Volume 140 — Federal Reporter

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

<p>1. Jurisdiction of Federal Courts — Statutory Limitation.</p> <p>The jurisdiction of a federal court is limited to that conferred by the Constitution and statutes of the United States, and cannot be acquired or enlarged by consent.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 792.]</p> <p>2. Same — Diversity of Citizenship.</p> <p>Where the jurisdiction of a federal court depends upon the diverse citizenship of the parties, if there are several coplaintiffs, each plaintiff must be competent to sue, and, if there are several codefendants, each defendant must be liable to be sued in such court.</p> <p>[Ed. Note. — Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>3. Same — Evidence of Want of Jurisdiction — Affidavits.</p> <p>Under Judiciary Act March 3, 1875, c. 137, § 5, 18 Stat. 472 [U. S. Comp. St. 1901, p. 511], which provides that, if it shall appear to the satisfaction of the court at any time after suit has been brought that it is without jurisdiction, it must dismiss the suit, it is the duty of the court to consider affidavits showing its want of jurisdiction, although they are filed after the taking of testimony in the case has been closed.</p> <p>4. Same — Diversity of Citizenship.</p> <p>A circuit court of the United States is without jurisdiction of a suit against a number of defendants to enjoin the diversion of water from a stream by means of certain irrigation ditches, in some one of which each of the defendants is alleged to own an interest, where any one of the defendants is a citizen of the same state as complainant.</p>

<p>In Equity. Suit to determine water rights.</p>

In Bankruptcy. On review of decision of referee. In the matter of the bankruptcy of J. C. Hartsell & Son as a firm and as individuals, D. E. Martin, who brought suit in the state court, previous to the adjudication in bankruptcy, against the bankrupts individually, to recover damages for the conversion of a promissory note, petitioned the referee to make an order that the exempt personal property of the bankrupts be held in the custody of the court, and that their discharge…

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision of the Board of General Appraisers, G. A. 5,919, T. D. 26,031, related to an importation at the port of New York by F. Zaloom & Sons, and affirmed the assessment of duty thereon by the collector of customs at the port of New York. The character of the merchandise and the nature of the controversy appear from the opinion of the board, which reads as follows:</p> <p>WAITE, General Appraiser. The question in this case arises over what is claimed by the importer to be sesame oil, which Tariff Act July 24, 1897, c. 11, provides shall be free, in paragraph 626, § 2, Free List, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685], which reads in part, “Oils: Almond, amber, * * * sesame or sesamum seed or bean,” etc. The collector assessed the article for duty as an unenumerated manufactured article under section 6 of the act, 30 Stat. 205 [U. S. Comp. St. 1901,- p. 1693]. The commodity in question, which is sometimes called sesame pulp, is shown by the sample and testimony to be ground sesame seed, together with the oil, which is a natural extract therefrom. The testimony of the witnesses for the importers clearly shows that it has been imported by them as sesame oil for the Assyrian trade in this country. Testimony in behalf of the government, however, shows that there is a refined sesame oil, which is the same as this, with the exception that the ground seed or pulp has been removed. It is clear from the evidence that the commodity involved in this case was known among Assyrians at the time of the passage of the act as sesame oil, but its consumption and dealings in it were apparently confined to that class of people. It is used principally as a food product, and, while it might be termed sesame oil were it the only form in which sesame oil was imported, still we are of the opinion that, in view of the fact, as established by the evidence, that the refined product is of more general use, is the only sesame oil known to the trade generally in this country, and unquestionably is a sesame oil as the term “oil” may be applied in its broadest significance, it is the product intended to be covered by the statute. The commercial designation which will control in the classification of the imported merchandise must be “the result of established usage in commerce and trade, and such usage * * * must be definite, uniform, and general, and not partial, local, or personal.” Maddock v. Magone, 152 U. S. 368, 371, 14 Sup. Ct. 588, 38 L. Ed. 482. Proof that the article imported is known and dealt in as sesame oil among a comparatively small class of foreigners living in this country does not satisfy the requirements of this rule. Sesame pulp has been the subject or two previous decisions by the board, in both of which it has been held not to be free of duty under paragraph 626. In re Emanuel, G. A. 4,748. T. D. 22,435; In re Sahadi, Abstract 1,946, T. D. 25,411. The testimony in G. A. 4,748 is made part of the record in this case, upon motion of the government counsel. For the reasons stated, the protest is overruled, and the collector’s decision affirmed.</p>

<p>1. Patents — Infringement—Casting Apparatus.</p> <p>The Killeen patent, No. 608,143, for casting apparatus for blast furnaces, . consisting of a metal skimmer trough having a skimming barrier and a dam below, and as an essential feature a. drain opening in the side of the trough above the dam, was not anticipated, and, while of narrow scope, in view of the undoubted utility and the immediate and wide adoption of the apparatus by those skilled in the art, must be conceded novelty and patentable invention. Also held infringed by the device of the Bachman patent, No. 636,885.</p> <p>2. Same — Priority of Invention.</p> <p>The general rule is that he who first reduces an invention to practice is ordinarily held to be the inventor as against another who claims to have previously conceived the idea which led to the invention, but made no practical application of it.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 116, 117.]</p>

<p>1. Bankruptcy — Life Insurance Policies — Effect of Bankrupt’s Death.</p> <p>The right of a bankrupt to a life insurance policy having a cash surrender value provided for in the contract on payment of such value to the trustee as provided in Bankr. Act July 1, 1898, e. 541, § 70a (5), 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], is not affected by his death after adjudication, but passes to his legal representatives; nor is such right lost by the failure of the bankrupt or such representatives to make a tender of the surrender value until the expiration of 30 days after such value has been ascertained and stated to the trustee by the company.</p> <p>2. Same — Policies Having Cash Surrender Value.</p> <p>The proviso to Bankr. Act July 1, 1898, e. 541, § 70a (5), 30 Stat. 566 [U. S. Comp. St. 1901, p. 3451], giving a bankrupt the right to retain ‘‘any insurance policy which has a cash surrender value” on payment of such value to the trustee, applies only to policies which, by their provisions, give the bankrupt the right to surrender the same and receive a fixed or ascertainable sum therefor, and policies giving no such contract right pass to the trustee as assets of the estate as of the date of adjudication, free from any right or claim of the bankrupt.</p> <p>3. Same — Valid Pledge of Policy — Rights of Pledgee.</p> <p>A bona fide assignee of life insurance policies pledged more than four months before the bankruptcy of the pledgor is entitled to hold the same against the trustee in bankruptcy, and on application to the court to have their value determined pursuant to Bankr. Act July 1, 1898, c. 541, § 57h, . 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], for the purpose of fixing the credit to be made on his claim.</p> <p>4. Same — Death of Bankrupt Pledgor After Adjudication — Rights of Parties in Interest.</p> <p>More than four months prior to his bankruptcy the bankrupt made a bona fide assignment of three life insurance policies as security for a debt, one of the policies having a cash surrender value and the others not. After the adjudication the pledgee reassigned the policies to another creditor of the bankrupt, receiving a sum therefor which he credited on his debt, and thereafter proved the remainder as an unsecured debt. Before any proceedings had been taken with respect to the policies, the bankrupt died, and they became payable, the amount exceeding the debt of the original pledgee. Held that, whatever rights the reassignment may have given as between the parties thereto or as against the bankrupt’s administrators by reason of his assent thereto, it did not affect the right of the trustee, which was to redeem the policies on payment of the amount of the debt of the original pledgee and any sums which had been advanced by way of premiums, his redemption being subject, however, to the right of the administrators to retain the policy having a cash surrender value on payment of such value; that the debt so secured by the pledge should be apportioned between the different policies, and the amount apportioned to the policy having a cash surrender value taken pro rata from such surrender value, which belonged to the trustee, and the excess above,such value, which belonged to the bankrupt’s administrators; that the amount so required to be paid by the trustee in redemption of the policies should be distributed between the original pledgee and his assignee in accordance with. their equities growing out of the assignment, subject to the requirement that the excess claim filed by the former against the bankrupt estate should be expunged.</p>

<p>In Bankruptcy. On petition for rehearing in the matter of adjudication.</p>

<p>In Bankruptcy. On the several petitions of Minnie Oppenheimer, Isadore Weil, and Carrie Lemile, for review of the orders of the referee disallowing their respective claims against the bankrupt estate.</p> <p>The petition in bankruptcy was filed July 11, 1904, and the adjudication was July 15th. following. July 20, 1904, the petitioners filed their respective claims duly verified against the estate as follows:</p> <p>Isadore Weil: Balance due upon a promissory note dated January 12, 1903, due on demand, for $1,000. Indorsed as follows: March 26, 1904, merchandise, $47.97; March 4, 1904, cash, $100. Prior indorsements reduce claim to $889.05.</p> <p>Minnie Oppenheimer: Balance upon note dated July 7, 1902, due on demand, for $5,000. Indorsed as follows: March 14, 1904. cash, $100; March 12, 1904, cash, $27.47; March 18, 1904, merchandise, $13.32. Prior indorsements reduce the claim to $2,352.17.</p> <p>Carrie Lemile: Balance upon note dated June 12, 1903, due on demand, for $875. Indorsed as follows: March 19, 1904, cash, $100. Prior indorsements reduce the claim to $746.75.</p> <p>To these respective claims the First National Bank of Iowa Falls and E. S. Elsworth, creditors of the bankrupt, and the trustee in bankruptcy, filed objections to their allowance upon the ground that each of the claimants, within the four months immediately preceding the filing of the petition in bankruptcy, had received payments from the bankrupt, which in fact were preferences under the bankruptcy act, which they had not surrendered; the payments referred to being the indorsements upon the notes as above • stated. The referee found from the evidence that, when each of the payments was made, the bankrupt was insolvent, that by the payments he intended to prefer each of the petitioners to the amount thereof, and that each of the petitioners had reasonable cause to believe the bankrupt to be insolvent and that a preference was intended by such payments at the time they received the same; and he rejected the claims because such preferences had not been surrendered.</p> <p>The petitioners are respectively the brother-in-law and sisters of the bankrupt, and resided in Mobile, Ala., when the above-mentioned payments, were made to them, and the bankrupt at the time resided in Iowa Falls, this state, where he was engaged in the mercantile business. The petitioners respectively petition for a review of the orders of the referee denying their claims.</p>

In Bankruptcy. On petition for appointment of ancillary receiver. This petition, signed and duly verified by three of the principal creditors of the alleged bankrupt, recites: First. The filing of an involuntary petition against the alleged bankrupt in the Northern District of Illinois. Second.

<p>1. Trusts — Enforcement of Trust — Sufficiency of Allegation.</p> <p>A bill for an' accounting, wbicb alleges that complainant delivered securities amounting to a sum stated to defendant “as trustee and depositary to bold and thereafter deliver and distribute the same as directed and authorized by the complainant, and that the defendant received the securities and accepted the trust obligations to so deliver and make distribution thereof,” but which does not further state the character of the trust, its terms, extent, or purposes, or whether in writing or parol, does not show such an express or implied trust relation between the parties as to confer jurisdiction on a court of equity, the allegations being entirely consistent with a- mere deposit creating only the relation of bailor and bailee.</p> <p>2. Equity — Pleading—Allegations Admitted by Demurrer.</p> <p>In such case the general averments of a trust are merely conclusions of law, which are not admitted by a demurrer.</p> <p>3. Bailment — Fiduciary Relations.</p> <p>A contract of bailment does not create such fiduciary relations between the parties as to give a court of equity jurisdiction of a suit for its enforcement, unless accompanied by facts and circumstances from which it may be presumed that the intendment of the parties was to create a trust, or where the obligations imposed arose out of confidential relations.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,738, T. D. 25,459, affirming the assessment of duty by the Collector of Customs at the port of New York. Following is that part of the opinion of the board as to the construction of the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 409, 30 Stat. 189 [U. S. Comp.

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.</p> <p>This suit was brought by the government to cancel the certification of 128 acres of land in Swift county, Minn., certified by the government to the state of Minnesota in aid of the Hastings & Dakota Railway Company for whose stockholders appellant, Russell Sage, is trustee. The suit is brought under the provisions of section 2 of an act of Congress, approved March 3, 1887 (24 Stat. 556, c. 376 [U. S. Comp. St. 1901, p. 1595]). It is based on the following state of facts: By act of the Legislature of the territory of Minnesota, approved February 20, 1857, the Hastings, Minnesota River & Red River of the North Railroad Company was incorporated for the purpose of constructing a line of railway from the city of Hastings, Dakota county, Minn., westward through the then territory of Minnesota, to its western boundary, and branch lines. Thereafter Congress by act approved July 4, 1866 (14 Stat. 87, c. 168), granted to the state of Minnesota, in aid of the construction of the railroad, land as follows: “Every alternate section of land designated by odd numbers to the amount of five alternate sections per mile on each side of said road, and further provided that in case it shall appear that the United States have, when the lines of routes of said road are definitely located, sold any section or part thereof granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to‘be selected for the purposes aforesaid from the public lands of the United States, nearest to the tiers of sections above specified, so much land in alternate sections or parts thereof, designated by odd numbers as shall be equal to such lands as the United States have sold, reserved or otherwise appropriated, or to which the right of homestead or pre-emption settlement has attached, which lands thus indicated by odd numbers and sections, by the direction of the Secretary of the Interior, shall be held by said state of Minnesota, for the purposes and uses aforesaid, provided that the lands so selected shall in no case be located more than twenty miles from the lines of said road.” Thereafter, on March 7, 1867, the state accepted the grant, and on June 26, 1867, the railroad company filed its map of definite location in the government Land Office. On April 22, 1868, the Land Department of the government withdrew from entry the odd-numbered sections within 2Ó miles of the line of definite location of the railroad, as provided in the act making the grant. Thereafter the Legislature of the state of Minnesota changed the name of said railroad company to the Hastings & Dakota Railway Company. The railway company, before January 10, 1880, constructed the line of road, and thus earned and became entitled to the land granted, where not otherwise appropriated, in accordance with the terms of the grant. On May 26, 1883, the railway company selected 68,562.83 acres of land within the place and indemnity limits, which amount fell far below the full amount necessary to satisfy the grant, and if all the available lands within the indemnity limits, not otherwise appropriated, had at this time been selected, there would not have been sufficient to satisfy the entire grant. ■ On October 23, 1891, this selection was rejected because the specific tracts of land claimed were not designated in the selection. Thereafter, on October 29, 1891, appellant, as trustee of the railway company, made a selection of the land in controversy and all other lands available, and this selection was approved by the 'Secretary of the Interior March 29, 1897. In the year 1887, the state of Minnesota annulled the charter of the railway company, and all its assets, including the lands granted, were conveyed to appellant, Russell Sage, in trust for the benefit of its shareholders.</p> <p>In the month of April, 1882, one Andrew E. Rockvog entered on and took possession of the land in question for the purpose and with the intent of making a homestead entry thereon, and has ever since continued to live on, improve, and cultivate the land, building thereon a dwelling house, barns, granaries, and other buildings requisite for farming purposes, to the value of $1,000, and has cultivated about 75 acres of the land. On the 31st day of August, 1894, Rockvog made his application to enter the land at the local land office. This application was, without action by the officers of the local land office, transmitted to the Commissioner of the General Land Office, who, on November 22, 1899, referred the application back to the local land office with directions to grant a hearing thereon. Thereafter, on the 10th day of January, 1900, a hearing was had on the application before the register of the local land office in pursuance of instructions from^the Commissioner of the General Land Office, and a decision was rendered by the register allowing the application. Thereafter, on the 20th day of February, 1900, appellant, as trustee for the shareholders of the railway company, appealed from this decision to the Commissioner of the General Land Office. Thereafter, on the 1st day of September, 1900, the Commissioner, having considered the appeal, ordered the tract of land in controversy should be held for cancellation subject to the appeal by the railway company from such decision. Thereafter, on the 11th day of September, 1900, the Commissioner vacated and set aside his decision of September 1, 1900, on the ground that through inadvertence and mistake the fact had not been made to appear the land had theretofore been certified by the Secretary of the Interior to the state of Minnesota, and further ordered the railway company should be allowed 60 days within which to show cause why the title to the land should not be recovered by the United States, under the provisions of the act upon which the suit is based. No appeal was taken from this order. The Commissioner demanded of the appellant a reconveyance of the land in accordance with the provisions of the act under which this suit was brought, which was refused. Thereupon, this suit was brought.</p> <p>The case was submitted to the court for decision upon an agreed statement of facts, in which appear the following admissions and stipulations of parties: “That unintentionally, and through the mistake of the officers of the General Land Office, the application of said Rockvog to enter said land and the appeal therefrom were not entered upon the tract books kept in the office of the Commissioner of the General Land Office, and no entry of said application or of said appeal or of the filing of the same in said General Land Office was made upon any of the records contained therein prior to the approval of said railroad indemnity selection of October 29, 1891, and the certification of said lands as aforesaid. That while said homestead application and appeal were in the said General Land Office, and so omitted from the records thereof, the said Commissioner of the General Land Office, at the request of the Secretary of the Interior, prepared a list of the lands embraced within the indemnity grant of said Hastings & Dakota Railway Company, as to which there appears to be no claim adverse to the claim of the said defendant Sage in said selection' of October 29, 1891, the said Secretary of the Interior, by reason of said omissions in the books, and not having any knowledge of the pendency of said homestead application and appeal in said General Land Office, and the Commissioner of the General Land Office in making said list, by reason of the omission of said application and appeal from the records of said office, unintentionally and through the mistake of the officers of the General Land Office overlooking the same, prepared a clear list of said lands and certification to the state of Minnesota for the benefit of said railroad grant, which, by such mistake, included the land in controversy.”</p> <p>The trial resulted in a decree canceling and annulling the certification of the land to the state of Minnesota and the conveyance by the state to appellant, and restored the land to the government free and clear of any right, title, or claim on the part of appellant under the certification to the state, and the conveyance made by the state to appellant. From this decree defendant below appeals.</p>

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

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

On motion by plaintiff to set aside issue j’oined on plea and allow a motion to reject the plea, and motion by defendant to set aside the issue and dismiss the action.

<p>Mines — Suit to Establish Qral Mining Partnership — Evidence Considered.</p> <p>Evidence considered, and held insufficient to establish an oral mining partnership which entitled complainant to an accounting for the proceeds of certain mining properties which were acquired by defendant and operated by him for several years without any claim to an interest therein having been asserted by complainant.</p> <p>[Ed. Note. — Mining partnerships, see note to G. V. B. Min. Co. v. First Nat. Bank, 35 C. C. A. 515.]</p>

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

<p>Counties — Issuance of Bonds to Railroad — Validity under North Carolina Statute.</p> <p>Bonds in aid of a railroad were issued by a county of North Carolina after an election held in conformity with the act authorizing the same, and which was legal and valid under the decisions of the Supreme Court of the state, and the county paid the interest thereon for a number of years. Complainant purchased such bonds for value, and without notice of any defect therein. Held, that they were valid in his hands, and that taxes levied and collected by the county to pay the interest thereon in compliance with law were held by the county treasurer as the agent and trustee of complainant, and it was his duty to pay the same over on presentation of the coupons.</p>

<p>1. Customs Duties — Classification—Architectural Portfolios — Books in Foreign Languages.</p> <p>The provision in paragraph 502, § 2, Free List, Tariff Act July 24, 1897, c. 11, 30 Stat. 196 [U. S. Comp. St. 1901, P- 1681], for “books * * * printed exclusively in languages other than English,” includes archi- tectural portfolios containing 18 or 20 pages of illustrations and a preface of 15 lines in German.</p>

On Application for Review of a Decision of the Board of United States General Appraisers.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York.

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 New York on merchandise imported by Albert Eckstein. Note G. A. 5,673, T. D. 25,296.

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

<p>Customs Duties — Change of Tariff Acts — Goods in Bond.</p> <p>Held that merchandise imported while Tariff Act Oct. 1; 1890, c. 1244, 26 Stat. '567, was in effect, but not withdrawn from warehouse until after Tariff Act Aug. 28, 1894, c. 349, 28 Stat. 509, became effective, was subject to the provisions of the latter act.</p>

<p>1. Patents — Invention and Infringement — Bag-Filling Machine.</p> <p>Tbe Cummings patent, No. 539,171, for a machine for filling paper bags with seed or other fine material, covers a combination of many elements, some of which were old and others new, but which, acting in co-operation, constitute the first practically operative and successful machine for accomplishing the desired result, and in such sense is for a primary invention, and entitles the patentee to invoke the doctrine of equivalents with respect to a substitution of parts which perform the same functions in the combination. The patent construed, and held infringed.</p> <p>2. Same — Improvement Patent.</p> <p>The Brown patent, No. 578,133, for an improved folding mechanism for use with the bag-filling machine of the Cummings patent, No. 539,171, held valid and infringed.</p>

In Equity. Suits for infringement of letters patent No. 607,433, for a milk can, granted to Henry B. Haigh July 19, 1898. On motions for preliminary injunctions.

