Volume 141 — Federal Reporter

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

<p>Indians—Introducing Liquor into Indian Country—Police Power of United States.</p> <p>The police power of the United States can only be exercised where the legislative authority of Congress excludes territorially all state legislation, and where the United States has conveyed under its land laws lands within a state ceded to it by an Indian tribe, and such lands have passed into the ownership of individuals and a municipality of the state which has been formed thereon, they are no longer subject to the provisions of Rev. St. § 2139, as amended by Act Jan. 30, 1897, c. 109, 29 Stat 506, making it an offense to introduce liquor into the Indian country; nor can that law be retained in force over such lands by agreement with the Indians in the contract or treaty of cession, the police power of the state to regulate the sale of liquor thereon being exclusive.</p>

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

<p>Shipping—Contract op Affreightment.</p> <p>A contract between the consignee 'of a shipment of lime and the carrier construed, and held to be one for the payment of a bonus above the freight, and not to have been discharged by the payment of the freight at the usual rate by the consignor and its acceptance by the carrier.</p>

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

<p>1. Receiver—Suit—In a Foreign Jurisdiction.</p> <p>A receiver in chancery of an Insolvent corporation, appointed by the United States Circuit Court for the Southern District of Iowa, being authorized thereto by the court appointing him, brought suit in equity in the United States Circuit Court for the District of Colorado for the recovery of a fund, from a resident of the latter state, alleged to be held in trust for the benefit of creditors of the estate. Held, that such receiver had no legal status to maintain such suit in a jurisdiction foreign to that appointing him, even though leave to institute such suit was granted by the Colorado court, and although the bill alleged that there were no creditors of the insolvent corporation in the state of Colorado.</p> <p>[Ed. Note.—Actions by and against receivers of federal courts, see note to J. I. Case Plow Co. v. Finks, 26 C. C. A. 49.]</p> <p>2. Equity—Demurrer to Bill—Judgment.</p> <p>Where a demurrer to the bill is general, and special for the want of jurisdiction, the judgment sustaining the demurrer solely on the ground of want of jurisdiction should be limited accordingly, as a decree of dismissal of the bill concludes the defendant on the merits.</p> <p>(Syllabus by the Court.)</p>

This was an action by Bear against the Chicago Great Western Railway Company to recover the value of a horse alleged to have been killed because of the failure of the defendant to maintain fences and cattle guards inclosing its right of way as required by the Minnesota statutes. For some distance in the vicinity of St. Charles, Minn., the railroad of the defendant and that of the Chicago and Northwestern Railway Company are parallel and their rights of way adjoin.

<p>1. Writ op Error—Review—Request op Both Parties por Peremptory Instructions.</p> <p>Where, at the close of the evidence both parties request peremptory instructions, the giving of one is a conclusive finding in favor of such party on every disputed issue of fact, and the only questions for determination by a reviewing court are whether there was any substantial evidence to sustain such findings and whether there was error in the declaration or application of the-law.</p> <p>2. Internal Revenue—Action to Recover Seecial Taxes—Evidence.</p> <p>In the assessment of special taxes the officers of the internal revenue act in a quasi judicial capacity, and in an action to recover such taxes the introduction in evidence of the assessment list, regular in form, makes a prima facie case for the government.</p> <p>8. Same—Dealers in Malt Liquors.</p> <p>To render one who “sells or offers for sale” malt liquors subject to special tax as a dealer in malt liquors, under Rev. St. § 3244 [17. S. Comp. St. 1901, p. 2098], his ownership of such liquors is not essential.</p> <p>4. Same—Express Companies.</p> <p>The local agents of an express company in a prohibition state took orders from persons desiring beer and forwarded-the same to breweries in another state. The breweries delivered the beer to the company for shipment to the agent who sent the order charging the price to the company, and having no knowledge of the local customer. On its receipt the agent stored the beer in the company’s warehouse until it was called for, and then delivered it to the customer, collecting the price and the express charges, and accounting to the company for the same. He sometimes also sent orders which had not been requested, and delivered the beer to persons who thereafter applied for it. No receipts were taken from persons to whom beer was delivered, and their names did not appear on the company’s books. When beer was not called for it was returned to the breweries, and the company given credit therefor. The company received nothing except the usual charges for transportation. Meld, that the company was not merely a carrier nor a commercial broker in the transaction, but was, in effect, a commission merchant, and as such was subject to special tax under Rev. St § 3244 [17. S. Oomp. St. 1901, p. 2098], as a dealer in malt liquors at each of the agencies where such business was carried on.</p>

In the summer and fall of the year 1902, one J. M. Ellis, under a contract with the appellees, was constructing for them a business building upon their lot in the town of Mineo in the Indian Territory. Between July 29 and November 13, 1902, one J. B. Pope sold and furnished to Ellis building material used in such construction to the amount of $952.30, and was paid thereon $368.40, leaving unpaid a balance of $583.90.

Counsel agree' on appellants’ statement of the case as follows: This case is an appeal from a decree of the United States Circuit Court for the Western District of Louisiana refusing to vacate an order appointing a receiver for the Davidson-Wesson Implement Company, Limited, and dissolve the writ of injunction restraining the officers of said corporation from managing or' controlling its affairs, which decree continued the receiver appointed by said court in control of the…

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

<p>1. Master and Servant—Injury to Servant—Contributory Negligence.</p> <p>Defendant maintained in its mill a drum used to operate a cable which passed around it, and which was required by the statutes of the state to be boxed or guarded for the protection of workmen; but it was not so guarded. Plaintiff had worked in the immediate presence of the drum and cable for four years, and knew its location and condition. In passing from one part of the mill to another, instead of passing over a platform which was comparatively safe, he undertook to jump over the drum, when his leg was caught by the cable and crushed against the drum. Held that, in view of the fact that the dangerous character of the machinery was so generally recognized as to be made a subject of legislation and was obvious and well known to plaintiff, he was guilty of contributory negligence in unnecessarily subjecting himself to the danger, and was precluded thereby, as well as by his assumption of the risk by remaining in the employment, from recovering damages for the injury because of defendant’s negligence.</p> <p>[Ed. Note.—For eases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 706-709.]</p> <p>2. Same.</p> <p>A servant who unnecessarily exposed himself to a known and great danger, and was injured, cannot escape the charge of contributory negligence because the unknown negligence of the master made the danger greater than he supposed it to be.</p> <p>3. Same—Custom of Negligence.</p> <p>A servant, who contributes to' his own injury by unnecessarily subjecting himself to a known danger, is not relieved from the charge of contributory negligence, nor from its effect, by the fact that it was a custom of other employes to take the same risk.</p>

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

Florence Williamson sued the insurance company to recover the amount of a total loss under three policies of fire insurance, and in addition thereto damages for vexatious delay in payment, and attorney’s fees. During the progress of the litigation which ensued the company tendered and deposited in court the entire amount of the policies and costs to that time.

<p>Master and Servant—Action fob Injury of Servant—Questions fob Juey.</p> <p>Plaintiff, a young woman 19 years old, was employed with other women on the second floor of defendant’s factory, which was built on a side hill so that such floor on one side was about on a level with the ground and a window on that side was customarily used by plaintiff and her co-employes as a passage for entering and leaving the room, and also as a seat. A shaft projected through the building, near and a little below the window, having a band wheel on its outer end. By a law of the state (Bates’ Ann. St. Ohio, §§ 4364-69, 4364r-89e), shafts in factories near the floor were required to be boxed, and where women were employed the employer was required to provide seats, but such shaft and wheel were not boxed, nor were seats provided other than the window. While sitting in the open window plaintiff’s skirt was caught by the revolving wheel, and she was dragged outside and seriously injured. She was not warned of any danger in so using the window. Held, in an action to recover for the-injury, that the determining issues were whether the window was properly used as a passage and seat with the knowledge of defendant, so as to impose upon it the duty of boxing the shaft and band wheel, or whether it was negligent as a matter of fact in not so doing, and whether, under-all the circumstances, plaintiff in seating herself in the window assumed the risk or was guilty of negligence contributing to her injury, all of which issues were for the jury under proper instructions.</p>

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

Arrighi sued the railroad company to recover damages for an injury to his hand, caused as he alleges by the negligence of the company in not equipping its cars asj provided by section 2 of the act of Congress of March 2, 1893 (27 Stat. 531, c. 196 [U. S. Comp. St. 1901, p. 3174]), .relating to automatic couplers.

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

<p>Election of Remedies—Acts Constituting Election—Bringing of Suit.</p> <p>Where a party has two remedies inconsistent with each other, the bringing and prosecution of a suit based on one theory, with knowledge of his rights and of the facts, is an election of such remedy, and he cannot thereafter maintain a suit to enforce the alternative remedy.</p> <p>[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Election of Remedies, § 12.]</p>

<p>1. Patents—Suit fob Infringement—Equity Jurisdiction.</p> <p>The fact that a defendant, sued for infringement of a patent by making and selling the patented machine, has made and sold but one such machine, and that pending the suit the purchaser was licensed by complainant, does not deprive a court of equity of jurisdiction to award an injunction, unless it further appears clearly that there is no reason to apprehend the making by defendant of other infringing machines.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, § 492.]</p> <p>2. Same—Infringement—Sat,e of Parts of Combination.</p> <p>Where all the parts of a patented combination were old, and the only invention is in their new arrangement, one who makes and sells the old parts is not chargeable with infringement, provided' it was done with no purpose to contribute to plans of another intending an infringement by combining such parts in accordance with the patent.</p> <p>3. Same—Suit fob Infringement—Disclaimer of Intention to Infringe in Future.</p> <p>The assertion in the answer of a defendant, sued for infringement of a right to make the devices complained of as an infringement, in the absence of a very express denial of a purpose to exercise the right claimed, justifies the presumption that further infringement is to be apprehended, if that device shall prove to be an infringement, and the coupling with such assertion of a general averment that defendant does not inténd to employ the patented device or to interfere with the rights 'of complainant cannot be construed as a disclaimer of an intention to continue to make the infringing device.</p> <p>4. Same—Validity and Infringement—Process and Machine for Delint- ■ ing Cotton Seed and Hulls.</p> <p>The Johnson patent, No. 506,268, for a process and apparatus for separating cotton seed and hulls from the fiber adhering thereto after ginning, was not anticipated, and discloses invention as to the process claim; but the mechanical claim, as well as patent No. 654,550, to the same patentee for improvements thereon, is void for lack of patentable invention, being for an aggregation of old parts, each of .which performs its old function. The process claim of patent No. 506,268 also' held, infringed by defendant, which built and sold apparatus adapted and intended to be employed to practice such process, and thereby contributed to infringement by the user.</p> <p>On Rehearing.</p> <p>5. Same—Costs.</p> <p>. Rev. St. §§ 973, 4922 [U. S. Comp. St. 1901, pp. 703, 3396], which provide that a plaintiff or complainant recovering judgment or decree for infringement of part of a patent shall not recover costs, where the claims of the patent were too broad and no disclaimer was entered before suit, do not apply to the costs in an appellate court, where the decree below dismissing the suit is found erroneous, and the complainant was compelled to appeal to obtain the relief to which he was entitled.</p>

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

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

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

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

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

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

<p>Patents—Feeding Seed-Cotton to Gin—Infringement.</p> <p>The apparatus covered by claims Nos. 1, 2, 9 and 12 of patent No. 472,607, dated April 12, 1892, granted to Stephen D. Murray, assignor to William Burr and John H. Deems for “Improvements in Apparatus for Elevating, Distributing, and Feeding Seed-cotton to Gins,” and of claim No. 8 of patent No. 644,532, dated February 27, 1900, granted to Stephen D. Murray for “Improvements in Cotton-elevators and Gin-feeders,” if not void for want of invention must, in view of the prior art, receive such a narrow and limited construction as to negative infringement (Syllabus by the Court.)</p>

<p>1. Patents—Suit for Infringement—Preliminary Injunction.</p> <p>Where the validity of a reissue patent has been adjudged by the Circuit Court of Appeals, a defense of laches in applying for the reissue, set up by a defendant in a subsequent suit for its infringement, is not sufficient ground for refusing a preliminary injunction, where infringement is not denied.</p> <p>2. Same—Traveling Contact for Electric Railways.</p> <p>A preliminary injunction granted, restraining infringement of the Van Depoele reissued patent, No. 11,872 (original No. 495,443), for a traveling contact for electric railways on a prior decision sustaining its validity.</p>

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

In Equity. On final hearing. This was a bill, filed April 25, 1902, by Alfred Kessler and others, minority stockholders of the Ensley Land Company, against the Ensley Company and others, in right of the Land Company, which refused to sue, to set aside the conveyance of a choice body of its lands, which the bill alleges were purchased by four of the defendants, in fraud of the Land Company.

At Law. Action to recover damages for personal injury. This case was pending in the United States Circuit Court for the District of Washington, in the Western Division of said District, on the 2d day of March, 1905, on which date the act of Congress dividing the state of Washington into two judicial districts went into effect, and pursuant to that statute the case was transferred and the record certified to the United States Circuit Court for the Western District of…

<p>1. Pasties—Mtsnomeb of Defendant—Amendment.</p> <p>The plaintiff’s statement in an action for personal injury' against a foreign corporation, alleged to be a corporation of New Jersey, specifically set out tbe facts, clearly indentifying _ the defendant, the work in which it was engaged, and the time and place of the injury. There were in fact two corporations, closely connected and having the. same name, except that one was “of New Jersey” and the other “of New York.” Both had the same resident agent, on whom the process was served, and the same attorneys, who entered appearance for defendant and prepared the case for trial, when it was discovered that the New York corporation was in fact the one doing the work. Held, that the court had power under Rev. St. §§ 948, 954 [U. S. Comp. St. 1901, pp. 695, 696], to permit plaintiff to amend by substituting the name of the real defendant intended, and that such power would be exercised, especially where objection was not made until such time had elapsed as would bar a new action.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Parties, §§ 88-90, 164, 166.]</p> <p>2. Masteb and Servant—Action fob Injury to Servant—Question for Jury.</p> <p>The question of the liability of a defendant for an injury to plaintiff, a boy 16 years old in its employ, on the ground that defendant’s foreman required him to perform an act which subjected him to a danger which a foreman exercising ordinary prudence would not have subjected him to, held one for the jury under the evidence.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent Dig. Master and Servant, § 1042.]</p>

<p>In Admiralty. Suit for injury to vessel while discharging.</p>

<p>In Admiralty. Suit by seaman to recover for personal injuries.</p>

<p>Master and Servant—Injury to Employé—Negligence op Fellow Servant.</p> <p>A mate and floatman belonging to the same crew, having the same employer, and being engaged in a common object, although of different rank, and working on different lines to accomplish the undertaking, are fellow servants, and the negligence of the mate, whereby the floatman was injured, is the negligence of his fellow servant; and neither the vessel nor its owner is chargeable with the consequences of such negligence, in the absence of evidence showing that the owner was negligent in the selection of such servant.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 492.</p> <p>Who are fellow servants, see note to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>(Syllabus by the Court.)</p>

<p>Internal Revenue—War Revenue Act—Pipe Line Companies.</p> <p>The provisions of section 27 of the War Revenue Act of June 13, 1898, c. 448, Schedule B, 30 Stat. 464 [U. S. Comp. St. 1901, p. 2306], imposing on persons, firms, corporations, or companies “owning or controlling any pipe line for transporting oil or other products, whose gross annual receipts exceed two hundred and fifty thousand dollars,” a special tax on the excess of receipts above such amount, apply only to receipts from the transportation business, and to persons or companies engaged in such business; and a company engaged in the business of producing and buying natural gas, which it conveys by means of pipes to a city, where it distributes and sells the same to consumers, is not engaged in the business of transportation, within the meaning of the act, nor subject to the tax on the excess of its annual receipts from its business above $250,000.</p>

<p>In Equity. On complainant’s motion for a preliminary injunction, and on defendant’s motion to dismiss bill for want of equity.</p>

<p>1. Courts—-Federal Courts—Following State Practice.</p> <p>•Tbe statutes of a state regulating practice, and the construction given them by the highest court of the state, are binding upon federal courts sitting within the state in actions at law.</p> <p>[Ed. Note.—For cases in point, see vpl. 13, Cent. Dig. Courts, § 957.</p> <p>State laws as rules of decision in federal courts, see notes to Hill v. Hite, 11 C. C. A. 71; Wilson v. Perrin, 29 C. C. A. 553.]</p> <p>2. Dismissal—Iowa Statute—Final Submission oe Case to Jury.</p> <p>Under Code Iowa, § 3764, which provides that an action may . be dismissed by the plaintiff “before the final submission of the case to the jury,” where on motion at the close of plaintiff’s evidence the judge directed a verdict for defendant, and one of the jurors designated as foreman was in the act of signing a verdict by direction of the court, the case had been finally submitted, and an announcement of dismissal then made came too late.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Dismissal and Nonsuit, §§ 15, 16.]</p>

<p>Bills and Notes—Forged Indorsement—Recovery of Payments—Pleading.</p> <p>In an action to recover money paid by plaintiff to defendant on a check bearing a forged indorsement of the name of the payee, as money belonging to plaintiff paid out through mistake and without consideration, delay in notifying defendant of the forgery, if such as to defeat’ recovery, is matter of defense, and need not be negatived in the declaration, nor is an allegation of demand necessary.</p>

<p>Brrxs and Notes—Forged Indorsement—Recovery of Payments—Defenses.</p> <p>Where plaintiff by honest mistake paid money to defendant upon a check bearing a forged indorsement, mere delay in notifying defendant of the discovery of the forgery, although unnecessary and unreasonable, will not defeat the right to recover back the money paid, in the absence of evidence that the delay has worked damage to defendant.</p> <p>[Ed. Note.—For cases in point, see vol. 7. Cent Dig. Bills and Notes, § 12J3.]</p>

