Volume 139 — Federal Reporter

<p>Customs Duties — Maeket Value — Remission ox Taxes — Special Local Taxes.</p> <p>The provision in section 10, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 136 [U. S. Comp. St. 1901, p. 1922], that appraisers shall ascertain “the actual market value and wholesale price of merchandise * * * in the principal markets of the country whence the same has been exported,” contemplates some value prevailing generally in the foreign country, and not some varying local value, and does not require that there should be included in the market value of goods imported from France certain special taxes, known as “droit de ville” and “octroi,” which are remitted on exportation, but are not uniformly imposed throughout the country, nor uniform in amount.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Customs Duties, § 183.]</p>

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

Appeals from the Circuit Court of the United States for the Southern District of New York. These causes come here upon appeals from decisions of the Circuit Court, Southern District of New York (131 Fed. 649), reversing decisions of the Board of General Appraisers (G. A. 5,329, T. D. 24,373), which affirmed the collector of the port of New York in his assessment for duty of certain merchandise under the tariff act of 1897.

<p>In Error to the Circuit Court of the United States for the District of Massachusetts.</p> <p>The International Trust Company brought action against John W. Weeks, shareholders’ agent of the Broadway National Bank, on a covenant in a lease of a part of a building previously occupied by the bank before insolvency. August 11, 1898, Henry Parkman and others, predecessors in title of the plaintiff, executed a written lease of the premises to the bank for a term of 10 years from April 1, 1899, at an annual rental of $6,000; the lease containing the following clause:</p> <p>“Provided, always, and these presents are upon this condition, that if the said lessee or its successors or assigns do or shall neglect or fail to perform and observe any or either of the covenants contained in this instrument, which on its or their part are to be performed, or if the said lessee shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of its property for the benefit of creditors, then and in either of the said cases the lessors, or those having their estate in the said premises, lawfully may, immediately or at any time thereafter, and whilst such neglect or default continues, and without further notice or demand, enter into and upon the said premises or any part thereof, in the name of the whole, and repossess the same as of their former estate, and expel the said lessee and those claiming under it, and remove its effects (forcibly, if necessary), without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant; and thereupon the lessors may, at their discretion, relet the premises at the risk of the lessee, who shall remain for the residue of said term responsible for the rent herein reserved and shall be credited with such amounts only as shall be by the lessors actually realized.”</p> <p>On March 29, 1899, Henry Parkman and others sold the building to the plaintiff trust company, and on December 16, 1899, the lessee bank became insolvent, and the Comptroller of the Currency was appointed a receiver. On February 15, 1900, the Comptroller released the estate of the bank' to the defendant, as the stockholders’ agent, and between December 16, 1899, and February 5, 1900, plaintiff entered upon the premises, and repossessed itself of the same as of its former estate. The demised premises were occupied by the receiver, and afterwards by the stockholders’ agent, from the time of the failure of the bank up to and including May 18, 1900, and full compensation therefor to the amount of the rent referred to in the lease was paid to the plaintiff. This occupancy and payment under an agreement between the parties was not to affect or prejudice their respective legal rights.</p> <p>Pursuant to the direction of the Court of Appeals, the court, among other things, charged the jury that the owner of the property, having entered into possession, might then decide to terminate the contract, not merely the lease, but the mutual obligations of the parties, so far as the future was concerned, for all purposes whatsoever (in other words, it might have terminated the lease in the usual sense in which it is understood a lease is terminated), or it might, as said in the lease, relet the premises at the risk of the lessee, holding the lessor (that is, the stockholders’ agent) responsible for whatever amounts they should not receive from the tenants to whom the premises were let from time to time. The plaintiff also had a right to elect which of those things it would do, but, in order to make defendant liable under such provision of the lease, plaintiff must, within a reasonable time after entering into possession, have made its election to relet, and manifested that election by a reasonable attempt to do so. But defendant was not bound to tender plaintiff a certain trust company as a tenant, unless plaintiff had elected to let the property at the risk of the bank. Assuming that plaintiff had taken possession of the premises under such circumstances that, in accordance with the terms of the lease, it had a right to sublet at the risk of the bank or its agent, then the jury must find, in order to find for plaintiff, that it made honest and reasonable efforts to relet; that its efforts in that direction were those which a reasonable landowner, under the circumstances, would exercise. “Xou see that these two questions are: First, has the defendant proved by reasonable preponderance Of the evidence that it elected to relet the premises, and seasonably manifested that election? And, secondly, has it used reasonable care in subletting or reletting the property? Upon either of these topics, if the plaintiff has not satisfied you by the fair preponderance of the evidence in the case, as I have explained to you, your verdict must be for the defendant; otherwise your verdict will be for the plaintiff.”</p> <p>Plaintiff requested the court to charge: (1) That, upon the insolvency of the lessee bank, plaintiff was entitled to enter upon the premises and to repossess the same as of its former estate, and, at its discretion, to relet the premises at the risk of the lessee bank, in which case the bank would remain liable under its covenant to that effect for the residue of the term for the amount stipulated as rent in the lease, less such amounts as shall be collected by the plaintiff for the rent or use and occupation of the premises, or any part thereof. (2) That, in order to hold the lessee bank liable for the amount of the rent for the residue of the term under such covenant, it was not obligatory upon plaintiff to notify the bank of its election so to do. (3) That, in order to hold the lessee bank liable for the amount of the rent for the residue of the term under such covenant, it was not obligatory on plaintiff to relet the premises, or to attempt to relet them.</p> <p>The requests being refused, and the verdict being for defendant, plaintiff severally assigned as errors the court’s refusals so to rule.</p>

<p>1. Navigable Waters — Bridges—Lawfulness of Structure.</p> <p>A bridge across a navigable stream built under authority given by the state prior to the enactment of any federal legislation on the subject is a lawful structure.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 74.]</p> <p>2. Same — Right to Rebuild Lawful Bridge — Temporary Structures.</p> <p>The right to maintain a railroad bridge lawfully built across a navigable stream carries the right to rebuild the same in whole or in part when required for the safety of travel and transportation, and also the right to build such temporary structures in the stream as may be necessary to prevent the interruption of the operation of the railroad, and to maintain the same for a reasonable length of time.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Navigable Waters, § 99.]</p> <p>3. Same — Necessity of Consent of Congress.</p> <p>Neither the provision of' section 9 of the river and harbor act of March 3, 1899, as amended in 1900 (30 Stat 1150 [U. S. Comp. St. 1901, p. 3540]), that “it shall not be lawful to construct or commence the construction of any bridge * * * until the consent of Congress to the building of such structures shall have been obtained,” nor of section 10, prohibiting “the creation of any obstruction not affirmatively authorized by Congress,” applies to the rebuilding of a bridge which was lawfully in existence when the act was passed.</p>

<p>1. Patents — Infringement—Improvers.</p> <p>It is the well-settled rule that, where two inventors improve an old machine, each is entitled to the benefit of his own improvement, so long as it differs from that of the other, and does not include his.</p> <p>2. Same — Mattress-Stuffing Machine.</p> <p>The Stephenson patent, No. 399,093, for improvements in mattress-stuffing machines, with respect to the means employed for adjusting vertically the cover of the press box and spout, in adapting them to different sizes of mattresses, must be limited to the' means specified, or its equivalent, and cannot be broadly construed to cover any means for accomplishing the same result. As so construe.d, held not infringed.</p>

<p>1. Patents — Contract of Assignment — Grounds for Cancellation.</p> <p>A contract assigned the legal title to a patent for a gas producer to a trustee for the benefit of a company, in consideration of the payment by the assignee of one-third of all royalties received from licensees. The company subsequently engaged in the building of the producers itself, granting licenses to those to whom they were sold. The contract contained no provision respecting such building operations, which were not at that time contemplated, but the patentee was fully advised of the company’s action, and from time to time expressed his approval thereof. Held, that, while such operations were outside of the contract, he was es-topped by his acquiescence from claiming that they were in violation of it and entitled Mm to its cancellation, or from claiming a share of the profits of such business.</p> <p>2. Same — Trust—Equity Jurisdiction.</p> <p>Such contract required the company to keep accounts showing the licenses granted, which should be subject to the inspection of the patentee, and to account at stated periods for his share of the license fees received. Held, that the conveyance of the legal title to the patent on such conditions created a trust in both the trustee and the company in favor of the patentee in respect to one-third of the license fees collected, which a court of equity had jurisdiction to enforce, and that a bill alleging fraud in failing to account for fees, and in failing to charge the same to the company on sales made to customers which included licenses, and that the company refused to allow an inspection of its books, stated a cause of action for equitable relief.</p>

This is an appeal from a decree dismissing the bill of complaint in a suit to restrain the infringement of a patent. The appellant, the Sloan Filter Company, sued as the successor in title to Edward D. Sloan, patentee in letters patent No. 587,874, issued August 10, 1897, for improvements in barrel filters for use in the filtration of precious metal solutions, as in the chlorination process.

<p>Patents — Pbior Use — Locking Device eor Elevators.</p> <p>The Muckle & Teamer patent, No. 555,825, for a locking device for passenger elevators, claims 1 and 2, are void, being so broad as to include a device previously in use by others, and on which that of the patent is an improvement.</p>

<p>Patents — Interference—Suit fob Annulment.</p> <p>Rev. St. § 4918 [U. S. Comp. St. 1901, p. 3394], providing for suits to annul interfering patents, gives the court jurisdiction only to adjudicate between patents, the claims of which are substantially identical, and, where such identity is not shown, it cannot declare a later patent invalid for want of patentability.</p>

<p>Patents — Infringement—Bkeecii-Loading Guns.</p> <p>The Hepburn patents, Nos. 400,679 and 434,062, each for a breech-loading gun, construed, and held not infringed as to claims 1 and 5 of the former, and 10, 11, 12, and 21 of the latter, and infringed as to claim 27 of the latter.</p>

Suit in equity for alleged infringement of United States letters patent No. 539,713, dated May 21, 1895, application filed April 21, 1892, granted to Samuel N. Turner for “photographic film roll.” Defenses: Turner not inventor; in view of prior art no patentable invention; and aggregation.

<p>■Patents — Suit for Infringement — Laches.</p> <p>A device relating to automatic music-playing instruments was used generally by manufacturers of such instruments for more than 12 years after the issuance of a patent therefor without notice or objection from the owners of the patent, and in many cases without knowledge of it on the part of the users, and during such time large capital was invested in the business, and instruments embodying the device aggregating several millions of dollars in value were sold. Complainant, which was one of the manufacturers so using the device without right under the patent, became the owner of the patent some five years after it was issued, and continued the use of the device without marking the same patented or giving any notice of its alleged exclusive right to its competitors in business. Held, that it was estopped by its laches from maintaining a suit for infringement against another, who, in the meantime, had established the manufacture of instruments in which the device was used without knowledge of the patent.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Patents, §§ 468, 469.]</p>

<p>Ill Equity.</p> <p>Suit in equity to enjoin alleged infringement of claims 1 and 6 of United States letters patent No. 392,973, dated November 13, 1888, and issued to the Smith National Cycle Manufacturing Company as assignee of William E. Smith, the patentee, for bicycle (application filed February 16, 1888), and for an accounting. The suit was originally brought by the American Bicycle Company, but the present complainant, above named, by various assignments, has become the owner of the patent and of all rights of action. Some of the original defendants are out of the litigation, and others have come in, but these changes do not affect the questions now before the court. The defenses urged are: William E. Smith was not the inventor; anticipation by the prior art; the claims in controversy (1 and 6) show no patentable invention, in view of the prior art.</p>

<p>In Bankruptcy. On exceptions to decision of John M. Wilson, referee, sur petition of Good Roads Machinery Company, for the reclamation of property.</p>

<p>Customs Duties — Classification—Jacquaed Figubed Goods.</p> <p>Held, that silk goods woven on Jacquard looms, with broad and narrow stripes, the body between having a watered effect, are within the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391, 30 Stat. 187 [U. S. Comp. St 1901, p. 1670], for “Jacquard figured goods” of silk.</p>

<p>Chinese Exclusion — Persons Subject to Deportation — Merchant Becominq Laborer.</p> <p>A Chinese person who before, during, and for a long time after the time when Chinese laborers were required by the exclusion acts to register was lawfully domiciled in the United States as a merchant is not subject to deportation thereunder on subsequently becoming a laborer.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Aliens, § 77.]</p>

<p>At Law. On demurrer to statement of claim.</p>

<p>On Application for Review of Decisions of the Board of United States General Appraisers.</p> <p>The decisions reviewed affirmed the assessment of duty by the collector of customs at the port of New York on importations by the Schoellkopf, Hartford & Hanna Company. Note G. A. 5,658, T. D. 25,237.</p>

<p>Seamen — Injury in Service — Liability oe Ship eor Maintenance.</p> <p>A vessel cannot be held liable for tbe maintenance of an injured seaman beyond the term of the voyage, and after the ordinary medical and surgical resources for his cure have been exhausted.</p> <p>[Ed. Note. — Por cases in point, see vol. 43, Cent. Dig. Seamen, §§ 39-43, 187.]</p>

<p>1. Deed — Consteuction—Covenants—Conditions.</p> <p>In an action in ejectment, brought by a grantor to recover possession of land, because certain provisions in his deed, alleged to be conditions . subsequent, had been violated by the grantee’s assigns, held, that whether the provisions of the deed referred to are covenants or conditions is to be ascertained by a construction of the entire deed for the purpose of ascertaining therefrom the intention of the parties, and this regardless of the technical meaning of the terms employed; and that, if it appear doubtful whether the terms used import covenants or conditions, courts of law always incline to construe them to be covenants, in order to avoid a forfeiture of the estate.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 469, 471, 472.]</p> <p>2. Same — Clause of Reveetee.</p> <p>Held, also, that where, as in this ease, a clause of reverter was found in the deed, it would, in order to give it effect, control the construction of the deed to the extent of making the undertakings of the grantee, so far as the same were included in the reverter, conditions subsequent, rather than covenants.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Deeds, § 471.]</p> <p>3. Same — Breach by Geantee.</p> <p>Held, further, that the admitted breaches of the.grantee’s undertakings in this case were not embraced in the reverter, and that, inasmuch as it included some of the undertakings of the grantee, such undertakings as it did not include must be construed to be covenants.</p> <p>(Syllabus by the Court.)</p>

<p>In Admiralty. On motion to set aside service of monition.</p>

<p>Application for a writ of habeas corpus to discharge the petitioner from imprisonment under a sentence for selling liquor to an Indian to whom an allotment of land had been made within the Nez Perce Indian Reservation, in violation of the act of Congress of January 30, 1897 (29 Stat. 506, c. 109), which makes it a criminal offense to sell intoxicating beverages to Indian allottees. Petitioner discharged.</p>

<p>In Equity. On motion for preliminary injunction.</p> <p>Bill of complaint by D. E. Loewe & Co., of Danbury, Conn., against the California State Federation of Labor and others. On order to show cause why a temporary injunction should not issue, restraining the defendants from boycotting complainants’ business.</p>