<p>In Admiralty. Action for death of stevedore.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. In the decision in question G. A. 5,265, T. D. 24,172, the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. Note U. S. v. Pearson (C. C.) 131 Fed. 571, affirmed in (C. C. A.) 137 Fed. 1021.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>Eor decision below, see G. A. 5,879, T. D. 25,892, which affirmed the assessment of duty by the collector of customs at the port of New York. The article in controversy consisted of nickel wire, filled with iron or steel, which was classified under the provision in paragraph 137, Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1639], for “wire not specially provided for.” The only claim stated in the importers’ protest was that the goods were dutiable under said paragraph 137. This paragraph is a long one, containing many subdivisions, specifying many different articles, and providing numerous different rates. The board held that the protest did not satisfy the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407, 20 Stat. 137 LU. S. Comp. St. 1901, p. 1933], which prescribes that in making protests against the assessment of duty by collectors of customs an importer shall set “forth therein distinctly and specifically * * * the reasons for his objections.” It was observed in the opinion of the board (Fischer, General Appraiser): “The protests nowhere mention any rate of duty other than that assessed, nor do they set forth any fact or claim which could guide the collector in determining what it is they claim. The protests •are faulty in that if they were sustained in the terms of the protests them=selves the importers would obtain no relief, for no reliquidation would be thereby necessitated.”</p>

On Application for Review of a Decision of the Board of United States General Appraisers.

<p>1. Corporations — Discretion op Directors.</p> <p>The purely discretionary powers of a board of directors of a corporation concerning its internal affairs, fairly and honestly exercised, are not reviewable or controllable by a court of law or equity.</p> <p>2. Same — Illegal Payment op Dividends — Liability op Directors under New Jersey Statute.</p> <p>Section 30 of the corporations act of New Jersey of 1896 (P. L. p. 286) provides that “no corporation shall make dividends except from the surplus or net profits arising from its business, nor divide, withdraw or in any way pay to the stockholders or any of them any part of its capital stock except according to this act, and in case of any violation of the provisions of this section the directors under whose administration the same may happen shall be jointly and severally liable * * * to the corporation and to its creditors in the event of its insolvency to the full amount of the dividend made,” etc. As construed by the highest court of the state, such statute imposes an absolute liability on directors making an illegal payment of dividends, which is to the corporation if solvent. Held, that such statute also imposes on a succeeding board of directors the absolute duty of enforcing the liability of prior directors for its violation impairing the capital of the corporation; that the matter is not one pertaining to the internal affairs of the corporation, as to which their discretion is controlling, even though exercised in good faith; and that where both directors and stockholders refused to bring suit to enforce such liability a single stockholder was entitled to bring the same in behalf of the corporation against one or more of the directors liable. Held also, that a plea to a bill filed by a stockholder in such suit, which did not deny the allegations of the bill that dividends paid were in violation of the act, and that the directors failed to make an examination of the financial condition of the company, but placed an inflated valuation upon its assets for the purpose of making it appear that there was a surplus, and did not allege facts showing that they acted in good faith, did not state a defense.</p>

<p>Shipping — Loss op Cargo Through Master’s Negligence — Liability op SHir.</p> <p>Where cargo was lost by the stranding of a steamship on a well-known and dangerous reef, which, with the controlling currents surrounding it, was shown by the master’s charts and book of instructions, the burden rests upon the owners, in order to absolve themselves from liability under section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), on the ground that they exercised due diligence to make the vessel in all respects seaworthy and “properly manned,” to ¡ show that the master was not only competent, but that he was habitually diligent in attending to his duties, or that they had the right to so believe after the exercise of due diligence to ascertain his qualifications. There is no presumption that they exercised the required diligence, and, in the absence of any evidence on the subject, the vessel is liable for the consequences of the master’s negligence or incompetency.</p>

<p>Customs Duties — Classification—Chrysarobin—Drug—Medicinal Preparation.</p> <p>Chrysarobin is dutiable as a drug advanced in value, under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 20, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628], and not as a medicinal preparation, under paragraph 68 (30 Stat. 154 [U. S. Comp. St. 1901, p. 1631]).</p>

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

<p>1, Railroads — Injury of Person at Crossing — Presumption of Negligence.</p> <p>The fact alone that a person who was walking is found dead beneath a railroad engine at a grade crossing raises no presumption that those operating the engine were negligent or in fault for the killing, and the burden rests upon one alleging such negligence to prove the same.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, § 1119.]</p> <p>2. Same — Contributory Negligence.</p> <p>On the arrival of a regular passenger train at a division station in the night, it was the custom of the railroad company to detach the engine and run it ahead across a street crossing the tracks near the station), and to bring it back on another track on its way to the roundhouse, while, at the same .time, another engine, which was in waiting across the street, was backed up and attached to the train. The company did not maintain a watchman at the crossing in the night, and there was no eleetric light over it. Plaintiff’s intestate, who was a man 45 years old and accustomed to taking such train, and presumably familiar with such facts and customs, started to go over the tracks at the crossing, which were six in number, after the train came in, and was struck and killed by the detached engine, which backed up a short distance behind the other engine and on an adjoining track. The space between the two tracks, some nine feet, was planked, and deceased was seen standing in such space when the forward engine passed. The engines carried no lights at the rear of the tenders, but both bells were being rung automatically. No one saw the deceased struck. Held that, under the facts and circumstances shown, deceased was chargeable with contributory negligence, which precluded a recovery from the railroad company for his death.</p> <p>8. Same — Presumption of Care.</p> <p>The doctrine that a person is presumed to have exercised due care to protect himself from injury, if applicable at all in the case of a person who goes upon a railroad crossing at night, where there is known danger from moving engines on the tracks, is only so in the absence of any testimony explanatory of his conduct at the time and of the manner of his injury.</p>

<p>Patents — Infringement—Computing Machine.</p> <p>The Pelt patent, No. 465,255, for a computing machine, claims 7 and 8, which relate to subtraction cut-offs, if valid, are limited to the precise construction shown. As so construed, held not infringed.</p>

<p>In Equity. In re final decree after mandate.</p>

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

<p>1. Equity Jurisdiction — Agreement for Sale of Interest in Business— Enforcement of Rights Under.</p> <p>Equity has jurisdiction of a suit to enforce rights of the complainant who paid sums of money to defendant for use in his business under an alleged agreement that complainant was to have an interest in such business and its profits, which agreement was never definitely completed.</p> <p>2. Contracts — Unsigned Writing.</p> <p>A draft of a contract, prepared and assented to by the parties as it was made, but never signed as contemplated, is not valid as a parol contract, since it was not intended to be operative until signed.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent Dig. Contracts, § 171.1</p> <p>3. Same — Agreement for Sale of Interest in Business — Construction.</p> <p>Complainant advanced money to defendant for use in his business, under an agreement that it should apply toward the purchase of an interest in defendant’s property and business, to be carried out by the organization of a corporation and the issuance of stock to complainant, subject to certain contingencies, in which case the money was to be repaid. The property was never conveyed to the corporation, which was subsequently abandoned. Held, that the agreement did not operate to transfer an interest in the property, nor was it sufficient to create a partnership; but that, under the contingent proviso, complainant was entitled to recover the money, with interest.</p>

<p>Injunction — Violation—Pkoceedings foe Contempt.</p> <p>Defendants held guilty of contempt of court in willfully and persistently violating an injunction restraining them from intimidating or interfering with employes of complainant.</p>

<p>'.1. Removal of Causes — Separable Controversy — Allegations of Bill.</p> <p>The question whether there is a separable controversy in a suit in equity, within the meaning of the removal statute (Act March 3, 1887, e. 373, 24 Stat. 552, § 2, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 [ü. S. Comp. St. 1901, p. 509]), is to be determined from the allegations of the bill alone, which, for the purpose of a motion to remand, are taken as confessed, and independent of any allegations in the petition for removal or of answers filed after removal.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 115.</p> <p>Separable controversy, ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 O. C. A. 86; Meeke v. V¿lleytown Mineral Co., 35 C. C. A. 155.]</p> <p>:2. Same — Suit for Specific Performance.</p> <p>In a suit by a purchaser to enforce specific performance of a contract for the sale of lands, against the vendor and grantees to whom he conveyed the land subsequent to the contract with complainant, but before it was recorded, there is a separate controversy with such grantees,, involving their right to hold the land as against the complainant, which gives them the right to remove the cause, where they are nonresidents and the requisite amount is involved.</p>

In Equity. The bill prays dissolution of defendant corporation, and distribution of its property among those entitled thereto. The present application is for the appointment of some suitable person as temporary receiver.

<p>In Equity.</p> <p>Suit instituted by the Bryce Bros. Company, assignee of Henry C. Schrader of letters patent No. 592,920, issued November 2, 1897, against the Seneca Glass Company, alleging infringement and praying injunction and accounting. The defendant company has by answer denied infringement, assailed the validity of the patent, and asserted its abandonment, anticipation, and prior use. The patent is for a machine with -which to etch or engrave glassware, and can best be understood here, in the absence of the machine itself, by the drawings and specification of the patent itself, as follows:</p> <p> </p> <p> </p> <p>The specification describes the invention as follows:</p> <p>“This invention relates to certain new and useful improvements in engraving machines for engraving upon glass and other articles; and it has for its objects, among others, to provide a simple and cheap device for this purpose composed of few parts, those readily assembled and adjusted, and adapted for making different designs upon the articles operated upon. The base or support or table is provided with a plurality of ways radiating from the center, in which may be adjustably mounted the stands carrying the needle support and its operating mechanism, so that one, two, or more of the same may be caused to operate upon the article at the same time. The needle-supporting plate or frame is mounted for pivotal movement, the needle is adapted for adjustment upon said plate or support to give it the required height, and the plate is moved upon its pivot by an eccentric and suitable connections with the operating mechanism. Other objects and advantages of the invention will hereinafter appear in the following description, and the novel features thereof will be particularly pointed out in the appended claims:</p> <p>“The invention is clearly illustrated in the accompanying drawings, which, with the letters of reference marked thereon, form a part of this specification, and in which Figure 1 is a side elevation, with a portion in vertical section. Fig. 2 is a view looking at right angles to Fig. 1, showing a front view 'of the machine. Fig. 3 is a plan of the table with the large gear and the horizontal shafts and their gears, the remaining portions of the device being removed. Fig. 4 is a horizontal section on the line, 4, 4, of Fig. 2. Fig. 5 is a horizontal section on the line, 5, 5, of Fig. 1. Like letters of reference indicate like parts throughout the several views.</p> <p>“Referring now to the details of the drawings by letter, A designates the table, which may be supported in any desired position in any suitable manner, in this instance being shown as m'ounted upon the legs, a, braced by the horizontal brace-arms, a', which join the legs to the depending tubular portion, A', extending centrally from the under side of the table, as seen more clearly in Fig. 1. Upon the upper side of the table are the radial ways, B, which may be of any desired number, in this instance being shown as four, and these ways are dovetailed, as seen in Figs. 1 and 2. It will thus be seen that one, two, or more needles and their supporting and operating mechanisms may be employed for simultaneous or successive movement upon the article being operated upon. C is a large bevel-gear disposed at the center, of the table and having the tubular shaft, O', mounted in the tubular depending portion, A', of the table, as seen more clearly in Fig. 1; the said shaft near its upper end being provided with a conical portion, c, having a bearing in the correspondingly-shaped upper end, b, of the depending portion. A'. D is a shaft passed through the hollow shaft, C', and secured therein at any proper height by suitable means, as the set-screw, d, mounted in the said hollow shaft, as seen in Figs. 1 and 2, and engaging the shaft, D, so that the latter may be adjusted vertically, as may be required, and held in its adjusted position. At the upper end of this shaft, D, is the plate or support, E, fixedly mounted thereon so as to revolve therewith, and upon which is designed to be supported and held in any suitable manner the article, X, to be engraved. F and F' are shafts arranged at right angles to each other upon different planes, so as to cross without interference with each other, as seen in Figs. 1 and 3. These shafts are mounted in suitable bearings, f, on the table, as seen in Figs. 1 and 3, and each has one end extended and provided with any suitable means, as the crank-handle, f', by means of which the same may be rotated when desired. One shaft carries a bevel-pinion, F2, meshing with the larger bevel-pinion, C, as indicated in Figs. 1 and 3, so that by rotation of said shaft the required rotary movement is given to the bevel-pinion, O, and consequently to the plate or support, E, carrying the glass or other article to be operated upon. Each of the shafts carries a bevel-pinion, Fs, which mesh with each other, as seen in Fig. 3, whereby the rotation of either shaft will drive the pinion O and also the other shaft, together with the needles connected with the shafts. Each needle and its carrier or support and operating mechanism is designed to be mounted and actuated by the movement of either of the shafts, but may be actuated independently of the other. It is adjustable radially to and from the work, and also vertically, so as to accommodate itself to the different sizes and styles or classes of articles operated upon.</p> <p>“It being understood that each needle, needle support, and operating mechanism is the same, a description of the construction and operation of one will suffice for all. G represents the post or holder, provided with a foot, g, fitted to and adapted to slide in the dovetailed way, B, of the table. H is the head. This head has a tubular portion, which receives the vertical portion of the holder, G, and upon which it may be held in its adjusted positions by the set-screws or analogous means, g', as seen in Figs. 1 and 2. This head has the offset, I, in which is located the sleeve, J, which extends from the plate, K, so that the latter may have a movement as upon a pivot formed by said sleeve, J. Through this sleeve passes a shaft, L, which passes also through an opening in the plate, K, and carries a bevel-pinion, M, as illustrated best in Fig. 4. A washer, k, is placed upon the outer end of the sleeve, and a nut, 1, engages the threaded end of the shaft, as seen in Fig. 4, and bears against said washer to hold the parts against endwise movement, but permits of their rotation. N is a shaft at right angles to the shaft, L, and carries a bevel-pinion, N', meshing with the bevel-pinion, 3VI, as seen in Figs. 1 and 4. O is a shaft at right angles to the shaft, L, and carrying a bevel-pinion, O', meshing with the pinion, M, as seen in Figs. 1 and 4. This latter shaft, O, is hollow, and arranged within the same is the bent needle, P, which is urged to its work by the spring, P', retained within the said hollow shaft, as seen in Fig. 1. The shaft, O, has bearings in the ears or lugs, o, of the frame, O2, from the rear side of which projects a pin or stud, Q, that works through the curved slot, Q', struck from the shaft, L, as a center, and upon the end of this stud or pin is a nut, q, as seen best in Fig. 4. On the outer end of the shaft, N, is a gear-wheel, R, which meshes with the gear-wheel, R', on the shaft, r, which gear in turn meshes with the gear, S, on the shaft, s, the gear-wheel, S, meshing with a larger gear-wheel, T, on the shaft, t, and this last gear-wheel, T, meshing with a gear-wheel, U, on the shaft, F'r as seen clearly in Figs. 1 and 2; the arrangement of gears being such that they all continue in mesh, regardless of the vertical adjustment of the head, as also clearly seen in Fig. 2.</p> <p>“The operation will be apparent. The glass or other article, X, is placed upon the board or support, E, and the shaft, F', being rotated, rotary movement is imparted to the shaft, D, and the holder, ,E, thereon, and consequently the glass and the same rotation of said shaft, É', gives to the needle, through the medium of the gears and bevel-pinions above described, a rotary movement, causing it to engrave upon the glass the proper design. Proper adjustment of the needle-supporting frame, O2, and to the head, H, is made to conform to the design required. In order to give the plate, K, and the needle carried thereby, an up and down movement radially of the work holder to produce different designs, the said plate is provided at its lower end with a vertical slot, k2. In this slot works a pinion, V, carried by the eccentric, W, located on the shaft, w, which shaft is journaled in the lug, h2, projecting from the head, H, as seen in Pigs. 1 and 5. This shaft, w, is provided at its outer end with a pinion, w', which meshes with a pinion, w2, on the shaft, t. The shaft, t, is provided with the gear, T, whereby, when the shaft, E', is rotated, the movement therefrom will be transmitted to the eccentric, which, through the medium of its pinion working in the slot, causes the plate, K, to travel on its pivot formed by the sleeve, I, in a path radial to the work holder. When it is desired to engrave an ordinary scroll upon glass, this eccentric may be disconnected or thrown out of operative position. Modifications in detail may be resorted to without departing from the spirit of the invention or sacrificing any of its advantages. It will be understood that the articles to be engraved upon are covered with beeswax or the like, and the needles scratch the patterns in the wax, after which the article is placed in acid, which eats into the glass in the usual way.</p> <p>“Having thus described my invention, what I claim as new, and desire to secure by letters patent of the United States, is:</p> <p>“(1) In an engraving machine, a central rotating work holder, a table provided with a plurality of guideways extending radially from said holder, a plurality of tool holders supported in said guideways, and means for simultaneously actuating the several engraving tools, substantially as specified.</p> <p>“(2) In an engraving machine, a central rotating work holder, a table provided with a plurality of guideways, tool holders slidably supported in said guideways, and means for simultaneously actuating said work holder and the several tool holders, substantially as specified.</p> <p>“(3) In an engraving machine, a central rotating work holder, a table provided with radial guideways, a series of tool holders located in said guide-ways, a centrally disposed pinion, and shafts geared to each other and to said pinion to simultaneously operate a series of tools supported in said guideways, substantially as specified.</p> <p>“(4) In an engraving machine, a table having radially disposed guideways, a central work holder, shafts mounted in bearings on said table and disposed at right angles to each other, and meshing gears on said shafts adjacent to their point of intersection, substantially as described.</p> <p>“(5) In an engraving machine, a table having radially disposed guideways and shafts mounted in bearings on the table and disposed at right angles to each other, a centrally disposed pinion mounted in the table, a pinion on one of said shafts engaging therewith and means to drive one of said shafts by the movement of the other, substantially as described.</p> <p>“(6) In an engraving machine, a table having radially disposed guideways, a centrally disposed, depending, tubular portion, a pinion having a tubular shaft mounted in the tubular portion, and a shaft extended within the shaft of the pinion, and carrying a support for the article to be operated upon, substantially as described.</p> <p>“(7) In an engraving machine, a table having radially disposed guideways, a centrally disposed, depending, tubular portion, a pinion having a tubular ■shaft mounted in the tubular portion, a shaft extended within the shaft of the pinion and carrying a support for the article to be operated upon, and means for actuating said pinion and the engraving needle, substantially as described.</p> <p>“(8) The combination with’ a post or holder and a moveable head secured thereto, of a plate pivotally mounted on said head to oscillate in a vertical plane, means for swinging said plate in a vertical plane upon its pivot, a needle-holding frame supported from said plate, and gearing moyeable with the head for actuating said needle, substantially as specified.</p> <p>“(9) The combination with a post or holder and a head secured thereto, of a plate pivotally mounted on said head to oscillate in a vertical plane, means for oscillating said head,, a needle-holding frame supported from said plate, and means operatively connected to rotate said needle simultaneously with the oscillation of said plate, substantially as specified.</p> <p>“(10) The combination with a post or holder and a vertically adjustable head thereon, of a plate pivotally mounted on' said head to travel in a vertical plane, an engraving needle supported on said plate, needle-operating mechanism, and means acting upon the lower portion of said plate to swing the same in a vertical plane, substantially as specified.</p> <p>“(11) The combination with a post or holder and a vertically adjustable head thereon, of a plate pivotally mounted on said head to travel in a vertical plane, an engraving needle supported on said plate, needle-operating mechanism, means acting upon the lower portion of said plate to swing the same in a vertical plane, and a revoluble plate or work holder for supporting the article to be operated upon, substantially as specified.</p> <p>“(12) The combination with a post or holder and a vertically adjustable head thereon, of a plate pivotally mounted on said head to travel in a vertical plane, an engraving needle supported on said plate, needle-operating mechanism, means acting upon the lower portion of said plate to swing the same in a vertical plane, a revoluble plate or work holder for .supporting the article to be operated upon, and means for operatively connecting the rotating plate with the needle-operating mechanism, substantially as specified.</p> <p>“(13) The combination with'a post or holder and a head secured thereto, of a plate pivotally mounted to oscillate upon said head and provided with a vertical slot in the lower portion thereof, a needle-holding frame supported from said plate, means to rotate said needle, and an eccentric provided with a pin located in said slot to oscillate said plate, substantially as specified.</p> <p>“(14) The combination with a post or holder and a head secured thereto, of a plate pivotally mounted on said head to travel in a vertical plane and provided with a vertical slot therein, an eccentric having a pin working in said slot, and needle-operating mechanism operatively connected with said eccentric, substantially as specified.</p> <p>“(15) The combination with a post or holder and a head secured thereto, of a plate pivotally mounted on said head to travel in a vertical plane and provided with a vertical slot therein, an eccentric having a pin working in said slot, needle-operating mechanism operatively connected with said eccentric, and means for adjusting the needle in an arc of a circle on said plate, substantially as specified.</p> <p>“(16) The combination with a table provided with radial guideways, of a post or holder having a foot adjustable in said guideways, a head adjustable on said post or holder, a plate pivotally mounted on said head to swing in a vertical plane, a train of gears carried by said head, a needle support upon said plate, and beveled pinions connected with said gears for operating the needle, substantially as specified.</p> <p>“(17) The combination w.ith a table provided with radial guideways, of a post or holder having a foot adjustable in said guideways, a head adjustable on said post or holder, a plate pivotally mounted on said head to swing in a vertical plane, a train of gears carried by said head, a needle support upon said plate, beveled pinions connected with said gears for operating the needle, and means for moving the lower end of the plate to and from the head, substantially as specified.”</p> <p>The machines used by defendant and claimed to be infringements, it appears, are built almost exactly after the drawings filed by Gustav Schiffbauer with his application, dated May 25, 1899, upon which on March 13, 1900, after the institution of this suit, letters patent No. 645,333 issued to him, and may well be illustrated by Fig. 1 of the drawings filed with his specification for such patent, now here given. The defendant’s machines were all built for it by the said Gustav Schiffbauer and his brother Daniel.</p> <p> </p> <p>The purpose of these machines is to take glass articles, such as tumblers, which have been protected first by a coating of wax, and by needles having different motions scratch through the wax in scrolls, lines, curves, etc., in other words, in different bands and patterns, so that the tumbler or other article can then he immersed in hydrofluoric acid, which attacks the glass exposed by the needles, leaving the article with the designed pattern engraved upon it. The history of the art shows progressive steps, from machines having one needle, capable of making a single band in one revolution of the glass article, to those having two, three, and four different bands by four different needles operating synchronously in one such revolution. The machines of both plaintiff and defendant are of the latter four-arm needle class. The record shows that plaintiff’s assignor, Henry O. Schrader, a machine builder, came from Germany to this country in 1879, and took employment with the Central Glass Company of Wheeling, 'W. Va., where he constructed in 1880, for that company, the first three-arm needle machine, called in the record sometimes the “Central Glass Company Machine,” and at other times the “Band 70 Machine,” from the number of the pattern which it engraved. No patent was ever issued upon this machine. While Schrader was connected ■ with the Central Glass Company, it would seem that he was studying and experimenting upon improvements to this machine, involving the creation and successful operation of a four-arm needle one. In the employ of this same company, during this time, was another machinist, a German, who also came to this country in 1879, by the name of Conrad Kahbel. In 1883, Kahbel worked with and under Schrader in the building of one of these Central Glass Company machines. Schrader, it appears, in 1894, had made castings for a four-arm needle machine, which castings he disposed of to James Gaither, ¿ who employed Kahbel to construct a machine from them. This was the 'first four-arm needle machine constructed and is the one so frequently referred to in the record as the “Kuny Kahbel Machine.” It differed from the machines in controversy, among other things, in that it had four short shafts with bevel pinions intermeshing on a horizontal plane, with another bevel pinion- revolving the work holder, substantially in the center of the table, in the character of the gearing by which action was given to the needle arm, and in the character of the post to which the needle arm was attached. This Kuny Kahbel machine could, as claimed by defendant, turn out every class and variety of work that Schrader’s later patented machine, in controversy here, could do, but, as claimed by plaintiff, was, not practical or efficient, because of lost motion in the gearing of the shafts and needle arm, making the needles work nonsynchronously, because the wax from the work holder, dropping on the intermeshed bevel pinions, clogged the operation, and for some other not so material reasons.</p>

