Volume 142 — Federal Reporter

<p>1. Criminal Law — Evidence—Prosecution for Aiding and Abetting.</p> <p>In a prosecution for aiding and abetting a criminal offense, the commission of the offense by the principal and his criminal intent are fundamental issues, and are provable primarily without reference tc connection with the defendant or the line of evidence which may establish the further issue against him.</p> <p>2. Same — Review by Appellate Court — Harmless Error.</p> <p>The rule that harmless error is not ground for reversal is applicable in criminal as well as civil cases, although the question of prejudice in such cases must be resolved in conformity with the strict principles of the criminal law.</p> <p>3. Same — Evidence.</p> <p>In the trial of a defendant for aiding and abetting an officer of a national bank in the misapplication of bank funds by lending the same to an insolvent corporation, of which defendant was president and principal owner, evidence of the relations between defendant and such officer prior to the transaction in question is admissible, as bearing upon the question of the officer’s knowledge of the financial condition of defendant and his corporation.</p> <p>4. Same — Expert Evidence — Testimony of Accountant.</p> <p>The testimony of experts as to the general results shown by books of account which are in evidence is admissible.</p> <p>5. Evidence — Proof of Insolvency — Books of Account of Creditor.</p> <p>Semble, that on an issue as to the insolvency of a debtor of a bank the books of the bank are admissible as prima facie evidence of the amount of the corporation’s indebtedness to it.</p> <p>6. Criminal Law — Proof of Intent — Evidence of Other Like Offenses.</p> <p>On the trial of a defendant charged with aiding and abetting an officer of a national bank in the misapplication of its funds by lending the same to an insolvent corporation, of which defendant was president, evidence that such officer also lent money of the bank to other insolvent corporations is admissible, as tending to show his intention in making the loans charged which is a material issue.</p> <p>7. Same — Review by Appellate Court — Harmless Error.</p> <p>Error in the admission of evidence under one count of an indictment does not affect a judgment on other counts charging separate and distinct offenses.</p> <p>8. Sam:e — Trial—Instructions.</p> <p>The matter of reviewing the testimony upon any or all issues in the ease in the instructions, and the comment upon it in one or another phase is entirely within the discretion of the trial court, subject only to the re quirement that material and controverted questions of fact must be submitted to the jury. It is not error to refuse requests, although they correctly state the law applicable, if they are fairly covered by the charge given, nor in any event to refuse to give instructions which are not strictly applicable to the case under the evidence.</p>

