Volume 138 — Federal Reporter

<p>Federal Courts — Action Against Executors — Accounting—Jurisdiction.</p> <p>Where the surviving partner of a firm was one of the executors of the estate of his deceased partner, the settlement of which was pending in the probate court of the state, which had full jurisdiction in equity to compel an accounting between the executors and by the surviving partner of his deceased partner’s interest in the firm, a bill by a distributee under the will to compel an accounting by such surviving partner and a payment of the amount found due to the executors for distribution was a suit looking to the mere administration of the estate, and was not, therefore, maintainable in the federal courts.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 796, 1410; vol. 22, Cent. Dig. Executors and Administrators, § 2004.]</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>This is an action to recover damages for personal injuries, in which the jury returned a verdict in favor of the defendant in error, the plaintiff below, for the sum of $3,500. On motion for new trial, the court conditioned the overruling thereof on the remission of $1,000 of the amount, which was-accepted by the defendant in error. To reverse the judgment entered thereon, the defendant below prosecutes this writ of error.</p> <p>The plaintiff in error, a corporation, on the 25th day of August, 1902, was-engaged in operating a bakery in the city of Minneapolis, Minn. Its specialty was the manufacture of what is known as “cookies.” The building in which the work was conducted consisted of six stories. The cookies were prepared on the sixth floor, and carried to the second floor in pans by means-of what is called a “conveyor,” operated by steam. These pans were conducted to a level with the tables on the second floor, and by rollers carried along the table to the further end, where the pans were received by a man. who lifted and turned them edgewise on a carrier moving about 2% feet above the table, nearly back to the other end of the same, where such pans, after being emptied, were returned again to the sixth floor. This conveying was done by two endless chains, about three feet apart, moving perpendicularly from the sixth floor down to and around a shaft or revolving rod, situated, approximately to the center line of said receiving tables on the second floor near one end and parallel with the table. Said pans rested on dogs or brackets attached to the conveyor. There were several tables on said second floor, about 20 feet long and 4 feet wide, and 2 feet 10 inches from the floor. There was a trough, circular shaped at the bottom, extending along the center line of the table, into which the broken cookies were thrown, as they were picked off the pans by the girls stationed at the tables doing the work. The pans of cookies as they descended the elevator came to the west end of the table, and thence were slowly carried east over the surface of the table by rollers to the east end. Eight girls, four on each side of the-table, picked the cookies from the pans and put them into a little trough, about 3% inches deep, running along on each side of the outer edge of the-table, and afterwards packed them in boxes placed on stands near by. After the cookies had thus been removed the pans would be at the east end of the table, where they were taken by another workman and put in another conveyor, which carried them back edgewise along such central line nearly to the west end of the table, where two endless chains came down from the sixth floor, passed around said shaft or roller, 16 inches above the line surface of the table, and about 26% inches from the edge of the table on either side. The endless chains which passed perpendicularly from the sixth floor around said shaft or roller were held apart by what is known as “spreaders,” which were made of strips of iron 1% inches wide and one-eighth of an inch thick. There were intervals between the spreaders of 4% feet, and the chains and spreaders ran around said shaft at the rate of about 42 feet per minute; that is, about 10 of the spreaders passed a given point each minute. At all the tables, except table No. 1, hereinafter mentioned, there was a wooden framework through which the spreaders and chains passed, situated 9% inches above the sprocket shaft. The chains and spreaders passed downwards on the north side of the rod or shaft, and passed around it and up on the south side, being carried by means of sprockets on the shaft. There was on the table a little shelf called “cartoon shelf,” running parallel with the top of the table, about 16 inches above the same, nearer the south side than the north side of the table, the north edge of which shelf was 32 inches from the north edge of the table, and about 7 inches wide. The defendant in error worked at table No. 2, about 7% feet from table No. 1. She had been so engaged for about six weeks prior to the accident in question. About 6 o’clock p. m. on August 25, 1902, she moved from table No. 2 to table No. 1, to take the place of one of the girls who dropped out. Under the direction of the lady in charge of this immediate work, she took a position on the south side of the table, and about half an hour before the accident, on her own volition, she moved around to the north side of the table to work. While so engaged, a piece of wrapping paper used in said packing fell from said shelf on the opposite side from where she stood onto one of the pans, which she picked up, and reached her arms through the open space between said endless moving chains to replace it on the shelf. In so doing, her arms were caught by one of the cross-bars between said chains, called a “spreader,” and were broken by being carried up against a wooden crosspiece. At the time of the accident the place where she stood was well lighted.</p> <p>Other facts will appear in the course of the following opinion.</p>

<p>1. Master and Servant — Railroads—Injuries to Servants — Safe Place-to Work.</p> <p>Where plaintiff’s intestate, a railroad employs, was ordered to assist at night in the removal of debris caused by a landslide from the side of a mountain into a cut, obstructing traffic, and was killed by a large rock,, which fell down the mountain side into the cut, the railroad company was not liable for failure to provide plaintiff with a safe place to work.</p> <p>2. Same — Inspection—Assumed Risk.</p> <p>The servants of the railroad company being bound without orders to-enter on the work of clearing the tracks without waiting for inspection, plaintiff’s decedent was not entitled to rely on the railroad company having made an inspection of the place, but assumed the risk of injury from the dangers incident thereto.</p> <p>[Ed. Note. — Assumption of risk incident to0 employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>3. Same — Fellow Servants.</p> <p>Where plaintiff’s intestate, his foreman, and defendant’s roadmaster were all engaged in the common employment of removing debris, caused by a landslide over the track of defendant’s railroad in a cut, such road-master and foreman were decedent’s fellow servants, for whose negligence in inspecting the mountain side for other loose rock which was liable to fall defendant was not liable.</p> <p>[Ed. Note. — Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippen v. Kimball, 31 C. O. A. 286.]</p>

Action of assumpsit for breach of contract in the failure of defendant in error to deliver to plaintiff in error, two hundred thousand pounds of copper wire. At the close of plaintiff’s evidence in the Circuit Court, on motion made by defendant’s counsel, the jury was instructed to return a verdict for the defendant; and upon this action of the court was assigned the error that constitutes the chief question in this case. The facts are stated in the opinion.

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

On appeal by defendant from the final decree of the Circuit Court for the Southern District of New York, entered January 15, 1904, which confirmed the master’s report, awarding $29,793.86 profits to the complainant, and directed the defendant to pay said amount, together with interest, costs, master’s fees and disbursements, amounting in the aggregate to $31,874.36.

<p>1. Shipping — Construction op Charter Party — Right op Cancellation.</p> <p>A provision of a charter party requiring the vessel to sail in ballast for the port of loading within 48 hours after notice from the charterer designating such port, is not a condition precedent, a breach of which entitles the charterer to cancel the contract, where there is a subsequent provision for a canceling date if the vessel shall not have arrived at the port of loading, and she arrives within the time so fixed.</p> <p>2. Same.</p> <p>A vessel, then at Venice, was chartered “for a voyage from Ship Island or Pensacola, charterer’s option, to Montevideo, * * * orders on signing B/L. Loading port to be named before vessel leaves Venice, but vessel to sail 48 hours after orders are given.” Held that, in view of the situation of the parties when the charter was made, and of other provisions therein for dispatch, and fixing a canceling date if the vessel should not have arrived at port of loading, the clause requiring the vessel to “sail 48 hours after orders are given” applied to the orders given after the vessel was loaded, and not to the time she was required to sail from Venice after the naming of the port of loading.</p>

<p>Bankruptcy — Jury Trial on Involuntary Petition — Review.</p> <p>Proceedings on a trial by jury of the issues joined on a petition in Involuntary bankruptcy are not subject to review by appeal, but only on writ of error.</p>

Writ of error by the plaintiff in the court below to review a judgment entered upon a verdict directed by the court in an action brought to recover for injuries received at a highway crossing. The trial judge directed a verdict for the defendant upon the ground that the evidence established contributory negligence on the part of the plaintiff, and refused the request on behalf of the plaintiff to submit that issue to the jury. Error is assigned of that ruling.

<p>1. Contracts — Action for Breach — Questions for Jury.</p> <p>An issue as to whether certain bronze frames used by defendant In the construction of a yacht for plaintiff, and which proved to be brittle and unfit for the use to which they were put, were in compliance with the contract, which required all material to be “the best procurable of its kind in every respect,” was properly submitted to the jury where there was evidence that the manufacturers had made and supplied to others a much better quality of bronze, although there was evidence tending to show that the bronze used was the best procurable at the time.</p> <p>2. Same — Breach of Implied Warranty.</p> <p>One who contracted, in the building of a yacht, to use material the best procurable of its kind, does not fulfill the implied warranty by using reasonable efforts to procure the best, and it is no defense to an action to recover back the purchase price on the ground of its breach that he ordered the best materials, and used them in good faith in the belief that they were such.</p>

<p>In Error to the Circuit Court of the United States for the Southern District óf New York.</p> <p>Writ of error by the defendant in the court below to review a judgment rendered upon a verdict for the plaintiff.</p>

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

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

<p>1. Patents — Invention—Composition fob Lining Pulp Digestees.</p> <p>The Panzl patent, No. 644,367, for a composition of material for lining vessels used for storing or boiling corrosive liquids, intended for a lining for pulp digesters, which should be acid proof, in claim 3 describes a combination in new and specified proportions and in a new manner of well-known materials which produces a new and superior composition, and was not anticipated, and discloses invention. Claims 1 and 2 are void for lack of invention in view of the prior art, or because they fail to specify the proportions of the ingredients entering into the composition, and do not, therefore, acquaint those skilled in the art with the necessary information to enable them to practice the invention without experimenting. Claim 3 also held infringed.</p> <p>2. Same — Chemical Composition — Necessity of Specifying Peopobtions.</p> <p>A patent for a chemical composition must not only give the names of the ingredients used in making the composition, but also the proportion of each, so that the invention may be practiced by those skilled in the art without further experimentation.</p> <p>3. Same — Definition of Terms — “Chamotte.”</p> <p>The term “chamotte,” as used in the arts and in the Panzl patent, No. 644,367, as an ingredient used in making an acid-resisting composition for lining pulp digesters, denotes a species of specially pure calcined clay, which must be silicate of alumina, and is not the equivalent of crushed fire brick, used in prior preparations, which may or may not have the chemical composition and properties of chamotte.</p> <p>4. Same — Suit for Infringement — Rehearing.</p> <p>An application to reopen the case after final hearing in a suit for infringement to permit the taking of additional testimony on an issue of fact is properly denied where the evidence could have been produced on the hearing by the exercise of due diligence.</p>

<p>1. Patents — Validity—Sufficiency of Disclosure.</p> <p>When a patent contains a sufficient disclosure of the claimed invention, it will not be invalidated either by the failure of the patentee to state the causes which produce the result, or by a mistaken statement thereof.</p> <p>2. Same — Infringement—Process of Making Logwood Extract.</p> <p>The Austen patent, No. 491,972, for improvements in the art of making coloring matter from logwood, covering a process and the resulting product, which is a nonhydroscopie powder, was not anticipated, and discloses invention. Also held infringed.</p>

<p>1. Patents — Patentable Invention.</p> <p>A conception alone, although first in time, is not patentable, but must be accompanied by mechanical embodiment, which, to make the invention patentable, must itself be unanticipated.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 72.]</p> <p>2. Same — Fibeprooe Windows.</p> <p>The Voightmann patent, No. 600,186, for a fireproof window, is void for lack of patentable invention; being for an aggregation of old elements, each of which performs its old function to produce the old result.</p>

The bill is to restrain reissued letters patent, No. 11,980, issued April 8th, 1902, to Frank E. Adams, assignor to Samuel Franklin, for a machine for mounting ornamental composition directly upon circular picture frames. The original letters patent, on which the reissue was based, were No. 642,059-issued January 30th, 1900, to Francis E. Adams. Other patents cited were the following: No. 242,934, June 14, 1881, J. P. Jamison. No. 292,552, Jan. 29, 1884, P. E. Francke.

<p>Appeal and Cross-Appeal from the Circuit Court of the United ■States for the Northern Division of the Northern District of Illinois.</p> <p>Baker secured against Crane Company a decree for an injunction and an accounting, which was affirmed on appeal. Crane Co. v. Baker, 125 Bed. 1, 60 C. C. A. 138. Both parties are now appealing from the decree on accounting.</p>

<p>Patents — Infringement—Miners’ Lamp Holder.</p> <p>The Lattimore patent No. 415,720, for a lantern holder to be attached to miners’ caps, claim 1, distinctly and clearly describes the device claimed, which includes a “forwardly projecting top piece” having an eye for the inner end of the lantern hook, and cannot be enlarged by construction. It is not infringed by a device in which the front piece stands out from the front of the cap, and the top piece, having the eye for the lantern hook, projects backwardly.</p>

<p>1. Patents — Invention and Infringement — Coffeepots.</p> <p>The Lewis patent, No. 650,129, for a drip-coffeepot, embodies a combination which, although of old elements, is new, and discloses patentable invention, in that it accomplishes an old result in a more facile, economical, and efficient way; its chief merit being in its simplicity, its cheapness of construction, and ease of operation. While not for a pioneer invention, and therefore not entitled to a liberal interpretation of its claims, it is entitled to a reasonable range of equivalents; and infringement cannot be avoided by a mere colorable modification of some of its elements, not essentially varying its principles or mode of operation. As so construed, held infringed by the device of the Baker patents, Nos. 710,132 and 710,133.</p> <p>2. Same — Infringement—Combination.</p> <p>Infringement of a patent for a combination is not avoided by omitting one element of the combination, where such element is essential to the successful operation of the alleged infringing device, and it is intended that it or its equivalent shall be supplied by users.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 387.]</p>

<p>On Motion to Attach for Contempt.</p>

<p>1. Patents — Infringement—Reconstruction or Repair.</p> <p>The rule as to. the right of a purchaser of a patented combination to-supply parts, of his own authority, from a generalization of the authorities, would seem to be that he may replace an element of the combination (1) when its consumption was the very purpose of the device; (2) when its use upon external objects must work its early destruction; (3)-when it was intended to be destroyed and was destroyed after a single-use, and became waste material; (4) when, in the arrangement of an element, not the chief element, it is so fashioned and placed as to be specially subjected to external forces that make it peculiarly liable to-breakage and wear ; (5) when it is not the chief part of the combination; (6) when it is an ordinary working part, like a cam in actuating machinery, although specially adapted for the proper operation of the device, and even though it is the most essential element in the combination. But an element may not be replaced when it is the vital element of the-combination in fact, and in regard to patentability, especially when it is-not intended to be of short life by the action of external forces thereon.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. -Patents, § 399J</p> <p>3. Same — Reconstruction of Vital Element of Combination.</p> <p>Complainant was the owner of a patent for a steam generator, consisting of an upright cylinder or shell provided with tiers of generating: tubes, of peculiar shape, which constituted the vital and patentable element of the structure. Such tubes constituted about one-third in value of the completed structure, and were ordinarily subject to injury only from the action of the water, the same as the shell, though perhaps to a greater extent. Defendant, under contracts with purchasers of the patented generators, practically refitted the same with new tubes; some of the old ones having become useless. Held, that such refitting was not an authorized repairing of the patented structure, but a reconstruction, which constituted an infringement of the patent.</p> <p>3. Same — Steam Generator.</p> <p>The Morrin patent, No. 463,307, for a steam generator, held infringed by defendant by a reconstruction of the tubes, which constitute the pat- . entable element of the combination, in generators which had been sold under license from the patentee.</p>

<p>1. Patents — Suit foe Infringement — Preliminary Injunction.</p> <p>The fact that a patent has not been adjudicated is not sufficient ground for refusing a preliminary injunction against its infringement, where that is clear, unless there is a substantial question as to its validity.</p> <p>2. Same.</p> <p>The Snyder patent, No. 773,234, for a vibratile apparatus, held valid and infringed as to claim 1, on a motion for preliminary injunction.</p>

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

Suit for the alleged infringement of a design patent for reflectors of artificial light No. 32,685, dated May 22, 1900, and granted to Otis A. Mygatt. The defendants’ counsel in his points says: “The defendants deny the validity of the patent, and they deny infringement. No other question presented by the’pleadings is of importance at this stage of the case.”

This is a suit in equity for the infringement of design patent No. 26,623, of February 9, 1897, “Design for a Chair.” The defenses are noninfringement, anticipation, and want of invention in view of the prior art.