<p>Petition for Discharge.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision under review reversed the assessment of duty by the collector of customs at the port of New York. The case involves the construction of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 454, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678], the pertinent part of which reads as follows:</p> <p>The term “statuary” as used in this act shall be understood to include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster, or from metal.</p> <p>The opinion rendered by the Board of General Appraisers reads. as follows:</p> <p>Waite, General Appraiser. The item in controversy in this case is described in the invoice as “round cistern with hauts relief, dancing cupids in Carrara marble.” It consists of a circular object in several pieces, the prominent sculptural work being children’s figures, • which are - almost in full relief. There seems no doubt that the article is of a sufficiently high grade of work to be classified under paragraph 454 of the tariff act of 1897, under which the importers claim, if it is “statuary” within the meaning of that provision. In our judgment, it should be so classified. The protest claiming a rate of 15 per cent, ad valorem under Act July 24, 1897, c. 11, § 1, Schedule N, par. 454, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678], and the Italian reciprocity agreement (31 Stat. 1979; T. D. 22,373), is accordingly sustained, and the collector’s decision assessing the article for duty at 50 per cent, ad valorem, as a manufacture of marble, under section 1, Schedule B, par. 115, of the act (30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]), is reversed.</p>

<p>1. Seamen — Wages—Payment—Time—Libel—Statutes.</p> <p>Under Rev. St. § 4529 [U. S. Comp. St. 1901, p. 3077], providing that a seaman engaged in the coasting trade shall be entitled to immediate payment of his wages on discharge, where seamen were discharged, and payment of wages refused, they were entitled to libel the vessel at once therefor, without instituting proceedings under sections 4546, 4547 [U. S. Comp. St. 1901, p. 3087], authorizing a preliminary inquiry by summoning the master to show cause for nonpayment of wages, and providing that if he fails to appear or to show that the wages have been paid or forfeited, and the matter be not settled forthwith, the judge or magistrate issuing the summons may then certify that there is sufficient ground to issue process in rem against the ship; such sections being permissive only.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Seamen, § 143.]</p> <p>2. Same — Seamen Shipped Conteaey to Law.</p> <p>Where the mate of a vessel of more than 50 tons burden, engaged in the coasting trade, had general authority to hire seamen, and engaged libelants to serve as members of the crew on a certain voyage, without making any agreement with them with respect to their wages, and they were received on board by the mate as members of the crew, and treated as such while at an intermediate port, without having ever assented to any contract to work for their passage without other compensation, it was the duty of the master to require libelants to sign shipping articles for the voyage before carrying them to sea, as required by Rev. St. § 4520 [U. S. Comp. St. 1901, p. 3073], and Act Cong. Aug. 19, 1890, c. 801, 26 Stat. 320 [U. S. Comp. St. 1901, p. 3065]; and hence such libelants were entitled to recover the highest rate of wages paid at the port of departure for the time of their actual service, as provided by Rev. St. §§ 4521, 4523 [U. S. Comp. St. 1901, pp. 3073, 3075],</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Seamen, § 69.]</p> <p>3. Same — Evidence—Judicial Notice.</p> <p>Where, on a libel for seamen’s wages on a coasting vessel, libelants were entitled to the highest rate of wages paid at the port of departure for the time of their actual service, and, though there was no direct evidence as to the going rate of wages at that port, intimate commercial relations existed between the port of departure and port of destination, the court would take judicial notice of such relations, and, in the absence of proof to the contrary, would infer that the highest rate of wages at the port of departure was not less than the usual wages paid at the port of destination.</p>

<p>Plea in Abatement.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 5,599, T. D. 25,065, which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Herman Kraut, and overruled the importer’s contention that the goods should have been classified under the provision in paragraph 257, Schedule G, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 17Í [U. S. Comp. St. 1901, p. 1650], for “vegetables in their natural state, not specially provided for.”</p>

<p>Customs Duties — Classification—Un wrought Glass Plates Polished.</p> <p>In construing the provision in Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 565, 30 Stat. 198 (U. S. Comp. St. 1901, p. 1684), for “glass plates or discs, rough cut or unwrought,” with the proviso that “discs exceeding eight inches in diameter may be polished sufficiently to enable the character of the glass to be determined,” held, that the proviso does not require the exclusion from said paragraph of polished square plates less than eight inches across, where the polishing is done simply to determine the character of the articles, is of no other use, and is taken off in their manufacture.</p>

<p>Contracts — Construction—Additional Terms.</p> <p>Where a contract for the sale of coal lands provided that the parties agreed to sell and convey, or cause to be conveyed, “the coal in and under the tracts of land hereinafter described and referred to and as stated in the contract of sale, options and deeds hereinafter named,” and one of the options did not specify any particular kind of coal, but during an interval which elapsed between the date the contract was signed and the date of the payment, by which the option was converted into an absolute contract to purchase, plaintiff had an opportunity to learn the nature of the option and investigate the existence of and character of the coal underlying the land, he was not entitled to reject such option on the ground that the coal underlying the land referred to therein was not of the kind intended to be purchased.</p>

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

<p>1. Federal Courts — Jurisdiction—Comity.</p> <p>Where a state court having jurisdiction of the administration of an insolvent’s estate authorized plaintiff to sue its receiver “in any court of competent jurisdiction” to enforce plaintiff’s contract and to settle and. determine the rights of the parties thereunder, the necessary jurisdictional facts appearing to entitle plaintiff to sue in a federal court, such court was not prevented by comity from assuming jurisdiction.</p> <p>2. Same — Judgment—Form—Scope and Operation.</p> <p>Where, in replevin against a receiver tried by a federal court without a jury, the trial judge filed a memorandum declining to decide the case on its merits, on the ground of comity, but entered a finding for the defendant, and rendered judgment that defendant recover of plaintiff the possession of the property described in the complaint, or, in case a delivery could not be made, its value together with damages, such value and the amount of damages to be thereafter adjudicated and ascertained, such judgment was in form a judgment on the merits, which was res adjudicata against plaintiff’s claim, and was therefore error.</p>

<p>1. Corporations — Banking Companies — Stockholders—Liability to Creditors — Statutes—Nature and Effect.</p> <p>The liability of stockholders to creditors of a banking association under Acts Gen. Assem. Md. 1892, p. 156, c. 109, § 85Í, declaring that each stockholder shall be liable to depositors and creditors for double the amount of stock at par held by such stockholder, though statutory, was contractual in its nature; each stockholder voluntarily agreeing to incur the liability at the time he became such, which liability was not a corporate asset, but a debt due directly by the stockholder to creditors of the corporation who became such while the stockholder held its stock.</p> <p>2. Same — Statutes—Constitutionality—Obligation of Contract — Impairment.</p> <p>Acts Gen. Assem. Md. March 25, 1904, p. 179, e. 101, repealing the pre-existing remedy of a creditor to bring a separate action at law to enforce a several statutory liability against a stockholder of a banking association for corporate debts to the extent of an amount equal to the par value of the stock held by him, conferred by Acts Gen. Assem. Md. 1892, p. 156, c. 109, § 85Í, and substituting therefor a remedy by bill in equity on behalf of all creditors against all stockholders in the state, and declaring that such statutory liability shall constitute an asset of the corporation if necessary to pay debts, etc., not only changed the remedy, but abrogated the contract right conferred by such former statute, and was therefore unconstitutional, as impairing the obligation of contract, as against creditors of a Corporation who became such and had brought suit to enforce such statutory liability prior to the passage of the act.</p>

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

This is a bill in equity by appellants, the executrices of Augustus Frank, resident citizens of the state of New York, against the appellee, Butler county, in the state of Nebraska, seeking to recover the principal and interest of 40 bonds held by said Frank at the time of his death, claimed to have been issued by said county in aid of tbe construction of tbe Lincoln & Northwestern Railroad Company.

<p>In Error to the Circuit Court of the United States for the Western District of Arkansas.</p> <p>This is an action'instituted by plaintiffs in error against the defendant in error to recover $2,605.53, the value of 50 bales of cotton alleged to have been delivered to the defendant company by plaintiffs at Texarkana, Tex., to be transported to Utica, New York. The defendant company, a railroad corporation in the state of Texas, had its depot station in Texarkana on the Texas side, the state line between Texas and Arkansas running through said city. The defendant company had no line of railway from Texarkana to Utica, N. Y., but had a traffic arrangement for the division of revenues between it and connecting carriers between Texas and Utica. The defendant company had authority to give a bill of lading for the shipment of cotton made over the through line, the rate of shipment from Texarkana to St. Louis being 25 cents per 100 pounds, and from there to Utica 60 cents, making in the aggregate 85 cents. The petition alleged that the defendant company held itself out as a common carrier for such transportation.</p> <p>The Union Compress Company was an independent corporation, engaged in the business at Texarkana of compressing cotton delivered by shippers at said point for transportation. Its platforms for such purpose were on the Arkansas side of the state line. According to the usage of such business which prevailed at that place, as at other shipping points in Texas and Arkansas, when cotton was brought in by shippers it was unloaded at the platforms of the compress company, and a receipt taken therefor from said last-named company by the shipper, which he would carry to the agent of the railroad company, who would take the same up, and issue, based thereon, a bill of lading to the shipper. The compress company retained possession of the cotton until such time as it could compress the same, and when compressed it delivered the same on board the cars of the railroad company. The bill of lading in this case contained the following stipulation: “That neither the Texas & Pacific Railway Company nor any connecting carrier handling said cotton shall be liable for damages to or destruction of said cotton by fire, nor for any loss thereof or damage thereto. by causes beyond its control.” It contained the further stipulation that: “Each carrier over whose route the cotton is to be carried hereunder shall have the privilege, at its own cost, of compressing same, for greater convenience in handling and forwarding, and shall not be responsible for deviation or unavoidable delays in procuring such compression.” Two days after the cotton was so left upon said platform it was destroyed by fire, in connection with a large amount of cotton belonging to other shippers, with which it had been mingled. The fire was caused by sparks communicated to some part of the quantity of cotton on the platform from a passing engine of another railroa'd company.</p> <p>The petition alleges that said platform of the Union Compress Company was not a safe place on which to keep cotton; that it was not inclosed, and no proper provision was made to prevent its destruction by fire; that the compress company had failed to provide suitable or proper apparatus for putting out fires, or to keep proper watch over the same; and that it was destroyed by reason of the negligence of those in charge thereof. The further allegation of the petition is that the defendant railroad company received the cotton from the plaintiffs and turned the same over to the compress company as its agent, to be compressed, and that it is responsible for the negligent act of its agent.</p> <p>The answer denied that the defendant company received the cotton from the shipper; but alleges the facts, as above stated, that the shippers delivered the cotton in fact to the compress company as an independent contractor, and that it was not at the time the agent of the defendant company for the compression and preparation of said cotton for transportation. It put in issue the allegation of the petition that it held itself out as a common carrier for said cotton from Texarkana to Utica, or that it was in partnership with the other roads which were to carry the cotton to its destination. It admitted that it had a traffic arrangement with the other roads upon a division of revenues for the carriage of said cotton over the lines to Utica, N. Y. The answer alleged that the entire line owned and operated by the defendant was in the state of Texas; that it had its own depot station in Texarkana, in the state of Texas; and that the cotton was delivered as aforesaid at said platform of the compress company for compression according to the rules and regulations that prevailed in such matters.</p> <p>The evidence tended to show that the cotton, while on said platform, was not properly safeguarded against accident or destruction by fire, and that the servants of the compress company perhaps did not keep sufficient watch over the cotton to prevent its destruction in the event of fire being communicated to it by railroad engines passing said platform.</p> <p>The Railroad Commission of the State of Texas had adopted and maintained in force the following rule in reference to the receipt of cotton by railroads in Texas located on cotton compress platforms: “When cotton is tendered to railroad companies upon compress platforms, which is situated on the track of such railroad companies, it shall be the duty of the railroad companies to take charge of and receipt for such cotton in the same manner and on the same terms as they would receive and receipt for cotton when taken at its own depot or platform erected for such transactions; provided, however, that the shipper or the compress company shall in such cases assume the additional risk of insurance involved by such act of the railroad company.” Pursuant to said regulation the defendant railroad company adopted rule 11. covering substantially the requirements of said regulation. The plaintiffs were cotton buyers at Texarkana, and had for some time prior to the shipment in question been shipping cotton on like arrangements -with the defendant company, and were familiar with the usages that obtained at said place in respect of such shipments.</p> <p>At the conclusion of the evidence the court directed the jury to return a verdict for the defendant, which was done, and judgment entered accordingly, to reverse which the plaintiffs prosecute this writ of error. Other facts will appear in the following opinion.</p>

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

In Equity. Two suits in equity for alleged infringement of complainants’ United States letters patent No. 561,559, granted June 9, 1896, to David O. Beilis, for improvements in knitting machines. The defendants in suit No. 6,911 are the manufacturers of the alleged infringing machine, while the defendants in suit No. 6,912 are mere users of same.

