Volume 137 — Federal Reporter

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

<p>1. Bankruptcy—Involuntary Petition—Petitioning Creditors—Splitting Claims.</p> <p>Where a landlord—one of the petitioning creditors in an involuntary bankrupt petition—assigned his claim, or a part thereof, to the attorney for the petitioning creditors after the petition was filed, the attorney was not entitled to join in the petition, to make up the number of creditors prescribed by Bankr. Act July 1, 1898, e. 541, § 59d, 30 Stat. 561 [Ü. S. Comp. St 1901, p. 3445],</p> <p>2. Same—Intervention—Time.</p> <p>Where an involuntary bankruptcy petition had been dismissed for insufficiency of petitioning creditors, it was then too late for a nonparticipating creditor to intervene as a matter of right, and the denial of such application was a proper exercise of discretion.</p> <p>3. Same.</p> <p>Where creditors of an involuntary bankrupt, alleged to have been withheld from the bankrupt’s answer, had all been informed of the pendency of the proceedings, but had not appeared or asked to intervene, and there was nothing to indicate that they could be induced to join in the proceedings, it is not error for the court to refuse to withhold an order dismissing the proceedings for want of sufficient petitioners until the clerk could notify such creditors.</p> <p>4. Same—Service—Mode.</p> <p>Under Bankr. Act 1898, requiring an alleged involuntary bankrupt to file with his answer, when it alleges a larger number than 12 creditors, a list, under oath, of all his creditors, with their addresses, and providing that the court shall cause such creditors to be notified of the pendency of the petition, and shall delay the proceedings to enable them to be heard, the mode of service of notice on such creditors is immaterial; the creditors named being actually served in time to intervene if they desired so to do.</p>

<p>T. Bankruptcy—Construction ok Section 29b.</p> <p>The officer of a bankrupt corporation, who is not and has not been a bankrupt,' is not liable to punishment under section 29b of the bankruptcy law of July 1, 1898, c. 541, 30 Stat. 554 (ü. S. Comp. St. 1901, p. 3433), for having fraudulently and knowingly concealed the property of the estate- of the corporation in bankruptcy from its trustee.</p> <p>The present or past bankruptcy of the person accused is an indispensable . element- of the offense denounced by the statute.</p> <p>2. Construction of Penal Statutes Strict—May not Extend Them to ■Classes not Included. -</p> <p>A penal statute which creates and denounces a new offense must be strictly construed. Where it is plain and unambiguous, the courts may not lawfully extend it by interpretation to a class of persons who are .excluded from its effect by its terms for the reason that their acts may be as. mischievous as those of the class whose deeds it denounces.</p> <p>[Fd. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 322, 323!]-</p> <p>(Syllabus by the Court.)</p>

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

• While the plaintiff, James E. Field, was riding in a caboose attached to a freight train of the Union Pacific Eailroad Company at about 3 o’clock in the morning on the 7th day of May, 1902, another train of that company ran into the caboose and injured him. He brought an action against the company for alleged negligence, which he averred resulted in his injury. One of the witnesses for the company was a man named Morgan.

<p>1. Master and Servant—Injuries to Servant—Railroads—Actions—Evidence.</p> <p>In an action for injuries to a brakeman by striking a low trestle, with which he was not familiar, as his train was passing under it, an expert in railroad management was entitled to testify what, in his opinion, good railroading required with respect to the erection of telltales on each side of overhead bridges.</p> <p>8. Same—Instructions.</p> <p>Where, in an action for injuries to a brakeman by striking a low overhead trestle, the issue was whether defendant had been guilty of negligence in not providing a reasonably safe place and safe appliances for plaintiff’s use, instructions that it was the duty of the railroad to use due care to provide a reasonably safe place and safe appliances for the use of the workmen, and if it failed so to do, and injury directly resulted therefrom, the railroad company was guilty of negligence; that the servant was entitled to assume that the master had used due diligence in providing suitable appliances, except that where the defect was known to the servant, or so patent as to be readily observed by him, he thereby assumed the hazard; and that, if the servant was not informed by the master of dangers not incident to a careful performance of the work, and which are known to the master, and such servant remains in ignorance and suffers in consequence, the employer is guilty of negligence—were not objectionable as abstract propositions not applicable to the facts.</p> <p>3. Same—Knowledge oe Danger—Assumed Risk.</p> <p>In an action for injuries to a brakeman by striking a low trestle, evidence as to plaintiff’s knowledge or means of knowledge thereof held not such as to require a finding that he assumed the risk as a matter of law.</p> <p>[Ed. Note.—Assumption of risk incident to employment, see note to .38 0. Q. A. 314.1 -</p>

This is one of the remnants of the foreclosure of the mortgage of the Kansas City, Pittsburgh & Gulf Railroad Company. It is an appeal from a decree which dismissed the intervening petition of the Westinghouse Air Brake Company. On April 1, 1893, the Gulf Company mortgaged its property to the State Trust Company and another, as trustees, to secure the payment of its bonds to the amount of 823,000,000.

This writ of error challenges a judgment of $7,922.45 against the defendants below as executors of the will of John H. Schurmeier upon a demurrer to their answer. These are the material facts which the pleadings disclose: John H. Schurmeier was a citizen and resident of the state of Minnesota when he died on July 16, 1900.

<p>1. Jurisdiction op Federal Court—Diversity op Citizenship—Minor Suing bt Guardian.</p> <p>Where the plaintiff is a minor suing, by his guardian, the question of the jurisdiction of a federal court is determined by his own citizenship, and net that of his guardian, which is immaterial.</p> <p>[Ed. Note.—For cases in point, see vol. 13,' Cent. Dig. Courts, § 858.</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—Allegation op Citizenship.</p> <p>An allegation in a petition that plaintiff is a citizen “of said county of Monroe, in the said state of Michigan,” while inexact as an averment of citizenship of the state of Michigan for the purpose of showing jurisdiction in a federal court, will be treated as sufficient, especially in an appellate court, when it has been so construed and treated by both court and counsel in the trial court, which made a finding of the fact in accordance therewith.</p> <p>3. Same—Eppect op Insupficient Averment in Amended Petition.</p> <p>Where the original petition in an action contains the requisite averments to give a federal court jurisdiction, such jurisdiction is not lost because an amended petition alleges plaintiff’s citizenship in the present tense only.</p> <p>4. Same—Issue as to Citizenship—Conclusiveness op Verdict.</p> <p>An averment of plaintiff’s citizenship in an action in a federal court, in which jurisdiction depends on diversity of citizenship, is a_ material allegation, within the meaning of the Ohio Code, and is put in issue, under such Code, by a general denial in the answer; and a general verdict finding the issues in favor of plaintiff, followed by judgment thereon, is conclusive on such issue as against a defendant who has participated in the trial without objecting to the jurisdiction, or asking any ruling or instruction on the ground of the insufficiency of the evidence on the issue.</p> <p>6. Same—Inquiry into Jurisdiction—Procedure.</p> <p>Under Judiciary Act 1875, § 5, 18 Stat. 472 [U. S. Comp. St. 1901, p. 511], where a defendant after verdict and judgment for the first time raises the question of jurisdiction, on the ground that there was no evidence to support the jurisdictional allegations of plaintiff’s pleading, which were put in issue by a general denial, it is competent for the court to set aside the judgment for the purpose,of inquiring into the question, either with or without a jury, as it may see fit; and, unless it shall appear from the evidence adduced or from the record that it is without jurisdiction, it may re-enter the judgment on the verdict.</p> <p>6. Same—Citizenship op Infant—Effect op Divorce op Parents.</p> <p>Where the father and mother of. an infant plaintiff had been divorced, and he had been awarded to the custody of his mother, his domicile and place of citizenship, for the purposes of the jurisdiction of a federal court, are determined by hers, so long as he remains with her and in' her care; and the fact of the divorce decree does not prevent her from acquiring citizenship in another state for herself and him.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Domicile, § 26.]</p> <p>7. Pleading—Issues Raised by General Denial—Ohio Code.</p> <p>An allegation in the petition of an infant, suing in a federal court by his guardian, that such guardian was duly appointed by a probate court, etc., is not of a jurisdictional fact, nor is it a material averment, within the meaning of the provision of the Ohio Code prescribing what issues may be raised by • a general denial in the answer; and, where not specifically denied, an objection to the sufficiency of the proof of such allegation cannot be raised aftér verdict and judgment.</p> <p>8. Federal Courts—Evidence in Actions at Daw—Statutory Limitations.</p> <p>Federal courts are not required by Rev. St. § 861 [U. S. Comp. St. 1901, p. 661], providing that “the mode of proof in the trial of actions at common law shall be by oral testimony and examining of witnesses in open court, except as hereinafter provided,” to exclude evidence which, although not within the terms of such section or of the following provisions relating to depositions, is still admissible under the principles of evidence recognized by the common law before, and at the time of, that enactment.</p> <p>9. Same—Testimony Given on Former Trial—Grounds op Admissibility.</p> <p>Rev. St. Ohio, § 5242a, which authorizes the admission in evidence of the testimony given by a witness on a former trial of the same case when the witness is dead or beyond the jurisdiction of the court, is in conformity with the rule recognized at common law, which permits the use of such evidence generally where it is impossible to obtain a viva voce examination of the witness, and is not in conflict with Rev. St. § 861 [U. S. Comp. St. 1901, p. 661], and may properly be applied in an action at law in a federal court sitting within the state, where the witness is without the district, and more than 100 miles distant from the place of trial.</p> <p>JO. Error—Admission op Secondary Evidence—Harmless Error.</p> <p>In an action for personal injury, where plaintiff’s injured leg was exhibited to the jury, the subsequent admission in evidence of a photograph showing the injury, even if it was incompetent as secondary evidence, was harmless error.,</p> <p>.11. Same—Articles Taken to Jury Room—Photograph.</p> <p>Permitting the jury in a personal injury case to take with them to the jury room a photograph of plaintiff after the injury was not reversible error, where the accuracy of the picture was not disputed.</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §'735.]</p> <p>32. Street Railroads—Action for Injury of Guild—Instructions.</p> <p>In' an action to recover for the injury of a child two years old by a street car in the daytime, requests for instructions that neither the failure of the motorman to sound the gong on approaching the plaintiff, nor the speed of the car, contributed to or had any effect in causing the injury, were properly refused, where there was testimony tending to show that plaintiff was or should have been seen by the motorman for a long • distance before he was reached, and that-the speed of the car was 15 or 20 miles an hour until plaintiff was struck.</p>

This is a suit for the infringement of letters patent No. 583,408, issued May 25, 1S97, to the complainant, James Mallon, assignor of one-half to James W. Bodley, upon an application filed February 20, 1897. The machine of the defendants which is alleged to infringe is described in letters patent No. 670,176, issued to William C. Gregg on March 19, 1901, upon an application filed December 18, 1900.

The Hayes-Young Tie Plate Company, a corporation, exhibited its bill in the Circuit Court for the Eastern District of Missouri for relief from the infringement of letters patent No. 688,852, issued on December 17, 1901, to James N. Hayes and his assignees. A demurrer to this bill was sustained, and it was dismissed on the ground that it did not state facts sufficient to constitute a cause of action.

<p>•1. Patents—Infringement—Combination Claims.</p> <p>In a combination claim of a patent, every element specified by the patentee, either directly or by a reference to the specification, which carries. such element into the claim, must be deemed material; and to constitute an infringement of such claim the infringing device must contain every one of its elements, or its equivalent.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, §§ 376, 387.)</p> <p>2. Same—Equivalents.</p> <p>A device in one mechanism, to be the equivalent of the device in another, must perform the same function and perform it in substantially the same manner.</p> <p>[Ed. Note.—For eases in point, see vol. 38, Cent. Dig. Patents, § 24.)</p> <p>8. Same—Pioneer Inventions—Identity op Means.</p> <p>To sustain a claim of infringement of a patented machine, three things must be found: First, identity of result; second, identity of means; third, identity of operation. The fact that an invention is of a primary character does not entitle the patentee to all means for accomplishing the same result.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, §§ 370-381.)</p> <p>4. Same—Can Making and Soldering Machines.</p> <p>Neither the Jordan patent, No. 436,792, for a can body malting machine, the Norton patent, No. 365,316, for a can cap soldering machine, nor the Holden and Brown patent, No. 598,567, for a can- body machine, is infringed by the machine of the Eldridge patent, No. 712,998, for a can body forming machine.</p>

In Equity. Suit for infringement of letters patent No. 491,113 for a bottle stopper, granted to Karl Hutter February 7, 1893. On motion for preliminary injunction renewed.

<p>Patents—Infringement—Steam Boilers.</p> <p>The Stirling patent, No. 407,260, for a steam boiler of the vertical water tube type, is valid, and entitled to a liberal construction covering equivalents. As so construed, held infringed by the boiler of the Turner patent, No. 594,163, which differs from that of the Stirling patent chiefly in having two mud drums instead of one.</p>

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

<p>Patents—Suit fob infringement—Supplemental Bill Covering New Infringements.</p> <p>Where the defendant, pending a suit for infringement of a patent, begins the use of another alleged infringing device, separate and distinct from that complained of in the bill, although such fact does not render the suit defective, within the meaning of equity rule 57, but constitutes ground for an independent suit, the court may nevertheless, in the interest of saving delay and expense by the needless duplication of proofs, permit the question of the second infringement to be brought into the case by á supplemental bill.</p>

<p>In Admiralty. Suit against vessel owners to recover for supplies.</p>

<p>In Admiralty. On motion for distribution of fund.</p>

In Equity. The complainant files its bill against the city of Cleveland and the Forest City Railway Company, alleging that the enforcement of a certain ordinance of the city of Cleveland will violate the complainant’s rights under the Constitution of the United States, especially by impairing the obligation of its contracts with the city; asking that the ordinance be decreed to be null and void; and, alleging that irreparable injury will be done to it by enforcing the…

<p>1. Judicial .Sale—Grounds fob Setting Aside—Offer of Increased Bid.</p> <p>A sale of a libeled vessel in admiralty, made by consent, but which has not been finally confirmed, will be set aside, and a new sale ordered, on an offer of a materially increased bid; and it is no ground of objection to such action that the first bidder has deposited the amount of his bid, or incurred expense on account of his supposed purchase, since he could acquire no rights or standing in the ease until confirmation.</p> <p>2. Maritime Liens—Repairs and Supplies Furnished in Home Port.</p> <p>There is no lien for repairs or supplies furnished to a vessel in her home port on the order of the owners, unless given by the local law; and in such ease the provisions of such law must be followed, or no lien is acquired.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Maritime Liens, §§ 7-9.]</p> <p>Maritime liens for supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. 679.]</p>

<p>1. Garnishment—Bights of Plaintiff.</p> <p>Where a judgment creditor of the holder of an employer’s liability policy garnished the insurer, such creditor was only entitled to enforce the rights of his debtor, if any, against the garnishee.</p> <p>2. Same—Employer’s Liability Policy—Construction.</p> <p>An employer’s liability policy provided that if a suit was brought against insured he should immediately forward process to the insurer, which would defend against or settle the claim; that the purpose of the policy was to indemnify the insured “against loss from liability for damages ;” and that no action should lie against the insurer to recover any loss under the policy unless brought by the insured .himself to reimburse him for payment by him In satisfaction of a judgment. Sold, that the policy was an agreement to indemnify insured “against loss,” and not against “liability,” so that no recovery could be had against the insurer by insured’s attaching creditor until after complete payment by insured of the claim for which the insurer was liable under the policy.</p> <p>[Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Garnishment, § 59; vol. 2S, Cent. Dig. Insurance, § 129S.]</p>

