

<p>1. Customs Duties — Classification—Cravenette Cloth — Woolen Cloth.</p> <p>Certain woolen goods known as “cravenette cloths,” which have been subjected to a process intended to make them rain-repellent, which are chiefly used for outer garments to be worn in rainy weather, and which, for all ordinary purposes, are waterproof, are dutiable as “waterproof cloth,” under paragraph 369, Tariff Act Oct 1, 1890, c. 1244, § 1, Schedule J, 26 Stat 593, and not under paragraphs 392 and 395, Schedule K, of said act, 26 Stat. 596-97, relating, respectively, to “woolen or worsted cloths” and “dress goods * * * of wool, worsted,” etc.</p> <p>2. Same — Schedule Titles — Ejusdem Generis.</p> <p>The titles of the various schedules in tariff acts are not intended to be perfectly accurate, but furnish general information only of the articles enumerated in the paragraphs therein; and the principle of ejusdem generis should not be applied to exclude waterproof woolen cloth from the provision for “waterproof cloth” in paragraph 369, Tariff Act Oct. 1, 1890, c. 1244, § 1, Schedule J, 26 Stat. 593, because the subject of that schedule is flax, hemp, and jute.</p>

<p>1. Judgments — Docket Entries — Indeeiniteness.</p> <p>Docket entries of a judgment in a former action to recover the land in controversy recited, after title of the ease and notations of adjournments: “Trial commenced January 18, 1887, and concluded January 27, 1887, and decided in favor of the defendant. Costs assessed against plaintiff, $1,389.15. Rents and money, $1,340. Total amount, $2,729.15. Appeal to the Supreme Court granted.” And in the Supreme Court: “Court met pursuant to adjournment. The bench all present. The evidence in the case was then concluded, and, after some arguments by counsel on both sides, the case was submitted to the court for their decision. The court, after some deliberation, decided that the will is good, and hereby confirms the decision of the lower court.” _ -Held, that such recitals, though indefinite, sufficiently indicated that the Action proceeded to final judgment.</p> <p>2. Same — Res Judicata — Plea—Proof.</p> <p>It is sufficient to support a plea of res judicata if the record of the court having cognizance of the prior case shows final disposition of it on the merits, and this though the issues did not appear in the entry of judgment.</p> <p>3. Same — Issues—Pkooe.</p> <p>Where, on a plea of res judicata, the issues involved in the former case did not appear in the entry of judgment, it was competent to establish such issues by parol; the pleadings in the case having been destroyed by fire.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 585.]i</p>

<p>Collision — Liability of Tug fob Collision with Tow Fleet undeb Direction of Pilot of Tow.</p> <p>A tug employed solely to furnish motive power to another vessel, to whose side she is lashed, and which is in all things with respect to the navigation of the fleet subject to the orders of a pilot employed by and on board of the tow, is not liable for a collision occurring without her own-fault, although it may have been caused or contributed to by the fault of the pilot or of the tow.</p>

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

<p>1. Master and Servant — Injury oe Servant — Unsafe Place to Work.</p> <p>Where plaintiff, an employs, was sent to work where he was obliged to stand partly inside the doorway of elevator shafts, and was struck and injured by one of the cars, which were continued in use by other servants, who had been directed by the master to give plaintiff warning of the' approach of the cars, which in this instance was not done, the facts justified a finding by the jury that the master did not perform its duty in respect to furnishing plaintiff with a safe place to work, in that it did not either stop the cars, or provide some one who should devote his attention to keeping watch, so as to give plaintiff due warning.</p> <p>2. Same — Danger from Separate Work of Fellow Servants — Duty of Master to Give Warning.</p> <p>Where a servant is set to work in a place safe in itself, but in which he is exposed to danger from the doing of work by other servants not connected with his own, the master is bound to employ the necessary means to give him timely warning of such danger, and cannot delegate-such duty to any other person, so as to relieve himself from liability for the negligent failure to give such warning.</p>

This writ of error challenges a judgment recovered by Hickman upon coupons detached from bonds issued by the town of Fletcher, Colo., in the acquisition of a system of waterworks.

This is an action for the alleged negligent killing of the husband of the plaintiff in error by collision with an engine hauling a train of cars upon the-line of railway owned and operated by the defendant company. At the conclusion of all of the evidence the trial judge instructed a verdict for the railroad company.

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

The plaintiffs in error were on April 14, 1904, convicted of violating section 4746 of the Revised Statutes, as amended by the act of July 7, 1898, c. 578, 30 Stat. 718 [U. S. Comp. St. 1901, p. 3279].

<p>Customs Duties — Classification—Figured Cottons.</p> <p>The additional duties imposed by Tariff Act July 24, 1897, c. 11, $ 1, Schedule I, par. 313, 30 Stat. 178 [U. S. Comp. St 1901, p. 1659], on cotton cloth in which other than ordinary warp and filling threads have been introduced in the process of weaving to form a figure, are to be applied in addition only to the specific rates provided in the other paragraphs of said schedule on cotton cloth, and not in addition to the ad valorem rates provided in said paragraphs.</p>

<p>Contracts — Construction—Bbeach—Option to Renew.</p> <p>Plaintiff contracted with defendant to quarry, between January 1, 1901» and January 1, 1902, 50,000 cubic feet of marble from defendant’s quarry, at not less than 2,000 cubic feet in the month of April and 6,000 in each of the succeeding months. The contract also provided that, if plaintiff stripped more than 50,000 cubic feet, he should have the option of quarrying all the marble so stripped at the same price, and, if defendant operated the quarry during the succeeding year, plaintiff should have the option of a contract for quarrying all marble taken out at the price provided for. At the close of the season plaintiff had only quarried 43,707 feet, but there was at that time 26,640 cubic feet which plaintiff had stripped, but not quarried. Held that, plaintiff having failed to quarry the amount required by the contract through no fault of defendant, he could not recover damages for defendant’s refusal to permit him to quarry the marble so stripped.</p>

<p>1. Error — Review oe Instructions — Sufficiency of Bill of Exceptions.</p> <p>Assignments of error based on the giving and refusal of instructions cannot be considered by the Circuit Court of Appeals, unless the bills of exceptions contain the evidence pertinent to the issues to which the instructions relate, as required by the rules of the court.</p> <p>2. Same — Matters Reviewable — Order Denying New Trial.</p> <p>The refusal of the court to set aside a verdict and grant a new trial' is not reviewable in the federal courts.</p>

<p>L Master and Servant — Wrongful Discharge — Efficiency.</p> <p>Where, in an action for alleged wrongful discharge, it appeared that plaintiff was employed in defendant’s office as superintendent of printing, with control of all of defendant’s printing and mechanical departments, during a strike, and that during the 10 days of his employment the delay in getting out defendant’s morning and evening papers was materially cut down, with a reduced force, and that plaintiff worked nearly 16 hours a day, and the only reason given for his discharge was that the matter had gotten beyond defendant’s manager, and that the men would not work with plaintiff, the question of his efficiency was properly submitted in an instruction that if he fulfilled his duties efficiently, and was improperly discharged, he was entitled to recover, otherwise not.</p> <p>2. Same — Evidence.</p> <p>Where, in an action for a servant’s wrongful discharge, defendant’s witnesses claimed that plaintiff had done nothing in the line of his employment, a pay roll made up by plaintiff during such employment was admissible in rebuttal.</p>

<p>Carriers — Action by Railway Mail Clerk for Personal Injury — Instructions.</p> <p>In an action by a railway mail clerk against a railroad company to recover for injuries received through the alleged negligence of defendant in operating its road, where the court correctly instructed the jury that defendant owed to plaintiff the same degree of care as to a passenger for hire, which was the highest degree of care, skill, and foresight consistent with the carrying on of its business, further instructions that the care required was such only as “a prudent and careful person would generally exercise to prevent injury in the management of business attended by danger,” and such “as skillful men engaged in that kind of business might fairly be expected to use under like circumstances,” were inconsistent with the first, and erroneous, as not requiring the high degree of care exacted by the law from carriers of passengers.</p>

<p>Public Lands — Unlawful Inclosure — Suit fob Abatement of Fences;.</p> <p>Act .Feb. 25, 1885, c. 149, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524}, making it unlawful to inclose public lands without claim of right thereto under the land laws, applies to the inclosure and appropriation to private use of such lands by fences built on other lands, and the government may maintain a suit thereunder to abate such fences.</p>