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

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

<p>1. Sales—Article to be Manufactured—Implied Warranty of Fitness.</p> <p>Where a manufacturer contracts to supply an article which he manufactures, to be applied to a particular purpose known to him, so that the buyer necessarily trusts to the judgment and skill of the manufacturer, there is an implied warranty that it shall be reasonably fit for the desired purpose, and the seller is liable for any latent defect, not disclosed to the purchaser, either in material or workmanship.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 772, 774.]</p> <p>Contracts for sale of things to be produced or manufactured, see note to Star Brewery Co. v. Horst, 58 C. C. A. 363.]</p> <p>2. Same—Steam Boiler eor Tua.</p> <p>Where a contract to manufacture a boiler for a tug provided that it should be satisfactory to the engineer, the fact that the boiler was received by him and put in the tug does not necessarily constitute an acceptance, nor exclude the implied warranty of fitness by the manufacturer with respect to defects which were discoverable only by actual use.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 772-774, 818. ]</p> <p>3. Same—Breach op Warranty—Measure of Damages.</p> <p>The measure of damages for breach of the implied warranty of the manufacturer of the fitness of a boiler built for a tug and placed therein is the cost of making it sound and fit for the purpose for which it was intended, and compensation for the loss of the use of the tug while the ■ work was being done, which may reasonably be supposed to have been within the contemplation of the parties.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1284-1290.]</p> <p>4. Pasties—Action on Contbact—Use oe Fictitious Name.</p> <p>Where the individual owners of a tug operated the same under the name of the “Tow Boat Company,” and in such name contracted for a boiler to be built and placed therein, but there was in fact no corporation by that name, a claim for damages for breach of the manufacturer’s warranty of the boiler is properly prosecuted in the name of the owners as individuals.</p>

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

<p>Habeas Corpus.</p>

<p>Bankruptcy—Summary Order to Pay Over Money—Grounds.</p> <p>A bankrupt should not be summarily ordered to pay over money or deliver property to his trustee, unless the court is morally certain that he has been guilty of fraudulent concealment and that obedience to the order can be enforced. That he has failed to account satisfactorily for goods which went into his business is not sufficient to warrant such an order, where he denies the concealment of any money or property belonging to the estate, and the fact of concealment has not been made to appear by convincing evidence.</p>

The following is the full charge given by Taylor, District Judge, to the jury: The testimony in this case having been completed, it now becomes my duty to define the law applicable to the facts given in evidence, and to instruct you as to the rules of law which you are to consider, and by which you are to be controlled, in 'weighing and construing the testimony. It is for you, and for you alone, to determine what the facts are.

Norgate sued the railroad company to recover damages for injuries to his person, caused as he alleges by the negligence of the company.

<p>Appeal and Cross-Appeal from the District Court of the United States for the Northern District of California.</p> <p>See 125 Fed. 786.</p>

<p>Appeals from the District Court of the United States for the Northern District of California.</p> <p>These appeals grew out of the same accident, and were argued and submitted together; the cause being a collision in the Bay of San Francisco between the ferry steamers Sausalito and San Rafael, by which the latter was sent to the bottom of the bay, where she has ever since remained a total wreck. Both steamers were owned and operated at the time by the North Pacific Coast Railroad Company, in connection with its railroad, for the transportation of its passengers and freight between the city of San Francisco and the Sausalito terminus of its road. The accident occurred on the 30th day of November, 1901. On the 17th day of September, 1903, that company filed in the court below its verified petition, by which it sought, not only to obtain a limitation of its liability, under and pursuant to the provisions of Act Cbng. March 3, 1851, c. 43, 9 Stat. 635, subsequently substantially incorporated into Rev. St. §§ 4282-4290 [U. S. Comp. St. 1901, pp. 2943-2948], but to obtain a decree relieving it of any liability by reason of the matters and things alleged in its petition. It was therein alleged, among other things, that most of the passengers upon the San Rafael were rescued and saved; that “all or most” of the merchandise, personal property, baggage, and effects were lost, and that nothing remained of the steamer San Rafael but four of her iron boats, the aggregate value of which did not exceed $400; that at the time of the collision and of the wrecking of the San Rafael the amount of her “freight pending was $40.98, that is, $3.48 prepaid freight, and $37.50 prepaid passage money,” and no more; thát the value of the San Rafael and her freight pending “immediately upon, at, and after the happening of the misfortune aforesaid, did not and does not exceed the sum of $440.98.” The petition also alleged that one J. S. McCue had commenced an action in the superior court of the city and county of San Francisco against the petitioner to recover from it damages in the sum of $300,000 for injuries alleged to have been sustained by him while a passenger on the San Rafael at the time of the collision, and had also commenced an action in the superior court of Marin county, Cal., against the petitioner to recover damages in the sum of $500 for merchandise alleged to have been lost by. him by reason of the collision, and that various other persons, claiming to be similarly injured and damaged, will or may bring similar demands against the petitioner. The petition contained the usual prayer, and on the 21st day of December. 1903, a bond for the appraised value of the San Rafael and her freight pending was filed, and on the same day an injunction and monition were issued, the latter of which was returned into court showing due publication.</p> <p>On the 5th day of April, 1904, the widow and children of one Alexander Hall, by Patrick Cassidy, their guardian ad litem,, appeared as claimants, and, without waiving their right to contest the sufficiency of the petition in point of law as well as fact, alleged, among other things, that Alexander Hall was one of the petitioner’s passengers on board the San Rafael at the time of the collision in question, which collision they alleged was caused by the gross carelessness of the petitioner, its servants and employes, in so navigating the two steamers as to bring them together, resulting in the sinking of the San Rafael and the death of Hall, for which damages were asked in behalf of his widow and children in the sum of $50,000.</p> <p>On the 6th day of April, 1904, J. S. McCue filed in the court below a paper entitled “Exceptions and Objections of J. S. McCue,” concluding with a prayer that the court deny and dismiss the petition, which paper the court treated as an answer thereto. At the same time McCue filed a claim against the petitioner for the sum of $300,000 as damages alleged to have been sustained by him in the collision, in which he alleged, in substance, that he was a passenger of the petitioner on board its steamer San Rafael at the time in question, on one of her trips from San Francisco to Sausalito, during which time the petitioner’s other steamer Sausalito, was making one of her trips from Sausalito to San Francisco, when, near Alcatraz Island, the San Rafael was run into by the Sausalito, through the gross carelessness of the officers of each of the boats, by which collision the San Rafael was sunk, and the claimant seriously injured in the particulars therein specifically set forth, for which injuries he demanded damages in the sum of §300,000. In his “Exceptions and Objections” to the petition McCue alleged, among other things, substantially the same facts, and also set up in defense of the petition that, inasmuch as the collision which inflicted his injuries was brought about by the fault of both steamers and their respective masters, the petitioner was not entitled to any limitation of its liability without the surrender of both steamers, and accordingly prayed that the petition be denied and dismissed. This point ron the part of McCue was overruled by the court below, the court saying, in its opinion: “It is a sufficient answer to this to say that the petitioner does not seek to limit any liability which it may be under as owner of the steamer Sausalito, and in my opinion the right of the respondent, or any other person injured by the collision referred to, to proceed against the steamer Sausalito, or the petitioner, in so far as that vessel is liable for damages growing out of such collision, is not affected by this proceeding. The petitioner does not allege that it is the owner or has ever been the owner of the steamer Sausalito, and the decree in this case will be restricted to its liability as owner of the steamer San Rafael. There was no evidence given upon the trial bearing upon the allegation of the petition that the collision was the result of inevitable accident. The claim of the petitioner for exemption from all liability must therefore be denied, and a decree entered limiting its liability to the appraised value of the San Rafael and freight pending. Further hearing of the case upon the question of the amount of damages may be brought on by either party, upon notice to the other.” In accordance with this conclusion, the court below entered a decree, on the 2d day of November, 1904, adjudging and decreeing “that the default of each person and all persons who may claim to have suffered damages or loss on said voyage or resulting from said collision, and who have not heretofore presented his or their claims herein pursuant to said monition aforesaid, be, and are hereby, adjudged herein to be forever barred; that the petitioner North Pacific Coast Railroad Company, a corporation, is entitled to limit its liability as owner of the steamer San Rafael, if any liability there be, for and on account of the matters and things in its said petition alleged; and that the claim of petitioner for exemption from all liability is denied, and its liability as owner of the steamer San Rafael be, and the same is hereby, limited to the appraised value of the said steamer San Rafael, with its freight pending, hereby adjudged to be the sum of §425.23, together with interest thereon, from December 21, 1903; and that the further hearing as to the amount of damages may be brought on upon notice by either party; and that such matters as are not herein specifically adjudged, be and áre reserved for further hearing and consideration.”</p> <p>Further hearing in respect to the matter of damages was subsequently brought on, resulting in findings by the court below made and entered December 16, 1904, to the effect that the collision in question was caused by the fault of both steamers and their respective officers, and that McCue had sustained damages by the collision to the extent of §1,500, and that the widow and children of Alexander Hall had been damaged by the death of the latter in the sum of §5,000, upon which findings there was entered, on the 5th day of January, 1905, a decree in favor of McCue against the petitioner in the sum of §1,500, with costs, but with a limitation to the effect that satisfaction of the decree should “be limited to such portion of the sum of four hundred twenty-five and twenty-three one-hundredths (425 23-100) dollars, together with interest thereon from December 21, 1903, as may be on the further proceedings herein apportioned to said J. S. McCue, upon a consideration of all judgments or decrees rendered against said petitioner herein,” and further adjudging “that the full limit of the liability of said petitioner, as owner of said steamer San Rafael, for or on account of any matter or thing alleged in said petition, is hereby limited to the said sum and value of four hundred twenty-five and twenty-three one-hundredths (425 23-100) dollars, together with interest thereon from December 21, 1903, until the said sum and interest shall, upon the proper order of this court therefor, be paid into the register of this court.” A similar decree, with similar limitations and provisions, was at the same time entered by the court below in favor of Cassidy, as guardian ad litem of the widow and children of Alexander Hall, against the petitioner North Pacific Coast Railroad Company, for $5,000. Meanwhile, to wit, on the 21st day of November, 1903, McCue brought in the same court a libel against the steamer Sausalito and the North Shore Railroad Company, which had then become the owner of the steamer, having acquired the same from the North Pacific Coast Railroad Company, in which libel McCue set up substantially the same matters which he alleged in his former pleadings, exceptions to which, upon the ground that the libelant could not proceed against the steamer and its owner jointly, were sustained by the court on January 13, 1904, with leave to the libelant to amend.</p> <p>Accordingly, on the 18th day of January, 1904, McCue filed an amended libel against the steamer Sausalito, alleging the same facts previously set up, and praying damages in the sum of $300,000 against that steamer, and that she be sold to pay the same, etc. The answer of the North Shore Railroad Company, then claimant of the Sausalito, to the amended libel of McCue, besides putting in issue the averments with respect to negligence on the part of the steamer Sausalito, and with respect to his injuries and damages,» set up, in bar thereof, the limited liability proceedings heretofore referred to, and the decrees entered therein. On the 30th of November, 1903, Cassidy, as guardian ad litem of the widow, and children of' Alexander Hall, also brought in the court below a libel against the steamer Sausalito and the North Pacific Coast Railroad Company, as the owner thereof, to recover damages for the alleged death of Alexander Hall, alleging therein the same facts he had theretofore set up as grounds for such recovery, in which proceeding the North Shore Railroad Company intervened as claimant of the steamer Sausalito. Exceptions were filed by both of the railroad companies to that libel, which were, by the court below, sustained, on the ground that the steamer and its owner could not be so proceeded against jointly, whereupon an amended libel was, by leave of the court, filed by Cassidy, as such guardian, against the North Pacific Coast Railroad Company alone, based upon substantially the same averments as he had made in his former pleadings herein referred to.</p> <p>The libels of McCue and of Cassidy, as guardian ad litem of the widow and children of Alexander Hall, were tried together and submitted upon the same evidence, resulting in findings by the court below to the effect that both Hall and McCue were passengers of the North Pacific Coast Railroad Company, on board the steamer San Rafael at the time of the collision between her and the steamer Sausalito, that Hall lost his life by reason of it, and that McCue lost, from the same cause, personal effects of the value of about $400, and suffered personal injuries to such an extent as to make his damages aggregate $1,500, and further finding that the collision was brought about by the fault and carelessness on the part of both steamers and of their respective masters, the court gave judgment in favor of McCue for $1,500 and costs, but further adjudged that the decree “be satisfied upon the payment of said sums, less any amount paid to the libelant upon a decree heretofore rendered in his favor in the matter of the petition of the North Pacific Coast Railroad Company for limitation of its liability, filed in this court and numbered 13,112,” and further adjudging “that unless this decree be satisfied as above provided, or proceedings thereon be stayed by an appeal from said decree within the time limited and prescribed by the rules and practice of this court, that then the libelant may have execution against said claimant and against its surety, upon the admiralty stipulation given in the above-entitled proceeding for the release of said steamer Sausalito,” from which decree the claimant appealed. And the court gave judgment in the case of Cassidy, as guardian ad litem of the widow and children of Alexander Hall, against the North Pacific Coast Railroad Company for $5,000 and costs, but further adjudged that the decree “be satisfied upon payment of the sum so awarded, less any amount which may he paid to the libelants, upon the decree heretofore rendered in their favor in the matter of the petition of the North Pacific Coast Railroad Company for a limitation of its liability, filed in this court, and numbered 13,112,” and that “each of said libelants, to wit, Catherine Hall, Robert A. Hall, Maggie J. Hall, Mary C. Hall, Lillie A. Hall, Alexander M. Hall, Teresa R. Hall, and Cecelia L. Hall, shall share equally in said sum so decreed,” and further adjudged “that unless this decree be satisfied as above provided, or proceedings thereon be stayed, on an appeal taken from this decree, within the time therefor limited and prescribed by the rules and practice of this court, that then the libelants may have execution against said respondent, the North Pacific Coast Railroad Company, to enforce satisfaction of this decree, or so much thereof-as shall remain unsatisfied,” from which decree the North Pacific Coast Railroad Company appealed.</p>

This suit was brought in the United States Circuit Court on December 25, 1903, by the Mallet Land & Cattle Company, a corporation duly incorporated under the laws of the state of Missouri, for an injunction to restrain the defendant, C. C. Slaughter, from trespassing upon the plaintiff’s land, known as the Edwards county school lands, consisting of 17,712 acres situated in Hockley county, Texas, and to remove cloud from title to said lands.

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

<p>In Error to the District Court-of the United States for the Northern District of California.</p> <p>The plaintiff in error was charged with forging duplicate certificates of residence issued by the government of the United States, through a collector of internal revenue, to Chinese laborers entitled to be and remain in the United States, in place of original certificates lost or destroyed. Counts 1 to 5, inclusive, of the indictment, charge the forging of five of such official documents on five specified dates. Counts 6 to 10, inclusive, charge the uttering of the said five documents on the dates on which they were alleged to have been forged. Counts 11 to 15, inclusive, charge the plaintiff in error, as an officer of the United States, with negligently and designedly permitting five acts of violation of the law on said dates, against the provisions of section 3169 of the Revised Statutes. Counts 16 to 24, inclusive, charge the uttering of nine' other forged and fraudulent duplicate certificates on nine specified dates. Counts 25 to 33, inclusive, charge nine offenses against section 3169, Rev. St. [U. S. Comp. St. 1901, p. 2059], in permitting these nine violations of the law on the dates on which the said nine documents were uttered. Plaintiff in error moved to quash the indictment, on the ground of misjoinder of counts. At the same time he demurred to the indictment, on the ground that none of the acts charged were offenses against the United States, and upon other grounds, including that of misjoinder. The motion to quash was overruled by the’court. The demurrer was sustained as to counts 11 to 15, inclusive, and counts 25 to 33, inclusive. The plaintiff in error was convicted on counts 10, 17, 19, and 21, and was acquitted on the other counts which remained in the indictment.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Georgia, in Bankruptcy. Held: declared, and decreed to be the best, first, and superior lien and mortgage on and covering the property in said mortgage described. And it is decreed that the above-described mortgage be, and the same is, superior to the mortgage now held by Mrs. S. O. Brumby, defendant, in this intervention, and covering this same property. Third.

District of Eouisiana. This action was begun in the civil district court for the parish of Orleans, by the Drainage Commission of New Orleans against the National Contracting Company of New York and the Fidelity & Deposit Company of Maryland, and was removed by the defendants into the United States Circuit Court for the Eastern District of Louisiana.

The Michigan Home Colony Company, the plaintiff in error, brought this suit in the Circuit Court of the Eastern Division of the Northern District of Iowa against George W. Tabor, the defendant in error, to recover the agreed price of a tract of land situated in the state of Michigan, which plaintiff avers the defendant agreed to purchase from it.