<p>1. Patents — Infringement—Machine foe Making Prismatic Glass.</p> <p>The Cummings patent No. 695,282, for a machine for making prismatic glass, discloses invention, and is valid. Also held infringed.</p> <p>2. Same — Validity—Prismatic Glass Windows.</p> <p>The Cummings patents Nos. 695,283, 695,284, and 710,434, covering methods of making panes or windows from prismatic glass, and for such windows themselves,’ are void as embodying only the function of a machine invented and patented by the patentee, or for lack of invention in view of the prior art.</p>

<p>In Equity. On joint and several demurrer of the impleaded de fendants to the amended and supplemental bill.</p>

<p>• Bankruptcy — Debts Entitled to Priority — Claim por Rent.</p> <p>The time of filing a petition in bankruptcy fixes the status of persons entitled to priority under Bankr. Act July 1, 1898, c. 541, § 64b (5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], and a provision of a lease to a bankrupt that, in case of his insolvency or the filing of a petition in bankruptcy by or against him, the rent for the entire term shall become at once due and payable, and the landlord may proceed as in case of breach, does not entitle the landlord to priority for the rent for the unexpired portion of the term, although under the state law he would be entitled to such priority in the distribution of the proceeds of the lessee’s property when sold in insolvency proceedings.</p>

<p>In Equity. On petition and rule to show cause why assessment should not be levied on preferred stockholders.</p>

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

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

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

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

<p>On Motion to Discharge Sureties on Appeal Bond.</p>

<p>1. Bankruptcy — Effect of Order — Res Judicata.</p> <p>An order made by a referee on a motion directing a trustee to return to the purchaser of certain casks of whisky sold by the trustee a part of the purchase money on account of a shortage in the quantity, where the amount involved was small, the shortage very large, and no defense was made, does not constitute an adjudication of the terms of the contract of sale which will bind the trustee when a much larger claim is filed involving other packages.</p> <p>2. Same — Claim Against Trustee — Splitting of Demand.</p> <p>Where a purchaser of a large quantity of whisky at a trustee’s sale made a claim for shortage in two packages, which was allowed, he is barred of further claim with respect to other packages, which might have been ascertained and included in the former claim.</p>

<p>1. New Trial — Time por Hearing and Decision — Jurisdiction at Succeeding Term.</p> <p>The mere filing of a motion for a new trial in the Circuit Court in due time at the time at which the judgment is rendered does not, of its own force and without any order or recognition by the court, carry the matter oyer to the succeeding term, so as to give the court jurisdiction to then hear and dispose of it without the consent of the opposing party.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. New Trial, § 315.]</p> <p>2. Orders — Nunc Pro Tunc Entry — Power to Make.</p> <p>The office of a nunc pro tunc entry is, not to make an order now for then, but to enter now for then an order previously made; and the fact that a judge in chambers expressed a willingness to make a desired order extending the time for filing a motion for new trial, where no such order was actually made or directed in court, does not warrant the entry of such an order nunc pro tune at a succeeding term.</p>

<p>In Admiralty. Suits against tugs for injuries to tow.</p>

<p>In Equity. On petition by receiver for dissolution of defendant corporation.</p>

<p>1. Bankruptcy — Discharge—Sufficiency of Objections.</p> <p>A specification of objections to a bankrupt’s discharge should distinctly allege the. particular grounds relied upon to defeat the discharge, so as to advise both the bankrupt and the court of the issue to be tried, and should also allege facts showing that the party filing the specification will be affected by the discharge, and is therefore interested in defeating the same.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 714.}</p> <p>2. Same — Party in Interest.</p> <p>A specification of objections to the discharge of a bankrupt, filed by one .who has presented no claim against the estate, on the ground that the bankrupt obtained property from the objector on credit upon a materially false statement in writing made for the purpose of obtaining such credit, is wholly insufficient, where it is not verified and expressly alleges that the goods were obtained by the bankrupt upon false pretenses and by false representations, since in such case, under Bankr. Act July 1, 1898, c. 541, § 17a (2), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], as amended by Act Feb. 5,1903, c. 487, § 5, 32 Stat. 798 [U. S. Comp. St. Supp. 1903, p. 411], the discharge would not release the bankrupt from liability therefor.</p>

On November 29, 1898, the Choctaw & Memphis Railroad Company entered into a contract with the Choctaw Construction Company for the acquisition of a line of railroad between the Mississippi river and Little Rock, in the state of Arkansas, and to construct a railroad from the western terminus of the Little Rock & Memphis Railroad to the western boundary of the state.

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

<p>Post Office — Breaking Into — Construction of Statute.</p> <p>An indictment does not charge an offense under Rev. St. § 5478 [U. S. Comp. St. 1901, p. 3696], making it a criminal offense against the United States to “forcibly break into, or attempt to break into, any post office, or any building used in whole or in part as a post office, with intent to commit therein larceny,” where it charges the breaking into a building used in part as a post office with intent to commit larceny “in said building,” but fails to charge an intent to commit larceny in that part of the building used as a post office, to which part only the statute applies.</p> <p>[Ed. Note. — For eases in point, see vol. 40, Cent. Dig. Post Office, § 80.]</p>

<p>1. Bankbuptct— Homestead Exemption — Abandonment.</p> <p>A debtor had lived with bis family upon a farm owned by him for several years, when his house was burned and he moved into one owned by another, but continued to use his farm and keep his stock there. Subsequently he moved to a town for the purpose of sending his children to school,-but without intention, of-remaining, except temporarily, and during such time he and his wife returned, built an addition to a small house, and executed and filed a declaration of homestead on the farm under the Washington statute (Ballinger’s Ann. Codes & St. § 5214 et seq.), which gives the right to a homestead only in the dwelling house in which the claimant resides and the land on which it is situated. This declaration was filed in contemplation of bankruptcy, and the debtor shortly after-wards filed a petition on which he was adjudicated a bankrupt Held that, under the statute as construed by the Supreme Court of the state, there had. not been an abandonment of the homestead which deprived the bankrupt of the right to claim the exemption.</p> <p>2. Homestead — Right to Exemption — Effect of Fraudulent Conveyance.</p> <p>Where a conveyance in fraud of creditors is set aside, the property is administered as that of the debtor, and as a matter of general law he is not precluded by the void conveyance from asserting his right to a homestead exemption therein as against his creditors. _</p> <p>TEd. Note. — For cases in point, see vol. 26, Cent. Dig. Homestead, §§ 349, 350.]</p> <p>3. Bankruptcy — Land Conveyed in Fraud of Creditors.</p> <p>Under Bankr. Act July 1, 1898, c. 541, §§ 67e, 70a (4), 30 Stat. 564, 566 [U. S. Comp. St. 1901, pp. 3449, 3451], by which the title to property conveyed by a bankrupt in fraud of creditors vests in his trustee, “except in so far as it is to property which is exempt,” such a conveyance of land does not deprive a bankrupt of the right to claim a homestead exemption therein, where the land has been reconveyed to or recovered by the trustee.</p>

<p>1. Collision — Damages Recoverable — Demurrage.</p> <p>Where it is shown with reasonable certainty that a vessel injured in collision would have obtained a charter and made earnings during the time she was detained for repairs, her owner is entitled to demurrage .based on her probable net earnings, and it is immaterial that he might have substituted another vessel in her place, but did not.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 290.</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>*2. Same — Interest.</p> <p>The allowance of interest on the sum awarded as damages for collision is discretionary with the court.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 284.]</p>

<p>Application by a United States prisoner for discharge by writ of habeas corpus, under the provisions of the act of Congress entitled “An act to regulate commutation for good conduct for United States prisoners,” approved June 21, 1902, 32 Stat. 397, c. 1140 [U. S. Comp. St. Supp. 1903, p. 448]. Hearing on the petition, writ, and return.</p>

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

Appeals from the Circuit Court of the United States for the District of Nebraska. This controversy involves the consideration and determination of an appeal and cross-appeal, based upon the same record and arising from the following state of facts: Prior to the 5th day of July, 1877, one Daniel Foley was the owner of 150 acres of land in Platte county, Neb., occupied by himself, his wife, Mary Foley, and their minor children, Jeremiah and Mary E. Foley, as a homestead.

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

In Equity. Suit for infringement of reissued letters patent No. 6,-404 (original No. 134,045), for a machine for forging sockets, issued to George Fitch and Peter Shafer April 27, 1875. On final hearing.

In Equity. On final hearing. These suits are two of a number of like kind pending in this court between homestead settlers upon certain of the lands within the limits of the grant by the act of Congress approved May 12, 1864 (13 Stat. 72, c. 84) to the state of Iowa, to aid in the construction of certain railroads in said state, and purchasers from the Sioux City & St. Paul Railroad Company, a company organized to construct one of said railroads, which compány claims the…

<p>Bankruptcy — Acts op Bankruptcy — Preferential Payments.</p> <p>Tlie payment by an insolvent saloonkeeper, at various times withim four months prior to the filing of a petition in involuntary bankruptcy against him, of considerable sums of money to two creditors, in part on account of current expenses of his business and in part on account of antecedent debts, while another large creditor was paid nothing during such time, held to constitute a transfer' of property with intent to prefer -the creditors paid, and to be an act of bankruptcy, under Bankr. Act July 1, 1898, § 3a (2), 30 Stat 546 [U. S. Comp. St. 1901. p. 3422].</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§,- 72, 79.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,706, T. D. 25,379, which reversed the assessment of duty by the collector of customs at the port of Philadelphia.

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

<p>1. Negligence — Action foe — Plaintiff’s Failure to Exercise Preventive Care Fatal.</p> <p>One’s right of recovery for damages on account of another’s negligence is always conditioned by his own exercise of ordinary care to avoid or diminish the damages as soon as he knows that they are impending; and, where the exercise of such care would have prevented them, the failure to exercise it is fatal to a recovery.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 86-93.]</p> <p>2. Same — Contributory Negligence — Question, Not Which Negligence is More Proximate Cause.</p> <p>In cases involving contributory negligence, the question is not whether the negligence of the plaintiff or that of the defendant is the more proximate cause of the injury, but it is whether or not the negligence of the plaintiff directly contributed to it. One whose negligence directly contributes to his injury cannot recover damages of another whose negligence concurred to cause it, although the carelessness of the latter may be the more proximate cause of it.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 93, 112, 113, 162-167.]</p> <p>3. Same — Contributory Negligence — When Question for Court or Jury.</p> <p>The question of the existence of contributory negligence is, like any other question of fact, for the jury when conditioned by conflicting testimony or doubtful deductions from the evidence. It is for the court when the evidence so clearly discloses the fact that a finding contrary to its showing could not be sustained, and in all such cases it is the duty of the trial court to instruct the jury to return a verdict in accordance with the evidence.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent Dig. Negligence, §§ 286, 291, 296, 299, 333-346.]</p> <p>4. Trial — Withdrawal of Case from Jury.</p> <p>There is always a preliminary question for the judge before a case can be properly submitted to the jury, and it is, not whether or not there is any evidence, but whether or not there is any substantial evidence upon which a jury may properly render a verdict in favor of one of the parties to the action. The duty to determine this question and to withdraw the action from the jury is imposed upon the court in every case where the evidence and the rational deductions from it are undisputed and of such a conclusive character that the exercise of a sound judicial-discretion would compel a refusal to give effect to a contrary verdict.</p> <p>TEd. Note. — For cases in point,- see vol. 46, Cent. Dig. Trial, §§ 338-340.]</p> <p>5. Telegraph Company — Negligence—Contributory Negligence op Plaintiff — Facts—Conclusion.</p> <p>Plaintiff was a resident of Eittle Rock, and her father and brother were-residents of Hot Springs. Her father died at 6:30 Saturday morning, and her brother telegraphed her by means of the defendant this fact. The-telegram was received in Little Rock at 10:24 a. m., but was not delivered until 9 a. m., the next morning. At 11 p. m. Saturday the plaintiff had learned all the material facts told by the telegram. She had sufficient-money to pay her fare to Hot Springs, and there were two trains, which left at 7 and 9 respectively in the morning of Sunday, which would have-taken her to Hot Springs in time to attend the funeral. She knew all these facts. She did not attend the funeral, and she testified that she-did not do so because, while she had money to pay her fare to Hob ' Springs, she did not have enough to pay her fare back to Little Rock,, and, while she had frends in Little Rock who would have loaned her the-money, she did not have time to see them and get it. Held, there was no substantial evidence that the delay in the delivery of the telegram caused the plaintiff’s absence from the funeral, and the evidence was conclusive-that her absence was caused either by her indisposition or her lack of ordinary care to take one of the trains on Sunday morning after she was-acquainted with all the necessary facts at 11 o’clock bn Saturday night.</p> <p>(Syllabus by the Court.)</p>

<p>In Bankruptcy. On certificate from J. W. Codding, referee.</p>

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

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought by Meyer, Ebeling & Co., and relate to a decision of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of Philadelphia.

The bill in the Circuit Court was by appellee, a corporation of Wisconsin, against appellants, citizens of the state of Illinois.

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

<p>Patents — Anticipation—Incandescent Lamps.</p> <p>A preliminary injunction against infringement of the Campbell patent, No. 447, 757, for an incandescent burner and method of using the same, denied on evidence not before the court in a prior suit and raising new questions under the defense of invalidity.</p>

Ejectment. On motion to strike out plea to the jurisdiction of the court. Way and Rowland instituted an action of ejectment against Clay and a number of other defendants for the recovery of the possession of a large boundary of land, containing some 20,000 acres. The usual and proper jurisdictional averments are made in the declaration, and in the ad damnum clause the damages are laid at $20,000.

<p>1. Preliminary Injunction — Motion for Dissolution. .</p> <p>There is no inflexible rule under the authorities as to the measure of new evidence required to entitle a defendant to the dissolution of a preliminary injunction, but each case must be decided on its own peculiar facts.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, § 387.]</p> <p>2. Same — Effect of Answer as Denial.</p> <p>Keeping in view that the purpose of a preliminary injunction is to preserve rights claimed until their adjudication, such an injunction ought not to be dissolved on an answer which is evasive as to any of the material allegations of the bill; nor does a full denial of the equities of the bill entitle the defendant to a dissolution as a matter of right, but the matter is within the sound discretion of the court.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 376-383.]</p> <p>3. Same — Proofs.</p> <p>To warrant a court in continuing a preliminary injunction in a suit for specific performance of a contract, it is not necessary that it should be clear that complainant will succeed at the hearing; but it is sufficient if there is reasonable ground for supposing that relief may be given.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, § 358.]</p> <p>4. Evidence — Weight—Number of Witnesses.</p> <p>A preponderance in number of witnesses does not establish a preponderance in weight of evidence, especially where the testimony is ex parte by affidavits.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 2450.]</p>

<p>In Equity. Hearing on ancillary bill.</p>

On Rule for Contempt. At April term of the District Court of the United States for the Western District of North Carolina, at Statesville, the grand jury of which C. F. Atwell, the respondent, was a member, duly sworn and impaneled, returned as a true bill an indictment against the Old Nick Williams Company, N. Glenn Williams, and D. E. Kennedy, in which the defendants were charged with certain criminal violations of the internal revenue laws of the United States.' After…

<p>On Demurrer to Indictment.</p> <p>Omitting the formal parts, the indictment charges that:</p> <p>“John B. Etheredge, in unlawfully conducting, promoting, and carrying on by means of the post office establishment of the United States a scheme ahd artifice to defraud one T. W. Woodham and divers other persons to the grand jurors unknown, which said scheme and artifice was in substance and to the effect as follows, to wit: That the said John B. Etheredge did open correspondence, and intend to open correspondence and communication, and did send and convey by means of the post office establishment of the United States, and thereby place and cause to be placed a certain letter, to be sent and delivered by the said post office establishment of the United States, addressed to the postmaster at Art, Alabama, and requesting him to post the same, and which is in words and figures as follows, to wit:</p> <p>“ ‘Money to Loan.</p> <p>“ T will loan you $100 or $1,000 at 3% interest and ho more. Say if you wanted $100.00 you give your plain note for this amount and no more. Easy installments. For further information write</p> <p>J. B. Etheredge,</p> <p>“ ‘Town Creek, Ala.</p> <p>“ ‘Please Post.’</p> <p>—and that acting upon said notice the said T. W. Woodham did apply for a loan of the sum of two hundred dollars, and for that purpose did sign a certain printed blank application sent to him by said John B. Etheredge, and then did direct same and convey the same by the mails of the said United States to the said John B. Etheredge; that the said T. W. Woodham received no loan of any sum whatsoever from the said John B. Etheredge, nor from the Continental Finance Company, (Limited), of Chicago, Illinois, to whom the said application was made by the terms thereof, nor from any other person whatsoever, but that the said John B. Etheredge, intending thereby to obtain the note and money of the said T. W. Woodham, and divers other persons to the said grand jurors unknown, and appropriate the same to his own use without payment for the same, and to effect the object of said unlawful scheme and artifice to defraud the said T. W. Woodham, and at the place aforesaid and within the jurisdiction aforesaid, on, to wit, the 6th day of April, 1905, addressed a letter to the said T. W. Woodham, Art, Alabama, and did deliver the same to the post office of the United States at said Town Creek, Alabama, to be conveyed by the post office establishment of the United States, which said letter is in words and figures as follows, to wit:</p> <p>“ ‘Town Creek, Ala., Apr. 6.</p> <p>“ ‘Mr. T. W. Woodham, Art, Ala. — Dear Sir: Your note for $200 and interest is due and unpaid. Please pay this off, as 1 have paid cash for it. If I do not hear from you by return mail I wilí bring suit against you. Now for you to save expense you had better pay this.</p> <p>“ ‘Very truly, o ' Mrs. C. Etheredge.’</p> <p>—and by which in pursuance of the said scheme and artifice to defraud the said Woodham the said John B. Etheredge did in the name of Mrs. C. Ether-edge, which said name he thereby assumed, demand payment of the sum of two hundred dollars and interest as due on the note of the said T. W. Woodham, purporting to be given by him for said loan, feloniously intending and endeavoring thereby to fraudulently obtain the said two hundred dollars from the said Woodham, and fraudulently appropriate the same to his own use, and, in executing such scheme and artifice to defraud and attempting so to do, did place and cause to be placed the aforesaid letter in the post office of the United States, to be sent and delivered by the said post office establishment of the United States to the said T. W. Woodham at Art, Alabama, and so did assume by the address to said T. W. Woodham in the letter aforesaid, and in furtherance of said scheme and artifice to defraud, the fictitious and assumed ■ name of Mrs. C. Etheredge, which said name was other than his own proper name, and did place and cause to be placed the aforesaid letter in the post office of the United States at Town Creek, Alabama, to be sent and delivered by the said post office establishment of the United States to the said T. W. Woodham at Art, Alabama, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.”</p> <p>The defendant demurs to the indictment, assigning seven different grounds of demurrer, the first of which only is considered. It is as follows:</p> <p>“Said indictment seeks to charge the defendant with a violation of the act of Congress approved March 2, 1889, which makes it criminal to use or attempt to use or assume a fictitious title or name in conducting and promoting any scheme or device mentioned in section 5480 of the Revised Statutes of the United States, and the said indictment does not show in what the scheme or device consisted.”</p>