<p>1. Unlawful Competition — Equity—Misleading Misbepkesentations.</p> <p>Where the printing on the back of complainant’s card containing hooks and eyes did not claim that the hump feature was patented, but merely directed attention to complainant’s articles by referring thereto as the “De Long Patent Hook and Eye,’’ and contained a sketch thereof, with an index line pointing significantly to the hump or a spring tongue of the hook, such reference to a patent, which had been held invalid except as to the triple band of spring wire to strengthen the hook, did not constitute such a deception of the public as precluded complainant from relief in a court of equity against unfair competition.</p> <p>2. Same — Dbess of Goods — Cabds—Similaeity.</p> <p>Where cards used by complainant and defendant, containing competing hooks and eyes, which were attached thereto by thread, were substantially the same in size, color, and form, and, though the words printed on defendant’s card were different, the style, printing, spacing, etc., were made to simulate complainant’s card as closely as possible, and defendant later simulated complainant’s mode of fastening the invisible eyes to the card, though stitched in a different manner, defendant was guilty of unfair competition.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent Dig. Trade-Marks and Trade-Names, § 81.]</p>

<p>In Equity.</p> <p>Bill in equity to restrain defendant from using trade-name “Air Cushion,” or the letters “A. C.,” in connection with horseshoe pads not made by the Revere Rubber Company, complainant. Cross-bill in equity by defendant in original suit to restrain the complainant in original suit from making or selling hoof pads or horseshoe pads with the (alleged) trade-mark “A. C.,” stamped thereon, or from announcing or proclaiming in any way to the public that it has the right to use the mark “A. C.” on the hoof pads or horseshoe pads made by it.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The merchandise consisted of so-called “incrusted stones,” imported at the port of New York by R. F. Downing & Co. The collector of customs at that port classified them as manufactures of glass or paste, -under paragraph 112, Schedule B, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635], against the importers’ contention that they were dutiable under paragraph 435, Schedule N, § 1, of said act, c. 11, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], as “imitations of * * * precious stones, composed of glass or paste, * * * not engraved, painted or otherwise ornamented or decorated.” The Board of General Appraisers sustained this contention, on the authority of a former decision, In re Eichenberg, G. A. 5,610, T. D. 25,105. The government contended that, as the articles are incrusted, inlaid, or set with stones or other material, they are “ornamented or decorated” within the meaning of said paragraph 435, and therefore excluded from its purview.</p>

<p>1. Copyrights — Sales—Restriction—Notice—Effect.</p> <p>Where the publishers of a copyrighted book printed a notice on the page following the fly leaf that the price of the book at retail was $1 net, and that no dealer was licensed to sell it at a less price, and the sale at a less price would be treated as an infringement of the copyright, such notice did not purport to reserve to the publisher any interest in the book, or any right to control it or the action of its owner in the use and disposition thereof, and was insufficient to constitute a license agreement or contract restricting or modifying the absolute title acquired by purchasers.</p> <p>2. Same — Infringement.</p> <p>Where a publisher of copyrighted books voluntarily parted with all control over them by selling the books to purchasers, such purchasers were neither licensees nor agents of the publisher, though buying the books for resale, and hence such resale did not constitute an infringement of the copyright, under Rev. St. § 4964 [U. S. Comp. St. 1901, p. 3413], declaring that it is an infringement of a copyright to print or publish a copyrighted book without the consent of the proprietor given in writing, or knowingly to sell or expose for sale a copy or copies of such copyrighted book “when unlawfully printed or imported,” though the books so sold each contained a notice that no dealer was licensed to sell it at a less price than that fixed by the publisher, and that a sale at a less price would be treated jas an infringement of the copyright.</p> <p>[Ed. Note. — Eor cases in point, see vol. 11, Cent. Dig. Copyrights, §§ 41, 47.]</p> <p>3. Same.</p> <p>The act of a publisher of a copyrighted book in putting it on the market and selling it does not constitute a license to the purchaser to use and sell the same, which the publisher is entitled to restrict by a notice brought to the attention of the purchaser that the sale of the book at retail for less than the price fixed by the publisher shall be considered an infringement of the copyright.</p> <p>4. Same — Combinations in Restraint of Trade — Interstate Commerce.</p> <p>Where the publishers and booksellers of the United States organized two membership associations, one known as the “American Publishers" Association,” and the other as the “American Booksellers’ Association,” and together controlled the publication and sale of at least 90 per cent; of all copyrighted books, the objects of which were to compel owners and dealers of such books to purchase them of the members of the combination at an arbitrary price fixed by it, regardless of the actual value of the books as determined by a demand in an open market, or the condition of the books, and to compel all publishers and dealers of such books to come into the combination, be controlled by it, and sell books at prices fixed by it, regardless of the value of the books or of the exigencies of the trade and situation of the seller, or be deprived of the privilege of purchasing, owning, and selling such books through a system of blacklisting, etc., the effect of which would be to cripple the business of any publisher or bookseller outside of the combination, such agreement was a violation of the Sherman anti-trust law (Act Cong. July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), declaring that every contract, combination in the form of a trust or otherwise, or conspiracy in restraint of trade or commerce among the several states is illegal.</p> <p>[Ed. Note. — For eases in point, see vol. 35, Cent. Dig. Monopolies, § 13.]</p>

<p>1. Copyrights — Books—Sale—Rights op Purchasers.</p> <p>Where defendants purchased copyrighted books, some from complainants at retail, for which full retail prices were paid, which defendants sold at retail at a loss, and other books were purchased of dealers who had purchased from complainants and paid the full price demanded, and there was no notice given by complainant either to defendant or to the dealers, restricting or limiting the title conveyed, defendants legally acquired the full title to the books purchased, and were not liable for infringement of copyright by reason of the sale of. the books at a less price than that fixed by complainant under an alleged restriction, fixing the price at which the books should be sold at.retail, of which defendants had notice.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Copyrights, §§ 41, 47.]</p> <p>2. Same — Restriction op Sales.</p> <p>The following, contained in catalogues and bills for books sold rendered to the purchasers for sale at retail: “Copyrighted net books published after May 1, 1901, and copyrighted fiction published after February 1, ' 1902, are sold on condition that prices be maintained as provided by the regulations of the American Publishers’ Association” — does not constitute a limitation or restriction of the title to the books..</p>

<p>1. Pleading — Verification oe Pleas in Equity.</p> <p>Under equity rule 31, a joint plea should ordinarily be verified by all of the defendants in whose behalf it is filed.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, §§ 621, 623.]</p> <p>2. Same — Waivek.</p> <p>Setting a plea down for argument is a waiver of objections for want of proper verification.</p> <p>. [Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, § 672.]</p> <p>3. Same.</p> <p>When a plea in equity is not properly verified, complainant should disregard the plea and take decree pro confesso.</p> <p>4. Same — Plea in Abatement.</p> <p>A plea in abatement must give opponent a “better writ.”</p> <p>[Ed. Note. — For eases in point, see vol. 39, Cent Dig. Pleading, § 227.]</p> <p>5. Same.</p> <p>A plea in equity must not be uncertain or evasive. It must not tender an issue on an immaterial allegation in the bill.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent Dig. Equity, §§ 400, 403.]</p> <p>(Syllabus by the Court)</p>

In Bankruptcy. On .certificate from referee. The following are the opinion, findings, and order of Referee in Bankruptcy D. W. Amram: The Froehlich Rubber Refining Company was adjudicated a bankrupt on March 4, 1904, upon creditors’ petition filed against it on January 23, 1904.

In Bankruptcy. On review, upon petition of W. R. Abbott, of the action of Referee R. H. Southmayd in disallowing his claim, upon objections of W. J. Fleming, trustee, as a preferred claim against the Virginia Hardwood Manufacturing Company, bankrupt.

<p>1. United States — Actions Against — Jurisdiction.</p> <p>The jurisdiction of suits against the United States, conferred on the Circuit Courts by section 2 of the Tucker act (Act March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 753]), extends to all suits of the class described in which the amount claimed in good faith exceeds $1,000, although a smaller amount may be recovered.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 1111.]</p> <p>2. Same.</p> <p>The second clause of section 2 of the Tucker act, as amended in 1898 (Act June 27, 1898, c. 503, 30 Stat. 494 [U. S. Comp. St. 1901, p. 753]), which withholds from the jurisdiction conferred on the Circuit and District Courts by said section suits brought against the United States to recover “fees, salary or compensation for official services of officers of the United States,” does not apply to a suit to recover disbursements made by a marshal in paying for the services of court bailiffs. U. S. v. McCabe, 129 Fed. 708, 64 O. C. A. 236, applied.</p> <p>3. Federal Courts — Appointment of Bailiffs — Limitation of Number.</p> <p>Neither Rev. St. § 715 [U. S. Comp. St. 1901, p. 579], authorizing the appointment of bailiffs, not exceeding five, by Circuit and District Courts, nor the provisions of appropriation acts making appropriation for payment of bailiffs in such courts, not exceeding three in each court, limits the power of a judge when holding both courts at the same time, so as to render the appointment of six bailiffs unauthorized.</p> <p>4. Marshals — Contingent Expenses.</p> <p>The provision of Rev. St. § 830 [U. S. Comp. St. 1901, p. 639], that marshals shall be paid their expenses necessarily incurred for fuel, lights, and “other contingencies that may accrue in holding the courts” within their districts, is sufficient to entitle a marshal to reimbursement for the expense of extra bailiffs ordered by the court to take charge of a jury impaneled in a capital case, and the cost of meals furnished officers in charge of witnesses in custody in the same case. U. S. v. Hill, 7 Sup. Ct. 510, 120 U. S. 169, 30 L. Ed. 627, applied.</p> <p>[Ed. Note. — For cases in point, see vol. 47, Cent. Dig. United States Marshals, § 18.]</p>

This cause comes here upon an appeal from a decree of District Court, Southern District of New York, holding the tug responsible for total loss of dumper No. 9, and for salvage on dumper No. 8, both lost by the tug through parting of towing hawser in heavy weather after dumping beyond the lightship. The opinion of the District Court will be found in 126 Fed. 871.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the respondent solely at fault for a collision which occurred in New York Bay to the southward and eastward of the Statue of Liberty between the steamer Nordkap and a tow in charge of respondent’s tug Media.

<p>Shipping — Charter Hire — Loss op Time Waiting por Docking.</p> <p>Under a time charter providing that the vessel should be docked and cleaned at least once every six months if the charterer thought necessary, hire to be suspended until she was again in proper condition for service, but requiring the charterer to send her at his own cost to a United States port where there were docking facilities, and to pay for all time lost in shifting ports, he was liable for a month’s time lost while waiting for the repairing of a dock, during which time she was subject to his orders and could have been ordered by him to another port.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the tug solely in fault for damages sustained by libelant’s canal boat William S. Deyo in consequence of a collision with the barge Sharon, which the Depew was endeavoring to place in the slip on the south side of the pier at the foot of Ninety-First street, East river. The opinion of the District Court is reported in 130 Fed. 59.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal to review a decree of the District Court, Southern District of New York, holding the respondent liable for damages sustained by the barge Katie (owned by Blakeslee) and her captain, Gunderson, who lost his personal effects when she sank in consequence of injuries sustained during the night of January 27-28, 1903. The decision in the District Court is reported in 132 Fed. 153.</p>

<p>1. Bankruptcy — Acts op Bankruptcy — Appointment op Receiver.</p> <p>The provision of Bankr. Act July 1, 1898, c. 541, § 3a, subd. 4, 30 Stat. 546 LU. S. Comp. St. 1901, p. 3422], as amended in 1903 (32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 410]), making it an act of bankruptcy on the part of a debtor where “because of insolvency a receiver or trustee has been put in charge of his property under the laws of a state, of a territory, or of the United States,” does not make the appointment of a receiver on the application of creditors an act of bankruptcy unless it was made on the ground of insolvency.</p> <p>2. Same.</p> <p>A state court of New York appointed a receiver for the property of a defendant on application of a judgment creditor on the ground, as recited in the order, that the defendant had conveyed property and was threatening to make further conveyances of property in fraud of the plaintiff’s rights. Held, that such recital of the ground for the appointment was conclusive, and that the appointment did not constitute an act of bankruptcy on the part of the defendant as one made under the laws of the state “because of insolvency,” within the meaning of Bankr. Act July 1, 1898, c. 541, § 3a, subd. 4, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], as amended in 1903 (32 Stat. 797 [U. S. Comp. St. Supp. 1903, p. 410]), there being in fact no statute of the state conferring power on a court to appoint a receiver for the property of an individual on the ground of insolvency.</p> <p>3. Same — Abatement of Proceedings — Death of Bankrupt.</p> <p>Proceedings in bankruptcy do not abate by the death of the alleged bankrupt after the filing of the petition and before adjudication.</p> <p>[Ed. Note — For eases in point, see vol. 1, Cent. Dig. Abatement and Revival, § 298; vol. 6, Cent. Dig. Bankruptcy, § 134.]</p>

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

The court below reversed the decision of the Board of United States General Appraisers, which had overruled the protest of George Dickson against the assessment of duty by the collector of customs at the port of New York. The opinions filed by the Circuit Court and the board are given in 131 Fed. 573.

<p>In Error to the District Court of the United States for the Western District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of conviction upon three indictments containing five counts, which indictments were consolidated and tried together. The charges are for violation of section 5480, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3696].</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This is an appeal by the defendant from a decree of the Circuit Court for the Southern District of New York, entered July 19, 1904. The decree is for an injunction and an accounting and enjoins the defendant from using the name “Faber” in connection with the manufacture and sale of pencils and stationers’ rubber goods unless prefixed by his Christian name “Eberhard,” “J. Eberhard” or “John E.” The facts are carefully collected in the opinion of the Circuit Court (124 Fed. 603), and need not be repeated here.</p>

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

<p>Patents — Damages eob Inebingement — Box-Strap Reel.</p> <p>A decree awarding nominal damages only for infringement of the Cary patent, No. 403.247, for a reel for metal box-strap, affirmed on evidence showing that the reel was of slight value or utility; that in selling box-strap both complainant and defendant mounted the coils upon reels, for which no charge was made; and that the strap was salable independently of the reels.</p>

<p>1. Patents — Disclaimer—Construction and Effect.</p> <p>A disclaimer filed under Rev. St. § 4917 [U. S. Comp. St. 1901, p. 3393], cannot validate a claim of a patent except as to something of which the patentee was the inventor, and which was “a material and substantial part of the thing patented.” A claim too broad in its terms cannot be rendered valid by a disclaimer of all except a particular form' of construction which may or may not have been embraced in the broad language of the claim, but which, if so, was not in any way specified or suggested therein as distinguished from other forms of construction.</p> <p>[Ed. Note. — Eor cases in point, see vol. 38, Cent. Dig. Patents, §§ 224, 227%.]</p> <p>2. Same — Engineer’s Valve for Controlling Air Brakes.</p> <p>The Westinghouse and Moore patent, No. 401,916, for an improved engineer’s brake valve, claim 7, is void, as too broad in its terms, and was not rendered valid by the disclaimer filed June 13, 1902. Also held not infringed, conceding its validity.</p>

<p>Federal Courts — Jurisdiction—Rights of Parties — Waives.</p> <p>Where a federal court in which suit was brought was without Jurisdiction, because neither plaintiff nor defendant resided in the state or district, and such want of jurisdiction was raised by demurrer, defendant did not waive the objection either by appearing at the taking of depositions and cross-examining witness without declaring its intent to insist on its objection to the jurisdiction, or by stipulating during the taking of such depositions that copies of letters and telegrams might be used by either party in lieu of the originals.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 147.]</p>

In Admiralty. Suit by the owner, master and crew of the steam' tug Daring to enforce a claim for salvage for the rescue from peril of the steam schooner South Bay. Decree for libelants for the-aggregate amount of $2,000.

This matter comes before the court on petition for review of the order of the referee in bankruptcy making allowances from the estate to the trustee and to the attorney for the trustee, and to attorneys for certain creditors of the bankrupt, and which order was made at the final meeting of creditors, and on the settlement of the accounts of the trustee in bankruptcy, May 20, 1905.