<p>Action in equity brought by the Australian Knitting Company against Robert W. Gormly, a manufacturer of knitting machinery, for alleged infringement of United States letters patent No. 424,314, granted March 25, 1890, to Peter S. Kinsey, assignor to the complainant, for burr-wheels for knitting machines. These burr-wheels are adapted for knitting machines adapted to produce figured or pattern knitting. In the specifications the patentee says:</p> <p>“Burr-wheels of the kind referred to have been previously made which comprised blades set obliquely on the periphery of the burr-wheel hub, and so secured upon the hub that spaces are left between the blades. After the blades have been secured upon the hub, certain of them have had the spaces between them filled up by means of solder, lead, or similar soft metal run in in a molten state, where it becomes a fixture, and secures together the blades between which it is run. Burr-wheels thus constructed, when once the spaces between the blades have been filled in by the soft metal, cannot be used for any pattern other than that for which they were originally constructed, for which reason it has been necessary to construct separate burr-wheels for each separate pattern which was desired. By my improvement I obviate this difficulty, for I so construct certain of the burr-wheel blades that their positions may be changed in any desired manner to produce any given pattern, thus making it possible to produce a great number of patterns with the same burr-wheel. The invention consists in making certain of the blades of which a burr-wheel is composed with enlargements upon one side thereof, which enlargements form part of, or are integral with, the blades upon which they are formed, and which enlargements are of such thickness that when the blades are arranged upon the burr-wheel hub the enlargements will substantially fill the spaces between the blades upon which they are formed and the next adjacent blades upon one side. It is, of course, to be understood that the object of filling certain of the spaces between the burr-wheel blades is that, when the knitting machine cylinder containing the needles is revolving, such of the needles as come in contact with the closed spaces of the burr-wheel will have their barbs pressed, in, so that a stitch will be east off. Such of the needles', on the contrary, as come opposite the-open spaces between the burr-wheel blades will mesh into such spaces without pressing in the barbs, and from such needles the stitches will not be cast off.”</p> <p>The claim is as follows:</p> <p>“The combination, with a hub having obliquely-extended slots upon its periphery and provided with a recess in its upper face, of blades made to enter said peripheral slots and said recess in the hub top, certain of said blades each having thickened portions or enlargements upon one of its sides, and a cap constructed to be passed down over the hub and upper ends of the blades and secured to the hub, substantially in the manner as and for the purposes set forth.”</p> <p>About April, 1900, the complainant here learned, as he claims, that the patent in question was being used without license by the manufacturers of knitted goods, and that the alleged infringing burrs came from Tompkins Bros., of Tróy, N. Y. The defendant, Robert W. Gormly, was then employed by Tompkins Bros. The complainant caused notices to be sent these manufacturers, calling attention to the patent in suit. It is alleged that notice was given Tompkins Bros, and the present defendant. Gormly had referred the question of the validity of the patent in question to Mosher & Curtis, and that firm had given an opinion that the patent in suit here was invalid. Their communication said:</p> <p>“Positively, the only thing that Kinsey did was to take one of Swits Conde’s thickened blades and insert it in a Kavanaugh burr, which involved no invention, and was clearly unpatentable, and it may be said with absolute certainty that no court would ever sustain such a patent.”</p> <p>Mosher & Curtis also informed Mr. Preble by letter that the communication of the complainant to Mr. Gormly had been handed to them for reply. They said:</p> <p>“We will look the matter up and report to you the result of our investigation as soon as we can conveniently do so.”</p> <p>May 26, 1900, Mosher & Curtis informed Mr. Preble that they had examined the patent now in suit, and had advised their Client, Mr. Gormly, that the-blades manufactured by him did not infringe the patent, in view of patents to Kavanaugh, No. 117,299, July 25, 1871, and Conde, No. 240,008, April 12, 1881. This letter also contained this statement:</p> <p>“Mr. Gormly instructs us to inform you that if your clients believe that he is infringing upon any of their rights, he is able and willing to respond' to any action they may bring against him for redress; and that he will use every lawful means to prevent interference with or intimidation of his customers.”</p> <p>June 9, 1900, Mosher & Curtis wrote Mr. Preble that they understood he had sent threatening letters to the users of Mr. Gormly’s patented blade for burr-wheels subsequent to the letter of May 26th, and they say in reference to that letter, “in which we clearly pointed out that the Kinsey patent is void.” They further, say:</p> <p>“For the purpose of removing every possible excuse for such methods of doing business we hereby notify you that we are authorized to and will appear for Mr. Gormly in any action you may desire to bring against him to test the validity of the Kinsey patent, without putting you to the expense or trouble .of serving a subpoena, and we will do everything in our power to expedite matters so that you may be able to have the validity of the Kinsey patent adjudicated in the shortest time possiblé.”</p> <p>June 12, 1900, Mosher & Curtis wrote Mr. Preble, referring to his statement that he had no reason to doubt the validity of the Kinsey patent, and expected to bring suit, etc., and Mosher & Curtis say:</p> <p>“Mr. Gormly has himself, made all the blades which have been manufactured under his patent, the blades being put on the market by Tompkins-Bros. Mr. Gormly is perfectly responsible and abundantly able to answer for any damages sustained by your client. As we wrote you before, we will appear for Mr. Gormly on receipt of copy of your complaint, waiving the formality of service by subpoena.”</p> <p>In the fall of 1900 the Australian Knitting Company, of which said Peter S. Kinsey was president, brought action for the infringement of the patent in question against Wright’s Health Underwear Company, a corporation organized under the laws of the state of New Jersey. This action was put at issue by the defendant, and among the defenses it was set forth that the alleged invention covered by the Kinsey patent was in public use and on sale in this country by Kinsey and others for more than two years before the application for the patent, and that the said invention for more than two years prior to the application for the patent had been shown and described in various printed publications and patents — especially the Kavanaugh patent and the Swits Conde patent — and that such alleged improvements and inventions had been invented, known, and used by various parties named for more than two years prior to the application for a patent, and also set up the defense that the said letters patent sued upon were invalid for want of invention and for want of patentable ’novelty. The issues formed were tried before Hon. Hoyt H. Wheeler in the Southern District of New York, and his decision was filed February 19, 1902, in which he found:</p> <p>“The defenses relied upon in the brief and argument are principally patent No. 240,008, dated April 12, 1881, and granted to Swits Conde, for a burr for knitting machine's, which is said to show such a cam on some of the blades for that purpose; lack of adequate proof of infringement; and laches. The Conde patent is said to show some blades with such cams upon them by the drawings. There are drawings of blades which might, if set out by corresponding description, be understood to show such cams upon, and as a part of," them. But the description says. ‘One of said burrs being of the ordinary construction and filling every needle with thread, while the other has a certain number of the interstices between its thread-lifting teeth or wings filled with a block which presses against and closes the beards of certain needles, and thus causes its thread to skip over the said needles, carrying the single thread applied thereto by the other aforesaid burr;’ and the claims include ‘the filling-block, c, arranged between the said two series of wings.’ What are shown in the description and claim are interstices filled with blocks between, not a part of, the blades or wings. What the patent shows is what it sets forth as a whole; and what appears on a drawing, that might be what is described or something else, would well be taken to be what is described, especially as that was a thing well known. This invention cannot, therefore, be justly said to be described or shown in that patent. The date of use shown by the parol evidence is not sufficiently clear as having been before Kinsey’s invention to overthrow a patent, and appears to have been properly omitted from the defendant’s points.”</p> <p>An interlocutory decree was entered March 1, 1902, in pursuance of that decision. An appeal was taken from such interlocutory decree, and same was affirmed, the court saying:</p> <p>“We are convinced that the proof fails to show prior use beyond reasonable doubt. The defense of laches has not been clearly established. It depends largely for its support upon inference and conjecture. The facts aré capable of a construction consistent with due diligence on the part of the appellee. The stipulation entered into by counsel for appellant in connection with the other evidence in the case, clearly establishes infringement The only question which we regard as at all serious arises upon the Conde patent, but after careful consideration, we are satisfied with the interpretation of the patent by the circuit judge. Figs. 4 and 5 of the drawings, considered alone, may fairly be said to show the enlargement or cam attached to the blade. But there is nothing in the description to support such an interpretation. In fact, the language there used would seem to indicate that the enlargements used were the well-known filling blocks of the prior art. The claim, too, is in accord with this interpretation, as it speaks of the blocks as separate and distinct structures, namely, the ‘filling-blocks, c, arranged between the said two series of wings.’ ”</p> <p>Thereupon the defendant in that suit, Wright’s Health Underwear Company, petitioned for an order recalling the mandate of the court for modification, or for an order granting leave to the Circuit Court to grant a rehearing and consider newly discovered evidence. The defendant set forth in affidavits the nature of the newly discovered evidence, and there were used on the motion the affidavits of George A. Mosher, Frank C. Curtis, David C. Philip, James A. Shufelt, and Thomas D. White. Thereupon the Circuit Court of Appeals denied the motion to recall the mandate and amend the instructions to the court below so as to permit that court to order a rehearing and consider newly discovered evidence, “because it has not been satisfactorily made to appear that the defendant could not have discovered the new evidence if reasonable diligence had been exercised.” The mandate was then filed in the Circuit Court and the case went to an accounting before a master. No final decree has yet been granted. Soon thereafter this action was brought against Robert W. Gormly. The defendant in his answer sets up and relies upon the following alleged new defenses: (1) The model Conde burr 1881, by itself, is a prior public exhibition, and disclosure of the alleged invention; (2) prior use in the Conde Mill, in connection with the Conde burr 1881, on exhibition in the Patent Office; (3) prior publication in the Conde patent in connection with the Conde burr 1881, on exhibition in the Patent Office; (4) prior use in the Pioneer Mill; (5) inoperativeness in the construction shown and described in the patent in suit. The complainant insists that the defendant here, Robert W. Gormly, took such part in the defense of the suit against Wright’s Health Underwear Company, and was so connected therewith, that he is bound by the interlocutory decree entered in that action, and is estopped from making these defenses in this suit. Attention will be called later to just what occurred, and more particularly to the nature of the evidence adduced, on the trial of this action that was not before the court in the suit against the Wright’s Health Underwear Company.</p>

In Equity. Suits for infringement of letters patent No. 450,592, granted to John H. Schulte April 14, 1891, and letters patent Nos. 436,619 and 452,268, granted respectively September 22, 1890, and May 12, 1891, to Josiah B. Gathright, all relating to column stop mechanism for typewriting machines. On final hearing.

In Equity. This is a suit in equity brought in the first instance by Mary V. Cortelyou and another, administrators, etc., and Neostyle Company against Charles Eneu Johnson & Co., for the alleged infringement of letters patent No. 584,787, granted June 22, 1897, to Lowe and Cortelyou, covering the machine known as the “rotary neostyle.” The administrators aforesaid, at the time the action was brought, owned the legal title to the patent, and the Neostyle Company was licensed…

This is a suit in equity to restrain the alleged infringement by defendants of United States letters patent No. 607,433, granted to the complainant July 19, 1898, as assignee of Henry B. Haigh, and also for an accounting. This patent relates to the construction of milk cans — more particularly the upper or neck portion. The application was filed by Haigh on the 22d day of October, 1897.

<p>In Equity.</p> <p>Suit in equity for alleged infringement of United States letters patent No. 645,871, dated March 20, 1900, application filed October 3, 1894, granted to United Shirt & Collar Company of Troy, N. Y., assignee of James K. P. Pine, for a “folding machine.” The machine is used for the folding or inturning of the edges of collars, cuffs, and like articles, particularly in the manufacture of shirts, collars, and cuffs. The complainant Reece Folding Machine Company is the sole and exclusive licensee under said patent of the United Shirt & Collar Company. The defendants are extensive manufacturers of folding machines. The suit was commenced October 14, 1902. The defenses relied on are anticipation, lack of novelty and invention, that the patentee is not the sole inventor, and noninfringement.</p>

<p>Patents — Anticipation—Swivel.</p> <p>The Robinson patent, No. 452,320, for an improved swivel hook, held not anticipated, valid, and infringed, and the patentee not barred from relief by laches, on a motion for preliminary injunction.</p>

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

In Admiralty. Suit for seaman’s wages by a citizen of the United States against a German vessel. The case involves questions as to the jurisdiction of the court to take cognizance against the protest of a German consul, and the right of a seaman hired in this country, who received an advance at the time of signing shipping articles, to leave the vessel before expiration of the stipulated term for which he was hired, and to claim compensation for the time of actual service.

<p>Towage — Injuey to Tow by Collision with Log — Liability of Tug.</p> <p>A tug which was engaged with another in towing four scows up the-Hudson river in the early morning held not in fault for the capsizing of one of the scows by striking some floating object, probably a partly submerged log, although the man on watch was not attending strictly to the duties of lookout; the lookout on the other tug, which was by her side, and only 30 feet away, having failed to see the object.</p>

<p>1. Contracts — Misrepresentations Inducing — Independent Investigations.</p> <p>Where defendants, who had knowledge of engineering, before contracting to construct certain waterworks went on the ground, occupied a month in making investigations, preliminary surveys, etc., and were afforded every opportunity to acquire knowledge of the exact conditions, they were not entitled to defend an action for breach of the contract on the ground that they were induced to make it by plaintiffs’ false representations.</p> <p>2. Same — Damages—Prospective Profits.</p> <p>Plaintiffs, under a contract with defendants for the construction of a water pipe line, agreed to advance $105,000, which might be increased to $110,000 in case the line cost that much, for which they were to receive one-half of the capital stock of a corporation to be formed — the par value of such half to be $300,000 — less such portion as they agreed should be given to certain others. A minute survey of the property disclosed that the scheme was not necessarily impracticable, but that its success was exceedingly doubtful; that its cost would largely exceed the estimate; and that the water obtainable was much less than was sup- • posed — whereupon defendants declined to proceed. Helé, that the profits claimed to have been lost to plaintiffs by defendants’ breach of contract were too speculative and doubtful to be allowed.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Damages, § 75.]</p> <p>3. Same — Expenditures.</p> <p>Where defendants broke their contract with plaintiffs to construct a water pipe line, plaintiffs, though not entitled to recover as damages expenses incurred in furthering the scheme prior to the execution of the contract by defendants, were entitled to recover expenses necessarily incurred thereafter, and before breach, in carrying out their portion of the agreement.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Damages, §§ 92-98.]</p> <p>4. Same — Indemnity Bonds.</p> <p>Where, as a part of the preliminary negotations for the construction of a water pipe line under a contract between plaintiffs and defendants, a bond was executed by plaintiffs to a city, in order to hold a contract for the purchase of water, on which plaintiffs became liable by defendants’ breach of the contract and refusal to construct the pipe line, plaintiffs were not entitled to recover of defendants, by reason of such bond, until they had been compelled to pay damages assessed thereon to the city.</p>

<p>At Law. On motion for new trial.</p>

<p>Bankruptcy — Assets—Recovery by Trustee — Adverse Claims.</p> <p>Where, on petition of bankrupts’ trustee to recover the balance collected on certain of the bankrupts’ assigned accounts after payment of the debt for which they were assigned, the secured creditor answered, admitting that it held a certain amount, to which it made no claim, but alleged that it had been served with notice of a further assignment thereof by the bankrupts to B., who, though notified of the bankruptcy-proceedings, took no steps to claim title to the fund before the referee, the creditor was properly ordered to pay such amount to the trustee without prejudice to B.’s right to prove his claim to the fund in the-hands of the trustee.</p>

<p>Practice — Court Rule — Notice to Surety on Bond — Service on Attorney oe Obligor.</p> <p>A bond had been given to abide by the judgment to be entered in in rem proceedings for the forfeiture of merchandise seized for violation of internal revenue laws. On a judgment of forfeiture being rendered, an order was entered for the stipulators to the bond to show cause why ' judgment should’ not be entered against them; this order being served on the attorney for the obligor on the bond, but in no way upon one of the sureties. Such service was held sufficient notice to the surety, the case being analogous to the rule of the court, under the head of “Admiralty,” that, in case of admiralty stipulations, service upon the proctor of the party binds the surety; this rule becoming applicable by virtue of the further rule that “arrangement of rules under distinct heads is not to prevent their covering every mode of procedure in the court to which they may be applicable.”</p>

<p>1. Removal of Causes — Diverse Citizenship — Defendant Improperly Joined.</p> <p>On tbe question of diversity of citizenship of the parties, within the statutes as to removal of causes, one improperly joined as a defendant is to be disregarded.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, §§ 79-81.</p> <p>Diverse citizenship 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. Railroad Companies — Lease of Road — Liability of Lessor for Lessee’s Negligence.</p> <p>Rev. St. Ohio 1892, § 3305, providing that, notwithstanding an Ohio corporation leases its railroad, it shall remain liable, as if it operated the road, and both lessor and lessee shall be jointly liable 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, relates only to the duties of a carrier, and does not make the lessor liable to an employe of the lessee injured through the lessee’s failure to perform its duties as master.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent Dig. Railroads, §§ 802-813.]</p>

<p>Shipping — Liability op Vessel — Touts op Master and Crew.</p> <p>A vessel is liable for a tortious act of her master or a member of her crew on board in her service by which another vessel is injured, although committed without the authority or knowledge of the owners.</p> <p>[Ed. Note. — Eor cases in point, see vol. 44, Cent. Dig. Shipping, § 346.],</p>

<p>1. Shipping — Right to Possession op Engine — Failure op Vessel Owner to Pat Purchase Price.</p> <p>The owner of a yacht who had a gas engine installed therein to be tried for 30 days, and then either accepted and paid for or returned, and who, although not accepting the engine or paying anything for it, retained and used it for a year, is not entitled to recover possession of it from the builder, to whom it was returned for repairs, without paying the purchase price.</p> <p>2. Same — Lien for Equipment — Surrender of Possession to Owner.</p> <p>Respondents, who equipped libelant’s yacht with an engine, lost the right to a common-law lien on the vessel for the price by surrendering possession to libelant without payment; and such right was not revived by a subsequent delivery of the vessel to respondents for repairs, although they were entitled to such lien for the value of the repairs then made.</p>