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

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

<p>Patents — Suit fob Infringement — Costs.</p> <p>The provisions of Rev. St. §§ 973, 4922 [U. S. Comp. St. 1901, pp. 703, 3396], that when judgment or decree is rendered for the plaintiff or complainant in any suit at law or in equity for infringement of part of a patent, etc., no costs shall be recovered unless the proper disclaimer was entered in the Patent Office before the suit was brought, applies only to costs in the trial court, and not to costs on appeal, the allowance or refusal of which is to be determined by the appellate court in view of the special circumstances of the case. Where the court below denied all relief and dismissed the bill, which action was reversed on appeal as to certain claims of the patent, complainant will be awarded costs in the appellate court.</p>

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

<p>1. Patents — Licenses to Sell and Use — Transfer of Patent — Defect.</p> <p>Where a corporation owning patents, subject to licenses granted to sell ' and use, became insolvent, and its assets were purchased at a receiver’s sale by E., who had full knowledge of the rights of the licensee, and he thereafter organized another corporation, to which he conveyed the assets of the former company so purchased, excepting the rights of the insolvent under the licenses, which he transferred to a trusted employé, the succeeding corporation, taking with full knowledge of the licenses, was bound thereby.</p> <p>2. Same — Invasion of License — Equitable Relief.</p> <p>Where complainant acquired the exclusive right to use, exhibit, and sell phonographs and graphophones, under a license from a corporation owning patents thereon, and such rights were wrongfully invaded by a subsequent corporation, which succeeded to the rights of the licensor with knowledge of the licensee, complainant was entitled to recover against the latter in equity for breach of covenant.</p> <p>3. Same — Laches.</p> <p>Where complainant, a licensee of the exclusive right to use and sell patented phonographs and graphophones in a certain district, brought suit against defendant, a corporation which succeeded to the rights of the licensor, for breach of covenant in the license within five years after defendant’s incorporation, and within less than three years after the termination of fruitless negotiations to settle, and there was no evidence that complainant had acquiesced in defendant’s intrusion into such field, complainant was not barred by laches.</p> <p>4. Same — Breach of Covenant — Forfeiture.</p> <p>A breach of covenant contained in an exclusive license to use and sell patented phonographs and graphophones in a specified territory did not work a forfeiture of the license per se, no condition to that effect being inserted in the license.</p> <p>5. Same — Abandonment—Insolvency.</p> <p>Where an exclusive license, within specified territory, to use and sell patented phonographs and graphophones, authorized the licensor, on written notice, to immediately terminate all the rights granted, on the licensee’s failure to perform certain conditions, and in the event of the licensee becoming bankrupt or insolvent, the licensee’s insolvency did not operate as an abandonment of its contract rights, in the absence of notice, it being willing and capable of fulfilling its contract obligations notwithstanding such insolvency.</p> <p>6. Same — Extension.</p> <p>Certain licenses for the exclusive use and sale of patented phonographs and graphophones in a limited territory provided that the licenses should be extended on performance of a covenant that the licensee, at or before the expiration of the original term, would increase its capital stock to a specified amount and deposit the same with a trust company for delivery to the licensor or a trustee, and on notice of such deposit the licensor would forthwith deposit with the trust company, for delivery, extension licenses specified. Extension licenses were duly executed and delivered to the trust company thereunder, and stock deposits made and accepted by the trust company, but after the delivery of the stock and extension licenses to the latter it was directed not to deliver the stock certificates pending settlement of certain claims of the licensee against •the stock. Held, that the extension licenses were effective on the deposit of the stock with the trust company, the subsequent notice not to deliver the stock being ineffective.</p> <p>On Rehearing.</p> <p>7. Patents — Licenses—Extension of Term.</p> <p>An extension of the term of a patent does not inure to the transferee of a license, in the absence of language expressing such intention.</p> <p>8. Same — Licenses—Subsequent Extension.</p> <p>Where an assignment of certain patents contained agreements whereby all inventions or improvements on the patented article made by the patentee within 15 years should be assigned, and improvements were made and patented in several years subsequent to the execution of a license to use and sell, providing for a second extension for such further time as the “assignee was authorized to extend such license,” subject to the covenants and agreements of the original contract, the licensee was not entitled to a second extension in perpetuity, but only until the expiration of the last improvement patents.</p> <p>9. Same — Option to Renew — Construction.</p> <p>Where an exclusive license to use and sell patented phonographs and graphophones provided for a second extension for such further time, “at the option” of the licensee, as the licensor may be authorized to extend the license, and it appeared that the agreement was regarded by both parties to contemplate continuous business relations between them, the option was, in effect, but a reservation of the right to the licensee to discontinue existing relations, and its exercise was not, therefore, a condition precedent to the licensee’s right to a renewal.</p> <p>10. Same — Notice—Waiver.</p> <p>A license to use patented phonographs and graphophones provided for a renewal until March 26, 1903, and for a second renewal after such date for “such further time, at the option” of the licensee, as the licensor was authorized to extend the license. Prior to the date specified the licensor had invaded the licensee’s territory and refused to recognize the latter’s exclusive rights granted, and had obstructed the licensee’s efforts to obtain supplies, and a suit had been brought by the licensee to compel recognition of its rights. Held, that such acts on the part of the licensor constituted a waiver of the obligation of the licensee, if any, to give notice of its election to exercise its option to take a renewal of the license.</p>

<p>In Equity. On demurrers to bill and cross-bill.</p>

On Habeas Corpus, Certiorari, and Petition for Warrants of Removal for Trial.

<p>t. Reformation of Contract — Grounds—Mistake of Law.</p> <p>Where a contract as written, through mistake of either fact or law, fails to embody the actual agreement and intention of the parties, a court of equity will reform it to conform to such agreement and intention.</p> <p>[Ed. Note. — Por cases in point, see vol. 42, Cent. Dig. Reformation of Instruments, §§ 68-78.]</p> <p>2. Same — Deed.</p> <p>Plaintiff and defendant entered into a parol agreement for the exchange of a farm owned by plaintiff for a store and stock of goods owned by defendant, subject to an examination thereof by plaintiff. By such agreement, as testified by both parties, plaintiff was to retain possession of the farm until the ensuing January and receive the rents for the current year. Plaintiff had a deed drawn, stating the agreement fully to the •draftsman; but the latter made no reservation in the deed, being of the opinion that it was not proper or necessary. Defendant also had a written contract drawn, which was signed by the parties and which contained no reference to the rents or time of giving possession, although such terms were stated by defendant to the draftsman. Owing to subsequent occurrences defendant became desirous of repudiating the contract, and demanded its modification, so as to give him immediate possession of the land and the rents, which plaintiff refused, insisting on the agreement as made. Defendant then consulted a lawyer, who, on examining the deed, which defendant had not previously seen, advised him that it carried the right to immediate possession and the rents, and defendant then completed the trade and accepted the deed, without stating the fact of such advice to plaintiff. Held, that plaintiff was entitled to have the deed reformed to embody the actual agreement and understanding of both parties when the contract was made, both on the ground of mistake and of fraud.</p>

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

<p>1. Mortgage — Foreclosure—Negotiable Bonds — Fraud.</p> <p>On a suit by a trustee to foreclose a mortgage securing negotiable bonds, held that, while the general rule is that a holder of such securities purchased in the open market is a bona fide holder, and the burden of proof is upon him who would attack such title, nevertheless when the mortgage and bonds are found to have been without consideration, and fraudulent in their inception, the burden shifts, and the holder must show that he was an innocent purchaser.</p> <p>[Ed. Note. — For cases in point, see vol. 8, Cent Dig. Bonds, § 222.)</p> <p>2. Same — Evidence—Bona Fide Holders.</p> <p>Held, also, under the evidence, that the mortgage and the bonds in question were fraudulent, and without consideration, and that those claiming to hold the bonds were not bona fide holders.</p> <p>(Syllabus by the Court.)</p>

<p>Salvage — Amount of Award — Towing Disabled Vessel at Sea.</p> <p>The freight steamer Santurce, on a voyage from Porto Rico to New York, when in the vicinity of the Bahamas became almost wholly disabled by the breaking of her propeller blades, and, after proceeding with sails for three days, in answer to her distress signals was taken in tow by the Rosewood on a voyage from Portugal to New Orleans, with a cargo-of ore, and towed to Nassau, a distance of about 240 miles. The service delayed the Rosewood about 2% days, and she was subjected to some danger, owing to unfavorable weather. The time was early in January, and the Santurce was in a position of considerable peril. Each vessel was of a net tonnage of about 1,100. The Santurce, with cargo and freight, was of a value of $210,000; and the Rosewood, $70,000. Meld, that the Rosewood was entitled to a salvage award of $10,000, in addition to disbursements; 25 per cent, to go to the officers and crew.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent Dig. Salvage, §§ 80-83.</p> <p>Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