<p>1. Insurance—Action on Life Policy—Questions fob Jury.</p> <p>In an action on a life insurance policy, it was shown that, while soliciting agents were required to settle for the net first premium on each policy written by them in cash, it was a practice recognized by the company to permit them, on their own responsibility and at their own risk, to advance such net premium, making such arrangement as they saw fit with the insured. The policy in suit was issued by the company, sent to its general state manager, and by him given to the soliciting agent who took the application, to be delivered to the insured on payment of the first premium. The agent afterwards paid in the premium, less his commission, and it was received by defendant. The insured died within the year covered by such premium. The agent testified that the application, which was made at the end of the year, was taken solely to increase the apparent amount of business done by him during the year, to enable him to obtain a prize offered by the company; that he paid the net premium, and it was agreed between him and the insured that she should'pay nothing, but that he should retain the policy and at the end of the year permit it to apparently lapse. There was evidence on behalf of plaintiff tending to show that the agent had solicited the application several months previously, and that when it was made insured and her husband signed a note to the agent for the premium, due in one year, but were assured by him that, if they were not able, it need not be paid at that time, and that if they desired they could then reduce the amount of the policy. Helé, that such evidence was sufficient to require the submission of the question of the bona fides of the contract to the jury.</p> <p>2. Same—Delivery of Policy.</p> <p>Where it was a common practice recognized by a life Insurance company to permit soliciting agents to advance the first premium on applications taken by them, taking notes of the insured or otherwise securing themselves for its repayment, the delivery of a policy to such an agent, who paid the premium and took a note therefor from the insured, constituted a complete delivery as between the company and the insured.'</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 226,1S56.)</p> <p>8. Bills and Notes—Validity of Note—Varying Contract by Parol Agreement.</p> <p>The binding obligation of a note cannot be affected by a contemporaneous parol agreement that it need not be paid.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 1802.]</p>

Petition for Revision of Proceedings in the District Court of the United States for the Western District of Virginia, at Harrisonburg, in Bankruptcy. Held: that by virtue of the deed of trust of March 8, 1898, Mrs. M. Adah Savage had a first lien on the Main street property for the unpaid installments due her of the annuity secured to her, amounting to $2,433.33, with interest' on each installment as it became due.

The following is the opinion of Speer, Circuit Judge, in the Circuit Court: In the early part of the year 1900 the Millen Cotton Mills… Held: “The bridges became a part of the permanent structure of the railroad, as much so as the rails laid upon the bridges or upon the railroad outside of the bridges.” The court continues: “Whatever is the rule' applicable to locomotives and ears and loose property Susceptible of separate ownership and of separate liens, and to real…

<p>1. Shipping—Liability of Lessee fob Loss of Vessel—Negligence ob Want of Skill—Voluntary Service.</p> <p>Where the lessees of a houseboat at the termination of the lease undertook to deliver it to the owner at a port other than that named in the lease and where the boat then was, although at the owner’s request and without charge, they remained liable until its delivery for any injury to the same through their negligence or failure to exercise such maritime skill and care in towing from one port to the other as was reasonable under the conditions and circumstances existing at the time.</p> <p>2. Towage—Negligence—Evidence Considered.</p> <p>Evidence considered, and helé to support a finding of negligence in undertaking to tow a houseboat from one port to another at the time and under the conditions shown, as well as in the manner of making up the tow, which was by placing the boat between the tug and two loaded scows, all being towed tandem, subjecting it to a severe and unnecessary strain.</p> <p>3. Shipping—Lease op Vessel—Damages eob Injuey.</p> <p>The rule, applied in marine insurance, that the injury of a vessel to such extent that the cost of repair would exceed half her value constitutes a total loss, is not applicable to the case of the injury of a vessel under lease, so as to entitle the owner to recover her full value as stipulated in the lease in the event of total loss, at least where there was no abandonment to the lessees.</p>

On the 28th day of January, 1898, James Foley, a citizen of the state off Iowa, and Edward Gaule, a citizen of the state of Nebraska, were the equal, joint owners of two quarter sections of land in the county of Yankton, state-of South Dakota.

<p>1. Bankruptcy—Adjudication of Bankruptcy—Record on Appeal.</p> <p>The failure to incorporate any evidence in the record on an appeal from an adjudication of bankruptcy is not ground for dismissal, where it does not appear from the record that any evidence was taken.</p> <p>[Ed. Note.—Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same—Mode of Review—Appeal.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], an adjudication of bankruptcy may be reviewed by appeal, although only questions of law are presented for review.</p> <p>8. Courts—Federal Courts—Jurisdictional Questions.</p> <p>It is the duty of the Circuit Court of Appeals to take notice of the want of jurisdiction of the court below, where it appears from the record on appeal, whether the question is raised by the parties or not.</p> <p>4. Bankruptcy—Involuntary Petition—Jurisdictional Allegations.</p> <p>A petition in involuntary bankruptcy must allege that the defendant owes debts to the amount of $1,000 or over, to bring him within the class of debtors subject to the provisions of the act, as defined by Bankr. Act July 1, 1898, e. 541, § 4b, 30 Stat 547 [U. S. Comp. St. 1901, p. 3423] ; and the omission of such allegation leaves the court without jurisdiction to make an adjudication.</p>

<p>1. Patents—Anticipation—Evidence.</p> <p>Alleged anticipating patents introduced by a defendant in a suit for infringement are entitled to little consideration, unless there is expert or other evidence to show their relation to the patent in suit.</p> <p>2. Same—Infringement—Vamp Stax for Shoes.</p> <p>The Charmbury patent, No. 717,348, for a vamp stay for shoes, considered, and Jield not anticipated, valid, and infringed.</p>

In Equity. On suit for infringement of letters patent No. 725,278, for a bolt anchor, granted to S. S. Newton April 14, 1903. On motion for preliminary injunction.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question, in which the Board affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Jules & Hugo Rosenberg, reads as follows : FISCHER, General Appraiser.

<p>Customs Duties—Classification—Strung Gelatin Spangles.</p> <p>Gelatin spangles strung on cord, and used in making trimmings or ornaments for wearing apparel, are ejusdem generis with the articles enumerated in Tariff Act July 24,1897, c. 11, § 1, Schedule N, par. 408, 30 Stat 189 [U. S. Comp. St. 1901, p. 1673], providing for “ornaments, trimmings- and other articles” composed of gelatin spangles, and are dutiable under that provision, rather than under paragraph 450 (30 Stat. 193 [U. S. Comp. St. 1901, p. 1678]) relating to “manufactures of * * * gelatin.”</p>

On application for Review of a Decision of the Board of United States General Appraisers. For decision below see G. A. 5,788, T. D. 25,578, which affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Attorney and Client—Substitution oe Attorneys—Conditions oe Allowance.</p> <p>A party has an absolute right to change his attorney at any time, and while the court may, in its discretion, compel him to pay for services rendered as a condition of substitution, it will not do so where the case was taken on a contract for a contingent fee which is of doubtful validity, but will order the substitution and leave the attorney to his remedy by suit.</p> <p>[Ed. Note.—For cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 113, 114.</p> <p>Compensation of attorney on premature termination of employment, see note to 69 C. C. A. 113.]</p>

<p>Customs Duties—Classification—Stuffed Birds—Toys.</p> <p>In regard to stuffed skins of domestic chicks and ducklings, used by confectioners and dealers in Easter goods and novelties, held, that they are not “toys” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 418, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674], but “birds, stuffed,” under paragraph 493, § 2, Free List, 30 Stat. 196 [U. S. Comp. St. 1901, p. 1681].</p>

<p>Collision—Wrecking of Moored Yacht in Stobm—Inevitable Accident.</p> <p>A yacht moored to a spile in the mooring grounds of a yacht club, which was driven on shore and wrecked in a storm, held, under the evidence, not to have been caused to break loose by being fouled by another yacht, which dragged her anchors and was driven ashore, but that the injury to both was due to the extreme severity of the storm, and miist be attributed to inevitable accident</p>

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

<p>(Syllabus by the Court.)</p>

<p>At Law. Trial to court, a jury having been waived pursuant to statute.</p>

<p>1. Bankruptcy—Corporations—Validity op Notes.</p> <p>Evidence considered, and held insufficient to establish the Invalidity of notes of a bankrupt corporation given in payment for stock of another corporation, which the purchaser had statutory power to buy, signed by the proper officer, and executed pursuant to a resolution of the board of trustees; it being shown that, although the bankrupt was insolvent at the time, the purchase might reasonably have been made to protect the interest which it already had in the second corporation, which was large, and there being no proof of fraud on the part of its officers or trustees to overcome the presumption of validity arising from the notes themselves, or to warrant the setting aside of the contract of purchase after it had been fully executed by the other party.</p> <p>2. Corporations—Indorsement op Notes—Validity.</p> <p>An indorsement by a corporation of notes of another corporation is not an accommodation in a legal sense and void as ultra vires, but is a guaranty, based on a valuable consideration, and valid, where the indorsing corporation at the time owned all- the stock of the other.</p>

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

<p>Customs Duties—Classification—Featherstitch Braids.</p> <p>Featherstitch braids, so called, which are not produced by braiding, but by a process of weaving, but which are known commercially as braids, are within the provision for “braids” in paragraph 339, Schedule J, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662].</p>

<p>1. Bankruptcy—Corporation—Principal Place op Business.</p> <p>Where a manufacturing corporation, although maintaining a nominai office in the state in which it is organized,- has its manufactory and an office from which it conducts its business within a district in another state, its principal place of business is in the latter district, within the-meaning of Bankr. Act July 1, 1898, c. 541, § 2 (1), 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420], and it is subject to adjudication as a bankrupt therein, although it has ceased manufacturing and is engaged in liquidating its affairs from such principal office.</p> <p>2. Same—Nature op Business—Effect op Going into Liquidation.</p> <p>The liability of a person, whether natural or artificial, to bankruptcy, is to be judged by the character of the pursuit in which such person was engaged at the time the debts due the petitioning creditor were incurred, where he has since changed from an nonexempt to an exempt ■ pursuit. As to such debts, an individual does not lose his previous character by ceasing to carry on the business in which they " were contracted and' turning to another in which he is not liable to bankruptcy; and neither does a corporation, by stopping business altogether and going into liquidation, voluntary or involuntary.</p> <p>[Ed. Note.—What persons are subject to bankruptcy laws, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>3. Same—Jurisdiction—Ceasing- to do Business foe Greater Part op Six</p> <p>Months Next Preceding Filing op Petition.</p> <p>A person who contracts debts while engaged in a business which makes him liable to bankruptcy is not to be heard to say that he is not so-engaged, even though he has in fact ceased to be so, so long ás his debts remain unpaid. Hence, where a corporation conducted a milk-condensing business up to October 6, 1904, whén its plant was burned, and thereafter ■did nothing except to gather in its assets and settle up its affairs, retaining a central,office within its district for the purpose, upon a petition in bankruptcy being filed against it February 2, 1905, the court had jurisdiction under section 2 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420]) notwithstanding the fact that for the greater part of the six months next preceding the filing of the petition it was not conducting the business for which it was incorporated, but only engaged in liquidation.</p>

<p>1. Taxation—Enjoining Collection of Illegal Tax—Equity Jurisdic-</p> <p>tion.</p> <p>A federal court of equity is without power to enjoin the collection of a tax levied under the authority of a state on the ground of its illegality alone, although such power is conferred by statute on the courts of the state.</p> <p>2. Same—Federal Courts—Enforcing Statutory Remedy.</p> <p>To authorize the granting of an injunction by a federal court of equity, facts must be alleged showing some recognized ground of equity jurisdiction aside from the mere fact that an injunction is prayed for, and from which it appears that complainant is without adequate remedy at law; but, when such jurisdiction is shown, as incidental thereto the court may enforce an enlarged equitable right or remedy given by a state statute, as by the issuance of an injunction to restrain the collection of an illegal tax.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, S§ 797, 976.]</p>

<p>Wharves—Public Character—Monopoly of Use.</p> <p>A wbarf built on the bank of a navigable river, not in a city or town where there are a number of others, but at the terminus of public highways in the country, or at a small placel where it constitutes the only means by which the people of the community can reach the river and use the mediums of commerce navigating the same, and which was built for such use, or is being so used, is impressed with a public interest; and a single carrier cannot, by purchasing or leasing the same, convert it into private property, so as to have the right to exclude the public or other carriers from using it for the loading or unloading of vessels on the payment of reasonable wharfage.</p>

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

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

, On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,939 (T. D. 26,086), which affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Customs Duties—Classification—Architectural Drawings—Works of Art —American Artist—Architect.</p> <p>Pen and ink drawings of an artistic character, of a proposed building, produced by an architect, are within paragraph 703, Free List, § 2, c. 11, Tariff Act July 24, 1897, 30 Stat. 203, U. S. Comp. St. 1901, p. 1090, relating to “works of art, the production of American artists.”</p>

<p>Customs Duties—Dutiable Value—Entby on Peo Fobma Invoice.</p> <p>The provision in Customs Administrative Act June 10, 1890, c. 407, § 7,. 26 Stat. 134 [U. S. Comp. St. 1901, p. 1892], that duty shall not be assessed' on “less than the invoice or entered value,” does not prevent assessment on less than the value stated in a pro forma invoice on which entry is made under section 4 (26 Stat. 131 [U. S. Comp. St. 1901, p. 1888]) ; and where a certified invoice is produced in accordance with the latter section, and the value stated therein is approved by the appraiser, duty may properly be assessed on that value, even though less than that given in the pro forma invoice.</p>

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

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

<p>Towage—Injury to Tow—Liability of Tug.</p> <p>A tug is not an insurer of its tow, and is liable for loss or damage to it only in case of negligent management of the tug or in the handling of the tow. Held, under the facts disclosed in this case, that the tug was not negligent.</p> <p>[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Towage, §§ 11-29.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Shipping—Master—Wages—Attempted Abandonment op Vessels to Insurers.</p> <p>The attempted abandonment of a vessel to the insurers after, her stranding, which they refused to accept, whether sufficient in law to vest the ownership in them or not, could not operate to render them liable for the subsequent wages of the master, whom they did not employ.</p> <p>Same.</p> <p>Libelant was employed by the owners of a schooner, which was afterward stranded. The insurers undertook the salving of the vessel, and the owners wrote libelant to co-operate with them in the work. They subsequently gave notice to the insurers of the abandonment of the vessel, which the insurers refused to accept. After she was salved and temporarily repaired libelant loaded a cargo and proceeded on the voyage, not having any notice of the attempted abandonment until he reached his port of destination. Held, that the former owners, by whom he was employed, were liable to libelant for his wages up to that time.</p>

<p>In Bankruptcy. On report of referee.-</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review affirmed the assessment of duty by the collector of customs at the port of New York on importations by Henry Hermann, the Leon Rheims Company, and Sullivan, Drew & Company. The articles in controversy consist of various manufactures of rabbit fur and wool; the fur being the component material of chief value.

<p>Customs Duties—Classification—Haib Press Cloth—Ejusdem Generis.</p> <p>The provision in paragraph 431, Schedule N, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], for “hair press cloth,” is not limited to fabrics composed of the same material (horsehair) as the other articles enumerated in said paragraph.</p>

<p>Customs Duties—Classification—Patterns foe Machinery—Moldees’ Patterns.</p> <p>Tbe provision in Tariff Act July 24, 1897, c. 11, § 2, Eree List, par. 616, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685], for “models of inventions and of other improvements in the arts, including patterns for machinery,” is not limited to the class of patterns known as “model patterns,” intended to show the working of the thing illustrated, but includes also molders’ patterns, which are used as models about which to form sand molds in in which castings may be made and which are fitted for successive use in that way.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review affirmed the assessment of duty by the Collector of Customs at the port of New York on merchandise imported by R. F. Downing & Co., which was classified under the provision for “fans of all kinds” in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 427, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1679]. Note In re Kaufmann, G. A. 5,860 (T. D. 25,820).

<p>1. Customs Duties—Authority of Secretary of the Treasury—Regalia.</p> <p>The Secretary of the Treasury is not empowered to abridge the right of free entry of the articles covered by Tariff Act July 24, 1897, c. 11, § 2. Free List, par. 649, 30 Stat. 194 [U. S. Comp. St 1901, p. 1687], relating to regalia, etc.</p> <p>2. Same—Classification—Regalia—Production of Proof.</p> <p>Proof that certain imported regalia was entitled to admission under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 649, 30 Stat 194 [U. S. Comp. St 1901, p. 1687], was not produced at the time of entry as required by the customs regulations, but was offered the collector before he had liquidated the entry. Held, that free entry should have been allowed by the collector.</p>

<p>Customs Duties—Classification—Articles of Cut Glass.</p> <p>As to certain cut glass thermometers, the cutting on which is not shown ' to ornament or decorate the articles, held, that they are not within the provision in Tariff Act July 24, 1897, c. 11, §1, Schedule B, par. 100, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633], for “articles of glass, cut, * * * or otherwise ornamented, decorated, or ground.”</p>

On Application for Review of a Decision of the Board of United States General Appraisers. / The decision in question affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 4,593 (T. D. 21,737).