<p>1. Mines — Public Lands — State Laws.</p> <p>Under Rev. St. U. S. § 2338 [U. S. Comp. St. 1901, p. 1436], providing that, as a condition of sale of mineral lands, the local Legislature of any state or territory may provide rules for working mines, involving ease-0 ments, drainage, and other necessary means to their complete development, the state of Idaho was authorized to pass Act March 15, 1899 (5 Sess. Laws, p. 442), granting to an owner of ground, with a mining tunnel located thereon, the right to run the same through the claims of other parties, and providing for the payment of all “actual damages or injury-done to the owner of the claims crossed” by such tunnel.</p> <p>2. Same — Eminent Domain — Mining Claims — Tunnel Rights — Public Use.</p> <p>Rev. St. Idaho 1887, § 5210, as amended by Act March 3, 1903 (7 Sess. Laws, p. 203), declaring that tunnels and other means of working mines are declared to be public uses, within the statutes relating to eminent domain, and Act March 15, 1899 (5 Sess. Laws, p. 442), granting to any owner of ground with a tunnel located thereon the right to run the same through the claims of others on payment of all actual damages or injury done to the owner of the claims crossed by the tunnel, are not unconstitutional, as a deprivation of property without due process of law, in violation of the fourteenth amendment of the federal Constitution, in that the construction of a mining tunnel is in fact a private, and not a public, use.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 886; vol. 18, Cent. Dig. Eminent Domain, § 79.]</p>

<p>In Bankruptcy. On certificate from referee sur exceptions to proof of debt of Peter McEean.</p>

<p>Federal Courts — Preliminary Injunction — Jurisdiction.</p> <p>Where, in a suit to restrain the enforcement of certain city ordinances providing for the examination and licensing of automobile operators, on the ground that the city had no power from the state to pass the same, the court was not satisfied that it had jurisdiction of the subject-matter of the suit, a motion for preliminary injunction would be denied.</p>

<p>1. Bankruptcy — Statutes—Construction—Title oe Trustee.</p> <p>Bankr. Act July 1, 1898, c. 541, § 67a, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], providing that claims which, lor want of record or for other reasons, would not have been valid liens as against the claims of creditors of the bankrupt, shall not be liens against his estate, states an exception to the rule that a bankrupt’s trustee takes no better title than the bankrupt possessed, and this because it forbids the holder of an instrument who might have had a lien if he had recorded it before bankruptcy to acquire such a lien by recording it thereafter.</p> <p>2. Same — Mortgages.</p> <p>Under the Pennsylvania law declaring that a mortgage on real estate creates a mere lien to secure the debt, and does not convey an estate in the land remaining in the mortgagor, where the mortgagee failed to record his mortgage, given for the purchase price of real estate, until after the mortgagor became bankrupt, he was not entitled to payment in full from the proceeds of the mortgaged property as against general creditors.</p>

<p>1. Bankruptcy — Liens—Proceedings in State Courts.</p> <p>A deed of trust executed by a bankrupt to his wife was recorded less than four months before the institution of a suit against him in the state court, but more than four months before the institution of bankruptcy proceedings against him, which were instituted within four months after the bringing of the said suit. In that case no attempt was made by the state court to take actual possession of the property conveyed, but all parties interested, including the holder of the legal title to the land conveyed, became parties to the bankruptcy proceedings, proved their debts, and submitted to a sale of the land free from liens, and the fund arising therefrom was paid into the court of bankruptcy for distribution. Held, that the petitioning creditors were not entitled to have such fund distributed according to Code W. Va. 1899, c. 74, § 2, declaring that every transfer by an insolvent debtor attempting to prefer any creditor shall be void as to such preference, and that all the property so attempted to be transferred shall be applied and paid pro rata on all debts owed by the debtor at the time of the transfer.</p> <p>2. Same — State Laws — Construction—^Preferences.</p> <p>Code W. Va. 1899, c. 74, § 2, provides that every transfer made by an insolvent attempting to prefer any creditor or to secure such a creditor for a debt to the exclusion or prejudice of any other creditor, shall be void as to such preference or security, but shall be for the benefit of all creditors of the debtor, and the property so attempted to be transferred or charged shall be applied and paid pro rata on all the debts owed by the debtor at the time such transfer or charge Is made, and that a suit to avoid the same shall be in behalf of all creditors “existing” at the time of the transfer, but that its benefit will not be extended to existing creditors unless they agree to contribute to the costs, etc. Held, that such act does not provide for the “vacation” of a preference, but secures a preference to a class of creditors, and hence a suit brought to enforce the same within four months of the filing of the bankruptcy petition was void as a proceeding for the imposition of a lien within Bankr. Act July 1, 1898, c. 541, § 67, cl. “f,” 30 Stat. 564 [ü. S. Comp. St. 1901, p. 3450].</p> <p>8. Same — Bona Fide Transfers — Dower.</p> <p>Where a bankrupt being indebted to his wife for money loaned agreed by parol to execute a deed of trust to her on certain land to secure the debt, and more than four months before the filing of a bankruptcy petition against him he in fact executed a second deed of trust on the land to her in consideration of her surrendering her contingent right of dower in the land to the extent of $12,500 of its value by signing the first deed of trust on the express condition that her debt should be secured by a second deed, and there was no evidence on which to base a finding as to the value of such dower right, her deed would be sustained as a valid lien to the amount secured thereby.</p> <p>4, Same — Taxes—Payment—Evidence.</p> <p>Where a bankrupt was a deputy sheriff, and as such was required to collect all taxes assessed.against lands and personal property, etc., and his testimony that the taxes on his own property had been paid by him in money was uncontradicted, and it also appeared that the tax receipts were in the bankrupt’s possession, a finding as against the estate of the sheriff that the bankrupt had paid his taxes was justified.</p>

<p>1. Federal Courts — Habeas Corpus — Appeal—Statutes—Application.</p> <p>Act Cong. March 3, 1891, c. 517, § 5, 26 Stat. 827 [U. S. Comp. St. 1901, p. 549], providing that an appeal may be taken from any Circuit Court to the Supreme Court of the United States in any case which involves the construction or application of the Constitution of the United States, and also in any case in which the Constitution or law of the state is claimed to be in contravention of the Constitution of the United States, is applicable to appeals in habeas corpus proceedings.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1012, 1013, 1017; vol. 25, Cent. Dig. Habeas Corpus, §§ 103, 104.]</p> <p>2. Same — Leave to Appeal — Denial—Discretion.</p> <p>Where an application to a District Judge for a writ of habeas corpus alleged that petitioner’s imprisonment was in violation of the federal Constitution, the court was without discretion to refuse to allow an appeal to the Supreme Court from an order denying the writ, though it appeared that the same was without merit.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, '§§ 1012, 1013, 1017; vol. 25, Cent. Dig. Habeas Corpus, §§ 103, 104.]</p>

<p>1. Federal Courts — Jurisdiction—Dismissal oe Bill.</p> <p>Under Judiciary Act March 3, 1875, c. 137, § 5, 18 Stat. 472 [U. S. Comp. St. 1901, p. 511], declaring that if in any suit commenced in the Circuit Court it shall appear to the court’s satisfaction at any time after the suit has been brought that it does not really and substantially involve a dispute within the court’s jurisdiction, the court shall proceed no further, but shall dismiss the suit, it is the duty of the court to stop the proceedings and dismiss a bill, either on objection or on its own motion, whenever and in whatever way it appears that jurisdiction is lacking.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 897, 898.]</p> <p>2. Same.</p> <p>Where a bill in the federal courts to enjoin the business of buying and selling nontransferable railroad tickets alleged that the value of the business sought to be protected amounted to $5,000, exclusive of interest and costs, such averment would be treated as prima facie true for the purpose of sustaining the court’s jurisdiction, notwithstanding an allegation in the answer that the amount in controversy was less than $2,000, until defendant had sustained the burden of affirmatively showing that the requisite jurisdictional amount was wanting during the progress of the case.</p> <p>3. Same — Equity Pleading — Demuebeb.</p> <p>A demurrer to a plea or answer in equity is improper.</p> <p>4. Same — Exceptions.</p> <p>An exception to an answer to a bill in equity for insufficiency only raises the questions whether a sufficient discovery has been made by the defendant, whether the averments have been fully answered, and whether the averments excepted to are scandalous and impertinent, but not whether they are sufficient in point of law.</p> <p>5. Same — Injunction—Ticket Bbokees — Defense.</p> <p>Allegations in an answer to a bill to restrain the business of buying and selling nontransferable railroad tickets that complainant was a common carrier, bound to transfer every person at the same rate, and that nontransferable conditions, etc., were void; that complainant had been aware for years of the practice of ticket brokers to buy and sell such - tickets; that it had furnished tickets to them for sale; and other facts tending to show a waiver of such nontransferable provisions and laches in the enforcement thereof — were matters admissible under the issues raised by the bill, and were therefore not subject to exceptions.</p> <p>Same — Tbusts—Inteestate Commeece Act — Shebman Act — Violation.</p> <p>In a suit by a railroad company to restrain a ticket broker from buying and selling nontransferable railroad tickets, an allegation in the answer that complainant was a member of a joint passenger association composed of various competing railroad lines, made for the purpose of preventing competition in violation of the interstate commerce and Sherman acts, and'that the alleged nontransferable conditions on such tickets were uniform, and invalid under such acts, was not within the issues presented by the bill, and was therefore subject to exception; the illegality of the combination being a matter which could only be taken advantage of in a direct proceeding.</p>

<p>1. Municipal Corporations — City Ordinances — Invalidity—Jurisdiction.</p> <p>In a suit to enjoin the enforcement of city ordinances, federal jurisdiction cannot be predicated on an allegation that in passing the ordinances the city exceeded its charter powers; such question being one for the determination of the state courts.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 897.]</p> <p>2. Same — Amount in Controversy.</p> <p>Where, in a suit in a federal court to enjoin the enforcement of a municipal smoke ordinance, complainant alleged that it was a foreign corporation, and that the amount involved was largely in excess of $2,000, exclusive of interests and costs, the bill sufficiently showed jurisdiction of the federal courts.</p> <p>[Ed. Note. — Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer y. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p> <p>3. Same — Equitable Jurisdiction — Multiplicity op Suits.</p> <p>Where a bill to enjoin enforcement of an alleged illegal municipal smoke ordinance, providing a fine for each separate violation, alleged that it was filed on behalf of complainant and all others similarly situated, and charged that not only was complainant harassed by a multiplicity of suits, but that more suits were threatened by defendant city for violation of the ordinance; that there were a large number of manufacturing plants in the city of Chicago similarly situated with complainant, and similarly affected; that the ordinance was void, and that a compliance therewith would work irreparable injury and loss of property- — a cause of action for equitable relief was presented; and this though a decree restraining further prosecutions under the ordinance would incidentally interfere with criminal proceedings in the state courts.</p> <p>4. Same — Proceedings in State Courts — Injunction.</p> <p>Rev. St. U. S. § 720 [U. S. Comp. St. 1901, p. 581], providing that federal courts shall not enjoin proceedings in state courts, does not limit the power of the federal court to restrain parties of whom it has jurisdiction from instituting proceedings in any court.</p> <p>[Ed. Note. — Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p> <p>5. Same — Nuisance—Power to Declare.</p> <p>Rev. St. 111. art. 5, c. 24, par. 75 (Hurd’s Rev. St. 1903, p. 294), providing that a city council in cities shall have the power to declare what shall be a nuisance, to abate the same, and to impose fines on parties who may create, continue, or suffer a nuisance to exist, authorized the Chicago city council to pass Ordinance March 23, 1903, § 10, declaring the emission of dense smoke from the stack of any boat, locomotive, or chimney anywhere within the city, with certain exceptions, to be a public nuisance.</p> <p>6. Same — Uniform Operation.</p> <p>Chicago City Ordinance March 23, 1903, § 10, declares the emission of dense smoke a public nuisance, and prohibits such emission for more than three minutes, or, in case fire boxes are being cleaned or new fires started, for six minutes, in any hour of the day or night, but declares that no prosecution shall be had against plants installed prior to the passage of the ordinance until the expiration of a year, in order to permit the owner to rebuild or re-equip the same, provided he commences his plans to do so at once. Geld, that such ordinance was not unconstitutional, in that it did not operate equally on a manufacturer maintaining a chimney serving only one' fire box, and on complainant, who maintained two chimneys, one serving 16 fire boxes, and the other 7; it not appearing that complainant, by some alterations in its plant, could not comply with the ordinance.</p>

<p>Shipping — Obstruction op Slip by Line — Negligence.</p> <p>A steamship bad been moored in one side of a slip for three days, during which time the bulkhead at the inner end of the slip had been occupied each night by a small passenger steamer' making regular daily trips. On the third day the ship ran a hawser across the slip, making it fast to the pier on the other side, a few feet above the water. When the-steamer came in about sunset no notice of the presence of the line was given her until she was within 100 feet, when she was shouted to from the ship and reversed, but struck the hawser and was injured before she lost headway. Meld, that the ship was negligent in not placing a light upon the hawser or otherwise notifying the steamer of its presence, and was liable for the damage caused; that the smaller vessel was not in fault either for excessive speed or because she had no lookout, it not appearing that one could have seen the obstruction better than the master, who was at the wheel in the pilot house 12 feet from the stem.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 96-102.)</p>

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

In Equity. Suits to enjoin collection of taxes. Until the legislation complained of in these cases, railroad corporations, express companies, ear loaning companies, etc., were taxed in the state of Michigan specifically upon their gross earnings.

<p>Taxation of Railroads — Validity of Assessment — Michigan Statute.</p> <p>Pub. Acts Mich. 1901, p. 241, No. 173, § 8, providing for the assessment and taxation of the property of railroad corporations by a state board of assessment, requires such board to prepare an assessment roll by December 15th, and thereafter to meet as a board of review, and continue in session for so long a period as may be necessary, not later than the 15th day of January following, during which time any company or person interested may appear before it and be heard. It further provides that on such application, or on its own motion, the board may correct the assessment of any company in such manner as, in its judgment, will make the valuation just and equal, and that such valuation shall be the final one on which the tax shall be levied. During such session of the board complainant appeared, and was heard on an application to reduce its assessment. Subsequently the board increased its assessment, and extended the same as required by the statute. Held that, in the absence of any requirement therefor in the statute, complainant was not entitled to notice of such action of the board, being given no right to a rehearing, and that'the validity of the final assessment was not affected by the failure to give such notice.</p>

<p>In Equity. Suit to enjoin collection of taxes.</p>

In Equity. Suit to enjoin collection of taxes. In this case, in addition to the facts stated in the opinion in the Michigan Railroad Tax Cases (just decided) 138 Fed. 223, it appears that the charter of the Detroit & Pontiac Railroad Company was granted by the territorial council of the territory of Michigan on March 7, 1834, under which a railroad company was organized, and a railroad built from Detroit to Pontiac, and put in operation in the fall of 1844.

On Motion to Dismiss for Want of Jurisdiction. Plaintiff brought suit in assumpsit to recover of the defendant certain sums, including consequential and exemplary damages, alleged to have been occasioned by defendant’s action, as chief justice of the Supreme Court of Pennsylvania, in remitting a case to the superior court. A motion to dismiss the suit was filed on the grounds (1) that the circuit court had no jurisdiction; and (2) the alleged cause of action was frivolous.

<p>In Admiralty. On report of commissioner.</p>

Writ of error by the defendant in the court below to review a judgment for the plaintiff entered upon the verdict of a jury in an action for malicious prosecution.