<p>1. Statute of Frauds—Memorandum of Contract—Written Offer Accepted OrallA.</p> <p>A written and signed offer, which is accepted, either in writing or orally, constitutes a sufficient memorandum of contract under the statute of frauds.</p> <p>[Ed. Note.—For eases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 195, 244.)</p> <p>Sufficiency of expression of consideration in memorandum within statute of frauds, see note to Schoate v. Hoogstraat, 46 C. C. A. 183.]</p> <p>2. Bankruptcy—Provable Debts.</p> <p>Under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], the provability of a claim depends upon its status at the time of the' filing of the petition in bankruptcy. If not then a provable debt, as defined in the act, it cannot be proved, although it may thereafter come within such definition.</p> <p>3. Same—Test of Provability—Anticipatory Breach of Contract.</p> <p>If a bankrupt, at the time of bankruptcy, by disenabling himself from performing a particular contract, and by repudiating its obligation, could give the other party the right to maintain at once a suit in which damages could be assessed at law or jn equity, then such party may prove as a creditor in bankruptcy, on the ground that -bankruptcy is the equivalent of disenablement and repudiation.</p> <p>4. Same—Contingent Liability.</p> <p>The liability of a bankrupt on a guaranty executed by him of the payment by a corporation of dividends at a certain rate on its stock, owned by another, with respect to dividends not due or payable at the time of the filing of the petition in bankruptcy, is so far contingent that a claim based thereon is not a provable debt, within the provisions of Bankr. Act July 1, 1898, c. 541, § 63a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447] at least where, at the time of the bankruptcy, the corporation was a going concern.</p> <p>5. Same—Contract for Future Purchase of Property.</p> <p>Bankruptcy is such a breach of a contract to purchase stock at a stated price and time, which time was subsequent to bankruptcy, that a claim for damages for the breach is a provable debt.</p>

<p>In Equity. On motion to vacate order appointing a receiver.</p>

<p>1. Equity—Damages fob Tortious Acts—Benefits Derived by Wrongdoer.</p> <p>A court of equity has no inherent power to ascertain the damages sustained by reason of tortious acts, unattended with profits to the wrongdoer. It required an act of Parliament (Acts 22 & 23 Yict. c. 27) to change this in England; and the only modification to be found in the federal law is with respect to the infringement of patents, which has been effected by direct act of Congress. Rev. St. § 4921 [U. S. Comp. St. 1901, p. 3395].</p> <p>2. Exclusive Agency—Sale of Manufactured Articles—Relief in Equity —Benefits Derived—Damages.</p> <p>Where, therefore, a party has the exclusive agency for the sale of articles manufactured by another, within certain territory, while a third party who invades such territory may be made by injunction to respect the contract, and at law might be subjected to an action for damages, to be measured by the profits derived from sales made in such exclusive territory in disregard of the agent’s rights, yet a recovery in equity is limited to the damages or benefits derived by the offending party from sales so made.</p> <p>3. Same—Expenses of Making Sales—Apportionment of, in Mixed Business.</p> <p>In such a case, in order to determine the profits derived from sales made, the offending party is entitled to offset the legitimate expenses incurred in making them; and, the articles sold having formed a part of the general business- in which he is engaged and no separate account having been kept by which to determine just what is chargeable thereto, the only thing, left to do is to apportion the expenses among the different commodities dealt in, according to the gross sales of each. If this does not produce a just result, it is incumbent upon the party complaining to show it.</p> <p>4. Contract—Construction—Exclusive Agency for Disinfecting Appliances—What Governed by.</p> <p>Semble, where an agency was created for the sale of so-called disinfectors and a Gertain named disinfecting fluid, of which the other contracting party was the patentee and manufacturer, and the plaintiff was not only to have the exclusive right to make sales thereof, but of all appliances connected with the same, patented and manufactured by such patentee, this was broad enough to include a disinfectant, substituted for the first one, which did not work, coming from the same source and designed to accomplish the same end, although given a different name aud not of the same composition, nor altogether the same in effect or manner of use, particularly where the parties, in their transactions with each other, had treated the one as taking the place of the other.</p>

<p>Habeas Corpus. On motion to dismiss petition.</p>

<p>1. Assignment of Contract—Assumption by Assignee—Construction of Agreement.</p> <p>A bond executed by one corporation to another, whose entire property and assets it had purchased, by which it covenanted to pay and discharge all debts, liabilities, and obligations of the obligee, and to adopt, perform, and fulfill all of its contracts and engagements, creates a direct and primary liability of the purchaser in equity on a contract assigned as a part of the assets, which is not affected by a further covenant therein to indemnify and hold harmless the obligee and its directors and stockholders.</p> <p>2. Same—Suit to Enforce—Parties.</p> <p>In such case, where the selling company, after transferring to the purchaser all of its property, good will, books, and papers, and surrendering its capital stock, transacted no further business and held no. more meetings of its directors or stockholders, whether legally dissolved thereby or not, it is not an indispensable party to a suit in equity against the purchasing company to enforce its liability on such contract.</p> <p>3. Evidence—Records of Corporation—Authentication.</p> <p>Where a corporation, on a sale of its property and assets to another corporation, also caused to be transferred to the latter all of its stock and its books and records, which thereafter remained in the possession and under the control of the purchasing company, entries in such books relating to the transaction are admissible against' such company in a suit, without further authentication.</p> <p>4. Equity—Decree—Provision for Future Installments to Become Due on Contract.</p> <p>A decree in equity, giving judgment on a contract by which the defendant is obligated to pay monthly installments, not all of which are due, may provide, also, for future installments, and that judgment may be entered for the same as they fall due, on application to' the court and notice to defendant’s solicitor.</p>

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

<p>1. Towage—Suit Against Tug—Evidence op Condition op Sea.</p> <p>In determining the condition of the sea during a towage service in controversy, the allegations of tlio pleadings and the observations of tbe witnesses taken on tho water are to be regarded, rather than a record condition of the wind noted at a weather station several miles distant and at a considerable altitude above tbe water.</p> <p>2. Same—Injury op Tow by Pounding in Rough Water-HLiability of Tug.</p> <p>It is tbe duty of a tug to exercise care to provide against the injury of a tow alongside by pounding against her side when the water is rough, and she is liable for an injury so received because of the improper arrangement of tbe tow.</p>

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

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

<p>1. Insurance—Contract Limitations — Validity — Question or General Law—Federal Courts—State Decisions.</p> <p>Whether a provision in an insurance policy that no action shall be brought after the lapse of a year from’ the date of insured’s death is valid is one of general public policy, as to which federal courts will follow federal decisions, though in conflict with the decisions of the highest courts of the state.</p> <p>[Ed. Note.—State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 O. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Same.</p> <p>A provision in an insurance policy that no action shall be brought after the lapse of one year from the date of insured’s death is valid.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, $ 1545.]</p> <p>8. Policies—Construction—Forfeiture.</p> <p>An insurance policy expressly provided that a failure to make any payment of dues for expenses or mortuary premiums, as provided, should render the contract null and void, but declared that when the policy had been in force for five years, and insured died before the expiration of ten years, within six months from the date of the maturity of dues unpaid, or within six months from the date of mortuary calls unpaid, the certificate should, nevertheless, be payable as though payment of such dues or mortuary premium had been made when due. Held, that such extension provision gave insured an extension of six months as to both annual dues and mortuary premiums, so that, if either was not paid within such extended period, the policy was forfeited.</p>

<p>In Equity. On motion for order directing the removal of documentary evidence to another district for use in examining witnesses there.</p>

<p>Bankbuetoy—Persons Subject to Involuntary Adjudication—Person Engaged Chiefly in Farming.</p> <p>An alleged bankrupt bad for some years conducted a law and collection office; his principal business in connection therewith being the making of collections, and the renting of property for others, and collecting the rents therefor. During the two years prior to the filing of the petition his total earnings from such business did not exceed $450, and were little, if any, above his expenses. He owned a farm of 470 acres, which was improved and rented until about a year prior to the filing of the petition; he being, however, a partner in the stock thereon and consulted in regard to its management. At this time the lease expired, and he thereafter conducted the farm himself, being at the place a considerable portion of the time and moving his family there some time before the commission of the alleged acts of bankruptcy. The gross income from the farm during that season, which was not a favorable one, was about $1,800. 1-Iis indebtedness arose principally out of his purchase and operation of the farm. Held, that from the time of his assuming the conduct of the farm he was engaged chiefly in farming, and was not subject to be adjudged an involuntary bankrupt.</p> <p>[Ed. Note.—What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 O. C. A. 4.]</p>

<p>1. Bankruptcy—Allowances to Referee—Services as Special Master.</p> <p>Where the statutory fees received by a referee are sufficient to compensate him liberally for all services rendered in a case, he will not be given a further allowance on account of an extra service rendered as special master in connection with a composition.</p> <p>2. Same—Attorney’s Fees.</p> <p>Only reasonable compensation will be allowed attorneys in composition, when the rules of court are complied with.</p> <p>[Ed. Note.—For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 897.]</p>

Demurrer to indictment charging the defendant, a wholesale importer and dealer in butter, with the crime of having removed, at Binghamton, Broome county, N. Y., the words “Renovated Butter,” also the stamps and caution notices, from original packages of that article manufactured, so labeled or marked, and so stamped, etc., and sold to the defendant in the state of Ohio, and by him brought or shipped into the state of New York for sale at wholesale and in improper packages,…

In Bankruptcy. On the 5th day of June, A. D. 1903, the bankrupt contracted to sell to one Eugene G. Bradshaw, of Gardner, in the county of Worcester and commonwealth of Massachusetts, for the sum of $4,000, certain lands, buildings, mills and mill privileges, and standing timber, which said lands, buildings, etc., comprised practically all the realty then owned by the bankrupt; and on said 5th day of June the said Peasley executed a bond in the sum of $5,000 to the said…

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

<p>Negligence—Damages—Pboximate Cause.</p> <p>Defendants contracted to furnish plaintiff a tug to leave V. not later than April 7, 1903, to haul stones to protect an ocean bulkhead, which plaintiff was constructing, from tides and storms. Plaintiff alleged that on April 7th he had completed 500 feet of the bulkhead, which he then desired to have protected by stone ballast, but that defendants willfully delayed the departure of the tug, and then sent it with a scow in tow so that it did not reach plaintiff’s property until April 10th, and was unable to then tow enough stone to protect the bulkhead before April 12th, when a violent storm occurred, and wrecked all that part of the bulkhead constructed, except that which had been protected by stones towed on two days after the tug’s arrival. Held, that defendants’ negligence in failing to promptly and properly transmit the tug as agreed was the proximate cause of plaintiff’s damage.</p>

At Law. The questions now to be decided originated in an action of ejectment, brought in this court at Harrisonburg in 3890 by Henry C. King against the following 37 persons: John Allen, Cyrus Blankenship. Reese Davis, Bazil Dotson, David Dotson, John Dotson, Ransom Dotson, Elijah Estep, H. M. Francis, Montreville Hunt. Robert Hurley, Archibald Justus, S. W. Melnturf, Jane Mounts, Levi Woolford, Mary Woolford, and Wm. R. Woolford.

<p>1. Federal Courts—Judgments—Vacation after Term—Process—Fraudulent Service.</p> <p>A federal law court has no power to vacate its judgment of a former term, founded on a false, but apparently valid, ■ return of service of process. Such judgment may be vacated by suit in-equity if plaintiff at law joined in the fraud of the process server, or. if the latter was not an official. Such judgment not vacated in equity, if plaintiff at law did not join in the fraud, and if process server an official.</p> <p>2. Same—Constructive Service—Defective Return—Amendment.</p> <p>Where, pending a motion to vacate a judgment in ejectment, based on invalid returns of constructive service of process, a motion to amend was made, and the amended return disclosed a valid service, the motion will not be granted if the facts stated in the amended return are true.</p> <p>3. Same—Substituted Service—Amendment—Notice.</p> <p>Where substituted service on a defendant in ejectment, made by leaving a copy with his wife, was invalid, for failure of the return to state that the wife was a member of his family, the subsequent personal service on defendant of a notice of an application by plaintiff for leave to amend the declaration was insufficient to confer jurisdiction of such defendant.</p> <p>4. Same—Amendment of Process—Notice.</p> <p>Where a return of substituted service on a defendant in ejectment was fatally defective, and the court had not otherwise acquired jurisdiction of him, an application to amend such return will not be granted, in the discretion of the court, without notice.</p> <p>5. Same—Entry of Judgment.</p> <p>Where the original declaration and notice and a notice of application to amend were properly served on a defendant in ejectment instituted In 1896, but the action was retired from the docket, without judgment against her, in 1900, she is entitled to notice and an opportunity to be heard before judgment can thereafter be properly entered against her.</p> <p>6. Same—Vacation of Judgment after Term—Power to Control Execution.</p> <p>While a court of law has no power after the term to vacate a judgment, except for errors available on a writ of error coram vobis or on audita querela, or for want of jurisdiction shown on the face of the record, the court has power to so control the execution of its final process issued on such judgment as to prevent injustice.</p> <p>7. Same—Ejectment—Judgment—Execution.</p> <p>Where a petitioner applying to vacate a judgment In ejectment, not a party to the action, is in possession, and would be illegally disturbed by the execution of a writ of possession, she is entitled to an order directing the marshal, in executing the writ, to leave her possession undisturbed.</p> <p>8. Same—Married Women—Separate Property.</p> <p>Under Va. Code 1887, § 2284 et seq. [Va. Code 1904, p. 1139], declaring that all real and personal property to which any woman is entitled at the time of her marriage, or which any married woman may acquire during coverture, and the rents, issues, income, profits, etc., therefrom, shall continue her separate estate, the mere prospective right of curtesy held by the husband of a married woman in land conveyed to her by her father did not entitle the husband to possession, nor give him any right to use the land or enjoy the rents and profits during coverture.</p> <p>9. Same—Rights of Wife.</p> <p>Where a wife owning a separate estate, and living on it with her husband, was not made a party with him to an ejectment suit by a third person, but her deed was not filed for record until long after judgment in favor of plaintiff, she is only entitled to have the judgment opened and be allowed to defend, and is not entitled to an order restraining the execution of the judgment as against her.</p> <p>10. Same—Husband and Wife—Judgments—Estoppel.</p> <p>Where at the time a party was sued in ejectment the property belonged to his wife, who was then living, but was not sued, and after judgment and before execution the wife died, by which the husband acquired a life estate in the land, the judgment recovered against him does not operate as an estoppel with reference to such life estate.</p> <p>11. Same—Vacation of Judgment.</p> <p>Where, at the time a husband was sued in ejectment, he was in possession by the mere sufferance of his wife, who held the title and resided on the premises, but was not sued, and the husband acquired a life estate in the land by the death of the wife after judgment and before execution, he is entitled, by reason of his wife’s death, to have a judgment by default as to him opened and to be allowed to defend.</p> <p>12. Same—Purchasers Pendente Lite—Return of Service—Amendment.</p> <p>Innocent purchasers from defendants in pending ejectment suits j.n the federal courts in Virginia being bound by the record without the filing of a lis pendens, ,a return of service, defective in that it did not show that the wife of the person on whom process was served was- a member of his family, was amendable as against an innocent purchaser from the defendant so served.</p> <p>•13. Same—Lis Pendens—Federal Courts—State Statutes—Application.</p> <p>Va. Code 1887, § 3566 [Va. Code 1904, p. 1903] providing that no lis pendens shall bind or affect a bona fide purchaser of real estate for a valuable consideration, without actual notice of such lis pendens, unless and until a memorandum, etc., is filed in the office of the. clerk of the court in the county where the land lies, has no application to federal courts sitting in Virginia; such courts having no power to enforce the registration of such memoranda.</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>14. Same—Grantee of Landlord—Enforcement of Judgment—'Writ of Possession—Injunction—Petition.</p> <p>Where ejectment was brought by a third person against a tenant, the • landlord not being joined, a petition by a subsequent grantee of the landlord pendente lite, failing to allege that the landlord was ignorant of the institution of the action against the tenant, is insufficient to justify an order directing that the writ of possession on a default judgment in favor of plaintiff in the ejectment suit shall not issue and be executed against such purchaser.</p> <p>lo. Same—Independent Title.</p> <p>Where the holder of an independent title to land sued for in ejectment, not a party to the suit, acquired possession through purchase from defendants in the action pendente lite, although without actual notice, he is subject to the execution of a writ of possession in favor of plaintiff in such action, notwithstanding his independent title has not been adjudicated.</p> <p>16. Same—Vacation of Judgment—Assignment of Right.</p> <p>. Where ejectment was brought against a tenant, and the landlord was not joined, and had no notice of the action until after judgment had been rendered in favor of plaintiff, the landlord was entitled to convey her rights in the land, including the right to have such judgment opened and be permitted to defend, to a purchaser, innocent or otherwise.</p> <p>17. Same—Conveyance of Standing Trees—Possession.</p> <p>Where a landowner conveys standing trees and a right of entry, retaining the remaining interest in the land, neither the grantor nor the grantee has actual or constructive possession of the trees, until the grantee actually engages in the work of felling the trees; the term “constructive possession” necessarily implying a partial actual possession.</p> <p>15. Same—Easements.</p> <p>The fact that ejectment does not lie for a mere easement or other corporeal hereditament does not prevent an officer, in executing a writ of possession under a judgment in ejectment, from ousting from a tract of land persons who are unlawfully using a right of way over the same under purchase from defendants in the ejectment suit pendente lite.</p> <p>19. Same.</p> <p>Mere use of a right of way over land sued for in ejectment under a purchase from defendants in ejectment pendente lite, for the purpose of transporting lumber from other tracts, does not constitute possession of the standing trees on the tract over which the right of way is, also conveyed to petitioner’s remote grantor by persons not parties to the ejectment suit.</p> <p>20. Same.</p> <p>A federal court judgment in favor of plaintiff in ejectment having been rendered in June, 1900, one of the defendants conveyed the surface of a part of the land sued for in October, 1901, after which the grantee conveyed the land to a lumber company which was not in existence at the time of the judgment, and the lumber company thereupon filed a petition to set aside the judgment, and for leave to defend; alleging that its grantor had no knowledge or notice of the judgment “until long after it was rendered.” Held, that though such judgment, not docketed in the county where the land lay, may not be notice to an innocent purchaser, as provided by Act Aug. 1, 1888, e. 729, 25 Stat. 357 [U. S. Comp. St. 1901, p. 701], and Va. Acts 1S89-90, p. 22, e. 23, the petition is insufficient, for failure to show that the corporation’s vendor was a bona fide purchaser without notice, and when he became a complete purchaser.</p> <p>21. Same—Declarations—Amendment.</p> <p>An application for leave to amend a return of service on a notice of intent to apply for leave to amend a declaration in ejectment will be denied, no such notice being required as a condition to plaintiff’s right to amend.</p>

This is an appeal from, and the review of, a decision of C. E. Stone, Esq., referee in bankruptcy, as to the title of certain personal property claimed by Marcus D. Botsford as trustee for certain secured creditors of the Adamant Plaster Company, the above-named bankrupt, as against Charles T. Blanchard, as trustee in bankruptcy of the said Adamant Plaster Company.