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision below (G. A. 974, T. D. 12,112) reversed the assessment of duty by the collector of customs at the port of New York on goods imported by A. Steinhardt & Bro., consisting of elastic garters, composed in chief value of silk. The collector subjected them to the duty provided in paragraph 413, Schedule L, § 1, c. 1244, Tariff Act Oct. 1, 1890, 26 Stat. 598, for “articles of wearing apparel of every description, * * * of which silk is the component material of chief value,” and to the additional duty prescribed in the proviso of said paragraph for “all such * * * articles of wearing apparel when composed in part of India rubber.” The importers contended that they should have been classified under paragraph 414, 26 Stat. 598, relating to “all manufactures * * * of which silk is the component material of chief value.”</p> <p>Paragraph 412, 26 Stat. 598, referred to in the opinion below, relates to “suspenders, braces,” etc., “of which silk is the component material of chief value.”</p>

<p>Damages—Personal Injury—Excessive Verdict—Reduction by Conditional Order.</p> <p>A verdict awarding $15,000 damages to a young locomotive fireman, wbo was earning about $1,000 per year, for an injury resulting in the loss of his left hand, held excessive, and a conditional order made granting a new trial unless plaintiff should remit the excess above $10,000.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, § 383.]</p>

<p>Tbade-Maeks—Injunction against Inebingement—Chartbeuse.</p> <p>For many years the order of Carthusian monks, of the convent La Grande Chartreuse, in France, have made and sold a liqueur, under the name “Chartreuse,” claimed to have been made by a secret process. Such liqueur has long been sold and has become well known under such name in the United States, where the name is registered as a trade-mark. The order having been expelled from France by the government, a receiver was appointed by a provincial court, who, under authority of the court,1 now carries on the business, putting up the product of his manufacture in the dress and under the labels and name formerly used by the monks, in which form it is sold in this country by defendant as agent. Meantime the monks re-established their business in Spain, where they make and sell a liqueur under a new trade-mark and labels, which set forth the facts with respect to the removal. No final adjudication of the rights of the parties has been had in France. Held, that a preliminary injunction restraining defendant from using in this country the bottles, labels, name, and trade-mark formerly used by the monks, based on affidavits largely made on information and belief, and which do not determine the question whether the product is the same originally sold under such trade-mark, was too broad in its terms, and should at least be modified by allowing sales by defendant, provided an additional label was attached to each package setting forth the facts with respect to the manufacture.</p> <p>Townsend, Circuit Judge, dissenting, on the ground that the sale by defendant of the receiver’s product under the name, labels, and trade-mark of the monks, without any distinguishing mark, was a fraud on the public, which should be enjoined, regardless of the quality of the article or the action of the French courts.</p>

This is a suit in equity by vendors of land against the vendee to enforce the specific performance of the contract of sale and the payment of the balance of the purchase money. The contract was made April 15, 1889, between William H. Deskins, D. S. Deskins and his wife, and Anne Blaekham and her husband, William Blaekham, and Isabella Deskins, wife of James Deskins, all of the first part, and Stuart Wood, of the second part.

. This is a bill in equity filed by the appellant July 9, 1903, for alleged violation of its trade-mark or trade-name “Featherbone,” and also to enjoin unfair competition in trade. At the circuit the bill was dismissed for want of equity.

<p>Appeal from the District Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>This appeal is from an adjudication of involuntary bankruptcy against the Chicago Motor Vehicle Co., appellant, entered in the District Court February 3. 1905, upon report of a referee, as special master, and hearing upon exceptions. Petition by three creditors for such adjudication was filed October 12, 1903, averring insolvency of the appellant and the commission of acts of bankruptcy within four months. It specified three instances of alleged preference within four months, and while so insolvent, with intent to prefer the three creditors named, and avers that like preferences were given within such time “to certain of its creditors, whose names are at present unknown” to the petitioners, “to the amount of at least five hundred dollars.” The appellant filed two answers—first, a denial of insolvency and of the commission of the acts of bankruptcy alleged, with demand of a jury trial, and, subsequently, specific denials of the several allegations, with various averments of matters not within the statutory issues. On the application of all parties, March 23, 1904, upon waiver of trial by jury, an order was entered in the District Court that the issues be “specially referred to Referee F. L. Wean, on the original petition and answer thereto, to hear, take proofs, and report his conclusions and recommendations.” The hearing before the referee was extraordinary in the time occupied and the extent and diffuseness of the testimony upon these issues. The report of the referee was made September 30, 1904, reviewing the testimony at considerable length, and finding against the appellant upon the issues of insolvency and commission of acts of bankruptcy, which were the only contested matters. In substance, his conclusions upon the insolvency issue were: That the indebtedness was “at least $212,-000;” that a fair valuation of the assets (consisting of a manufacturing plant, products, and materials, with accounts and bills receivable of doubtful value) is difficult to ascertain under evidence “almost irreconcilably conflicting,” but that $150,123.56 is “the maximum'that can be allowed as a fair valuation of all the property” on October 12, 1903; that the aggregate during the four months theretofore “was not, at a fair valuation, sufficient to pay all its debts.” Upon tbe issue of acts of bankruptcy, the referee finds preferential transfers and payments, within the four-months period, to three specified creditors, namely: (1) Donaldson, who was president of the appellant, (2) Worth, one of its officers, (3) Caldwell, an employé; also, a doubtful transaction with one Bronson, through Donaldson, and that others appeared of a similar nature, and all “constituted acts of bankruptcy.” Neither of the preferences referred to is specifically mentioned in the original petition, nor is there any finding upon either of the preferences so specified. Both parties filed certain exceptions to the report, and hearing in the District Court oecured, resulting in orders January 9, 1905, (1) overruling the exceptions and approving the report, and (2) adjudicating bankruptcy. On January 10, 1905, all parties appearing, the orders last mentioned were vacated, and new orders were entered, namely: (1) Granting leave to petitioning creditors (who had intervened, by leave of court, April 12, 1904) “to file instanter their amended petition,” wherein the acts of bankruptcy so reported by the referee were specified; (2) the exceptions on the part of the bankrupt to the report were overruled, and the report approved, the bankrupt excepting,- and praying an appeal, for which appeal bond was fixed; and (3) an adjudication of bankruptcy in a separate order of like date. Confusion appears to have arisen in the attempted appeal, and on February 3, 1905, the former adjudication of bankruptcy was vacated, and a new adjudication was then entered of that date, from which this appeal is prosecuted.</p>

<p>1. Telegraph Companies—Negligence—Care to Ascertain Identity and Authority oe Senders oe Messages—Extent and Limit.</p> <p>In the absence of notice of facts or circumstances which would awaken inquiry and arouse suspicion in the mind of a person of ordinary prudence and intelligence in a like situation regarding the authority to send it of the party who presents a message for transmission, the exercise by a telegraph company and its operators of reasonable care to receive and transmit genuine and authorized messages only does not require them to investigate or ascertain the identity, or authority to send it, of the person who tenders a message for transmission, whether that message is in writing, or is spoken directly to the operator, or is communicated to him by telephone.</p> <p>But, when such facts or circumstances come to the notice of the company, or of its acting operator, the exercise of reasonable care to transmit genuine and authorized messages only requires the party who receives the notice either to investigate and ascertain the authority of the sender before transmitting the message, or to communicate the facts and circumstances and the inquiry or suspicion to the addressee at or before its delivery.</p> <p>2. Same—False Representation by Unauthorized Telegram—Damages.</p> <p>Action by mortgagees against a telegraph company for loss of their lien on cattle worth $3,500, caused by the receipt over the telephone, from one whose voice was not known to the operator and who had no authority to send it, and the transmission to the plaintiffs to whom it was addressed, of this telegram: “We will pay Barnes’ draft for thirty-five hundred. Bank of Denison.” Held:</p> <p>(1) The telegram was not so indefinite that reliance and action might not lawfully be based upon it.</p> <p>(2) The loss of the lien upon the cattle was not an unnatural or improbable effect of the delivery of the telegram, and the damages resulting from this loss were not too remote to warrant a recovery.</p> <p>(3) A draft by Barnes was not essential to the maintenance of the plaintiff’s action for the false representation embodied in the telegram and the resulting damage.</p> <p>8. Same—Action fob Diminution of Lien—Sufficiency of Remaining Security No Defense.</p> <p>It is no defense to an action by mortgagees against a stranger for causing the loss of their lien upon some of the mortgaged property that it still covers an amount sufficient to secure the payment of the mortgage debt.</p> <p>4. Appeal—Review—Directed Verdict on Specific Grounds—When Prejudicial.</p> <p>When a verdict is directed on specific, but untenable, grounds, it may not be affirmed on other grounds, unless it is clear beyond doubt that the new grounds could not have been obviated if they had been called to the attention of the defeated party at the time the verdict was rendered.</p> <p>But, when the defeated party has introduced at the trial all the legal evidence he offered and has rested his case, he has thereby estopped himself from denying that he can do no more to overcome the objection that the evidence is insufficient to sustain a verdict in his favor; and if the bill of exceptions contains all the evidence, and it is clear beyond doubt that it would not sustain a verdict in his favor, an instruction by the court to return a verdict against him upon some other, but untenable, ground is error without prejudice, and no ground for reversal.</p> <p>5. Pleading—Trial of Issues Not Raised by Pleadings Waives the Pleadings.</p> <p>The trial of issues tendered by a pleading as though they had been properly made, in the absence of any plea, answer, or replication which raises them, estops the parties from subsequently denying that the issues were duly made, and from taking any advantage of the lack of the plea, answer, or replication.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to 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 Iowa.</p>

<p>1. Sales—Contracts—Construction—Capacity—Warranty of Efficiency.</p> <p>A contract by a dealer to furnish to a purchaser a definite pump of known manufacture, “having a capacity of 300 gallons per minute against a head of 350 feet,” which has been selected by the purchaser and is to be built by the manufacturer, is not a warranty of the size, design, construction, materials, efficiency, and endurance of the pump, but is, like its name, descriptive, and limited in effect to a warranty of the quality of size.</p> <p>2. Same—Implied Warranty of Fitness—Article of Known Manufacture.</p> <p>Where a purchaser buys of a dealer a definite machine or article of a described manufacture, which has been or is to be made by a builder who is not the vendor, and the vendee knows this fact, there is no implied warranty by the dealer against latent defects, or that the machine or article will be suitable for the purposes for which such articles are commonly used, because the purchaser has the same knowledge and means of knowledge on these subjects as the seller.</p> <p>3. Same—Implied Warranty of Qualities—Exclusion.</p> <p>An express warranty of one of the qualities of a machine or article excludes implied warranties of other qualities of the article of a similar nature.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal—Necessary Parties.</p> <p>An appeal will not be dismissed because of the failure to bring in by citation parties who have no interest in the decree appealed from.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error,</p> <p>§ 18] 5.]</p> <p>2. Same—Review—Refusal to Permit Inspection op Document.</p> <p>A party cannot assign as error that he was not permitted an inspection of a contract which had been introduced in evidence by the adverse party, who had been permitted to withdraw it from the records on substituting a copy, where he took no steps in the trial court to obtain such inspection.</p> <p>8. Attorney and Client—Contract por Fees.</p> <p>The fact that attorneys, who have contracted with a client to represent her interest in litigation for the recovery of certain property for a contingent fee based upon the amount recovered, made such client a defendant in the final partition suit relating to the property, for the sole purpose of having the amount of their fee, which was in dispute, determined, did not amount to a repudiation of the contract, nor deprive them of the right to recover the fee stipulated therein.</p> <p>4. Same—Services Rendered to Minor.</p> <p>Attorneys representing certain heirs in litigation respecting real estate, who obtained the appointment of a guardian ad litem for another heir, who was a minor and was made a defendant, such attorney ad litem appearing on behalf of his ward and being allowed a fee therefor by the court, cannot thereafter claim compensation from the minor on the ground that their services inured to his benefit.</p>

<p>1. Mines and Minerals—Entries and Patents—Lode Claims—Estoppel op Owner op Prior Tunnel Claim.</p> <p>Entries and patents of lode mining claims, in proceedings to which a claimant of a tunnel site located across them prior to the entries was not, and was not required to be, a party, will not estop him from establishing by the testimony of witnesses who know and by other customary evidence the fact that no discoveries of mineral in rock in place had been made in the lode claims before the claim for the tunnel site was located across them.</p> <p>2. Same'—Word “Location” Has Two Meanings.</p> <p>The word “location,” in its application to mining claims, has two distinct meanings: First, all the acts, including discovery, requisite to perfect the right of possession; and, second, the placing of the claims, the posting of the notice, and the marking of the boundaries, excluding discovery.</p> <p>3. Contracts—Construction—Ascertaining Intention.</p> <p>One of the fundamental rules for the interpretation of a contract is that the court should place itself as near as may be in the situation of the contracting parties at the time the agreement was made, and should then endeavor to ascertain from the contract, in the light of the surrounding facts and circumstances, what the parties actually intended by their agreement.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, § 730.]</p> <p>4. Same—Intention to be Deduced from Entibe Asbeement.</p> <p>This intention must be deduced, not from specific provisions or fragmentary parts of the instrument, but from the entire context, because the intention is not evidenced by any part or provision of it, or by the agreement without any part or provision, but by every part so construed as to be consistent with every other part and with the entire contract.</p> <p>Every provision of the instrument should be given its ordinary meaning and effect, if possible, and no part should perish by construction.</p> <p>[Ed. Note.—For eases in point, see vol. 11, Cent. Dig. Contracts, § 734.J</p> <p>5. Same—Interpretation of Parties—Test of Intention.</p> <p>The practical interpretation of the contract by the parties, while they are engaged in its performance and before any controversy concerning it has arisen, is one of the most satisfactory tests of its meaning, and courts may generally adopt that construction with safety.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, § 753.]</p> <p>6. Same—Intention When Ascertained must Prevail.</p> <p>When the actual intention of the parties is ascertained, it must prevail, regardless of the dry words, inapt expressions, or careless recitations in the instrument.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, § 730.]</p> <p>7. Mines and Minerals—Location—Discovery—Statement of Facts.</p> <p>An agreed statement of facts, which stipulated that the lode claims of the plaintiff were “located in compliance with law” at dates anterior to the location of the defendant’s tunnel site, and that as to the issue made in the pleadings upon the question whether mineral in rock in place was discovered in the plaintiff’s claims before the location of the tunnel site the defendant offered testimony tending to negative such discovery, which is on plaintiff’s objection ruled out by the court, and such ruling is excepted to by the defendant, used the word “location” in its more restricted sense, excluding discovery, and did not estop the defendant from litigating the issue relative to the discovery of mineral in rock in place in the plaintiff’s claims prior to the location of the defendant’s tunnel site.</p> <p>(Syllabus by the Court)</p>

<p>1. Process—Sufficiency of Summons—Formal Defects.</p> <p>A summons duly served on a defendant, which notifies him of the court, term, time, and place where he is required to appear and that he is required to answer the claim of plaintiff, is not fatally defective because it omits to state the penalty for his failure to appear as specified in the statute; the defect being one of form and not of substance, and especially where defendant appeared, and in a stipulation signed by the parties waived all irregularities in the process served.</p> <p>2. Corporations—Foreign Corporations Carrying on Business in Indian Territory—Construction of Statute.</p> <p>Under Act Feb. 18, 1901, 31 Stat. 794, which provides that “before any foreign corporation shall begin to carry on business in the Indian Territory” it shall file a certificate designating a resident agent on whom process may be served, and also stating its principal place of business in the territory, and that if it fails to comply with such provisions all of its contracts with citizens and residents of the territory shall be void and shall not be enforced in its favor by any of the courts therein, proof that a foreign corporation, having no place of business in the territory, in a single instance completed an executory contract of sale therein by delivery of the property and taking notes and a mortgage for the purchase price, through a local bank acting as its agent, is not sufficient to subject it to the penalty for “carrying on business” by rendering its notes and mortgage nonenforceable, though it never filed the statutory certificate.</p> <p>[Ed. Note.-—Foreign corporations “doing business” in state, see note to Wagner v. J. & G. Meakin, 33 C. O. A. 5S5.]</p>

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

The bill in this case was filed November 26, 1904, by Robert A. Shailer, a citizen of Massachusetts, as a minority stockholder of the Illinois & Georgia Improvement Company, on behalf of himself and other stockholders similarly situated, etc., to set aside'a sale of the stocks and bonds of the Macon, Dublin & Savannah Railroad Company, incorporated under the laws of Georgia, made by said Improvement company to the Atlantic Coast Line Company, a corporation of the state of…

The following is conceded to be a substantially correct statement of the case: Elizabeth Johnson, a citizen and resident of the state of New York, brought her bill in equity against the Georgia Loan & Trust Company, a Georgia corporation, with its principal domicile in Bibb county, Ga., and against B. C. Armistead and the other appellees, who are citizens and residents of the Northern district of Georgia.