<p>1. Trespass — Injury to Mines — Equity Jurisdiction.</p> <p>Complainant, after forfeiture of a mining lease, filed a bill to cancel the lease as a cloud on his title, to establish his right of possession, and to enjoin the lessee from mining ore on the leased premises; alleging the lessee’s breach in failing to timber the drifts, subsidence of the surface, a forfeiture, a demand, and defendant’s refusal to surrender possession, and its intent to continue mining operations on the land as before. Held, that the bill was not merely one to remove a cloud on plaintiff’s title, but was sustainable as a bill to restrain a threatened add continuous injury, altering the character of the land, and tending to occasion irreparable loss and damage.</p> <p>2. Same — Extent oe Jurisdiction.</p> <p>Where a bill in equity was maintainable to enjoin the lessee of a mine from committing waste and destroying the property as a mine, though plaintiff was not in possession, the court, for the purpose of preventing a multiplicity of suits, was entitled to retain the bill for further relief,, and cancel the lease as a cloud on title, quiet the title, and determine the right of possession.</p> <p>[Ed. Note. — For eases in point, see vol. 19, Cent Dig. Equity, §§ 104-114.]</p> <p>3. Same — Forfeiture.</p> <p>Where a bill to enjoin a lessee from committing waste on a mining property, and to cancel the lease as a cloud on title, etc., alleged that complainant had declared a forfeiture of the lease, before the bill was filed, for breach of conditions, the bill was not objectionable on the ground that its purpose was to enforce a forfeiture, which could not be done in equity.</p> <p>4. Same — Waiver.</p> <p>Where the ground of forfeiture of a mining lease was the continued failure of the lessee to work the mine in a workmanlike manner, and to support the ground so that it would not cave, and the defendant’s violation of the covenants of the lease requiring such support, etc., continued up to the time a temporary injunction restraining the further operation of the mine was issued, the fact that the landlord accepted rent or royalties due under the lease after notice of forfeiture, or after suit brought to recover the property, did not constitute a waiver of the forfeiture.</p> <p>5. Same — Adequate Remedy at Law.</p> <p>In a suit by a landlord to cancel a mining lease as a cloud on his title, to establish his right of possession in the premises, and to enjoin the lessee from mining ore on the leased premises, because of its breach of the lease in operating the mine in an unworkmanlike manner, so as to cause the surface of the ground to cave, etc., the bill was not demurrable on the ground that complainant had a complete and adequate remedy at law by an action of forcible entry and detainer.</p> <p>6. Same — Appeal—Findings.</p> <p>On appeal from a decree in chancery, it will be presumed that the findings of the trial judge on conflicting evidence are correct, unless an obvious error has intervened in the application of the law, or some grave mistake has been made in the consideration of the facts.</p> <p>Hook, Circuit Judge, dissenting.</p>

This suit was brought by the United States to obtain a decree annulling 82 patents for timber lands in the state of Montana, theretofore issued under the act of Congress of June 3, 1878, c. 151, 20 Stat. 89, as amended August 4, 1892, c. 375, 27 Stat. 348 [U. S. Comp. St. 1901, p. 1545], and certain incidental relief.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p> <p>These two causes were heard together. They arose out of a collision ber tween the scow Delaware, owned by the contracting company, in tow of the Booth, and the scow No. 20, in tow of the Bee, the last-named tug and tow being owned by the B. G. Packard Company. A decree was entered in the first suit in favor of the contracting company against both tugs for $1,983.66; both tugs appealed. In the second suit decree was entered in favor of No. 20 against the Booth for one-half damages, with interest and costs (to wit, $1,-684.95); both sides appealed. The cause is reported below. 127 Fed. 453.</p>

<p>1. Bill of Exceptions — Certification—Rules—Failure to Comply.</p> <p>Where the trial court settled a bill of exceptions and certified to its correctness, though it was not filed within the time, nor served as required by Cir. Ct Rules 23, 26, it would be presumed on appeal that the court relaxed the rules for some good reason, and hence a motion to strike the bill would be denied.</p> <p>2. Municipal Corporations — Streets—Change of Grade — Damages—Benefits.</p> <p>Under Laws Wash. 1893, p. 194, c. 84, § 15, providing that when an ordinance authorizing a change of street grade does not provide for any assessment in whole or in part on property benefited, the compensation for land or property taken, and in all cases the damages found in respect to land or property not taken, shall be ascertained over and above any local and special benefit arising from such proposed improvement, etc., any local or special benefit that the particular property in question will derive by reason of the proposed improvement should be deducted from any damages it would sustain, and only the excess of damage be allowed to the owner.</p> <p>[Ed. Note. — For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 949-951.]</p> <p>3. Same — Benefits to Lot Apart from Buildings.</p> <p>In a proceeding to recover damages to property not taken by a change of street grade as authorized by Laws Wash. 1893, p. 194, c. 84, § 15, evidence as to benefits to the land part from the buildings thereon was inadmissible.</p> <p>4. Same.</p> <p>Evidence that the market value of the lot and building thereon would be greater immediately after the change of grade without any adjustment of the buildings to the grade was admissible.</p> <p>5. Same — Use of Property.</p> <p>In a proceeding to determine the amount of damages sustained to abutting property by a change of street grade, the use to which the property is devoted or for which it is suitable is a proper element to be considered in ascertaining its market value.</p> <p>6. Same — Adjustment of Property.</p> <p>In a proceeding for assessment of damages to abutting property by a change of street grade, the cost of adjusting the property, including buildings thereon, to a new grade, and damages to trees, if any, should be considered.</p> <p>[Ed. Note. — For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 938, 939, 941.]</p> <p>7. Same — Particular Use.</p> <p>Mere impairment of the use of abutting property by a change of street grade for a particular purpose would not necessarily entitle the owner to damages in case the market value of the property, including the use to which it might be devoted, would be enhanced by the improvement.</p> <p>[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §. 943.]</p>

<p>Consular Officers — Liability on Bond — Overcharge of Fees.</p> <p>The surety on the bond of a consular officer cannot be held liable for the statutory penalty incurred by the principal under Rev. St. § 1723 [U. S. Comp. St. 1901, p. 1185], for charging excessive fees, where such fees, including the excess, have been charged against him in his account, and paid to the Treasury Department.</p>

<p>1. Public Corporations — Irrigation Districts — Bonds—Bona Fide Purchasers — Notice.</p> <p>Bona fide purchasers of public corporate bonds take with notice of the law under which the bonds were issued, and cannot recover thereon if the bonds show on their face that they were not issued in conformity thereto.</p> <p>[Ed. Note. — For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1968.)</p> <p>2. Same — Defects—Signature—Date.</p> <p>Wright Act (St. Cal. 1887, p. 35, c. 34) § 15, authorized the issuance of bonds by an irrigation district pursuant to an election, payable in yearly installments after 11 years, with interest coupons attached, requiring that the bonds should be negotiable in form, signed by the president and secretary of the irrigation district, and that they should be numbered consecutively as issued, and bear date at the time of issue; that the interest coupons should also be attached to each bond, and be signed by the secretary. Bonds were prepared under this act dated December 30, 1890, the coupons containing the lithographed name of the secretary of the district in office at that time. The bonds were not delivered until 18 months after the date specified, but the date was not changed, and, the secretary whose name was lithographed on the coupons having died, the bonds were signed by his successor, who was secretary when the bonds were delivered, but the lithographed signature of the preceding secretary on the coupons was not changed. Held that, whether the bonds were treated as “issued” on the day they bore date or on the day they were delivered, they were void in the first case because they were not signed by the “then secretary,” as required by the statute, and in the second case because they were antedated, the effect of which was to make them payable within a shorter time than that provided by law.</p> <p>Gilbert, Circuit Judge, dissenting.</p>

<p>1. Federal Courts — Jurisdiction — United States Constitution — Suits against State — Interstate Commerce.</p> <p>Const. U. S. Amend. 11, prohibiting the bringing of a suit against a state by a citizen of another state, cannot be construed to nullify the power conferred on Congress to regulate the commerce among the several states, nor prevent an action to restrain a state railroad commission from enforcing an order injuriously affecting interstate commerce.</p> <p>2. Same — Injunction.</p> <p>It having been held by the Supreme Court of Mississippi that the Mississippi Railroad Commission was merely an administrative agency exercising quasi judicial powers, and that its findings were only prima facie evidence that its decision was proper, such commission was not a court within Rev. St. U. S. § 720 [U. S. Comp. St. 1901, p. 581], providing that an injunction shall not be granted by any federal court to stay proceedings in any court of a state.</p> <p>3. Same — Interstate Trains — State Regulations — Orders to Stop.</p> <p>Where complainant railroad company supplied a county seat with three south-bound trains per day, and the only objection thereto was that the equipment and time thereof was unsatisfactory, the State Railroad Commission had no power to order complainant to cause two of its fast south-bound trains, operated mainly for the transportation of interstate through business on a fast schedule in order to comply with the United States mail contract and to make close connections at destination with other roads, to stop at such station under Code Miss. 1892, §§ 3550, 4302, empowering such commission to require all passenger trains to stop for passengers at all county seats, etc.</p>

The appellant is the trustee, and the appellees are creditors, of the estate of one O. H. Johnson, who was adjudged a bankrupt on his voluntary petition.

<p>1. Executors — Mortgages—Powers—Repayment oe Indebtedness.</p> <p>Where executors applied the proceeds of a loan raised by a mortgage of real estate belonging to the testator to pay debts of the estate, the estate was bound, ip equity, to repay the amount advanced, with interest, though the executors were not authorized by the terms of the will to execute the mortgage.</p> <p>2. Same — Objections—Parties.</p> <p>Where property charged with the payment of a legacy was sold, and the proceeds paid to the legatee in partial discharge of the legacy, neither she nor a judgment creditor of residuary devisees named in the will was entitled, in the absence of fraud on the part of the executors, to object to the validity of a mortgage executed by them on land belonging to the estate without express authority in the will; all of the proceeds of such mortgage having been applied to pay debts of the estate.</p> <p>Ross, Circuit Judge, dissenting.</p>

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

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

The defendant in error (plaintiff below), after three years’ service as locomotive fireman on a Wisconsin railroad, entered defendant’s service as freight brakeman March 5, 1902, upon the division of defendant’s railroad between Carlin and Wadsworth, a distance of 256 miles. He made one trip-over that division in March; four or five in April; and from July 1st, worked steadily, except one day, until July 21st, when he was injured.

<p>Corporations — Stockholders—Liability roe Assessment.</p> <p>One who, acting as agent for the owners of stock of a corporation in which he himself had no interest, caused the same to be transferred on the books of the company to a third person, who was an employe of the company, and without interest in the stock, the actual ownership of which remained as before, did not thereby render himself liable for an assessment thereafter made by the directors, where no fraud or deception was.practiced on the company.</p>

<p>1. Indians — Sale of Improvements of Noncitizen by Sheriff — Validity.</p> <p>Act Oct. 30, 1888, of the Choctaw Nation (Laws 1894, p. 248), which directs sheriffs to advertise for sale improvements owned by noncitizens of the nation who fail to sell the same as required by the act, and to “sell the same at the appointed time to the highest Choctaw citizen bidder for cash,” does not authorize a sheriff to make a sale of such improvements on credit, and such a sale is void and conveys no right or title to the purchaser.</p> <p>2. Same — Recovery of Improvements from Intruder.</p> <p>That a defendant is an intruder in possession of improvements in the Indian Territory, in violation of the law of the Indian nation, affords no-ground for the recovery of such improvements by a plaintiff who shows no title thereto.</p>

<p>1. Patents — Infbingement—Mechanical Equivalents.</p> <p>In determining the question of infringement of a patent covering a new combination of elements the form of the several parts has but little weight; the correct rule being that parts which perform substantially the same function, in substantially the same way, and produce the same results, are mechanical equivalents.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 372-374.]</p> <p>2. Same — Infringement—Mechanical Movement.</p> <p>The Plagman patent, No. 608,220, for a mechanical movement for use in washing machines, the purpose of which is the translation of 'the continuous rotary motion of a horizontal shaft in the same direction into the reciprocating rotary motion of a vertical shaft in opposite directions, covers a new combination, and is entitled to a fairly liberal construction and application of the doctrine of equivalents, and as so construed is infringed by the device of the Martin patent, No. 736,285.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, dismissing a bill. The suit is for alleged infringement of letters patent 379,973, issued March 27,' 1888, to complainant, for bath tub, sink, or wash basin.</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 District of Massachusetts.</p>

<p>Patents — Infringement—Cab Couplers.</p> <p>The Coup patent, No. 401,775, for a car coupler, occupies a narrow field, and must be strictly limited in construction, being for an improvement on couplers of the well-known Janney type, designed to adapt the same after the coupling has been made to track curvature by means of a pivoted connection between the drawhead and drawbar which allows the drawhead to “swing freely laterally,” and, since both free and nonfree joints were known in the prior art, the patentee must be held to have adopted the former, and the patent is not infringed by a coupler in which the drawhead, while pivotally connected, does not swing freely, but has its movement restricted by side bars, and controlled by springs, which hold it normally in a central position.</p>

In Equity. Suit for infringement of letters patent No. 625,806, for operating dynamo-electric machines, granted to Edwin W. Rice, Jr., May 20, 1899; No. 661,049, for controlling end play of rotary machines, granted to Edward M. Hewlett November 6, 1900; and No. 671,287, for an end play device, granted to Alexander D. Runt April 4, 1901. On bill of complaint and plea.

<p>Judgment — Suit to Set Aside for Collusion — Action by One not a Party.</p> <p>That defendants are exploiting a collusive decree adjudging the validity of a patent which is in fact invalid does not entitle a third person, not a party to such decree, nor bound thereby, to have the same set aside, after several terms of court have elapsed, and be admitted to defend the suit, nor to injunctive relief against such exploitation.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 856.]</p>

<p>1. Towage — Liability of Tug foe Grounding of Tow — Misrepresentation of Deaught by Master.</p> <p>A tug, on starting to tow a barge in a shallow stream, is entitled to rely on the statement of the master of the barge as to her draught, and is not bound to examine or to rely upon her draught marks where such statement is made.</p> <p>2. Same.</p> <p>A tug held not liable for the grounding of her tow in Newtown creek, on evidence showing that the master of the barge represented her draught to be seven feet, and that the depth of water at the place of grounding was over nine feet.</p>

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

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

Action by Samuel B. Hartman against William O. Feenaughty and others to recover certain goods. On application for an order to compel Ambro R. Park to answer certain questions on his deposition taken before the clerk of the court in response to a subpoena duces tecum.

<p>Labob Unions — Contracts—Breach—Actions.</p> <p>Where plaintiff contracted with a labor union to furnish him union labels for cigar boxes by a contract signed, “Local Union No. 165, Cigar Makers’ International Union of America, by W. C. Hahn, Business Agent and Label Secretary,” and the union thereafter refused to furnish such labels, plaintiff was not entitled to sue four of the members of such union “individually and for themselves and others, officers and members of the unincorporated association known as Local Union No. 165 of Philadelphia of the Cigar Makers’ International Union of America,” but was only entitled to seek redress against such local union.</p>

<p>In Bankruptcy.</p>

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

<p>1. "Wrongful Death — Statutes—Measure of Damages.</p> <p>In an action for wrongful death, under a statute providing that iru every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such, death to the wife and next of kin of such deceased person, the verdict should not exceed the value of the pecuniary assistance the jury believes the next of kin living at decedent’s death would have received from him, had he lived. The jury may not fix these damages arbitrarily. There must be some evidence to sustain the amount of the verdict. '</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, § 111.]</p> <p>2. Same — Statutes—Construction—Rights of Aliens.</p> <p>Where a statute authorizing a recovery for wrongful death provided that such recovery shall be for the exclusive benefit “of the widow and next of kin of such deceased person,” and shall be distributed to them in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate, it was no defense to an</p> <p>' action for wrongful" death that deceased had no widow, and that all of his next of kin were nonresident aliens.</p> <p>3. Same — Damages—Bxcesstveness.</p> <p>Deceased was killed by the negligence of defendant when he was 27 years of age. He had been in the United States from 2% to 5 years, was a common laborer, employed at $1.50 per day as a car cleaner, and had been previously employed as a railroad waterman. He was unmarried, and there was evidence that he sent from $20 to $25 per month to his father, in Roum'ania, who was 65 years of age at the time deceased died. Meld, that a verdict for $3,500 was excessive, and should be reduced to $2,500.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, §§ 125, 130.}</p>

This is a controversy between the assignee of a mortgagee of Orlando Beede, the bankrupt, his trustee in bankruptcy, and certain-creditors of said bankrupt who have obtained judgments against him since the filing by him of the petition in bankruptcy, as to the rights of the parties to the proceeds of the sale of the personal property of said bankrupt. The amount in controversy is over $12,000. See 126 Fed. 853.

<p>Rule to Show Cause why Indictment should not be Quashed.</p>

Indictment under Act Cong. Aug. 2, 1886, c. 840 (24 Stat.-209 [U. S. Comp. St. 1901, p. 2228]), for the unlawful sale of oleomargarine and the removal and defacement of stamps. Rule to show cause why indictment should not be quashed.

<p>1. Witnesses — Equity—Taking of Testimony— Cross-Examination.</p> <p>Where complainants’ notice for the taking of testimony signifies a desire that the testimony be taken orally, defendants will be allowed to cross-examine complainants’ foreign witness orally if they so elect, immediately following the close of the direct examination.</p> <p>2. Same-Withdrawal of Interrogatories.</p> <p>Where defendants elect to cross-examine complainants’ foreign witness orally, complainants will be given leave to withdraw direct interrogatories filed by them, and examine the witness orally.</p>

<p>Depositions — Mode op Taking — Power of Court.</p> <p>Equity rule 67, which authorizes the evidence in a cause to be taken orally upon application by either party for an order therefor, is applicable to depositions taken on a commission issued under Rev. St. § 866-[U. S. Comp. St. 1901, p. 663], and, where such a commission is applied for by one party to take the testimony of foreign witnesses, the court has power to permit the adverse party to cross-examine such witnesses orally.</p>

<p>• Bankruptcy — Property Vesting in Trustee — Uncompleted Vessels in Shipyard.</p> <p>The bankrupt at the time of his bankruptcy was conducting a shipyard, and had contracted with the several petitioners to build vessels for them; the contracts providing for the making of partial payments by them at certain stages in the progress of the work, and that title should vest as each payment was made. At the time of the bankruptcy one of said vessels had been practically completed, so far as the work of the bankrupt was concerned, the payments had been made, and it had been launched and delivered to the petitioner for whom it was built, who was to complete it himself. The others remained in the yard in various stages of construction, but the required payments had been made, and exceeded the value of the structures. None of such vessels were scheduled by the bankrupt, but all were taken possession of by the trustee, who declined to complete the contracts. Held, that the title to such vessels, so far as completed, was in the several petitioners, who were entitled to their possession.</p>

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

<p>Mutual Benefit Insurance — Rescission of Contract — Laches.</p> <p>Where a member of a mutual benefit association was entitled to rescind bis contract and recover tbe assessments paid because of tbe illegal attempt of tbe society to reduce tbe amount payable tbereon, but, while protesting, paid the assessments made against him on the new basis for three years before electing to rescind, during which time tbe society lost a large number of members by death and withdrawal, who would have been assessable to pay bis claim, and also took in new members in ignorance of such claim, tbe delay constituted such laches as to estop him from recovering back tbe assessments paid.</p>