<p>1. Federal Courts — Local Suit to Establish Lien — Limitation op Decree. In a suit in a federal court, brought under section 738, Rev. St., to establish a lien on the interest of defendants in property in the hands of an ancillary administrator in the state in which the suit is brought, the decree is necessarily confined to the property localized within the juris- ■ - diction, although, personal judgments may be entered against the defendants, to which the liens are incidental.</p> <p>2. Equity — Suit to Enforce Lien — Disregard of Formal Objections. The fact that in ancillary probate proceedings the will of a testator was admitted to. probate without any expressed reference to a compromise decree entered in the state of original jurisdiction by which contesting heirs not named in the will were given a certain share in the estate, so that the record in the ancillary proceedings does not show any interest in such heirs, will not preclude a court of equity from fastening a lien upon their interest in the assets within the ancillary jurisdiction; the objection being one of form only, which such court will disregard.</p>

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

<p>1. Bills in Equity — Alleging Citizenship.</p> <p>A bill in equity in a federal court need allege tbe citizenship of the parties only where jurisdiction depends on diverse citizenship.</p> <p>2. Same — Demuebek and Motion.</p> <p>Omission of a bill to allege citizenship of the parties pursuant to equity rule 20 is to be corrected by motion, not by demurrer.</p> <p>3. Same — Recovery of Payments by Bankrupt — Demand.</p> <p>A bill in equity by a trustee in bankruptcy to recover payments made by a bankrupt within four months prior to bankruptcy need not allege a previous demand, though this is necessary in actions at law.</p> <p>4. Bankruptcy — Bill by Trustee — Inconsistent Causes of Action.</p> <p>A bill by a trustee in bankruptcy to recover a payment of money made by a bankrupt within four months prior to bankruptcy, by alleging that the transaction amounted to a preference or a fraudulent payment, and that in either case he was entitled to its return, does not unite inconsistent causes of action.</p>

<p>Abatement — Pendency of Action in State Court.</p> <p>It is no ground for abatement of a suit in a federal court that an action for the same subject-matter between 'the same parties is pending in ■a state court; and it is immaterial that a counterclaim is set up in the state court, it not appearing that the same defense may not be available in the federal court.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent Dig. Abatement and Revival, §§ 87-91.</p> <p>Pendency of action in state or federal court ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.]</p>

<p>1. Bankruptcy — Sale of Property Discharged of Liens — Rights of Bondholders.</p> <p>Holders of the bonds of a bankrupt corporation, secured by a mortgage, which gives them the right to use such bonds in the purchase of the property if sold at judicial sale, should not be deprived of such right by an order authorizing the trustee to sell the property free from liens, so long as their title to the bonds is unimpeached.</p> <p>2. Same — Notice of Application.</p> <p>To authorize an order for the sale of a bankrupt’s property free of liens, the record should show affirmatively that every creditor whose lien will be discharged has received notice of the application therefor, and a general statement by the referee that such notice has been given is insufficient</p>

<p>In Bankruptcy:</p>

<p>In Equity. Overruling motion to strike amendment from record.</p>

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

<p>1. Copyright — Pictures—‘ ‘Prints. ’ ’</p> <p>Pictures printed in successive colors from metal plates from which parts-have been cut out so as to leave portions of the print in relief are entitled to copyright as “prints,” under the general enumeration of Rev. St. § 4956 [U. S. Comp. St. 1901, p. 3407], and are not within the proviso requiring chromos or lithographs to be printed from “drawings on stone made within the limits of the United States, or from transfers made therefrom,” to be entitled to copyright.</p> <p>[Ed. Note. — Matter subject to copyright, see note to Cleland v. Thayer, 58 C. C. A. 273.]</p> <p>2. Same — Copyright Notice.</p> <p>A notice of copyright on a picture, reading: “Copyright 1902. Published by Hills & Co., Ltd., London, England” — is sufficient.</p>

<p>Appeals from Orders of Commissioner for Deportation of Defendants.</p>

<p>Bankruptcy — Property Passing to Trustee — Conditional Sales.</p> <p>Property which was delivered to a purchaser for the purpose of sale by him in the usual course of his business passes to his trustee in bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 70a (5), 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], notwithstanding a contract by which the seller reserved title until payment should be made, with the right to take possession at any time; such contract being fraudulent and void as against purchasers or creditors.</p>

<p>Charge to Grand Jury.</p>

<p>1. Corporations — Suit by Stockholder — Necessity of Previous Demand on Directors.</p> <p>Where the bill of a stockholder shows that the directors of the corporation own a majority of the stock, and charges that it was issued to them without payment, and that they are mismanaging the corporation and diverting its funds and income to themselves, it is not necessary, to entitle complainant to relief, that it should be shown, as required by equity rule 94, that demand was made on them or the corporation before the suit was brought.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 792, 817.]</p> <p>2. Same — Mismanagement—Equity. Jurisdiction to Appoint Receiver.</p> <p>Where the majority stockholders of a corporation, who are also the directors, are clearly violating the charter rights of the minority, as by diverting all the earnings of the company to themselves, either directly or indirectly, a court of equity will appoint a receiver at suit of a minority stockholder, although the company is solvent; there being no complete, prompt, and efficient remedy at law.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 2206, 2207.]</p>

<p>On Petition for Writ of Habeas Corpus.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question affirmed the assessment of duty by the collector of customs at the port of Philadelphia on merchandise imported by Darlington, Runk & Co.

<p>In Admiralty. Action for injury to vessel at wharf.</p>

<p>1. Municipal Corporations — Water-works Franchise — Competition—Implied Contract.</p> <p>The grant of a franchise by a municipal corporation to a water company to furnish water does not of itself raise an implied contract that the city will never do any act by which the value of the franchise granted may in fact be reduced.</p> <p>2. Same — Exclusive Grant — Construction.</p> <p>A contract by a city, granting “the exclusive privilege” of laying water pipes for public use in the highways of the city to K., and containing a provision that it was agreed that the contract should remain in full force for 20 years from a specified date, with the privilege to the city of purchasing the waterworks from It, his successors or assigns, after the expiration of 10 years, etc., did not constitute an implied renunciation of the .city’s power to construct and maintain waterworks itself, after the expiration of the 20-year period.</p> <p>3. Same — Vested Rights — Contracts—State Statutes — Construction—Federal Courts — Independent Judgment.</p> <p>Where, in a suit to restrain a city from constructing and operating waterworks, complainant’s rights were acquired under a municipal contract, and not by virtue of any constitutional or statutory provision, complainant was not entitled to the independent judgment of the federal court on the construction of a constitutional provision of the statute of the state with reference to the power of the city to increase its indebtedness for the purpose of constructing such waterworks.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 43.]</p> <p>4. Same.</p> <p>It was immaterial that a decision of the highest court of the state .construing such Constitution and statutes to authorize the city to construct and maintain such waterworks was filed pending the suit in the federal court.</p> <p>5. Same — Genuine Controversy — Review.</p> <p>Where a decision of the highest court in the state, construing the state Constitution and laws with reference to a municipal corporation’s power to incur indebtedness for waterworks, was urged as conclusive on the federal courts, the latter would not review an objection that the state action did not involve a genuine controversy, but was a friendly suit to obtain a favorable interpretation of the Constitution to permit the issuance of water bonds.</p> <p>[Ed. Note. — State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.</p> <p>6. Same — Objections.</p> <p>Where the validity of an alternative submission of the question whether a city should issue bonds for the “construction or purchase” of a system of waterworks was in issue in a suit brought in the state courts to restrain the city from proceeding under such election, and a final judgment in favor of the city was affirmed on appeal to the state Supreme Court, such decision was conclusive on the federal courts against the validity of an objection there to the alternative submission of such question.</p>

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

<p>1. Customs Duties — Collectors—Liability eoe Monet Lost in Transmission.</p> <p>Under Rev. St. § 3639 [U. S. Comp. St. 1901, p. 2422], which requires all collectors of customs to retain the sums collected till the same are ordered by the proper department or officer transferred or paid out, and to then make the transfer or payment as directed; and the regulations of the Treasury Department made pursuant thereto, requiring collectors to deposit customs dues collected with the Treasurer or an Assistant Treasurer, using therefor a designated express company and forms of vouchers and waybills provided by the department, a collector who has followed such directions in making up a package, and in taking the receipt for the same from the express company, cannot be held liable on his bond for the loss of any part of the contents of such package before it reaches the Assistant Treasurer, to whom it is properly addressed.</p> <p>2. Error — Admission of Incompetent Evidence — Harmless Error.</p> <p>The admission of incompetent evidence is not ground for the reversal of a judgment which is fully supported by uncontradieted evidence properly admitted. •</p>

This cause comes here upon an appeal from a decision of the Circuit Court, Southern District of New York (126 Fed. 578), reversing a decision of the Board of General Appraisers (G. A. 4,946, T. D. 23,130), which sustained the action of the collector of the port of New York in assessing duty on certain merchandise imported under the tariff act of 1897.