<p>In Admiralty. In the matter of the petition of John F. Powers, sheriff- of Mobile county.</p>

<p>Bankruptcy — Discharge—Transfer of Property to Defraud Creditors.</p> <p>An agreement between a bankrupt and bis wife, made within four months prior to his bankruptcy, by which he undertook to transfer certain property to her as a preference, but which was void under the state statutes for want of power of the parties to contract with each other, and not accompanied by any actual transfer or removal of the property, which passed into the hands of the trustee, does not constitute a transfer or removal with intent to hinder, delay, or defraud creditors, which will deprive the bankrupt of his right to a discharge, under Bankr. Act July 1, 1898, 1 14b (4), 30 Stat. 550, e. 541 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, 32 Stat. 797, c. 487, § 4 [ü. S. Comp. St. Supp. 1903, p. 411].</p>

<p>1. Corporations — Stockholders’ Double Liability under Kansas Constitution and Statutes — Rules op Law.</p> <p>Const. Kan. art. 12, § 2, which provides that dues from corporations shall be secured by the individual liability of stockholders to an amount equal to the stock owned by each of them, is self-executing, but the remedy at common law may be enforced only by action at law or suit in equity after judgment and return of execution nulla bona against the corporation or an equivalent exhaustion of the property of the company. Sections 1200, 1204, Gen. St. Kan. 1889, granted to a creditor of a corporation an individual action against a stockholder upon the suspension of the business of the corporation for more than a year. Section 1192, Gen. St. Kan. 1889, granted to the creditor of a corporation the right to an execution against a stockholder upon the return of an execution unsatisfied upon a judgment against the corporation. Chapter 10, p. 27, Laws Kan. 1898, repealed sections 1200, 1204, Gen. St. 1889, and substituted for the action there granted a suit in equity by a receiver to be appointed after a judgment against the corporation and the distribution of the proceeds which the receiver should collect from the stockholders pro rata among all the creditors thereof. Held, this repealing act is unconstitutional and void against contracts made and rights which accrued before its passage. It lessened the value of such contracts, and tended to postpone their enforcement and thereby impaired their obligations.</p> <p>2. Same — Liability of Stockholders Founded upon Contracts.</p> <p>A stockholder of a corporation, by his subscription for stock or by his acceptance of it, agrees with the corporation and its creditors that he will perform the obligations and discharge the duties imposed upon a stockholder by the Constitution, the statutes, and the law then in force, and his liability to creditors springs from that contract.</p> <p>8. Constitutional Law — When Repeal oe Change of Remedies Impairs Obligation of Contract.</p> <p>The remedies for the enforcement of a contract existing in a state when the contract is made are a part of its obligation. Any repeal or change of any of these remedies, which substantially obstructs or retards its enforcement or lessens the value of the agreement, impairs its obligation and is unconstitutional and void. But a repeal or change of remedies, which does not substantially diminish the value of the agreement or seriously retard or obstruct its enforcement, escapes the inhibition of the Con-' stitution and is valid.</p> <p>4. Judgment — Merger of Notes — Competent Evidence of Debt.</p> <p>While a judgment upon promissory notes merges them therein, so that the owner of the judgment may not maintain an action against the judgment debtor upon them, they still remain competent evidence of the existence of the debt which they represent in all other actions.</p> <p>5. Action — Splitting Causes of — Double Liability of Stockholder.</p> <p>The contract to pay the debts.of the corporation is the basis of the double liability, and the action to enforce it is indivisible. The cause of action between the same parties is the same, whether it is upon one or several of the shares of stock owned by the latter, and it may not be split.</p> <p>6. Courts — Construction of State Statutes — Decisions of the Courts of the State.</p> <p>The construction of the Constitution and the statutes of a state by the highest judicial tribunal of the state which enacted them is decisive in the federal courts, in the absence of any question of general or cornmereial law or of right under the Constitution of the United States, and their interpretation by the courts of other states is immaterial.</p> <p>[Ed. Note. — State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>7. Limitation of Actions — Voluntary Dismissal — Construction of Civ. Code Kan. § 23. ,</p> <p>A voluntary dismissal without prejudice to a future action is a failure otherwise than upon the merits, within the meaning of section 23 of the Civil Code of Kansas, which provides that if an action is commenced in time, and the plaintiff fails in it otherwise than upon the merits, he may commence a new action within one year after the failure.</p> <p>8. Courts — Federal Court Has Jurisdiction of New Action Where Former Action Was in State Court.</p> <p>Where the first action was prosecuted in a state court, a new action may be maintained in the federal court. The effect of section 23 is to make an exception to the general statute of limitations of the state, which is justiciable in the federal as well as in the state court.</p> <p>9. Same — Federal Court — Jurisdiction to Enforce Statutory Rights and Remedies Plenary.</p> <p>Rights created and remedies provided by the statutes of the states to be pursued in the state courts may be enforced and administered in the national courts either at law, in equity, or in admiralty, as the nature of the rights and the remedies may require, where the citizenship of the parties and the amounts involved bring the actions within the provisions of the Constitution and the acts of Congress.</p> <p>10. Judgment — Res Adjudicata — Rulings in Actions Dismissed Without Prejudice.</p> <p>Rulings and decisions in the course of an action which is subsequently dismissed without prejudice to a future action raise no estoppel. The only adjudication by such a judgment is that nothing is adjudged and that the parties are as free to litigate the issues as though the action had not been commenced.</p> <p>11. Same — Rules of Estoppel by Judgment.</p> <p>When the second suit is upon the same cause of action and between the same parties as the first, the judgment in the former is conclusive in the latter as to every question which was or might have been presented in the former.</p> <p>12. Same — Second Suit Upon Different Cause.</p> <p>When the second suit is upon a different cause but between the same parties as the first, the judgment in the former action operates as an estoppel in the latter as to every point and question which was actually litigated and determined in the first action; but it is not conclusive relative to other matters which might have been, but were not, litigated and decided.</p> <p>13. Same — Burden of Proof of Identity of Issues Litigated upon Him Who Asserts It.</p> <p>Where the record is such that there is or may be a material issue, question, or matter in the second suit upon a different cause of action, which may not have been raised, litigated, and decided in the former action, the judgment therein does not constitute an estoppel from litigating this issue, question, or matter, unless by pleading or proof the party asserting the estoppel establishes the fact that the issue, question, or matter in dispute was actually and necessarily litigated and determined in the former action.</p> <p>14. Same — Identity of Causes of Action — Test.</p> <p>The test of the identity of causes of action is the identity of the facts essential to their maintenance.</p> <p>15. Same — Cause oe Action Under Section 1192 Not the Same as That Under Sections 1200 and 1204.</p> <p>A cause of action to enforce the double liability of a stockholder by motion in the event of an unsatisfied execution upon a judgment against the corporation, under section 1192, Gen. St. 1889, is not the same as one between the same parties to enforce such a liability on the ground that the corporation has suspended business for a year, under sections 1200 and 1204, because the facts of a judgment and an unsatisfied execution are essential to the former and immaterial to the latter, and the fact of suspension of business for a year is indispensable to the latter and irrelevant to the former.</p> <p>16. Same — Commencement oe Action upon One Cause a Bar to an Action upon the Other.</p> <p>Under the decisions of the Supreme Court of Kansas the commencement of an action upon one of these causes is a bar to the prosecution of an action between the same parties to recover a liability of the stockholder in the same corporation under the other.</p> <p>17. Same — Judgment upon One Cause Does Not Adjudicate the Issues In an Action upon the Other.</p> <p>A judgment of denial of the motion for an execution and of dismissal of the action under section 1192, Gen. St. 1889, in which the defense of a prior action under sections 1200 and 1204 was pleaded and found, raises no estoppel against the plaintiff from litigating the issues presented in an action between the same parties under sections 1200 and 1204, in which that defense was not available, where the record does not disclose that the judgment upon the motion was based upon a decision of any of the issues in the latter ease.</p> <p>18. Evidence — Books op Corporations Incompetent to Prove Parties Stockholders — But Receipts and Admissions Signed by Them Competent.</p> <p>The books and records of a private corporation are not competent evidence against third persons, in the absence of proof of their knowledge and assent to them, to establish their relation of stockholders to the corporation or to prove other contracts between them and it. But admissions of a party against his interest, inscribed upon the books of a corporation and signed by him, are as competent and persuasive evidence against him as though they were written elsewhere.</p> <p>(Syllabus by the Court.)</p>

In Equity. On plea in bar. This is a suit in equity for the specific performance of an oral agreement or contract in relation to certain mines, mining claims, and locations situate in Goldfield mining district, Nev., and for a decree adjudging that defendants hold an undivided one-half of the one-fourth portion of the property described in the bill of complaint; that a conveyance therein mentioned, made by Lucien L. Patrick to the Nevada Mining & Exploration Company, be…

<p>1. Railroads — Accident at Crossing — Wanton and Reckless Killing.</p> <p>Evidence that a railroad train, at the time it struck and killed a person at a crossing in a town, was being run at an unlawful rate of speed, and that the whistle was not blown nor the bell rung as the train approached the crossing, does not sustain an allegation that the killing was wanton and reckless, or intentional, so as to exclude the defense of contributory negligence.</p> <p>[Ed. Note. — For eases in point, see vol. 41, Cunt. Dig. Railroads, §§ 1100, 1101.]</p> <p>2. Same — Contributory Negligence.</p> <p>Where a person killed at a railroad crossing had his senses of sight and hearing, and walked upon the track in full daylight at a place where the train could plainly be seen approaching for a distance of from a quarter to a half mile, he was chargeable with contributory negligence as matter of law, which precludes a recovery for his death from the railroad company, although it was also guilty of negligence in the running of the train.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig; Railroads, §§ 1080, 1189.]</p>

<p>1. Contracts — Legality—Restraint of Trade.</p> <p>An agreement, as incidental to the sale of property as a business, that the seller will not enter into a competing business, is valid and enforceable, notwithstanding it- is in partial restraint of trade.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 542-545, 555.]</p> <p>2. Same — Illegal Purpose of Covenantee.</p> <p>A contract by which a person sells his property and business good will to another cannot be repudiated on the ground that the purchaser acquired the property for the purpose of obtaining a monopoly of the business and in pursuance of an illegal combination in restraint of trade.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 462-464. 547.]</p> <p>3. Same.</p> <p>In order to defeat a suit to enforce a contract on the ground, that its enforcement is sought to aid and facilitate the carrying out of an illegal' combination in restraint of trade, it must appear that the' contract is. directly connected with such unlawful purpose, and not merely collateral, thereto.</p> <p>4. Equity — Maxims—Coming into Court with Clean Hands.</p> <p>The maxim that one - coming into a court of equity must come with clean hands applies only in ease of fraud or misconduct on the part of complainant in regard to the transaction which is the subject of controversy.</p> <p>[Ed. Note. — Eor cases in point, see vol. 19, Cent Dig. Equity, §§ 185-187.]</p> <p>5. Specific Performance — Sale of Business — Enjoining Violation.</p> <p>A court of equity will enjoin a defendant from violating a contract, clearly shown, by which he deliberately obligated himself for a valuable consideration not to engage in a certain business.</p>

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

<p>Removal oe Causes — Suit to Enforce Statutory Remedy — Foreign Attachment Under West Virginia Statute.</p> <p>Code W. Va. 1899, c. 106, provides that one having a simple contract debt or claim for unliquidated damages against a nonresident of the state may bring an action at -law thereon supported by attachment, or may at his election sue out an attachment on the ground of nonresidence and bring a suit in equity to establish his claim and enforce the lien of the attachment; that in such ease he shall have a lien from the date of the attachment levied; and that the ground for suing out the attachment may be contested by plea filed, and the issue thereon shall be tried by a jury, unless waived. Held, that such a suit was one to enforce a lien previously acquired by legal proceedings, and therefore within the jurisdiction of a federal court of equity, and was removable by defendant on the ground of diversity of citizenship, where the requisite facts appear.</p>

<p>1. Adverse Possession — Actual Possession — Character oe Inclosure.</p> <p>The inelosure of a tract of, land with a large quantity of other lands in a pasture by means of a small amount of fencing, the remainder of the inclosure being by natural barriers, such as streams and bayous, is not such an actual and visible appropriation of such tract as to constitute adverse possession.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent. Dig. Adverse Possession, § 101.]</p> <p>2. Evidence — Documents—Ancient Instrument.</p> <p>A deed executed in 1836, conveying land in Texas, is admissible in evidence as an ancient instrument, with the presumptions attaching thereto.</p> <p>[Ed. Note. — For cases in point, see vol.’ 20, Cent. Dig. Evidence, § 1615.]</p> <p>3. Cancellation oe Instruments — Unconscionableness oe Contract.</p> <p>Evidence considered, and held to entitle complainants to the cancellation of a deed to lands in Texas, executed in their behalf by their attorney in fact, and delivered by the local attorney employed by him to institute and prosecute a suit in complainants’ behalf to recover the lands, on the ground that at the time the deed was procured to be made and passed to defendant through such local attorney, and under the circumstances shown, it was unconscionable in defendant to demand or accept delivery; the price paid for the land being less than $2 per acre, and it clearly appearing from the evidence that at the time the agreement was made its actual market value was from $10 to $20 per acre, and that at the time the deed was delivered it was worth in the market many times such price, owing to the recent discovery of oil in large quantities in the vicinity, of which facts complainants and their attorney in fact, who lived at a distance, had no knowledge and were not advised by their attorney.</p>

<p>Patents — Infringement—Electric Battery.</p> <p>A preliminary injunction granted, restraining infringement of claim-1 of the Hoggson patent, No. 520,429, for an electric battery.</p>

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

In Equity. Suit for infringement of reissued letters patent No. 12,115 (original No. 727,331), for a receiver for electro-magnetic waves, granted to Reginald A. Fessenden May 26, 1903. On final hearing.

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

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

<p>Habeas Corpus.</p>

<p>Condemnation Proceedings. On motion to dismiss certain claims for damages.</p>

In Equity. This is a suit brought by the Fruin-Bambrick Construction Company (hereafter, for brevity, called the “Construction Company”), against the Ft. Smith & Western Railway Company (hereafter, for brevity, called the “Railroad Company”) upon a contract for the construction of about 120 miles of the railroad of the latter, beginning at section 77, on the Canadian river, in the Indian territory, and extending west to section 193 (both inclusive), at Guthrie, Old.

<p>1. Bankruptcy — Unliquidated Damages — Liquidation.</p> <p>A claim for unliquidated damages resulting from injury to the property of another, not reduced to judgment and unaccompanied and unconnected with any contractual or quasi contractual liability, is not susceptible of liquidation under section 63b of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]). .</p> <p>[Ed Note. — For cases in point, see yol. 6, Cent. Dig. Bankruptcy, § 479.]</p> <p>2. Same — Procedure.</p> <p>Under the power conferred on the court by Act July 1, 1898, c. 541, § 63b, 30 Stat. 563 [U. S. Comp. St., 1901, p. 3447], to direct the manner in which unliquidated claims against a bankrupt may be liquidated, ample authority exists to adopt any procedure appropriate to the particular case, whether it be submission to a jury on an issue framed, or production of evidence before the referee, or some other method.</p> <p>(Syllabus by the Court.)</p>

<p>1. Equity Jurisdiction — Multiplicity of Suits — Adequacy of Legal Remedy.</p> <p>Where two actions at law were pending against the same defendant to recover damages for the taking of oil from a tract of land — one action by the owner of the land, and the other by a lessee under an oil and gas lease — and the rlgnts of the respective plaintiffs in the oil as between themselves are uncertain under the lease, the facts are complicated, and the-defense to both actions consists in part of an estoppel by acts in pais, equity has jurisdiction of a suit by the defendant therein against both-plaintiffs to determine the entire controversy, both on the ground of' avoiding- a multiplicity of suits and because estoppels constitute a part of the substantive law of property and contracts, which it is peculiarly the province of equity to administer.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, §§' 167— 171.J</p> <p>2. Courts — Federal Courts — Jurisdiction—Ancillary Suit.</p> <p>A suit in equity in a federal court to enjoin the further prosecution of actions pending in said court, of which it has jurisdiction by reason of diversity of citizenship of the parties, and to enable the complainant to-make his defense to such actions, is ancillary thereto and within the jurisdiction of the court, without regard to the citizenship of panties-joined as defendants.</p> <p>[Ed. Note. — For cases in point, see vol. 18, Cent. Dig. Courts, § 801.]</p> <p>3. Equity Pleading — Multifariousness oe Bill.</p> <p>A bill to enjoin the further prosecution of two actions at law against the complainant, which involve the same indivisible subject-matter, is-not multifarious because the claims of the two plaintiffs in said actions-are separate and distinct.</p> <p>[Ed. Note. — For eases in point, see vol. 19, Cent. Dig. Equity, § 368.]</p> <p>4. Railroads — Grant of Right op Way — Construction.</p> <p>A contract made by a landowner granting to a railroad company “the-full and free right of way of the width of 50 feet” through his land, and covenanting to execute a deed, when required, conveying the land in fee simple, held to vest the company with the right of easement only.</p> <p>[Ed. Note. — For eases in point, see vol. 41, Cent. Dig. Railroads, §§ 163,. 164.]</p> <p>5. Minerals — Oil and Gas Lease — Sufficiency of Description of Land.</p> <p>The owner of a tract of land comprising 60 acres executed a lease-granting the oil and gas under the land “bounded and described as follows, to wit: North by lands of Ohio river, east by lands of Mrs. T. P. Pollock, south by lands of W. M. Irwin, west by lands of Mrs. J. C. Sharp, containing 30 acres,” and also giving the lessee the refusal of the lessor’s 30 acres reserved, which right of option, however, the lessee never exercised. Held, that the lease was void for uncertainty; it being impossible to determine from the description therein what part of the tract was intended.</p> <p>6. Judgment — Estoppel—Rights Admitted by Consent Decree.</p> <p>A decree entered by consent, which fully recognized the right of an-oil company to hold and operate upon a tract of land of which it was then in possession under a lease, estops the parties thereto from thereafter maintaining an action against such company or its successor in-interest for trespass, based on the alleged invalidity of the lease.</p> <p>7. Estoppel — Acts in Pais — Acquiescence in Asserted Rights.</p> <p>Complainant and its predecessors in interest entered and drilled oil wells upon a railroad right of way under a lease from a railroad company. The owner of the land from which the right of way was taken and his lessee of the oil and gas therein, with full knowledge of such operations, made no objection thereto, but in various ways recognized the validity of the lease from the railroad company and the right of the lessee to operate thereunder. Held, that they were thereby estopped from maintaining actions against complainant to recover the value of the oil taken from the land, after complainant and its predecessors had: expended large sums in developing the property.</p>

<p>1. Contracts — Bond Subscriptions — Underwriting Agreement.</p> <p>Tbe fact that tbe owner of a large amount of stock of a corporation obligated itself, in a syndicate agreement for tbe underwriting of an issue of the company’s bonds, to deliver to purchasers of such bonds a proportionate amount of the company’s stock as an inducement to facilitate their sale, did not disqualify such owner from itself becoming a subscriber to the underwriting agreement; and hence its subscription did not invalidate such agreement, nor relieve the other subscribers for liability.</p> <p>2. Same — Liability oe Subscriber to Assignee.</p> <p>Defendant, as one of a syndicate, signed an underwriting agreement by which the subscribers agreed to take and pay for an issue of bonds of a corporation to provide it with additional working capital, and for the purpose of obtaining the money, at once, while giving the syndicate time to sell the bonds to the public before being required to pay for them, it was provided that the subscribers should not be required to take the bonds for more than a year, but that the company might assign their subscription as security for money borrowed, and that the assignee should be subrogated to all of its rights thereunder. The subscription was pledged as security for a loan, as contemplated by such provision. Held, that the right of the assignee to enforce the contract against a subscriber was not affected by the fact that the compány became insolvent before the subscription was payable.</p> <p>3. Same — Right of Set-off.</p> <p>Where a syndicate agreement for the underwriting of an issue of bonds of a corporation was assigned by the company as collateral security for a loan, as was intended and expressly permitted by its terms, a subscriber, when sued thereon by the assignee, cannot set off equities existing between him and the company, and arising after the contract was executed and assigned.</p>

<p>Bankruptcy — Commissions of Referee.</p> <p>Where mortgaged property of a bankrupt did not come into possession of his trustee nor of the bankruptcy court, and all that was realized therefrom for the estate was a sum received by the trustee in compromise of a suit brought by him against the mortgagee, and the latter did not participate in the proceedings nor avail itself of the services of the court or its officers in realizing on its securities, but foreclosed in the state court, the commissions of the referee are to be computed only on the sum actually disbursed by the trustee to creditors, and not on the value of the mortgaged property.</p>

Writ of error from a judgment of the United States Circuit Court for the Western District of New York, entered on a verdict of a jury in favor of the defendant.