<p>On Demurrer to Plaintiffs Declaration.</p>

In Equity. The complainant applies for a preliminary injunction to restrain the defendant from an alleged infringement of a copyright of a photograph. The application is made upon the bill of complaint and ex parte affidavits taken by the complainant and the defendant. The defendant has also filed a demurrer to the bill. Obviously, the demurrer must be first disposed of, for, if it be good, there is no need of considering the application for a preliminary injunction.

<p>1. Insubance—Associations—Change of Plan—Dissatisfied Policy Holdebs—Remedies—Election.</p> <p>Where, on an insurance association’s change of plan, a dissatisfied policy holder elected, in writing, to cancel his certificate and demand a return of the money he had paid, he was bound to pursue that remedy, and was not thereafter entitled to file a bill to compel the society to continue operations under its original plan.</p> <p>2. Same—Charter—Amendment.</p> <p>Where the charter of an insurance association specifically reserved to the officers the power of amendment in all save one particular, not affecting the association’s plan of operations, the association had power to so amend such charter as to change from the assessment to the old-line plan, also expressly authorized by statute, over the protest of a minority of policy holders.</p> <p>3. Same—Obligation Contract.</p> <p>A change from the assessment to the old-line plan of insurance by an insurance association did not constitute an impairment of the obligation of the contracts of members previously insured under the assessment plan, where no attempt ,was made by the association to repudiate contracts of such members, and the assessments levied thereon were not unreasonable.</p> <p>[Ed. Note.—Mutual benefit insurance contracts, as affected by subsequent provisions and amendments of charter, constitution, or by-laws, see note to Supreme Council A. R. H. v. Champe, 63 C. C. A. 285.]</p>

<p>1. Insurance—Policy Holders—Rights—Determination.</p> <p>Rights of policy holders and the insurer must be ascertained and determined in connection with constitution and by-laws of the society, and the certificates of insurance constituting the contract between the parties.</p> <p>2. Same—Federal Courts—Rifles of Decision.</p> <p>In a suit in the federal courts to determine the rights of policy holders and the insurer, the decisions of the highest courts of the state are of controlling authority.</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>3. Same—Contract Provisions—Construction—Validity.</p> <p>A stipulation in an insurance policy that the place of the contract was agreed to be the home office of the insurer, and that the policy should be governed by, and construed only according to, the laws of New York, was binding on both parties, unless such stipulations or express provisions of the contract impaired the obligations of a contract, or conflicted with the laws of the state where the contract was made.</p> <p>4. Same—Reorga nization—Effect.</p> <p>The act of reincorporating an insurance association in conformity with New York Insurance Law, § 52 (Laws 1892, p. 1955, c. 690, as amended by Laws 1901, p. 1779; c. 722), authorizing such reincorporation, did not operate to create a new corporation, though a different name was assumed, and a new policy of insurance adopted.</p> <p>5. Same—Change of Plan—Obligation of Contract.</p> <p>Where complainants became members of an insurance association, and received certificates which in terms provided that they should be construed and be subject to the laws of New York, the reorganization of such association and a change of its plan of operations, as authorized by New York Insurance Law, § 52 (Laws 1892, p. 1955, c. 690, as amended by Laws 190.1, p. 1779, c. 722), did not constitute an impairment of complainants’ contract rights. •</p> <p>6. Same—Dissolution of Association—Adequate Remedy at Law.</p> <p>Members of an assessment insurance association, who become dissatisfied with a change of*the plan of operation adopted by the society, hav- . ing no vested interest in the assets of the corporation, are bound to seek redress at law, and not by a suit in equity to dissolve the association, unless it is shown that the association’s affairs are grossly mismanaged.</p> <p>7. Same—Insolvency.</p> <p>In a suit to dissolve an assessment insurance association, evidence held insufficient to establish the association’s insolvency.</p> <p>8. Same—Pleading—Bill—“Fraudulent Mismanagement.”</p> <p>The mere use of the words “fraudulent mismanagement,” etc., in a bill by dissatisfied members of an insurance association to dissolve the same on that ground unsupported by any averment of specific facts, cannot be considered as an admission of fraudulent mismanagement by a demurrer to tbe bill.</p>

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

<p>1. Federal Courts—Removal op Causes—Petition—Presentation.</p> <p>Under Removal Act Aug. 13, 1888, e. 866, § 3, 25 Stat. 435 [U. S. Comp. St. 1903, p. 510], requiring the party entitled to remove the cause to make and file a petition in the suit in the state court, and make and file therewith a bond, with good and sufficient surety, conditioned as named, etc., it is not necessary that the petition be presented to a judge of tae state court holding or sitting in open court, or to a court in session, or that an order be made by the court permitting the filing of the petition or directing the removal; but it is sufficient if the petition is presented to a judge in chambers, with the bond, and, after approval of the bond, the petition and bond are filed with the clerk of the court of the county where the venue was laid.</p> <p>2. Same—Bond—Presentation.</p> <p>While a removal bond should be presented to the judge of the state court for approval of the surety, the arbitrary refusal of the judge to approve a surety will not prevent the removal, the removing party then being entitled to file the bond and petition, procure the filing of the record on removal, and proceed in the federal Circuit Court, subject to a motion to remand for insufficiency of the surety.</p> <p>3. Same—Petition—Verification.</p> <p>A petition for the removal of a cause to the federal court is not fatally defective for want of a verification where the ground of removal is not prejudice or local influence, or the denial of equal civil rights, and the case is not a suit or prosecution against revenue officers.</p> <p>4. Same—Signing.</p> <p>Where the petitioner for the removal of a cause to the federal court signed the petition, it was not necessary that he should sign the verification, certified by the notary public as having been sworn to before him.</p> <p>5. Same—Removal Bond.</p> <p>Where a removal bond was signed by a surety, it was not defective because it was not signed by the defendant, and because the penalty thereof was limited to $500; Removal Act Aug. 13, 1888, c. 866, § 3, 25 Stat. 435 [U. S. Comp. St. 1901, p. 510], not requiring such signature, nor that the bond shall be for an unlimited penalty.</p> <p>6. Same—Right of Removal—Time—Pleading.</p> <p>Removal Act Aug. 13, 1888, c. 866, § 3, 25 Stat. 435 [U. S. Comp. St. 1901, p. 510], authorizes the removal of a suit from a state to a federal court on the filing of a petition in the state court at any time before defendant is required by the laws of the state or a rule of the state court to answer or plead to the declaration or complaint of the plaintiff Code Civ. Proe. N. Y. § 487, declares that the only pleading on the part of the defendant is either a demurrer (to the complaint or reply) or an answer. Held, that where defendant filed a removal petition in a state court befpre expiration of the time within which it was entitled to file either a demurrer or answer it was in time, though the time prescribed by N. Y. Sup. Ct. Gen. Prac. Rule 22, within which he could have attacked plaintiff’s pleading by motion, etc., had expired.</p> <p>7. Same—Time to Plead—State Court Rules—Construction.</p> <p>N. Y. Gen. Prac. Rule 24, providing that no order extending defendant’s time to answer or demur shall be granted unless the party applying therefor shall present to the judge an affidavit of merits or proof that it has. been filed, etc., and when time to serve the pleading has been extended by stipulation or order for twenty days no further time shall be granted by order except on two days’ notice, applies only to an application to the court for an order extending the time to plead, made on affidavits, and does not prevent the extension of time to plead by stipulation without order of court.</p> <p>8. Same.</p> <p>Where defendant was granted an extension of time to plead by stipulation as authorized by the New York Supreme Court rules, and within the time as extended defendant filed a petition and bond for removal of the cause to the Circuit Court of the United States, the proceedings for removal were in time.</p> <p>9. Same—Appearance in State Court.</p> <p>The general appearance of a defendant, entitled to remove a cause to the federal court, in the state court, did not operate as a waiver of its right to remove.</p>

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

<p>1. Contracts—Rules of Construction.</p> <p>In construing a written contract the court should put itself in the situation of the parties at the time it was made, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and the correct application of the language of the contract, taken as a whole, to the things described.</p> <p>2. Same—Construction—Contract fob Interest in Future Inventions.</p> <p>Complainant was a corporation engaged in the manufacture of musical instruments, including organs, and defendant was the superintendent of its factory, and had made certain inventions in relation to organs. A new contract was made between them by which, in consideration of an increased salary for a term of five years, it was provided in clause 2, which was the principal one, that a one-half interest in all improvements or inventions made by defendant during the term .“in or relative to organs, both keyed and automatic,” should be assigned to complainant, and they should be at once patented at complainant’s cost. By clause 4 it was provided that complainant should have the exclusive right to purchase and use improvements and inventions made hy defendant during the term “in self-playing pianos or self-playing devices for playing pianos,” on such terms as should be mutually agreed upon. Defendant made and patented certain inventions which were applicable equally to organs and to self-playing pianos. Held, that such inventions came within the provisions of the sécond clause of the contract, being of the class which it was the principal purpose of the contract to cover, and that complainant was entitled to an assignment of a half interest therein without further payment than that provided for by the contract</p>

<p>1. Depositions—Federal Courts—Following State Practice.</p> <p>Under Act March 9,1892, c. 14, 27 Stat. 7 [U. S. Comp. St. 1901, p. 664], which provides that in addition to the mode of taking depositions in actions in federal courts “it shall be lawful to take the deposition or testimony of witnesses in the mode prescribed by the laws of the state In which the courts are held,” where the laws of a state in which a court is held provide for the issuance of a commission by the clerk to take depositions of witnesses on interrogatories attached on notice to the adverse party, such practice may properly be followed in the federal court with respect to the taking of depositions of witnesses residing in other districts or states.</p> <p>[Ed. Note.—Conformity to state practice in taking depositions, see notes to O’Connell v. Reed, 5 C. C. A. 602; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p> <p>2. Same—Limiting Number of Witnesses.</p> <p>A party will not be limited in advance as to the number of witnesses whose testimony he may take by deposition, unless it appears from the nature of the issues that the number is unreasonable and unnecessary.</p>

<p>1. Pleading—Affidavit of Defense.</p> <p>An affidavit of defense, in an action by a trustee in bankruptcy to recover the value of property alleged to have been preferentially transferred to defendant by the bankrupt, which sets up that the property had been purchased from defendant, and that it had the right to rescind the sale because the bankrupt made a false statement to a mercantile agency for the purpose of deceiving wholesale dealers, is insufficient, where it is not alleged that the statement was intended to or did deceive defendant, and does not state any facts showing wherein the statement was false or fraudulent.</p> <p>2. Sale—Rescission fob Fbatjd—Right to Recover Property.</p> <p>A seller of lumber which was used by the purchasers, together with other lumber, in the construction of barges, cannot acquire any right or title to such barges by an attempted rescission of the sale for fraud.</p>

<p>1. Shipping—Longshoreman—Injuries—Contributory Negligence—Proximate Cause.</p> <p>Libelant, after cleaning up a dock, returned with other laborers to a barge, and went into an unlighted section of the hold, where they were to clean up ore left by the unloading machine. The men asked an em-. ployé of the vessel for lights, which it was his duty to furnish, and he promised to send them down immediately. While they were waiting for lights, libelant, without any obligation to do so, laid his shovel on an uneven pile of ore, in order to' attend to the lowering of a bucket, and then climbed on the pile in search of his shovel, and, while groping about in the dark, fell from a higher portion of a pile, and was injured. Held, that libelant’s contributory negligence in needlessly and recklessly climbing about on the uneven surface of the ore was the proximate cause of his injury.</p> <p>2. Same—Negligence.</p> <p>The vessel being under no obligation to light that section of the hold until its representatives were notified that the men were ready to work there, it was not guilty of negligence in failing to provide lights until within five or six minutes after libelant was hurt.</p>

<p>D Carriers—Street Railroads—Injuries to Passengers—Time to Alight— '' Contributory Negligence. '</p> <p>In-an action for injuries to a passenger on a street railway car while attempting to alight, evidence held to require submission of plaintiff’s contributory negligence to the jury.</p> <p>2. Same—Actions—Pleading—Issues and Proof.</p> <p>In an action for injuries to a passenger by the premature starting of a street car as. she was attempting to alight, an allegation that it then and there became and was the duty of the defendant to use due care that the plaintiff should be safely conveyed on her journey, was sufficient to present. the question of defendant’s negligence in not properly supervising the car and in looking after passengers at the point where plaintiff attempted to alight, to see whether any of them wanted to alight or not, and whether defendant’s employés did everything that reasonable prudence required of them at the time, etc.</p> <p>3. ' Same—Evidence—Moral Character—Effect—Limitation.</p> <p>■ Wher-e, in an action for injuries to a passenger on a street car, defendant. in rebuttal, introduced evidence showing a physical condition since the accident different from that described by plaintiff at the trial some of which tended to asperse plaintiff’s moral character, it was not error for the court to charge that the evidence relating to plaintiff’s moral conduct could not be used to impeach her testimony as a witness.</p> <p>4. ' 'Same—Negligence.</p> <p>Where a street car approached a railroad crossing protected by a derailing switch there was no negligence in the mere fact that the conductor of the street car left it and went ahead to operate the switch.</p>

On June 25, 1902, the Davis Calyx Drill Company, a corporation, made a written contract with S. H. Mallory to furnish him free on board the cars at Tarrytown, in the state of New York, one class F3 drill, which is described in its catalogue, and certain specific machinery, tools, and articles, for which Mallory promised to pay $2,459. Mallory has since died, and the defendants are the executrices of his will.

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

This was an action at law by the sewer district against George Guild, J. C. Guild, and the United States Fidelity & Guaranty Company to recover damages claimed to have been sustained by the plaintiff through the failure of the Guilds, for whom the guaranty company was surety, to construct and complete a sewer system in accordance with a contract entered into with the sewer district.