The decision below (129 Fed. 837, T. D. 25,274), affirmed a decision of the Board of General Appraisers (G. A. 5,307, T. D. 24,-320), which had affirmed the assessment of duty by the collector of customs at the port of Boston on merchandise imported by William F. Brennan.

<p>Contracts — Construction—When Question for Jury.</p> <p>Where the question in issue was as to whether a written contract, by its terms to be performed in case a consolidation was effected between two corporations, was in fact limited to a consolidation resulting from then pending negotiations, or whether it became effective and enforceable on the effecting of a consolidation as a result of a renewal of negotiations a year later, the writing being silent on the subject, extrinsic evidence of the circumstances and the acts and declarations of the parties was admissible, and, where that was conflicting, the question of the construction of the contract as a whole was properly submitted to the jury as one of fact.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent Dig. Contracts, §§ 767-770; vol. 20, Cent. Dig. Evidence, §§ 1874-1899.]</p>

<p>Petition for Revision of Proceeding of 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>This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, sustaining a demurrer to. the bill on the ground that it does not state facts sufficient to constitute a cause of action. The suit was brought to impress property held by defendant with a trust alleged to have been created by the will of one Isaac D. Russell. The opinion of the Circuit Judge will be found in 127 Fed. 445.</p>

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

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

<p>Appeal from the Circuit Court of tlie United States for the South-ern District of New York.</p> <p>This cause comes here upon appeal from a decision of the Circuit 'Court, Southern District of New York (128 Fed. 472),- reversing a decision of the Board of General Appraisers (G. A. 5150; T. D. 23,752), which had affirmed the collector of the port of New York in the assessment of certaip customs duties.</p>

<p>Bankruptcy — Concealment of Assets-Pax.se Oath — Discharge—Evidence.</p> <p>A bankrupt’s wife acquired $10,000 from her father, which constituted her sole estate. In bankruptcy proceedings of a firm of which her husband was a member an indebtedness for $6,000 loaned by the wife to the firm was scheduled. Nothing was paid to the creditors of the firm, but almost immediately thereafter the husband again commenced business in the name of his brother, find testified that his wife contributed $10,000 of this business and the brother $2,000. This business was extraordinarily successful, the profits being invested in real estate, etc.; the bankrupt testifying that he managed the business for his wife without charge, drew such funds from the business as he wanted, and, though for the last 30 years he lived in a large and expensive house, he paid nothing to his creditors. He was never discharged under the former bankruptcy proceedings, and thereafter individually filed another petition, in which he scheduled no assets, and old debts amounting to nearly $9,000. Held, that such facts were sufficient to show that the bankrupt owned a substantial interest in the partnership, and that he was guilty of a false oath, precluding a discharge, by swearing to a schedule stating that he had no such property.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The libel was filed by Prank J. McBride, master of the steam tug Lowell M. Palmer, on behalf of himself and all others interested in said tug and car float No. 8 and the cars laden thereon and the contents of the same, which said float was being toived by the tug, against the steamboat New Hampshire (the Providence & Stonington Steamship Company, claimant), to recover damages for the sinking of said car float No. S and the cars and their contents loaded on said float, which was caused by a collision with the said steamboat occurring in the East river March 13, 1903. All the testimony was taken in the presence of the District Judge, who found in favor of the libelant. The damages being stipulated, a decree was entered against the New Hampshire April 4, 1904, for $19,381.34. Erom this decree the claimant appeals. .</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, in favor of libelant for the sum of $344.89 (with interest and costs), being the balance of freight due for the transportation of a cargo of mahogany logs from Frontera and Tonala, Mexico, to New York. The only defense is a counterclaim for the value of 31 logs which were-lost while the logs were alongside the steamer at Frontera, and before they could be stowed in the ship.

<p>1. Pleading — Affidavit of Defense — When Necessary.</p> <p>A statement of claim, in form assumpsit, but which seeks to recover damages for acts of defendant done in his judicial capacity, does not set up a cause of action requiring an affidavit of defense under the act of Assembly of the state of Pennsylvania of May 25, 1887 (P. L. 271).</p> <p>2. Same — Action ex Delicto.</p> <p>The actions of assumpsit for which judgment may be taken for want of an affidavit of defense are limited to such as are founded on contract alone, and do not include cases in which the cause of action is ex delicto or of a mixed character of contract and tort.</p> <p>3. Trial — Motion to Dismiss — Judgment.</p> <p>While a motion to dismiss for want of jurisdiction is pending, judgment for want of an affidavit of defense cannot be entered.</p> <p>4. Same.</p> <p>If a suit does not involve a dispute or controversy properly within the jurisdiction of the Circuit Court, on a motion to dismiss being filed it is the plain duty of that court to proceed no further therein, but to dismiss the suit.</p>

For decision below, see 131 Fed. 648, which affirmed a ruling of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Hall & Bishop. The question at issue involves the construction of paragraphs 369 and 371, Schedule K, § 1, Tariff Act July 24,1897, c. 11, 30 Stat. 184, 185 [U. S. Comp. St. 1901, p. 1667], the pertinent parts of which read as follows : “369.

<p>Patents — Invention—Ntihbebing Machines.</p> <p>The Bates patent, No. 676,084, for an automatic typographic numbering machine, claim 27, which covers a box or case for such machine, in which the side plates are interchangeable, and held in place entirely by pins instead of screws, as in the prior art, rendering them easy to remove and replace, was not anticipated, and shows invention. Also held infringed.</p>

On Motion for New Trial. This was an action at law brought by the drainage commission of New Orleans against the National Contracting Company of New York, and its surety, the Fidelity & Deposit Company of Maryland, in solido, to recover $60,000 alleged to have been overpaid by the plaintiff to the National Contracting Company on certain contracts for drainage work, the sum claimed being the difference in cost between certain Portland cement which the contractors were…