<p>Bankruptcy — Preferences—Unrecorded Mortgage.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [Ü. S. Comp. St. 1901, p. 3445] as amended Feb. 5, 1903, e. 487, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 416], which defines a preference, and provides that the four-months period within which a transfer of property of the character defined shall constitute a preference shall not expire until four months after the date of the recording or registering of the transfer “if by law such recording or registering is required,” a mortgage of property in New York, which is not required by the laws of the state to be recorded to be valid, except as against subsequent purchasers or mortgagees in good faith, for value, takes effect, for the purpose of computing the four-months period, at once on its execution, without reference to its recording, and, if executed more than four months prior to the bankruptcy of the mortgagor, does not constitute a preference, and creates a valid lien, in the absence of proof that it was withheld from record pursuant to agreement for the purpose of defeating the provisions of the bankruptcy law, or that other persons were thereby induced to extend credit to the mortgagor or forego their legal rights.</p>

<p>Action for Forfeiture of Merchandise Seized as Illegally Imported.</p> <p>Note Six Parcels of Placer Gold v. U. S. (Ariz.) 76 Pac. 473.</p> <p>This is an action or proceeding under the provisions of section 3082 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 2014] to condemn 50 Waltham watch movements, manufactured at Waltham, Mass., exported to the Dominion of Canada, there purchased by one J. H. Racieott, the claimant herein, and by him sent by team across the border into the United States for sale and use in the United States without passing through the customhouse, or complying with the rules and regulations of the Secretary of the Treasury of the United States alleged to be applicable in such cases. The main defense relied upon is utter absence of intent to defraud the United States, the claim of Racieott being that unless such intent is shown the action for condemnation cannot be maintained.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review is G. A. 5,471, T. D. 24,779, which affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board of General Apr praisers reads as follows: Somerville, General Appraiser.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question affirmed the assessment of duty by the collector of customs at the port of Philadelphia. Compare United States v. Roessler & Hasslacher Chemical Company (C. C. A.) 137 Fed. 770.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 5,656, T. D. 25,235, which reversed the assessment of duty by the collector of customs at the port of Burlington on importations by P. McGettrick.</p>

<p>3. Deeds — Reservation—Construction.</p> <p>In the absence of a clearly expressed intention to contract for other rights, a reservation'from a grant by deed or lease is limited to some part of the estate owned by the grantor, and which would otherwise pass by the grant.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Deeds, § 465.]</p> <p>2. Water Courses — Covenant for Easement to Flood Lands — Construction.</p> <p>Defendant owned a dam on the Missouri river, used for generating electrical power, and instituted condemnation proceedings against lands of plaintiffs lying above. After judgment defendant bought the land condemned, together with an additional tract from plaintiffs’ ranch, at the same time executing a lease of the same to plaintiffs for 20 years at a rental of $1 per year, in which the right to flood the land leased was reserved, and it was provided that plaintiffs “hereby agree to permit and recognize the right of said first party to flood said premises by the waters of the Missouri River as they may be raised by the dam belonging to said first party * * * as the said dam now exists, or as the same may be hereafter raised or lowered, without claim for damage.” Sufficient consideration for the lease appeared in addition to the nominal rental. Held, that such provision extended no further than the reservation, and did not release defendant from damages for flooding other lands owned by plaintiffs, not described or mentioned.</p>

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

Suit in equity to restrain alleged infringement by defendant of certain reissued United States letters patent, and for an accounting.

The defendant having removed this cause from the Supreme Court of the state of New York to the Circuit Court of the United States, the plaintiff, Eli B. Johnson, moves to remand to the state court. The defendant, the Computing Scale Company, moves to set aside the service of the summons and dismiss the action for want of jurisdiction of the defendant.

<p>Customs Duties — Classification — Fireproofed Dumber — Manufactures of Wood.</p> <p>As to so-called fireproofed lumber, produced by subjecting ordinary sawed lumber to an expensive fireproofing process, which, without producing any particularly noticeable change in the appearance of the lumber, fits it for purposes for which it would not otherwise be suitable, helé, that as it becomes a new article, with changed character, qualities, and uses, it is no longer within the provision for “sawed lumber” in Tariff Act July 24, 1897, c. 11, § 1, Schedule D, par. 195, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1646], but becomes a “manufacture of wood,” as enumerated in paragraph 208, 30 Stat 168 [U. S. Comp. St. 1901, p. 1647].</p>

<p>Motion to Remand.</p>

In Equity. This case is submitted on bill, answer, and affidavits on motion for a preliminary injunction.

<p>Bankruptcy — Right op Set-Off — Damages for Tort.</p> <p>Bankr. Act July 1, 1898, c. 541, § 68a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], which provides for a set-off of mutual debts or mutual credits, does not authorize the setting off against the claim of a landlord for rent under a lease to the bankrupt of an unliquidated claim for damages in favor of the bankrupt, sounding in tort, and arising independently of the contract of lease.</p>

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

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

<p>1. Removal of Causes — Attachment.</p> <p>Where an action begun by attachment was properly removed to the federal court pending a motion to dissolve the attachment, both the principal suit and the attachment proceeding were transferred into the federal Circuit Court, which, on the filing of the transcript and docketing the cause there, was as fully possessed of the case as if it had been begun in that court, as provided by Act Cong. March 3, 1875, c. 137, 18 S'tat. 470, § 4 [U. S. Comp. St. 1901, p. 511].</p> <p>2. Same — Levy of Attachment — Jurisdiction.</p> <p>Where a suit was brought in a state court by attachment, and, pending a motion to dissolve the attachment, was removed to the federal court, the seizure of defendants’ property was a sufficient basis on which the federal court was entitled to found its subsequent proceedings both in the principal suit and as to the attachment, though no jurisdiction of the persons of the defendants had been acquired.</p> <p>3. Process — Alias Summons — Service.</p> <p>Where, in a suit begun by attachment and removed to the federal court, one of the defendants (a nonresident) came into the state pending a motion to dissolve the attachment, the court had jurisdiction to authorize the issuance and service of an alias summons upon her.</p> <p>4. Removal of Causes — Citizenship.</p> <p>Where both at the commencement of an action in the state court by attachment and at the time of its removal defendants were citizens of states other than that of which plaintiff was a citizen, the fact that, after removal on the ground of diverse citizenship, one of the defendants removed to the state where plaintiff resided, and became a citizen of such state, did not deprive the federal court of jurisdiction.</p> <p>[Ed. Note. — Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. a A. 298.]</p> <p>5. Trial — Issues—Submission—Discretion.</p> <p>It is within the discretion oí the trial court to direct the separate trial of a material issue to the jury.</p> <p>6. Courts — Plea to Jurisdiction — Waiver.</p> <p>Where, in an action against a nonresident, begun by attachment, she appeared specially and objected to the jurisdiction, and, after summons had been served on her, and she had moved to set the same aside, she obtained leave to withdraw such motion, and was granted time to answer, she thereby waived her objection to the court’s jurisdiction of her person.</p>

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

<p>Patents — Infringement—Coin Pubse.</p> <p>The Albright patent, No. 439,085, for a coin purse, construed narrowly, as it must be in view of the prior art, especially of the Rundlett patent, No. 201,201, held not infringed by a purse substantially the same in construction and the manner of its use as that of the Rundlett patent.</p>

<p>1. Patents — Anticipation.</p> <p>The effect of a device as an anticipation is not altered by the fact that it was made to serve a purpose additional to that for which it was used in the second case, where, so far as the latter goes, the two are equivalents.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent Dig. Patents, § 89.]</p> <p>2. Same — Sleigh Runnebs.</p> <p>The Wyeth patent, No. 400,381, for a sleigh runner for wheeled vehicles, claim 12, the essential feature of which is the use of side plates of iron or steel to fasten the rave and knees together, instead of making a mortise and tenon connection, is void for anticipation and lack of patentable invention.</p>

<p>■ 1. Judgment — Decree in Interference Proceedings — Peíisons Concluded.</p> <p>A decree in interference proceedings determining priority of invention between two applicants for patents is not binding, as to the date of invention by one of tbe parties, on one who was not a party, and does not claim under either patent.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1230.]</p> <p>2. Patent — Anticipation.</p> <p>That a prior patent for the same invention was issued to the same patentee does not avoid anticipation.</p> <p>[Ed. Note.- — -For cases in point, see vol. 38, Cent. Dig. Patents, § 79.] .</p> <p>•3. Same — Construction of Claims — Combination.</p> <p>Where a claim of a patent is for a combination, it must be for an operative combination; and if an element essential to make it operative is shown and described in the specification, but is omitted from the claim, it must be read into the claim.</p> <p>4. Same — Infringement—Endless Chain Conveyors.</p> <p>The McCaslin patent, No. 503,870, for an endless chain conveyor, claims 2 and 4, cover improvements only on what was known in the prior art, and must be strictly construed and limited to the construction shown, and the patentee is entitled to invoke the doctrine of equivalents only where the changes are colorable merely. As so construed, such claims held not infringed by a conveyor in which the mechanism operates in a manner substantially different to accomplish the same results.</p>

<p>1. Patents — Infringement—Wardrobe Trunks.</p> <p>The Bonsall patents, Nos. 604,346 and 642,075, both relating to wardrobe trunks, were not anticipated, and disclose invention. Claim 3 of the former, and claim 4 of the latter, also held infringed.</p> <p>2. Same — Novelty—Garment Hangers.</p> <p>The Bonsall patent, No. 661,947, for a garment hanger for use in wardrobe trunks, is void for lack of patentable novelty.</p>

<p>Patents — Infringement—Garment Hanger.</p> <p>The Tenney patent, No. 669,561, claim 3, for a folding hanger for garments, adapted for use in a closet, drawer, or trunk, was not anticipated, and discloses invention. Also held valid as against the defense of prior invention and infringed.</p>

In Equity. On demurrer to bill. This is a suit brought by the complainant, the Tillamook Water Company, a corporation created and existing under the laws of the state of Oregon, to enjoin officers of Tillamook City from proceeding to institute a system of waterworks for said city.

On Motions for Judgment. On the 8th of April, 1898, B. W. Walker, late marshal for the Middle district of Alabama, brought suit against the United States in the Circuit Court, under the act of March 3, 1887, to recover $2,268 upon certain disallowed claims for mileage, fees, and expenses between February 14, 1890, and September 16, 1893. The United States interposed the plea of the statute of limitation of six years.

In Bankruptcy. On question certified by referee. Opinion of William H. Hotchkiss, referee, on motion to expunge the claim of the North American Trust Company, and to compel restitution of the first dividend previously paid: The claim of the North American Trust Company was on November 4, 1903, duly allowed at $94,198.50. Later a dividend of 10% was paid the claimant.

<p>1. Copyright — Suit for Infringement — Title to Support.</p> <p>Where the composer of a piece of music has placed it in the hands of a publishing company for publication and sale, it may reasonably be inferred that he intended to authorize the company to copyright the same; and where it does so in its own name, and he afterward ratifies its action, it is vested with the legal title to the copyright, which will support an action for its infringement.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Copyrights, § 68.]</p> <p>2. Same — Infringement—Musical Composition.</p> <p>A musical composition, as an idea or intellectual conception, is not subject to copyright, but only its material embodiment in the form of a writing or print may be copyrighted; and a copyright of such a printed composition is not infringed by a perforated record or sheet designed for use with mechanism to play the composition on a musical instrument.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Copyrights, § 63.</p> <p>Matters subject to copyright, see note to Cleland v. Thayer, 58 G. C. A. 273.]</p>

<p>1. Admiralty — Appeal—Matters Reviewable.</p> <p>A decree in admiralty in proceedings for limitation of liability adjudging the rights of the parties and referring the cause to a commissioner to take testimony on claims for damages is reviewable on an appeal taken after the entry of a final decree on the commissioners’ report, although the time for taking an appeal from the first decree had expired, such decree being in its nature interlocutory.</p> <p>2. Shipping — Limitation op Liability — Freight Pending.</p> <p>By the terms “freight pending” and “freight for the voyage,” as used in Rev. St. §§ 4283, 4284 [U. S. Comp. St. 1901, p. 2943], is meant the earnings of the voyage, whether for the carriage of passengers or merchandise, and where passage or freight money is prepaid under contracts by which it becomes the absolute property of the shipowner whether the voyage is completed or not, it must be regarded as earned, although the vessel is lost, and must be surrendered by the owner to entitle him to a limitation of liability under the statute for claims growing out of such loss.</p> <p>[Ed. Note. — Limitation of shipowner’s liability, see note to The Longfellow, 45 C. C. A. 387.]</p> <p>3. Same — “Voyage” Defined.</p> <p>The earnings of the voyage which a shipowner is required by the statute to surrender in order to obtain a limitation of liability for losses occurring on such voyage are those only of the particular voyage which exposed the passengers or property to risk; and where a steamship was engaged in making regular trips across the Atlantic from Havre to New York and return, discharging her passengers and cargo at each terminal port, each of the trips between such ports constitutes a voyage, within the meaning of the statute, and in proceedings for limitation of liability for claims arising out of the sinking of the ship in collision while on her way from New York to Havre the owner is not required to surrender the earnings of the preceding trip from Havre to New York.</p> <p>4. Same — Freight for the Voyage — Government Subsidy.</p> <p>In proceedings by a French steamship company under Rev. St. § 4284 [U. S. Gomp. St. 1901, p. 2943], for limitation of liability for claims arising out of the sinking of one of its ships while on a voyage from New York to Havre, the “freight for the voyage” which the petitioner is required by the statute to surrender cannot be construed to include any part of an annual subsidy paid to the company by the French government, in consideration for which the company agreed to build and maintain a weekly steamship service between Havre and New York, the vessels to be built in France and to be of a character, size, speed, and equipment specified, and subject to the use of the government in case of war or other extraordinary political circumstances, and to transport gratuitously all mails and specie for the use of the state. In such case it is impossible to determine what part of subsidy is to be considered as compensation to any single vessel for transportation of the mails on a single trip.</p> <p>5. Same — Claims for Loss of Life — Law Governing.</p> <p>Under the general law that the territorial sovereignty of a state extends to a vessel of such state when it is upon the high seas, the law of France, which authorizes a recovery for loss of life against a vessel in fault therefor, governs in proceedings by the owner of a French vessel in the courts of the United States for limitation of liability for claims arising out of the sinking of such vessel in collision on a voyage across the Atlantic, and claims for loss of life resulting from the collision may be proved against the fund paid in if the vessel is held in fault.</p> <p>6. Collision — Steamships—Excessive Speed in Fog.</p> <p>Evidence held to support a finding of the trial court that the steamship La Bourgogne was in fault for the collision with the British ship Cromartyshire, by which she was sunk off Sable Island, in a dense fog, in failing to reduce her speed after she encountered the fog to the “moderate speed” required by the international navigation rules.</p> <p>7. Shipping — Limitation oe Liability — Pbivity oe Owneb.</p> <p>A steamship company, which establishes rules and regulations requiring the masters of its vessels to maintain only the moderate speed required by the international rules in ease of fog, and has not knowingly tolerated or encouraged the violation of such rules or neglected their enforcement, and which has exercised due care in securing officers of experience and ability, is not debarred from the right to a limitation of liability for damages caused by a collision for which its vessel was in fault by reason of maintaining excessive speed in a fog, on the ground that the collision occurred with its privity or knowledge.</p>

<p>Courts of Admiralty — Proceedings fob Limitation of Liability — Power to Reopen After Final Decree.</p> <p>Where proceedings in a court of admiralty, by a shipowner for limitation of liability have been terminated, so far as the parties before the court are concerned, by a final decree, the court has no power to reopen the proceedings for the purpose of allowing other claimants, who have not appeared therein, to come into the case and prove their claims. If for any reason the decree is not binding on such claimants, their remedy is by an independent suit.</p> <p>[Ed. Note. — Limitation of shipowner’s liability, see note to The Longfellow, 45 C. C. A. 387.]</p>

<p>Patents — Infeingement—Packing fob Thill Couplings.</p> <p>The Bradley patent, No. 609,928, for a combination in a thill coupling, with a draft eye having spherical recesses in its jaws, and a draft iron having a spherical knuckle of an interposed spherical packing, which constitutes the only novel element, is a narrow one, in, view of the prior art, and must be limited to the precise form of packing shown, which is a single piece of hard leather, molded before application into such shape as will cover the knuckle completely, but with an open longitudinal joint, which permits it to be sprung open so as to slip over the knuckle, whereupon it resumes its spherical shape. It is not infringed by the use in such a coupling of flat pieces of leather, notched on the edges so that when the jaws are closed they are pressed around the knuckle, into a spherical shape.</p>

In Equity. Suit for infringement of letters patent No. 704,168 for means for cashing sales accounts, granted to Frank E. Anderson July 8, 1902. On demurrer to bill.