<p>Tumited Partnerships—Liability oe Special Partner—New York Statute.</p> <p>Under tbe New York statute providing for the formation of limited partnerships, which requires the filing of a certificate showing the amount of capital contributed by a special partner, and an affidavit that such, capital has been “actually and in good faith paid in in cash,” and makes, him liable as a general partner in ease such certificate or affidavit is false, but contains no provision with respect to the capital of the general partners, nor requirement that the same shall be shown, it is immaterial where a special partner obtains the money which he puts in, if it is actually paid in cash, so that it may be used by the firm as capital, and he is not liable as a general, partner because of the fact that the money was furnished to him as a loan or gift by third persons, or by a pre-existing firm merged into the new partnership or its members.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from the decision of the Circuit Court of the United States for the Southern District of New York (127 Fed. 624), affirming a decision of the Board of United States General Appraisers, which sustained the protest of appellee and reversed the decision of the collector assessing the merchandise in question, known as “blown glass blanks,” as “blown glassware” under paragraph 100 of the tariff act of July 24; 1897, c. 11, § 1, Schedule B, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633]. That paragraph is as follows:</p> <p>“100. Glass bottles, decanters, or other vessels or articles of glass, cut, engraved, painted, colored, stained, silvered, gilded, etched, frosted, printed in any manner or otherwise ornamented, decorated or ground (except such grinding as is necessary for fitting stoppers), and any articles of which such glass is the component material of chief value, and porcelain, opal and other blown glassware; all the foregoing, filled or unfilled, and whether their contents bo dutiable or free, sixty per centum ad valorem.”</p> <p>The importer protested, insisting that the merchandise should have been assessed under paragraph 112 of the same act, which reads as follows:</p> <p>“112. Stained or painted glass windows,' or parts thereof, and all mirrors, not exceeding in size one hundred and forty four square inches, with or without frames or cases, and all glass or manufactures of glass or paste, or of which glass or paste is the component material of chief value, not specially provided for in this act, forty-five per centum ad valorem.”</p>

The cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York, reversing a decision of the Board of General Appraisers, which sustained the collector, in assessing certain imported merchandise for duty. The opinion of the Circuit Judge will be found in 132 Fed. 269.

<p>1. Corporations—Receivers—Right oe Pledgee to Recover Possession of Stock Certificates.</p> <p>A corporation assigned to a bank, as collateral security for a loan, an underwriting agreement by which the subscribers agreed to take an issue of' its bonds, and were to receive as a bonus a certain amount of its stock. The agreement and bonds were delivered to the bank, and certificates of stock in amounts corresponding to those required by the agreement were signed, but for some reason were not delivered. The corporation became wholly insolvent, and receivers were appointed in proceedings to wind it up, who came into possession of such certificates. Held that, as against the receivers, the bank was entitled to an order for possession of the certificates, to enable it to tender the same to the 'underwriters in support of k suit on the agreement.</p> <p>■ [Ed. Note.—‘Rights and liabilities of pledgees of corporate stock, see note to Era ter v. Old Nat. Bank, 42 O. C. A. 135.]</p> <p>2. Same—Application fob Obdeb on Receivebs—Oollatebal Issues.</p> <p>On a petition for such an order in the receivership suit, the court cannot consider or determine any defenses which the underwriters may have to their liability to the. bank on the agreement.</p>

Subject to a mortgage theretofore executed to James Middleton, Michael McNulty was, on June 10, 1887, the owner of the south half of section 7, township 140 north, range 57 west, in Barnes county, Dakota, now North Dakota. On that day the land was sold, subject to the mortgage, under a judgment against McNulty rendered upon default in the district court of Barnes county in a proceeding in attachment, the only notice of which was given by publication.

This is an appeal from, a decision of the Circuit Court for the Southern District of New York, which reversed the decision of the Board of General Appraisers which had affirmed the decision of the collector in the classification and assessment of duty on a certain fomented liquor known as “saké,” imported from Japan. The decision of the Circuit Court is reported in 131 Fed. 650.

The bill was to restrain infringement of letters patent No. 607,620, issued July 19th, 1898, to William A. Kemp for improvements in pipe elbows. The bill was dismissed by the Circuit Court.

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

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

<p>Patents—Infringement—Pulp-Screening Machine.</p> <p>The Victory and Remington patent, No. 417,451, for a pulp-screening machine, was not anticipated by anything in the prior art, and discloses patentable Invention. Also held infringed.</p>

<p>Patents—Infringement—Gas Burners.</p> <p>The Denayrouze patent, No. 673,705, for an improvement In Bunsen burners for incandescent gas lights, which consists substantially in surmounting the tube of such burner with a mixing-chamber having a height approximately equal to the height that would be assumed by the dark inner core of a flame issuing from said tube, and expanding to a diameter equal to the greatest diameter of such flame, and closing the top of the chamber with a gauze screen, an ordinary mantle being placed above the chamber, must be limited to a structure having a chamber of a conoid shape, as described in the original specification and in prior foreign patents embodying the invention in which the shape is explicitly claimed, and is not infringed by the use of a cylindrical chamber; nor are the claims which include as an element a chimney substantially inclosed at its bottom to prevent a material direct access of air infringed by a burner having a chimney mounted on a gallery perforated with a large number of holes for the admission of air.</p>

<p>In Equity. Suit for infringement of letters patent No. '371,434, granted to William S. Cooper October 11, 1887, and No. 566,770, granted to David T. Kenney September 1,1895, both relating to improvements in water-closet valves. On final hearing..</p>

<p>1. Telegraphs — Line Contracts — Enforcement — Adequate Remedy at Law.</p> <p>A bill by a telegraph company to have certain right of way contracts with certain railroads declared to be in force, and for specific performance, was not demurrable on the ground that complainants had an adequate remedy at law.</p> <p>2. Same—Equity—Federal Courts—Jurisdiction—Parties.</p> <p>On a bill against a consolidated railroad corporation to obtain specific performance of right of way contracts between complainant telegraph company and defendant’s constituent companies, the mere fact that the federal court in which the suit was brought could not enforce its orders in another district, except by contempt or other personal proceedings, was not conclusive in determining what parties were before the court.</p> <p>3. Same.</p> <p>In a suit in equity in the federal courts for specific performance of telegraph right of way contracts with certain consolidated railroad companies, the necessary parties being subject to the court’s jurisdiction, it was immaterial that a portion of the property affected was beyond the court’s territorial jurisdiction.</p> <p>4. Same—Contracts—Consolidation.</p> <p>Where an operating contract consolidating various right of way contracts between complainant telegraph company and certain railroads did not attempt to annihilate or merge the various underlying agreements, further than to provide for a practical operating agreement for a period of 25 years, and thereafter until terminated by one year’s notice by either party, and such notice was duly given, the termination of such contract did not deprive complainant of its rights under the underlying agreement and certain condemnation proceedings, though no relief could be granted under such operating agreement.</p> <p>5. Same—Validity of Contract—Illegal Provisions—Defenses.</p> <p>In a suit by a telegraph company to obtain specific performance of right of way contracts with certain railroads, defendant was not entitled ' to object that the contracts were unenforceable because they contained certain provisions in violation of Act Cong. Aug. 7, 18S8, c. 772, 25 Stat. 382 [U. S. Comp. St. 1901, p. 3582], conferring certain rights in subsidized railroad and telegraph lines on the United States, and prohibiting interference therewith, etc.</p>

<p>1. Parties—Actions against Cities—Missouri Statute.</p> <p>Act Mo. March 12, 1901 (Sess. Laws 1901, p. 78), which provides that when a city of a certain class shall be sued on a cause of action arising from the wrongful or unauthorized acts or negligence of another, who is also subject to an action therefor, such other person or corporation, if subject to service in the state, may be required by the city to be made a party, does not apply to an action against a city to recover for .damage to plaintiff’s property resulting from the performance by the city of a public duty, such as the making of an improvement, without negligence on the part of the contractor by whom the work was done, but merely as an incident of such work.</p> <p>2. Municipal Corporations—Liability por Damage to Property by Public Improvement—Missouri Constitution.</p> <p>Const. Mo. 1875, art. 2, § 21, providing that “private property shall not be taken or damaged for public use without just compensation,” as construed by the Supreme Court of the state, entitles an owner of a building to recover from a city for damage resulting thereto, without his fault or negligence, by reason of the construction of a sewer by the city so close to the foundations of the building as to cause them to settle.</p>

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

<p>Shipping—Pebson Unnecessarily Using Cargo Skidway—Assumption of Risk.</p> <p>Where libelant, in going upon a vessel while discharging at a dock, used a cargo skidway laid by the stevedores, instead of a safe passenger gangway, of which he had knowledge, he assumed the risk, and the vessel cannot be held liable for his injury by falling from it into the water.</p>

<p>1. Railroads—Aid Bonds—Townships—Collection—Remedies.</p> <p>Where a statute incorporated a township to enable its people to Issue railroad aid bonds, and provided that the county auditor and treasurer should assess and collect taxes, the levy of which was provided for in the act that authorized the issuance of the bonds, to pay the same, the state had no power to deprive the bondholders of the remedy so provided, unless equally efficacious remedies were substituted therefor.</p> <p>2. Same—Counties—Change of Boundaries—Effect.</p> <p>Where a statute incorporated a township, authorized it to issue .railroad aid bonds, and declared that the county auditor and treasurer should levy and collect taxes for the payment thereof, on the change of the boundaries of such county, so as to place the township within the boundaries of another county, the duty of levying and collecting taxes for the payment of such bonds devolved on the officers of the latter. .</p>

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

' This cause comes here upon writ of error to' review a judgment of the District Court, Southern District of New York (130 Fed. 480), in favor of the defendant in error, which was plaintiff below. The claim against the United States was prosecuted under the Tucker act of March 3, 1887, c. 359, 24 Stat. 505 (1 Supp. Rev. St. 559 [U. S Comp.

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Tor decision below, see 127 Ted. 750, reversing a decision 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 Lawrence, Son & Gerrish. Note, Wood v. U. S., 72 Ted. 254, 18 C. C. A. 553.</p>

Williamson and others sued Prudence Beardsley and Mary A. Schoppe to set aside and cancel certain orders of sale of the district court of Salt Bake county, Utah, probate division, and executor’s deeds which were ‘executed and delivered pursuant to sales made under such orders. The property involved consisted of two tracts of land in Salt Bake City, formerly owned by Jonathan N. Williamson,, who died testate, .and whose will was probated in 1883.

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

The decision below (131 Fed. 396) affirmed a decision of the Board of United States General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Fleitmann & Co. Note United States v. Knowles, 126 Fed. 737, 62 C. C. A. 62, and In re Solvay Process Co. (C. C.) 134 Fed. 678. The pertinent part of section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp.

<p>Customs Duties—Ascertainment op Component Material of Chief Value—Warping—Process of Weaving.</p> <p>Under section 7, Tariff Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1093'J, providing that the component material of chief value in imported merchandise “shall be determined by the ascertained value of such material, in its condition as found in the article,” held that, as to woven fabrics, the ascertainment should be made with reference to the time, the process of weaving commences; that the operation of warping is not a part of such process; and that the cost of such operation should be included wholly in the value of the material constituting the warp of the fabrics, and not distributed between the warp and the weft.</p>

Action for persona] injuries sustained by plaintiff in error while in the employment of the defendant in error. Upon all of the evidence, there was a direction for defendant in error. Deye’s injury was sustained while engaged, with others, in moving a large iron casting, called a “lathe bed,” by the falling of one or more similar eastings from a pile adjacent to the casting being removed. . The defendant company is a corporation engaged in making machine tools.