<p>1. Mines — Royalties—Accounting.</p> <p>Plaintiff being entitled by contract to a royalty of one dollar a ton on ore from certain mines, defendant wrote him, with reference to certain ore, that it would be necessary to reduce the royalty, and suggested 50 cents a ton. Plaintiff did not reply thereto, nor to that part of a subsequent account of royalties in which he was only credited at 50 cents a ton for this ore; but 2y% months-thereafter, when a check was sent in accordance with the statement, he refused to accept it in full, claiming royalty at the contract rate. Held, that plaintiff’s failure to so object to the reduction was insufficient to preclude him from subsequently claiming royalty at the contract rate.</p> <p>2. Same — Accounting—Deductions—Bubden oe Peoof.</p> <p>Where a contract for royalty on ore provided that the amount should be determined by railroad shipping receipts, the burden was on defendants, seeking to discredit such receipts on an accounting, to justify the deductions claimed.</p> <p>3. Same — Deductions foe Diet — Evidence.</p> <p>On an accounting of royalty payable- under an ore-shipping contract, evidence held insufficient to establish that deductions made by defendant for dirt were justified.</p> <p>4. Same — Objections—Waives.</p> <p>Where plaintiff was entitled to royalties on ore shipped to defendants, the amount of the shipments to be determined by the railroad shipping receipts, and defendants’ statements of shipments were without any specification, except as to one shipment, and plaintiff had no figures with which to verify the account, the record of shipments being all kept at defendants’ place of business, plaintiff’s failure to object to the account rendered was not a waiver of his right to subsequently claim that deductions made by defendants were improper.</p> <p>5. Same — Agbeements—Executed Tbansaction.</p> <p>Where a payment on account of royalties for ore shipped, made by mistake, was allowed to go unquestioned by defendants for nearly a year after the mistake was discovered, and in a subsequent statement plaintiff was again credited with such royalty, though at a reduced rate, and a payment was made, such acts constituted a confirmation of such royalty, precluding defendants from thereafter claiming that plaintiff was not entitled to such royalty.</p> <p>6. Same — Loans—Repudiation.</p> <p>Where plaintiff was credited by defendants with royalties on ore mined from two farms, and such credits, together with some cash, was permitted to remain in defendants’ possession as a loan, on which interest was paid on semiannual balances, and on one occasion the account was reduced by payment of $1,000, defendants were not thereafter entitled to repudiate the transaction on the ground that the royalties were not justified.</p> <p>7. Same — Contbacts—Disaffirmance—Election—Damages.</p> <p>A contract to convey certain real estate provided for payment of royalties to the grantor for a term of 20 years, unless the grantor should voluntarily leave the grantees’ employment, and that, if the grantees at any time should fail to pay the royalties for ninety days after written demand, the grantor should be entitled to a reconveyance of the -premises on paying the cost price thereof. Held, that where, after the grantees had discharged the grantor from their employment, he gave notice of forfeiture for nonpayment of royalties, he thereby elected to terminate the contract, and was not entitled to recover subsequent damages.</p> <p>8. Same — Consideration—Interest.</p> <p>Plaintiff conveyed certain real estate to defendants at an actual cost of $3,500, on defendants’ agreement to pay certain royalties for a specified term from mines located thereon, if possession was obtained by defendants, and that, on failure to pay the royalties, plaintiff should be entitled to a reconveyance on payment of the cost price. Held that, defendants not having acquired possession/ because of an outstanding lease, on termination of the contract for failure to pay royalties they were entitled to interest on the repayment of $3,500.</p> <p>®. Same — Tender.</p> <p>Plaintiff, being only bound to reimburse defendants as a condition to a reconveyance, was not bound to tender the amount necessary therefor in advance of a settlement of the accounts.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. Held: however, in United States v. Murphy, 136 Fed. 811, decided by the United States Circuit Court for the Southern District of New York, per Townsend, J., in December, 1898; that an appraisement of merchandise made by a single general appraiser under the provisions of section 13 of the customs administrative act was invalid if that…

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision below related to the assessment of duty by the colector of customs at the port of New York on goods imported by Alexander Murphy & Co., and was on the question of the validity •of certain reappraisements by a single general appraiser, made under section 13, Customs Administrative Act June 10, 1890, c. -1-07, 26 Stat. 136 [U. S. Comp. St. 1901, p. 193.2]. Note Curnen v. United States (C. C.) 136 Fed. 807.</p> <p>The opinion of the board reads as follows (Somerville, General Appraiser):</p> <p>We find the facts in these eases to be as stated in the accompanying Exhibit A, dated December 28, 1897, and admitted in evidence as part of the record. The point of contention in the protests is that certain reappraisements made -by a general appraiser of the various goods covered by the invoices were invalid and void on the ground that the general appraiser who made the reappraisements did not examine any of the goods in question, having neither the goods nor samples before him at the time of the hearing. The reappraisements in question were ordered by the collector, and no second reappraisement was made by a board of three general appraisers of any of the •cases of merchandise. Counsel for the importers appeared at the hearing of these reappraisements, and objected to the general appraiser taking any action concerning the cases of merchandise covered by the protests, alleging that the original appraisement was presumably correct, as the official act •of a public officer, until the contrary was shown, and insisting that unless the cases of merchandise, or sufficient samples, were present before, and were examined by, the general appraiser, or witnesses, if any, no reappraisement could be mad". The merchandise in question had been duly delivered l>y the custom-house authorities to the importers, had by them been sold and sent to their customers, and had passed out of their possession and control ; and none of the merchandise, nor any samples, had been seen by the general appraiser or any of the witnesses called in these matters. It is the judgment of the board that. the reappraisements made by the general appraiser were not valid, for want of compliance with the requirements of the regulations of the Secretary of the Treasury covering reappraisements of merchandise made pursuant to law, and also as being in conflict with certain well-settled principles of law. Customs Regulations 1892, art. 847; T. D. 6,967; T. D. 12,483; Converse v. Burgess, 18 How. 413, 15 L. Ed. 455; Greely v. Thompson, 10 How. 225, 13 L. Ed. 397; U. S. v. Doherty (D. C.) 27 Eed. 730; Origet v. Hedden, 155 U. S. 228, 15 Sup. Ct. 92, 39 L. Ed. 130; Muser v. Magone, 155 U. S. 240, 15 Sup. Ct. 77, 39 L. Ed. 135; and other cases cited in the brief of counsel for the importers.</p> <p>In addition to the facts stated in the foregoing opinion, it appeared that a bond had been given under section 2899, Rev. St. (U. S. Comp. St. 1901, p. 1921), providing that “the collector may * * * •take bonds * * * in double the estimated value of such merchandise, conditioned that it shall be delivered to the order of the •collector at any time within ten days after the package sent to the public stores has been appraised and reported to the collector.” No such demand was made by the collector within the period named. No additional evidence was introduced in the circuit court.</p>

<p>Admibalty — Employment of Stenogbapheb on Refeeence — Poweb of Cotjbt to Authobize.</p> <p>A court of admiralty has power to authorize the employment of a stenographer, whose fees shall be taxed as costs, to take and transcribe the-testimony before a commissioner on a reference, and will exercise it where-the parties refuse to stipulate, and the services of a stenographer are necessary if progress is to be made on the hearing, as where it involves-a large number of disputed items of account.</p>

<p>Maritime Liens — Payment or Seamen’s Wages by Mortgagee — Right or Subrogation.</p> <p>The mortgagee of a vessel, who takes possession and in good faith pays off arrears of wages due to the crew to prevent libels being filed therefor, on distribution of the proceeds of the vessel in proceedings instituted by other lien claimants, is entitled to enforce the preferred lien of the seamen for the amount of such wages.</p>

<p>Customs Duties — Classification—Gaduol — Chemical Compound — Medicinal Pbepabation.</p> <p>Gaduol, an extract of cod liver oil, which in the form in which imported is not prepared for the use of the apothecary or physician, and which is not dispensed in that form, is not a “medicinal preparation,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1631], but is dutiable as a chemical compound under paragraph 3 of said act (30 Stat T51, c. 11, § 1, Schedule. A [U. S. Comp. St. 1901, p. 1627]).</p>

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

<p>1. Subrogation — Voluntary Payment oe Another’s Debt.</p> <p>The mere fact that one pays off a debt at the instance of the debtor, or lends money with which to pay it, does not entitle him to subrogation to a lien of the creditor; nor is it enough that there is an understanding on his part and that of the debtor that the right of subrogation will result from such payment, in the absence of an express agreement therefor.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Subrogation, §§ 60-68.]</p> <p>2. Same — Agreement with Debtor — Equities oe Third Persons.</p> <p>Subrogation by agreement with the debtor alone, to the equities and liens of a creditor whose debt is paid off by one under no obligation, will be enforced in equity only when the agreement creates equitable rights against the debtor, which will not impair or overthrow equitable rights of the creditor or of innocent third persons.</p> <p>[Ed. Note. — For- cases in point, see vol. 44, Cent. Dig. Subrogation, §§ 60-68.]</p> <p>3. Same.</p> <p>A third person who pays a portion of a debt secured by a lien, at the instance of the debtor, will, not be subrogated in equity to such lien, to the prejudice of the original creditor with respect to the remainder of his debt.</p> <p>4. Bankruptcy — Subrogation to Laborer’s Lien or Preference.</p> <p>A bankrupt corporation gave to its employes orders on claimants for goods, and charged the same against the current wages of the men. Claimants filled such orders, and charged the amount to the corporation, which paid the same from time to time, either in cash, or by note or credits on its books. Under the statute (Acts Tenn. 1897, p. 222, c. 78) the employés were entitled to laborers’ liens on the property of the corporation for wages earned within three months prior to the bankruptcy. Held, that no right of subrogation to such liens arose in favor of claimants from such transactions, nor to the priority given labor claims by the bankruptcy act, and that such subrogation would not be accorded them where it appeared that, if it were, the estate would not be sufficient to pay the preferred claims in full.</p>

This is an appeal from the decree of th.e District Court dismissing the libel exhibited by Malvina L. Quinette, a feme sole, against Joseph Bisso and Joseph A. Bisso, owners of the steam tug Leo (Joseph A. Bisso being master) for running down a skiff, in which libelant’s daughter Sophie L. Quinette and a negro oarsman were attempting to cross the Mississippi river, in consequence of which Miss Quinette was drowned, on the morning of the 5th of November, 1900, at Nine-Mile…

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

Appellants’ bill for infringement of letters patent No. 356,963, February 1, 1887, to Ries, was dismissed for want of equity.