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

<p>1. Courts—Circuit Court of Appeals—Jurisdiction—Dismissal for Lack of Jurisdiction Below.</p> <p>Where the jurisdiction of the Circuit Court is in issue, and is decided in favor of the defendant, the'Circuit Court of Appeals has no jurisdiction to review the decision, since it disposes of the case, and the plaintiff must have the question certified and take his appeal or writ of error to the Supreme Court.</p> <p>[Ed. Note.—Review of jurisdiction of Circuit Courts, see note to Excelsior Wooden-Pipe Co. v. Bridge Co., 48 C. C. A. 851.]</p> <p>2. Same—It Has Jurisdiction of Dismissal on the Merits.</p> <p>Where the question of jurisdiction is in issue, and the jurisdiction is sustained, and a judgment or decree is rendered in favor of the defendant upon the merits, the Circuit Court of Appeals has jurisdiction to review it.</p> <p>’ [Ed. Note.—-For cases in point, see vol. 13, Cent Dig. Courts, § 1099.]</p> <p>3. Same—General Decree of Dismissal.</p> <p>A decree of dismissal without more is a decree that the, court has jurisdiction, and that there are no merits in the case. It renders every issue in the suit res adjudicata, and is reviewable by the Circuit Court of Appeals.</p> <p>4. Same—Federal Court—Jurisdiction—Suit in Equitx.</p> <p>A suit in equity, dependent upon a former suit of which the federal court had jurisdiction, may be maintained in that court, without diversity of citizenship or a federal question, (1) to aid, enjoin, or regulate the original suit; (2) to restrain, avoid, explain, or enforce the judgment or decree therein; or (3) to enforce or adjudicate liens upon or claims to property in the custody of the court in the original suit.</p> <p>5. Same—Dependent Cause of Action Essential to Jurisdiction.</p> <p>A dependent cause of action, a cause of action for one of the purposes above specified, is indispensable to the jurisdiction of a dependent suit, although alter jurisdiction is acquired by means of such a cause the court may determine in a proper case the entire controversy between the parties relating to its subject-matter.</p> <p>6. Same—Dependent Suit—Parties Who Max and Max Not be Joined.</p> <p>A dependent suit cannot be maintained to adjudicate the claims ot those who were not parties to or in privity with the original suit, except in the ease of those who claim an interest in the property in the custody of the court.</p> <p>With this exception the claims of those who are not parties to the original suit, wnich accrued before its commencement, may be lawfully adjudicated in an original suit only, to the jurisdiction of which diversity of citizenship or a federal question is indispensable.</p> <p>7. Injunction—Prosecution of Actions—Estoppels in Pais—When Avail-</p> <p>able as Defenses at Law in Federal Court.</p> <p>Estoppels in pais are available at law in the federal court in defense of actions of ejectment, trespass, and conversion, and form no basis for the prohibition of the prosecution of such actions.</p> <p>. (Syllabus by the Court.)</p>

The Jones & Adams Company, defendant in error, a dealer in coal at Chicago, brought this suit against the Luhrig Coal Company, the plaintiff in error, a proprietor of coal mines at Luhrig, Ohio, to recover damages for the breach by the latter of the contract following: “This agreement made this 31st day of May, A. D. 1902, by and between the Jones & Adams Company, a corporation of the state of Illinois, party of the first part, and the Luhrig Coal Company, a corporation of…

<p>1. Judgment—Matters Concluded—Nature of Bankrupt’s Indebtedness.</p> <p>A judgment of a court of competent jurisdiction in favor of the receiver of a national bank and against a defendant who was duly served, based upon findings that such defendant, while an officer of the bank, embezzled and misappropriated its funds, where unreversed, is conclusive of the character of the indebtedness upon an issue as to whether the debt is one from which such defendant would be released by a discharge in bankruptcy.</p> <p>2. Bankruptcy—Discharge—Debts Created by Fraud or Embezzlement.</p> <p>An indebtedness created by the embezzlement and misappropriation of the funds of a bank by the debtor while acting in the capacity of vice •president of the bank and having full control of its affairs is one created by his fraud, embezzlement, and misappropriation while acting in a fiduciary capacity, within the meaning of Bankr. Act July 1, 1898, c. 541, § 17a (4), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], and from which he is not released by a discharge in bankruptcy.</p>

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

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

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

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

<p>Patents—Prior Public Use—Featherbone.</p> <p>The Warren and Holden patent, No. 559,827, for a process of manufacturing featherbone, and the resulting product, while disclosing invention of a meritorious character, is void for prior public and commercial use of the invention by the patentees for more than two years before the filing of the application.</p>

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

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 5,560, T. D. 24,963, which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by G. B. Ritchie & Co.</p>

<p>In Bankruptcy. Sur motion of respondent Lorna C. Francis to discontinue restraining order.</p>

<p>Indictment for conspiracy, under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676]. On demurrer</p>

<p>In Equity. On petitions of receiver for foreclosure of mortgages.</p>

<p>In Equity. On motion to attach, for contempt.</p>

<p>1. Collision—Tow Dbifting against Babge Engaged in Anchoring—Ab • sence of Lookouts.</p> <p>A barge laden with coal, which had been cast off from a tow off Weehawken, and was attempting to anchor at or near the limits of the anchorage ground, was struck and sunk by one of three mud scows in ■tow of a tug on a hawser, which had just started from a point near by bound for the sea, and which, while the tug was working to the middle of the river, drifted down upon the barge. Neither the tug nor barge had an efficient lookout, and neither observed the other in time to avoid _ the collision, which might have been done by either by beginning, in time. Seld, that the absence of such lookouts was the proximate cause of the collision, and that both tug and barge were in fault.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, §§ 79, 149.]</p> <p>2. Same—Fault of Tug—Liability of Tow.</p> <p>A tow which is without power and passively in control of a tug, and which was not chargeable with any negligence contributing to a collision between it and another vessel, cannot be held liable with the tug therefor, on the theory that the entire tow constitutes one vessel.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, £§ 72, 245J</p>

<p>1. Equity—Pleading—Multifariousness.</p> <p>A bill filed by the receiver of a bank against a number of the directors to recover money of the bank alleged to have been lost through defendants’ misconduct is not bad for multifariousness, where the matters alleged are such as can most conveniently be tried in a single suit.</p> <p>[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Equity, §§ 371, 372, 377-379.]</p> <p>2. Banks and Banking—Suit against Directors—Receiver of National Bank.</p> <p>A receiver of a national bank may maintain a suit against the directors In behalf of creditors and stockholders to recover sums alleged to have been lost to the bank through the misconduct or negligence of defendants, and it is not a necessary condition precedent that violations of the banking act should have been previously adjudged in a suit brought by the comptroller.</p> <p>3. Same—Pleading—Certainty of Bill.</p> <p>In such a suit, it is not necessary that the bill allege the exact amount of the loss arising from each transaction set out where it is not yet known; but it should set out with particularity the acts of defendants relied on to constitute negligence or misconduct, and the details of the several transactions should be given with such fulness as can be done by complainant.</p> <p>4. Abatement and Revival—Action against Bank Director—Sorvival.</p> <p>A cause" of action against a director of a national bank to recover for money lost to the bank through his negligence or misconduct survives against his executors.</p>

<p>In Equity. On motion to quash service.</p>

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

<p>Boundaries—Construction of Survey—Conflict between Calls for Corner and Course and Distance.</p> <p>The call from the third to the fourth corner of a survey of land, made under a warrant of the state of Kentucky and afterwards carried into a patent issued by the state, was from a stake on the top of Cumberland Mountain, “thence south, 60 degrees west, 8,320 poles, to a stake near Cumberland Gap.” If the course and distance be followed, it would carry the fourth corner several miles within the state of Tennessee; whereas, if the line be run following the state line along the crest of the Cumberland Mountains in a general southwesterly course, it would strike the center of the Gap at a distance of 7,934 poles. Held, that the words “near Cumberland Gap” should be construed to mean at or in Cumberland Gap, and that, as so construed, such natural object would govern the call for course and distance, and fix the corner at the center of the Gap.</p>

<p>In Equity. Suit to quiet title.</p>

<p>1. Courts—Federal Courts—Following State Decision.</p> <p>Pending a number of suits to quiet title in a federal court by the owners of a large tract of land under a patent from the state which involved the question of the boundary of such tract, and after such question had been decided in two of the suits, an action in replevin to recover a number of- logs, between different parties, was instituted in a state court, and the issues were so made as to raise the question of the boundary of the same tract of land, and a decision of such question by the highest court of the state was obtained therein, which reduced the area of the tract nearly one-half from that given it by the federal decisions. The owners of the land were not parties to such action, which was apparently brought for the purpose of obtaining such decision and was not seriously contested. Held, that the decision of the state court, while entitled to the highest consideration, was not binding on the federal court in the suits by the owners of the land which were still pending.</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>2. Boundaries—Construction of Patent—Following Course of Natural Object between Corners.</p> <p>The call for the third line of a boundary to the fourth corner, as given in a patent issued by the state of Kentucky, was from a stake on the top 1 of Cumberland Mountain, “thence south, 60 degrees west, 8,320 poles, to a stake near Cumberland Gap.” If the course and distance be followed, the line would pass to the eastward of Cumberland Gap, through a portion of Virginia and several miles into the state of Tennessee. If the crest of the Cumberland Mountain be followed the distance called for, it would fall short of reaching Cumberland Gap, and locate the fourth corner at a point on such crest to the northeast of the Gap. Held that, both the third and fourth corners being points on the Cumberland Mountain, the line joining them ran with the top of such mountain for the distance called for, and not in a straight line following the given course, and that the fourth corner was at the point on the crest of the mountain 8,320 poles from the third corner as so measured.</p> <p>3. Same—Running Lines Backward.</p> <p>While the boundary lines of a survey as given in a patent or deed may be run backward and in reverse order where necessary, because of an insurmountable difficulty in running them in their direct order, it is not permissible in doing so to disregard natural objects called for in the boundary, either as corners or lines.</p> <p>4. Same—Quantity.</p> <p>In locating the boundary of a tract of land as given in a patent or deed, the question of quantity can only be considered where it cannot be located by natural objects, nor by following the courses and distances called for, or where it is necessary, in order to close the lines, to run some of them backward and in reverse order, and the number of unlocated corners and lines is such that there are alternative ways of closing, in which case the quantity given may be resorted to in determining which way shall be adopted.</p> <p>5. Quieting Title—Right to Maintain Suit—Sufficiency of Evidence.</p> <p>To entitle a complainant to maintain a suit to quiet title, he must show that defendant claims the land. If complainant derives title through a deed containing exceptions, he must show that the land claimed by defendant is outside of such exceptions; but a lack of proof on his part in that respect may be supplied by evidence introduced by defendant.</p> <p>6. Adverse Possession—Evidence.</p> <p>Evidence considered, and held insufficient to sustain the defense of title by adverse possession in a suit to quiet title.</p> <p>7. Quieting Title—Proof of Possession.</p> <p>Evidence held to show possession by complainant in a suit to quiet title at the time the suit was instituted.</p> <p>[Ed. Note.—Necessity of possession in suits to quiet title, see note to Jackson v. Simmons, 39 O. C. A. 522.]</p>