<p>On Motion for Writ of Habeas Corpus Cum Causa.</p>

<p>1. Grand Jury — Powers—Witnesses—Refusal to Testify.</p> <p>Where, after a witness had refused to testify before a grand jury considering supposed infractions of the anti-trust law, the grand jury made a presentment to the court charging the witness with contempt, and the court, after hearing, ordered the witness to answer the questions, and to forthwith produce the papers required, the court’s action was equivalent ‘ to an express instruction to the grand jury to investigate the matter referred to in the presentment, and hence the fact that the grand jury had been previously acting beyond its power was harmless.</p> <p>2. Witnesses — Privilege—Anti-Trust Act — Inquisitions.</p> <p>An inquisition before a grand jury to determine the existence of supposed violations of the anti-trust act was a “proceeding” within Act Cong. Feb. 19, 1903, e. 708, 32 Stat. 848 [U. S. Comp. St. Supp. 1903, p. 365], providing that no person shall be prosecuted or subjected to any penally for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence in any “proceeding” under several statutes mentioned, including such anti-trust act.</p> <p>3. Unreasonable Searches — Rights of Agent — Subpcena Duces Tecum.</p> <p>A subpoena duces tecum commanding the secretary and treasurer of a corporation supposed to have violated the anti-trust act to testify and give evidence before the grand jury, and to bring with him and produce numerous agreements, letters, telegrams, reports, and other writings, described generically, in effect including all the correspondence and documents of his corporation originating since the date of its organization, to which 19 other named corporations or persons were parties, for the purpose of enabling the district attorney to establish a violation of such act on the part of the witness’ principal, constituted an unreasonable search and seizure of papers, prohibited by Const. U. S. Amend. 4.</p> <p>4. Habeas Corpus — Circuit Courts — Judges—Co-ordinate Jurisdiction.</p> <p>Where a subpcena duces tecum was directed to be issued by a circuit judge, and the witness was committed for contempt for failute to obey the same, he would not be discharged on habeas corpus by another judge of the same court, though the latter was of the opinion that the subpcena authorized an unconstitutional search and seizure of private papers.</p>

In Equity. Suit to enforce trust. The complainants, who are the widow and heirs at law of Morris Sternfels, deceased, presented their bill alleging that Morris Sternfels died intestate September 24, 1900; that prior to March 28, 1891, said Morris Sternfels, George B. Rate, and T. J. Watson made an agreement to purchase a tract of land, which is described in the bill, for the sum of $7,500, the said Sternfels was to contribute four-fifteenths thereof, Rate was to contribute…

Action of Forfeiture for Illegal Importation. This was an action brought by the United States for the forfeiture of a pearl chain of a value of about $26,000, which was found in the possession of the claimant in this proceeding, Ida Josephine Dulles, on her arrival in this country as a passenger on a vessel, and was seized by a special employé of the Treasury Department as imported in violation of sections 2799-2802, 3082, Rev. St. [U. S. Comp.

The court annulled the seizure by a special employe of the Treasury Department of a pearl chain found in the possession of Ida Josephine Dulles, the claimant and defendant in error in this proceeding, on her arrival in this country from abroad. 139 Eed. 510. Sections 2799, 2801, 2802, and 3082, Rev. St. [U. S. Comp. St. 1901, pp. 1872, 1873, 2014], read as follows: “Sec. 2799.

<p>Circuit Court of Appeals — Costs—Printing of Transcripts.</p> <p>In view of the fact that the right to sue in forma pauperis, given by Act July 20, 1892, e. 209, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706], is limited to courts of original jurisdiction, the rule of the Circuit Court of Appeals, requiring the printing of transcripts, will be enforced in all cases.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Costs, § 512.]</p>

The defendant in error, a locomotive engineer in the service of the railway company, lost an eye through the explosion of one of the glass tubes in the lubricator located in the cab of his engine.

<p>Bankruptcy — Acts op Bankruptcy— ^Suffering or Permitting Preference Through: Legal Proceedings.</p> <p>The failure of an insolvent to discharge a preference obtained by a creditor by the recovery of a judgment and the levy of an execution thereunder at' least five days before the sale of the property levied on constitutes an act of bankruptcy under Bankr. Act July 1, 1898, e. 541, § 3a, 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422], although no affirmative action was taken by the debtor to aid the creditor in securing such preference.</p>

This was an action by the South Pork Coal Company, a corporation, which was operating a sawmill near Oneida, Tenn., for the loss by fire of a large quantity of lumber stacked upon the railway’s right of way near its station at Oneida. The fire occurred October 23, 1902.

On the 19th of June, 1893, the city of Havana granted to Mariano De La Torre a concession to build and operate a horse railway on certain designated streets in the said city, which concession was subsequently transferred by De La Torre to Francisco Pla.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from decree entered by the District Court for the Southern District of New York in favor of the libelant for $1,449.95, the amount, with interest and costs, found to be due the owners of the steamship Nile on a time charter party to the respondent. The opinion below is reported in 132 Fed. 881.</p>

<p>1. Federal Courts — State Decisions — Comity.</p> <p>Where an action against a carrier to recover damages for injuries to a passenger had been dismissed pursuant to the unanimous opinion-of the highest state court, and the questions of negligence presented were not questions as to which the federal and state courts were at variance, comity required such decision to be followed by the federal courts in a subsequent action therein by the same parties for the same cause, though such opinion was not controlling authority.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 950, 977-979.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 O. C. A. 553.]</p> <p>2. Carriers — Injuries to Passengers — Invitation to Alight.</p> <p>Where the porter or guard of a passenger train called out, “Jersey City; last stop; all out” — and followed it by opening the vestibule door of the car, such statement and act did not constitute a positive assurance to passengers that the car had stopped, nor an invitation to passengers to alight before the car had in fact stopped.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig; Carriers, §§ 1224-1226.]</p> <p>3. Same — Contributory Negligence.</p> <p>Where, after the porter of a railroad train had announced the last station and opened the vestibule door of the car, plaintiff, erroneously supposing that the train had stopped, stepped out into the vestibule, passed down the steps, and thence to the platform, while the train was moving, and was injured in so doing, he was guilty of contributory negligence, precluding a recovery.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1391-1393.)</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York.</p> <p>On petition to review an order in bankruptcy, made by the District Court for the Southern District of New York, and entered December 30,1904, directing the petitioner, The Great Western Natural Gas & Oil Company, to deliver all its assets and property to Leo Oppenheimer, as receiver of the Muncie Pulp Company, and further directing the petitioners, Henry Blackman and Gustav L. Jaeger, to transfer to the receiver all of the capital stock of the said Great Western Company standing in their names, respectively.</p>

A. 5,624, T. D. 25,152), which reversed the action of the collector in the classification and assessment of the merchandise in controversy.

District of Michigan. This is a bill to enjoin infringement of patent No. 558,393, issued to John Henry Kellogg, of Battle Creek, Mich., for “a certain new and useful alimentary product and process of making the same.” This patent was assigned to the complainant, a partnership association under the laws of Michigan, doing business as the Sanitas Nut Food Company, of which the patentee and W. K. Kellogg and W. C. Kellogg are the sole members.

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

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

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

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

<p>1. Patents — Infringement—Identity of Combinaton.</p> <p>A patent for a combination in a machine of three wheels, each of which is indispensable to the operativeness of the machine, is not infringed by a machine, also having three wheels, but one of which is an idler, and can be dispensed with at pleasure without affecting the working of the machine; such machine being in effect a two-wheel combination.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 370-373.]</p> <p>2. Same.</p> <p>The Bates patent, No. 365,723, for a wire barbing machine, construed, and held not infringed.</p>

<p>In Equity. This cause comes here upon pleadings and proofs, complainant praying an .injunction and accounting for . alleged infringement of U. S. Tetters Patent 553,740, issued January 28, 1896, to Patrick Ryan for starter’s gate for race tracks.</p>

<p>Injunction — Violation—Picketing by Stbikebs.</p> <p>Tlie maintenance of a system of picketing by men out of employment by reason either of a strike or lockout, the purpose and effect of which is to annoy and intimidate men working for their former employers by keeping a picket of men around or at the approaches to the places where such workmen are employed, who obstruct the approaches and use threatening or profane and vulgar language toward the workmen, is unlawful, and in violation of the rights of the workmen and their employer, and of an injunction against acts- of intimidation toward such workmen, although no actual violence is used. Such picketing, when maintained for a year, cannot be justified on the ground that its purpose is to persuade the workmen to quit their employment or to ascertain who such workmen are.</p>

<p>Customs Duties — Classification—Nutgall Extract.</p> <p>Extract of nutgalls, an article which is made by grinding nutgalls, digesting the powder in water, and filtering to remove impurities, a chemical being added as a preservative without working, any chemical change, is not dutiable as tannin or tannic acid, under paragraph 1, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626], nor as a chemical compound under paragraph 3, Schedule A, § 1, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1627], but either directly or by similitude as “drugs, such as * * * nutgalls, * * * advanced in value or condition,” under paragraph 20, Schedule A, § 1, c. 11, 30 Stat. 152 [U. S. Comp^ St. 1901, p. 1628].</p>

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

<p>In Bankruptcy.</p>

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

<p>Street Railroads — Injury oe Child at Crossing — Negligence oe Motorman.</p> <p>A motorman operating a street car on approaching a crossing where a number of children are congregated or passing across the tracks is bound to know that they may not exercise the care of older persons, and to take special precautions accordingly to avoid their injury; and where in such case a child was run over and injured, and there was evidence of a substantial character tending to show that the car approached the crossing at a speed of 10 or 15 miles an hour, without giving any warning of its approach, although such evidence was contradicted, a verdict finding that the company was chargeable with negligence will not be disturbed.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 202.]</p>

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

This is an action to recover under a policy of indemnity insurance. The New Amsterdam Casualty Company (hereafter styled the “Insurance Company”) undertook to indemnify the Cumberland Telephone Company against loss from liability for damages on account of bodily injuries caused by its negligence, liability in any one instance not to exceed $5,000.

<p>1. Customs Duties — Classification—Silk on Tubes — “Advance in Manufacture.”</p> <p>In construing the provision in Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 660, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688], for “silk, raw, or as reeled from the cocoon, but not * * * advanced in manufacture in any way,” held: (1) That the provision does not cover any form of raw silk advanced beyond the condition of skeins; (2) that silk known as “singles” or “silk on tubes,” which has been wound from the skeins onto tubes, the effect of this process being to advance the silk a stage in preparation for its ultimate use, has been “advanced in manufacture”; and (3) that silk in this form is not free of duty under this provision, but dutiable under paragraph 384 (section 1, Schedule L, of said act, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668]), as “silk * * * not further advanced or manufactured than carded or combed silk.”-</p> <p>2. Same — Tariff Provisions — Prospective Effect.</p> <p>The provisions in a tariff act are designed for the future as well as for the present, and cover all importations which the definitions fit.</p>

Petition to Review Order of the District Court of the United States for the Southern District of New York. In Bankruptcy. On petition for review. The estate of William A. Sturgeon, bankrupt, was in process of administration before a referee in bankruptcy in Detroit, Mich. Charles E. Hammond, a creditor of the bankrupt, had caused an examination of the bankrupt to be made looking to the discovery of sequestered assets.

In the month of February, 1902, and for several months previous, the defendant, Walker, a real estate agent residing at Louisiana, Mo., held an option from the Block Land & Farming Company for the sale of a large tract of land owned by it, situated in Pike county, Mo., for the net price to the company of $67,500.

This is a suit in equity, brought by the appellant to obtain a decree perpetually enjoining the appellees from cutting or removing the timber standing on part of an odd-numbered section of land in Northern Minnesota. The land is vacant and unoccupied, and the timber thereon gives it its principal value. The appellant claims full title, under the grant of public lands made to the Northern Pacific Railroad Company by Act Cong. July 2, 1864, c. 217, 13' Stat. 365.

Petition for Revision of Proceedings of the District Court of the United States for the District of Minnesota, in Bankruptcy.

Rehearing denied September 8, 1905. This controversy arose over the construction of a contract of lease entered into between appellant, the city of Plattsmouth (hereinafter called “the city”), and defendant, the Plattsmouth Gas & Electric Light Company (hereinafter called the “light company”), on the 23d day of October, 1896.

<p>1. Insurance — Construction or Policy — “Fire” Defined.</p> <p>The word “fire,” as used in an insurance policy, in the absence of language showing a contrary intention, is to be given its ordinary meaning, which includes the idea of visible heat or light.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, § 1126.]</p> <p>2. Same — Spontaneous Combustion.</p> <p>A large quantity of wool in fleeces covered by fire insurance policies was submerged for several days during a flood, which caused spontaneous combustion, with smoke and great beat,‘by which the wool was damaged and its fiber destroyed, but there was no visible flame or glow. Held, that the loss .was not the result of fire, within the meaning of the policies.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, § 1126.]</p>

While W. M. Rollins, a single man 26 years of age, was going from Charles City, Iowa, on the 26th day of November, 1903, to his home, himself and a team of horses that he was driving were killed, and the buggy in which he was riding was destroyed, in a collision with one of the defendant in error’s passenger trains, at a public highway crossing known in the evidence as “Warner’s Crossing.” His administrator brings this suit to recover damages therefor.

This cause comes here at final hearing upon pleadings and proofsiIt is a suit in equity for infringement of United States patent No.. 527,361, October 9, 1894 (on application filed November 18, 1893),, to Hubert Claus for enameling metal ware.