<p>Collision—Overtaking Steamships—Attempting to Pass.</p> <p>Two steamers which overtook and attempted to pass another with a tow while coming down Bake' St. Clair both held in fault, under the evidence, for a collision with the tow; one for crowding in when the other was attempting to pass between her and the tow, and the other for persisting in the attempt to pass after the danger should have been apparent.</p> <p>[Ed. Note.—Collision, overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>In April, 1900, the appellant and one Herman J. Meyer, copartners as Meyer & Bulte, filed their bill in the court below to restrain alleged infringement of a trade-mark for flour, and also to restrain unfair competition in trade. By a supplemental bill filed by Bulte as sole complainant March 4, 1901, it is stated that on July 1, 1900, Meyer transferred his interest in the business, his trade-márk and good will, to Bulte, who holds the right thereto, and to all rights of action for past infringement. The original bill charges that the complainants have from 1880 to May 1, 1897, carried on business as manufacturers of flour at St. Louis, and then moved to Clinton, and later to Kansas City, Mo., where the business is now carried on; that Philip Land originated the brand in question and established the business of manufacturing flour in the year 1865 at Brownsville, now Sweet Springs, Mo. He was succeeded by Land & Co. in 1875; the latter were succeeded by Land & Swaggard in the year 1882, who in turn were succeeded by George Swaggard & Son, in March, 1885; and they were succeeded by the Sweet Springs Milling Company in the year 1887; and that company in turn was succeeded in November, 1892, by the complainants “in the good will and trade-mark rights here-’ inafter specified.” The bill proceeds: “And your orators now conduct and carry on^the said business of said predecessors, and are vested with all the' fights of*' their said predecessors; all and singular, including the good will, trade-mark, brands, trade-names, etc., of said predecessors, as hereinafter specified, and your orators are in all things vested with all of said rights and interests of their predecessors in business, all and singular, and are the sole owners thereof. And from the year 1880 to the 1st day of May, 1897, were located and did business in the city of St. Louis, and later moved their offices to Clinton, and later to Kansas City, in said state of Missouri, as a copartnership under the firm name of Meyer & Bulte.” The bill charges that: “Since the year 18G5 their predecessors or themselves have been continuously manufacturing and selling in the markets-of the United States and elsewhere a certain brand of flour of superior quality for certain uses, which has been known, identified, referred to, and called for as the ‘White Swan’ brand, and which has long been and now is in very great demand, and known, referred to, and distinguished by the said designation ‘White Swan’; and that said flour has been manufactured during more than thirty-four years past in uniform high quality, and put up in packages, sacks, and barrels to which has been applied a circular label having thereon a circle within which is a smaller circle, and within the smaller circle is a pictorial representation of a lake or body of water, upon whose bosom is a white swan, and within the outer circle are the words ‘Roller Patent Process,’ and above the picture of the swan is the name of the manufacturers, and the following words and marks, to wit. ‘Meyer & Bulte’s,’ and beneath the picture of the swan are the words ‘White Swan’ and the name of the location of the manufacturers’ milling plant, and at the top of the label are the-figures ‘196.’” The bill charges that Land & Swaggard registered on the 29th of April, 1884, upon application filed March 31, 1884, their .trade-mark, “the essential feature of which is therein specified as the pictorial representation of a white swan upon water”; that the complainants on the 21st of November, 1899, “again caused the said trademark to be registered according to the statutes of the United States, * * * the essential feature of which is therein given as the pictorial representation of a white swan, or the words ‘White Swan’ that the trade-mark, as applied to floui;, and referred to in said certificates of registration, has been used by the complainants and by their predecessors in connection with a single package, sack, or barrel of flour for many years in commercial intercourse with Indian tribes and in commerce with the United States, Canada. Mexico,, and Great Britain. The bill contains the usual allegations with respect to infringement by the defendants, and prays for an injunction, etc.</p> <p>- On December 28, 1900. the complainants, with leave of the court, amended their bill by inserting after the allegations touching the use of the brand by their predecessors in business the following: “Your orators further say that early in the year 1880 they originated the brand hereinafter mentioned, to wit, picture of a white swan, together with the words ‘White Swan,’ in a manner entirely independent of any of their said predecessors, and have continuously used the same in business up to and including the date of filing the bill of complaint herein, and have always sedulously guarded their rights and interests in the same;” and also amended the bill by alleging that prior to the registration of the trade-mark by their predecessors the complainants “had already secured registration in the United States Patent Office of their, label illustrating said brand, the picture of white swan and the w'ords ‘White Swan,’ said registered label being numbered 3.624 and dated 23d day of October, 1883,” and under date of January 22. 18S4, duly registered the trademark under the statutes of the state of Missouri.'</p> <p>The answer denies that the complainants are the successors in business of Philip Land or his successors named. Alleges that the Sweet Springs Milling Company is the sole successor of Philip Land, carrying on the business at Sweet Springs, Mo.; that the complainants never had any interest in the milling plant owned and operated by the several persons and firms who were successors of Philip Land, but used the white swan label upon a brand of flour of their own, different in quality, made at different places, of different weight, and by different machinery; that all that they acquired from the Sweet Springs Milling Company or its predecessors was by an instrument executed November 7, 1892, by B. F». Swaggard, :of the late firm of George Swaggard & Son,- Sarah Swaggard, the wife of George Swaggard, deceased. Thomas O. Berry, guardian and curator of the minor heirs of George Swaggard, deceased, Philip Land, and the Sweet Springs Milling Company, which recited that P. Land was the original appropriator of a trade-mark for flour embodying the pictorial representation of a white swan upon water, as specifically set forth and described in trade-mark No. 11,147, registered April 29, 1884, and used continuously in business by them since 1S75, and grants all their right, title, and interest to the said brand and trade-mark: that Land established the milling business about the year 1871, which business was carried on by Land & Co., Land & Swaggard, and Swaggard & Co., until June 1, 1888, when the milling plant, business, and good will thereof were purchased by the Sweet Springs Milling Company, which has since owned and conducted the business, and now operates and conducts the same. The answer denies that Philip Land or the complainants at any time originated the brand of flour known as the “White Swan” brand, and denies that the pictorial representation of the white swan, or the words “White Swan,” were used by Land or his successors in business, or by the complainants, prior to the year 1875; that complainants used the brand subsequently to the use thereof by Land & Co., and priority of use by them is denied; and it is alleged that other millers and manufacturers of wheat flour used the brand continuously for many years, so that it has come into general and extensive use throughout the country, independent of complainants or their use of it. The answer denies that the defendants have imitated the brand as charged; alleges that in the brand used by the defendant it employs form, detail, and ornamentation different from that used by the complainants. In the deferidants’ brand the picture of the white swan is fronting to the right; in that used by the complainants it is fronting to the left, and is of different form. Defendants use the words “Swaus Down,” with the name of their corporation and the address of their milling plant, and their flour is known to the trade as “Iglebeart’s Swans Down Flour”; the complainants using the words “White Swan” with their name, “Meyer & Bulte,” and the name and address of their milling plant, upon the label and brand, and their flour is known as “Meyer & Bulte’s White Swan Flour”; that the defendants’ brand “Swans Down,” with the pictorial representation of a white swan in connection therewith as a label of white flour, was originated by one McCann, of the city of Nashville, in the year 1808 or 1869, in the manufacture and sale of wheat flour, and has been continuously used by him and his successors until it came to the ownership of the Cumberland Mills in the year 1899, in which year the defendants acquired the right thereto by assignment from the Cumberland Mills. The answer also challenges the validity of the use of the white swan as a trade-mark; asserts it to be descriptive of quality and grade; asserts 30 years’ general use of the label; that the failure of complainants to exhibit upon the label that they are the successors of Land & Swaggard vitiates any claim on their part to the use of the label; alleges 20 years’ use by the defendants of the trade-name “Swans Down” as giving a perfect title; asserts laches upon the part of the complainants and their predecessors, and asserts other claimed defenses of which this opinion does not treat.</p> <p>On March 5, 1901, the cause was referred to a master, who, in July, 1903, reported his findings of fact and conclusions of law, together with the evidence. So far as deemed material to the discussion of this case, the facts found by him are these: That the firm of Meyer & Bulte was formed in the year 1881 in the city of St. Louis to do a flour commission business. For four or five years prior thereto they had been engaged in a like business in that city with one Imbs, under the firm name of Imbs, Meyer & Co., which firm was dissolved May 31, 1881. That firm had succeeded Imbs, Meyer & Fusz, which firm had been engaged in a like business as early as 1871. Subsequently to this suit Herman Meyer sold his interest in the firm of Meyer & Bulte to August J. Bulte, but by agreement he retained an interest in the subject-matter of this suit. The firm of Imbs, Meyer & Fusz used a flour brand containing the words “White Swan,” but not containing the picture of a swan bird in any form. The brand became the property of Meyer & Bulte. who, in July, 1881, began to use on their best grade of flour a brand containing •the words “White Swan” and the picture of a swan bird floating or swimming ■on water, which brand was used continuously by them to the present time.</p> <p>Igleheart Bros, was a firm doing a flour milling business at Evansville. Ind„ for several years prior to 1860, and continued therein until 1887, when ■certain changes were made in the firm, and in 1892 the partnership property, business, and good will were transferred to Igleheart Bros., a corporation of Indiana, by' whom the business has been conducted continuously to the present time. The firm of Igleheart Bros, in September, 1879, began the use of a flour brand containing the. words “Swans Down,” but not containing the picture of a swan bird in any form; which brand was used by them until a date between the years 1881 and 1884, the precise date being indeterminable upon the evidence, when they added the picture label of a swan upon water, which has since been continuously used by the defendants without material change.</p> <p>Prior to 1876, persons engaged in the flour milling business or flour commission business in the states of New York, Illinois. Missouri, Iowa, Texas, and Canada used upon barrels, bags, or sacks containing flour, as a brand or descriptive badge or mark, the single word "Swan,” or the word “Swan” joined with other words, making the combination “White Swan,” “Swan Lake,” or “Swans Down.” Early in the year 1874, Eekhart & Swan, a flour commission firm of Chicago, placed upon its flour barrels by a stencil the picture of a swan floating or swimming on water.. It used this brand, which was not its leading brand, from 1874 to 1901, both in its wholesale flour commission business, which it conducted up to 1884. and its flour milling business, which it engaged in in 18S4, and continued until the business was sold to the Eekhart & Swan .Milling Company, which corporation used that brand up to the year 1901. Prior to 1878 tbes' used the swan brand upon the flour in advance of sales, and after the year 1S78 only when requested so to do by their patrons.</p> <p>In 1878, Land & Co., at Brownsville (now Sweet Springs), Mo., began the use of a brand or descriptive badge or mark for flour containing the word "White” over the picture of a swan floating or swimming upon water. This brand was continuously used by that firm and its successors in business down to 1888, when their mill and milling business was transferred to the Sweet Springs Milling Company, which company operated the mill and continued the business and the use of the brand up to the year 1901, except that for a time prior to 1S91 one McAfee, the then manager of the company, designed new flour brands and labels, and the White Swan brand was only used when such brand was called for by patrons of the company; but it was used after 1891, when Philip Land, the originator of the brand, acquired an interest in the company, and became its president and manager, and was used upon a lower ■grade of flour than the grade upon which that company used its leading flour brand and label. On April 29, 1884, Land & Swaggard procured to be regisTored in the Patent Office as a trade-mark to be used in the sale of flour the picture of a white swan swimming upon water and facing to the right. On October 23, TS83, Meyer & Bulte procured to be registered in the Patent Office a flour label. The instrument deposited for the purpose of procuring registration had attached to it as a part, thereof a barrel label “similar to defendants’ Exhibit No. 2, except only that the words ‘Registered in Patent Office in Washington July 1881,’ which appear on a strip of white immediately above the black background in the center of the label in - said exhibit, were marked out with black ink.” (As neither defendants’ Exhibit No. 2 nor its registration are preserved in the record, no fuller description can be given.) On October 9, 1899, Meyer & Bulte caused to be deposited in the Patent Office for registration a trade-mark of which “the essential feature is a pictorial representation of a white swan, or the words ‘White Swan,’ as set forth in the application statement of said Meyer & Bulte, and record of the registration of said trade-mark was made on November 21st. 1899.” (This application and registration does not seem to be preserved in the record, and no further illustration of it can be given.) On January 17, 1898, the defendant corporation filed in the Patent Office its application for registration of a trade-mark, of which “the essential feature is the representation of a swan floating on a body - of water in which, are water lilies.” The record of certain interference proceedings in the Patent Office between Igleheart Bros, and Meyer & Bulte was introduced, in which Meyer & Bulte claimed to be the assignees of the Band & Swaggard White Swan trade-mark.</p> <p>The master further finds that the evidence does not show any genuine ease of deception of a purchaser, where such purchaser was induced to buy and receive the defendants’ Swans Down flour instead of the complainants’ White Swan flour by reason of any similarity of defendants’ Swans Down flour label or brand; that the evidence did not show that an ordinary retail purchaser of flour would be likely or liable to be so misled by any similarity of the brands; that the dissimilarity is such that an ordinary retail purchaser of flour would not be misled in taking the one brand of flour for the other; that there is nothing in the evidence showing that the defendants were guilty of any act, fraud, or unfair dealing as against the complainants or the complainants’ predecessors in title, or the general public.</p> <p>As conclusion of law the master found that the equities were with the defendants, and that the bill of complaint should be dismissed. Exceptions to the master’s report were overruled, and on January 10, 1904, a decree passed dismissing the bill for want of equity. The decree also contained the statement that the court overrules an application of the complainants for leave to file an amended bill of complaint; but the record shows no other reference to the matter, and no copy of the proposed amendment The complainant, Bulte, alone appealed, there being no petition for severance.</p>

The suit is brought to recover damages for the death of Joseph O’Connor, occasioned, as is claimed, by the fault of the defendant in error. The declaration contains four counts.

<p>1. Bills and Notes—Action by Assignee—Validity of Assignment.</p> <p>Where, in an action by an assignee of certain notes, the complaint alleged that the notes had been assigned and delivered to plaintiff, and evidence that they were transferred and delivered to plaintiff by the payee, long before a written assignment thereon was made, was admitted without objection, such evidence established a prima facie case, regardless of the validity of the assignment.</p> <p>2. Same—Negotiable Notes—Parol Assignment.</p> <p>In the absence of a statute to the contrary, a written assignment of a negotiable note, payable to order, is not necessary to transfer an equitable title to the note to the transferee.</p> <p>3. Same—Action—Foreign Law.</p> <p>Where certain negotiable notes sued on were transferred by parol in Iowa, the transferee was entitled to maintain a suit thereon in his own name under the law of that state.</p>

<p>1. Railroads—Accidents to Trains—Collision—Injuries to SwitchmanRules—Violation—Custom.</p> <p>A custom in railroad yards, permitting the use of a main track by engines and inferior trains without waiting the lapse of five minutes after the due timé of a first-class train, which was reported late,,provided there was sufficient time for the completion of the work in hand before the arrival of the belated train at the time reported, as required by a rule of the company, did not justify action on information as to the delay of such first-class train, received nearly an hour before.</p> <p>2. Same—Application.</p> <p>Where a portion of the main track of defendant's railroad between certain stations, for a maximum distance of 15 miles, was used for the transfer of trains from different parts of the yards of another railroad, and defendant had prepared a separate time-table, covering such track, on which it had printed a rule providing that when a train stops, or is delayed under circumstances in which it may be overtaken by another train, the flagman must go back immediately with danger signals a sufficient distance to insure full protection, such rule applied to the operation of a transfer train of another company, in charge of a switchman, operated over such portion of the track on the time of a passenger train, on it appearing that the transfer train was being delayed, and was not going to be able to clear the main track in time to prevent a collision with the approaching passenger.</p> <p>3. Same—Contributory Negligence.</p> <p>Rules of a railroad company required that an inferior train, failing to clear the main track in time to keep out of the way of a superior train, must be protected as provided in another rule, requiring that a flagman be sent back immediately with danger signals a sufficient distance to insure full protection. Plaintiff, a switch foreman, in charge of a transfer train of another company. • started to use a portion of defendant’s track on the time of defendant’s first-class passenger train, and. though he saw such train, approaching more than a mile away, and might easily have alighted and signaled the passenger train, as required by the rule, he did nothing except attempt to signal the passenger train with a lantern in a dim twilight, even after he observed that his signal had not been seen or was not being observed, whereupon a collision occurred and plaintiff was injured. Held, that plaintiff was guilty of contributory negligence precluding recovery.</p>

<p>Public Lands—Grant to Railroad—Survey—Cutting Timbee.</p> <p>The partial survey by the United States of a section of public land by running lines on two sides of it is insufficient to identify it as an odd-numbered section, within the grant to the Northern Pacific Railroad Company, so as to relieve one cutting timber thereon from liability to the United States.</p>

The following is the opinion of King, Referee: Three alleged creditors herein have filed petitions asking leave to file proofs of claims not filed within a year after adjudication. Within that year J. B. Orcutt Company verified a proof for $S93.68; C. H. Dauchy Company, a proof for $3,535.67; Charles Duncan, a' proof for $3,844.

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Illinois, in Bankruptcy. On September 22, 1898, Newton D. Little filed a petition in voluntary bankruptcy in the court below, and in that proceeding was on April 12, 1899, duly discharged of his debts.

This is an action brought by the defendant in error, as plaintiff, for an alleged indebtedness of £3,747 3s. 7d., English money, or its equivalent, $18,-173.82 in gold coin, with interest thereon at the rate of 5 per cent. p„er annum from December 21, 1898, against the firm of Schwartz, Lowe & Co., a copartnership organized in 1894 at San Francisco, Cal., composed of the plaintiff in error, L. Leon Lowe, William Schwartz, Samuel Schwartz, and David Speyer.

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

On October 20, 1902, Frederick C. Dobler made application in writing to the' plaintiff in error, a life insurance company of the state of New York, for a policy of insurance in the sum of - $10,000. The application was made at Baker City, Ore., and was there delivered to AV. I-I. Stalker, a representative of .the plaintiff in error, who forwarded the same to the. home office of the latter in New York.

<p>1. Pbocedube on Wbits op Eebob.</p> <p>Although two actions for personal injuries by separate plaintiffs against the same defendants, growing out of the same accident, were by consent consolidated for trial, and were so tried to the same jury, who returned separate verdicts, on which separate judgments were entered, and one bill of exceptions, by consent, was made out,-yet two separate writs of error directed to the separate judgments were necessary. But where, as in this instance, two separate writs were sued out by the respective defendants, but directed to both judgments, and counsel for defendants in error thereafter stipulated with counsel for plaintiffs in error that the writs of error may be considered and treated as a single writ of error, etc., and then waited until after the lapse of the six months in which new writs of error might have been sued out, held, that the objection to the manner of suing out the writs should be overruled.</p> <p>2. Negligence—Joint Dependants—Evidence.</p> <p>Where several defendants are sued jointly for negligence causing personal injury to the plaintiff, to warrant a joint judgment against the defendants the evidence must satisfactorily show that the acts of negligence co-operated concurrently or in continuous successive order, producing the common result.</p> <p>3. Same.</p> <p>Where a gasoline plant was constructed by one defendant for one of the codefendants for lighting the latter’s house, and when completed the servant of the latter was instructed by the builder of the plant how he should keep watch at the tank while the gasoline was being delivered by the third defendant, and such third party, on an order from such owner, brought a barrel of gasoline to be delivered into the tank through a receiving box on the outside of the building, where the party delivering it could not see the tank, such third party having ho reason to apprehend that any of the appliances about the tank were not in perfect order, held, that in so delivering the gasoline into the receiving box such third party was not liable for an injury resulting from any overflow at the tank, unknown to him, while so delivering the fluid.</p> <p>4. Same—Sufficiency op Evidence.</p> <p>Where the evidence relied upon to support the verdict against such third party for personal injury to a person in said building, consequent upon the explosion of the gasoline which escaped, either at the tank or the receiving box, where the physical facts contradict mere deductions drawn from isolated facts testified to by witnesses, it is the duty of the court to see that a verdict against such third party shall not rest alone on the latter.</p> <p>The existence of a fact is not proven by evidence of a subsequent condition which is merely consistent with its existence. Where the existence of the required fact rests upon surmises or speculative theory, rather than upon facts affirmatively established, it is the duty of the court to .direct a verdict for the defendant.</p> <p>5. Same—Pbovince op Juby—Weight op Evidence.</p> <p>While the credibility of witnesses on disputable facts should be submitted to the jury for their determination, yet, where the evidence in respect of a given situation or fact is overwhelmingly persuasive, it is not to be maintained that any evidence to the contrary, however inconsequential and improbable, should carry the case to the jury.</p> <p>6. Same—Instructions.</p> <p>Although the court, in its charge to the jury, improperly injected into the case the question as to the negligence of the defendant in selecting and assigning an incompetent servant to perform a given duty, yet if, in the same connection, the charge made the liability of the employer to depend upon the ultimate fact that the servant at the time and place negligently caused the act which gave a cause of action, and, in addition thereto, such improper issue respecting the competency of the servant was rather prejudicial against the party recovering the judgment, such error should be disregarded.</p> <p>(Syllabus by the Court.)</p>

. In Error to the Circuit Court of the United State's for the Southern District of Iowa. On the Gth day .of July, 1898. the city of Ottumwa, in the state of Iowa, entered into a contract with the Assyrian Asphalt Company, of Chicago (hereinafter for convenience called the contractor), for the grading, curbing, and paving of a portion of West Second street in said city.