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

<p>1. Patents — Measttee fob Infbingement — Pbofits.</p> <p>In determining the profits and damages recoverable for infringement of a patent for a device which constitutes only one feature of the machine or structure sold by defendant, it is the settled rule that the burden of proof rests on the complainant to separate or apportion defendant’s profits between the patented and unpatented features, and by evidence which is reliable and tangible, or he must show by equally satisfactory evidence that profits and damages should be calculated on the whole machine, for the reason that its entire value as a marketable article is properly and legally attributable to the patented feature.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 545, 566-576.]</p> <p>2. Same.</p> <p>The question whether a machine would or would not have been marketable without a patented part is one of fact, which depends largely on opinion evidence; and the most satisfactory evidence is that which is afforded by the nature and intrinsic value of the improvement which such part introduced into the art or industry in which the machine is employed. When the patented improvement is one of subordinate importance, or the value of the machine as a whole depends more upon the unpatented parts, a finding that the marketable value of the whole has been created by the patented part can seldom be correct.</p> <p>3. Same — Aib-Bbake Mechanism.</p> <p>On an accounting for profits and damages for infringement of the Westtnghouse patent, No. 376,837, for an improved quick-action triple valve for air brakes, it was shown that defendant made and sold complete air-brake equipments for railroad trains, which included the patented device. The other parts of such equipment, including the triple valve, were either open to the public or covered by other patents, and had been in successful use without the patented feature, which was for emergency use only. It was shown that during the time of the infringement there was comparatively little demand for such equipments that were not provided with quick-action triple valves; but there were other forms of such valves not covered by the patent in suit, which operated successfully. Held, that such evidence was not sufficient to establish the claim that the marketable value of the equipment as a whole, or of- the triple valve, was due solely to the patented device, and that, in the absence of evidence to separate or apportion the profits made by defendant between the patented and unpatented features of the quick-action triple valves, complainant was not entitled to recover substantial profits or damages.</p> <p>[Ed. Note. — Accounting by infringer of patents for profits, see note to Brickill v. Mayor, etc., of City of New York, 50 O. O. A. 8.]</p>

In Equity. Suit for infringement of reissued letters patent No. 11,872 (original No. 495,443) for a traveling, contact for electric railways, issued to assignee of Charles J. Van Depoele November 13, 1900. On motion for preliminary injunction.

<p>Patents — Infringement—Glove Fastener Stud.</p> <p>The Pringle patent, No. 720,616, for a stud, forming one member of a-glove fastener, construed, and held infringed.</p>

<p>1. Master and Servant — Injury of Servant — Negligence and Contributory Negligence.</p> <p>Plaintiff, who was in the employ of defendant telephone company as cable splicer, was sent by a superior in the daytime to locate and repair an injury to the cable sheathing which had been reported. He climbed a pole which stood at a place where the street curved and between two lines of electric light wire, the outer one of which had been fastened on a bracket to the telephone pole to hold it from swinging against such pole and wires. This wire had become detached from the insulator and had dropped against the pole, and was in contact with a guy wire, and plaintiff, taking hold of such guy wire, received a shock which caused him to fall, and he was injured. The displacement of the light wire could not be observed from the ground, and the placing of the pole between the light wires and the manner in which the light wire was fastened to the same were shown to have been usual and customary. Held, that defendant was not chargeable with negligence, either because of such mode of construction or.for failing to discover the dangerous condition of the wire, which could not have been done by the usual methods of inspection. Held, further, that plaintiff was guilty of negligence contributing, to his injury in failing to see and avoid the danger after he had climbed to the place of contact of the two wires.</p> <p>2. Same — Place to Work — Measure oe Care Required.</p> <p>A master is bound to the exercise of only reasonable care with respect to machinery, appliances, or places to work, and the measure of such care is that ordinarily exercised by others in the same business.</p> <p>TEd. Note. — For eases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 178, 179.]</p>

<p>1. Bankruptcy — Involuntary Petition — Sufficiency.</p> <p>An involuntary petition in bankruptcy against a natural person should allege his occupation, or that he is not a wage earner or engaged chiefly in farming.</p> <p>2. Same — Person Engaged Chiefly in Farming.</p> <p>An alleged bankrupt, who owned two farms comprising 240 acres, which he cultivated himself, in part by his own labor, and from which he sold products amounting to $1,000 to $1,200 per year, and also conducted a small store, from which he realized a profit of $100 or less per year, was engaged chiefly in farming, that being the business of paramount importance to him, and under Bankr. Act July 1, 1898, c. 541, § 4, 30 Stat. 547 tU. S. Comp. St. 1901, p. 3423], cannot be adjudged an involuntary bankrupt.</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank of Mattoon, 111., 42 C. C. A. 4.]</p>

<p>In Admiralty. Action by seaman to recover damages for personal injury.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On certificate from W. W. Fletcher, referee, sur claim of E. M. Biddle, Jr.</p>

In Bankruptcy. On report of special referee on demurrer to petition. The following is the report of Joseph Mellors, special referee in re petition of Sigmund Heilbron and Michael Loeb, trading as Heilbron To the Honorable John B. McPherson and James B. Holland, Judges of the Said Court.

<p>In Error to the District Court of the United States for the District of Montana.</p> <p>The plaintiff in error was charged by indictment with the violation of the provisions of section 5438 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3674], which, so far as applicable to this ease, are as follows :</p> <p>“Sec. 5438. Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, * * * every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.”</p> <p>The indictment contained 38 counts, under the twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first, and thirty-second of which the plaintiff in error was found guilty.</p> <p>The twenty-first count is in these words: “And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further find, charge, and present: That one Morris L. Bridgeman, late of the state and district of Montana, before and on the 5th day of October, A. D. 1901, and thenceforth until and on and after the 31st day of January, A. D. 1902, was then and there the United States Indian agént at and of the Fort Belknap Indian reservation, in the state and district of Montana. That on the said 31st day of January, A. D. 1902, in the state and district of Montana, the said Morris L. Bridgeman, United States Indian agent as aforesaid, did then and there knowingly, willfully, and unlawfully make and cause to be made, and present and cause to be presented, for approval, to the Commissioner of Indian Affairs of the United States, being then and there an officer Of the civil service of the Unit- • ed States, a false, fictitious, and fraudulent claim upon and against the government of the United States for the sum of two-hundred and eighty-five dollars and eighty-eight cents; that is to say, a certain claim purporting that the said Morris L. Bridgeman, as United States Indian agent as aforesaid, had then and there expended and paid the said sum of two hundred and eighty-five dollars and eighty-eight cents to two certain Indians, to wit, Turns Around and Bracelet, in payment of fourteen thousand two hundred and ninety-four feet of rough lumber, and that the said aggregate sum of two hundred and eighty-five dollars and eighty-eight-cents had been so expended and paid by said Morris L. Bridgeman, as'United States Indian agent, as aforesaid, by paying to said Indian, Turns Around, the sum of eighty-five dollars and eighty-eight cents for four thousand two hundred and ninety-four feet of rough lumber, and by paying to said Indian, Bracelet, the sum of two hundred dollars for ten thousand feet of rough lumber. That the said claim was then and there, to wit, at the time of the making and presenting thereof as aforesaid, false, fictitious, and fraudulent in this: that the said Morris L. Bridgeman, United States Indian agent as aforesaid, had not paid the said sum of two hundred and eighty-five dollars and eighty-eight cents to said Indians, Turns Around and Bracelet, or either of them, in payment of fourteen thousand two hundred and ninety-four feet of rough lumber, and had not paid to said Indian, Turns Around, the sum of eighty-five dollars and eighty-eight cents for four thousand two hundred and ninety-four feet of rough lumber, and had not paid to said Indian, Bracelet, the sum of two hundred dollars for ten thousand feet of rough lumber; and that the said Morris L. Bridgeman, United States Indian agent, as aforesaid, was not then and there entitled to have the said claim, so made and presented by him -as aforesaid, approved, he, the said Morris L. Bridgeman, United States Indian agent as aforesaid, at the time of so making and presenting the said claim, then and there well knowing the same to be false, fictitious, and fraudulent. And so the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said Morris B. Bridgeman, United States Indian agent as aforesaid, in the state and district of Montana, and in manner and form aforesaid, did on the 31st day of January, A. D. 1902, make and cause to be made, and present and cause to be presented, for approval to the said Commissioner of Indian Affairs of the United States a claim upon and against the government of the United States, which said claim he, the said Morris L. Bridgeman, then and there well knew to be false, fictitious, and fraudulent, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.” The other odd-numbered counts under which the plaintiff in error was found guilty were the same, except as to amounts, names, and dates.</p> <p>The twenty-second count is in the following words and figures: “And the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do further find, charge, and present: That one Morris L. Bridgeman, late of the state and district of Montana, before and on the 31st day of January, A. D. 1902, was then and there the United States Indian agent at and of the Fort Belknap Indian reservation, in the state and district of Montana. That on the said 31st day of January, A. D. 1902, in the state and district of Montana, and within the jurisdiction of this court; the said Morris L. Bridgeman, United States Indian agent as aforesaid, for the purpose of obtaining the approval of a certain claim upon and against the government of the United States for the sum of two hundred and eighty-five dollars and eighty-eight cents, alleged to have been paid by the said Morris L. Bridgeman, as United States Indian agent as aforesaid, to two certain Indians, to wit, Turns Around and Bracelet, in payment of fourteen thousand two hundred and ninety-four feet of rough lumber, by paying to said Indian, Turns Around, the sum of eighty-five dollars and eighty-eight cents for four thousand two hundred ánd ninety-four feet of rough lumber, and by paying to said Indian, Bracelet, the sum of two hundred dollars for ten thousand feet of rough lumber, did then and there knowingly, willfully, and unlawfully use and cause to be used a certain false voucher, the said voucher being designated on the face thereof as “Voucher for Open-Market Purchases from Indians,” which said voucher contained the false, fraudulent, and fictitious statements and entries that on the said 5th day of October, A. D. 1901, there was paid by the said Morris L. Bridgeman, as United States Indian agent as aforesaid, to said Indian, Turns Around, the sum of eighty-five dollars and eighty-eight cents for four thousand two hundred and ninety-four feet of rough lumber, and to said Indian, Bracelet, the sum of two hundred dollars for ten thousand feet of rough lumber, which said statements and entries, so contained in said voucher, as aforesaid, were, and each of them was, then and there, false, fraudulent, and fictitious in this: that there was not paid on the 5th day of October, A. D. 1901, or at any time, to said Indian, Turns Around, the sum of eighty-five dollars and eighty-eight cents for four thousand two hundred and ninety-four feet of rough lumber, and that there was not paid on the said 5th day of October, A. D. 1901, or at any time, to said Indian, Bracelet, the sum of two hundred dollars for ten thousand feet of rough lumber; he, the said Morris L. Bridge-man, United States Indian agent as aforesaid, then and there well knowing that the said voucher was false, and then and there well knew that the said voucher contained each and every of the said false, fraudulent, and fictitious statements and entries as aforesaid. And so the grand jurors aforesaid, upon their oaths and affirmations aforesaid, do say that the said Morris U. Bridgeman, at the time and in the manner and form as in this count aforesaid, for the purpose of obtaining the approval of a claim upon and against the government of the United States, knowingly, willfully, and unlawfully did use and cause to be used a false voucher, knowing the same to contain false, fraudulent, and fictitious statements and entries, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America.” The other even-numbered counts under which the plaintiff in error was convicted are the same, except as to amounts, names, and dates.</p> <p>The plaintiff in error challenged the sufficiency of the counts mentioned by demurrer upon various grounds, and after his conviction moved in arrest of judgment upon similar grounds, all of which actions on his part were overruled by the court below, to which rulings he excepted.</p> <p>The bill of exceptions recites that upon the trial the government offered in evidence in support of counts 21 and 22 of the indictment a duly authenticated copy of a paper and voucher marked upon the face thereof “Voucher for Open-Market Purchases from Indians,” which voucher is in the following words and figures:</p> <p>“ ‘5,342.</p> <p>“ ‘Voucher for Open-Market Purchases from Indians.</p> <p>“ ‘We, the undersigned, Indians of the Fort Belknap Agency, Montana, do hereby acknowledge to have received this 5th day of October, 1901, from M. L. Bridgeman, U. S. Indian Agent, the sums of money set opposite our respective names, in full payment for the amounts due us for rough lumber at the rate of $20.00 per 1000 feet, delivered during the first quarter, 1902, at Fort Belknap Agency, for the purpose as specified in this voucher:</p> <p>Date. No. of feet. Amount due and paid each. Signal tures.</p> <p>1901. No. Names. Dols. Ots. Marks. Witnesses.</p> <p>Oct. 5. 1 Turns Around 4.294 85 55 Turns Around X J. C. Fitzpatrick. J. M. Johnson.</p> <p>3 Bracelet 10,000 200 00 Bracelet X J. C. Fitzpatrick. J. M. Johnson,</p> <p>Total 14.294 285 88</p> <p>“ ‘ I certify on honor that I have explained to these Indians, and am satisfied they understand, the nature of this pay roll, and that I witnessed the payment of the several amounts set forth to the individuals numbered from 1 to 2, inclusive, and the signing by each in receipt thereof.</p> <p>“ ‘Edmund First Smoke, Interpreter.</p> <p>“ ‘Fort Belknap Agency, Montana, Oct. 5, 1901.</p> <p>“ ‘We, the undersigned, certify on honor that we were present and witnessed the payment of the several sums set forth to the Indians numbered on the pay roll from 1 to 2, inclusive, and the signing by each in receipt thereof; and we further declare our entire disinterestedness in the matter.</p> <p>“ ‘J. C. Fitzpatrick,</p> <p>“ ‘J. M. Johnson,</p> <p>“ ‘Witnesses. '</p> <p>“ T, M. L. Bridgeman, U. S. Indian Agent, hereby certify on honor that on the 5th day of October, 1901, I made payment of the several sums to the Indians, who have receipted therefor; that said pay roll contains the names of 2 persons, numbered from 1 to 2, inclusive; that the aggregate amount of said payments was two hundred eighty-five and 88-100 ($285.88) dollars; that the purchase was made under 'authority from the Office of Indian Affairs, dated September 15, 1S98, renewed, copy attached hereto, and that the price paid is reasonable and the lowest obtainable; that the above account is correct and just; that the articles named therein were required for immediate use in constructing, irrigating system No. 2, and that the same appear on my return of property for the first quarter, 1902.</p> <p>“ ‘M. L. Bridgeman, Indian Agent.</p> <p>“ ‘Fort Belknap Agency, Mont., Oct. 5, 1901.’</p> <p>“Whereupon the defendant objected to the introduction of said voucher in support of count numbered 21, for the reason that said count alleged that the claim described therein was made and presented to the Commissioner of Indian Affairs on the 31st day of January, 1902, whereas the said voucher offered in evidence was dated October 5th, 1901, and there was, therefore, a fatal variance between the allegations of the count and the proof offered. Which said objection was overruled by the court, and said voucher admitted in evidence, to which ruling the defendant then and there excepted, which said exception was then and there noted and reduced to writing, and was by the court allowed. That said voucher was a voucher of the quarterly accounts of the defendant, Morris L. Bridgeman, rendered by said defendant as United States Indian agent of the Ft. Belknap Agency to the Commissioner of Indian Affairs for the second quarter of the fiscal year 1902, ending on December 31, 1901, and was the only written paper, account, or claim of any kind or character which was introduced in evidence in support of said counts numbered 21 and 22, and was duly certified to by the Commissioner of Indian Affairs as being a voucher of the quarterly account for the second quarter of the fiscal year, 1902, ending on December 31st, 1901, of the defendant, Morris Zi. Bridgeman, as United States Indian agent of the Ft. Belknap Agency, and as being on file in the said office of the Commissioner of Indian Affairs. That on the trial of this cause the testimony tended to establish that said voucher was in the handwriting of the agency clerks at said Ft. Belknap Agency in the district of Montana, and that it was there signed by the defendant in this cause, and that the defendant knew its contents, and knew that the statements contained therein were false, fictitious, and fraudulent, and was forwarded by U. S. Mail with the quarterly accounts to the Commission-^ er of Indian Affairs at Washington, D. C. That the said testimony and the" said certificate of the Commissioner of Indian Affairs showing that the said voucher was and is on file in his office was and is the only evidence and testimony introduced in this cause showing or tending to show where said voucher was made and presented to the Commissioner of Indian Affairs for payment or approval, or where said voucher was used by the defendant for the purpose of obtaining or aiding to obtain the payment or approval of the claim set out and described in said counts 21 and 22 of said indictment and in support of which said voucher was introduced in evidence. That there was no testimony, other than the said certificate of the Commissioner of Indian Affairs and the evidence hereinbefore set out, showing that the said defendant had made or caused to be made, or presented or caused to be presented, said voucher to the Commissioner of Indian Affairs, or where he had made or caused to be made, or presented or caused to be presented, or used or caused to be used, the said voucher.”</p> <p>Similar proceedings were had under the other counts upon which the plaintiff in error was convicted, which it is unnecessary to detail.</p> <p>The bill of exceptions further recites that the defendant having testified, among other things, that he did not read the vouchers and claims so introduced in evidence when he signed them, and that he did not know that they contained any false or untrue statements, called as a witness one Zebaugh, a civil service clerk in the Indian service stationed at Ft. Belknap Agency, Mont, and acting as chief clerk at that place, and having examined that witness in relation to his service in different agencies as civil service clerk, and having shown that he was familiar with the course of business at the various Indian agencies where he had worked, but that he did not know of the custom or practice employed at the Ft. Belknap .agency during the defendant’s incumbency, because he had not been there during such incumbency, asked the witness “if it was usual or customary for Indian agents, at agencies other than Belknap Agency, where he had been employed, to read over the voucher, claims, or reports prepared by the civil service employes for the purpose of forwarding and presentation to the Commissioner of Indian Affairs before signing them. Whereupon the government objected to said question as immaterial, irrelevant, and incompetent, .and the court sustained the objection. Whereupon the defendant offered to prove by said witness that in the usual course of business in the Indian agencies where he had been employed as civil service clerk it was not usual or customary for the Indian agents to read over the cash vouchei’S, claims, and reports made and presented to the Commissioner of Indian Affairs before signing them, or before transmitting them to the department, for the purpose of showing that the defendant had signed the vouchers introduced in evidence in the usual course of business, and in the manner and way usually employed in the Indian service, and for the purpose of showing that the defendant had acted in good faith, and for any other purpose for which said testimony might be competent and material. Whereupon the government objected to the introduction of said testimony as irrelevant, immaterial, and incompetent, which objection was sustained by the court,” and to which ruling the defendant reserved an exception.</p> <p>Upon the conclusion of the government’s case, the defendant requested the court to direct a verdict for the defendant upon various grounds, which motion was denied, and to which ruling the defendant reserved an exception. The assignments of error are numerous and cover the points argued by counsel.</p>

This is a bill by the trustee in bankruptcy of I. B. Merriam to recover the purchase price of k tract of coal land alleged to have been sold and conveyed by the bankrupt to his brother, Thos. Merriam, within four months of bankruptcy, for the purpose of preferring said Thos. Merriam by the application of the price to the payment of an alleged indebtedness to the purchaser, contrary to the provisions of the bankrupt act.

<p>Patents — Infringement—Spring Bed.</p> <p>The Gail patent, No. 639,222, for improvements in spring bed and seat bottoms, conceding it to disclose patentable invention, is for an improvement merely in an existing and well-advanced art, by a new and slightly different combination of old elements, and is entitled only to a narrow and strict construction, limiting it to the exact device shown. As so construed, it is not infringed by the device of Haas & Crow patent, No. 745,345.</p>

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

<p>1. Patents — Assignments—Validity—Cancellation.</p> <p>One of the complainants obtained patents for an Invention In this country ¿nd Europe, and assigned a half interest in the foreign patents to the complainant in the second suit. They afterwards became associated in the ownership of the foreign. patents with defendants and others, each complainant retaining a fourth interest. A fund was raised, and a representative sent to England, who negotiated profitable license contracts. This fact was concealed from the complainants, and, by means of representations to them that the efforts had so far been unsuccessful, and demands for further advances, at a time when large payments had been actually received under the foreign licenses, they were induced to transfer their property interests to defendants for a small sum. Held, that such facts constituted a fraud upon complainants, which entitled each of them to a cancellation of his assignment, and to recover his share of the profits realized from the joint venture, with interest.</p> <p>[Ed. Note. — Sublieenses and assignments of licenses for use or sale of patents, see note to National Phonograph Co. v. Schlegel, 64 C. C. A. 596.]</p> <p>2. Fraud — Recovery of Damages — Persons Liable.</p> <p>A defendant who was an active participant in a scheme by which complainants, with whom he was in close and confidential business relations, were fraudulently induced to make a transfer of their property, cannot escape liability to make restitution on a cancellation of the transfer, on the ground that he did not himself profit by the fraud.</p>

At Law. This is an action brought by the plaintiff, as receiver, on the 29th day of April 1904.