<p>In Equity. Suit to quiet title.</p>

<p>1. Boundaries—Location from Description in Patent—Effect of Extension Beyond State Line.</p> <p>The fact that the boundaries of a tract of land as given in a state patent, based on a survey made at the instance of the patentee, extend beyond the state line, affords no ground for the relocation of the tract by the courts, so as to place it all within the state. The true rule requires them to ascertain and locate that portion of the boundary which lies within the state by the usual methods, running the lines backwards and in reverse order from known corners according to the calls of the patent where nec- , essary, and to exclude from the tract that portion which lies without the state by taking the state line as the boundary between the points where such line is crossed by the lines of the survey.</p> <p>2. Public Lands—Purchaser of State Lands—Deficiency in Quantity.</p> <p>A purchaser of state lands, who selects the land and has a “call” survey of the same made by protraction without actually running the lines, and applies for and obtains a patent in accordance with such survey, takes the risk of overlaps upon prior grants and of loss by reason of the extension of the boundaries, if run in accordance with the calls of the survey and patent across the line of the state; and a grantee of such purchaser takes no greater rights in those respects than his grantor had.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The appellants, the Grand Trunk Western Railway Company (styled for brevity the “Grand Trunk Company”), Chicago & Erie Railroad Company (styled for brevity the “Erie Company”), Chicago, Indianapolis & Louisville Railway Company (styled for brevity the “Monón Company”), and the Wabash Railroad Company (styled for brevity the “Wabash Company”), brought suit against the Chicago & Eastern Illinois Railroad Company, the appellee (styled for brevity the “Eastern Illinois Company”), to restrain the latter’ from diverting its passenger business at Chicago from the Dear-born Street Station of the Chicago & Western Indiana Railroad Company (styled for brevity the “Western Indiana Company”) to the terminals at La Salle Street Station of the Chicago, Rock Island & Pacific Railway Company. Prior to May, 1879, the Eastern Illinois Company owned and operated a line of railway from Danville northward to Dolton, 111., then 13 miles south of the city limits of the city of Chicago, reaching the city over the lines of the Cincinnati, Pittsburg & St. Louis Railroad Company from Dolton to the terminus of the latter company on the West Side of the city. In May, 1879, the Eastern Illinois Company, desiring terminal facilities on the South Side of the city, entered into contract with one J. B. Brown, dated May 6, 1879, which provided for the organization by Brown of the Western Indiana Company for the purpose of securing to the Eastern Illinois Company “an independent and perpetual railway entrance into the city of Chicago.” The company so to be created was to construct a line of railway connecting at Dolton' with tbe northern terminus of the railway of the Eastern Illinois Company, and to extend into the city of Chicago, the passenger terminus to be on the South Side, and as far north as Sixteenth street, which line, when constructed, the Eastern Illinois by express covenants agreed to enter into possession of and use, maintain, and operate for the full term of 999 years. By this contract it was contemplated that the Eastern Illinois would assume all obligations of the Western Indiana Company; that it would conduct and develop the local passenger and freight business of the road.to its fullest extent, and would pay $3,000 per annum on account of taxes on the main line of the road during the full term. The Western Indiana was to have the right to admit other companies to the use of the property, subject, however, to the right granted to the Eastern Illinois Company to conduct the entire local business, the subsequent tenants to have the right of passage for their through trains ouly. After the admission of other tenants, the expenses incurred by the Eastern Illinois Company in maintaining and operating the road were to be shared by .the subsequent tenants upon a wheelage basis. . The Eastern Illinois Company agreed to guaranty the payment of $800,000 of bonds to be issued by the Western Indiana Company, and to provide by proper lease for the payment of the' interest and, by means of a sinking fund, of the principal of such bonds at maturity; and after the payment of such bonds the Eastern Illinois Company should be absolved from the payment of rentals, except for the repair, renewal, maintenance, and payment of taxes and assessments. The contract further provided that, upon the coming into existence of the proposed new'corporation, the Western Indiana Company should enter into proper written agreement with the Eastern Illinois Company covering all the points specified in the contract. In July, 1879, the Western Indiana Company was organized, Brown becoming its president, the contract above stated being assigned to it by Brown, and the company agreed to keep and perform the covenants of Brown. This company was incorporated to build a terminal system, and was authorized to construct a line of railway from the Indiana state line and from Dolton into the city of Chicago, and there to provide terminal facilities for as many railroads as might become its lessees.</p> <p>On October 24, 1879, the Western Indiana and the .Eastern Illinois Companies entered into an agreement denominated in the record as the “original lease,” in which the agreement is spoken of as a lease, and the parties as lessor atid lessee, respectively. The document is voluminous, and the recitals and covenants are many. It recites that proper terminal facilities in the city of Chicago are necessary for the proper management of the business of the Eastern Illinois Company, that those in course of construction by the Western Indiana Company are adequate for the use contemplated; and then the Western Indiana Company: “In consideration of the premises and .of the rents reserved, and the covenants and agreements on the part of the party • of the second part [the Eastern Illinois Company], to be by the said party of the second part kept and performed as hereinafter mentioned, has granted, demised, and leased, and by these presents does grant, demise and lease unto the said party of the second part the right and privilege of using and running locomotives, cars, and other rolling stock of the said party of the second part over and upon the main track or tracks of the railroad of the party of the first part [meaning only the direct main track or tracks between Dolton and the terminus in Chicago] from its junction with the road of the party of the second part, at or near Dolton, in the county of Cook, state of Illinois, to the passenger depot of the said party of the first part in the city of Chicago, when constructed, and to the freight buildings, engine houses, repair shops, switchyards, and dock property, the use of which is vested in the party of the second part, and which are more particularly hereinafter described, as well as the right to use all switches and turnouts appertaining to the said track or tracks for all purposes of the traffic of the said party of the second part; also the right and privilege of using for the purposes of such traffic the passenger depot and its appendages of the said party of the first part, in the city of Chicago, when constructed; and also the exclusive right and privilege of using for the purpose of such traffic, the freight buildings, engine houses, repair shops, switchyard, and-dock property.” a particular description of which follows, “and together with all the franchises, rights, and privileges of the said party of the first part thereto belonging, or in any wise appertaining, only to the extent, however, that may be necessary and sufficient to enable the party of the second part to use and enjoy the rights and privileges hereby intended to be granted, demised, and leased: Provided always, and it is hereby expressly understood' and agreed, that the right and privilege of using the track, the passenger depot, and the other property and premises * * * hereby granted, demised, and leased * * * shall be exercised in common with the Western Indiana Company and such other company or companies as may from time to time obtain the grant of similar rights, privileges, and use of the same.” The habendum clause is for the use of the freight buildings, engine houses1, repair shops, switchyard, and dock property exclusively, and the use of the track, passenger depot, and other premises in common with the Western Indiana and such other companies as may thereafter obtain leases therefor, and right to use the same for the full term of 999 years from the 30th day of October, 1879; the Eastern Illinois Company yielding and paying yearly, and every year during the said term, the yearly rental thereinafter specified, and keeping and performing the covenants. Then follow certain express covenants upon the part of the Eastern Illinois Company as follows: (1) To pay $5 annually on January 1st during the entire time mentioned. (2) To pay all taxes, assessments, liens and water rents, whether state, municipal, or other, lawfully imposed “upon this lease and upon the freight buildings, engine houses, repair shops, switchyard, dock and other property,” the exclusive use of which is vested in the Eastern Illinois Company, and upon the franchises, earnings, traffic, and business of the premises demised, or in any way derived therefrom. (3) To pay yearly and in every year during the term the sum of 83,000 on account of taxes and assessments imposed upon the main line of the road from Dolton into the city of Chicago, and, in the event of extension of the road beyond Fourteenth street, to pay such additional'sum as would be its proper and just share of the additional taxes and assessments, according to the proportion of its wheelage per mile over, the main line. (4) To pay by way of further rental the sum of $4,000 monthly, until the sum of $800,000 shall have been paid, such payments to commence upon possession being taken by the Eastern Illinois Company; but the monthly rental shall be diminished pro tanto as the capitalized rental, $800,000, is reduced by operation of the sinking fund thereinafter provided. (5) The Eastern Illinois Company to pay upon the first of each month during the term commencing July 1, 1884, such a sum of money as, together with the monthly rental of $4,000 provided for, will, within 35 years from January 1,-1885, pay 6 per cent, per annum upon the capitalized rental of $800,000 before it shall be reduced by the operation of the sinking fund on the 1st day of January, 1885, and after that time 6 per cent, per annum upon the amount of the capitalized rental as reduced; and also so much by way of sinking fund as will pay off and extinguish the principal of said capitalized rental of $800,000 within 35 years from January 1, 1885.</p> <p>The instrument recites that the Western Indiana Company had executed a mortgage dated July 1, 1879, to Anthony J. Thomas, as trustee, to secure the payment of bonds to the amount of $1,600,000, that the Eastern Illinois Company had guarantied .the payment of series A of said bonds, amounting to $800,000; and it was understood that the rental of $4,000 per month should be used and applied for the payment of interest upon the bonds so guarantied, and the sinking fund should be applied to the payment of such bonds; and that the rental and the sinking fund should be paid by the Eastern Illinois Company to the trustee in the mortgage, and should be applied to the payment of the interest upon the bonds, and to the extinguishment and cancellation of the bonds so guarantied. Dike provisions are contained in the instrument for further payments in case of the construction of the road beyond Fourteenth street to Van Burén street, with respect to which the Eastern Illinois Company should have the same rights and use as provided with reference to the other part of the line. It recites that the Western Indiana Company contemplated making a new mortgage for $4,000,000, and that the prior mortgage and bonds to Thomas should be satisfied and canceled, and bonds to the amount of 8800,000 under the proposed new mortgage should be substituted, and applies the stipulations of the agreement with like force and effect to the new mortgage. There is a further provision that, as the Eastern Illinois Company should during the term conduct the entire local business between Dolton and the city of Chicago, and other companies, to whom leases may be made, and with whom operating and traffic arrangements may be entered into by the Western Indiana Company, should have passage over the line for through trains only, it was agreed that the Eastern Illinois Company should be entitled to conduct, and will conduct, the entire local business between Dolton and the terminus in Chicago in such manner that the business shall be fully developed and preserved, and that the public shall be afforded all practical facilities and conveniences, and that the Eastern Illinois Company shall and will, at its own expense, “exercise the rights and privileges hereby granted as fully as the party of the first part, as the owner thereof or otherwise, is now, or may be by law required to do, and at the same time in such manner as not to interfere with or obstruct the full and free use of the main track or tracks, passenger depot, sidings, turnouts, and'the other property which may from time to time be used by it in common with the party of the first part and other companies, or the traffic and business of the party of the first part and said other companies over the same, and shall and will keep up, maintain, and operate the stations, freight buildings, engine houses, repair shops, switchyards, dock and other property used by it exclusively in thorough repair, working order and condition, using the best and most suitable materials for renewals of the same, as renewals shall from time to time become necessary, so as to be suitable at all times for the transaction of the traffic and business aforesaid”; that the Eastern Illinois Company should perform all the duties by the laws of the state or ordinances of towns and cities which should be now or hereafter required in regard to the rights, privileges, and premises granted, and should pay to the Western Indiana Company its proportion of the expenses incurred or paid by it in maintaining and keeping in thorough repair and working condition the main track or tracks, passenger depot, terminal facilities, and other property, the common use of which has by agreement been reserved, and in supervising the use and managing the same, and other proper joint expenses and charges arising from the tracks, depot, terminal facilities, and other property used in common, and the traffic over the same, such proportion to be determined by the wheel-age of the Eastern Illinois Company and of the other companies over the part of the line so used in common. It was mutually covenanted that the Western Indiana Company should have the general control, management, and supervision of the main line, passenger depot, grounds, and other property which may be used by the Eastern Illinois Company in conjunction with others, and the sole control and direction of the management, use, location, improvement, and repair of the same, the appointment and supervision of all officers, agents, and employes necessary for such purpose, and to establish and enforce such reasonable rules and regulations as may be necessary; and the Eastern Illinois Company should have the exclusive right to manage, maintain, and keep in order, at its own cost and expense, such portion of the main track as it may use exclusively of others, and, so soon as any such portion of the track should come into the use of another company in conjunction with the Eastern Illinois Company, that portion of the track should immediately fall into the management of and be maintained and kept in order by the Western Indiana Company. The Eastern Illinois Company also agreed to keep the buildings upon the premises occupied by it exclusively fully insured against loss by fire, loss, if any, payable to the Western Indiana Company, and to pay a proportional part of the premiums for insurance upon the property used in common, said proportion to be determined by the wheelage of each company using the same; the proceeds of such insurance in ease of loss to be applied to the repair, rebuilding, and restoration of the property destroyed. There are the usual covenants to be found in a lease with respect to the surrender of the property demised at the expiration of the term, and the usual provisions for default in respect of the covenants of the lease.</p> <p>On October 25, 1879, the Western Indiana Company executed to the Wabash Company an agreement or lease of a portion of its main line from its junction with the Western Indiana, near Seventy-Fifth street. On July 1, 1880, it executed to the Grand Trunk Road a similar agreement or lease of that portion of its line north of the junction with the Grand Trunk, near Forty-Ninth street. On November 1, 1880, the Western Indiana Company executed a similar agreement or lease with the Erie Company from the junction of its road with the line of that company, near Hammond, Ind. On December 1, 1881, it executed to the Monon Company a similar agreement or lease of a portion of its main line from the state line. All these agreements or leases covered the line of railway from the point of junction to the passenger station, when constructed. The rights granted to the Wabash Company were made subject to the exclusive right of the Eastern Illinois Company to conduct local business. The Wabash Company was to pay its wheelage proportion of the maintenance and operation expenses of the Western Indiana Company, and its wheelage proportion of the taxes upon the common property. The provisions as to local business and payment of taxes were the only provisions in which the lease differed from the “original lease” with Eastern Illinois. The leases to the other roads were similar to that to the Wabash Company. The amount of rental differed to some extent in each, and the exclusive freight facilities also differed, but in all other respects the leases were in exactly the same terms as the lease to the Wabash Company. In none of these leases or agreements, except that of the Eastern Illinois Company, is any obligation assumed to conduct local business between Dearborn Station and Dolton. ”</p> <p>The Western Indiana Railway was completed to Twenty-Second street in the spring of 1880, and in-April of that year the Eastern Illinois entered into possession under its agreement. Later in that year the road was extended to Fourteenth street, and in 1882 to Dearborn Station at Polk street. The freight terminals, the use of which was granted to the Eastern Illinois, were located between Thirty-First and Thirty-Fifth streets, and between Fourteenth and Fifteenth streets; the former being the outer yard and roundhouse, and the latter, the freight depot and team tracks. Commencing in April, 1880, and for several years thereafter, all freight trains of the Eastern Illinois Company used the Western Indiana tracks from Dolton to the yards at Thirty-First street or Fourteenth street, and all passenger trains ran to the northern passenger terminus, which was moved successively from Twenty-Second to Fourteenth street, and in 1882 to Dearborn Station at Polk street. On December 1, 1880, a second and supplemental agreement or lease was executed between the Western Indiana and the Eastern Illinois Companies, granting to the latter the use of additional exclusive property and of additional common property to a station to be constructed to the south of the south line of Twelfth street. It recites that it is the intention that the additional rights and franchises granted should be used and held in the same manner, affected by the same recitals, subject to the rights, liabilities, and conditions as to each party as are contained in the original lease, except as to the commencement, amount of rentals and payments, and the basis of calculating taxes on main passenger tracks. As to the latter, the Eastern Illinois Company, in the manner provided in the original lease, agreed to pay its share upon the proposed extension of line in the proportion that its passenger wheelage over that part of the main line used jointly with other companies should bear to the total passenger wheelage over the same.</p> <p>In 1882 additional funds were found to be necessary to complete the railroad. The original mortgage of $1,600,000 was canceled. A new mortgage, called the “first mortgage,” was executed, amounting to $4,000,000, and still another mortgage, called the “general mortgage,” dated January 1, 1882, was issued, amounting to $10,000,000; and it was contemplated to issue a further mortgage to secure bonds to be issued to retire all outstanding bonds. New several leases were executed between the Western Indiana Company and its several lessees, each of which is dated November 1, 1882. The one with the Eastern Illinois Company recites the two prior leases, the proposed construction of a larger and more convenient passenger station, and the inability of the Western Indiana to furnish station accommodations for passenger business, as required by the terms of the original lease, unless it- should be paitV additional rental. It then grants, in addition to the premises and uses already granted, the right and privilege of using the passenger station, railway tracks, and appendages thereafter to be constructed, etc. The covenants of the lessor and lessee in the original leases are repeated in this third lease, changed only as to the amounts and times of the rental and sinking fund payments to secure the additional issue of bonds. The covenants in the original lease to pay the lessor the lessee’s wheelage proportion of operating expenses is amplified with respect to what shall be considered operating expense ; but the expenses are to be paid in proportion to the wheelage, subject to the $3,000 tax commutation agreement in the original lease. The fourteenth paragraph in each of the leases to the five tenants contained a new provision as follows: “It is further agreed between the lessor and lessee that the lessee herein shall have the right at any time to use and enjoy any part of the common lines and property of the lessor as herein defined, not now included in the lease of October 24, 1879, and the supplemental lease of December 1, 1880, or in this lease, for an increase in the rent to be paid by such lessee equal to such proportion of 6 per cent, upon the cost of such lines and property thus newly used as the use by the said lessee bears to the use and enjoyment thereof by all of the lessees using the same. In case the lessor shall be obliged to provide additional facilities by reason of such additional use, the lessee or lessees so availing themselves of the right to such use under this clause shall pay by way of additional rental not less than six per cent, upon the cost of whatever additional facilities the lessor is obliged to provide by reason of such additional use, and any lessee availing itself of this privilege shall also provide and pay such monthly sinking fund payment as shall extinguish the capital of such additional rental within forty-five years from the time such lessee shall begin to make use of such lines or property as provided for in this article: but this provision is subject to the exclusive rights of the Chicago & Eastern Illinois Railroad Company to do the local business over the main line of the lessor as provided by the lease to the Chicago & Eastern Illinois Railroad Company under date of October 24, 1879, and it is also understood and agreed that this does not apply to what is known as the ‘Belt Division’ of the property of the lessor.”</p> <p>On November 1, 1882, an agreement was made between the Western Indiana of the one part and the five tenant companies of the other part, which recites that the five companies are severally tenants of the Western Indiana Company under lease agreements, and that such five companies have acquired, ánd own in equal proportions, the entire capital stock of the Western Indiana Company, amounting to $5,000,000, which they have purchased for the purpose of securing control of the railway and property of the Western Indiana Company, in order to prevent its passing into possession of any other railroad companies whose interests may be hostile to the interests of the parties lessees; recites the organization of the Belt Railway Company with a capital stock of $12,000,000, of which $6.100,000 is the property of the five lessee companies in equal proportions of $1,220,000 each, and that the Belt Company had leased from the Western Indiana Company in perpetuity its Belt Railroad and elevator; recites the agreement that the stock of both the Western Indiana and the Belt Companies shall be issued in equal proportions to the five lessees, and shall be nonnegotiable by being stamped that it is held subject to the right of other stockholders to purchase it, and that each of the lessees shall be represented by one person upon the board of directors of each of the companies, and shall be authorized to fill any vacancies that occur. It is therein agreed that the working expenses of the Western Indiana shall be paid by the several lessees monthly in proportion to their wheelage over the main line or such part of the main line and property of the Western Indiana as is not set apart for the exclusive use of either; that, as to the Dear-born passenger station and tracks immediately south, the cost of maintenance shall be divided in proportion to the number of passenger cars and engines entering thereon, but not to affect the Eastern Illinois tax commutation provision in its original lease. It was further agreed that while the Western Indiana should have the general control and management of all the common pronerty, and the employment and supervision of officers and employes, its acts and doings should be such only as the parties lessees should unanimously approve.</p> <p>On August 1, 1890, a second main track, between Dolton and Oakdale, the point of junction of the Dolton and State Line branches, was proposed for construction, and thereupon a further agreement was made between the Western Indiana of the first part, the Eastern Illinois Company of the second part, the trustee of the mortgage of the third part, and the lessee appellants of the fourth part, providing for this construction by the Western Indiana; the Eastern Illinois covenanting to make rental and sinking fund payments sufficient to pay the interest and principal of the bonds to be issued to meet the costs of such second main track and its appurtenances. It is expressly stated that the prior leases were to be in no effect altered, and that the effect of the present instrument was to give additional rentals and sinking fund, and to demise additional property, as if they had been included in the former instruments, and the property was to be used together with and as part and parcel of the property, privileges, rights, and franchises demised by the previous leases. The lessee appellants, the parties of the fourth part to the agreement, joined therein to evidence their assent to the making of the improvements and additions provided for by the lease, and to the making of the lease thereof to the Eastern Illinois Company and each of the appellants severally, and for itself agreed that, if it shall exercise its right of user of the track or tracks or property of the Western Indiana Company lying between Oakdale and Dolton, it will pay for the use an increase of rental equal to such proportion of 6 per cent, upon the cost of the line and property so newly used, as it now exists, as the use of such lease bears to the use and enjoyment thereof by all the lessees using the same.</p> <p>On September 30, 1890, the question having arisen between the Western Indiana and one of the lessee companies as to liability for damage claims arising from injuries at railway crossings by trains of lessee companies, where the Western Indiana Company had neglected to properly protect the crossings by gates or signal men, resolutions were adopted by the lessee companies that in respect of all questions concerning the exclusive liability of either tenant for damages in the use made of the property, by reason of any casualty or of any negligence of commission or omission on the part of the Western Indiana Company, the several leases between the tenants and the Western Indiana Company should be thereafter interpreted and understood as constituting the Western Indiana Company the mere medium or agency through which the several tenants, each for itself, controls, operates, manages, maintains, and repairs the railroad and other property; and that the officers and employés of the Western Indiana Company shall be considered as solely and exclusively the officers and employés of the tenant for the doing of all acts which they may have done, and for the doing of such acts as they have omitted to do, the doing or omission of which have given rise to such damage or claim for damage; and that, as between the Western Indiana and each of the tenants, the tenant company shall be exclusively liable for all damages, and shall be considered as having separately indemnified the Western Indiana Company against all claim for damages resulting from the use by such tenant, as fully as if such tenant were in the sole and exclusive control of the railroad and appurtenances, and without reference to the cause of the casualty or the circumstances under which the claim arose.</p> <p>On December 1, 1890, another agreement or lease called the fifth lease, in the general form of the earlier leases, was executed between the Western Indiana Company and the Eastern Illinois Company, reciting the prior leases and their provisions, and granting to the Eastern Illinois Company the exclusive right and privilege of using for its traffic certain real property described, being a strip of land and a certain track connecting therewith, in connection with its freight facilities, the property to be used as part and parcel of the property, privileges, and rights demised by the three prior leases.</p> <p>On November 1, 1891, further enlargements of the main right of way and common property of the Western Indiana Company becoming necessary to accommodate the increasing traffic of the tenants, the Western Indiana Company entered into a further agreement with the Eastern Illinois Company, granting the right and privilege of using, for the purposes of its traffic and running its locomotives, cars, and other rolling stock thereon, so much ‘of the enlargements, additions, and improvements which the Western Indiana shall make upon its railroad as shall be appurtenant to or parcel of that part of the line of railway which the Eastern Illinois has or shall have the right to use and enjoy under the grants recited. The lease provides for additional rentals to cover one-fifth of the proposed issue of 2,000,000 of bonds. All the covenants of the lessee are like the covenants in the original lease, and there is a proviso that the instrument shall not affect or abridge any of the corporate franchises or powers of the.Western Indiana Company to use and operate the railway in its own behalf, or to lease it or make tracks for use by other railway companies, and to furnish facilities similar to those granted to the Eastern Illinois Company. Similar leases to each of the other four tenants, the appellees, are recited in the lease stated.</p> <p>An agreement bearing the same date was made between the Western Indiana Company and the five lessee companies, providing in substance that while, under the five leases of that date entered into, each tenant was required to pay additional rentals sufficient to meet the interest, and by way of sinking fund the principal of the $2,000,000 mortgage, as interest on that sum, the rental should be equalized as between the five tenants on the basis of their respective wheelage uses of the portions of the common property upon which the $2,000,000 was to be expended. It also recites that the five lessees are the beneficial owners of equal parts of the capital stock of the Western Indiana Company; that each of them holds, under leases made by that company, the right to use for the purposes of its traffic, in common with the other lessees, and with the Western Indiana Company and other railroad companies to whom similar rights of user have been and may be granted, certain portions of the railway and property of the Western Indiana Company.</p> <p>On July 1, 1902. it having become necessary for the Western Indiana Company to elevate its tracks as required by the city of Chicago, and to raise a large amount of money for that purpose, the Western Indiana Company entered into an agreement with its five tenants, dated July 1, 1902, which recites that each of the tenant companies holds in severalty certain portions of the property of the Western Indiana Company, and also the right to use for the purposes of its traffic,, in common with the Western Indiana Company, and with other railroad companies to which the Western Indiana Company has granted certain portions of the railroad and property of that company, which rights and properties are reserved to said lessees by the several leases specified and hereinbefore stated. The agreement provided for a new issue of bonds, under a consolidated mortgage, to an amount not exceeding $50,000,000, which should take up outstanding bonds and repay to the several tenants their respective payments into the sinking fund under prior mortgages for the cancellation of the principal of prior bonds, and provide funds for the improvements contemplated and such as should become necessary. The agreement confirmed the existing rights of user held- by the respective tenants, provided for the equalization of such rights by two new provisions—the one canceling the Eastern Illinois’ exclusive right to the local freight and passenger traffic on the Western Indiana line between Dolton and Chicago; the other, canceling the provision of the inter-tenant agreement of November 1, 1891, which redivided certain rentals for interest on the basis of the wheelage use of the portions of the line improved by expenditure of the $2,000,000 thereby provided. It also canceled the Eastern Illinois Company’s special privilege and exemption under its $3,000 commutation clause in its original lease, and provided that thereafter each of the lessees should have equal right to use of the common property of the lessor upon like terms and conditions. It provided that the Western Indiana Company, the lessor, should pay the Eastern Illinois Company $551,246.50 as compensation for the release of the special tax commutation privilege, and for the release of its exclusive right to conduct the entire local business between Dolton and. Chicago, and should pay the Grand Trunk Company, as compensation for its release of its pecuniary benefits under the agreement of November 1, 1891, $20,665.35 per annum from that date until it shall use for its traffic the railroad of the lessor south of Forty-Ninth street. It granted, demised, and leased unto each of the lessees, in addition to the rights, privileges, property, and franchises already granted and leased to said lessees, respectively, the equal right and privilege of using, for the purpose of its traffic, all and singular the railroad, railway tracks, stations, and appendages, and terminal facilities of the lessor of which a common use had been granted under any of the leases, meaning thereby the direct main track or tracks between the two south termini—the one at the state line near Hammond, and the other at Dolton—and the northern terminus at the city of Chicago at the intersection of Polk and Dearborn streets, comprising what is known as the “common property” of the lessor, but with the limitation that the rights and privileges granted should be exercised in common with the lessor and with each of the other lessees, and with such other company or companies as have obtained or may hereafter obtain a grant or lease of similar or other rights, and reserved to the lessor the right to use and operate the railroad on its own behalf, and to grant terminal facilities, similar to those granted, to one or more companies. The grant was for the full term of 999 years from the 1st of July, 1902, and the rental reserved was: First, each lessee to pay $5 per annum rental during such term; second, to pay monthly to the trustee of the mortgage during the first 50 years of the term, and by way of additional rental to that reserved by the existing leases, a sum of money equal to one-half of one-twelfth of the annual interest of all outstanding bonds issued under the consolidated mortgage ; third, each lessee to pay for the exclusive use of such portions of the property held by such lessee in severalty, in addition to the rentals reserved by the then existing leases, a sum of money equal to one-twelfth of the annual interest on bonds issued from time to time under the consolidated mortgage and used for certain purposes specified, to wit, improvements and enlargements, refunding bonds, and the repayment of the sinking fund; fourth, at the end of 50 years, and at the maturity of the bonds, each lessee should pay one-fifth of the principal of the bonds for the purpose specified. The thirty-second paragraph of the lease is as follows: “That whenever any lessee, party of the second part, shall surrender for cancellation to the trustee under said consolidated mortgage an amount of bonds secured thereby equal at their par value to the total original cost aforesaid of such lessee’s exclusive property, such lessee shall be entitled to receive a quitclaim deed of its said exclusive property from the Western Indiana Company, and a release thereof from the lien of said consolidated mortgage, but such deed shall expressly provide, and said conveyance shall be upon the condition, that said property shall not be leased, sold, aliened, nor conveyed by such lessee, until it shall have given written notice to the lessor of its purpose to lease, sell, convey, or alien the same; and that thereupon the lessor and, after it, each of the other.said lessees, shall have the option of buying said exclusive property at its original cost and four per cent, interest from the date of such deed from the lessor to such lessee, or of leasing the same at an annual rental of not to exceed four per cent, on such original cost plus four per cent, interest thereon from the date of such deed; and that if the lessor shall fail to exercise such option within sixty (60) days after the receipt of such written notice, and none of the said lessees shall exercise its option within twenty days after the expiration of said sixty days, such lessee shall thereupon have the right to lease, sell, convey, or alien the said property free and clear from all liens or claims of any nature on the part of the Western Indiana Company.” The thirty-third paragraph of the lease is as follows: “That after the date hereof the lessor shall exclusively manage, operate, and maintain every portion of the common property; and the entire cost of the management, operation, maintenance, repair, and renewal of, and of all taxes, liens, water rents, and assessments on, said railroad, buildings, and facilities, the common use of which is reserved to the parties hereto, and the entire cost of the management, operation, maintenance, repair, and renewal of, and all taxes, liens, water rents, and assessments on, all enlargements and improvements thereof, and additions thereto, and on, and to any other railroad hereafter acquired by the lessor for the common use of the parties hereto, shall be borne by said lessees in the proportion of their several wheelage uses of the various portions of said railroad to the total wheelage use thereof: and, for the purpose of distributing such cost, the lessor shall divide, by lines across and at right angles with its right of way, its said railroad and property, including all appurtenances, into such secticus as shall be necessary in order to equally distribute such cost of the management, operation, maintenance, repair, and renewal of, and all taxes, liens, water rents, and assessments on, said several sections among the parties of the second part in proportion to their respective wheelage uses of such sections; and it may, from time to time, change such sectional divisions the better to subserve the purpose and intent aforesaid.” The fourteenth paragraph states that the lessees have severally covenanted and agreed, each for itself, to and with the lessor, and to and with the trustee—the covenants of the leases being several and not joint—as stated in the document.</p> <p>Under date of July 1, 1903, the Western Indiana Company granted to the Eastern Illinois Company the exclusive use of certain acquired additional freight facilities, upon the covenant of the latter company to pay the interest and principal of the bonds under the consolidated mortgage for the purchase of the premises. The former leases are referred to, and the covenants in the former leases are extended to the property granted, the demised property to be used as part and parcel of the property theretofore demised. This property had not been owned by the Western Indiana Company prior to the date of the lease. “ The ■ title to it was held by a trustee for the benefit of the Eastern Illinois Company, and it had been used by the latter company for many years as a part of its exclusive freight yards. The change in the title is said to have been made to enable the Eastern Illinois Company to convert its ownership held by, the trustee into a lease-hold, so that it might receive the cash value thereof, being the consideration paid.by the Western Indiana Company, as recited in the lease. In 1903 the Chicago, Rock Island & Pacific Railway Company, which is the ownL er of an undivided half of the La Salle Street Station,-obtained control of the Eastern Illinois Company through the ownership of the stock of another company which had before that time become the owner of the stock of the Eastern Illinois, or of so much of the stock as to give it control. The Eastern Illinois Company then asserted Its right to divert certain of its passenger trains from Dearborn Street Station to the La Salle Street Station, and thereby relieve itself pro tanto from the expenses of management, supervision, operation, and maintenance of the Dearborn Street Station and the tracks and fa-' eilities appurtenant thereto. The appellants, the other lessee companies, thereupon filed this bill in equity to enjoin the appellee, the Eastern Illinois Company, from the threatened breach of its obligation to use Dearborn Street Station for its passenger traffic at Chicago, alleging that by such diversion the appellants would be required to pay in proportion the working expenses of the Dearborn Street Station theretofore borne by the Eastern Illinois Company, which the covenant of the latter company required it to continue to bear to the extent of its passenger traffic at Chicago, and would deprive the appellants of the benefit theretofore derived from the passenger wheelage of the Eastern Illinois Company between Seventy-Ninth street and Dearborn Station, and the benefits to each of them from the receipt and delivery by the Eastern Illinois Company of all its Chicago passengers at Dear-born Station. The appellee claimed that its agreement amounted only to a trackage agreement, and vested in it no estate, but that it acquired under the agreements and leases the right to use the terminal facilities or not, as it should from time to time see fit, and that it has violated no obligation assumed by it under the leases and agreements stated, and it was also claimed that the agreements, if they should be construed to contain covenants to use, were against public policy, and that the appellants, if any right of theirs had been infringed, had adequate remedy at law; that the proposed diversion of the passenger business to the La Salle Street Station, was owing to the failure of the Western Indiana Company to furnish adequate passenger facilities ; that the Western Indiana Company is an indispensable party to the suit, and that no decree should'be entered without its presence; and that the appellants here have no interest-in the respective contracts or leases between the Western Indiana Company and the Eastern Illinois Company, or in the enforcement thereof.</p> <p>The court below, upon hearing, dismissed the bill for want of equity, and the cause is brought here for review.</p>