<p>Patents — Infringement—Magazine Guns.</p> <p>The Hepburn patent, No. 581,177, for a magazine gun, was not anticipated, and discloses invention. Also held infringed.</p>

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

<p>Waters — Public Supply — Grant op Franchise to Water Company — Construction oe Contract.</p> <p>. A city ordinance granting a franchise to construct and maintain waterworks therein expressly stated that when accepted it should constitute a contract, and should be the measure of the rights and liabilities of the parties. It obligated the grantee to construct waterworks according to plans furnished by the city, and to maintain the same for the period of 25 years with a capacity sufficient to supply all the needs of the city and its inhabitants. It bound the city to take and pay for water during the full term, but gave it the right at its election to purchase the works at either of certain stated times on specified terms and conditions. Held, that such ordinance, when accepted and acted on by the grantee by the construction of the works to the acceptance of the city, constituted a contract which precluded the city from constructing competing works while such contract was in force. ,</p>

<p>1. TBADE-MABKS — INFRINGEMENT—IMITATION OE LABELS.</p> <p>Equity will afford relief against the infringement of a trade-mark consisting in part of a picture or figure, although the alleged infringing picture is not a close imitation, but is merely of the same generic character, where the resemblance is such as is calculated to mislead ordinary purchasers into buying the product of defendant for that of complainant.</p> <p>2. Same — Labels eob Chocolate and.Cocoa — Simulation oe Pictuee.</p> <p>Complainant and its predecessors for 30 years or more have used as a trade-mark for their preparations of chocolate and cocoa, both in advertisements and in their labels, a full length picture of a woman or girl in the dress of a waitress, copied from a painting, in connection with their name and location as manufacturers. During such time complainant’s products have become widely known, and are- called for by a considerable class of customers, notably children and others unable to read, as the kind with the woman or girl on the label. Held, that the later adoption and ■ use by defendants of labels on the same kind of products, the principal featuré of which is the full-length ■ picture of a woman or girl, having a general similarity in appearance, although differing in dress and position, from that of complainant, and in connection with its own name as manufacturer, constituted an infringement, which entitled complainant to an injunction; the similarity being such as is calculated, and as indicates an intention, tó deceive purchasers.</p>

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

<p>Bankrottct — Adverse Claim to Property — Procedure.</p> <p>Where property in possession of a bankrupt, which passed Into the hands of his receiver, is claimed by a third person, who alleges title by virtue of a bill of sale, and that the bankrupt was in possession as his agent, both of which allegations are denied by the receiver, the court will not determine such issues of fact summarily on affidavits, but will retain the property in the hands of its receiver until the claimant has established his right in a plenary suit.</p>

<p>Collision — Steam Vessels Meeting — Violation oe Rules.</p> <p>A steamer and a tug with a tow both held in fault for a collision when-meeting in East river; the tug for indicating a course to the left for passing when she should have gone to the right, and the steamer for not keeping a lookout, who could havé seen the course of the tug, and enabled the steamer to stop and reverse in time to avoid collision, one blast of the tug’s signal having been drowned by the steamer’s signal, and not heard.</p> <p>[Ed. Note. — For.cases in point, see vol. 10, Cent. Dig. Collision, § 40.].</p>

<p>Federal Courts — Jurisdiction—Citizenship—Stockholders’ Action..</p> <p>A corporation, being a citizen of the same state as the defendants, and therefore incapable of suing in the federal courts to restrain defendants from inducing its employes to strike, brought a suit.for such relief in the state courts, pending which complainants, who were nonresident stockholders, made a demand on the officers of the corporation to bring suit in the federal courts, knowing that the corporation could not do so, and, on the corporation’s refusal, themselves filed a bill for such relief in the federal court. Held, that such acts did not constitute a compliance with equity rule 94, relating to stockholders’ bills, and requiring that such suit shall not be collusive to confer federal jurisdiction, and that the court had no jurisdiction.</p> <p>[Ed. Note. — Diverse citizenship as ground of federal jurisdiction, see notes to Shipp v. Williams, 10 O. C. A. 249; Mason v. Dullagham, 27 C. O. A. 298.]</p>

<p>Criminal Prosecutions. On motion for a new trial and motion in arrest of judgment.</p>

<p>In Equity. On plea of res judicata.</p>

<p>1. Copyrights — Infringement—Pleading—Supplemental Bill.</p> <p>In a suit for infringement of copyrights of a number of books the complainant may properly be allowed by a supplemental bill to set up further infringements of other books of the same series, occurring subsequent to the filing of the original bill, the parties being the same, and the subject-matter of the same general character, which may appropriately be determined in the same suit.</p> <p>2. Same.</p> <p>Where a bill for infringement of copyright sufficiently alleges title in complainant to the cause of action by assignment, a supplemental bill otherwise good is not invalid because it alleges a further assignment in the nature of a confirmation or ratification of complainant’s title.</p>

<p>At Law. On motion to set aside verdict.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision under review is G. A. 5,726, T. D. 25,429, which , affirmed the assessment of duty by the collector of customs at the port of New York on importations by Charles F. Mattlage & Co. The board’s opinion reads as follows:</p> <p>Fischer, General Appraiser. In these cases the merchandise consists of smoked herring imported in wooden packages, each containing less than a half barrel of fish. Duty was assessed thereon at the rate of 30 per cent., under the appropriate provision of paragraph 258, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1650]. The importers claim them to be dutiable properly under paragraph 260, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], as “herrings, pickled or salted,” at one-half cent per pound, or under paragraph 261, at three-fourths cent per pound, or 1% cents per pound. In G. A. 4908, T. D. 22,969, the board held, following the court ruling in the cases of Meyer & Lange v. United States and Reiss & Brady v. United States (since reported in 124 Fed. 293), that smoked herrings, packed the same as those now in question, were dutiable at 30 per cent., under paragraph 258, or at three-fourths of one cent per pound under paragraph 261, according to which was the higher rate. This ruling would be conclusive against the protests but for the fact that in this instance counsel for the importers has urged a contention which was not made in the protest subject of G. A. 4,908, namely, that the provision for salted or pickled herrings in paragraph 260 covers smoked herrings, the latter not being provided for eo nomine in the tariff. The ground for this claim is that herrings are first salted before being smoked. It is noted that he does not set up any claim under paragraph 260 at one-fourth of a cent per pound, as fresh herrings, on the ground that they were fresh before they were either salted or smoked.</p> <p>We are of opinion that the contention noted is untenable. Conceding that the herrings must be salted before they are smoked, salted herrings and smoked herrings are two distinct commodities in ordinary speech, and that they are so commercially is shown by the testimony of one of the importing firm and another witness. The former testified in part as follows: “Q. On an order to your house for pickled herrings, would you deliver smoked herring? A. No, sir. Q. On an order for salted or fresh, would you deliver smoked herring for either of those? A. No, sir. Q. An order for smoked herring would have to be in what language? A. Plain words — just simply ‘smoked herring.’ * * * Q. What would you do upon an order for salted herring? A. Give them pickled herring.” The importers’ witness testified in part as follows: “Q. In your understanding as a merchant, are smoked herrings included or excluded from the group — from the class of salt fish? A. They are included in the class; but if a person sent me an order for salt herring I should want to know whether he meant pickled or smoked.” The tariff acts of 1883, 1890, 1894, and 1897 all contain separate provisions for salted and pickled herring and for smoked fish, and the practice of customs officers in assessing such merchandise for duty has been in harmony with the common and commercial understanding; that is to say, smoked herring has been assessed as smoked fish, or as fish in half barrels, according to the manner of packing. It may be added that in the course of the numerous protests as to the rate of duty on fish which have been passed on by the courts and by the board it has not been before suggested that the provision for salted or pickled herring would cover smoked herring.</p> <p>The protests are overruled on all grounds, and the decision of the collector affirmed in each case.</p>

<p>Customs Duties — Measurement—Olives in Casks — “Gallon.”</p> <p>' In assessing the duty of 15 cents per gallon provided in Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 264, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], on olives in casks, the assessment should be based on measurement by the wine gallon, and not the dry gallon.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. ‘ The proceedings in this case were brought by the United States to secure a review of a decision of the Board of General Appraisers (G. A. 5,825, T. D. 25,713), which had sustained a protest of Morris Goldberg against the assessment of duty by the collector of customs at the port of New York. The opinion filed by the board is as follows: Sharretts, General Appraiser.

<p>1. Municipal Corporations — Powers over Streets — City oe Memphis.</p> <p>The streets and alleys of the city of Memphis are public property, over which the state of Tennessee, as a sovereign, has the right of absolute control, and with respect to which the city, which is the creature of the Legislature, can exercise only such powers as have been granted by the-. Legislature, which are limited generally by its charter to the enactment: of ordinances not in conflict with the general laws.</p> <p>[Ed. Note. — For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 167, 175.]</p> <p>2. Telegraph Companies — Charge eor Using Streets.</p> <p>The Legislature of Tennessee having by Acts 1885, p. 120, c. 66, granted' to telegraph companies the right to construct, operate, and maintain their-lines upon the public highways and streets of the towns and cities of the-state, in consideration of the immediate dispatch of official messages as-therein required, the city of Memphis has no power under its charter to-require a company which has constructed its lines in the streets of the-city under siich statute to pay a tax or rental on its poles for the use-of such streets, and an ordinance imposing such tax or rental is in violation of the statute and void.</p> <p>[Ed. Note. — Rights of telegraph and telephone companies to use streets,. see note to Southern Bell Telephone & Telegraph Co. v. City of Richmond, 44 C. C. A. 155.]</p>

<p>1. Admiralty — Exceptions to Interrogatories.</p> <p>Exceptions to the answers to interrogatories propounded in the answer in a suit in admiralty for limitation of liability considered.</p> <p>2. Same — Refusal to Answer Interrogatories — Claim of Privilege.</p> <p>It is not necessary that a party to a suit in admiralty should be personally before the court in order to avail himself of the privilege given him by admiralty rules 31 and 32 to refuse to make answer to interrogatories which will expose him to any prosecution or punishment for crime, or for any penalty or any forfeiture of his property for any penal offense; but he is required to state specifically that his answers would have that effect, and a statement in refusing to make answer that the interrogatories were framed in support of allegations, which, if true, would or might tend to expose him to a penalty or forfeiture, is insufficient as a claim of privilege.</p> <p>3. Same — Verification of Answers.</p> <p>The verification to answers to interrogatories in a suit in admiralty, while not strictly in the form used in such pleadings, held sufficient.</p>

<p>1. Corporations — Powers op Directors — Validity op Charter Provisions Under Virginia Statute.</p> <p>Under the Virginia Corporation Act of May 21, 1903 (Acts Ex. Sess. 1902-03-04, p. 437, e. 270), which authorizes the stockholders of a corporation formed thereunder to insert in its charter any provision which they deem best for the regulation and conduct of its business, and to define the powers of the corporation, its stockholders and directors, a provision in the charter of a corporation (also inserted in the contracts of subscription and referred to in the certificates of stock) that until a certain date the stockholders should have no right to vote or to participate in the control or management of the corporation or its affairs, but such control and management should be vested solely in the directors therein named, who should have power to do any act which the stockholders might do in the absence of such provision, was valid, and not in conflict with further provisions of the act relating to meetings of stockholders, their powers, etc., which apply only to corporations whose charters do not otherwise provide ; and under such provision the directors had power to sell the property of the corporation where that was the principal object of the incorporators in forming the corporation, and the corporation itself was financially unable to develop, or even to hold, the property, which was largely incumbered.</p> <p>2. Same — Charter Limitation op Powers op Stockholders.</p> <p>Under such charter provision, a meeting of the stockholders held before the time limited had expired, and the election thereat of new officers and directors, was in violation of the charter and void.</p> <p>3. Same — Sale op Property to Director — Validity.</p> <p>While the sale of the property of a corporation to one of its directors will be closely scrutinized by a court when objected to by a stockholder, it will be upheld where it clearly appears that it was fairly made, and for an adequate price, and was for the best interest of the corporation and its stockholders.</p>

<p>At Taw. On motion for judgment on pleadings.</p>

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

The defendant in error, as administratrix of the estate of Chauncey A. Dixon, brought this action against the Northern Pacific Railway Company, as she was authorized to do by the statutes of the state of Montana, to recover damages for the death of her son, Chauncey, which she alleged was caused by the negligence of the plaintiff in error.

On November 13, 1903, Dugald Crawford and John F. Crawford, partners as D. Crawford & Co., merchants in St. Louis, Mb., being insolvent, made a voluntary assignment for the benefit of their creditors; and on November 14, 1903, certain creditors of D. Crawford & Co., by the appellees, their attorneys, filed in the District Court of the United S.tates for the Eastern Division of the Eastern District of Missouri a petition in involuntary bankruptcy, praying that said Dugald…

<p>In Equity. On motion to strike out plea.</p> <p>Complainant brought a suit against defendant in -this court for infringement of claims 9 and 10 of letters patent No. 759,656, for an automatic numbering machine, granted to Edwin G. Bates, May 10, 1904. Pending said suit complainant brought the present suit, alleging a subsequent infringement of claims 6 and 7 of the same patent, which cover different devices relating to the machine from those claimed in claims 9 and 10, and which are capable of separate use. Defendant filed a plea setting up the pendency of the prior suit, which complainant moved to strike out.</p>

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

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

<p>In Admiralty. Suit for freight and cross-suit for damage to cargo.</p>

<p>1. Criminal Law — Removal oe Causes — Motion to Remand — Time of Making.</p> <p>A motion to remand to the state court an indictment found therein, and removed to this court, can be made prior to the first day of the then next term of the federal court, upon the production by the state of copies of the proceedings in the state court; and this notwithstanding Rev. St. § 641 [U. S. Comp. St. 1901, p. 520], gives the petitioners until the first day of the next term in which to produce and file a copy of said proceedings in the federal court. The act does not prevent the nonpetitioning party from filing such copy before the next term, and if this be done, and a motion to remand be thereupon made upon notice, such motion will be entertained.</p> <p>2. Same — Qualification of Grand Jurors — Equal Civil Rights.</p> <p>The statute of the state of New Jersey relative to the qualifications of grand jurors considered, and held, that neither the statute itself, nor any decision of the highest court of that state, has denied to or prevented the enforcement of any rights secured to the petitioners by any law providing for the equal civil rights of citizens of the United States. Held., further, that under the facts disclosed by the petition the petitioners have adequate remedy for their alleged grievances in the state courts, and, failing therein, can obtain such relief by a writ of error to the United States Supreme Court.</p> <p>(Syllabus by the Court.)</p>

In Bankruptcy. This is a proceeding to levy an assessment and call in all shares of stock of the above-named bankrupt corporation, Remington Automobile & Motor Company, which have been issued at less than their par value, or on which the full par value has not heretofore been paid.