<p>1. Bankruptcy — Voidable Preference — Knowledge of Creditor.</p> <p>Where all the facts known to a creditor pointed to his debtor being insolvent, which was the fact, the creditor is chargeable with knowledge that a transfer to him as security of practically all of the debtor’s available property, within four months prior to the latter’s bankruptcy, was intended to give him a preference, and such transfer is voidable, under Banlcr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St 1901, p. 3445.]</p> <p>[Ed. Note. — For cases in point see vol. 6, Cent. Dig. Bankruptcy, §§ 255, 257.]</p> <p>2. Same — Preference Effected by Deed Intended As Security — Act Pa.</p> <p>June 8, 1881 — Deeds and Mortgages — Recording Acts of Pennsylvania — Right of Trustee to Question Transaction — Section 60a Bankr. Act 1898 As Amended February 5, 1903 — Date As of Which Transfer to be Adjudged a Preference.</p> <p>Conveyances of real estate absolute on their face were executed by the debtor to his creditor, the one April 21, 1894, and the other July 30, 1900. Both were admittedly given as security for existing and subsequently accruing indebtedness, and with other securities, also transferred to the creditor, constituted practically all the available property of the debtor. The conveyances were not recorded until June 2, 1903, at which time the grantor was insolvent, and must have been known to have been so by such creditor. Four days later involuntary proceedings in bankruptcy were instituted against the grantor, and he was subsequently adjudicated a bankrupt. On a bill by the trustee to have the conveyances set aside as a preference, held:</p> <p>(a) That, although given as security merely, the Pennsylvania act of June 8, 1881 (P. L. 84), prohibiting a deed absolute on its face*from being reduced to a mortgage, except by a defeasance in writing, signed, sealed, and delivered by the grantor at the time and recorded within 60 days, prevented the said conveyances from being treated as mortgages good only as such, according to the local law, from the date of record; and that the bill could not proceed upon that ground.</p> <p>(b) That this, however, was not material: (1) The act of 1881 not preventing the court from inquiring into the real character of the transaction, and treating the deeds, according to the fact, as intended for security only, constituting a turning over of his property by the bankrupt to one of his creditors, in preference to, and serious prejudice of the others; (2) and the trustee having no greater right to call in question the conveyances, for want of recording, as mortgages than as deeds, the right to do so In either case being dependent on the construction to be given to the provisions of the bankruptcy act with regard to voidable preferences.</p> <p>(c) That, having regard to the state law solely, the deeds were effective to convey title, whatever their purpose, without being recorded; the Pennsylvania act of May 19, 1893 (P. L. 108), by which the subject of recording is regulated, requiring it only in order to preserve the rights of the grantee as to subsequent purchases or mortgages for value without notice, of whom the trustee of the bankrupt was not one.</p> <p>(d) That the right of the trustee to set aside the conveyance was to be determined by reference to section 60a of the bankruptcy act (Act July 1, 1898, 30 Stat. 562, c. 541 [U. S. Comp. St. 1901, p. 3445]), as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, p. 689], according to the proper construction of which a deed by which a transfer of a bankrupt’s property is effected, under which no possession is taken, is to be judged on the question of preference by the date when it is put on record, regardless of the date of delivery; and that, tested by this, the conveyance in question could not stand.</p> <p>(e) That by the amendment of February 5, 1903 to section 60a of the bankruptcy act this section was intended to be brought into substantial accord with section 3, els. “a” and “b” (30 Stat. 546 [U. S. Comp. St. 1901, p. 3422]); that which as a preference, is made an act of bankruptcy by the one being intended to be made voidable as such at the instance of the trustee by the other, the superadded condition being present that the person who has received the preference had reasonable cause to believe that a preference was intended.</p> <p>8. Same — Transfer of Property by Bankrupt — Security or Sale.</p> <p>An assignment by an insolvent within four months prior to his bankruptcy of a judgment in his favor from which an appeal was pending, followed by a sale of goods to him by the assignee from time to time, which were charged to his account, although absolute on its face, held to have been by way of security only for the account, leaving the assignee accountable to the bankrupt’s trustee for the excess of its proceeds.</p>

In Equity. On motion to dismiss bill. The defendants move the dismissal of the bill of complaint in this cause for the following reasons: First, (a) Because the suit has been abandoned; (b) because of want of prosecution. Second. Because the cause of action stated in the bill of complaint has been transferred and assigned to Albert W. Brown, who is now sole owner of the claim.

On Application for Reyiew of a Decision of the Board of United States General Appraisers. Held: Chief Justice Marshall delivering the

<p>Action for Timber Trespass.</p>

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

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

<p>In Equity. Suit for infringement of trade-mark and unfair competition.</p>

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

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

<p>In Equity. On motion to strike amended bill from the files.</p>

<p>1. Municipal Corporations — Warrant as Evidence oe Indebtedness — Right oe Action.</p> <p>A warrant or voucher, issued by a Pennsylvania borough and signed by its proper officers, acknowledged an indebtedness to the payee in a stated sum for paving material furnished, which the borough promised to pay in one year, with interest, on presentation of the warrant, with the voucher printed thereon, signed by the payee. The warrant was issued on an order given by the paving contractor, accepted by the borough officers, and the voucher was duly signed by the payee. Held that, while the instrument'was not negotiable as commercial paper and was subject to defenses in the hands of a transferee, it was an evidence of indebtedness which would support an action by the payee, who was not compelled to sue in right of the contractor.</p> <p>2. Same — Validity oe Indebtedness — Constitutional Limitation.</p> <p>Under the law of Pennsylvania a bonded indebtedness of a borough, made by authority of a vote of the electors, is to be deducted in computing the indebtedness of the borough which, under the constitutional limitation, mayl be incurred without a vote; nor is a debt for street improvements to be paid by special assessments on abutting property subject to such limitation.</p> <p>[Ed. Note. — Constitutional and statutory limitations of municipal indebtedness, see note to City of Helena v. Mills, 36 C. C. A. 6.]</p>

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

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

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

On February 1, 1899, the plaintiff in error (defendant below) made and delivered to the plaintiff his nonnegotiable promissory note in writing as follows : “$9,000.00 Keokuk, Iowa, February 1, 1899. “Ten years after date, without interest, I promise to pay to William Logan, trustee, or his successors, the sum of nine thousand ($9,000.00) dollars, for value received. “This note is nonnegotiable, and is to become due and payable under the .terms and conditions of an agreement…

<p>On Petition to Superintend and Review, in Matter of Law, Proceedings of the District Court of the United States for the District of Maryland.</p>

<p>In Error to the United States Court of Appeals in the Indian Territory.</p>

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

<p>In Equity. Suit for infringement of United States letters patent No. 675,272, dated May 28, 1901, granted to Thomas S. Fox, for half-tone negative. Usual interlocutory decree for injunction and accounting entered December 15, 1905. Defendant filed a petition for rehearing upon the entry of said interlocutory decree.</p>

In Equity. Suit for infringement of letters patent No. 36,905, for a design for a font of type, granted to Ingalls Kimball May 3, 1904. On demurrer to bill.

<p>In Equity. Suit for infringement of reissued letters patent No. 12.085 (original No. 638,669), for a clutch mechanism, granted to Almon E. Norris February 24, 1903.</p>

<p>1. Corporations — Action by Stockholdeb — Sufficiency op Complaint.</p> <p>The complaint, in an action against a corporation to enforce rights as a preferred stockholder, must allege facts showing what the rights of such stockholders are under the contract made by the issuance of the stock. A mere allegation that plaintiff is a preferred stockholder states.a conclusion of law, and is insufficient</p> <p>2. Action — Misjoinder op Plaintiffs — Severalty of Interests.</p> <p>An action at law against a corporation to recover damages alleged to have been sustained by plaintiffs as stockholders cannot be maintained jointly by owners of stock in severalty, nor can such an action be severed.</p>

<p>Insurance — Action on Policy — Limitation by Contract.</p> <p>A clause in an insurance policy, providing that an action thereon shall be barred, unless commenced within 30 days after the right of action accrues, creates a contract limitation analogous to a statutory limitation, and conduct of the company, inducing delay in bringing suit beyond such time for the stated purpose of enabling it to investigate the claim or to negotiate for a settlement, while a waiver of such delay, is to be given only the effect intended and understood by the insured, and is not an entire abandonment or annulment of the limitation clause, but merely suspends its operation; and the limitation begins to run on a clear announcement by the company of its refusal to pay or settle the claim.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1544-1556.]</p>

<p>1. Bankruptcy — Discharge—Making of False Oath.</p> <p>The verification by a bankrupt of an answer containing a false statement of fact does not constitute the making of a false oath in the proceeding, which deprives him of the right to a- discharge, where the answer was filed after the time allowed by the bankruptcy act and was not considered.</p> <p>2. Same — Transfer of Property with Intent to Hinder and Delay Creditors.</p> <p>Evidence considered, and held to sustain objections to a bankrupt’s discharge on the grounds (1) that he had committed an offense punishable by imprisonment in the making of a false oath in the verification of a motion filed in the bankruptcy proceedings, and also (2) that he transferred property within four months prior to the filing of the petition against him and while insolvent, with intent to hinder, delay, and defraud his creditors.</p>

<p>In Bankruptcy. On motion to confirm referee’s report.</p>

<p>1. Bankruptcy — Homestead Exemptions — Construction op State Laws.</p> <p>The provision of Const. N. C. art. 10, § 2, exempting from sale on execution the homestead “owned and occupied by any resident of this state and not exceeding the value of one thousand dollars,” is applicable only to lands within the state; and a court of bankruptcy is not authorized to set off as a homestead to a bankrupt, who is a resident of North Carolina and domiciled therein, lands in another state.</p> <p>2. Same — Jurisdiction to Set Ope Homestead — Land in Another District.</p> <p>A court of bankruptcy is without jurisdiction to allot to a bankrupt, domiciled within its district, a homestead in lands situated in another district.</p>

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

<p>Aliens — Proceeding fob Deportation of Chinese Person — Effect of Discharge bt Commissioner.</p> <p>A United. States commissioner exercises special authority in Chinese-cases, and where a Chinese person charged with being unlawfully in the-United States has had a hearing regular in form before a commissioner, who has adjudged that such person is entitled to be and remain within the United States and has ordered his discharge, the decision is determinative of the issue, and such person cannot be again apprehended and proceeded against upon a complaint filed in the District Court of the same-district upon substantially the same facts.</p> <p>[Ed. Note. — Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212 ;• Lee Sing Far v. United States, 35 C. C. A. 332.]</p>

<p>In Bankruptcy. Sur petition of New London Wash Silk Company for reclamation of certain property.</p>

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

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

<p>1. Bankruptcy — Time for Filing Claims — Statutory Limitation.</p> <p>While Bankr. Act 1898, c. 541, § 57n, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444], providing that “claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication,” is an absolute bar to the proving or allowance of a claim after the expiration of a year, where the creditor is chargeable with any laches, it must be construed in the light of the main purpose of the act, which is to secure an equal division of assets between bona fide creditors, and should not be held to bar a just claim, which, owing to peculiar circumstances, could not have been proved within the year.</p> <p>2. Same.</p> <p>A creditor received payment of its claim in good faith within four months prior to the bankruptcy of the debtor, but at suit of the trustee was compelled to repay the amount as a voidable preference; the fund so recovered constituting the only assets of the estate which came into the hands of the trustee for distribution. Final judgment was not rendered until more than a year after the adjudication, and the creditor promptly paid it and filed proof of its claim against the estate. Its justness was undisputed, and no objection to its allowance was made by any other creditor. Held, that under the circumstances, and in view of the fact that the creditor had no provable claim until payment of the judgment, it was not barred by Bankr. Act 1898, c. 541, § 57n, 30 Stat. 561 [D. S. Comp. St. 1901, p. 3444].</p>

<p>Bankruptcy — Claim of Exemption — Amendment of Schedules.</p> <p>Where a bankrupt undertook in good faith to claim in his schedules* an exemption allowed him by the statute of the state, but failed to make-file claim in the form required by the statute by describing the property claimed, in consequence of which it was all sold by the trustee, he may be.permitted to amend his schedules thereafter, so as to claim the exemption from its proceeds.</p>

<p>1. Tbade-Marks and Tbade-Names — Unfair Competition — Grounds fob Relief. '</p> <p>To make out a case of unfair or fraudulent competition there, must be an actual wrongful intent to deceive the public into the belief that the goods of the one party are the goods of the other, accompanied by such acts and devices as are likely to do so, or such duplication in form and dress of the one by the other as will produce a confusion calculated to bring this about, of which the party complained against is convicted of being willing to have the benefit.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trade-Marks- and Trade-Names, §§' 79-86.</p> <p>Unfair competition, see notes to Seheuler v. Muller, 20 C. C. A. 165 Lare v. Harper Bros., 30 C. C. A. 376.]</p> <p>2. Same — Preliminary Injunction.</p> <p>On an application for a preliminary injunction against alleged unfair-competition in the dress of goods, it should be clear that the complainant has an established and exclusive right to pack and dress his goods in the- . way he asserts, on which the defendant is deceptively trying to trade. '</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent Dig. Trade-Marks- and Trade-Names, § 108.] ,</p> <p>3. Same — Dress oe Chocolate.</p> <p>The showing made of unfair competition, based on the alleged similarity in shape and style of packages and color and style of wrappers in which chocolate is put up for the market by complainants and defendant,, respectively, held insufficient to warrant the granting of a preliminary-injunction.</p>

<p>At Eaw. On motion to strike out portion of petition.</p>

<p>Copyrights — Infringement—Persons Entitled to Sue.</p> <p>One who publishes a copyrighted book in the United States, containing due notice of copyright, but who subsequently takes the plates from which it was printed, and which were made from type set in this country, to England, and there publishes from said plates another edition of the book, intentionally omitting therefrom the notice of American copyright, cannot maintain a suit for infringement of copyright against another who imports a copy of the English book and reproduces it in the United States; the foreign copy, lawfully imported, being in legal effect a publication made in this country without the copyright notice, 'within the meaning of Rev. St. § 4962 [U. S. Comp. St. 1901, p. 3411], which makes such publication a bar to a suit for infringement</p>

<p>In Admiralty. Suit for partition of vessel. On rule to show cause.</p>

<p>Admiralty — Jurisdiction—Accounting in Suit yob Partition oy Vessel.</p> <p>While a court of admiralty is without jurisdiction of a suit to obtain an accounting as such, it has jurisdiction to decree an accounting as incidental to the principal cause of action of which it has undoubted jurisdiction as between the owners of a vessel, with respect to her past earnings in a suit for her sale for partition.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question (G. A. 5,927, T. D. 26,061) affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by the Buehne Steel Wool Company.

<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 Theodore W. Morris & Co. Note G. A. 4,650 (T. D. 21,975); U. S. v. Binney, 82 Fed. 992, 27 C. C. A. 347; Buehne v. U. S. (C. C.) 140 Fed. 772.</p> <p>The article in controversy consisted of a so-called steel table, engraved, measuring about 12 feet by 4 feet by 6 inches, weighing 11,816 pounds, and mounted like a table top on a frame which is moved on wheels. It is used in the manufacture of plate glass to straighten the plates after being rolled; the engraved design being imparted to the glass during the process. The Board affirmed the action of the collector in classifying the merchandise as a manufacture of metal under paragraph 193, Schedule O, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645), against the importers’ contention that it should have been classified under the provision in paragraph Í35, Schedule O. § 1, c. 11, 30 Stat. 161 (U. S. Comp. St. 1901, p. 1638), for “plates and steel in all forms and shapes not specially provided for.”</p>

<p>Judgment — Conclusiveness—Collateral Attack.</p> <p>A domestic judgment is conclusive against collateral attack only when the jurisdictional facts appear of record or when the court has expressly adjudged that they exist. Such a judgment is not conclusive against one who, while made a defendant, is not shown by the record to have been served with process or to have appeared or been defaulted.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1183.]</p>

<p>Coubts — United States Courts — Jurisdictional Averments in Pleadings— Amount in Controversy.</p> <p>A bill to recover an interest in lands of a decedent, in which the only-allegation with respect to the amount or value in controversy is that “complainants are informed and believe that the whole of said lands * * * are worth $12,000, and the amount demanded by them herein is more than $2,000,” is argumentative, leaving the court to make a calculation, and does not meet the statutory requirement to give a federal court jurisdiction.</p> <p>[Ed. Note. — Jurisdiction of circuit courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Go. v. Roper, 36 C. C. A. 459.]</p>

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

<p>In Admiralty. Suit by charterer against owner for damages.</p>

<p>Courts — Habeas Corpus — Jurisdiction of Federal Courts — Violation of Constitutional Rights.</p> <p>Under Rev. St. § 753 [U. S. Comp St. 1901, p. 592], which provides that “the writ of habeas corpus shall in no case extend to a prisoner in jail unless he is in custody * * * in violation of the Constitution or of a law or treaty of the United States,” a federal court has no' power on such a writ to discharge a prisoner confined for contempt by a state court for refusing to answer questions as a witness, on the ground that his answers might incriminate him; the provision of the fifth constitutional amendment that no person shall be compelled in a criminal ease to be a witness against himself being a limitation solely on the powers of the national government and its courts and officers.</p> <p>[Ed. Note. — Jurisdiction of federal courts in habeas corpus, see note to In re Huse, 25 C. C. A. 4.]</p>

<p>¡Release — Damages eos Personal Injury — Eefect on Action Against De-EENDANT SEPARATELY LIABLE.</p> <p>Plaintiff, while employed as a brakeman and riding upon the top of a train of freight cars, was thrown off and injured by striking against a trolley wire across the track, placed by defendant, a street railroad company, at an unsafe distance above the railroad tracks. Plaintiff was a member of the railroad company’s relief department, and on receiving benefits from such fund on account of his injury signed a release to the company of liability therefor, as required by the terms of his contract Held, that such release did not operate to discharge the defendant from liability, since it was not a joint tort-feasor with the railroad company, but its acts of negligence, if any, which rendered it liable to plaintiff, -were separate and distinct</p>

<p>Bankruptcy — Conditional Purchase of Property — Reclamation by Seller.</p> <p>A conditional sale of property, which under the law of Pennsylvania subjects it to execution in fayor of creditors of the purchaser, cannot be converted into a bailment, effective against existing creditors, by an agreement made after the property has been delivered, so as to entitle the seller to reclaim the same from the purchaser’s trustee in bankruptcy, where such existing creditors remain unpaid.</p>

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

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

<p>At Daw. On motions to treat demurrers as a nullity and for judgment for want of an affidavit of defense.</p>

<p>At Law. On motions to treat demurrers as a nullity and for judgment for want of an affidavit of defense.</p>

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

<p>Equity — Intervention—Suit by One in Behalf of All.</p> <p>Where a suit in equity is brought on behalf of complainant and all others similarly situated, a person will not be given leave to intervene-by separate counsel to assert a claim in all respects similar to that of complainant, unless it is proposed to dispose of the cause otherwise-than in the usual way at final hearing, so that such intervention may be necessary to protect the petitioner’s rights.</p>

<p>Claims of Clark Shore, William A. Remale, Arthur M. Whitcomb, and Dora Publes.</p>

<p>Claim of James Blair for return of 75 shares of U. S. Steel common and other stocks.</p>

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

<p>On Petition of John Zwack.</p>

At Law. On motion by defendant for judgment notwithstanding verdict. • This is an action by plaintiff, as administrator of Jacob Elson, based on Gen. St. Conn. 1902, § 2020, to recover damages for an injury received by his intestate by being dragged from a load of stone, on which he was riding on a highway, by the overhanging branches of a tree, which injury resulted in his death a few days later. There was a trial, resulting in a verdict for plaintiff for $2,500.

This was a suit in equity to establish, as matter of record, the forfeiture of an oil and gas lease and to cancel the same as a cloud upon complainant’s title. The suit was commenced December 31, 1901, in the district court of Allen county, Kan., and was removed into the Circuit Court on defendant’s petition.

This was a libel in rem filed by Juan de la Cruz Silva' Martinez against the Italian bark Margharita to recover damages for personal injuries sustained and suffering endured by him while a seaman on board the vessel. Negligence of the master and officers was charged. The-case resulted in. a decree for the libelant for the sum of .$1,500, from which this appeal was taken. The facts making the case are stated in the opinion.

The question involved in this case is one of law. The facts were stipulated and agreed upon substantially as follows: The defendant in error brought from foreign ports 210 alien passengers, who were then and there in transit through the United States and bound for foreign ports.

<p>1. Judgment — Action on — Complaint.</p> <p>In an action on a judgment of a state court of record alleged to be in full force and effect, it is not necessary that the complaint should allege that no appeal' from the judgment has ever been taken, nor that the time for appeal has expired.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, § 1740.]</p> <p>2. Appeal — Review—Amendments Regarded as Made.</p> <p>Where the evidence received • without objection supports the verdict, the pleadings, if defective, will be presumed by an appellate court to have been amended to conform to the proof.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3622.]</p>

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

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

Appeals from the District Court of the United States for the Southern District of Ohio. On January 1, 1904, the German-American Bank was adjudged bankrupt upon a petition of its creditors alleging that it was a partnership and had committed an act of bankruptcy by making a general assignment for the benefit of its creditors.