<p>In Re Petition for Leave to File Supplemental Bill in the United States Circuit Court.</p>

On petition for a writ of mandamus to enforce the mandate of the court in the case of the American Soda Fountain Company and another against George W. Sample.

<p>In Equity. Letters patent No. 729,084 sustained on the evidence.</p>

<p>Patents — Infringement—Water- Closets.</p> <p>The Chadbourne patent, No. 461,734, for an improved construction of the bowl and seat in water-closets, is valid and entitled to a liberal construction. Claim 1 also construed, and held infringed.</p>

<p>1. Patents — Validity—Cigar Bands — Novelty.</p> <p>Patent No. 715,512, for an improved cigar band, one' end of which is wider than the other to facilitate adjustment aud prevent the gummed end from adhering to the wrapper of the cigar, held void for want of novelty. .</p> <p>2. Trade-Marks.</p> <p>Complainant patented a paper cigar band, wider at one end than the other, of brown color, on which was printed the words, “Trade-mark, Pat’d Dec. 9, 1902, E. Regensburg & Sons.” Held, that neither the color, shape, nor material of the band alone or in combination was sufficient to constitute a valid trade-mark, since it did not point to the source from which the goods on which the bands were used were derived.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trade-Marks aud Trade-Names, §§ 19-21.]</p> <p>3. Same — Infringement.</p> <p>Plaintiff’s band was not infringed by a band of similar color and shape, on which the only lettering was an inscription of the name “Juan F. Portuondo” in script, evidently imitating an autograph.</p> <p>4. Same — Unfair Competition.</p> <p>Where defendant’s cigar baud was selected with no reference to complainant’s, or intention to imitate it, and defendant’s band did not resemble complainant’s so closely as to deceive a person of ordinary intelligence and observation, defendant was not guilty of unfair competition.</p> <p>[Ed. Note. — For cases in point, see vol. ,46, Cent. Dig. Trade-Marks and Trade-Names, §§ 79-81.</p> <p>Unfair competition, see notes to Scheuer y. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>1. Patents — Infringement—Process.</p> <p>While there may he a patent for a machine to perform a process patented by another, its use in the practice of such process constitutes an infringement of the process patent.</p> <p>2. Same — Process of Expanding Metal.</p> <p>The Golding patent, No. 527,242, for a process of making open or reticulated metal work by slitting and expanding sheet metal, covers a novel and useful process, and discloses invention. Also held infringed.</p>

<p>Patents — Conteibutoby Inebingement.</p> <p>One who manufactures and sells an element in an infringing baking powder to be used by tbe purchaser in making such baking powder is a contributory infringer, and liable equally with the purchaser for the profits or damages resulting from the sale of the infringing article.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 402.</p> <p>Contributory, infringement of patent, see note to Edison Electric Light Co. v. Peninsular. Light, Power & Heat Co., 43 C. C. A. 485.]</p>

<p>Patents — Infringement—Cartridge Belts.</p> <p>The Mills patents, Nos. 756,177 and 756,178, for cartridge belts, construed, and held, not infringed.</p>

In Equity. Suit for infringement of letters patent No. 506,959, dated October 17, 1893, No. 509,413, dated November 28, 1893, and No. 562,263, dated June 16, 1896; all relating to cop-winding machines, and granted to Simon W. Wardwell, Jr. On final hearing.

<p>In Equity. Suit for infringement of letters patent No. 572,309, for a winding machine, granted to Alfred B. Morse December 1, 1896. On final hearing.</p>

<p>Patents — Weighing Apparatus — Infringement.</p> <p>Letters patent No. 387,285, for an improvement in indicators for weighing apparatus, sustained, and patent No. 733,059 held to infringe claim 1 of the former; the device used in the infringing patent being the mechanical equivalent of that adopted in the patent in suit.</p> <p>(Syllabus by the Court.)</p>

<p>1. Grand Jury — Qualification of Jurors — State Law — Federal Courts— Application — Assessment Roll.</p> <p>Rev. St. § 800 [U. S. Comp. St. 1901, p. 623], requires that grand jurors in federal courts shall have the same qualifications as jurors in the highest court of law in the particular state. B. & C. Comp. § 965, prescribes the qualifications of jurors, but does not require that their names shall be on the assessment roll. Section 970 requires the county court at its first term in each year to make a jury list from the last preceding assessment roll of the county containing the names of persons to serve as grand and trial jurors; and sections 971 and 972 require such list to contain the names of not less than 200 qualified persons, if there be that number of qualified jurors on the assessment roll, and not more than 600. Held, that the requirement that the names of jurors selected should be on the assessment roll was merely a provision relating to the mode of selecting jurors, and that the fact that the name of a grand juror selected in the federal courts was not on such roll did not disqualify him for service.</p> <p>2. Same — Indictment—Objections.</p> <p>B. & C. Comp. § 1349, provides that an indictment must be set aside on motion of the defendant when not found or indorsed and presented as prescribed in title 8, e. 7, of the Code, and when the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment as indorsed thereon. Held, that the effect of such statute, in the absence of any other provision for setting an indictment aside, was to limit the disqualification of grand jurors to such grounds, and to prevent pleas in abatement based on objections not going to the qualifications of the grand jurors, but merely to the regularity of the proceedings by which the jury was organized.</p> <p>3. Same — Excusing Jurors.</p> <p>The court has jurisdiction to discharge a grand juror for cause, and the possible or probable effect of the absence of such juror on subsequent proceedings of the grand jury does not admit of inquiry. ■</p> <p>[Ed. Note. — For cases in point, see vol. 24, Cent. Dig. Grand Jury, § 28.]</p> <p>4. Same.</p> <p>Where the record shows that certain grand jurors were discharged “for good cause shown to the court,” such finding is conclusive as to the sufficiency of the cause.</p> <p>5. Same — Grand Jurors — Appearance—Swearing.</p> <p>Where a grand juror does not report until after the jury has been sworn and charged, and there are enough grand jurors without him, he may or may not be sworn, in the discretion of the court.</p> <p>6. Same — Number of Grand Jurors.</p> <p>The fact that more than 24 persons were summoned to appear as grand jurors is immaterial, and does not affect the validity of an indictment.</p> <p>[Ed. Note. — For cases in point, see vol. 24, Cent. Dig. Grand Jury, § 4.]</p> <p>7. Same — District Attorney — Competency.</p> <p>Where a United States district attorney was appointed by a court having authority to make a valid appointment, and he was in the undisturbed and unquestioned exercise of the powers of such office at the time an indictment was returned, he being a de facto officer, it was no objection to the indictment that the appointment was invalid on the ground that such attorney was not a permanent resident of the district.</p> <p>8. Same — Prejudice—Presence before Grand' Jury.</p> <p>Mere general objections that a United States district attorney who obtained an indictment against defendant was very prejudiced against him, had actively worked up feeling against him, and had been present in.the grand jury room while the jury were deliberating on the indictment, etc., were insufficient to authorize the vacation of the indictment.</p> <p>9. Same — Federal Courts — Impaneling Grand Jury — Objections to Indictment — Discretion.</p> <p>Rev. St. § 800 [U. S. Comp. St. 1901, p. 623], provides that federal courts may, by rule or order, conform the designation and impaneling of juries, in substance, to the laws and usages relating to jurors in the state cpurts. B. & C. Comp. § 1269, provides that no challenge shall be allowed to the panel from which a grand jury is drawn, unless made by the court for want of qualification, as prescribed by section 1268, which declares that, before accepting a person drawn as a grand juror, the court must be satisfied tfiat the person is duly qualified to act, but, when drawn and found qualified, he must be accepted, unless excused by the court; and section 1349 only authorizes an indictment to be set aside when not found, indorsed, and presented as prescribed by title 18, e. 7, and when the names of witnesses are not indorsed thereon. Held, that under Rev. St. U. S. § 722 [U. S. Comp. St. 1901, p. 582], providing that when the laws of the United States are not suitable, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses, the common law. as modified by the Constitution and laws of the state, shall govern, the requirement of section 800 was imperative, so that an indictment in the-federal court sitting in Oregon could not be set aside on grounds other than those specified in section 1349, except in the discretion of the court.</p> <p>10. Same — Alienage.</p> <p>Under B. & C. Comp. § 1269, providing that no challenge shall be made or allowed to the panel from which a grand jury is drawn, nor to an individual juror, except when made by the court for want of qualification as prescribed in section 1268, an objection that a grand juror was disqualified by reason of alienage, as provided by section 965, cannot be raised on objection to an indictment.</p>