<p>In Bankruptcy.</p>

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

<p>1. Taxation — Assessment—Undivided Interest — Payment of Taxes.</p> <p>Two tracts of land consisting of 69% and 2% acres, respectively, as to which the owner had sold an undivided one-sixteeDth interest in all oil, gas, and other mineral substances in and under the same, were assessed as a whole to s.uch owner at $6.50 per acre, but the valuation was erroneously set down as $425 and $15, respectively, instead of $451.75 and $16.25; the levies being properly extended on the true valuation. The same mistakes as to the total valuations of the tracts were made from year to year thereafter until a reassessment was made, when the officer neglected to extend the levies on the true valuation, but extended them on the erroneous valuation carried over from the book of the preceding year, prior to which the grantee of the mineral interest had conveyed one-half of such interest to B., who was assessed independently on his undivided Interest. Relé, that the intention was to assess the full taxes on the full valuation of the entire property to the original owner, and, she having paid the amount assessed, the assessment against B. was void.</p> <p>2. Same — Undivided Interest — Assessment—Statutes.</p> <p>Code W. Va. 1899, c. 29, § 25, provides that, where a tract or lot of land' becomes the property of different owners in several parcels, and one person becomes the owner of the surface and another of the minerals under-the same, or of the timber alone on the land, the assessor shall divide the value at which the whole had before been assessed among the different owners, having regard to the value of each interest compared with that of the whole, and Code 1899, c. 29, § 37, and Acts 1905, p. 303, c. 35, § 49, requires that the “tract” be assessed in the name of the person who by himself or his tenant has the freehold in possession. Meld, that where the owner of certain land conveyed merely an undivided one-sixteenth part of all oil, gas, or other mineral substances in and under the same, the grantees of such undivided interest did not hold by a complete and separate title, and hence their interest was not subject to a separate assessment for taxes as an undivided interest “in oil, gas, and other mineral substances.”</p> <p>3. Tax Sales — Deeds—Vacation—Tender.</p> <p>Where a tax deed was set aside as absolutely void under a sale unauthorized by law, the owner was not required to pay the tax purchaser his outlay under Code 1899, c. 31, § 25, requiring such payment as a condition precedent to the vacation of a tax deed for irregularities in the proceedings.</p> <p>4. Same — Costs.</p> <p>Where, in a suit to set aside a tax deed, it was determined that the deed was absolutely void on the ground that the property was not subject to the assessment in question, the assessment having been made by the negligence of the state’s officers, costs would not be allowed to either party.</p>

<p>1. Habeas Corpus — Federal Constitution — Construction.</p> <p>Const. U. S. art. 1, § 9, providing that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it, is not a grant of power to the federal courts, but a prohibition against its suspension by Congress or the executive.</p> <p>2. Same — Extent op Power.</p> <p>Under Rev. St. U. S. §§ 716, 751, 752, 753 [U. S. Comp. St. 1901, pp. 580, 592], authorizing federal courts to issue the writ of habeas corpus, the power of such courts to issue such writs is co-extensive with the common-law power,' provided only that the writ shall not be issued for the deliverance of a prisoner in jail, except in cases specified.</p> <p>[Ed. Note. — For cases in point, see vol. 25, Cent. Dig. Habeas Corpus, §§ 38-45.</p> <p>Jurisdiction of federal courts in habeas corpus cases, see note to In re Huse, 25 C. C. A. 4.]</p> <p>3. Same — Scope op Writ.</p> <p>A writ of habeas corpus may be issued out of the federal courts to inquire into the cause of a commitment under a civil as well as a criminal process.</p> <p>[Ed. Note. — For eases in point, see vol. 25, Cent. Dig. Habeas Corpus, § 38.]</p> <p>■4. Same — State Legislature — Departments op Government — ^Conduct op Executive — Legislative Committee — Examination.</p> <p>Const. W. Va. art. 5, provides that the legislative, executive, and judicial departments shall be separate and distinct, so that neither shall exercise the power properly belonging to either of the others, nor shall any person exercise the powers of more than one of them at the same time. Article 4, § 9, provides for the impeachment of state officers by the House of Delegates and trial by the Senate; that judgment in case of impeachment shall not extend further than the removal from office and disqualification to hold any office of honor, trust, or profit under the state; and that the Senate may sit during the recess of the Legislature for trial of impeachments. Held, that the House of Delegates had no power to appoint a committee to sit during vacation to investigate alleged misconduct of the Governor, in pursuance of a special message submitted by him solely for the purpose of vindicating the Governor, whose term would expire before he could be tried or impeached.</p> <p>5. Same — Witnesses.</p> <p>The House of Delegates of West Virginia having no power to appoint a legislative committee to investigate during vacation the alleged misconduct of the Governor, for which he could not be impeached because of the approaching expiration of his term of office, such committee had no power to incarcerate a witness for refusing to obey its subpoena.</p>

<p>1. Insurance — Policy Is Contract.</p> <p>A .policy of insurance is a contract by the terms of which must be measured the right of the insured and the obligation of the insurer.</p> <p>2. Same — Stipulations Intended to Preserve Written Policy from</p> <p>Change or Alteration by Parol.</p> <p>Stipulations in written policies of insurance intended to preserve the policy from change or alteration by parol, and to make it and such indorsements thereon or additions thereto as may be made in writing a complete repository and memorial of the entire agreement, are valid and for the benefit of both parties and of the community at large; and to give effect to the purpose of such a stipulation, so far as it can reasonably be done, especial care should be taken to find in the policy and in any indorsements thereon or additions thereto the means of its or their proper interpretation, without resort to parol evidence.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 292-294, 298, 313.]</p> <p>3. Same — Construction of “Loss Payable” Indorsement.</p> <p>An indorsement was made upon a policy of fire insurance, by the agents of the insurer, at the request of the insured, as follows: “Subject to all the conditions of this policy, loss, if any, payable to D. & S. as their interest may appear.” Held: (a) The indorsement must be read in the light of the purpose which actuated the parties in stipulating that the policy could be modified, or any provision thereof waived, only by a writing of equal dignity and credit with the policy itself, (b) Such an indorsement is a common mode of furnishing a species of' security by a debtor to his creditor, who may be willing to trust to the debtor’s honesty, skill, and success in trade, but who requires some indemnity against such accidents as loss by fire; and it does not create a new contract of insurance with the payee, or abrogate or waive any condition of the policy, (e) The terms of the indorsement are not conflicting, but consistent and plain, and their purpose and effect are to make D. & S. the simple appointees of the insured to receive payment of any loss payable to the insured under the policy, and to receive it, not absolutely, but to the extent of any interest they may have in such payment at the time of the loss, consistently with the due observance by the insured of all the conditions of the policy, (d) The words “as their interest may appear” are plainly prospective, and refer to an interest, not in the properly insured, but in the payment of the loss. They are words of restriction, without which the whole loss would be payable absolutely to D. & S., without any showing of an interest in its payment or of the extent of that interest, (e) The indorsement does not give consent to the incumbering of the insured personal property by a chattel mortgage (1) because it does not mention a chattel mortgage, or describe D. & S. as chattel mortgagees, or show that the attention of the parties was directed to a chattel mortgage; (2) because it was not necessary that there should be a chattel mortgage to enable the insured to make a valid appointment of D. & S. to receive payment of the loss, if any, or to give them an interest in the payment of the loss; and (3) because the words “subject to all the conditions of this policy” show that the conditions were not intended to be abrogated or waived, but to have effect and be respected as if the indorsement had not been made, and among the conditions of the policy are these: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage, * * * and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, * * * unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached.” (f) There being no claim of fraud or mutual mistake, it is not permissible to show by oral testimony that at the time of making the indorsement the agents knew that the insured personal property was incumbered by a chattel mortgage and intended by the indorsement to consent thereto on behalf of the insurer, because what the agents may have known, and even what they may have said, is of no importance, as under the stipulations of the policy they were powerless to waive any provision or condition, or to affect the rights of the parties, except by a writing indorsed upon or added to the policy, and whatever was not so indorsed upon the policy or added to it was the same as if not done, because it was not authorized.</p> <p>4. Same — Stipulation Against Chattel Mortgage — Beeach.</p> <p>Where a policy of fire insurance covering personal property contains a stipulation entirely avoiding the policy, if such property be or become incumbered by a chattel mortgage, without consent thereto being indorsed upon or added to the policy, the giving of a chattel mortgage upon such property by the insured during the term of the policy, without the consent of the insurer indorsed upon or added to the policy, terminates the insurance and prevents a recovery under the policy by the insured or his appointee for a subsequent loss by fire.</p> <p>Hook, Circuit Judge, dissenting.</p>

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

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

<p>1. Public Lands — Cutting Timber — Actions—Evidence—Value—Prejudice.</p> <p>Where, in an action by the United States to recover the value of timber alleged to have been wrongfully cut from the public domain, the government’s evidence that 500,000 feet of lumber had been cut was uncontradicted, and the jury rendered a verdict in its favor for $500 only, defendant was not prejudiced by the admission of evidence, on the issue of the value of the lumber, that timber had been sold in the vicinity by the state for $2.10 per thousand.</p> <p>2. Same — Admissibility.</p> <p>Where, in an action by the United States for the value of timber alleged to have been wrongfully cut from the public domain, a witness asked as to the value of timber in that neighborhood stated that he knew only by the price set by the state, which had been fixed by appraisement made by state officers, as required by Pol. Code Mont. § 3560, and that that price was $2, he was also entitled to testify, in answer to a question of the court as to whether any was sold at that price, that some was sold for $2.10 per thousand.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent Dig. Evidence, §§ 416-421.]</p> <p>3. Same — Character of Land.</p> <p>Where defendant’s right to cut and remove timber in question from the public domain was dependent on the land being mineral, and not subject to entry except for mineral entry, as provided by Act Cong. June 3, 1878, c. 150, 20 Stat. 88 [U. S. Comp. St. 1901, p. 1528], and there was testimony that the region had been prospected, and, though float was found over it, no mineral-bearing veins had been discovered, and that small tracts near defendant’s mill were cultivated for crops, evidence that a witness cultivated to crops about three acres of ground on the flat near the creek, on which the land from which the timber in controversy was cut adjoined, and that such ground was suitable for agriculture, was admissible.</p> <p>4. Same — Experts.</p> <p>On an issue as to whether land from which defendant was charged to have unlawfully cut timber belonging to the United States was mineral land, a placer miner of 70 years’ experience, and familiar with a creek running through the land, but not shown to have had any knowledge of the locality from which the timber was cut, was not entitled to give his opinion that ground along the “bed of the creek nearest to the place where the timber was cut” contained gold in quantities that would pay to extract ; there being no evidence that gold in any quantity had been found in that part of the creek in that vicinity, or where the timber was cut.</p> <p>5. Same.</p> <p>On an issue as to the character of certain land, from' which timber was alleged to have been wrongfully cut, the question whether such land was mineral land was not a subject of expert opinion; the jury being competent to determine such issue from the fact's on which the opinion was based.</p> <p>[Ed. Note. — For cases' in point, see vol. 20, Cent. Dig. Evidence, § 2328.]</p> <p>6. Same — Classification of Land — Records.</p> <p>Where, on an issue as to the character of public land from which timber was alleged to have been wrongfully cut, the register of the land office testified as a witness for’ defendant that the land in question had been classified as mineral land by the classification commissioners appointed to classify lands in Montana and Idaho, to adjust a claim of the Northern Pacific Railroad Company, as provided by Act Cong. Feb. 26, 1895, c. 131, 28 Stat. 683, the United States was entitled to show by the witness, in rebuttal, that the records of his office also showed that certain of the lands in the township in question had been patented as homesteads, and that other lands therein had. been entered under the provisions of the forest reserve act, and still others had been selected by the state under its grant and by the Northern Pacific Railroad Company, all. of which selections were nonmineral.</p> <p>7. Same — Classification Act — Construction by Land Department.</p> <p>The ruling by the Secretary of the Interior that the classification of land in the states of Montana and Idaho as mineral by land commissioners appointed as provided by Act Cong. Feb. 26, 1895, c. 131, 28 Stat. 683, ■did not prevent the land department from making such disposition of the lands as would be proper, on a subsequent showing that the land was not in fact mineral, and that such classification was not conclusive on the United States, was not error.</p> <p>53. Same — Requests to Charge.</p> <p>Requests to charge may be properly refused where they are substantially covered by instructions given.</p>

<p>Ciecutt Court of Appeals — Jurisdiction.</p> <p>The Circuit Court of Appeals is without jurisdiction of proceedings in error which involve only the question of the jurisdiction of the Circuit Court in the cause.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 1099. Review of jurisdiction of Circuit Courts, see note to Excelsior Wooden-Pipe Co. v. Pacific Bridge Co., 48 C. C. A. 357.]</p>

<p>Towage — Liability fob Loss of Tow — Negligence of Tug.</p> <p>Libelant’s boat was one of 18 composing a tow being taken by a tug and helper from Perth Amboy to New York in the night. On account of a high wind, the tow lay to outside of another tow at a dock; the tide being then flood, and the wind from the opposite direction. When the tide changed during the night the tow started to swing around, and, under the influence of the wind and tide, a scow in the tier behind overran and sank libelant’s boat. Held, that the accident was one which should have been anticipated and guarded against by the tug, and, in the absence of evidence that any effort was made in that behalf, she was liable for the loss.</p>

<p>1. Municipal Corporations — Action Against — Jurisdiction.</p> <p>A municipal corporation is not suable by attachment in the courts of another state.</p> <p>[Ed. Note. — Por cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 2195, 2201.)</p> <p>2. Costs — Power to Award — Dismissal for Want of Jurisdiction.</p> <p>A federal court has no authority to award costs on dismissal of an action on the ground that the state court from which it was removed was without jurisdiction.</p> <p>[Ed. Note. — Por cases in point, see vol. 13, Cent. Dig. Costs, § 16.)</p>

<p>Appeals from the District Court of the United States for the Eastern District of New York.</p> <p>On appeal from a final decree of the District Court for the Eastern District of New York, holding the steamship City of Birmingham solely at fault for the sinking of Dredge No. 7 in the Savannah river on the morning of April 15, 1902. A cross-libel by the Ocean Steamship Company, owner of the 'City of Birmingham, against P. Sandford Boss, Incorporated, owner of the dredge; was dismissed. On March 23, 1904, final decree was entered against the City of Birmingham for damages and costs in the sum of $32,688.42 and against the Ocean Steamship Company in the second action for $30.70 costs. The steamship company appeals to this court.</p>

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

The bill in the court below was to restrain infringement of letters patent No. 442,531, issued December 9th, 1890, to Murray, for store service ladders. There is no substantial question that defendant’s device infringes this patent, for it is practically the same as appellants. The bill was dismissed on the ground that the patent itself was invalid.

<p>1. Wrongful Death — Statutes—Foreign Personal Representative — Right to Sue.</p> <p>Bates’ Ann. St. Ohio, § 6133, provides that any executor or administrator duly appointed in any other state or country may prosecute any action or proceeding in any Ohio court in his representative capacity in like manner and under like-restrictions as a nonresident may be permitted to sue. Sections 6134, 6135, confer the right to sue for wrongful death on the personal representative, and provide for a settlement of the case after suit brought, conditioned, however, on the fact that the personal representative was appointed in Ohio. Helé, that a Kentucky personal representative of a deceased person killed in Ohio was entitled to sue a foreign corporation in Kentucky for the alleged wrongful death of his decedent under the Ohio wrongful death statutes.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, §§ 36, 50.]</p> <p>2. Same — Public Exhibition Grounds — Safety—Negligence—Question for Jury.</p> <p>In an action against a railroad company, maintaining public exhibition grounds, for the wrongful death of a spectator, who had paid an admission fee, by being killed by a rotten limb falling from a tree, whether defendant was guilty of negligence in failing to discover and remove such defective limb helé for the jury.</p> <p>[Ed. Note. — Liabilities for injuries to persons at public entertainments or exhibitions, see note to Texas State Fair v. Brittain, 56 C. C. A. 502.]</p>

<p>In Bankruptcy.</p>

<p>Corporations — Insolvency—Receivers—Franchise Tax — Lien</p> <p>Where a receiver of mortgaged personalty belonging to an Insolvent corporation was appointed on the application of the mortgagee, the commonwealth was not entitled to priority of payment of a claim for a franchise tax assessed against the corporation, as provided by St. Mass. 1903, pp. 450-452, c. 437, §§ 75, 78, 83, as such tax did not create a lien on such mortgaged personalty superior to that of the subsequent mortgage.</p>