<p>Appeal from the District Court of the United States for the Eastern District of Michigan.</p> <p>On petition for rehearing.</p>

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

<p>Patents — Infringement—Casino for Horse Collars.</p> <p>The Couch patent, No. 699,151, for a casing for horse collars, construed, and held not infringed.</p>

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

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

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

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

<p>Patents — I nekingement — Muíkoes.</p> <p>Tbe Wrigbt & Curry patent, No. 631,033, for a mirror, construed, and helé not anticipated, valid, and infringed as to claims 3, 4, 5, and 6.</p>

In Equity. Suit for infringement of letters patent No. 726,293 for a process for exhausting incandescent lamps, granted to John W. Howell, April 28, 1903. On rule to show cause why defendant should not be adjudged guilty of contempt for violation of injunction.

In Equity. Suit for infringement of letters patent No. 584,177, for a magazine gun, granted to Hepburn June 8,1897. On motion for preliminary injunction.

<p>1. Municipal Corporations — Building Wharves and Docks — Legislative Grant of Power.</p> <p>A legislative grant of power to a city “to lay out additions and alterations to be made to the public wharves and docks” of the city, made after the existing buildings and structures along the water front had been destroyed by fire, is not to be so narrowly construed as to limit it to the building, of additions to existing wharves and docks, but includes power to enlarge the facilities of the port by making new ones, and especially where, from the known insufficiency and inadequacy of the previous structures for the purposes of modem commerce, it is evident that such was the legislative intent.</p> <p>2. Eminent Domain — Legality of Grant of Power — Public Character of Use.</p> <p>A grant of power to a city to condemn property for use in constructing wharves and docks in accordance with a comprehehsive plan to be adopted by the municipal bodies designated is not invalid, as authorizing the taking of property for other than public uses, because some of the piers and docks may not be at once required for strictly public uses, and may be leased by the city to private parties to be used for purposes of navigation and commerce, where, under the city’s charter, its title is inalienable, and special rights can only be granted for a limited time and subject to the power of regulation.</p> <p>[Ed. Note. — For cases in point, see vol. 18, Cent Dig. Eminent Domain, §§ 54, 71.]</p> <p>3. Constitutional Law — Due Process of Law — Exercise of Power of Eminent Domain — Proceedings for Assessment of Damages.</p> <p>Proceedings for the condemnation of property by a city for public use are not invalid, as taking property without due process of law, because under the statute the assessment of damages is made by a commission appointed by the mayor to have charge of the making of the contem- . plated public improvements, nor because, in case of appeal from the award of damages, the judge is given discretionary power in regard to the taxing of costs.</p> <p>[Ed. Note. — For easesi in point, see vol. 10, Cent Dig. Constitutional Law, § 880.]</p> <p>4. Eminent Domain — Assessment of Damages — Notice to Property' Owners —Reasonableness.</p> <p>Where the portion of a city adjacent to the harbor was destroyed by fire, and it was a matter of common knowledge that the city was proceeding to acquire property in the burnt district by condemnation for harbor and dock purposes, provisions of the statute requiring two weeks’ notice by publication of the meeting of the commission to assess damages to property owners after the plans for the improvement were adopted, four days’ notice of the time set for reviewing tne assessment after it was made, and two weeks’ notice of the right to appeal, which continued for fifteen days, are reasonable with respect to the length of notice, and do not violate the constitutional rights of a property owner.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 880, vol. 18 Cent. Dig. Eminent Domain, §§ 489, 490.]</p>

<p>1. Fraud — Action fob Deceit — Grounds.</p> <p>An action for deceit is based on fraud, and to sustain it there must not only have been false representations, but, contrary to the rule in-suits for rescission, they must have been made fraudulently and intentionally, or so recklessly and without concern as to their truthfulness as to be the equivalent of actual fraud.</p> <p>[Ed. Note. — For cases in point, see vol. 23, Cent. Dig. Fraud, §§ 3 — 5.]¡</p> <p>2. Same — Facts Considered.</p> <p>Plaintiff purchased the business and assets of defendant life insurance company, and in the examination into defendant’s condition made by plaintiff’s representative before the sale a list of policies was used, which was furnished by defendant’s officers and had been previously prepared for its own use and information. After the sale it was found that there were errors in said list' in stating the character of the policies, and, that a larger reserve fund was required than that shown by the computation based thereon, and which, under the terms of the sale, defendant turned over to plaintiff. Held, that such facts would not support an action for deceit, to recover as damages the amount of such additional reserve; there being no evidence that the list was furnished with any actual intention to defraud.</p> <p>[Ed. Note. — For cases in point, see vol. 23, Cent. Dig. Fraud, §§ 3-5.]</p> <p>3. Same — Effect of Misrepresentations — Examination by Purchaser.</p> <p>Where a prospective purchaser undertakes to make, and does make, an investigation of his own of the property, and the seller does nothing to prevent it from being as full as is desired, the purchaser cannot after-wards be heard to say that the seller made misrepresentations, which he relied upon to his hurt.</p> <p>[Ed. Note. — For cases in point, see vol. 23, Cent Dig. Fraud, §§ 17-21; vol. 43, Cent. Dig. Sales, §§ 65, 66, 90.]</p> <p>4. Same — Expression of Opinion.</p> <p>Defendant life insurance company, among the assets transferred to plaintiff on a sale of its property and business, included its balances of accounts against agents, as shown by its books. • A list of such balances was made and shown to plaintiff, and in reply to an inquiry defendant’s secretary stated that they had charged off the bad accounts and that those remaining were “better than the ordinary.” No representation was made as to the solvency of the persons charged or the collectibility of the accounts. Held, that such statement was merely an expression of opinion, and neither that nor the list shown could be made the basis of an action against defendant for deceit because the amount of some of the accounts was disputed or offsets were claimed.</p> <p>[Ed. Note. — For cases in point, see vol. 23, Cent. Dig. Fraud, §§ 12-14; voi. 43, Cent. Dig. Sales, § 67.]</p> <p>5. Same — Action for Deceit — Damages.</p> <p>In an action for deceit in making false representations with respect to property sold, the amount recoverable, if the deceit is proved, is not the difference between the price paid and the value of the property if it had been as represented, but the actual loss of plaintiff, which is measured by the difference between the actual value and the price he was induced to pay; and where the sale was a single transaction, although different kinds of property were embraced therein, there can be no recovery, unless it is shown that the property obtained as a whole is worth less than was paid for it</p> <p>[Ed Note. — For cases in point, see vol. 23, Cent Dig. Fraud, §§ 60-65.]</p>

<p>1. Criminal Law — Jurisdiction of Federal Courts — Criminal Offenses— Commission on Military Reservation.</p> <p>To give a federal court jurisdiction to try a person for a criminal'offense, on the ground that it was committed within a fort or military reservation, such fort or reservation must have been established by law, as contemplated by Const, art. 1, §• 8, either by purchase with the consent of the Legislature of the state or by reservation of public lands therefor by compact with the state at the time of its admission, and exclusive jurisdiction over the same must have been reserved to the United States, either by express words or by necessary implication.</p> <p>2. Same — Lands Occupied but not Legally Reserved for Military Post.</p> <p>By executive orders certain public lands in the then territory of Montana were reserved by the President for military purposes, under the designation of “Ft. Missoula Military Reservation.” It was subsequently ascertained that most of the buildings of the post were upon the E. % of section 36 adjoining the lands reserved, which had already been reserved by the organic act governing the organization of the territory for the use of the state, when admitted, for school purposes. By order of the General of the Army the commander of the post continued to occupy and exercise authority over such land, but no action was ever taken by Congress or the President to legally include the same in the lands reserved for military purposes; but both subsequently acted on the understanding that it was not a part of the reservation. The Constitution of the state of Montana (article 2, § 1) acknowledges the authority of the United States to exercise exclusive legislation, as provided by the federal Constitution over the military reservations in the state, including Ft. Missoula “as now established by law,” and the enabling act under which the state was admitted reserved from the grants made all lands “embraced in Indian, military or other reservations of any character.” Held, that no part of section 36 was within the reservation “as established by law,” nor within the reservation of the enabling act, and that the federal court was without jurisdiction to try a person for a homicide committed on the part of said section occupied by the United States as a part of its military post, which by the organic act and the subsequent admission of the state passed to the state and under the jurisdiction of its courts.</p> <p>3. Courts — Following State Decision.</p> <p>The rule that the construction of the Constitution or laws of a state by its Supreme Court is binding upon the federal courts does not apply, where such construction affects the jurisdiction of a federal court, which is under the duty of determining such matter for itself.</p> <p>[Ed. Note. — State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.)</p>

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

<p>In Bankruptcy. On certificate from referee.</p> <p>The following is the opinion of Richard S. Hunter, referee, on petition of trustee to vacate mortgages and answer of mortgagee:</p> <p>A petition of Louis C. Gillespie and other creditors of James Nassau was presented to the court on the 8th day of December, 1904, alleging, inter alia, that the said James Nassau was insolvent and had within four months committed an act of bankruptcy, in that he did on or about November 18, 1904, execute and deliver to Annie M. Phillips two mortgages of his real estate situate' at Kensington and Erie avenues, and Harrowgate and Nicetown Lanes, with intent to prefer the said Annie M. Phillips over his other creditors.</p> <p>On the same day Nassau signed and delivered to the petitioning creditors a writing which was attached to the said petition, wherein he stated that he was unable to pay his debts, and was willing to be adjudged a bankrupt on that ground. On December 12, 1904. Nassau was adjudged a bankrupt. The case was referred, and at a meeting before the referee on January 10, 1905, Augustus J. Loos was unanimously elected trustee, and was authorized to continue the business of the bankrupt, to wit, the manufacture of varnish at Kensington and Erie avenues on real estate covered by the mortgages.</p> <p>On November 17, 1904, Nassau executed and delivered to Annie M. Phillips two mortgages, one of them to secure the payment of $6,800, and the other to secure the payment of $10,000, in six months from their date, with interest at 6 per cent, per annum. The mortgages were duly recorded; the smaller a day before the larger. Both of them described and were secured upon all the real estate of Nassau, being a vacant lot of ground in the tenth survey district, situate at Harrowgate and Nicetown Lanes, and a lot of ground in the thirty-third ward of the city of Philadelphia, situate at Kensington and Erie avenues, with the buildings and improvements thereon erected, together with the plant, apparatus, fixtures, and appurtenances used in the late business pertaining to the manufacture of varnish, for which the improvements were constructed.</p> <p>On the 6th of February, 1905, the trustee, through his counsel, filed his petition before the referee, setting forth the above facts; setting forth, also, that Nassau was insolvent at the time of the transfer, that the consideration for the execution of the mortgages was an antecedent indebtedness of six years’ standing to 'Annie M. Phillips, secured only by promissory notes, and that the effect of the enforcement of the said transfer would be to sweep away the most valuable asset of the bankrupt, and to enable Annie M. Phillips to obtain a greater percentage of her debt than any other creditor of the same class; and averring that such transfer was In effect a preference in favor of Annie M. Phillips, and that at the time she received the said preference she, or her agent, Thomas M. Longcope, had reasonable cause to believe that it was intended thereby to give a preference. The petitioner further averred that the mortgages in question were incumbrances made within four months prior to the filing of the creditors’ petition, with intent and purpose to hinder and delay creditors: The petitioner prayed that an order be made on Annie M. Phillips why the mortgages should not be vacated and set aside.</p> <p>To this petition an answer was filed on February 16, 1905, by Annie M. Phillips, admitting the execution and delivery of the mortgages, and averring that the indebtedness had previously been secured by promissory notes, and a bond of James Nassau given for actual cash loaned to him; that at the time of the execution and delivery of the said mortgages neither she nor her agent, Thomas M. Longcope, had any knowledge of the insolvency of the said James Nassau, or any reason to believe that he was insolvent, or that the mortgages were given with intent to prefer.</p> <p>On Thursday, February 16, 1905, and upon various subsequent dates, evidence was taken at the office of the referee in support of the petition and the answer. The witnesses examined were Annie M. Phillips; Thomas M. Longcope, her agent; Albert H. Lupton, Nassau’s bookkeeper; James Nassau, the bankrupt, and William A. Gretzinger, a real estate broker, called by the trustee. 1</p> <p>From this testimony the referee finds the following facts:</p> <p>The indebtedness for which the mortgages were given was of long standing. Ten thousand dollars was lent in 1886, and the loan was renewed in 1892. Two thousand dollars more was lent in 1895; $3,000 in 1896; and $1,-500 in 1898 — making, with $300 of interest, a total of $16,800 of indebtedness. The relationship between Mrs. Phillips and Nassau was one of entire trust and confidence on her part, and it does not appear that she at any time was aware of his approaching insolvency. She did, however, become anxious to put the debt into better shape as far back as 1897, and made suggestions from time to time for better security. In the spring of 1904 Nassau agreed to give her a mortgage, but for reasons which do not very clearly appear, but which are stated to have been on account of Mrs. Phillips’s illness and absence from the city, the mortgages were not executed until November 17, 1904. Three weeks thereafter Nassau confessed his insolvency and was adjudicated a bankrupt.</p> <p>Two questions of facts arise in the case: (1) Was Nassau a bankrupt at the time of the execution of these mortgages? (2) Had Mrs. Phillips, or her agent, reasonable cause to believe that the mortgages were intended as preferences?</p> <p>1. As to the insolvency of the bankrupt on November 17, 1904, the bankrupt’s assets on October 31, 1904, when a trial balance was taken, were stated by the bookkeeper as follows:</p> <p>Cash ....................................................$ 37 24</p> <p>Outstanding accounts ....................................... 9,717 77</p> <p>Factory, plant, and real estate.............................. 16,042 36</p> <p>Fixtures and implements .................................. 2,267 96</p> <p>Bills receivable ........................................... 70 62</p> <p>Two shares of Philadelphia bourse stock.................... 150 00</p> <p>Due from salesmen ........................................ 79 98</p> <p>Value of stock on hand..................................... 4,000 00</p> <p>$32,365 93</p> <p>The liabilities according to the books were at that time $31,467.85. This would apparently show an excess of assets at that time of $898.08. A certain lot belonging to Nassau, and mortgaged for $1,500, was not included in this statement of assets. The value of this lot was estimated at widely varying figures; by the trustee at $1,700 above the mortgage; by Mrs. Phillips at $4,500 above the mortgage.</p> <p>On the other side, Nassau had borrowed from insurance companies on policies belonging to his wife $3,070, and on policies belonging to his daughter $1,520, making his total indebtedness $36,057.10. Should we accept the trustee’s valuation of the equity in the vacant lot, the liabilities would exceed the assets by about $2,000. If, on the other hand, we accepted the estimate of Mrs. Phillips, the assets would exceed the liabilities about $700.</p> <p>This is, of course, upon the supposition that the values of the real estatS entered in the trial balance are correct. The correctness of this valuation is questioned by the trustee, who called William A. Gretzinger, a real estate broker, doing business at 2025 East Dauphin street, and asked him what value he placed upon the property of Nassau at Kensington and Erie avenues. He appraised the buildings at $4,000 and the ground at $8,500, making a total of $12,500. The lot at Harrowgate and Nicetown Lanes he appraised at $2,500, at the rate of $1,000 per acre. He testified that the property at Kensington and Erie avenues was assessed for taxation prior to 1904 at $7,500, and in 1904 it was raised; to $9,500, which is the present assessment. This witness was cross-examined at length by Mr. Gilpin, counsel for the mortgagee. The witness figured the lot at 21,000 square feet, and apparently reached his estimate of $8,500 by valuing it as forty cents- a square foot. Being asked, “Tell us some other lot that you have derived your knowledge of values,” he answered: “The properties I have reference to are located in Frankford; ground similar to this being filled in with ashes, as all of this ground mostly is, all fixed on a basis of forty cents a square foot.” These lots were four or five squares from the railway, and not on a main thoroughfare. The Nassau lot is on Kensington and Erie avenues, and close to the railway, but the witness testified that this latter circumstance was a positive disadvantage, “an eyesore, and a nuisance of a railroad coming across,” the railroad being of no use to a manufacturing plant on account of the want of proper facilities. As to the buildings, he testified that they could be replaced for from $4,000 to $5,000, but had not a very close recollection of the buildings. He remembered, however, that they were brick, and about nine inches thick. He testified to a sale in the neighborhood of a piece of ground of 3,138 square feet to the railroad company for $500.</p> <p>The witness was also cross-examined concerning his valuation of the lot at Harrowgate and Nicetown. Lanes at $1,000 an acre, in comparison with another lot on Erie and Tulip street, which he valued at $4,000 an acre. This he explained by testifying that the more expensive lot had facilities for a railroad siding and was on grade, and that both the streets were opened.</p> <p>Mr. Longcope, called in rebuttal by the mortgagee, testified as to the vacant lot of 2i^ acres, that it would cut up, irrespective of the street on the city plan,, into 93 lots of 15 feet by 50 or 60 feet deep, which, at $150 a lot, would be $14,950. If the city plan was taken into account, 60 lots could be carved out of the property, which, at $150 a lot, would be $9,000, and, at $100 a lot, $6,000. Mr. Longcope had never seen the property, and knew of no sales in the neighborhood.</p> <p>The bankrupt, also called in rebuttal of Mr. Gretzinger’s testimony as to the value of the lot and improvements on Kensington and Erie avenues, stated that they cost, in 1890, $19,500; that they were made of hard brick, and were almost as good for the purposes of a varnish factory as when they were put up.</p> <p>The referee, while unable entirely to adopt either set of figures, is decidedly of the opinion that the real estate at Kensington and Erie avenues was carried on the bankrupt’s books at a price, far in advance of its real value. No allowance was made for the deterioration of a factory building, or for the fact that a building erected for a special purpose has little value in the general market. The assessment of 1904, made at a time when, with the object of securing increased revenue to the city, the values of property were taken, or intended to be taken, at their full selling price, is material. The assessment for the lot and buildings constituting the varnish factory was $9,500. It is carried on Nassau’s books (including the $7,000 mortgage)' at $23,000, The referee values it, under the evidence given at $15,000.</p> <p>The testimony with regard to the vacant lot is not very satisfactory. Gretzinger estimated it at $1,000 an acre “practically from ground in other sections similar bringing $1,000,” and explained that these sections were “Southwest section, West Philadelphia section, and Northeast section, the ground located in a similar neighborhood.” Longcope, on the other hand, fixes a value from the way in which the property would cut up into small lots, without showing any demand for such lots or a possibility of selling them.</p> <p>The referee values the lot at $1,500 an acre, being for the 2yz acres $3,750, subject to an incumbrance of $1,500, and values the equity of the bankrupt at $2,250.</p> <p>The assets of the bankrupt on October 31, 1904, should therefore be stated as follows:</p> <p>Gash ....................................................$ 37 24</p> <p>Outstanding accounts ..................................... 9,717 77</p> <p>Factory and plant (equity on mortgage of $7,000)........... 8,000 00</p> <p>Fixtures and improvements................................. 2,267 96</p> <p>Bills receivable .......................................... 70 62</p> <p>Phila. bourse stock (two shares)............................. 10 00</p> <p>Due from salesmen........................................ 79 98</p> <p>Estimated value of stock.................................. 4,000 00</p> <p>Equity in vacant lot...................................... 2,250 00</p> <p>$26,433 57</p> <p>And the liabilities as follows:</p> <p>As per books .'............................................$31,467 85</p> <p>On insurance policies ..................................... 4,590 90</p> <p>$36,058 75</p> <p>Showing an excess of liabilities over assets of $9,625.28.</p> <p>No evidence was given before the referee to indicate that any change for the better occurred in the bankrupt’s financial condition between October 31, 1904, and November 17, 1904, when the mortgages were given. At or about the time of the making of these mortgages, his estate was further diminished by the collection of accounts due, amounting to $1,785, by his son, and on the 8th day of December, 1904, he acknowledged himself insolvent, as a preliminary to the proceedings in bankruptcy.</p> <p>The referee finds that Nassau was insolvent at the time of the execution of the mortgages to Mrs. Phillips.</p> <p>2. The question remains whether Mrs. Phillips, or her agent, had reasonable cause to believe that he was insolvent at the time when the mortgages were given.</p> <p>The relation between Mrs. Phillips and the bankrupt was one of confidence and regard. They were first cousins, and, as she says, “more like brother and sister.” She advanced him from time to time considerable sums of money, with no further security than his own notes and bond. She stated before the referee that she would never under any circumstances have put him into bankruptcy, and there was an understanding between them as to the ultimate disposition of part of the moneys lent, which will be hereafter adverted to. Nevertheless, as time went on, she desired a business-like security for her advances, and suggested it as far back as 1897. Apparently, however, she did not insist upon it, as nothing was done to secure her until the spring of 1904, when Nassau promised to give her second mortgages upon his real estate. There was a delay in fulfilling this promise. The matter was again taken up through Mr. Longcope, her agent, in the fall of 1904, and on November 17, 1904, .the mortgages were executed. At that time, as the referee has found, Nassau was insolvent, and within three weeks thereafter declared himself to be so, for the purpose of taking advantage of the act of 1898. Mortgages given under such circumstances are most carefully to be scrutinized.</p> <p>Mrs. Phillips declared on the stand that neither then nor at any previous time did she suspect insolvency or approaching bankruptcy. Nassau had always punctually paid the interest on his obligations. It is quite evident, however, that she felt the necessity of further security, either for herself, or, as she states it, for her daughter after her death, and her desire to obtain it seems to have been partly caused by her interest in the welfare of Nassau. She intended, as Mr. Longcope testified, that $10,000 of his indebtedness to her should either be gradually liquidated, or, in case of her death, should be bequeathed by her to Nassau in her will. For this reason the indebtedness was divided into two mortgages — one of $6,800, and one of $10,000 — and the $10,000 mortgage was recorded on the day subsequent to the $6,800 mortgage, in order that the smaller mortgage might have a prior lien.</p> <p>Mrs. Phillips’ precise knowledge, or means of knowledge, as to the condition of the bankrupt, is less material than that of her agent, Mr. Longcope, who took charge for her of the obtaining of the mortgages, and with whom the actual dealings took place. Nassau was represented by J. B. Uhle, Esq., a member of the Bar. When Mr. Longcope asked for the mortgages, the bankrupt said that he would give them, but asked that the period of two months, for which they were originally drawn, should be extended to six months. This was accordingly done, and the mortgages were sent to Mr. Uhle’s office. Mr. Uhle told the bankrupt that he was very doubtful about the mortgages, if Nassau went into bankruptcy within four, months. When the mortgages had been prepared and executed, Longcope went over to Uhle’s office to ask him to fill in the date of the bonds. Mr. Longcope testifies: “Mr. Uhle then said, ‘Mr. Longcope, you realize in case of bankruptcy these mortgages would not take precedence?’ I said, ‘Mr. Uhle, you are raising a question that has never occurred to me. Is there any reason to think that Mr. Nassau is going into bankruptcy?’ He said, ‘No.’ I turned to Mr. Nassau and asked him if there was any reason for Mr. Uhle mentioning the question of bankruptcy. He said, ‘Not so far as I am concerned.’ ” This testimony is confirmed by the bankrupt, who says, “He [Mr. Longcope] said he hoped I did not entertain such a thought as going into bankruptcy, and I said I certainly did not.”</p> <p>Mr. Longcope made no further inquiries as to Nassau’s financial condition, made no examination of the properties covered by the mortgages, took no title policy, but did take searches. The mortgages were at once recorded. The bonds were not delivered until some 10 days later, after the searches had been procured.</p> <p>Mr. Longcope was asked the question, “Did he [Nassau] say he had any contemplation of going into bankruptcy?” He answered: “I cannot say. As near as I can remember, he put it in the same language as T am solvent.’ He left me with that absolute impression, and I was wondering why Mr. Uhle had used the word ‘insolvent.’ When Mr. Uhle handed me the mortgages, he said, ‘If Mr. Nassau went into bankruptcy these mortgages would not take precedence.’ ” This conversation occurred after the execution of the mortgages, but before they were recorded.</p> <p>The referee can feel no doubt as to the legal conclusion to be drawn from these facts. A creditor who has no security for cash advances to the debt- or, which would give her any preference over other creditors in case of his bankruptcy, asks for and obtains mortgages, giving a lien on the valuable and material asset of the debtor. She herself has no knowledge of his financial condition, and asks for these mortgages, partly from natural business caution and partly from a desire to benefit the debtor, who is her near relative, like a brother to her, and to whom she intends to bequeath the larger part' of his indebtedness. Her agent, immediately upon taking the mortgages, and before they are recorded, is warned by the debtor’s counsel that in case of bankruptcy these mortgages would give the creditor no priority. He asks the debtor whether he intentds or expects to go into bankruptcy and is answered, “No: not so far as I am concerned.” He makes no further inquiries, records the mortgages in such order of priority as will effectuate his client’s intention to make one of them an ultimate gift to the debtor, makes no examination of the property, and, when the searches show an assessment of less than one-half the value of the real estate stated to him by the debtor, contents himself by an inquiry of the debtor as to its correctness. The inference is irresistible that he judged it better to make no further inquiry. Had he made this injuiry he would, as an experienced man of business, have ascertained the facts rehearsed in this opinion, and must have come to the conclusion that Nassau was insolvent, and that these mortgages constituted a preference over other creditors.</p> <p>The law which governs this state of facts need not be dwelt upon. The knowledge of the agent is the knowledge of the principal, and she is affected with notice of all facts which would on inquiry have been brought to his attention. It is true that these facts must be such as to raise, not merely a suspicion, but a belief of insolvency. But, can it be doubted that this belief would inevitably have followed?</p> <p>The referee finds that the mortgagee had reasonable cause to believe that the bankrupt was insolvent at the time the mortgages were given.</p> <p>********</p> <p>Referee Hunter’s opinion on exceptions to the finding of the referee is as follows:</p> <p>Upon argument of these exceptions, especial stress was laid upon the finding of the referee that $4,590 was due from the bankrupt to his wife and daughter on the insurance policies of which they are the beneficiaries. Two of these policies are so expressed that if the wife or daughter, respectively, shall be living at the time when the policy shall become payable, the amount is to be paid to the wife or daughter; but, if they die before such time, it shall then be payable to the insured. The third is payable to him, if he survives the fixed period; otherwise to his wife. Loans were made by the insurance companies on these policies on the joint note of Nassau and his wife in two instances, and of Nassau and his daughter in the other instance, leaving a very small balance to the credit of the policy. The wife and daughter proved for the amount of these loans, and the referee debited Nassau with the amount of the loan in his finding. Mr. Gilpin for the claimant now argues that, as the interest of the wife and of the daughter in these policies is a contingent one, the loan made to Nassau by the insurance companies on these joint notes should not be considered as an indebtedness due by him.</p> <p>The situation is a peculiar one. The nominal creditors, the insurance companies, are secured by the pledge of the policies, and have made no claim before the referee. Their loans were in effect an anticipation of moneys to become due by them, either to the beneficiaries or the insured. The money was used by Nassau in his business, and, in the event of his death before the beneficiaries, the amounts payable to them on these policies will be reduced by the amount of the loan.</p> <p>Under the recent cases any insurance policy in which the bankrupt has an interest of present value passes to his trustee without regard to the surrender value fixed upon it by the insurance company. It cannot be said that there is no present value to Nassau, and hence to his creditors, in these policies. This is certainly the case with the policy in the John Hancock Company, which is an endowment policy payable to him if he survive the fixed period. It must be admitted that Nassau’s estate has a contingent interest, which will pass to the trustee. It is also evident that the rights of the trustee cap rise no higher- than that, of the bankrupt, and that the wife’s and daughter’s claim to. receive the proceeds of the policies, in case they are living when these policies mature, are in no wise affected by the bankruptcy.</p> <p>No case has been cited to the referee, or has been discovered by him, exactly analogous to the present. A contingent debt may doubtless be proved against the estate, and a sum retained by the trustee to meet the contingency. It does not follow, however, that this contingent debt is to be assessed as a present liability and cause the debtor’s liabilities to- outweigh his assets. The bankrupt appears entitled to the benefit of the doubt whether this contingent liability will mature into an actual one.</p> <p>The referee amends his finding that Nassau was insolvent, at the time of giving the mortgages to Mrs. Phillips, in the amount of' $9,624.28, by deducting from the said sum the amount of $4,590 borrowed on the policies of insurance, and finds that Nassau was then insolvent in the sum of $5,034.28.</p> <p>The referee sees no reason to alter in any other respect his findings of fact or law.</p>