<p>Bankruptcy — Receivers—Appointment without Notice.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2, subd. 3, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3421], authorizing the appointment of receivers in bankruptcy when absolutely necessary to preserve tbe estates, to take charge of the property of the bankrupts after the filing of the petition and until it is dismissed or trustees qualified, where it was alleged that the indebtedness for which the alleged bankrupts were liable was created through fraud, that two of them had absconded, and that the other was incarcerated, the appointment of a receiver before adjudication without notice to such incarcerated defendant was not void as a taking of his property without due process of law.</p>

<p>In Equity. On demurrer to a bill of complaint against the executors of Leonard Lewisohn, deceased.</p>

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

<p>1. Bankruptcy — Property Passing to Trustee — Property Transferred in Fraud oe Creditors.</p> <p>The title, 'which passes to the trustee of a bankrupt under Bankr. Act July 1, 1898, c. 541, § 70a (4), 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], to “property transferred by him in fraud of his creditors,” is limited to such property as might have been recovered by creditors, in whose right the trustee takes, under the laws of the state, and as may be recovered by him under section 70e (30 Stat. 566 [U. S. Comp. St. 1901, p. 3452]), which expressly excludes property which passed into the hands of a bona fide holder for value prior to the date of the adjudication.</p> <p>2. Pledge — Constructive Delivery — Warehouse Receipts.</p> <p>It is the settled law, by modern decisions, that, with respect to bulky articles or commodities, the delivery to a pledgee of a warehouse receipt or bill of lading operates as a constructive delivery of the property, good against the world, and which will entitle the pledgee to recover actual possession.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Warehousemen, §§ 34, 37.]</p> <p>3. Same.</p> <p>A corporation engaged in manufacturing railroad cars and equipment, and having an extensive plant, and premises adjacent for the storage of material, executed leases thereon to warehouse companies, by which it undertook to convey to them the right to use for warehouse purposes such part of the premises as was not used by the lessor. The part used for warehousing was in charge of a custodian selected by agreement, and acting on behalf of the warehouse companies, and was used for the storage of material purchased by the manufacturing company, for which the warehouse companies issued receipts used by the manufacturing company as collateral security for loans. It was contemplated by the arrangement that the warehouse companies would sufficiently mark off the premises used by them for storage by placarding or putting up signboards, and by suitably marking, by stakes, cards, and tags, the piles of material for which it had issued receipts. From time to time the manufacturing company used up such material as required in its business, but, until a very short time before its bankruptcy, such material was replaced by new purchases, so that at nearly all times the amount called for by outstanding receipts was on hand. Held, that the pledging of such warehouse receipts to banks, who took the same for value and in good faith, carried a valid title to the property covered thereby, or that had been substituted therefor, in the hands of the warehouse companies, as against the trustee in bankruptcy of the manufacturing company, and that the validity of the pledge was not affected by the fact that the warehouse premises were owned by the pledgor, and used by it, jointly with the warehouse companies, for different purposes.</p> <p>4. Same — Rights or Pledgee as Bona Fide Puechaseb.</p> <p>While good faith does not make good a pledge unless there has been a delivery of possession, either actual or constructive, it is equally true that where a constructive delivery has been made by the delivery of warehouse receipts representing the property, which was then in possession of the warehouseman, and accepted for value and in good faith, the pledgee is a bona fide purchaser, whose rights cannot be affected by the methods of dealing between the pledgor and the warehouseman, by which a withdrawal of the pledged property, and the substitution of other property of the same kind, are permitted, without the pledgee’s knowledge or consent.</p> <p>■ [Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Warehousemen, § 36.]</p> <p>5. Same — Title op Pledgoe— Sale oe Bailment.</p> <p>By a contract for the building' of railroad cars, the purchaser was given the option to furnish certain parts and equipment for the same, which the builder agreed to accept and pay for at the prices therein named. Such parts were shipped to the builder, and bills therefor were sent, charging it with the same at the contract prices; but, in practice, the price of the parts furnished was deducted from the price of each car when the same was delivered. On receipt of such parts by the builder, it delivered the same to a warehouse company, taking receipts therefor, which it pledged as collateral security for loans, and some of such receipts were outstanding in the hands of the pledgees at the time of its bankruptcy. Held, that the contract was plain and unambiguous, and could not be affected by previous negotiations or subsequent dealings between the parties, and shipments thereunder constituted sales, and not bailments of the parts shipped, and that the title to such property as remained in the hands of the warehouseman at the time of bankruptcy was in the pledgees.</p>

<p>At Law. On demurrer to complaint and motion to strike the same from the files.</p>

<p>1. Bankruptcy — Review of Referee’s Decision — Construction of Order.</p> <p>Where a court of bankruptcy, pn a petition for review of an order of a referee requiring a bankrupt to turn over certain property to his trustee, or to pay its value, made an order giving the bankrupt a stated time within which to comply with the order of the referee, it was impliedly an affirmance of such order, and it is not again subject to review in subsequent proceedings.</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 — Contempt—Failure to Obey Order to Surrender Property.</p> <p>The fact that a court of bankruptcy in affirming an order of a referee, requiring a bankrupt to turn over property to his trustee struck there-' from a provision for the commitment of the bankrupt in case of his default, and gave him additional time, is not an adjudication that he should not be so punished, but leaves that matter to be brought up anew by motion in case the bankrupt fails to obey the order within the time allowed.</p>

<p>1. Witnesses — Constitutional Privilege — Objection to Interrogatory by Counsel.</p> <p>Tlie constitutional privilege of a witness not to be compelled to give evidence which may incriminate him is personal, and cannot be invoked by counsel as a ground of exception to interrogatories propounded in a pleading.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1058-1060.]</p> <p>‘ 2,. Admiralty — Interrogatories in Pleading.</p> <p>Interrogatories annexed to an answer in a proceeding for limitation of liability, which are directed solely to the discovery of assets of the petitioner, are immaterial to the issues, and subject to exception.</p>

<p>Salvage — Saving Burning Oil Steamer — Compensation.</p> <p>A fire broke out in combustible material in the storeroom of a tank steamer lying at Port Arthur, Tex., and laden with crude petroleum, at about 9:30 p. m. Libelants’ tug went to her assistance, and, breaking a port into the storeroom, with a hose extinguished the fire, the service requiring an hour or more. Both vessels and those on .board were in some danger from a possible explosion of gas and oil. The tug was worth $20,000, and the saved value of steamer and cargo $221,000. Held, that the salvors were entitled to an award of $9,000, one-third to go to the officers and crew.</p> <p>[Ed. Note. — Salvage awards in federal courts, see note to The Laming-ton, 30 C. C. A. 280.]</p>

<p>1. Appeal — Decision—Retrial—Additional Evidence — Effect.</p> <p>Plaintiff, a passenger on a -steamer lying in a river, was injured by a-, rock thrown out by a blast on shore. In an action for such injuries, the-Circuit Court of Appeals held that evidence showing that defendants gave no notice to the boat passengers that a blast was about to be fired was-sufficient evidence of negligence to justify submitting the case to the jury_ EeM, that additional evidence introduced on a subsequent trial after reversal that the blasts fired were not in a series, bnt were continuous, with short intervals of time between them, so that it was practically impossible that there should be separate notices of the firing of each blast, did not so change the rights of the parties as to deprive the former decision on appeal of its effect as the law of the case.</p> <p>2. Same — Instructions.</p> <p>Where, in an action for injuries to a passenger on a boat by being struck by a rock thrown from a blast on shore, there was evidence that plaintiff had knowledge of the blasting operations before his injury, but the court, on a prior appeal, held that it was a question for the jury whether defendants engaged in such operations were guilty of negligence in failing to give notice to plaintiff of the blasting, an instruction, on a retrial of the case, that it was defendants’ duty to exercise reasonable care to avoid injuring persons situated as plaintiff was, and to exercise reasonable care in giving notice to plaintiff that blasts were about to be fired, was not erroneous because it implied that defendants were required to send some one on board the boat to give notice to plaintiff in person, and for that purpose to wake him if he was asleep.</p> <p>3. Same — Damages—Excessiveness.</p> <p>Plaintiff was somewhat injured, through defendants’ negligence, by being struck by rock thrown from a blast. He claimed injury to his right ear, but on the trial had little difficulty in hearing questions put to him as a witness; and, though he was made cross-eyed from the effects of the accident, his vision, for practical purposes, was unimpaired. It appeared that plaintiff’s ability to follow his occupation and his earning capacity were not materially diminished. Held, that a verdict for $10,000 was excessive, and should be reduced to $3,000.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below (G. A. 5,482, T. D. 24,796) affirmed the assessment of duty by the collector of customs at the port'of Philadelphia on merchandise imported by John B. Ellison & Sons.