<p>In Equity. Referring report back to master for further finding of facts:</p>

<p>. 1. Wills — Trusts—Creation.</p> <p>Where testator devised all his property to his son, to lease the real estate, and invest the personal property, and receive the rents, income, and profits, and after paying taxes, insurance, etc., to apply the residue to the maintenance of testator’s wife, unmarried daughters, and minor children, etc., until two of his daughters should arrive at the age of 21 years, and, on the happening of such event, to distribute the trust property in the manner specified, etc., he created an express trust, under New York Beal Property Law, § 76, subd. 3 (Laws 1896, p. 571, e. 547), authorizing a trust to be created to receive the rents and profits, and apply the same to the use of any person for life or for any shorter term.</p> <p>2. Same — Beneficiaries—Termination.</p> <p>The beneficiaries of the trust were the testator’s wife, unmarried daughters, and minor children, who were entitled to the income of the trust estate until the death of testator’s two minor children, or their arrival at the age of 21 years, when the trust terminated.</p> <p>3. Same — Estate of Trustee — Rights of Distributees.</p> <p>Where testator bequeathed his real and personal property to his son in trust to apply the rents and profits to the maintenance of his wife and minor children until two of them died or became of age, when the trust should cease and the property be divided among testator’s children, and authorized the trustee, in his discretion, to sell the testator’s real estate, the trustee’s rights in such real estate were limited to the purposes of the trust; and hence the distributees under the will took title to real property as to which the trustee’s power of sale was not exercised as remaindermen, vested as of the death of the testator.</p> <p>4. Same — Power or Sale.</p> <p>The grant of the power of sale merely authorized the trustee to sell in pursuance of the power and not as trustee, and therefore did not enlarge the trustee’s estate.</p> <p>5. Same — Judgments—Lien.</p> <p>Where testator devised all of his real and personal property in trust to use the income for the benefit of his wife, unmarried daughters, and minor children until two of them died or became of age, after which he directed that the estate be distributed among his children, the vested remainder to which one of such children was entitled at testator’s death was subject to the lien of a judgment properly docketed against him, which lien, in case of a sale of the real estate under a power contained in the will, attached to the proceeds.</p> <p>6. Same — Equitable Conversion.</p> <p>A provision of a will empowering testator’s executor, in his own discretion, and at such time or times as he shall deem proper, to sell either at public or private sale any and all of testator’s real estate, was a discretionary and not an imperative power, and therefore did not constitute an equitable conversion of testator’s realty into personalty.</p> <p>[Ed. Note. — For eases in point, see vol. 11, Cent. Dig. Conversion, §§ 38-43.]</p> <p>7. Same — Liens—Priority—Equity—Parties.</p> <p>Where, in a proceeding to determine the validity and priority of certain liens, the assignees junior in time sought to have an alleged senior lien annulled for usury, but the holder of such lien made no claim on the fund in controversy when brought into court against his will, and filed no pleadings, and the proceedings of the other claimants established that he was prima facie entitled to payment from the fund, and thereupon attempted to show that his title was avoidable for usury, such adverse claimants were not entitled to have the fund released from such senior lien without paying the holder thereof the consideration received by the debtor.</p>

<p>1. Maritime Liens — Repairs—Evidence oe Agreement for Lien.</p> <p>While the fact that the charges for repairs to a vessel were made to the owner on the books, and that a bill was presented to the owner, Is some evidence that the work was done on the credit of the owner, and not that of the vessel, it is not conclusive, and will not defeat the right of the repairer to a lien when an agreement therefor is shown.</p> <p>[Ed. Note. — Liens for supplies and services, presumptions as to credit to vessel, The George Dumois, 15 C. C. A. 679.]</p> <p>2. Same — Estoppel—Suit Against Owner.</p> <p>The repairer of a vessel is not estopped from claiming a lien by the fact that he first brought suit against the owner in personam to recover for such repairs.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Maritime Liens, §78.]</p>

<p>Shipping — Injury to Tows from Swell — Negligent Navigation of Steamer.</p> <p>A large steamer passed a tug with two mud scows in tow in New York Harbor at a distance of from 300 to 500 feet, and caused such a swell that the scows were thrown against each other and one was injured. It was shown that when the speed of the steamer was properly reduced and when she passed at a proper distance from a tow she produced no injurious swell. Held, that the fact that she did so on this occasion showed that she was not navigated with proper care, and that she was liable for the injury caused.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent Dig. Shipping, § 345J</p>

<p>Salvage — Liability of United States — Assisting Burning Ammunition Ship.</p> <p>A tug which went to the assistance of a United States vessel having on board ammunition for delivery to a war ship, in answer to her signal for help, and aided in putting out a fire which had broken out on such vessel, at considerable risk to the tug and crew on account of the nature of the cargo, the service lasting half an hour, held entitled to a salvage award of |500 on an implied contract, under the provisions of the Tucker act of March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752].</p> <p>[Ed. Note. — Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

<p>1. Collision — Steameks Crossing in Seattle Harbor in Fog — Excessive Speed and Negligent Navigation.</p> <p>The steamboat Bellingham, with a tow alongside, left the docks at Seattle in the morning in a dense fog, and, after two or three stops, straightened out on a course to the northwest. At about the same time the Flyer, a fast passenger steamboat, making four regular trips daily to Tacoma and return, left the docks further to the north, and took her usual course to the southwest, attaining a speed of not less than 10 miles an hour in 3 minutes, when a collision occurred between her and the Bellingham and tow, which struck her on the port side with great force. Both vessels were sounding fog signals, but when they first saw each other the Bellingham was about 85 feet from the point of collision, making a speed of 3 knots or more, and the Flyer was about 140 feet from the same point. The master of the Bellingham knew the position of the Flyer’s slip, her time of departure, and her usual course across the bay, and also heard her whistle for starting. ReZeZ, that both vessels were in fault — the Flyer for excessive speed in a fog in a bay where there were other vessels moving and anchored, and the Bellingham for failing to take warning of the Flyer’s approach and to wait for her passage before approaching her course; that the Flyer was liable for one half the damages, and the Bellingham and her tow (which belonged to the same owner) for the other half, including damages for injury to an anchored vessel which was struck by the Flyer in consequence of the collision.</p> <p>[Ed. Note. — Collision rules, speed of steamers in fog, see note to The' Niagara, 28 C. C. A. 532],</p> <p>2. Same — Excessive Speed — Rules Applicable to Regular Passenger Steamers.</p> <p>The law makes no exception in favor of passenger steamers running regularly on schedule time on an established route, and, for injuries resulting from excessive speed in violation of the rules prescribed to insure safety to vessels and passengers, they must render compensation to the injured.</p>

<p>Petition for Revision of an Order of the District Court of the United States for the Northern District of California.</p>

<p>1. Accident Policy — Injuby Sustained in a Given Occupation.</p> <p>Where a party obtains a policy of insurance against injury by accident, specifying the occupation of the assured to be that of a druggist, deemed to be a select risk, and that of a farmer of supervising farmer only is specified as a more hazardous risk, calling for a larger premium, and thereafter the drug store of the assured was destroyed by fire, whereupon the assured moved upon a tract of land entered as a homestead, into a house built by him thereon, which he thereafter occupied with his family as his home, and superintended the construction of a barn thereon, and caused to be fenced and broken and cultivated 40 acres of the land thereof, under his supervision, for a period of six months; and was preparing for further cultivation of the land at the time of his injury, and for eight months prior to such injury had no connection with the business of a druggist, his occupation was that of a supervising farmer, and not that of a druggist, within the meaning of the policy.</p> <p>[Ed. Note. — Accident insurance, risks, and causes of loss, see note to National Acc. Soc. v. Dolph, 38 O. O. A. 3.]</p> <p>2. Same — Occupation.</p> <p>The term “occupation,” as employed in the policy, implies simply that which at the time of the accident constitutes the assured’s principal business or pursuit; that which engages his attention and time, as destinguished from that which is incidentally connected with the life of men in any or all occupations.</p> <p>3. ' Same — Continuance.</p> <p>The fact that the assured for some time after the destruction of his drug store was engaged in proving and collecting a claim for loss under a policy of insurance on the drugs, and from time to time attended to the collection of accounts connected therewith, and entertained the purpose to resume the business of a druggist after he had made sufficient improvement on and had occupied his homestead for a sufficient length of time to enable him to sell his homestead right, did not have the effect to continue during such time his occupation as a druggist, or affect the designation of his occupation as that of a supervising farmer only.</p> <p>4. Same — Abandonment.</p> <p>The correct test in such cases is not so much as to whether the assured had in fact abandoned the occupation stated in the application and policy, but whether or not at the time of his injury he was in fact engaged in another occupation, not merely incidental, but as a business, of a more hazardous classification.</p> <p>(Syllabus by the Court.)</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Illinois. In Bankruptcy. Petition to review and revise in matter of law. On October 27, 1902, the bankrupt was discharged from his debts by the court below. On October 23, 1903, a petition was filed by William H. Rhodes, John Gray, and Edward G. Pauling to revoke the discharge upon certain grounds therein stated.

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

<p>1. Shipping — Action fob Damage to Cabgo — Evidence.</p> <p>In an action to recover for damage to cargo from leakage of the vessel, evidence that directions as to the manner of loading were given the agents of the vessel by libelant, which directions were not followed, was competent.</p> <p>"2. Same — Leakage of Baege — Unseawoethiness.</p> <p>Where, during the unloading of a barge in the usual manner, which caused an uneven keel for a few hours, she sprang a leak, and the remaining cargo was damaged by water, such damage was not caused by fault or error in the management of the vessel within section 3 of the Harter act (Act Feb. 13, 1893, e. 105, 2T Stat. 445 [U. S. Comp. St. 1901, p. 2946]), but from unseaworthiness, or from negligence, fault, or failure in proper loading within section 1, for which the vessel is liable.</p>

<p>Shipping — Breach op Charter to Caret Lumber — Measure op Damages.</p> <p>Libelants chartered space in a barge for the carriage of 250,000 feet of lumber from Norfolk to Baltimore, but the barge loaded only about 160,000 feet. Libelants had sold the lumber to be delivered in Baltimore, and by reason of their failure to make delivery were compelled to pay damages to the purchaser. The owners of the barge, however, had no knowledge of the sale. Held, that the amount so paid by libelants did not constitute the measure of damages recoverable by them for breach of the charter, since it could not have been in the contemplation of the parties when the charter was made, but that the measure of damages was the market value in Baltimore of the 90,000 feet of lumber not taken at the time it should have been delivered there, less its market value in Norfolk, with the freight charge added; and that, in the absence of evidence introduced by libelants from which such amount could be determined, only nominal damages were recoverable.</p>

The defendant in error (plaintiff below), hereinafter called the “plaintiff,” was engaged in the business of manufacturing vehicle springs and axles at Carthage, Ohio, and on the 3d day of November, 1899, entered into two contracts with the plaintiff in error (defendant below), hereinafter called the “defendant,” who was engaged in the business of manufacturing vehicles at Henderson, Ky.

<p>1. Patents — Infringement—Substitution of Parts.</p> <p>Where the real invention covered by a patent lies in one element of a combination, the others being old, and material only in putting into use that which is new, one who appropriates such novel feature cannot avoid infringement by substituting a different form of one of the nonessential parts.</p> <p>2. Same — Trousers-Hanger.</p> <p>The Cazier patent, No. 696,940, for a trousers-hanger having the clamping-jaws of spring metal arched so as to engage the fabric near the ends and stretch the same in closing together, discloses invention in such feature, and is valid. Claim 5, also, held infringed.</p> <p>3. Same — Infringement by Corporation — Liability of Officers.</p> <p>Infringement by a corporation gives no right of action against one of its officers individually, unless he has acted beyond the ordinary scope of his office.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 459.]</p>

<p>Patents — Infringement—Wireless Telegraphic Apparatus.</p> <p>Tlie Marconi reissued patent No. 11,913 (original No. 586,193), for improvements in transmitting electrical impulses and signals, and in apparatus therefor, while for a combination of elements all of which were taken from the prior art, discloses the first practical wireless telegraphic system, and shows invention of a primary character, which entitles it to a broad construction and a liberal range of equivalents. As so construed, it is not limited to receiving conductors wholly insulated from the earth at both their upper and lower ends, nor to the suspended plates described, but covers also conductors consisting of aerial wires having an earth connection at the bottom. Claim 1 of the reissue in attempting to claim broadly every form of imperfect contact device in the receiver, goes beyond the original patent, and cannot be sustained, in view of the prior art Claims 3 and 5 held infringed by the apparatus of the De Forest and Smythe patents, which cover an equivalent, imperfect contact device. Claims 8, 10, and 24 held not infringed.</p>

Suit in equity for alleged infringement of United States letters patent for “stick pin retainer,” No. 630,972, to George J. Capewell, dated August 15, 1899. The defendants deny novelty, deny infringement, and allege anticipation by numerous patents; say that there is no invention in view of the prior art.

<p>1. Peonage — Definition.</p> <p>Peonage is a condition of compulsory service, based on the indebtedness of the peon to the master, which indebtedness is the criminal cord by which the peon is held to the master’s service.</p> <p>2. Same — Federal Constitution.</p> <p>Const. U. S. Amend. 13, providing that neither slavery nor Involuntary servitude, except as a punishment for crime, shall exist in the United States, or any place subject to its jurisdiction, forbids involuntary servitude for the payment of debt within the. jurisdiction of the national government, whether created by contract, by criminal individual force, by municipal ordinance, state law, or otherwise.</p> <p>3. Same.</p> <p>If a person desiring to have a servant returned to him to work out a debt causes such servant to be arrested on a warrant procured by the master, and after incarceration the master procures the servant’s release on his promise to return to his master’s employment to continue to work out a debt, the master is guilty of peonage, prohibited by Rev. St U. S. § 5526 [U. S. Comp. St. 1901, p. 3715], provided the servant had been charged with the crime for the purpose of procuring his arrest and incarceration, and to enable the master to extort from the servant a promise to return and work out the debt.</p>

<p>Corporations — Election of Officers — Controversy Over Right to Vote Stock.</p> <p>Where, on the death of the owner of the majority of the stock of a corporation, the right to vote his stock was vested by his will jointly in his widow and counsel as executors and trustees, and by reason of a controversy between them in a state court the counsel has been enjoined from voting the stock, a minority stockholder is entitled to an injunction to restrain the widow from voting such stock alone, or the holding of an election of officers until the right to vote the majority stock has been determined.</p>

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

<p>Bankruptcy — Petition to Review Order op Distribution — Time for Filing.</p> <p>Under a rule of court requiring a petition to review an order of a referee for distribution of an estate in bankruptcy, and affirming tbe trustee’s account, to be filed within 10 days, such a petition, seeking to review the order as to the' commissions allowed the trustee will not be entertained after several months have elapsed, and distribution has been made in accordance therewith, and after the trustee’s account was unanimously approved by the creditors at a meeting in which the petitioner was present by counsel.</p> <p>[Ed. Note. — Appeal and review in bankruptcy, see note to In re Eggert, 43 C. C. A. 9.]</p>

In Equity. On demurrer to bill. This is a suit for the specific performance of a contract for the sale of lands, alleged by the plaintiff to exist by reason of certain written and telegraphic correspondence between him and the defendant W. J. McCoy, which correspondence, it is asserted in the bill, amounted to a valid 60-days option to the plaintiff to purchase the lands described in the bill, and which option the plaintiff duly accepted within said 60 days.

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

<p>Appeal — Action at Law — Dismissal.</p> <p>An appeal is not the appropriate remedy for reviewing alleged errors committed on the trial of an action at law, and will not be entertained.</p> <p>P3d. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 10-15.]</p>

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

<p>Master and Servant — Action fob Services — Evidence—Witnesses—Impeachment.</p> <p>Where, in an action for salary, plaintiff’s claim that, after he received an increase in salary, defendant was also to pay his actual and necessary living expenses, as theretofore, which defendant denied, rested mainly on Ms own testimony, defendant was entitled to show on cross-examination of plaintiff as a witness that he had previously recovered a default judgment against defendant on the same claim, which had been set aside for fraud and collusion, for the purpose of impeaching him as a witness.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent Dig. Witnesses, §§ 1133, 1134.]</p>

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

<p>Master and Servant — Injury oe Servant — Assumed Risk.</p> <p>Plaintiff, who was employed as a conductor in the switchyards of defendant railroad company, in taking a dining car to a Y at a junction about a mile from the yards, in the nighttime, for the purpose of turning the same, placed the engine behind; leaving no light in front of the car, except a lantern, which he held in his hand while standing on the front platform. Other engines and trains were frequently on the tracks at the junction, and it happened on this occasion that an engine which had left its train on the Y was backing up to a coal chute, and a collision occurred between the tender and the dining car, in which plaintiff was injured. Held, that it was error to instruct the jury that plaintiff could recover, although the placing of the engine behind the car, instead of in front, was more dangerous, if they found that he did so by direction of the yard master, who was his superior, since, even in such case, being familiar with the additional risk involved, he assumed the same, and could not charge defendant with liability for its result.</p> <p>[Ed. Note. — For eases in point, see vol. 34, Gent. Dig. Master and Servant, §§ 5C1, 562, 648-650.</p> <p>Assumption of risks incident to employment, see note to Chesapeake & O. K. Go. v. Hennessey, 38 C. O. A. 314.]</p>

<p>Patents — Invention—Railway Tobpedoes.</p> <p>The Bevington patent, No. 474,718, for a railway torpedo, is for a combination of elements all of which were old, and differs from prior structures only in the substitution of paper for tin or other metal as material for the dome-shaped cap, which does not constitute patentable invention, the only advantage shown being in the lessening of the cost.</p>

<p>Patents — Novelty—Process or Finishing Boot and Shoe Soles.</p> <p>The Crooker process, reissued patent No. 11,144, claim 1, for a process of polishing and finishing sole and heel edges and other parts of boots and shoes, is void for lack of patentable novelty in view of the prior art.</p>

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

<p>Bankruptcy — Jurisdiction op Court — Property Subject to Valid Levy.</p> <p>An adjudication of bankruptcy draws to the bankruptcy court jurisdiction to administer all property of the bankrupt, real and personal, although it may be subject to a valid lien acquired by judgment or the levy of an execution more than four months prior to the bankruptcy; and a sale under such lien will be enjoined, and the property sold by the trustee, unless the court, in the exercise of its discretion, may otherwise direct.</p>