<p>1. Collision — Violation of Rules — Evidence to Exonerate from Liability.</p> <p>Where one vessel has been found guilty of a palpable violation of the rules of navigation sufficient in itself to account for a collision, she cannot escape liability merely by casting doubt upon the conduct of the other vessel.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 16,17.]</p> <p>2. Same — Steamer and Anchored Schooner in Fog — Failure to Sound Fog Signals.</p> <p>Conflicting evidence considered, and held to establish by a preponderance that there was a thick fog at the time of a collision in the early morning between a steamer and a schooner lying at anchor in Hampton Roads, which made it the duty of the schooner, under article 15d of the navigation rules (30 Stat. p. 99, c. 4 [U. S. Comp. St. 1901, p. 2880]), to sound fog signals, and to render her solely in fault for the collision because of her violation of such rule.</p>

<p>Contracts — Conspiracy to Defraud — Public Policy — Validity.</p> <p>Where, prior to bidding on certain private work, plaintiff and defendant contracted that defendant should bid $1.60 and plaintiff $1.70 per cubic yard for the work required, and whichever party received the contract was to give the other one-half of the work, and, after both bids were rejected, and a change made in the requirements, defendant filed an .additional bid of $1.25, which was accepted, and, though plaintiff tendered performance of one-half of the contract, defendant did the work at a cost of 9 cents per cubic yard, the contract between plaintiff and defendant constituted a conspiracy to defraud the person letting the contract, and was void between the parties, as against public policy.</p> <p>[Ed. Note. — For eases in point, see vol. 11, Cent. Dig. Contracts, § 661.}</p>

<p>1. Good Will — Sale—Wrongful Diversion of Contract — Improper Use of Property.</p> <p>Defendants, who had been employés of a manufacturing company which had sold its business and good will to complainant, found a sketch and a pattern necessary to be used in filling certain orders given to the selling company and transferred to complainant, and, with knowledge that they had been left by an officer of complainant through mistake, attempted to use the same, to divert such orders to a company formed by «themselves, having knowledge of the orders through their connection with the former company. Held, that complainant was entitled to an injunction to restrain defendants from such use of its property to deprive it of its contracts.</p> <p>2. Same — Wrongful Use of Information Obtained by Employé.</p> <p>Defendants were employés of a manufacturing company which sold its business, good will, and contracts on hand to complainant. Prior to the sale the company had been negotiating for a certain contract through one of defendants as its agent, and on the day of the sale it received a letter asking that a man be sent to close the contract. This letter was turned over to complainant, which asked such defendant to go as its representative to complete the contract. Without refusing to go, said defendant delayed, and in the meantime secured the contract for a company formed by himself and his codefendants by means of the information secured while in the employ of the former company, and from the letter to it. Held, that the information so obtained was property of the complainant, which it had purchased, and which defendants had no right to use for their own benefit and to its detriment, and that under the facts shown complainant was entitled to recover the profits made by defendants on the contract.</p>

<p>Customs Duties — Classification—Sheared Steel Shapes.</p> <p>In construing the provisions for “plate iron or steel sheared,” and for “sheared * * * shapes,” found respectively in paragraphs 126,' 135, Schedule C, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 159, 161 [U. S. Comp. St. 1901, pp. 1637, 1638], held, that the former was intended to cover stock plates of a general commercial shape and for ordinary use, and the latter something not in general stock, but sheared to a particular or given shape, and that certain sheets of steel, eiit, according to a sketch, and for a special purpose, to a specific shape, varying very slightly from a rectangle, are within the latter provision.</p>

<p>Action at Law on Contract. Ón mption to strike out pleas.</p>

<p>¡Receivers — Authority to Sue in Another Jurisdiction.</p> <p>A receiver appointed by a federal court for a corporation, but not shown to have been vested with title to its property or rights in action, cannot be authorized by such court to maintain a suit in a federal court of another jurisdiction on a cause of action in favor of the corporation.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below (G. A. 5,666, T. D. 25,256) reversed the assessment of duty by the collector of customs at the port of New York on certain imported articles. The questions involved in the case appear from the opinion of the Board of General Appraisers, which reads as follows: Waite, General Appraiser.

<p>1. Patents — Scope of Claims — Infringement.</p> <p>An inventor is not called upon to describe every use to which his Invention may be put, and, if he discloses it fully and clearly in one environment, a person who uses it in another and different environment, the change requiring no inventive skill, cannot escape infringement.</p> <p>[Ed. Note. — For cases in point, see vol. 3S, Cent. Dig. Patents, § 381.]</p> <p>2. Same — Infringement—Fireproof Walls.</p> <p>The Geraerdts patent, No. 555,693, for a fireproof wall consisting of a series of thin plates or blocks placed edge to edge, and provided with grooves in their sides and ends, and with registering mortises in the grooved edges thereof, and metallic tenons for connecting the plates or blocks at the sides and ends, discloses invention, and is valid, and is infringed by the use in building dumb-waiter shafts of plates or blocks, each extending across one side of the shaft, having grooves, and mortises and tenons on the horizontal edges, and on the vertical joints at the corners held together by metallic tenons bent at right angles and laid in the horizontal grooves, such method being an obvious adaptation of the principle of the patent to corner construction.</p>

<p>Disturbing the Peace — Evidence—Sufficiency to Sustain Verdict.</p> <p>Testimony that one drew a six-shooter, said “Let’s shoot ’em up!” put his weapon in his pocket, and walked off, and that the witness subsequently heard shooting in the direction he went, constitutes no substantial evidence of the offense of disturbing the peace of a town.</p> <p>(Syllabus by the Court.)</p>

In Admiralty. Recovery of damages for the sinking of scow, hired by the city, from contact with ice, while lying on the northerly side of pier at foot of 134th Street, North River.

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

<p>In Admiralty. Liability of steamship for injury to steerage passenger through negligence in requiring him to come on deck in bad weather to obtain food.</p>

<p>1. Collision — Damages Recoverable — Demurrage During the Making or Repairs.</p> <p>The report of a commissioner fixing the amount of damages recoverable for the injury of a barge in collision considered, and confirmed except as to the demurrage allowed while repairs were being made, which largely exceeded the cost of the repairs. Such award.reduced on evidence showing that the repairs could have been made in much less time if the vessel had been taken to a place having proper facilities and equipment.</p> <p>[Ed. Note. — Demurrage, see note to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>2. Same — Interest on Demurrage.</p> <p>Interest on the amount awarded for demurrage while a vessel was being repaired after collision, while discretionary with the court, will not be allowed prior to the decree confirming the award, where there has been long delay in the prosecution of the suit.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 284.]</p> <p>3. Same — Findings op Commissioner — Review.</p> <p>The rule that the findings of a commissioner fixing the damages recoverable for collision should not be disturbed unless plainly wrong has little application where only a small part of the evidence was taken before the commissioner.</p> <p>4. Same.</p> <p>The fact that the award of damages for a collision made by a commissioner was less than the amount claimed does not entitle the libelant to a more favorable consideration of such award, where his claim was clearly excessive and exorbitant.</p>

<p>1. Removal op Causes — Diversity op Citizenship — Formal Parties.</p> <p>A bill for specific performance of a contract for the sale to complainant of certain shares of the issued stock of a corporation, and to recover damages for its breach, which does not allege the insolvency of the other party to the contract, nor that he is about to dispose of the stock, does not state any cause of action against the corporation, which is not an indispensable nor a necessary party. If joined, it is merely a formal party, and its presence, although a citizen of the same state as complainant, will not defeat the right of the real defendant to remove the cause, where it is otherwise removable.</p> <p>[Ed. Note. — Diverse citizenship as a -ground of federal jurisdiction, see notes to Shipp v. Williams, 10 O. O. A. 249; Mason v. Dullagham, 27 O. O. A. 298.j</p> <p>2. Same — Realignment op Parties — Interest as Shown by Pleadings.</p> <p>In a suit by a stockholder of a corporation against the corporation and other stockholders to prevent the consummation of an alleged conspiracy by the latter to obtain control of the corporation for the purpose of canceling or terminating a contract made by the corporation, and alleged to be for its benefit, and substituting another, by which the conspirators would profit at the expense of the company and its other stockholders, the corporation must be aligned with the complainant for the purpose of determining the removability of the cause, in accordance with its interest as shown by the bill, and especially where it adopts the .allegations of the bill by its answer.</p> <p>3. Corporations — Legal Rights op Stockholders — Voting op Stock.</p> <p>Where by the law of the state each share of stock of a corporation is given one vote at meetings of stockholders, the general right of the holders of a majority of the stock to control the corporation follows as a legal consequence, and the right of the legal owner of stock to vote the same is a property right, in which he is entitled to be protected by the courts as against the doubtful claim of another to such stock.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, § 747.]</p> <p>4. Same — Interperence by Courts — Unwarranted Granting op Injunction.</p> <p>A court of equity is not warranted in granting an injunction, on an ex parte showing by a minority stockholder on the eve of a corporate election, restraining the legal holders of a majority of the stock from voting the same, with the result of giving the minority stockholders control of the corporation.</p> <p>5. Same.</p> <p>An allegation in a bill by a stockholder of a corporation that other stockholders, made defendants, have conspired to elect a board of directors for the purpose of obtaining from such board a contract with the corporation by which they will make an exorbitant profit at the expense of the corporation and its other stockholders, affords no legal ground for an injunction restraining the defendants from voting their stock at the corporate election.</p> <p>6. Specific Performance — Preliminary Injunction — Grounds—Suit for Specific Performance.</p> <p>A preliminary injunction should not be granted in a suit for specific performance of a contract where the contract is disputed or is uncertain in its terms, or the plaintiff’s right sought to be protected is for any reason doubtful, nor where it does not appear that there is any danger of loss to complainant for which he cannot obtain compensation in damages.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Gent. Dig. Specific Performance, § 353.]</p> <p>7. Same.</p> <p>In a suit for specific performance of an alleged contract for the sale to complainant of stock of a corporation to which defendant holds the legal title, the court should not grant a preliminary injunction on an ex parte showing which deprives defendant of his right to possession, and the incidental right to vote the stock, which he is entitled to exercise until an adverse determination on the merits.</p> <p>8. Same — Dissolution—Unfair Use by Complainant.</p> <p>Two days before the annual election of directors by the stockholders of a corporation, complainant, who was its president, instituted a suit against certain of the defendants who were stockholders for the specific performance of an alleged verbal contract for the sale to him of a certain number of shares of stock. He also alleged that since making the contract they had conspired to purchase other stock, and thereby obtain control of the corporation for ulterior purposes detrimental to its interests. Without notice, and on an ex parte showing, an order was granted restraining defendants from voting any stock held by them, and restraining the corporation from allowing them to vote. Such order was by complainant’s direction withheld until after the meeting had been organized with the necessary quorum, and then served; the result being to leave complainant and his supporters in control, although they held but about one-third of the stock. They refused to adjourn until a full hearing could be had before the court, and chose a board of directors who re-elected complainant president. Held, that the order was unwarranted to any extent on the case presented, and also in that it extended to stock not in litigation; that the use made of it by complainant was, moreover, unfair, and an abuse of legal process; and that it should be dissolved, especially where, on complainant’s own showing, his right to relief on his alleged contract was doubtful.</p>

In Equity. The Badger Gold Mining & Milling Company, a corporation of the state of California, brought its bill as complainant against the Stockton Gold & Copper Mining Company, a corporation of the state of Washington, as defendant, alleging, in substance, that the complainant is the owner in fee simple of an undivided one-half interest in and to a mining claim in the Elk mining district, Grant county, state of Oregon, known as the Stockton Lode or Mining Claim; that on and…

<p>Depositions — Peqceduee in Taking — Ruling on Objections.</p> <p>On the taking of the deposition of a witness in an action at law, in another district, under Rev. St. § 863 [U. S. Comp. St 1901, p. 661], questions asked by plaintiff were objected to as being irrelevant or immaterial, or as calling for incompetent testimony, or as inquiring touching matters about which the witness was privileged not to answer, and, the witness having refused to answer, the matter was certified to the Circuit Court of the district where the testimony was being taken. Held that, as the power and duty of such court to pass on the objections was unsettled, it would require the witness to answer all questions in conformity to the equity practice, to enable the question to be taken before the appellate court in contempt proceedings should the witness still refuse to answer.</p>

On Petition for Writ of Habeas Corpus. Hearing pursuant to a rule upon the respondent to show cause why a writ of habeas corpus should not issue to deliver the petitioner from imprisonment alleged to be without due process of law and in violation of the fourteenth amendment to the Constitution of the United States.

On Motion to Dismiss. Motion is made to dismiss the suit upon the following state of facts: On the 17th day of February, 1903, an act of the Legislature of Alabama was approved, “to carry into effect the provisions of ordinance No. 390 of the constitutional convention of 1901, to establish a courthouse and jail at some point to be designated at an election by the people of St. Clair county,” etc. Laws 1903, p. 28.

<p>Wharves — Liability op owner — Injury to Vessel from Insufficient Depth of Water.</p> <p>Libelant’s barge, laden with coal, consigned to respondent, was delivered at the dock owned by respondent, to be there discharged by him in accordance with the bill of lading. She was placed in position for discharging by the master, who had never before been at the dock, on the assurance of respondent that there was sufficient depth of water, but grounded, and was injured owing to inequalities in the bottom over which there was insufficient water. Held, that respondent was liable for the injury in failing to exercise the care and diligence imposed on him by law as dock owner, and that the master had the right to rely on respondent’s statements, and was not in fault in failing to take soundings himself.</p>

<p>Collision — Steam Vessels Meeting — Failure to Carry Out Passing Agreement.</p> <p>A steam yacht and steam lighter which came into collision near the Brooklyn shore after exchanging signals to pass to the right each held in fault for taking no measures to carry out the passing agreement until too late. The lighter was at the time turning, and continued her swing, which brought her across the yacht’s course, while the latter did not stop or change her course until immediately before the collision.</p>

<p>Sale — Contract—Acceptance of Proposal after Notice of Revocation.</p> <p>A written proposal by defendant to purchase certain machinery from complainant company was required by its terms to be submitted to complainant at its place of business and accepted before becoming a contract. A formal acceptance was mailed to defendant by the complainant, but after it had received notice from him of a revocation of the order. An officer of complainant, having authority to do so, had previously verbally accepted the order, but he also had been notified by defendant of its revocation. Held, that neither acceptance was operative to create a contract binding on defendant.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 45.]</p>

<p>In Bankruptcy. Sur petition of the Cary Safe Company to reclaim certain property.</p>

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

The original ease — the Royal Trust Company and Horace Oakley, Trustees, v. Washburn, Bayfield and Iron River Railroad Company — was a suit brought in December, 1898, to foreclose a trust deed upon the property of the railroad company, to secure bonds to the extent of five hundred thirty-five thousand dollars, of which two hundred thirty-seven thousand dollars had, before the suit was brought, been duly certified by the trust company.

<p>Patents — Infringement—Electrical Converters.</p> <p>Infringement of the Stanley patent, No. 469,809, for a system of electrical distribution, held not sufficiently established by the ex parte proofs on the hearing of a motion for a preliminary injunction to warrant the granting of such injunction.</p>

<p>Patents — Invention and Infringement — Regulator for Electric Motors.</p> <p>The Whittingham patent, No. 499,769, for a regulator for electric motors having an electric magnet of the solenoid form, discloses patentable invention. While the parts separately were old in an allied branch of the prior art, the combination of the patent was novel, and accomplished a new and useful result, and marked a distinct advance in the machines to which it was applied over those of the prior art. Claims 4 and 5 held infringed. Claims 6, 7, and 8, in so far as they make an iron cap on the solenoid, the function of which is described, an element of the combination claimed, must be limited to the specific construction shown, and, as so construed, held not infringed.</p>

In Equity. Suit for infringement of letters patent No. 650,771 for a plow, granted to George C. Avery May 29, 1900. On final hearing. This is an action in equity, predicated upon alleged infringement of letters patent No. 650,771 for an improvement in the “double-moldboard” or “middleburster” plows. The bill is in the usual form.

At Law. Motion to compel Charles H. Loveland, one of the defendants, to answer questions propounded to him as a witness, under section 863 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 661].