<p>Action by Trustee in Bankruptcy to Recover Alleged Unlawful. Preference.</p>

<p>In Bankruptcy.</p>

<p>1. Corporations — Bankruptcy — Stockholders — Pledges — Individual Liability.</p> <p>Rev. St. Me. e. 47, § 85, declares that a pledgee for value, holding a certificate of corporate stock as security merely, shall not be subject to any of the liabilities of the stockholder unless he appears on the books of the corporation as the absolute owner of the stock. Held, that where the books of a bankrupt corporation were not in accord with reference to stock held by a claimant as security for a loan to the corporation, but the stock ledger, after the entry of claimant’s ownership, contained the notation, “Note 5 years given. Stock as collateral due 1907” — it sufficiently appeared that the claimant was not the absolute owner of the stock, and was therefore not individually liable as a stockholder for corporate debts.</p> <p>2. Same — Entries.</p> <p>Recitals attached to similar entries of stock held by pledgees, “Jan. 23, 1902, 3 years note — Due Jan. 23, 1905,” and, “For 3 years — collateral note given,” were also sufficient to show that the holders of the stock were pledgees only, and not stockholders.</p>

<p>Injuries — Damages—Evidence.</p> <p>Plaintiff was injured in a railroad accident, and claimed a severe injury to the spinal cord. The evidence as to the nature and extent of the injury,, both by experts testifying as witnesses for the parties and by experts appointed by the court, was conflicting, some of them testifying that plaintiff’s tendency would be toward recovery, but none of them testified that he was simulating injury. Plaintiff had been obliged to have medical attention for some months. He seemed in a dazed condition, expectorating blood after the accident; had been incapable of work since the accident in 1903, and appeared in a condition of marked debility. Reid, that plaintiff was entitled, on an inquiry after default, to a judgment for $10,000.</p>

<p>In Bankruptcy.</p>

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

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

<p>In Bankruptcy.</p>

<p>Shipping — Injury of Schooner in Slip — Insufficient Fastening of Scow.</p> <p>The injury to a schooner’s bowsprit as she lay in a slip held, under the evidence, to have been due to chafing by the bows of a scow tied a few feet away, and which, through the fault of those in charge, was insufficiently fastened, so that it drifted close to the schooner during a high wind.</p>

<p>Bankruptcy — Proof of Claims — Usurious Notes — Disallowance—Amendment — Money Fraudulently Obtained.</p> <p>Where a creditor of a bankrupt sought to prove a note made in New York drawing usurious interest, and the claim was disallowed under the New York law on account of the usury, the creditor was entitled to amend his original proof by substituting therefor a claim for money fraudulently obtained by the bankrupt and received to the claimant’s use.</p>

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

<p>Collision — Steam Vessels Meeting — Violation of Rules.</p> <p>Two steam vessels meeting in the Delaware river at night, where the-channel was 2,000 feet wide, showing “each other their green lights, both signaled their intention to pass starboard and starboard, but neither heard the signal of the other. They continued their course and speed, however, without further signals, until close together, when one, in tbemistaken belief that the other gave a signal of one whistle, ported her helm, the result being a collision. Held, that both were in fault for violation of rule 3 of the supervising inspectors, which required them, when failing to understand the course or intention of the other, to so-signify by signal, and to slow down until an agreement was reached and understood, or until they had passed each other.</p> <p>[Ed. Note. — Collision rules as to signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p>

In Bankruptcy. Petition for a writ in the nature of a writ of ne exeat.

<p>1. Postal Service — Fraud Orders — Postmaster General — Jurisdiction.</p> <p>Under Rev. St. U. S. § 3929, as amended by Act Cong. Sept. 19, 1890, c. 008, 26 Stat. 466 [U. S. Comp. St. 1901, p. 2686], authorizing the Postmaster General to issue fraud orders against any person conducting a scheme to defraud through the post-office establishment, the Postmaster General, though entitled to pass finally on questions of fact raised in such proceedings, has not exclusive jurisdiction to pass on questions of law.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Post Office, § 21.]</p> <p>2. Same — Statutes—Instruction.</p> <p>Rev. St. § 3929, as amended by Act Cong. Sept. 19, 1890, c. 908, 26 Stat. 466 [U. S. Comp. St. 1901, p. 2686], authorizes the Postmaster General, on evidence satisfactory to him that any person is engaged in conducting a lottery, gift enterprise, or scheme for distribution of money or any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any other scheme or device for obtaining money or property through the mails by means of false or fraudulent pretenses, etc., to issue a fraud order against him. Reid, that such section contemplates three classes of transactions, namely, lotteries and other like games of chance, “confidence games,” and schemes which from their very nature, in the light of business experience, are sure to end in financial disaster to their contributors; and does not include an ordinary mail-order liquor business, in which the customers are given a fair commercial equivalent for the price paid, though the seller is guilty of trade puffing and of a false statement in his advertising as to the age of his liquors.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Post Office, § 55.]</p>

<p>In Equity. On petition of the United States Fidelity & Guaranty Company for leave to present proof of claim to receiver.</p>

<p>In Admiralty. Suit for collision. On final hearing.</p>

<p>1. Salvage — Person Entitled to Award — Owner and Charterer.</p> <p>The owner of a tug contracted to furnish to a charterer the “services of the tugboat * * * fully manned and equipped” at a stipulated hire per day. While towing for the charterer under such charter party the master of the tug moored his tow, and went to the assistance of a burning steamship, to which the tug rendered salvage services, remaining with her until the next day; the charterer in the meantime completing the towage with another vessel. Held, that since the charter was not a demise under which the charterer became responsible for the risks taken by the master in engaging in the salvage service, or for any negligent or wrongful act committed by him, it was not entitled to an award made for the salvage, which belonged to the owner and crew.</p> <p>2. Same.</p> <p>The legal status of the parties was not changed by the fact that the master of the tug at the time was by agreement taken from regular employés of the charterer, since he was for the time the servant and agent of the owner who paid him.</p> <p>3. Same — Estoppel.</p> <p>The fact that the owner accepted the per diem hire for the full time the tug was employed by the charterer, including that while she was engaged in the salvage service, did not estop him from claiming the salvage award; it not appearing that such matter was taken into consideration.</p>

<p>1. Trade-Makes — Unlawful Competition — Trade-Names.</p> <p>Complainant’s predecessors having created a large business in the manufacture and sale of tableware under the trade-names “Rogers Bros.,” “Rogers Cutlery Co.,” and other names in which the word “Rogers” or “Rogers Bros.” appeared, defendants organized a corporation for “buying, selling and dealing in cutlery and tableware at wholesale and retail,” in which two of the original incorporators were named “Rodgers,” and immediately placed on the market knives manufactured by an independent corporation, stamped, “RoDgers Bros. Cutlery Co.” At this time neither the corporation nor the individuals composing it had any skill in manufacturing tableware, and no established business therein, and, had they eliminated the word “RoDgers” from their trade-mark, there would have been nothing to recommend their goods, other than the excellence of the product. Held, that defendants’ use of such name was prima facie fraudulent, entitling complainant to a preliminary injunction.</p> <p>[Ed. Note. — Unfair competition, see notes to Scheuer v. Miller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Same.</p> <p>The names “Rogers” and “RoDgers” being idem sonans, the mere capitalization of the “d” for the purpose of calling attention to the distinction between the names was insufficient to prevent confusion and deception of the public as to the manufacture of the goods.</p>

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

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

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

<p>On Motion for Preliminary Injunction.</p>

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

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