It is nought to reverse a judgment sustaining a demurrer to the amended ■declaration'of the plaintiff in error, who was plaintiff below. The declaration contains two counts. The first count declares upon a contract for . the sale and delivery by the defendant to the plaintiff of 750,000 machine bolts; the second count upon a contract for the sale and delivery of 250,000 carliage bolts.

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

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

<p>In Equity. Suit for infringement of letters patent No. 701,580 for a pneumatic surfacer, granted to Herman G. Kotten June 3, 1902. On final hearing.</p>

<p>1. Patent—Demurrer—When Sustainable.</p> <p>A demurrer to a patent can be sustained only when the question of invention is.free from doubt. There must be in the mind of the court an absolute conviction of the lack of invention, and if there is any doubt on this point the case must be decided adversely to the demurrant.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent Dig. Patents, § 536.]</p> <p>2. Same—Lamps.</p> <p>Demurrer to patent No. 726,293, for new and useful improvements in exhausting lamps, overruled.</p> <p>(Syllabus by the Court)</p>

<p>Patents—Validity—Machine foe Molding Tubes.</p> <p>The Keasbey patent, No. 397,860, for a machine for molding tubes, held void on the ground that the patentee was not the true inventor.</p>

In Equity. Suit for infringement of patent. On demurrer to petition in the nature of a supplemental bill filed after decree.

<p>1. Interstate Commerce—Suit to Enforce Orders of Commission—Supersedeas Pendino Appeal.</p> <p>The provision of section 16 of the interstate commerce act (Act Eeb. 4, 1887, c. 104, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]), that, in proceedings thereunder to enforce an order of the Commission, an appeal shall not operate to stay or supersede the order of the court appealed from, is merely declaratory of the general rule in equity, and does not affect the power of the court, under equity rule 93, to grant a stay pending appeal, in its discretion.</p> <p>2. Same.</p> <p>A Circuit Court will not supersede a decree enjoining railroad companies from violating an order of the Interstate Commerce Commission affecting rates, entered in a suit brought by the Commission pursuant to section 16 of the interstate commerce act (Act Eeb. 4, 1887, c. 104, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]), pending an appeal from such decree, where it does not appear that the damage to defendants from the enforcement of the decree will be greater than that which would result to shippers from its suspension.</p>

<p>1. Bankruptcy—Trustees—Appointment—Legacies.</p> <p>Where a bankrupt became tbe owner of a legacy by the death of his testator prior to the filing of his petition and adjudication, but on the same day, such legacy vested in the bankrupt’s trustee for administration in bankruptcy.</p> <p>2. Same—Legal Services—Trustee an Attorney.</p> <p>A trustee of a bankrupt, though an attorney, is not bound to perform legal services, but' if he does so he cannot have compensation therefor from the estate.</p> <p>3. Same—Employment op Counsel.</p> <p>Where a bankrupt was left a large legacy on the same day he was adjudged a bankrupt, and claimed that he, and not his trustee, was entitled to receive the same, his trustee was justified in employing an attorney to represent him in litigation involving a contest of the will, and also a contested accounting as the administrator with the will annexed, though the bankrupt was also represented by counsel in such proceedings.</p> <p>4. Same—Acts op Attorneys.</p> <p>It was not improper for attorneys of a bankrupt’s trustee to make out and present formal proof of the claim of a creditor, where nothing appeared to indicate that such attorneys did anything for the creditor that would in any way prejudice the interests of the bankrupt or his estate.</p> <p>5. Same—Attorneys’ Services.</p> <p>Where, on the same day a person was adjudged a bankrupt, he became vested with a legacy of $23,000, and his trustee properly employed attorneys to recover such legacy, who, in connection with an attorney employed by the bankrupt, assisted in successfully defending a will contest, and recovering so much of the legacy as was sufficient to pay the claims against the estate of the bankrupt, etc., after having been engaged for a period of fifty days, an order allowing such attorneys $800 for their services was proper.</p>

<p>United States Officers—Extortion.</p> <p>Under Const, art. 2, § 2, providing that all officers shall be appointed by the President, by and with the advice of the Senate, or Congress may vest the appointment of such inferior officers as they think proper in the President alone, in the courts, or in the heads of departments, a special agent of the Land Department of the United States, appointed under Appropriation Act June 4, 1897, c. 2, 30 Stat. 32, to meet the expenses of protecting timber on public lands, but providing no fixed salary, tenure of office, or person with power to appoint, was not an officer of the United States, within Rev. St. § 5481 [U. S. Comp. St. 1901, p. 3701], providing that every officer of the United States, guilty of extortion under color of his office, shall be punished, etc.</p>

<p>1. Statutory Liens—Contracts—Performance—Time.</p> <p>A contract for the construction and setting of mill machinery provided that the seller’s work should be considered completed when the mill was set in motion and each machine put on its legitimate work, at which time complete settlement should be made for unpaid balances; that the plant would not be delivered to the purchasers until such settlement was completed ; and that the mill should be completed, ready for operation, on a specified date. Held, that the time fixed for the completion of the contract was of its essence, and, on the seller’s failure to complete the same until long after the time specified, it was not entitled to a statutory lien under Code Ga. 1895, §§ 2801, 2804, giving to contractors for building factories, and furnishers of material and machinery therefor, etc., a special lien on the real estate, “provided the contractors have made a substantial compliance with their contract.”</p> <p>2. Same—Contracts—Conditional Sale—Equitable Mortgage.</p> <p>A contract for the purchase of machinery and mill equipment provided that the title to the machinery and equipment should remain in the seller until payment of the price; that failure to execute notes and deliver the same as provided in the contract, or to pay any of the amount specified at maturity, should entitle the seller to take possession of the machinery and other property named, and sell it by private or public sale after 80 days’ advertisement, without process of law, and retain any balance unpaid, together with interest, traveling expenses, and attorney’s and other fees connected with collection, and. pay the buyers any surplus, and collect from them any deficiency. Held, that such contract was not a conditional sale, but, at most, an equitable mortgage. •</p> <p>8. Same—Enforcement.</p> <p>■ Where a contract to purchase mill equipment and machinery constituted a mere equitable mortgage thereon to secure the price, and it appeared that the purchasers were solvent, and that the seller had made default in complying with its contract within the time specified, and that the buyers had suffered considerable damage thereby, such mortgage would not be enforced in equity, except to the extent of the amount due on the contract after deducting the buyers’ damages.</p> <p>4. Same—Attorney’s Pees—Expenses.</p> <p>Where an equitable mortgage on mill machinery and equipment provided that in case of enforcement the seller should be entitled to retain from the proceeds of a sale of the machinery any balance of the price unpaid, together with interest, traveling expenses, and attorney’s and other fees connected with collection, but the buyers had a meritorious defense to a part of the amount claimed, no allowance would be made for attorney’s or other fees connected with the collection.</p>

<p>1. Mechanic’s Lien—Time fob Filing—Completion of Gonteact.</p> <p>Where complainant contracted to furnish machinery and material for a mill, and to install the same, the contract was not completed, so as to start the time for filing a mechanic’s lien to running, so long as complainant’s employés were engaged in work in the mill which was necessary in order to put the machinery and equipment in the condition required by the contract as originally made or as modified by subsequent agreements.</p> <p>2. Same—Extra Materials.</p> <p>Extra machinery and materials furnished by a contractor for the equipment of a mill, and made necessary by changes in the specifications by the owner, are to be regarded as having been furnished under the original, and not under an independent, contract.</p> <p>3. Same—'Validity—Error in Statement.</p> <p>Mechanic’s lien statutes are to be construed so as to effect substantial justice, and a lien will not be held void because the statement filed claimed more than was actually due, where it was the result of mistakes, and without fraud or wrongful intent.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent Dig. Mechanics’ Liens, § 253.]</p> <p>4. Same—Mining Property Subject to Lien—Nevada Statute.</p> <p>Under Cutt. Comp. Laws Nev. § 3S81 et seq., which gives a lien on a mine for labor or materials used in the construction of any building or superstructure thereon, and on a mill, manufactory, or hoisting works for machinery or labor furnished in its construction, and provides that the lien shall extend to “the land occupied by any building or other superstructure, * * * together with a convenient space about the same, or so much as may be required for the convenient tise and occupation thereof,” a contractor who furnished and installed the machinery and appliances for a mill at a mine is not entitled to a lien therefor on an electric power plant situated some miles from the mine on land not connected therewith, although power is supplied by such plant for the operation of the mill, but the lien therefor will extend to a group of mines constituting the mining property on which the mill is situated, and to reduce the ores from which it was built.</p>

In Bankruptcy. On petition of J. E. Mercer, receiver appointed by state court, for compensation, etc. Petitions of attorneys for fees and petition of Victoria McArthur, administratrix.

<p>1. Unfair Competition—Distinctive Dressing—Transfer of Right by Sale of Business and Good Will.</p> <p>Although the name under which an article is sold may be one which cannot be appropriated as a technical trade-mark, yet where it has been used for many years in connection with a style of package and labels which together constitute a distinctive dressing for the article, by which it has become well known to the trade and to consumers, the right to the exclusive use of such dressing is one which passes with the sale of the assets and good will of the business, and in which the purchaser is entitled to protection against a fraudulent imitation.</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 98.</p> <p>. Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper, 30 C. C. A. 376.]</p> <p>3. Same—Imitation of Dressing.</p> <p>Complainant and its predecessors in ownership have for many years bottled and sold the waters of a well-known mineral spring in Germany under the name “Blue Label,” using therefor a uniform and distinctive dressing consisting of a green bottle' having thereon a blue neck label of peculiar shape, bearing the words “Blue Label,” and a body label containing an elliptical blue panel with white lettering surrounded by a white field with blue lettering. Such water became widely known throughout the United States under the name of “Blue Label Mineral Water.” Defendant commenced the bottling and sale of a different water, using bottles of the same shape, size, and color, having thereon neck and body labels of the same shape size, style, and colors, but having different words thereon, the resemblances between the two as a whole being much more noticeable to a person of ordinary intelligence and observation than the differences, and such as were calculated and evidently intended to deceive ordinary purchasers. Held, that such simulation of complainant’s ' dressing, aside from any question of trade-mark or copyright of labels, constituted unfair competition, against which complainant was entitled, to protection by injunction.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,072, T. D. 23,503, which affirmed the assessment of duty by the collector of customs at the port of Philadelphia on merchandise imported by the Franklin Sugar Refining Company.

<p>1. Bankkuptcy—Recovery of Preferences—Defenses.</p> <p>Where a creditor of an insolvent who had sold him goods on credit through an agent took back certain of said, goods as a credit immediately before the debtor’s bankruptcy, and with reasonable cause to believe and know that he was insolvent, and that a preference was intended, it is no defense to an action by the debtor’s trustee to recover the value of such goods as a preference that the creditor’s agent, by a collateral agreement with him, had guarantied payment of part of the indebtedness, and that the credit was applied on such part</p> <p>2. Same.</p> <p>Where the statement of claim in an action by a trustee in bankruptcy to recover an unlawful preference, under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], alleges that the preference was received by defendant through an agent who had reasonable cause to believe apd know that the debtor was insolvent and that it was thereby intended to give a preference, an averment in the affidavit of defense that defendant had no personal knowledge of the actual insolvency of the debtor states no defense.</p>

<p>1. Railroads—Town Aid—Subscriptions—Federal Courts—Jurisdiction.</p> <p>Where, under the terms of a town vote granting aid to a railroad company, no cause of action ever accrued to the railroad corporation, but did accrue to its receiver or the assignee of his successor who furnished funds to complete the road .under an assignment of the subscription, the fact that the corporation could not have maintained an action in the federal courts to recover such subscription because it was of the same citizenship as the town did not deprive such assignee of the right to sue in the federal courts, under Rev. St. U. S. § 629, providing that federal courts shall not have cognizance of any suit to recover a chose in action in favor of an assignee, unless a suit might have been prosecuted in such court if no assignment had been made.</p> <p>2. Same.</p> <p>Where an assignee of a chose in action is entitled to sue thereon alone in the federal courts, he and his assignees may sue there together as if no assignment had been made.</p> <p>3. Same—Receivers—Successors.</p> <p>Where the receiver of a railroad corporation completed the road, and thereby became entitled to a town subscription, the receiver’s successor was not an assignee, within Rev. St. U. S. § 629, providing that no suit shall be brought in the federal courts to recover a chose in action in favor of an assignee unless the suit might have been prosecuted in such court had no assignment been made.</p> <p>4. Same—Subscriptions—Consideration.</p> <p>A town railroad aid subscription, in consideration of contributions of others to the railroad as a public work beneficial to the inhabitants of the town and the public, was based on a sufficient consideration.</p> <p>5. Same—Contracts—Execution.</p> <p>Where a town railroad aid subscription provided that the selectmen of the town were authorized for and on its behalf to contract with the' railroad company, which contract should embody the terms and conditions of the “foregoing vote,” the making of the contract was merely authorized, and was not required to entitle the railroad’s receiver to the benefit of the subscription on compliance with the terms of the vote.</p> <p>6. Same—Parties.</p> <p>Where a railroad contractor to whom a right to a subsidy had been assigned by the railroad’s receiver assigned the same to plaintiff to secure fúnds with which to complete the road, and had no interest in any of the property, the mere fact that he had a right to redeem did not make him a necessary party to an action to recover such subsidy, the receiver, who was a party, being entitled to redeem from him.</p>

<p>1. Collision—Steam Vessels Meeting in East River—Navigating on Wrong Side of Channel.</p> <p>Vessel held in fault for collision occurring while such vessel was navigating the Bast river below Corlear’s Hook on the left-hand side of the channel and near the Manhattan shore, such navigation being in violation of the narrow-channel rule requiring vessels to keep to the right, and of the East river statute requiring vessels using the East river to navigate as nearly in the center thereof as possible.</p> <p>2. Same—'Violation of Rules—Custom.</p> <p>Violation of statutory rules of navigation cannot be justified upon the ground that it is customary for vessels to violate them under certain tidal conditions.</p> <p>3. Same.</p> <p>The question in a collision case is not what the colliding vessels do-when they get down close to each other, but what maneuver they should have adopted under'the rules when far .enough apart to maneuver deliberately and safely.</p> <p>[Ed. Note.—For eases in point, see vol. 10, Cent. Dig. Collision, §§ 15,16.]</p> <p>4. • Same.</p> <p>When a vessel deliberately places herself in a position where she is not free to maneuver, and remains therein until a collision happens, her inability to maneuver immediately before contact is no excuse, her embarrassment being brought about by her own negligence.</p>

<p>Application for transfer of proceedings instituted in district of the bankrupt’s domicile to the district where it was principally engaged in business, etc. The opinion states the case.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought by William F. Stone, collector of customs at the port of Báltimore, and relate to merchandise imported by Frank H. Shallus.

On Application for Review of a Decision of the Board of United States General Appraisers, G. A. 5,294, T. D. 24,266. These proceedings relate to a decision of the Board of General Appraisers, which reversed the assessment of duty by the collector of customs at the port of Philadelphia on merchandise imported by Franklin Sugar Refining Company.