At Law. On motion to show cause why an attachment should not issue against plaintiff, Harry E. Blood, for contempt of court.

<p>On Motion by Defendant to Quash the Service, and Motion by Plaintiff for Default.</p>

<p>1. Bankruptcy — Validity op Liens — Unrecorded Chattel Mortgage.</p> <p>A trustee in bankruptcy .representing general creditors only, none of whom were at the time of the bankruptcy armed with legal process authorizing a seizure of the bankrupt’s property, cannot take advantage of the failure of the holder of a chattel mortgage to strictly comply with the New York statute requiring statements in renewal to be filed before the expiration of each year.</p> <p>2. Chattel Mortgages — Apter-Acquired Merchandise — Law op New York.</p> <p>Under the law of New York a provision of a chattel mortgage on a stock of merchandise permitting the mortgagor to. sell the mortgaged goods in the usual course of business, the proceeds to be used only in paying the expenses of the business, in replacing articles sold, and in payment of the mortgage debt, does not render the mortgage invalid as to such after-acquired goods, where it does not appear that it was made in bad faith and for the sole benefit of the mortgagor.</p>

<p>Street Railroads — Lien under Massachusetts Law — Agreement to Issue Bonds.</p> <p>A provision in notes given by a Massachusetts street railroad company, . by which it agreed to issue to the holder certain of its bonds secured by a mortgage previously given as soon as a further issue of bonds thereunder should be authorized by the state railroad commissioners, whose authority was necessary before they could be legally issued, does not place the notes on an equality with the bonds previously issued, nor create an equitable lien on the mortgaged property which can be enforced by the courts, where no authority to issue the bonds was ever given by the commissioners.</p>

<p>1, Libel — Damages,.</p> <p>Where, in an action for injury to reputation and feelings sustained through a newspaper publication, false and libelous per se, the plaintiff waives all claim to punitive damages, and limits the demand to purely compensatory damages, it is the effect which the libel is calculated to have upon the minds of its readers, and not any actual intent on the part of the defendant to defame the plaintiff, that is material in the consideration of damages for the injury.</p> <p>2. Same — Question fob Juey.</p> <p>It is peculiarly within the province of the jury to determine the quantum of damages in an action for libel or slander, and unless there is a clear abuse of discretion on its part-the court will not disturb the verdict; the material question being, not whether the court thinks that the plaintiff was awarded a larger or a smaller amount of damages than the court would have allowed had the quantum of damages been left to its determination, but whether the amount of damages is so excessive as to cause the court to believe that the jury was actuated by prejudice, partiality or corruption in making its award.</p> <p>[Ed. Note. — For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 364.]</p> <p>(Syllabus by the Court.)'</p>

<p>1. Trade-Marks — Suit por Infringement — Jurisdiction op Equity.</p> <p>Tbe fact that the infringement of a trade-mark had ceased before the commencement of a suit in equity therefor does not deprive the court of jurisdiction, where the bill alleges a threatened and intended continuance of such infringement, which allegation was justified by the facts.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 9, 10; vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 89.]</p> <p>2. Same — Infringement by Corporation — Liability op Executive Officers.-</p> <p>The executive officers of a corporation, who were large stockholders, and had full management of its affairs, and instigated and controlled its action °in willfully infringing complainant’s trade-mark ánd simulating her labels, are jointly and severally liable with it for the infringement; and, where they directed and controlled its defense when sued therefor, the final decree in the suit is conclusive on them as to the matters adjudicated, including the damages found due complainant on an accounting, and a suit will lie against them to recover the amount of such decree from them individually, when, through their control and influence, they caused the corporation to transfer its property and to declare and pay dividends pending the suit against it, by which it was rendered insolvent</p>

<p>1. Railroads — Receivers—Powers of Federal Court — Insolvent Railroad Company.</p> <p>A United States court, in the exercise of its chancery powers and of a sound judicial discretion, may appoint a receiver for an insolvent railroad company, where its jurisdiction is invoked by a proper party, and it is shown that valuable results will accrue to the creditors and stockholders by continuing it as a going concern, and preserving the integrity of its property, which would otherwise be dismembered by means of separate suits.</p> <p>[Ed. Note. — Preservation and prevention of removal of property be- . yond jurisdiction pending litigation as ground for appointment of receiver, see note to Clark v. Brown, 57 C. C. A. 80.]</p> <p>2. Courts — Federal Jurisdiction — Transfer of Cause of Action.</p> <p>The fact that a cause of action was transferred to a citi2:en of another state for the purpose of enabling him to bring suit thereon in a federal court does not defeat the jurisdiction of such court, where the transfer was bona fide and absolute.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 865.]</p> <p>3. Same — Suit for Receiver — Ancillary Proceedings.</p> <p>Where a federal court has taken possession of the property of a railroad company by its receiver, appointed in a suit of which it had jurisdiction, it does not lose its exclusive jurisdiction to administer the property because other parties interested therein intervene to enforce particular rights, as for the foreclosure of a'mortgage, even though they may be citizens of the same state as the defendant or others adversely interested.</p> <p>[Ed. Note. — Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St L. & K. C. R. y. Trust Co., 36 C. C. A. 195.]</p>

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

<p>4 Injunction — Protection of Property from Injury — Relative Value of Interests Involved.</p> <p>Where the use made of its property by a defendant causes a substantial and continuous injury to the property of complainant, the right of complainant to protection in equity by injunction is not affected by the fact that defendant has large capital invested in its business, while the value of complainant’s property is comparatively small.</p> <p>2. Same — Delay Creating Estoppel — Alternative Relief.</p> <p>Defendant built and operated a large smelter, the dust and vapors from which caused material injury to the trees, vegetation, and crops on the farms of complainants, who for several years, however, made no attempt to enjoin the continuance of the wrong, although they brought actions for - damages, and during such time defendant largely increased the capacity and value of" its plant. Held that, while complainants were entitled to protection in equity, in view of their delay in applying for an injunction it would only be granted on condition of defendant’s refusal to pay the damages suffered by complainants in the past and not compensated for, and such as would result from the continued operation of the smelter in perpetuity, as the same should be determined by the court.</p>

<p>1. Seamen — Penalty for Wrongful Discharge — Shipping Commissioners’ Act.</p> <p>Rev. St. § 4527 [U. S. Comp. St. 1901, p. 3077], providing that seamen unjustly discharged before a month’s service shall be entitled to recover a month’s wages in addition to the wages earned, does not apply to seamen in the coastwise trade not signed before a shipping commissioner.</p> <p>2. Same — Wages—Settlement.</p> <p>Where seamen, after their discharge, through their attorney made a settlement of their wages with the master, agreeing upon the time when their service ended, they are bound thereby, and cannot thereafter maintain an action to recover additional wages.</p>

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

In Bankruptcy. Suit by a trustee in bankruptcy to follow goods and moneys alleged to have been improperly turned over by the receivers of the same bankrupt estate, before the appointment of the trustee, to the defendants. See Whitney v. Wenman, 198 U. S. 539, 25 Sup. Ct. 778, 49 L. Ed. 1157.

On Application for. Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,627 (T. D. 25,166), which reversed the assessment of duty by the collector of customs at the port of Newport, Vt., on merchandise imported by Charles W. Pierce.

<p>1. Sales — Sale ob Bailment.</p> <p>The bankrupt was a dealer in Agricultural implements and bought goods from claimant. In the fall, out of season, he wrote for certain articles to be shown at a fair, and they were shipped and billed to him as sold “subject to next spring’s terms.” In the spring, shortly before the bankruptcy, claimant made a demand for the goods, which was refused. Held, that there was nothing in the transaction to indicate a bailment, rather than a sale, or to overcome the presumption of ownership arising from the bankrupt’s possession, and that claimant was not entitled to recover the property from the trustee.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 7.]</p> <p>2. Same — Evidence—Goods Billed as Such — Effect of.</p> <p>That goods are billed to a party as though it was a sale, while not conclusive, is of more or less persuasive force.</p>

<p>On Motion by Defendant to be Allowed to Withdraw Notice of General Appearance, on the Ground of Mistake of Law.</p>

<p>On Application for Review of Decisions of the Board of United States General Appraisers.</p> <p>The decisions in question reversed the assessment of duty by the collector of customs at the port of New York, and related to the construction of paragraphs 435 and 545, Tariff Act July 24, 1897, the pertinent portions of which read as follows:</p> <p>“435. Diamonds * * * advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, and not set, ten per centum ad valorem.” Chapter 11, § 1, Schedule N, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676].</p> <p>“545. Diamonds and other precious stones, rough or uncut, and not advanced in condition or value from their natural state by cleaving, splitting, cutting, or other process, including miners’, glaziers’ and engravers’ diamonds not set, and diamond dust or bort.” Free List, § 2, 30 Stat. 197 [U. S. Comp. St. 1901, p. 1683].</p> <p>The opinion filed by the Board in one of the cases reads as follows (G. A. 5,783, T. D. 25,565):</p> <p>Sharretts, General Appraiser. The importations, the subject of these protests, consist of 120 industrial diamonds which are of the description known as bort, and, were it not for the fact that each stone has been pierced by a process of drilling or cutting, no dispute would have arisen regarding their right to free entry under the provisions of paragraph 545 of the free list, Act July 24, 1897. Because of the diamonds having been drilled, however, the collector assessed them with duty at 10 per cent, ad valorem under paragraph 435, against which exaction the importers duly protest, claiming the merchandise to be exempt from duty under paragraph 545.</p> <p>It will be observed that paragraph 435 provides for diamonds of two descriptions, namely: (1) Such as are capable of being cut and set as jewelry; (2) those not suitable for ornamental use because of their inferiority of color, etc., and which are intended for industrial purposes. Diamonds of the first description, .if set, become jewelry, as provided in paragraph 434; if cut, but not set, they are dutiable at 10 per cent ad valorem under paragraph 435, Those of the second description, if set in drills, dies, and other industrial instruments, would not be commonly known as jewelry, although excluded from free entry under paragraph 545 by terms. In re John Hope & Sons (O. C.) 100 Fed. 286. Miners’, glaziers’, and engravers’ diamonds, although cut to some extent for the purpose of giving a superior cutting surface to the stones, are nevertheless free Under paragraph 545, if not set; and, finally, diamond dust is neither capable of being cut nor set, and hence it would seem that the limitations applying to diamonds of the first kind are not alike applicable to those of the second description. Certainly they do not apply to diamond dust or bort.</p> <p>It is obvious that Congress intended that a class of merchandise not produced in this country, and which is used exclusively for industrial purposes, should be exempt from duty, and we cannot suppose that miners, engravers, and glaziers are to be tbe sole beneficiaries of tbe tariff act. The bort In question was designed for use of wire makers — a very important industry in this country— and, as shown by the testimony, is in the crudest form in which bort can be imported for that purpose. Each of the 120 stones was rough drilled abroad, for the reason that such drilling cannot be done in this country. After importation these stones have to be re-cut and; re-bored, in order to complete a die suitable for drawing wire to a specific size. It is only with the unfinished article that the Board is now dealing.</p> <p>The evidence further shows that the diamonds in dispute are commercially known as “drilled bort,” and inasmuch as this substance is provided for in paragraph 545 without qualifying words, it follows that a prefix added to the word “bort” does not exclude it from entry under this paragraph. Shoellkopf v. U. S., 71 Fed. 694, 18 C. C. A. 301; Chew Hing Lung v. Wise, 176 U. S. 156, 20 Sup. Ct. 320, 44 L. Ed. 412. Precisely the same issue as that presented in the cases before us was decided adversely to the government in the United States District Court for the District of Connecticut in U. S. v. Fifteen Drilled • Diamonds, 127 Fed. 753. On the authority of that decision we sustain the claim in the protests that the bort in question is entitled to free entry.</p> <p>The collector’s decision in each case is reversed.</p>

On Application for Review of Decisions of the Board of United States General Appraisers. For decision below see G. A. 5,841, T. D. 25,760, which related to certain paste imitations of rock crystal, in the form of plano-convex lenses, imported at the port of New York by Harry Robinson and American Electric Novelty & Manufacturing Company.

<p>Customs Duties — Protest—Sufficiency—Specification of Wrong Invoice.</p> <p>Certain imported merchandise, covered by an entry embracing three invoices, was all subjected to the same rate of duty, which, it appeared, was excessive as to one of the invoices. In protesting against the rate of duty the importer specified one of the two invoices on which duty was correctly assessed. Held, that the protest should be considered restricted to the invoice which it specified.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,051, T. D. 23,426, which affirmed the-assessment of duty by the collector of customs at the port of New York on merchandise imported by George Fueders & Co,.

<p>Sales — Right op Stoppage in Transit — Duration op Transit.</p> <p>Goods bought, but not paid for, were shipped by the seller, addressed to the street number of the purchasers’ store. On their arrival in the city, they were delivered by the railroad company to a local transfer company having a general order from the purchasers to receive goods in their behalf, and were taken to the store,. which was found closed because of the purchasers’ insolvency. An adjudication of bankruptcy followed; the goods being held in storage by the transfer company. Held that, not having reached the destination contemplated by the shipper's directions, the goods were still in transit, and subject, in the hands of the local company, to the seller’s right of stoppage, as against the trustee of the bankrupts.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent Dig. Sales, § 838.J</p>

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

<p>Counties — Claims against by Subcontractors — Iowa Statute.</p> <p>Code Iowa, § 3102, giving a subcontractor a claim against any public corporation for which he has furnished labor or materials for use in the construction of any public building or bridge, but providing that such claim shall be made “by filing with the public officer through whom the payment is to be made an itemized sworn statement of the demand,” is to be strictly construed, and the filing of the itemized statement required is essential to the establishing of an enforceable claim thereunder against a county.</p> <p>[Ed. Note. — Eor cases in point, see vol. 13, Cent. Dig. Counties, § 313.1</p>

<p>In Bankruptcy. On rule to show cause.</p>

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

<p>In Equity. On plea.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<p>Overruling Demurrer to Bill of Discovery.</p>

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

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

<p>Rule to Amend Suit.</p>

<p>On Rule to Show Cause Why William S. Tryon should Not be Adjudged in Contempt, of Court.</p>