<p>1. Bankruptcy-—Findings of Referee—Review.</p> <p>Findings of fact made by a referee in bankruptcy upon the conflicting testimony of witnesses examined before him have every reasonable presumption in their favor, and should not be set aside or modified unless it clearly appears that there was error or-mistake on his part.</p> <p>2. Same—Right to Reclaim Pp.oeerty—Delivery without Payment Through Mistake.</p> <p>Claimant contracted to sell to a car company, which subsequently became bankrupt, boards to be used in the manufacture of cars, the same to be paid for in cash on or before their delivery. The first shipment was paid for before it was delivered, but subsequently, for the accommodation of the president of the car company, and on his assurance that the boards would not be delivered to the company until payment was made, delivery to him was permitted, to enable him to check up the shipment before payment. During the absence of such president, and also , of the officer of claimant with whom such arrangement was made, through the oversight of an employe, a shipment went into the hands of the car company without prepayment, and was used in the manufacture of certain cars which came into possession of the trustee in bankruptcy. The cars were after-wards sold under an agreement that the proceeds should be held to await the determination of claimant’s rights therein. Held, that the transaction was not a conditional sale with a reservation of title, within the provisions of Code Ga. 1895, § 2776, which makes such reservation void as to third parties unless in writing, but that the contract was for a cash sale in which payment was a condition precedent to the sale, and, as the payment was not made and there was in fact no intentional delivery to the car company, the title remained in claimant by operation of law, and it was entitled to recover the value of the boards from the proceeds of the cars.</p>

The plaintiffs in error were indicted jointly with H. C. Sprinkle aDd J. T. Sprinkle for violation of the internal revenue laws. The indictment contains ten 'counts. The first count charges that the five persons named carried on the business of rectifiers of spirituous liquors, with intent to defraud the United States of the tax on the spirits rectified by them.

This cause came on to be heard upon April 13, 1905. An opinion reversing the decree of the Circuit Court upon the ground of the invalidity of the complainant’s grant was filed May 2, 1905. Held: in Tipton v. Sanders, 2 Head, 690; in Williamson v. Throop, 11 Humph. 265; in Sampson v. Taylor, 1. Sneed, 600; in Blevins v. Crew, 3 Sneed, 155; in Henegar v. Matthews, 88 Tenn. 132, 14 S. W. 554; in Scott v. Price, 2 Head, 536.

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

The Kansas Mutual Life Insurance Company was a mutual life insurance company organized under the laws of the state of Kansas. On the 14th day of April, 1898, it entered into a contract with the defendant in error, Frank Burman, appointing him state manager for the state of Nebraska.

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>On July 12, 1887, the appellants borrowed 83,000 from a Massachusetts corporation, called the Dakota Mortgage Loan Corporation, and executed their note or bond for that sum payable to the order of the corporation, maturing July 1, 1892. This note was negotiable on its face. To secure its due payment, appellants hereinafter called defendants, executed and delivered to the corporation, a mortgage conveying real estate owned by them and situated in the state of Nebraska. Soon after receiving the note the corporation sold it, together with the mortgage, to John Stuart & Co., brokers, of Manchester, England, and placed on the back of the note the following indorsements:</p> <p>(1) “For value received the Dakota Mortgage Loan Corporation hereby assigns and transfers the within note and coupons, together with all its right, title and interest under the real estate mortgage securing the same, without recourse, to-. The Dakota Mortgage Loan Corporation, by Allison Z. Mason, Treasurer.”</p> <p>(2) “The Dakota Mortgage Loan Corporation in consideration of value received, hereby guarantees the payment of each coupon at maturity and collection of the within bond; provided, however, that the said corporation reserves the right to repurchase this bond at any time, at its face and accrued interest to the time of repurchase, and a refusal to legally convey the bonds and mortgage deed shall release said corporation from further liability. In witness whereof the Dakota Mortgage Loan Corporation has signed and delivered these presents by its treasurer, this 13th day of August, 1887. By Allison Z. Mason, Treas.”</p> <p>Subsequently, and before maturity of the note, John Stuart & Co. sold the note and mortgage for value to Walter Haworth, a citizen of Great Britain and resident of Manchester, England, who died before the maturity of the note. Jesse Haworth and Isaac H. Morris became executors of his will by appointment of an English tribunal. Morris died, and Jesse Haworth, the appellee, was left the sole surviving executor under the English appointment Prior to the maturity of the note the name of the Dakota Mortgage Loan Corporation was by an act of the Legislature of Massachusetts changed to Globe Investment Company. Shortly after the maturity of the note the defendants Mary, Richard, and Joseph Leahy borrowed from their codefendant, William Eugene Hayward, $3,000, executing to him as security therefor a mortgage on the same premises which they had before conveyed to secure the loan to the Dakota Mortgage Loan Corporation, and with this money paid the Globe Investment Company the entire amount of principal and interest then due and owing on the first-mentioned loan. At the time' of making this payment defendants had no actual knowledge that the Globe Invéstment Company was not the owner of the note and mortgage. The Globe Investment Company, instead of remitting the money to England and actually paying the note in question, appropriated the same to its own use and continued to report to John Stuart & Co. that the debt remained unpaid and that the borrowers were paying interest semiannually. The Globe Company for some time remitted to John Stuart & Co., the semiannual installments of interest as they were supposed to accrue. These remittances were received by the last-named company, for itself or its transferee, with no knowledge of the payment made to the Globe Investment Company. Subsequently the Globe Company failed, the remittances to England ceased, and shortly thereafter, on September 23. 1896, this suit, a bill in equity to foreclose the mortgage, was instituted in the Circuit Court for the District of Nebraska, by Jesse Haworth and Isaac H. Morris, the English executors, not in their capacity as executors, but as owners and holders of the note and mortgage in question. Subsequently, and after the death of Isaac H. Morris, Jesse Haworth, hereinafter called complainant, filed an amended bill disclosing the death of his co-complainant, but still seeking to recover in his individual capacity. The suit came on for trial and after an intimation by the trial judge that complainant could not maintain the action, he took leave to file an amended bill. This last amended bill was filed June 28, 1902. It was a suit to foreclose the mortgage first mentioned, given to secure the note for $3,000 held by Walter Haworth at the time of his death. It differs in no respect from the former bills, except that the complainant styles himself “sole executor of estate of Walter Haworth, deceased.” He sets forth his own and Isaac H. Morris’ appointment as executors of the estate of Walter Haworth in England, their due qualification, the death of Isaac H. Morris, and his sole survivorship in the trust. He further alleges that afterwards he applied to the probate court in Harlan county, in the state of Nebraska, having jurisdiction over such matters, and was on September 20, 1902, duly appointed executor of the last will and testament of Walter Haworth, deceased; that he still is the acting and qualified sole executor of such estate. Issues were properly joined and on the trial a decree of foreclosure was rendered. To reverse this decree an appeal was duly prosecuted to this court.. There are 14 assignments of error, but counsel for defendants in their brief reduce them, for the purpose of our consideration, to the following 3: “(1) That the court erred in assuming that the complainant had qualified as executor under the laws of Nebraska and had thereby qualified himself to sue in his representative capacity. (2) That the court erred in holding that, although the proceedings in the probate court in Nebraska were not commenced until more than 10 years after the maturity of the debt, still that those proceedings might relate back to the date of the filing of the last amended bill, not only for the purpose of qualifying the plaintiff to sue, but also for the purpose of bringing the suit within the period of the statute of limitations. (3) That the court erred in holding that the assignment placed upon the back of the note had the same legal effect as an indorsement.”</p>

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

This was a proceeding in rem brought by the United States in the court below to coudemn certain merchandise which had been imported into the United States. The goods consisted of laces, embroidery, edging, and insertion which had been manufactured in Saxony and Switzerland, and of three lace dresses.

These cases are so nearly alike that they may be considered together. In separate actions at law upon two policies of fire insurance, one issued by the National Fire Insurance Company, of Hartford, Conn., and the other by the Connecticut Fire Insurance Company, of the same place, E. M. Buchanan, the insured, recovered verdicts and judgments against the insurers. The actions related to the same loss by fire and were consolidated for purposes of trial.

On the 15th day of April, 1905, the complainant, Chicago, Burlington & Quincy Railway Company, an Iowa corporation, filed in the United States Circuit Court for the District of Colorado its bill of complaint against the Colorado Eastern Railroad Company, a Colorado corporation, alleging that since the 20th day of November, 1901, the complainant has been the owner of two parcels of land, known as “Parcel No. 1” and “Parcel x or No. 2,” within the corporate limits of the city…

On the 26th day of October, 1903, William B. Rickerd, while performing the duties of fireman on one of defendant in error’s trains in the state of Wisconsin, was killed by the derailment of the engine on which he was employed. Laura Rickerd, as administratrix, sued the railway company to recover damages for said killing.

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

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

<p>Iñ Error to the Circuit Court of the United' States for the District of Minnesota.</p>

The action in the Circuit Court was on a written agreement between Pungs and the Brake Beam Company, wherein the Brake Beam Company, for certain considerations therein named, agreed to pay Pungs the sum of ten thousand dollars, credit being given for two thousand, five hundred dollars already paid. The defense was the general issue, with notice of special defenses.