<p>1. Habeas Corpus—United States Officers.</p> <p>Rev. St. §§ 753, 763 [U. S. Comp. St. 1901, pp. 592, 594], provide that the writ of habeas corpus shall in no ease extend to a prisoner in jail, unless he is in custody for an act done or omitted in pursuance of a law of the United States, or _ of an order, process, or decree of a court or judge thereof, in which case the court or judge shall proceed in a summary way to determine the facts of the case, and dispose of the party as law and justice require. Held, that such sections confer jurisdiction on federal courts to release on habeas corpus an officer of the United States held in custody for an act done or omitted under authority vested in him by the laws of the United States, though there was no act of Congress covering the particular case.</p> <p>2. Same—Assistant District Attorneys.</p> <p>Assistant district attorneys appointed by a United States district judge, as authorized by Act Cong. May 28, 1896, c. 252, § 8, 29 Stat. 181 [U. S. Comp. St. 1901, p. 613], are officers of the United States courts for their respective districts.</p> <p>3. Same—State Courts—Contempt.</p> <p>Where petitioner, in his official capacity as assistant United States district attorney, procured the production of state court records before a federal grand jury under an ordinary subpoena duces tecum, and thereafter held possession of such records as such attorney, he was not subject to punishment for contempt of the state court for failure to return such records on demand.</p>

<p>Copybight—Infringement—Preliminary Injunction.</p> <p>Preliminary injunction will not issue 'against the publication of defendant’s arrangement of a musical compbsition, though it is practically a reproduction of complainants’ copyrighted arrangement thereof; complainants having also published uncopyrighted editions of the composition, the character and extent of the dedication to the public through which cannot be determined on the affidavits and inspection of the respective scores, so that it is impossible to decide the extent of any trespass by defendant on the rights secured to complainants by the copyright, and it not appearing that defendant is unable to respond in damages.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent Dig. Copyrights, § 78.]</p>

<p>On Contract. On demurrers to declaration.</p>

<p>On Contract. On demurrer to declaration.</p>

<p>In Bankruptcy. In the matter of the petition of the trustees to declare void a mortgage of the Commonwealth Bank on property of the bankrupt.</p>

<p>In Error to the Circuit Court of the United States for the District of Utah.</p> <p>On December 24, 1900, the plaintiff (defendant in error) was in the employ of the defendant as a miner in defendant’s coal mine at Diamondville, Wyo., and in what is called the back entry of level “No. 3rd North.” He was following a car load of coal, which was being hauled by a horse, to block the wheels of the car whenever the horse should stop: as the car, moving upon iron tracks, was ascending a considerable grade, to the main entry of the mine. At about 12 feet from the main entry this grade was steeper than at other places. The gauge of the track was 3 feet, and the box of the car flared to a width of 4 four feet at its top. The sloping passage, up the grade of which the car was being drawn, was of varying narrow width, and at its narrowest place was 7% feet wide. The car was hauled up the slope with a heavy load of coal, to a point about 12 feet from the main entry (beyond which the track would have been about level), and had reached tbe steepest part of the grade, when the horse stopped, and the plaintiff blocked the wheels of the car to prevent it from running backward down the slope. When the horse started forward again and moved the car, the plaintiff stooped and removed the blocking which had held the car wheels; but almost immediately, when the car had moved but a few feet, and while plaintiff was still at the place where he had removed the blocking, the chain which attached the whiffletree to the ear broke, by the parting of one of its links, and the heavily loaded car started back and ran down the slope at great speed, striking, throwing down, and severely injuring the plaintiff.</p>

<p>1. Trial—Direction of Verdict—Questions of Negligence.</p> <p>While the questions of negligence and contributory negligence are. ordinarily questions of fact to be passed on by a jury, yet if it clearly appears from the undisputed facts, judged in the light of that common knowledge and experience of which courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, or where the evidence is of such conclusive character that the court would be compelled to set aside a verdict in opposition to it, the case may properly be withdrawn from the jury.</p> <p>. [Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 279-346; vol. 46, Cent. Dig. Trial, §§ 379, 380, 383, 384, 391.]</p> <p>2. Street Railroads—Care in Equipment of Cars—Screens Protecting Windows.</p> <p>Screens with large meshes fastened across the lower half of the windows of a street ear on the side next to the poles supporting the trolley wires are a sufficient protection against the accidental injury of passengers from such poles, and a sufficient warning of the danger of such Injury to absolve the-railway company from the charge of negligence in that regard.</p> <p>3. Same—Injury of Passenger—Contributory Negligence.</p> <p>A passenger in a. street car who, on account of a sudden illness, extended her head through a window, above.a screen which covered the lower half of the window, and was injured by striking against a trolley pole beside the track, being obliged in order to so reach the window to stand up or kneel upon the seat, was chargeable with contributory negligence, as matter of law, which precludes a recovery against the company for the injury.</p> <p>[EcL Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 1380.]</p>

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

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

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

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

Appeal and Cross-Appeal from the Circuit Court of the United States for the Southern District of Illinois.

<p>1. Jurisdiction oe Federal Courts—Action on Note—Citizenship op Nominal Payee.</p> <p>A note made payable to the cashier of a bank as trustee, the consideration for which was furnished by the bank, which was the real owner, may be sued on by the bank in its own name, or by its receiver, without indorsement or assignment, under the statute of Utah, and the citizenship of the cashier is immaterial to affect the jurisdiction of a federal court in that state of an action thereon.</p> <p>[Ed. Note.—Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullaghanr, 27 C. C. A. 298.]</p> <p>2 Pleading—Amendment.</p> <p>The fact that an amendment of a complaint was allowed by consent, on application by the plaintiff, after he had sold the cause of action and before the substitution of the purchaser, does not invalidate such amendment.</p> <p>3. Judgment—Impeachment—Estoppel by Admission of Service.</p> <p>A written admission of service of summons in an action in a Montana court, conforming to Code Civ. Proc. Mont. § 642, which makes such admission sufficient proof of service, estops the defendant from subsequently denying the jurisdiction of the court to render judgment against him.</p> <p>4. Abatement—Action on Note—Pending Suit to Foreclose Mortgage.</p> <p>A suit to foreclose a mortgage securing a note, in which the property was sold and the proceeds applied on the amount found due on the note, but in which no formal deficiency judgment has been rendered, is not a bar to a second action on the note in another jurisdiction to recover the amount of such deficiency.</p> <p>5. Evidence—Competency.</p> <p>An offer to prove by oral testimony that a contract for a novation was ‘drawn,” by which defendant was to be released from liability on a note, was properly rejected, where the contract was not produced nor its execution proved.</p>

Virginia Kimber sued Frank C. Young to recover damages alleged to have been caused by his deceit and breach of warranty in respect of certain corporate bonds purchased by her. A demurrer directed to her amended complaint, which was in two counts, was sustained by the circuit court. She elected to stand upon her pleading, and judgment was accordingly rendered that she take nothing by her action. This writ of error is to review the judgment.

This is an appeal from a decree of the Circuit Court for the Northern District of New York, restraining the defendant Clinton D. MacDougall, as marshal, from selling the property of the complainant upon an execution for 940,000 and interest, issued on. a judgment entered in the District Court of the United States for the Eastern Division of the Southern District of Georgia, on a forfeited bail bond, signed by the complainant as surety, and John F. Gaynor as principal.

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

This cause comes here upon writ of error to review a judgment of the Circuit Court, Western District of New York, upon a verdict directed in favor of defendant in error, who was defendant below. The action was brought to recover damages for the death of Peter W. Putnam, fireman on a passenger train of the defendant, who was killed in a head-on collision with another passenger train near Rochester, N. Y.

This is an appeal from a decision of the Circuit Court for the Southern District of New York, affirming a decision of the Board of General Appraisers, which overruled the action of the Collector in assessing the imported merchandise as metal unwrought, under paragraph 183 of the act of July 24, 1897, e. 11, § 1, Schedule C, 30 Stat. 166 [U. S. Comp.

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

<p>. Appeal from the District Court of the United States for the Southern District of New York.</p> <p>Appeal from final decree of the District Court for the Southern District of. New York, entered June 28, 1904, awarding the libelant $4,000, with interest and costs, for a wrecking service in raising the respondent’s dredge, No. 12, which sank in 18 or 20 feet of water near the Erie Basin breakwater, June 26, 1898, while engaged in dredging the channel at that place. The opinion of the District Court, including the report of the commissioner, who states all of the salient facts, will be found reported in 132 Fed. 154.</p>

These suits present the question whether four of the children of Daniel D. Burnes, deceased, or all the stockholders of the Burnes Estate, a corporation, are the beneficial owners of 300 shares of the capital stock of that corporation, which was the property of Calvin F. Burnes, a brother of Daniel D. Burnes, when he died intestate on July 29, 1896. The capital stock of the corporation is divided into 1,000 shares.

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

This appeal relates to an affirmance by the Circuit Court for the district of Maine of a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Bangor on Merchandise imported by A. & R. Loggie. Note Harvey v. United States (C. C.) 137 Fed. 816.

On Application for Review of a Decision of the Board of .United States General Appraisers. The decision below related to an importation át the port of New York by Harvey & Outerbridge, consisting of codfish in drums containing less than a half barrel. Duty was assessed by the collector at the rate of 30 per cent, ad valorem under the provision in paragraph’ 258, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30’ Stat. 171' [U. S. Comp.

<p>Customs Duties—Classification—Spent Gingek.</p> <p>The article known as spent ginger, which is a by-product from the treatment of ginger root in the manufacture of ginger extract, etc., and consists of a dried cake of ginger particles, is held- to be “ginger root, unground,” as enumerated in paragraph 667, Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 667, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688.)</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Iowa, in Bankruptcy. For opinion below, see 131 Fed. 1004.

The petition in this case alleges that Flossie E. Hubbird, Ethel Hubbird, Mary Hubbird, and Ora' Hubbird are citizens of the state of Illinois and nonresidents of the state of Iowa; that they are minors under the age of 18 years of age; that by an order of the county court of Macon county, 111., said Elsie Bennett was duly appointed guardian of the estate of said Flossie, Ethel, Mary, and Ora Hubbird, minors, and that said Elsie Bennett was thereafter duly appointed as such-…

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

Petition for Revision of Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy. On motion of Joseph W. Lund, trustee, for revision in matter of law. For opinion of District Court, see 135 Fed. 218.

<p>1, Collision—Peopee Navigation—Station of Lookout.</p> <p>While no specific location on a vessel is prescribed for the lookout, he is required by good navigation to be placed at the point best suited for the purpose alike of hearing and observing the approach of objects likely to be brought into collision with the vessel; having regard to the circumstances^ of the case and condition of the weather.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent Dig. Collision, §§ 142, 163.]</p> <p>2. Same—Steamship and Schooneb—Impbopebly Located Lookout.</p> <p>Where a large ocean-going steamship, with decks considerably above the water, was navigating Chesapeake Bay in the night in foggy weather, a lookout stationed in the crow’s-nest, 60 feet above the deck, and 100 feet from the stem, was not properly located to see and hear objects in front of the vessel, and especially small vessels of the character that usually' navigate the bay, frequently loaded down to their water mark; and the ship was in fault for a collision with a schooner, whose fog signal, regularly sounded, was not heard by the lookout until immediately before collision.</p> <p>[Ed. Nóte.—For cases in point, see vol. 10, Cent. Dig. Collision, § 163.]</p>

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

Appellants’ libel alleged: (1) That libelants were interested, some as owners and some in other ways, in the barge Algeria.

The Cosmopolitan Power Company was organized under the incorporation laws of New Jersey on April 30, 1900, for an unlimited period, to make and deal in engines, machines, materials, and merchandise of all kinds, anywhere within the United States and its territories and possessions. The company’s seat of operations and all of its tangible property were in Illinois. Its authorized capital stock was $40,000,000.

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

<p>1. Municipal Corporations—Streets—Vacation—Statutes—Validity.</p> <p>A%. the Nebraska organic act, providing that the legislative power of the territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of the act, except that no law shall be passed interfering with the primary disposal of the soil, etc., contains nothing depriving the Legislature of authority over city streets, the Legislature was authorized to pass Act Jan. 25, 1866, declaring that all streets, parts of streets, etc., situated in the town of Columbus, previously taken by the Union Pacific Railroad for turnouts, standing places for cars, depots, etc., should be vacated so long as the 'same should be so used, and that a perfect title should be- vested in the railroad company by the act, to terminate on the termination of the use.'</p> <p>2. Same—City Ordinances.</p> <p>Gen. St. Neb. 1873, c. 9, conferred on cities the right to open or vacate any street, etc., within the city limits, under certain conditions, whenever deemed expedient for the public good, or to give a right of way to any railroad company, etc. Chapter 11, § 83, declared that if it should be necessary, in the location of any part of a railroad, to occupy any street of a municipal corporation, it should be competent for the city and the railroad company to agree on the manner, terms, and conditions on which the same should be used, etc., and, if they are unable to agree, the railroad might appropriate the street in the same manner as provided for the appropriation of property by individuals. Held, that under such acts the city of Columbus had power to pass an ordinance vacating certain streets to a railroad company on specified conditions.</p> <p>3. Same—Terms of Ordinance.</p> <p>The ordinance vacating a street was not void as a grant or sale, instead of a vacation, because it contained a provision: “There shall be and Is hereby granted,” etc., “to the railroad company that portion of . the street vacated for depot purposes.”</p> <p>4. Same—Fosfexttjbe.</p> <p>Where it did not- appear that either defendant city or any of its inhabitants would be in any way injured by a change in the location of a railroad’s passenger station or freight depot, and the city acquiesced in the change of the passenger depot for 17 years, the city was estopped to claim that such change operated as a forfeiture of the railroad company’s rights in certain streets vacated under an ordinance providing for the location of such depots.</p>

<p>1. Aliens—Chinese—Deportation—Review.</p> <p>Under Act Cong. May 5, 1892, c. 60, § 3, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1320], providing that any Chinese person arrested shall be adjudged to be unlawfully within the United States unless he shall establish by affirmative proof to the satisfaction of the judge or commissioner his right to remain, the judgment of a District Court ordering deportation of a Chinese person will be affirmed on appeal, unless the case clearly shows that an incorrect conclusion has been reached.</p> <p>2. Same—Evidence.</p> <p>Where a Chinese person arrested as unlawfully within the United States at the time of his arrest was working as a servant in'a boarding house, and since coming to the United States had worked as a cook and deliveryman in a store in which he had ho interest, he was not a “merchant” as defined by Act Cong. May 5,1892, c. 60, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1320], as amended by Act Nov. 3, 1893, c. 14, § 2,-28 Stat. 8 [U. S. Comp. St. 1901, p. 1321], and, not having procured a certificate of residence as required by section 6, a deportation order issued against him was not error.</p>

' This cause, was submitted upon the bill and answers as amended, and the appeal is from a final decree which sustains the bill and grants the relief sought against the appellants (defendants therein), the Consumers’ Gas Trust Company and its trustees and directors, respectively.

This cause comes here upon writ of error to review a judgment of the Circuit Court, District of Vermont, entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was brought to recover for the death of a car repairer in the service of the defendant company, who was run over and killed by a car which he was inspecting at Richford Station, Vt.

<p>Patents—Infringement—Stone Sawing Machine.</p> <p>Tbe Williams patent. No. 429,S74, for a stone sawing machine, was not anticipated, and discloses invention. Claims 1, 2, and 3 also held infringed.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here on appeal from a decree of the United , States Circuit Court for the Southern District of New York dismissing the bill alleging infringement of complainant’s patent No. 559,446, granted May 5, 1896, to Henry H. Forsyth and Henry H. Forsyth, Jr., for a shade-holding device..</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>On appeal from final decrees of the Circuit Court of the Southern District of New York, dismissing bills for the infringement of letters patent, No. 520,429, granted to Hoggson, May 29, 1894, and No. 617,592, granted to Misell, January 10, 1899, for an electric battery and an electric device, respectively. The opinion of the Circuit Court will be found at 131 Fed. 495.</p>

In Equity. Suit for infringement of letters patent No. 363,186, for an electric motor, granted to Elihu Thomson May 17, 1887; letters patent No. 399,801, granted to Thomson & Wightman March 19, 1889, and No. 428,650, to Thomson, May 27, 1890—both for improvements on such motor. On final hearing.