<p>1. Salvage — Amount of Compensation — Saving Wrecked and Almost Derelict Schooner.</p> <p>A four-masted schooner, bound from a Florida port to New York in December, with a cargo of lumber in her hold and on her deck, when about 12 miles off Harteras Light, in the night, struck some object which tore a large hole in her bottom, causing her to fill until her deck load was under water, and the crew were obliged to stay on the roof of the deckhouse. The schooner was anchored, and on the afternoon of the next day the large passenger and freight steamer Sabine, bound for New York, came to her rescue in response to her signals of distress. The master. and crew, who were without food, and with their clothing wet and frozen, abandoned the schooner and went on board the steamer. After consultation the steamer sent men on board the schooner, who cut her anchor chain and made fast a towline, and, with considerable trouble and some danger to the steamer, she was safely towed to New York; the steamer being delayed two days by the service. The saved value of the schooner cargo and freight was $25,000, and the value of the Sabine $300,000. Held, that while the schooner was not, strictly speaking, a derelict, she might justly be considered such for salvage purposes, and that in view of such fact, and that the lives of the crew and of the master’s daughter, who was on board, were in peril, and were probably saved by the Sabine, the latter was entitled to an award of $8,000, besides reimbursement for her losses and expenses.</p> <p>[Ed. Note. — Salvage awards in federal courts, see note to The Laming-ton, 30 O. G. A. 280.]</p> <p>2. Same — Elements of Award — Savins of Life.</p> <p>The saving of life forms an essential ingredient where the question of compensation for salvage services is under consideration.</p> <p>[Ed. Note. — For eases in point, see vol. 43, Cent. Dig. Salvage, § 57.]</p>

<p>Shipping — Right op Ship to Share in General Average — Harter Act.</p> <p>Although the Harter act of February 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946], relieves a shipowner from liability for the negligence of his servants in the navigation and management of the vessel, it does not, either expressly or by implication, render valid a contract which entitles him to share in a general average made necessary by such negligence, and a stipulation therefor in a bill of lading is void.</p> <p>[Ed. Note. — General average, see note to Pacific Mail S. S. Co. v. New York, H. & R. Co., 20 C. C. A. 357.]</p>

In Bankruptcy. On motion to confirm referee’s report. William Woodward Baldwin appearing specially for motion to set aside service of subpoena, etc.

<p>1. Collision — Steamer and Ferryboat — Fog.</p> <p>A collision occurred in East river in tbe early morning between a ferryboat crossing from Brooklyn and a steamer passing down the river, in which the ferryboat was sunk. There was a fog so dense that a vessel could be seen only a few feet distant, and the ferryboat had stopped, or nearly so, to locate the position of her slip, when she was struck by the steamer with such force as to cut a hole several feet deep. Held, that the steamer was in fault (1) for being near the Manhattan shore, instead of in the middle of the river, and (2) for excessive speed in view of the fog, which made it dangerous to move at all unless at a speed so slow that the vessel could be stopped almost instantly. Also held that the ferryboat was not in fault.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 170, 172, 184.</p> <p>Collision rules as to speed of steamers in fog, see note to The Niagara, • 28 O. C. A. 532.]</p> <p>2. Same — Right of Ferryboat to Navigate in Fog — Crossing Vessels.</p> <p>A ferryboat running between Brooklyn and Manhattan has the right to navigate prudently and maintain steerageway even in a fog, and when nearing her slip the starboard hand rule for crossing cannot be invoked against her by another vessel.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 205.]</p>

<p>In Admiralty. Suits for limitation of liability on account of collision. On exceptions to commissioner’s report.</p> <p>Wing, Putnam & Burlingham, for the Old Dominion Steamship ■Company.</p>

<p>Suit in equity to enforce the alleged rights of the complainants to the use of the word “Angostura” as a trade-name for the bitters of their manufacture, and to restrain alleged unlawful competition by defendants in putting up and selling bitters in such close imitation of complainants’ goods, name, packages, labels, etc., that persons desiring to purchase complainants’ goods, bitters, are deceived into purchasing bitters made by one Cornelius W. Abbott. It is not extravagant to say that substantially all the defenses known to the law are pleaded.</p>

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

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

<p>Patents — Anticipation—Process and Machine for Ltjstering Silk.</p> <p>The Stuart patents, No. 705,715, for a process of intensifying the luster of silk fiber, and No. 705,716, for a machine for carrying out such process, are both void for anticipation; the former by the process of the Hendrie British patent of 1845, and the latter by a French machine from which that of the patent was copied.</p>

In Equity. Argument on demurrer to bill. The bill of complaint filed in this case primarily seeks relief by way of specific performance of a contract entered into between the trustees of the internal improvement fund of the state of Florida and the predecessor in-title to complainant, the Augusta, Tallahassee & Gulf Railroad Company.

<p>1. Bankruptcy — Liens Fraudulent Under State Law.</p> <p>A bill of sale from a .bankrupt to his wife, and notes and a chattel mort- ' gage executed by him to his brother, both bill of sale and mortgage covering all his personal property and crops, and all he should acquire or raise during a certain number of years, held fraudulent, as attempts to cover his property, and void as to creditors under the law of Iowa.</p> <p>2. Same — Claim of Wife to Property.</p> <p>Under the law of Iowa, which precludes a wife from asserting ownership of personal property against creditors of her husband where she has-permitted such property to pass under his control, and to be used and dealt with by him as his own, such claim cannot be asserted against his trustee in bankruptcy.</p> <p>3. Same — Claim Based on Fraudulent Security — Estoppel.</p> <p>Where the only claim filed by the brother of a bankrupt against his-estate was based on notes and a mortgage which are clearly fraudulent, he will be held bound by such action, and will not be permitted to prove-the claim as one for wages for labor and entitled to priority.</p> <p>4. Same — Exemptions—Tools of Farmer.</p> <p>A cream separator is a tool or instrument of a farmer within the meaning of Iowa Code, § 4008, and is exempt as such thereunder on his bankruptcy.</p>

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

<p>Carriers — Assault on Passengers — Liability.</p> <p>The liability or nonliability of the carrier of passengers for hire for an injury inflicted upon a passenger carried, by reason of a third person making an unprovoked assault upon him, depends upon the presence or absence of evidence showing the employés of the carrier either knew, or by the exercise of due care should have known, from all the attendant facts and circumstances of the particular case, that injury to the passenger carried was threatened or impending, and which injury, by the exercise of that high degree of care which the law requires of a carrier of passengers for their safety and protection, thus being foreseen, might have been guarded against.</p> <p>[Ed. Note. — Eor cases in point, see vol. 9, Cent. Dig. Carriers, § 1125.]</p> <p>(Syllabus by the Court.)</p>

In Equity. Suit in equity to restrain the alleged infringement of two United States letters patent, viz: No. 668,960, dated February 26, 1901, for improvements in storage apparatus, to Charles Piez and Robert H. Beaumont, assignors to the Dodge Coal Storage Company, and No. 688,111, dated December 3, 1901, for improvements in storage apparatus, to same parties.

<p>1. Jurisdiction of Federal Courts — Local Suits — Appearance of Defendant.</p> <p>Where, in a suit in a Circuit Court of the United States against a nonresident defendant, in which jurisdiction is sought to be maintained under section 8 of Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], providing for local suits, no service- is obtained on the defendant within the jurisdiction, it is settled that the entry of an appearance by such defendant “specially and solely for the purpose of objecting to the jurisdiction of the court,” and the filing of a motion to dismiss, and, on its being overruled, of a demurrer, do not amount to a general appearance to give the court jurisdiction over the person of the defendant.</p> <p>2. Same — Nature of Relef Sought — Inability to Enforce Possible Decree.</p> <p>A suit in equity by a lessee against a nonresident lessor to enforce alleged rights under the terms of the lease by requiring the defendant to elect either to sell the land to, or to buy the building thereon from, complainant at an appraised value, or to have the court make such election and carry the same into effect through a master or trustee appointed for the purpose, is not within the jurisdiction of the Circuit Court of the United States for the district in which the property is situated, by virtue of section 8 of Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], where the defendant has not appeared.</p>

<p>1. Contract — Action sob Breach — Pleading.</p> <p>A complaint in an action to recover the price of certain bonds of a corporation, which alleges that plaintiff was induced to sell machinery to the corporation and to accept such bonds in part payment on the promise of defendants, who were officers of the corporation, to purchase the bonds at par at any time within six months, sets up a valid contract, not unilateral nor lacking in consideration; the agreement of the plaintiff to sell the bonds being presumed from the facts pleaded.</p> <p>2. Same.</p> <p>Where defendants contracted to purchase certain bonds from plaintiff at a stated price, plaintiff, on their refusal to accept and pay for the bonds when tendered, was entitled at his election to treat the bonds as the property of defendants, and maintain an action at law for the purchase price; and the fact that the prayer of the complaint was that defendants be compelled to accept and pay for the bonds does not make the suit one in equity for specific performance, nor render the complaint demurrable.</p> <p>3. Complaint — Demurrer—Inappropriate Prayer.</p> <p>A complaint which states facts constituting a cause of action is not demurrable because the prayer is for relief which does not conform to the case made.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 143, 439, 440.]</p>

<p>1. Courts — United States Circuit Courts — Claims against United States— Tucker Act — Actions—Findings.</p> <p>Under Tucker Act March 3, 1887, e. 359, § 7, 24 Stat. 506 [U. S. Comp. St. 1901, p. 755], providing that in proceedings on claims against the United States it shall be the duty of the court to cause a written opinion to be filed in the case setting forth the specific findings by the court of the facts therein and the conclusions of law on all questions of law involved in the ease, and to render judgment thereon, such opinion is not the usual opinion of the trial judge, but constitutes a part of the record to enable the public and the appellate court to find on the record a formal statement of the Circuit Court’s findings both on questions of law and fact and the reasons for such findings.</p> <p>2. Same — Commissioner’s Decision — Review.</p> <p>In proceedings to recover a tobacco rebate as authorized by Act Cong. April 12, 1902, e. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 277], the whole claim having accrued since the passage of Tucker Act, Act Cong. March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752], as amended by Act June 27, 1898, c. 503, 30 Stát. 494 [U. S. Comp. St. 1901, p. 753], a rejection of the claim by the commissioner of internal revenue is reviewable by the Circuit Court under such act.</p> <p>3. Same — Evidence.</p> <p>Where in a suit for tobacco rebate, as authorized by Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 277], claimant presented four witnesses, who testified explicitly to the amount of tobacco claimed for, and such testimony was uncontradicted, the mere fact that the government claimed that the space in the stores was obviously inadequate for holding the amount of tobacco testified to was insufficient to show that the claim was fraudulent.</p> <p>4. Same — Proof—Compliance with Instructions.</p> <p>A strict compliance with a clause in instructions on the back of a blank proof for tobacco rebate, requiring the witnesses at the time of taking the inventory to each count the packages of the several denominations mentioned in the inventory, keep a separate account of the same on separate sheets of paper, make computations, etc., was not a condition precedent to the claimant’s right to the rebate, authorized by Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 277].</p>

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

<p>On Application for Review of a Decision of the Board of United 'States General Appraisers.</p> <p>Note Gillespie v. U. S. (C. C.) 124 Fed. 106; Bawder v. Stone (C. C.) 125 Fed. 809; and In re Crooks, G. A. 5,877, T. D. 25,890.</p> <p>The decision of the Board of General Appraisers overruled the protest of Wilmerding, Morris & Mitchell against the assessment of duty by the collector •of customs at the port of New York. The importers, in their protest, demanded relief from the assessment of increased duties, alleged to be due to a clerical error in making out an invoice covering certain matting. It appeared that the invoice on which entry was made failed to specify various nondutiahle charges as being included in the invoice price. As to some of the items on the invoice it made no difference in the rate of duty whether these charges were deducted or not; but on other items the inclusion of the charges was ■sufficient to bring the value of the merchandise above the dividing line of 10 cents per square yard, established in paragraph 333, Tariff Act July 24, 1897, c. 11, § 1, Schedule J, 30 Stat.'ISO [U. S. Comp. St. 1901, p. 1002], under which -the matting was dutiable. A duty of 7 cents per square yard and 25 per ■cent, ad valorem was thereby incurred, instead of 3 cents per square yard, -the rate on matting valued at less than 10 cents per square yard, which would have been applicable had the invoice been correctly made out, and which was the rate on the basis of which entry was made originally. On incomplete •evidence the Board of General Appraisers held that the importers had not made out a case showing them to be entitled to the relief sought, and affirmed the assessment of duty. In the circuit court the importers introduced much .additional evidence, showing that it was not intended to include said non-•dutiable charges in the value of the merchandise; that the failure to specify them separately in the invoice was due to an inadvertence; that the matting was of a standard variety largely imported, on which it was usual to pay a ■duty of 3 cents per square yard; that its value in this market precluded the idea of a higher duty; that the fact that the terms of the invoice demanded the imposition of the higher rate, instead of the rate of 3 cents per square .yard stated in the entry, was not noticed either by the manager of the matting department of the importers’ establishment or by the custom house broker, nor by the entry clerk either in the office of the collector or in the naval office, who should have rejected the entry as stating the wrong rate, nor by the appraiser’s office, nor by the liquidating clerk of the collector, and whs not observed until the entry reached the. liquidator of the naval office. The higher duty was thereupon adopted by the liquidating clerk in the custom house, and agreed to by the naval office, and the entry thus was liquidated ■on the basis of the same figures as had been before all the persons mentioned; and the importers were notified to pay the balance found due, which was the first time the error was brought to their attention. It was shown further that the error was due (1) to an inadvertent omission of the items of charges from the invoice, and (2) to the fact that at the time of entry neither the manager, broker, entry clerks, nor appraiser observed that certain lines of ■the' invoice, without deducting the charges -above mentioned, would, on their face, call for the higher duty; that these people were misled by dividing the-total value of the invoice by the total number of yards on the invoice, which gave a result of less than 10 cents per square yard, whereas a division line by line for each item of the invoice would have shown the error of omission. Had this been discovered, the importers could have adjusted the matter by entering on a pro forma invoice and giving a bond for the production of a correct consular invoice, which it was proven was precisely what was done with regard tó a later similar invoice, as to which the error was. discovered before completion of the entry. It appeared also that the charges in question were in fact nondutiable, and that full market value would be represented by the balance left after their deduction.</p>

<p>On Application for Review of a Decision of the Board of United* States General Appraisers.</p> <p>The decision below affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Austin Baldwin & Co. Note G. A. 3,697, T. D. 17,649.</p>

<p>1. Customs Duties — Classification—Imitation Pbecious Stones — Imitation Peaels.</p> <p>The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 435, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for imitations of precious stones, held to cover imitation whole and half pearls, including such as have been strung on wire for purposes of manufacture.</p> <p>2. Same — Piebced Imitation Peabls — Beads.</p> <p>Pierced imitation pearls are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], relating to “beads of all kinds, not threaded or strung,” father than under paragraph 435 (30 Stat 192 [U. S. Comp. St. 1901, p. 1676]), as imitations of precious stones.</p>

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Alexandria.</p>

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

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

<p>Exceptions to Answers to Interrogatories.</p>

<p>Demurrer to Bill.</p>