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

<p>1. Carriers — Freight Charges.</p> <p>The general rule is that, the greater the tonnage of the commodity transported, the lower should be the rate of freight charges for such transportation.</p> <p>2. Interstate Commerce Commission — Conclusiveness of Findings.</p> <p>Explicit law, the settled policy of the government, the practical principles of reason and justice require that, save for controlling reasons of law or fact, the national courts should not discredit or disparage the conclusions of the interstate commerce commission.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Commerce, §§ 138-145.]</p> <p>3. Same — Findings op Fact.</p> <p>The findings of fact set forth in the report of the commission are in all judicial proceedings deemed prima facie evidence as to each and every fact found.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Commerce, §§ 138-145.]</p> <p>4. Prima Facie Evidence.</p> <p>Prima facie evidence of a fact is such as, in judgment of law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for the purpose. Mr. Justice Story, in Kelly v. Jackson, 6 Pet. 631, 8 L. Ed. 523.</p> <p>5. Interstate Commerce Commission — Report—Presumptions—Burden op</p> <p>Proop.</p> <p>The act to regulate commerce creates a rule of presumption in favor of the commission’s report, which on its introduction in evidence changes the burden of proof, and casts it upon that party against whom the report is made.</p> <p>6. Rules op Evidence — Legislative Control.</p> <p>The Legislature, subject only to the limitations of evidence expressly enshrined in the Constitution, has entire control over the rules of evidence, and by statutory enactments may alter, change, or create them anew.</p> <p>7. Carriers — Freight Charges.</p> <p>The reasonableness of a rate of charge for transportation is eminently a question for judicial investigation. Justice Blatehford, in Chicago, M. & St. Paul R. R. v. Minnesota, 10 Sup. Ot. 702, 134 U. S. 418, 33 LEd. 970.</p> <p>8. Same — Reasonableness.</p> <p>It is no longer open to question that the interstate commerce commission is an expert tribunal empowered by law to determine in the first instance the reasonable or unreasonable character of the rate charged for transportation in interstate commerce.</p> <p>9. Same — Rate Association.</p> <p>The character of the Southeastern Freight Association, the effect of itseoncert of action and agreements as to freight rates in the territory te» which it extends, considered and discussed.</p> <p>10. Same — Advance op Rates.</p> <p>When a number of railroads, acting under articles of organization, by concert of agreement and action advance the rates upon shipments of a particular class throughout all the territory to which their organization and influence with similar organizations extend, and when they actually advance such rates and exact the same of shippers, it is of no consequence-that they have a stipulation in such articles that each and all members. can at will and at any time withdraw from the agreement.</p> <p>11. Same — Reasonable Compensation.</p> <p>Resonable compensation for the service actually rendered is all that a common carrier is permitted to exact Justice Brewer, for the Circuit Court of Appeals of the Eighth Circuit, in Chicago & N. W. R. R. Co. v. Osborne,'3 C. C. A. 347, 52 Fed. 914; Smyth v. Ames, 18 Sup. Ct 418, 169 U. S. 466, 42 L. Ed. 819.</p> <p>12. Same — Unreasonable Increase.</p> <p>Where a vast increase of lumber traffic had resulted in large increase of net revenue to the carrier, the service was inexpensive, required neither rapidity of movement nor specially equipped cars, shippers were obliged to furnish and pay for equipment, railroads were neither to load nor unload, the commodity was neither fragile nor perishable, the risk of damage was inappreciable, the industry affords a tonnage second in magnitude to only one other transported by the carrier, an arbitrary increase to points of principal destination of two cents a hundred pounds is unreasonable and unlawful. This is especially clear where the particular traffic is practically destroyed immediately after the advance is made.</p> <p>13. Same — Regulation of Charges.</p> <p>Railroads have no legal right to graduate their charges in proportion to the prosperity which attends industries whose products they transport.</p> <p>14. Same — Injunction—Repayment of Unlawful Exactions.</p> <p>In this case the conclusions of the court agree with the conclusions of the interstate commerce commission. The enforcement of the advance will be enjoined, and, general counsel for respondents having stipulated in judicio they would repay to the shippers the sum total of the increased exactions in case such increase should be held illegal, a reference will be had to ascertain the amount thus due the complainants respectively, and decree will be rendered therefor.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Chinese Exclusion — Illegal Entby of Woman — Effect oe Maeeiage to Chinese Labobeb.</p> <p>Where a Chinese slave girl was brought to the United States, and her entry secured by fraud in violation of the exclusion laws, her subsequent marriage in this country to a Chinese inhabitant registered as a Chinese laborer, and not entitled to have a wife in this country, is not a defense to proceedings for her deportation; and especially where the marriage was at her solicitation, for her protection, and was not followed by cohabitation, nor apparently regarded by the parties as more than a formality.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Aliens, § 80.]</p> <p>2. Same — Deportation oe Slave Girl.</p> <p>The fact that the deportation of a Chinese slave girl illegally brought into this country for purposes of prostitution by her master, from whom she subsequently escaped, would result in remanding her to slavery and degradation, affords no ground upon which the courts can refuse to enforce the statute.</p>

<p>1. Bankruptcy — Objections to Allowance op Claim — Res Judicata.</p> <p>Where the validity of the claim of a petitioning creditor in involuntary bankruptcy proceedings is put in issue by the bankrupt’s answer, and the issue is heard upon evidence and determined in favor of the creditor, such adjudication is conclusive upon the bankrupt and all other creditors who, under the bankruptcy act, might have become parties to the proceeding, and, failing to do so, are to be considered as represented by the bankrupt ; and the petitioning creditor’s claim cannot again be contested when filed for allowance before the referee.</p> <p>2. Same — Objections to Claim by Other Creditors — Procedure.</p> <p>Creditors of a bankrupt who desire to contest the allowance of the claim of another creditor, as they may do as parties in interest under Bankr. Act July 1, 1898, c. 541, § 57d, 30 Stat 560 [U. S. Comp. St. 1901, p. 3443], must file objections in their own behalf, and cannot become parties to the issue merely by formally adopting objections filed by the bankrupt; nor have they any standing to contest such claim on an appeal taken from the decision of the District Court by the trustee in which they did not join.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

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

<p>1. Corporations — Indebtedness—Assignment—Validity.</p> <p>Where, pending proceedings in insolvency to settle the affairs of a corporation, a reorganization committee was organized to purchase certain of its property, and, in order to accomplish such result, a corporation was organized under an agreement that creditors of the insolvent corporation should be permitted to transfer to it claims against the old corporation in exchange for stock in the new, which, though authorized, did not use any of such indebtedness so transferred for the purchase of the property of the old corporation, a transfer, of such indebtedness by the old creditors in exchange for stock did not constitute a payment of their indebtedness, but vested in the new corporation all the rights of such creditors as against the old corporation and its assets.</p> <p>2. Same — Assignments—Validity—Champerty.</p> <p>Where, after the assets of an insolvent corporation had been largely administered, leaving a large part of the indebtedness unpaid, the court authorized the receiver to continue certain suits against promoters to recover secret profits for the sole benefit of such creditors as were willing to execute bonds for costs and to indemnify the receiver, etc., against costs, expenses, etc., whereupon certain owners of indebtedness against the corporation assigned their claims under an agreement that the assignees should execute the indemnifying bonds for them in consideration of 30 per cent, of the sums received by the assignees on account of the proceedings — such assignments were not void for champerty.</p> <p>3. Same — Creditors’ Suit — Participation.</p> <p>Where, after partial administration of the assets of an insolvent corporation, the court ordered its receiver to bring suits against nonresident promoters to recover secret profits for the sole benefit of such creditors as should provide security for costs, including expenses of the receiver as counsel, etc., creditors who failed to join in the furnishing of such security, and made no effort to participate in the proceedings until it became evident that a large sum would be recovered therein, were not entitled to share in such fund.</p> <p>4. Same — Sale oe Assets — Collateral Attack.</p> <p>Where, on the insolvency of a realty corporation, a reorganization agreement was entered into in which all creditors were entitled to participate, and a large part of the corporation’s property was purchased at an upset price, fixed in the decree of sale, which sale was confirmed by the court, creditors who did not join in the reorganization were not entitled to collaterally attack the sale on the ground that the price paid was inadequate.</p>

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

On petition of appellee, the respondent below, for leave to apply to the Circuit Court for leave to file a supplemental bill in the nature of a bill of review, or to amend the judgment on appeal (133 Fed. 167)..

This is an appeal from a decree holding appellants guilty of infringing claim 1 of letters patent No. 676,606, June 18, 1901, to Green and Gent, for improvements in fire-arches for furnaces.

<p>In Equity. Petition of defendants for leave to file a supplemental bill in the nature of a bill of review.</p>

In Equity. Suit for infringement of letters patent No. 671,039 for a screw-driver granted to George E. Wood, April 2, 1901. On motion for preliminary injunction.

<p>On Motion to Require Witnesses to Answer Questions.</p>

<p>1. Bankruptcy — Reference—Powers of Referee — Rulings on Evidence.</p> <p>Under General Bankruptcy Order xxii (89 Fed. x; 32 C. C. A. xxv), providing that the referee shall note on the deposition any question objected to, “with his decision thereon,” and that the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just, the referee, in taking testimony, is required to have it taken down, preferably' in narrative form, and, on objection being raised, to require the question, the objection and reason therefor, with his ruling, to be entered, and then, though he rule the question to be improper, allow it to be answered.</p> <p>2. Same — Certificate of Revision.</p> <p>Bankr. Order xxvii (89 Fed. xi; 32 C. C. A. xxvii) provides that, when a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any “order” made by the referee, he shall file his petition therefor, and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and the order of the referee thereon. Held that, where objections to evidence offered before a referee were sustained, the referee, at the request of the party offering the same, was not required to certify the objections made to the court for revision.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>3. Same — Witnesses—Contempt.</p> <p>r, Where a referee in bankruptcy, in taking the deposition of a witness, ruled that certain questions which the witness refused to answer and certain documentary evidence which he refused to produce were improper, immaterial, and impertinent, he was not required to certify the witness’ alleged contempt in refusing to so testify and produce evidence on the demand of one of the parties to the district judge for decision.</p> <p>4. Same — Discovery.</p> <p>Where one of the creditors objecting to a bankrupt’s discharge filed an amended specification, alleging on oath, as positive facts, different acts of the bankrupt, any one of which, if true, would prevent his discharge, such creditor was not entitled to discovery of certain books belonging to a partnership existing between a witness and the bankrupt’s son to prove such acts prior to the giving of evidence by the creditor himself.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Discovery, § 112.]</p>

<p>In Bankruptcy. On exceptions to report of referee sur petition of trustee for leave to sell certain property.</p>

<p>1. Bankruptcy — Claims—Presentation—Pleading.</p> <p>On presentation of claims of creditors against a bankrupt no pleadings are authorized except the claim duly verified, as provided by Bankr. Act July 1, 1898, c. 541, § 57, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], and such objections as the trustee or any creditor may interpose to the allowance thereof.</p> <p>2. Same — Original Securities — Attachment to Claim — Presumptions.</p> <p>Where it did not appear that the original notes and mortgage which were the basis of a claim against a bankrupt were attached to the claim as required by the bankrupt law, but no objection was urged on that ground, it would be presumed that such original securities were present at the trial, and not attached, or that their presence was waived.</p> <p>3. Same — Burden of Proof.</p> <p>Where a claimant against a bankrupt’s estate presented its claim in proper form, duly verified, except in certain particulars which the court treated as waived, such claim constituted a prima facie case in favor of the claimant, and the burden of proof was thereupon shifted to the objectors.</p> <p>4. Same — Principal Debtor — Husband and Wife — Evidence.</p> <p>Where a bankrupt testified that the money for which notes in controversy sought to be proved as a claim against his estate were given was borrowed, and used by him in his mercantile business, and was loaned to him on the strength of his wife’s signing the note with him, which evidence was uncontradicted, the facts that the wife’s signature on the note was above that of her husband, that the money was placed to the wife’s credit, and by her checked out to her husband, afid that she gave a mortgage on her separate estate to secure the same, were insufficient to sustain a finding that the debt was that of the wife, and not that of the bankrupt.</p> <p>5. Same — Rights of Surety — Subrogation.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 571, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], providing that whenever a creditor whose claim against a bankrupt’s estate is secured by the individual undertaking of any person fails to prove such claim the surety may do so in the creditor’s name, and if he discharge such undertaking in whole or in part he shall be subrogated to the extent of the rights of the creditor, where a bankrupt’s wife signed notes and executed a mortgage on her separate property to secure money borrowed for the bankrupt and used by him in his business, the wife, on payment of the loan, would be entitled to subrogation to the creditor’s rights, or, in case the latter failed to prove the claim, to prove it in the creditor’s name.</p>

<p>1. Interstate Commerce-JTederai, Courts — Mandamus.</p> <p>Tlie only authority for the issuance of mandamus by a federal court in a suit by a shipper to prevent unlawful discrimination by an interstate railroad is conferred by Act Cong. March 2, 1889, c. 382, 25 Stat. 855 [U. S. Comp. St. 1901, p. 3157], supplementary to the interstate commerce act and its amendments, providing that the federal Circuit and District Courts shall have jurisdiction, on relation of any person, firm, or corporation, alleging violation by a common carrier of any of the provisions of the act which prevents relator from having interstate traffic moved on terms or conditions as favorable as those given by the common carrier for like traffic under similar conditions to any other shipper, to issue mandamus to prevent such discrimination, etc.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent, Dig. Carriers, § 93.]</p> <p>2. Same — Contracts.</p> <p>Where an interstate railroad contracted with complainant and other shijipers to furnish coal and coke cars to such shippers on a basis that each shipper should receive such proportion of the total ear supply as the number of his coke ovens bore to the whole number of coke ovens operated in the field, and relator admitted the validity of such contract, and that a distribution according thereto was equitable, but alleged that it was discriminated against, in that it did not receive the proportion of cars to which it was entitled according to such distribution, a mandamus proceeding to compel an equitable distribution of cars according to such proportion was in effect a proceeding to enforce private contractual obligations, and not to prevent discrimination in violation of interstate commerce act, as amended by Act Cong. March 2, 1889, c. 382, 25 Stat. 855 [U. S. Comp. St. 1901, p. 3157], and was therefore unsustainable.</p>

In Equity. Suit for injunction perpetually restraining defendant, Hegeman & Co., from in any form or manner whatsoever making use of the name “Healing” or “Healing Springs” in connection with any water not from the spring of the complainant, and from in any form or manner placing or causing to be placed upon containers of water not containing water from such spring, or upon the advertising indicia relating to such water, the name “Healing” or “Healing Springs,” or any name…

<p>In Bankruptcy. On certificate from referee sur application of bankrupt for a discharge.</p>

<p>Master and Servant — Implied Renewal oe Employment — Action of Board of Trustees.</p> <p>Plaintiff was elected resident physician for a state hospital for the insane, for several terms of one year each. At the expiration of one of such terms the board of trustees postponed action on the election of a physician, and continued to postpone the matter for several meetings, when-a successor to plaintiff was elected, and she was notified of such fact. She had full knowledge of the action taken at each meeting. Held that, under such circumstances, there was no implied contract employing plaintiff for another year, but at the expiration of the year for which she had been elected her employment was subject to termination at any time either by the board or by herself.</p>

■ In Error to the Circuit Court of the United States for the District of Minnesota. This was an action by an administratrix, on behalf of the next of kin, to recover damages for the death of her intestate. There was substantial evidence tending to show that the death resulted from an injury caused by the negligence of the defendant, which would have given the deceased a right of recovery, had he lived. The injury and death occurred at South St. Paul, Minn., March 13, 1903.

<p>In Error to the Supreme Court of the Territory of Oklahoma.</p>

■ Appellant’s bill on account of the alleged infringement of letters patent No. 690,563, January 7, 1902, to Cobb, assignor, for improvements in bottle-washing machines, was dismissed for want of equity.

<p>Patents — Infringement—Carpet Fastener.</p> <p>The Donchian patent, No. 541,320, for a carpet fastener, consisting of two sections, one to be attached to the carpet, and having a projecting stud, and one to be fastened to the floor, and provided with a central opening, is limited by the language of its claim and by the construction given it by the patentee when before the Patent Office to a structure having two distinct and material features, namely, a base section shaped to snugly fit the concaved under surface of the upper section, and a central opening in the base section, the walls of which fit closely about the stud at both its ends to give a compact, solid, and firm union between the two. As so construed, held not infringed by a structure in which the two sections are loosely connected to permit the upper to rock freely upon the lower section.</p>

Suit in equity to enjoin alleged infringement of United States letters patent to Almon K. Virgil for instruments for teaching the playing of the piano, viz., No. 344,462, June 29, 1886, claim 4; No. 344,464, June 29, 1886, claim 1; No. 391,439, October 23, 1888, claim 1; and No. 479,339, July 19, 1892, claims 1 to 12, inclusive, and claims 14,17, and 18.

In Equity. Bill in equity for injunction restraining alleged infringement of United States letters patent No. 646,148, issued March 21, 1900, to Elizabeth Kent and Roscoe R. Bell, assignees of the alleged inventor, William J. Kent, for hoof-pad. Application filed July 36, 1899.

In Equity. Suit to restrain alleged infringement of United States letters patent No. 500,371, dated June 27, 1893, application filed December 19, 1892, and issued to the alleged inventors, Gustav A. Braehhausen, of Hoboken, N. J., and Paul Reissner, of Eutritzsch, Germany.