<p>Patents—Tenting Cloth—Validity—Novelty.</p> <p>Patent No. 718,499, for tenting cloth, to be used to cover tobacco and other plants, held void for want of novelty, both in the elements used • to constitute the product, and in the combination thereof.</p>

<p>1. Patents—Infbingement—Micanite.</p> <p>The Dyer patent, No. 483,646, for a process of making artificial mica sheets for electrical insulation, called “micanite,” by uniting a series of layers of irregularly shaped mica scales, laid to overlap, by means of varnish, and under pressure, until a' sheet of the required thickness is formed, was not anticipated, and discloses patentable invention. Also' held infringed as to claims 1 and 2.</p> <p>2. Same—Validity—Defense of Prior Use.</p> <p>Evidence considered, and held insufficient to invalidate á patent on the ground of prior use.</p> <p>3. Same—Process of Molding Mica Sheets.</p> <p>The Jefferson patent, No. 4S3.653, claim 2, for a process of molding an artificial mica sheet, is void for anticipation, if construed as a continuation of the Dyer process of making such sheets, being covered by claim 2 of the Dyer patent. No. 483,646, and for lack of invention if otherwise construed.</p>

<p>' Patents—Validity and Inebingement—Incandescent Lamps.</p> <p>The Campbell patent, No. 447,757, for a method of using hydrocarbon fluids for illuminating purposes, and a portable lamp for practicing such method, was not anticipated; and, while the lamp uses old elements, the combination is new, and produces a new and useful result, and discloses invention. The patent also held infringed.</p>

<p>1. Railroads—Liability of Lessor foe Lessee’s Negligence—Federal Rule.</p> <p>Under the holdings of the federal courts, a lessor of a railroad track is not liable for the negligence of its lessee in operating its trains on such track, and, the question being one of general law, a federal court is not controlled thereon by state decisions.</p> <p>2. Removal of Causes—Separable Controversy—Construction of Pleading.</p> <p>The question whether a declaration states a joint and not a severable cause of action against two defendants is to be determined from the facts alleged, and is not affected by an allegation that the act complained of was the joint and concurrent act of both defendants.</p> <p>[Ed. Note.—Separable controversy ground for removal of cause to federal court, see note to Robbins v. Ellenbogen, 18 C. C. A. 86; Meeke v. Valleytown Mineral Co., 35 C. C. A. 155.]</p> <p>3. Same—Joint Cause of Action.</p> <p>The declaration in an action in a state court against two railroad companies alleged that one was the owner of certain tracks which it leased to its codefendant, a portion of the trackage being used by the ■ two jointly and a portion exclusively by the lessee; that the lessor kept an employé in chargfe of a switch connecting the two, whose duty it was to switch the lessee’s trains onto the exclusive track when the same was clear; that such employé negligently switched an engine upon which plaintiff was working onto such track at a time when there was another train thereon moving in the opposite direction; that through the negligence of the lessee’s employés in charge of such train a collision occurred between the same and the engine on which plaintiff was in which he was injured. Held, that such declaration did not state a joint cause of action, but a separate and distinct cause against each defendant, and the suit was removable by one defendant which was a citizen of another state.</p> <p>[Ed. Note.—For cases in point, see vol. 42, Cent. Dig. Removal of Causes, 5 97.]</p>

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

<p>Dicenses—Constitutionality of Ordinance—Dealers in Trading Stamps.</p> <p>A city ordinance imposing a license tax of $600 per year on any person selling trading stamps to merchants, in addition to $100 per year on each merchant using trading stamps in his business, is not one for the purpose of providing revenue, but is clearly intended to prohibit the use of such stamps, and is void, as an abridgment of the privileges of citizens to engage in a legitimate business, in violation of the fourteenth constitutional amendment.</p>

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

<p>t. Seamen—Injury in Service—Negligent Failure or Ship to Furnish Proper Treatment.</p> <p>Shortly before a steamship left New York for a voyage to the West Indies and return, libelant, a seaman, injured his hand on a loose wire from a cable he was handling. A few days after it became very much swollen and painful, and libelant requested to be left in a hospital at Kingston, which was the first port made. He was not left, but was treated by a physician there, who performed an operation and gave directions for further treatment on board. He was further treated by a physician at another port, but was kept on board until the return of the vessel to New York, when his hand was in such condition that he was compelled to remain in the hospital for two months, and barely escaped amputation; the result being that his hand was rendered permanently useless. It appeared that the directions of the Kingston physician wéré not followed, and that the hand was negligently treated by the officers of the ship, which contributed to its serious condition at the end of the voyage. Held, that the failure to leave libelant at Kingston and his subsequent improper treatment were acts of negligence which rendered the ship liable in damages.</p> <p>2. Same—Damages.</p> <p>An award of $1,500 made to a seaman 43 years old for the permanent crippling of- his right hand through the neglect of the ship to furnish him with proper treatment after an injury to the hand in the service.</p>

<p>Collision—Steamship and Schooner Crossing—Excessive Speed and Want of Efficient Lookouts in Fog.</p> <p>A steamship approaching New York at night in a fog came into collision with a crossing schooner 15 miles east of Fire Island Lightship. Both vessels were sounding fog signals. The steamship was admittedly going at a speed of six knots, and had a lookout on the forecastle head, and another in the crow’s nest on the foremast, but neither saw nor heard the schooner until she was seen from the bridge, when quite near. At this time a white light was seen on the schooner nearly ahead, which was mistaken for a stern light, and the steamship changed her course, but had been little.affected thereby at the time of collision. Held, that the steamship was in fault for excessive speed and want of efficient lookouts; that the schooner would not be adjudged in fault because the mate, in the extremity of-the collision, set out a false and misleading' light, it being doubtful whether or not it contributed in any way to the collision, which was fully accounted for by the plain faults of the steamship.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, §§ 152- ‘ 156.]</p>

<p>Bankruptcy—Banks—Partnership.</p> <p>Bankr. Act July 1, 1898, c. 541, § 1, cl. 6, 30 Stat. 544 [U. S. Comp. St. 1901, p. 34191, declares that “corporations” shall mean all bodies having any of the powers and privileges of private corporations not possessed by individuals or partnerships, and shall include limited or other partnership associations organized under laws making the capital subscribed alone responsible for the debts of the association. Section 4 declares that private bankers, but not national banks or banks incorporated under state or territorial laws, may be adjudged involuntary bankrupts; and section 5 (30 Stat. 547 [U. S. Comp. St. 1901, p. 3424]) provides that a partnership during the continuance of its business or after its dissolution and before settlement may be adjudged a bankrupt. Held, that where an association of individuals was formed to carry on the business of a private bank, as authorized by Daning’s Rev. Laws Ohio, § 4891 et seq. (Bates’ Ami. St. § 3170-1 et seq.) but was not incorporated, it was a partnership, and as such subject to be adjudged a bankrupt, though it was entitled to exercise some of the attributes of a corporation.</p> <p>[Ed. Note.—For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§ 17, 21.</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>Shipping—Charter Hire—Disablement of Vessel by Stranding.</p> <p>Where a steamship under a time charter was disabled by stranding so that during the remainder of the voyage she was not in the condition required by the charter, the charter hire nevertheless runs after she reached port and while discharging, when the disablement did not affect her efficiency to discharge, although there was delay, owing to damage to the cargo resulting from the stranding.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent Dig. Shipping, §§- 219-221.]</p>

<p>In Equity. Bill to enjoin the collection of municipal assessments. Submitted on demurrer to the bill. Sustained.</p>

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

<p>Corporations—Stock—Value—Evidence.</p> <p>In an action for breach of a contract to deliver to plaintiff 1,000 shares of 6 per cent, preferred stock of an asphalt mining company, evidence held to justify a verdict finding that its value was $75,000.</p>

At Law. Action to recover duties. Motion to exclude evidence. Compare United States v. Phelps, 17 Blatchf. 312, 317, 27 Fed. Cas. 521, and United States v. Campbell (D. C.) 10 Fed. 816, 819. Tiffany & Co. imported into the port of New York and entered for consumption certain merchandise on which duty was assessed at the rate of 10 per cent, ad valorem, the entry being liquidated on that basis 'and the duties duly paid.

<p>In Admiralty. Suit for seaman’s wages.</p> <p>Libelant, an American citizen, signed shipping articles on the St. Louis for round voyage, beginning 25th February, 1905, and ending March 20, 1905. He well and faithfully performed all his duties while able to do so, and obeyed all lawful commands of the master and officers of said ship. Sues for wages and one day’s pay for each and every day payment has been delayed.</p> <p>The answer admits everything, except alleging that libelant, while said ship was lying in the' port of Southampton, England, without leave or aUthority from his superior officers, absented himself from his duty on said ship, and remained absent therefrom on March 6, 7, 8, 9, and 10, and for such absence from duty without leave he was properly logged and fined two days’ pay for each day’s absence.</p> <p>The libelant testified he had a very sore, back and could not work on the days in question; that he went to the doctor on the 5th and 6th of March, and the doctor refused to give him a ticket allowing him to lay off, but nevertheless, thinking he was too sick, he laid off of his own accord; that, while he,received a slip showing that he was logged, yet the log was never read over to him. He had witnesses who testified that they thought he was sick.</p> <p>The claimant proved by the surgeon of the ship that, in his opinion, the libelant was not too sick to do light work, and that for this reason he refused to give libelant a ticket permitting him to lay off; also that the libel-ant did not go to the captain and object to the fact that the doctor would not permit him to lay off.</p>

<p>Collision—Vessel • MoObed in Fairway of Stream—Failure to Carry Lights.</p> <p>Article 29 of the inland navigation rules (Act June 7, 1897, c. 4, 30 Stat. 102 [IT. S. Comp. St. 1901, p. 2884]), which provides that “nothing in these rules shall exonerate any vessel * * * from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case,” applies to a vessel lying moored at the end of a wharf, in a dark night, in the navigable part of a narrow stream, con-' stantly traversed by different kinds of .craft, and having neither lights nor a ■ lookout,' there being special circumstances in such case which required her, in the exercise of common prudence, to carry a light, whether. or not it was expressly required by the rules; and she cannot recover for an injury by collision with a passing vessel, in tow, which -'could have been avoided, had she been properly lighted.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent Dig. Collision, §§ 223-227.]</p>

<p>Motion to Take Off Nonsuit.</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 Baltimore on merchandise imported by Carter, Webster & Co. Note G. A. 4,721, T. D. 22,357, and G. A. 5,235, T. D. 24,073.

<p>Cabbiebs—Action by Shippeb—Geobgia Statute.</p> <p>An action against a railroad company under Code Ga. 1895, §§ 2317, 2318, known as the “Tracing Act,” as construed by the Supreme Court of the state, is one for a penalty, and it cannot be converted into one on contract by an amendment of the declaration.</p>

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

<p>Landdobd and Tenant—Leases—Stipulations—Enforcement—Bankruptcy.</p> <p>Where, after the bankruptcy of a tenant, the landlord accepted a surrender of the premises, and did not consent that the remainder of -the term might be sold as a part of the bankrupt’s assets, he was not entitled to enforce a provision of the lease that in ease the tenant became bankrupt the rent reserved for the entire term should immediately become due and payable, and that the landlord might proceed as he was authorized to do in case of a breach of a covenant under the lease, etc.</p>

<p>1. Pbocess—Sebvice—Demubbeb.</p> <p>An objection to an involuntary bankruptcy petition that the court had no jurisdiction because the subpoena was improperly served can be raised only by motion or by defense at the trial, and not by demurrer.</p> <p>2: Same—Bankruptcy—Fire Lloyds—Unincorporated Association.</p> <p>An unincorporated Lloyd’s association of fire underwriters is subject to adjudication as an involuntary bankrupt under Bankr. Act July 1, 1898, e. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], declaring that a natural person, other than a wage earner or a person engaged chiefly in farming, etc., and any unincorporated company, and any corporation engaged principally in manufacturing, trade, printing, publishing, mining, or mercantile pursuits, owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt, etc.</p> <p>[Ed. Note.—What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>Indemnity Bond—Action—Declabation.</p> <p>A declaration on an indemnity bond, the condition of which was that the principal should in all respects comply with the requirements of law and regulations in relation to the duties of distillers, was demurred to on the grounds that the breach of said condition assigned did not set forth with sufficient certainty the law and the regulations of the Commissioner of Internal Revenue alleged to have been violated, or the law under which such regulations were made, or that any such regulations were made. Held, that not only should the act prescribing the penalty be set forth with reasonable certainty, but also the act authorizing said Commissioner to make regulations and the fact that they were made by him thereunder, as well as the specific regulation or regulations thus authorized and made, which were violated. Held, further, that the declaration was insufficient in the above-mentioned respects.</p> <p>(Syllabus by the Court.)</p>

<p>1. Trading Stamps—Improper Use—Notice.</p> <p>Where defendant had been in complainant’s employment long enough to know that the necessities of complainant’s business in selling and redeeming trading stamps required, that such stamps should not be dealt in by the public generally, he was hot an innocent purchaser without notice in purchasing issued stamps for resale.</p> <p>2. Same—Public Policy.</p> <p>The business of issuing trading stamps to merchants to be given to purchasers of small bills for cash, redeemable in articles of merchandise, etc,, when honestly conducted, is not contrary to public policy.</p> <p>3. Same—Injunction.</p> <p>Where defendant purchased complainant’s trading stamps, among others, for resale, and such purchases seriously interfered with complainant’s business in issuing such stamps for redemption in articles of merchandise,, etc., complainant was entitled to an injunction prohibiting defendant from' advertising that he would purchase complainant’s stamps, and from selling stamps so purchased as articles of merchandise.</p>

<p>On Motion to Compel Witnesses to Answer Questions before Examiner.</p>

<p>In Admiralty. Libel for demurrage.</p>

<p>Removal oe Causes—Federal Jurisdiction—Amount Involved.</p> <p>A cause removed from the state court will be remanded on the ground that the amount involved is only $1,900, and therefore not within the jurisdiction of the federal circuit court, though the complaint, in form, states two causes of action, the prayer as to each of which is for a judgment for $1,900; each being for nondelivery of a telegram; the only difference therein being that one is addressed to “Mrs. P.,” and the other to “Mr. P.”; and it appearing that the complaint,, in form, stated two causes of action because plaintiffs’ counsel was uncertain, from the chirography, as to which of the two persons the telegram was addressed.'</p>

<p>1. Shipping—Injuries to Seaman—Treatment—Negligence op Master-Evidence.</p> <p>On a libel against a vessel for failure .to provide proper treatment for an injured seaman, evidence held insufficient to show, that the master was negligent in diagnosing or treating the injury or in failing to put into port in order to afford libelant surgical assistance.</p> <p>2. Same—Expenses op Maintenance.</p> <p>Where libelant sustained an injury while in the service of a ship on which he was engaged as a seaman, he was entitled to recover from it the expenses of his maintenance and cure at least during the continuance of the voyage.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Seamen, §§ 39-43, 186-188.]</p>

<p>Remanding Case to the State Court.</p>

<p>1. Accident Insurance—Death by Blood Poisoning. .</p> <p>• Where insured died from blood poisoning frpm infection received in m altercation with .another, • his death was the direct result of bodily injuries sustained through external, violent, and accidental means, within the terms of an accident policy.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent Dig. Insurance, §§ 1166, 1170, 1171.</p> <p>Risks and causes of loss, see note to National Ace. Soc. v. Dolph, 38 C. C. A. 3.]</p> <p>2. Same—Breach of the Peace.</p> <p>Where deceased, and another engaged in a mere fist fight, neither being armed, and there was no reason to expect that the encounter would result in bodily harm. to either party, the fact that the injury which caused deceased’s death was the result of a breach of the peace did not preclude a recovery on an accident policy containing no special clause vitiating it on that ground.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1149, 1182, 1183.]</p>

<p>R a íleo ad Companies—Lease of Road—Liability of Lessob fob Lessee’s Negligence.</p> <p>Rev. St. Ohio 1892, § 3305, declaring a railroad company leasing its road jointly liable with the lessee on all rights of action accruing to any one for any negligence or- default growing out of the operation or maintenance of the road, or in any wise connected therewith, applies only to liabilities growing out of duties as a carrier, and not out of duties as an employer.</p> <p>[Ed. Note.—For cases in point, see voL 41, Cent Dig. Railroads, §§ 802-816.]</p>

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

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

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

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

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

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

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

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

<p>Appeal from tne Cifctíit Court óí the United States for tlié Southern District of New. York,</p>

the Circuit Couft of the United States for the Southern District of New York. This cause comes here upon appeal from a decision of the .Circuit Court,- Southern District of New-York (132 Fed. .1007), reversing a decision of- the Board of General Appraisers (G. A. 5,347; T. D. 24,460), which had affirmed the classification by the collector of the port of- New York of certain importations under Tariff Act. July 24, 1897, c. 11, 30 Stat 151 [U. S. Comp. St 1901, p. 1626].

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

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

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

<p>In Bankruptcy.</p>