<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 Northern District of Iowa.</p>

<p>1. Railroads—Injury at Crossing—Presumption as to Due Care by TravELER.</p> <p>Because the natural instinct of self-preservation generally prompts men to acts of care and caution when approaching or in the presence of danger, there is, in the absence of credible evidence of the actual fact in any instance, a presumption of the exercise of due care and caution; but, like other presumptions of fact arising from the ordinary or usual conduct of men, rather than from what is invariable or universal, this presumption is disputable, and cannot exist where it is incompatible with the conduct' of the person to whom it is sought to apply it, which may be shown by the testimony of eyewitnesses to his movements, or by evidence of the physical surroundings and other conditions at the time.</p> <p>[Ed. Note.—For eases in point, see vol. 41, Cent. Dig. Railroads, § 1121.] ■</p> <p>2. Same—Weight and Application op Presumption. ‘</p> <p>The presumption of the exercise of due care and caution on the part of one approaching a place of danger is essentially inferior in probative force ■ and weight to credible evidence, either direct or circumstantial, explanatory of the actual occurrence, and, in those courts where the presumption underlies the rule that the burden of proving contributory negligence rests upon the defendant and must be maintained by a fair preponderance of the evidence, its force and influence are so largely embodied in the enforcement of that rule that it has little independent application, save as it rests upon a general, but not invariable, rule of human experience which may and should be considered in determining the credibility of evidence and the weight to be given to it when these matters are not otherwise entirely clear.</p> <p>{Syllabus by the Court.)</p>

<p>Courts—United States Circuit Court of Appeals—Appeal and Error—Motion to Dismiss—Delay in Filing Transcript.</p> <p>Where a transcript of the record is filed in the Circuit Court of Appeals within 60 days from the signing of the citation and within the time specified therein, but after the return day of the writ of error, and the failure to file it before that return day has not continued the hearing of the case over any term of court, and no motion to dismiss the writ is made until the expense of printing the transcript has been incurred, the writ will not be dismissed.</p>

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

This is a cause which originated in a state court of Michigan, the circuit court for the county of Wayne, wherein the defendant in error sought to enforce against the steamer Winnebago a lien given by a statute of the state for materials furnished for her construction.

This action in forcible detainer was begun in February, 1904, by the plaintiff in error to obtain possession of certain premises in Chicago occupied by the United States custom house, and in charge of the defendant as collector of customs. The trial was had to the court without a jury, and resulted in a judgment for the defendant.

<p>In Bankruptcy. On petition for review.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Illinois.</p> <p>The facts are stated in the opinion.</p>

The action in the Circuit Court was to recover on a policy of insurance, indemnifying the defendant in error against loss, for common law or statutory liability, for damages on account of bodily injuries, fatal or non-fatal, suffered within the period of such policy, by any employs of the defendant in error.

On motion to dismiss appeal. The petition. in the Circuit Court showed that Mackenzie, a resident of the State of Idaho, defendant to a suit by his wife in the Circuit Court of Cook County, Illinois, for separate maintenance, was arrested on a certain writ of Ne Exeat issued out of said court in said suit, commanding that if the said Mackenzie should fail to give bail according to the provisions of the statute of Illinois, in the sum of ten thousand dollars, to appear before…

<p>Master and Servant—Injury oe Switch Tender—Assumed Risk.</p> <p>Switchyards of a railroad company were on a general level with the top surface of the ties, and in order to drain off the water which would otherwise accumulate thereon a number of small ditches or drains were made, crossing under the tracks between the ties. In the spring it was necessary to clean out such ditches, in order that they might carry off the water from the melting ice and snow. Plaintiff was a night switch tender, who had been employed by defendant in such yards for four or five years, during which time such system of drainage had been in use. While in the performance of his duties one night in the spring, he stepped into one of such ditches, which had been cleaned out the day previous to a depth of from three to six inches, and fell, and ■ was injured by striking the rail. Held, that defendant was not negligent in failing to provide him with a reasonably safe place to work, but that the injury resulted from one of the ordinary risks of his employment, which plaintiff assumed.</p> <p>[Ed. Note.—Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p>Patents—Infringemeni^Stamp-Canceling Machine.</p> <p>The Hey & Laass patent, No. 341,380, the Laass & Hey patent, No. 388,-366, and the Hey patent, No. 632,527, all for stamp-canceling machines of the type in which the letter actuates the printing mechanism, construed, and helé not infringed.</p>

In Equity. Suit for infringement of letters patent No. 434,544, granted August 19, 1890; No. 444,546, granted January 13, 1891; No. 493,216, granted March 7, 1893; No. 526,839, granted October 2, 1894; No. 539,524, granted May 21, 1895—all to William Louden, and relating to hay-carrier apparatus; No. 393,941, for a pulley, granted December 4, 1888, to J. Toney; and No. 490,738, for an adjustable stop device for hay-carriers, granted January 31, 1893, to John H. Burkholder.

<p>Patents—Infringement—Cluster Lights.</p> <p>The Benjamin patents, Nos. 721,774 and 721,777, granted on a divisional application and both relating to a cluster of electric lights, in which the electricity is conveyed to the lamps through plates, instead of by a separate wire to each, disclose sufficient mechanical improvement over prior structures to constitute patentable invention, although not novel in their electrical features. As so construed, held not infringed by a structure mechanically, but not electrically, different from those of the patents.</p>

<p>1. Patents—Suit foe Infringement—Privity of Estoppel with Assignor.</p> <p>If the assignor of a patent, who is estopped to deny its validity, enters into business with others, and all, availing themselves of his knowledge of the patented process or machine, enter upon a manufacture infringing the patent, all are bound by his estoppel when sued for infringement; and, when individuals so estopped form a corporation to carry on the infringing manufacture, the corporation is also deemed in privity of estoppel with them, even though it has some stockholder who is more or less ignorant of the history of the patent and of the transactions which led to the incorporation.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent Dig. Patents, § 184.]</p> <p>2. Same—Infringement.</p> <p>The Carroll patent, No. 475,929, for a nonmetallie bearing, held infringed on motion for a preliminary injunction in a suit by the assignee against the patentee and others.</p>

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

<p>In Equity. On demurrer to amended supplemental bill!</p> <p>For former opinion, see 131 Fed. 603.</p>

<p>In Equity. Suit for infringement of letters patent No. 422,305, for a. wheel for door hangers, granted to William J. Lane February 25, 1890, and No. 426,390 for a door hanger, granted to the same patentee April-22, 1890. On final hearing.</p>

<p>Collision—Vessel at End of Piek—Violation of Statute.</p> <p>A steamer using the end of a pier as a landing place in the North river, in violation of Laws N. Y. 1897, p. 314, c. 378, § 879, which provides that such use shall be unlawful, held liable thereunder for an injury by collision to another vessel entering an adjacent slip, and also in fault for the collision in backing against the other vessel as she was passing at a safe distance.</p> <p>[Ed. Note.—For eases in point, see vol. 10, Cent. Dig. Collision, § 102.]</p>

<p>1. Carriers—Act to Regulate Commerce—Its Objects.</p> <p>The principal objects of the interstate commerce act were to secure just and reasonable rates; to prohibit unjust discriminations in the rendition of like service under substantially similar circumstances and conditions; to prevent undue or unreasonable preference to persons, corporations, or localities; to inhibit greater compensation for a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freight.</p> <p>2. Same—Competition.</p> <p>The act to regulate commerce was not designed to prevent competition between different roads, but rather to encourage it.</p> <p>3. Same—Section 1 op Act to Regulate Commerce.</p> <p>Section 1 of the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) requires that all charges made for the transportation of property shall be reasonable; and the evidence shows that the rates in controversy in these cases are reasonable. .</p> <p>4. Same—Factors to be Considered in Fixing Reasonable Rates—Value</p> <p>op Service to the Shipper.</p> <p>There are a great many factors and circumstances to be considered in fixing rates, and among other things is the value of the service to the shipper, which includes the value of the goods and the profits which the shipper can make by having them transported from one point to another. The evidence and authorities in the cases show that this method of rate making is not only ideal, but practical, when not interfered with by competition; and it is based on an idea similar to taxation. Case cited: I. C. C. v. B. & O. R. Co. (C. C.) 43 Fed. 37, 53.</p> <p>5. Same—Cost op Service to .the Carrier.</p> <p>The evidence shows that the cost of service to the carrier would be an ideal theory for rate making; but it is not practical. Such cost can be reached approximately, but not accurately enough to make this factor controlling. It is, however, worthy of consideration and is a very important factor. Cases cited: I. C. C. v. B. & O. R. Co. (C. C.) 43 Fed. 37, 53; Ransome v. E. C. Ry. Co. (1857) 1 C. B. 437, 26 L. J. C. P. 91; Judson on Interstate Commerce, §§ 148, 149; W. U. Tel. Co. v. Call Pub. Co., 21 Sup. Ct. 561, 181 U. S. 92, 45 L. Ed. 765; I. C. C. v. D. G. H. & M. R. Co., 17 Sup. Ct. 986, 167 U. S. 633, 42 L. Ed. 306.</p> <p>6. Same—Weight, Bulk, and Convenience op Transportation.</p> <p>The weight and bulk of the article to be transported, and the convenience or inconvenience to the carrier in transporting it, may be considered in rate making.</p> <p>7. Same—Amount op the Product or Commodity Offered for Transportation.</p> <p>• The fact that there is a large amount of a product or commodity in the hands of a few persons under almost one control, which is offered for shipment at stated intervals, in fixed and continuous quantities, may be considered in rate making, thus recognizing the principle of selling cheaper at wholesale than at retail. Case cited: I. C. C. v. B. & O. R. .Co., 12 Sup. Ct. 844, 145 U. S. 263-272, 36 L. Ed. 699.</p> <p>8. Same—General Public Good.</p> <p>The general public good may be considered in rate, making. This includes the welfare and advantage of the great body of the citizens of the United States, who constitute the producers, shippers, and consumers; and it also includes the welfare and advantage of the various localities and of the common carriers. Case cited: I. C. C. v. B. & O. R. Co., 12 Sup. Ct, 844, 145 U. S. 263, 86 L. Ed. 699. See, also, T. & P. Ry. v. I. C. 0., 16 Sup, Ct. 666, 162 U. S. 218, 219, 40 B. Ed. 940.</p> <p>9. Same—Competition.</p> <p>Competition may be considered in rate making. The authorities, as well' as the experts in these cases, recognize that competition may be a controlling factor. Cases cited: Pickering, Phipps & Co. v. B. & N. W. Ry. Co., 2 Q. B. D. (1892) 229; I. C. C. v. B. & O. R. Co., 12 Sup. Ct. 844, 145 U. S. 263, 36 L. Ed. 699; C., N. O. & T. P. Ry. v. I. C. C., 16 Sup. Ct. 700, 162 U. S. 184, 40 L. Ed. 935; I. C. C. v. Ala. Midland Ry. Co., 18 Sup. Ct. 45, 168 U. S. 164, 42 L. Ed. 414; B. & N. R. Co. v. Behlmer, 20 Sup. Ct. 209, 175 C.S. 648, 44 L. Ed. 309; E. T., V. & G. Ry. v. I. C. C., 21 Sup. Ct. 516, 181 U.- S. 1, 45 L. Ed. 719; T. & P. Ry. Co. v. I. C. C., 16 Sup. Ct. 666, 162 U. S. 197, 40 L. Ed. 940; I. C. C. v. B. & N. R. Co., 23 Sup. Ct. 687, 190 U. S. 273, 47 L. Ed. 1047.</p> <p>10. Same—No One of the Above Factors is Alone Controlling.</p> <p>None of the above factors alone are considered as necessarily controlling. Neither are all of them controlling as a matter of law. It is a question of fact, to be decided by the proper tribunal in each case, as to what is= controlling. In every case the Supreme Court has held that competition may be controlling. In only one case has it, as a matter of fact, been held not to be a defense.</p> <p>11. Same—Section 3 of Act to Regulate Commerce—Its Object.</p> <p>The object of section 3 of the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]) was to prevent undue preference or advantage to any person, company, firm, corporation, or locality, or any particular description of traffic.</p> <p>12. Same—Undue or Unreasonable Preference or Advantage.</p> <p>The statute does not define the phrase “undue or unreasonable preference or advantage.” Whether a preference or advantage is “undue” or “unreasonable” must be determined by the circumstances of each case.</p> <p>13. Same—Inequality of Charge.</p> <p>Mere inequality of charge does not constitute undue or unreasonable preference or advantage. Railroads are only bound to give the same terms to all persons alike, under the same conditions and circumstances; and any fact which produces an inequality of conditions and a change of circumstances justifies an inequality of charge. Case.cited: I. C. C. v. B. & O. R. Co., 12 Sup. Ct. 844, 145 U. S. 272, 36 L. Ed. 699.</p> <p>14. Same.</p> <p>It is proper under the third section to give a preference or advantage or to discriminate between persons, localities, or traffics, provided such preference, advantage, or discrimination be not undue or unreasonable. Cases cited: I. C. C. v. Ala. Midland Ry., 18 Sup. Ct. 45, 168 U. S. 144, 42 B. Ed. 414; C., N. O. & T. P. Ry. v. I. C. C., 16 Sup. Ct. 700, 162 U. S. 184, 40 L. Ed. 935.</p> <p>15. Same.</p> <p>In passing upon the question of undue or unreasonable preference or advantage, it is not only legitimate, but proper, to take into consideration, besides the mere differences in charges, various elements, such as the convenience of the public, the fair interest of the carrier, the. relative quantities or volume of the traffic involved, the relative cost of the services and profit to the company, and the situation and circumstances of the respective customers with reference to each other, as competitive or otherwise. Case cited: I. C. C. v. B. & O. R. Co. (C. C.) 43 Fed. 37, affirmed 12 Sup. Ct. 844, 145 U. S. 263, 36 L. Ed. 699.</p> <p>16. Same—Competition.</p> <p>In considering the question of undue or unreasonable preference or advantage prohibited by the third section, competition may be considered. Cases cited: E. T., V. & G. Ry. Co. v. I. C. C., 21 Sup. Ct 516, 181 U. S. 1, 45 L. Ed. 719; I. C. C. v. Ala. Midland Ry. Co., 18 Sup. Ct. 45, 168 U. S. 144, 42 L. Ed. 414; Judson on Interstate Commerce Eaw, §§ 175-183; I. C. C. v. Clyde S. S. Co., et al., 93 Fed. 83, 35 C. C. A. 217.</p> <p>17. Same—Originating Competition.</p> <p>Even if one of the defendants (the C. G. W. Ry. Co.) had originated the competition in these cases it would be immaterial. Why a defendant cannot begin the competition is not apparent. Some one must begin, and why not a defendant, if it is losing the business. A contrary construction would discourage competition which the act to regulate commerce, as well as the anti-trust act, was intended to encourage. Cases cited: E. T., V. & G. Ry. Co. v. I. C. C., 21 Sup. Ct. 516, 181 U. S. 1, 45 L. Ed. 719; I. C. C. v. Southern Ry. Co. (C. C.) 105 Fed. 703.</p> <p>18. Same—Distinction between Originating Competition and Reducing Rates.</p> <p>The C. G. W. Ry. Co., by its contract of August 8, 1902, reduced the rates on live stock products; but it did not originate the competition in those products. That competition was going on heween these different defendants and other railroad companies, with which said contract was made. Each company was striving to get what business it could; and the C. G. W. Ry. Co. reduced the rates in order to get its share of the traffic for which all of defendants had been and were then actively competing.</p> <p>19. Same—Reduction op Rates—When Not Voluntary.</p> <p>The reduction of rates made by the C. G. W. Ry. was forced upon it, as it could not otherwise have continued to successfully compete for the business. Said reduction therefore was not “voluntary” on its part, within the meaning of the law. Case cited: E. T., V. & G. Ry. Co. v. I. C. C., 21 Sup. Ct. 516, 181 U. S. 1, 45 L. Ed. 719.</p> <p>20. Same—Distinction between “Real” and “Possible” Competition.</p> <p>The fact that defendants might, if they choose to do so, bring about a severe competition in live stock, as in its products, is immaterial. It is sufficient that real and substantial competition is not as severe in live stock, as in its products; and it is useless to inquire whether it might be possible to make competition as severe in the one case, as in the other. Case cited: I. C. C. v. L. & N. R. Co., 23 Sup. Ct. 687, 190 U. S. 273, 47 L. Ed. 1047.</p> <p>21. Same—Particular Description op Traffic.</p> <p>The construction of the phrase “undue or unreasonable preference or advantage,” when applied to “any particular description of traffic,” must be the same as when applied to “any particular person, company, firm, corporation, or locality.” All of said terms are contained in a single sentence of the third section, and the same construction must be given to all of the sentence that is given to a part of it.</p> <p>22. Same—Section 3 op “Elkins Act,” Approved Feb. 19, 1903.</p> <p>Section 3 of the Elkins Act (Act Feb. 19, 1903, c. 708, 32 Stat. 848 [Ü. S. Comp. St. Supp. 1905, p. 600]) provides a remedy in court, without going before the Interstate Commerce Commission, for any discriminations forbidden by law, including the discriminations or preferences prohibited by sections 1 and 3 of the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 380 [U. S. Comp. St. 1901, pp. 3154, 3155]).</p> <p>(Syllabus by the Court.)</p>

<p>Street Railroads—Injury to Person Crossing Track with Wagon—Contributory Negligence.</p> <p>Under the law of Pennsylvania, as settled by decision, it is the duty of the driver of a wagon to look and listen immediately before attempting to cross the tracks of an electric street railroad, and a plaintiff driving a wagon having a hood, which prevented him from seeing on either side, who looked on first entering the street, and then, although he saw a car approaching, drove upon the track without again looking, is guilty of •negligence per se, which precludes his recovery for an injury resulting from a collision with such car.</p> <p>[Ed. Note.—Eor eases in point, see vol. 44, Cent. Dig. Street Railroads, .§ 215.]</p>

<p>At Taw. On motion by plaintiff for new trial, and motion by defendant for judgment notwithstanding the verdict.'</p>

On Application for Review of a Decision of the Board of United States General Appraisers. This case relates to a decision of the Board of General Appraisers, G. A. 5,437 (T. D. 24,715), which overruled the protest of Leerburger Bros, against the assessment of duty by the collector of customs at the port of New York.