<p>Patents — Validity and Infringement — Rail Bendeb.</p> <p>The Storm patent, No. 344,793, for a rail bender, used by track hands for bending railroad rails, adds nothing to a device previously in use, except its equipment with rollers to grasp the rail, and by means of which the machine may be moved along to successive positions without releasing the pressure by which it holds the rail, and is entitled to only a narrow construction, restricting it to the particular mechanism shown. Claim 1 is void, as too broad, in view of the prior art Claim 6 held not infringed.</p>

Bill of complaint in equity to perpetually enjoin alleged infringement of reissued letters patent No. 11,260, granted to William Henry Hannan, assignor to William Herbert Hannan, dated August 16, 1892, for improvements in thill-couplings, and an accounting. The original letters patent, No. 456,117, bore date July 14, 1891. Application therefor was filed November 17, 1890. Application for reissue was filed September 2, 1891.

<p>Patents — Invention—Thill Coupling.</p> <p>The Bradley patent, No. 485,856, for a thill coupling, consisting of a spherical knuckle on the end of the thill iron, and a draft eye composed of two parts, one rigid and one movable, hinged together at the front end, and having a spherical cavity in which the knuckle fits, was not anticipated, and discloses invention. Claims 1 and 2 also held infringed.</p>

<p>1. Patents — Anticipation—Rejected Application eob Patent.</p> <p>While a rejected application for a patent is not a bar to a subsequent patent to another for the same device, the fact of such rejection does not of itself characterize the invention as an abandoned experiment, and if it, in fact, had passed beyond the experimental stage and was in practical and successful use, it cannot thereafter be appropriated and patented by another.</p> <p>2. Same — Tilting Bins.</p> <p>The Bacon patent, No. 447,532, for a tilting bin, is void, the bin shown having been previously made and put into use by another.</p>

<p>Patents — Assignment—Invention of Employé.</p> <p>Where a patent was applied for after the termination of an employment under a contract providing that the employé would execute any and all assignments in writing which might be deemed by the employer-proper and necessary to transfer and vest in it the entire right, title, and interest to all inventions and discoveries made by the employé during the term of his employment, the patent vested in the employé, and the burden was on the employer to show by the weight of proof that the invention covered thereby was made by the employé during his employment.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent Dig. Patents, § 125.]</p>

<p>1. Shipping — Injury to Vessel at Dock prom Swell — Negligent Navigation oe Steameb.</p> <p>A large steamer, proceeding in New York Harbor at such speed that her swell caused the sinking of a schooner a mile away, by striking her against a dock at which she was discharging, held liable for the damage caused; it being shown that, either from her construction or the speed with which she was customarily navigated, she was known to be peculiarly liable to cause swells dangerous to other shipping, which required the exercise of unusual care in her navigation.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 345.]</p> <p>2. Same — Liability eoe Damages.</p> <p>It is not a defense to a suit to recover for an injury to a vessel caused by the swell of a passing steamer that other vessels were not injured, or that the one injured might have prevented the injury by taking unusual precautions.</p>

<p>Bankruptcy — Partnership—Insolvency.</p> <p>A partnership is not insolvent, within the meaning of. Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [Ü. S. Comp. St. 1901, p. 3418], when the property of the partnership, together with that of the individual members, exceeds in value the indebtedness of the firm and members.</p>

<p>L Licenses — Power of City to Impose License Tax — Gift Entebpeises.</p> <p>In Sand. & H. Dig. Ark. § 5132, authorizing cities to tax, license, and suppress certain occupations named, among them ‘‘gift enterprises,” such term means schemes for the distribution of property into which some element of chance enters, and the statute does not confer power on a city to impose a license tax upon the occupation of selling' trading stamps to merchants, which are given by them to cash customers as a premium, and redeemed by the seller in merchandise at their face value in whatever sums presented by such customers.</p> <p>2. Same — Constitutionality of Ordinance — Occupation of Selling Trading Stamps.'</p> <p>The selling of trading stamps, redeemable by the seller in merchandise • at their face value whenever presented, to merchants, to be given by them to cash customers as a premium, is a lawful and legitimate vocation, not injurious to the public, and a city ordinance imposing a license tax on such occupation of 850 per week is void as unreasonable and an, infringement upon the constitutional liberty of the citizen.</p> <p>3. Jurisdiction of Federal Courts — Amount in Controversy.</p> <p>In a suit to enjoin the enforcement of an ordinance imposing a license tax on complainant’s business, alleged to be prohibitory, the amount in controversy, for the purpose of determining the jurisdiction of a federa® court, is the value of such business.</p> <p>4. Equity Jurisdiction — Federal Courts — Substantive Right Given by State Statute.</p> <p>The Arkansas statute (Sand. & H. Dig. § 3778), authorizing an injunction against all unauthorized taxes or assessments by counties, cities, or other local tribunals, boards, or officers, does not merely affect the remedy, but gives a substantive right, which may be enforced on the equity side of a federal court.</p>

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

<p>In Bankruptcy. On review of referee’s report as to exemptions.</p>

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

<p>Removal of Causes —Time fob Filing Petition — Time to “Answeb ob Plead.”</p> <p>A petition for the removal of a cause from a court of common pleas of Philadelphia county, Pa., in which, by rule of court, the defendant is given four days from service of statement on him to file any dilatory plea, and by the procedure act fifteen days within which to file affidavit of defense, must be filed within the four days, which is the time when he is required to “answer or plead” within the meaning of the removal statute.</p> <p>[Ed. Note — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, §§ 136, 141-146.]</p>

<p>Seaman — Injuby in Course of Duty — Liability of Vessel.</p> <p>A tug is not liable for an injury to a fireman received accidentally while tightening nuts on the machinery, which was in general good repair— the work being such as he was familiar with, and not in itself dangerous-—but is liable for the expense of his cure, and his maintenance in the meantime while he is disabled.</p> <p>[Ed. Note. — For eases in point, see vol. 43, Cent Dig. Seamen, §§ 39-42. 187.]</p>

<p>In Admiralty. Petition of the Eastern Dredging Company, as owner of scow No. 34, for limitation of liability.</p>

<p>Customs Duties — Classification—Surgical Needles;</p> <p>- The provision in Tai-ifC Act July 24, 1897, e. 11, § 2, Free List, par. 620, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685], for “Band sewing” needles, relates to sucb as are used by persons generally wbo use needles, and does not include surgical needles.</p>

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

<p>Bankruptcy — Claims—Allowance.</p> <p>On a cigar manufacturer being adjudged a bankrupt, claimant -was entitled to receive from him 40,750 cigars, for which claim was filed before the referee in bankruptcy. Thereafter a corporation was organized to continue the bankrupt’s business, purchase his assets, etc., and, desiring claimant to continue to act as its sales agent, agreed to* protect claimant in its claim, and suggested that, as the claim was a legal one against the bankrupt’s estate, if claimant' would assign the same to the corporation’s attorney he would prove the claim before the receiver, to which claimant replied that it would present its claim to the receiver, and, if the corporation so shipped the cigars, claimant would return to it any dividend received on its claim. Held, that such arrangement did not operate as a payment of the claim against the bankrupt, and that claimant was entitled to prove the same against his estate.</p>

<p>Overruling Motion for a New Trial.</p>

<p>■Judgment — Vacation—Defenses—Discharge in Bankruptcy.</p> <p>Where a bankrupt was not ruled to plead in an action against him until more than three months after his discharge in bankruptcy, but failed to interpose such discharge as a defense until after judgment, he was not entitled to have the judgment set aside in order that he might interpose such plea, on the ground that he was led to believe that the receiver would protect his interest and interpose such defense.</p>

<p>Bankruptcy — A d verse Claim to Property.</p> <p>Evidence held insufficient to sustain an adverse claim to property in possession of a bankrupt on the ground that tie obtained it by fraud, it appearing that when claimant sold the property he fairly understood the bankrupt’s financial condition.</p>

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

<p>Bankruptcy — Fraudulent Transfer of Property by Bankrupt — Action to Recover.</p> <p>Instructions considered and approved in an action by a trustee in bankruptcy to recover tbe value of property alleged to have been transferred by the bankrupt with intent to hinder, delay, and defraud his creditors.</p>

<p>Sale — Action to Recover Price Paid for Account — Construction of Guaranty...... _</p> <p>_ Defendants contracted to do certain advertising in their newspaper, and to take in payment two automobiles at a stated price, and the balance of the account in machinery made by a certain company. Plaintiff desired to buy the account so far as machinery could be obtained therefor, and in the belief, induced by defendants, that the whole account would be paid in machinery, at his option, he purchased and paid for the same, but took a written guaranty from defendants that, if it was not so paid, they would refund the amount received. The advertiser delivered machinery to the amount in excess of the price of- the automobiles, but, as to them, insisted upon the terms of the contract. Held, that the, purpose of the contract of guaranty was to protect plhintiff in such contingency, ánd that he was entitled to recover thereon the amount paid for that portion of the account for which he could not obtain machinery.</p>

<p>1. Criminal Law — Murder—Sentence—Solitary Confinement.</p> <p>V. S. §§ 4886, 2007, fix the punishment of murder in the first degree at death, and declare that at the time sentence of death is pronounced, if six months intervene before execution, the sentence shall be to hard labor in the State Prison until three months before execution, and to solitary confinement from the time of hard labor to the time of execution. Sections 1997 and 1998 authorize a new trial to be granted by two judges of the Supreme Court, and require, if they do so, that they shall allow a stay; and section 1999 declares that if the petition is refused the court shall appoint a time for execution; and Const. § 11, c. 2, provides that in cases of murder the Governor may grant a reprieve until after the next session of the Assembly, but no pardon. Held, that where petitioner was sentenced in December, 1903, for murder, to imprisonment at hard labor until three months before February 3, 1905, and to solitary confinement during that time, and then to be executed, but she was reprieved until June 23d, the keeping her in solitary confinement subsequent to February 3d constituted a separate severe punishment, to which she had never been sentenced, and was a deprivation of her right to be freed therefrom without due process of law.</p> <p>2. Same — Fedebal Court — Jurisdiction.</p> <p>The federal court has no jurisdiction to interfere in any manner with state proceedings for the execution of a sentence against a convicted criminal, except to prevent any of the privileges or immunities of such person under the federal Constitution from being infringed.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 1383.]</p>

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

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

<p>1. Customs Duties — Bottles—Dutiable Value — Fittings.</p> <p>Held, that the cost of the fittings for filled bottles, consisting of corks, caps, capsules, labels, and wiring, should be treated as part of the value-of the bottles on which the ad. valorem duty should be assessed which is provided on filled bottles by paragraph 99, Schedule B, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 156 [ü. S. Comp. St. 1901, p. 1633].</p> <p>2. Same — Filled Bottles — Distribution oe Charges.-</p> <p>Under Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U. S. Comp. St. 1901, p. 1924], which provides that the dutiable ■ value of merchandise subject to an ad valorem duty shall include “the value of all cartons, cases,” etc., containing the merchandise, held, as to importations of goods in bottles, which are dutiable under one provision of the tariff act and the bottles under another, that the value of the cases containing the goods should be distributed between the bottles and their contents according to the value of each, the value of the bottles for this purpose being inclusive of the cost of their fittings, consisting of corks, caps," capsules, labels, and wiring.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review related to importations at the port of New York made by Fuld & Company, A. Levinson, and Gustav Lewkowitz, and overruled the protests of those parties against the assessment of duty by the collector of customs at that port. The opinion of the board, so far as pertinent to the present cases, reads as follows: FISCHER, General Appraiser.

• On Application for Review of a Decision of the Board of United States General Appraisers. The decision below, G. A. 5,143, T. D. 23,745, affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by William Meyer & Company.

<p>At Law. On motion for new trial.</p>

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, entered upon verdict of a jury in favor of defendant in error, who was defendant below. The same controversy was before this court sub nomine. Livermore v. Brauer, 128 Fed. 265, 62 C. C. A. 647.

The relator, Nelson B. Hughes, stole a gold watch in Putnam county, Ind., August 4, 1898. On the same day, affidavit was made before a justice of the peace of Putnam county, charging relator with the offense of larceny. The justice thereupon issued a warrant for Hughes’ arrest, which was duly executed, and the warrant, with its return, filed in the office of the Putnam circuit court.

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

<p>In Error to the Circuit Court of the United States for the District of Montana.</p> <p>This is an action for damages alleged to have been sustained by the plaintiff (defendant in error) in consequence of the negligence and delay of the. defendant in transporting 12 car loads of the plaintiff’s cattle over its line of railroad from Winnipeg Junction, Minn., to Eallon, Mont It is alleged that the negligent conduct of the defendant consisted in the failure to provide an independent train, with independent power, for the transportation of the plaintiff’s cattle, in the negligently slow rate of speed at which the cars containing the cattle were hauled, and the negligent manner of starting and stopping the said cars, by reason whereof many cattle were bruised, crippled, made sick and sore, and otherwise injured, resulting in damages to the plaintiff in the sum of $10,072. The defendant railway company denies any negligence on its part in transporting the cattle, and avers that the plaintiff and his agents overcrowded the cattle in loading them into the cars, and any injury sustained by said cattle was contributed to by the said crowding. It avers that it furnished an independent train, with independent power, as soon as demanded, and alleges, as matter of defense, that the principal delay in hauling the train containing the plaintiff’s cattle was caused by the unusually severe snowstorm and blizzard, producing conditions over which the defendant had no control. The defendant further charged that the plaintiff had no right of action upon the contract, as he had not complied with the terms thereof, in that he had not brought the action within 60 days after, the alleged damage was said to have occurred, and had not given any written notice of his claim for damages to any officer or agent of the defendant before removing the said stock from the place of destination.</p> <p>The plaintiff shipped 12 car loads of cattle from Winnipeg Junction, Minn., to Fallon, Mont., over defendant’s line of road, under a written contract. The distance from Winnipeg Junction to Fallon is 471 miles. The train hauling the cars containing plaintiff’s cattle left Winnipeg Junction May 1, lS^O, at 5 p. m. It arrived at Fallon on May 4, 1899, at 3 p. m. The plaintiff testified that the usual running time for stock trains was from 15 to 25 miles an hour. At the rate of 15 miles an hour, the train should have made the distance in 36% hours, including 5 consecutive hours required by section 4386 of the Revised Statutes [U, S. Comp. St. 1901, p. 2995] for rest, water, and feeding, when the transportation of cattle is for a longer period than 28 consecutive hours. The time actually consumed in transporting the cattle to their destination was 70 hours. The 12 cars containing the cattle were attached to a local freight train from Winnipeg Junction to Mandan, a distance of 226 miles, at which point the cattle were unloaded by the plaintiff, cared for, and reloaded into the cars. The plaintiff there demanded a special, independent locomotive for the hauling of the cars, which was furnished, and the train proceeded independently from that point to Richardton, a distance of 86 miles, where a delay of some 11 or 12 hours occurred by reason of a severe snowstorm, and an accident to the switch which prevented the train from leaving a side track. From this point to the point of destination, 159 miles, the train appears to have proceeded without difficulty, and no complaint is made as to this portion of the service. The evidence tended to show delays at several points between Fargo and Richarclton, for which the defendant company was responsible. The evidence also tended to show that plaintiff shipped 582 head of cattle from' Winnipeg Junction, all in good condition. When the train arrived at Mandan, the stock was in bad condition. Two had legs broken, and 9 were dragged out of the cars because they could not be got up, on account of bruises they had received on the way, from being thrown down and crippled. The next morning at Mandan 9 of the cattle were dead, and 3 others were dying. Twelve were left at Mandan. The cattle were in very bad condition on arrival at Fallon. Forty-five more were dead, 7 more died on being taken from the cars, and 54 were left at Fallon because they could not walk. Within 10 days 122 were dead, others crippled, and still others were more or less injured.</p> <p>The ease was tried with a jury, resulting in a verdict for the plaintiff in the sum of $3,000, and judgment was entered thereupon. To reverse this judgment a writ of error has been sued out to this court.</p>

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

<p>1. Highways — Defects—Injuries—Pleadings.</p> <p>A complaint in an action against a town for injuries caused by a defect in a highway was not demurrable for failure to set forth with sufficient clearness that the defect relied on was the same defect as set out in the notice to the town required by Gen. St. Conn. 1902, § 2020, as such fault, if it existed, might be cured by amendment.</p> <p>2. Same — Notice—Location of Defect.</p> <p>Where a notice of a defect in a highway alleged to have caused plaintiff’s injuries was couched in such terms as were sufficient to enable</p> <p>' an ordinarily intelligent person to find the place and understand how and when the accident occurred, it constituted a sufficient compliance with Gen. St. Conn. 1902, § 2020, requiring as a condition precedent to suit that a written notice of the injury, and a general description of the same, the cause thereof, and the time and place of its occurrence, be given within 60 days to a selectman of the town.</p> <p>[Ed. Note. — For cases in point, see vol. 25, Cent Dig. Highways, § 515.]</p>

<p>In Admiralty. On application for order fixing amount of bond.</p>

This cause comes here upon writ of error to review a judgment of the Circuit Court, Northern District of New York, in favor of the defendant in error who was plaintiff below. The cause was tried upon stipulation by the court without a jury, and the facts and conclusions thereon are reported in 133 Fed. 70.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>The Circuit Court of Appeals certified certain questions in the case to the Supreme Court, which were answered in Vanderbilt v. Eidman, 196 U. S. 480, 25 Sup. Ct. 331, 49 L. Ed. 563.</p>

<p>Appeal from the United States Court of Appeals in the Indian Territory.</p>

<p>Overruling Motion for a New Trial.</p>

<p>Granting a New Trial.</p>

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