<p>Appeal from the District Court of the United States for the Northern District of Illinois.</p> <p>This appeal is from a decree of the District Court, sitting in admiralty, in favor of the appellee. Erie Railroad Company, as libelant, for recovery of $28,815, against the steamer Conemaugh and the appellant Erie & Western Transportation Company, as claimant. The libel is in rem, and propounds, in effect, that Erie Railroad Company is successor in interest to Union Steamboat Company, as owner of the propeller New York; that a collision occurred October 21, 1891, between the propellers New York and Conemaugh, resulting-in the sinking of the Conemaugh; that proceedings thereupon arose in admiralty, which are detailed, wherein it was ultimately adjudicated that both vessels were at fault for the collision, and each was liable for a moiety of the damages which ensued; that the final decree therein condemned the New York to pay the entire damage of the Conemaugh’s cargo, without recoupment or allowance for one-half thereof chargeable to the Conemaugh, because no pleading was filed demanding such recoupment; that the libelant accordingly overpaid $19,734.61, which should have been borne by the Conemaugh and her owners, and was thus “relegated to its separate remedy against the Conemaugh”; and it is entitled to and prays recovery for such amount and interest thereon. The prior proceedings in admiralty upon which the libel and decree rest the right of recovery are notable for their course and duration, and a summary is needful for understanding of the theory on which recovery was sought and allowed. As the appellant’s brief well and concisely recites these facts (approved on behalf of the appellee as “substantially correct”), such recital is incorporated in this statement, as follows:</p> <p>“On the 21st day of October, 1891, a collision occurred in the Detroit river between the propellers New York, owned by the appellee’s predecessor, the Union Steamboat Company, and the Conemaugh, owned by the appellant. The collision resulted in the sinking of the Conemaugh, with great damage to her cargo of miscellaneous package freight, and in some small damage to-the New York. November 11, 1891, appellant, as owner of the Conemaugh and bailee of her cargo, filed libel in the United States District Court for the Eastern District of Michigan against the New York. The Union Steamboat Company answered for the New York, denying all liability, and attributing the disaster solely to the fault of the Conemaugh; also setting up the-damage sustained by the New York as about $3,000. Subsequently the Union Steamboat Company filed a cross-libel for the physical damage to the New York, but no process was issued and the decree dismissing the cross-libel was not appealed from by the Union Steamboat Company. On hearing both steamers were held at fault. 53 Fed. 553. Rehearing was had, resulting in the New York being held solely in fault. At this stage the British & Foreign Marine Insurance Company, Limited, the Insurance Company of North America, the Union Insurance Company, and the Marine Insurance Company, as insurers on parts of the Conemaugh’s cargo, having paid the loss, intervened for their interest, alleging that the sole fault lay with the New York. On January 25, 1895, the parties stipulated that the damage sustained by the New York amounted at that time to $3,391.19. The other damages having been determined, decree was entered in favor of appellant for its own damage and as trustee for the cargo damage; the decree providing, however, that the amount allowed for cargo insured by the intervening companies be paid to them. The owner of the New York appealed. The United States Circuit Court of Appeals for the Sixth Circuit reversed the decree of the District Court and held the propeller Conemaugh solely at fault, dismissed the libel and the petitions of the insurers, and ordered decree against this appellant in personam for the New York’s damage. 82 Fed. 819, 27 C. C. A. 154. Petition for rehearing was denied. This appellant and the intervening insurers petitioned the Supreme Court for writ of certiorari. The petition was granted, and on hearing both vessels were held at fault. 175 U. S. 187, 20 Sup. Ct. 67, 44 L. Ed. 126. Mandate thereupon issued to the District Court directing a decree in accordance with the opinion. Decree was entered in the District Court, dividing the damages sustained by the steamers, which, as of July 3, 1896, required the owner of the New York to pay to the appellant herein in its own right $13,083.33, with interest at 7 per cent, from that date until paid, and required the New York to pay the entire cargo damage. The insurers on cargo which had already intervened were decreed $19,841.56. The balance of the cargo damage, amounting to $19,627.67, was decreed to appellant as trustee. The owner of the New York then petitioned the Supreme Court for writ of mandamus, directed to the District Court for the Eastern District of Michigan, to require said court to enter a decree which would divide the damage to cargo equally between the New York and the Conemaugh. Writ in the alternative was issued, answered, and on hearing the petition was dismissed, as the decree entered was in accordance with the mandate. Ex parte Union Steamboat Co., 178 U. S. 317, 20 Sup. Ct. 904, 44 L. Ed. 1084. Although the application to the Supreme Court was to enter decree which would divide the cargo damage equally to the two vessels, the question of recoupment was argued. The Supreme Court said, among other things, that no question of recoupment was presented to or passed upon by them in deciding the case, and that, if the District Court erred in not allowing it, it was matter for appeal. Thereupon the owner of the New York appealed from the decree so entered. Appellant [here] moved dismissal of the appeal, on the ground generally that the Circuit Court of Appeals was without jurisdiction to review in any manner the decree as it had been entered only in conformity with the mandate, and so was the decree of the Supreme Court. The motion to dismiss was denied. 104 Fed. 561, 44 C. C. A. 38. The appeal was then argued and the decree below affirmed. 108 Fed. 102, 47 C. C. A. 232. The Union Steamboat Company then (in its turn) petitioned the Supreme Court for a writ of certiorari, which was granted. The cause was again tried in the Supreme Court, and the decree which had been entered by the District Court on its mandate was affirmed. 189 U. S. 363, 23 Sup. Ct. 504, 47 L. Ed. 854. While in the Supreme Court the last time the insurers, who had covered that portion of the cargo for which this appellant had continued thereto as trustee, intervened. May 16, 1901, after dismissal of the petition for mandamus by the Supreme Court, the owner of the New York paid so much of the cargo damage as the decree required to be paid to the interveners, and after the affirmance of the decree by the Supreme Court the remaining damage and costs were paid as provided by the decree, and the case closed.”</p> <p>Objections to the libel, for want of jurisdiction and of res adjudicata, were raised by exceptions, and renewed by the answer. The answer further sets up, by way of defense, the bill of lading under which the cargo of the Conemaugh was carried, which contained provisions (1) giving to the carrier the benefit of insurance on the cargo — such insurance being effected and the loss paid to the shipper — and provided against liability therefor, unless (2) written claim was made within 30 days, and (3) action was brought for any loss within three months, and it is averred that no claim was so made or action brought. No issues of fact arose, as a stipulation was filed which brought in the printed records in the prior proceedings as évidenee, and admitted the averments of the answer respecting the terms of lading, fact of insurance, and payment of loss to the shipper, and that no claim was made by shipper or insurer, or suit brought against the Conemaugh for the cargo loss, within the limitations of the bill of lading.</p>

This is an appeal by the defendant and cross-complainant from a decree of the Circuit Court of the United States for the Eastern District of North Carolina entered in a suit for alleged fraud and misrepresentation in the sale of certain timber lands, etc., in Northampton county, N. C., in which there was a cross-bill for the enforcement of the payment of certain notes given for unpaid purchase money.

This was an action by the Third National Bank of Springfield, Mass., against Nelson Morris, Edward Morris, and Frank E. Vogel, partners as Nelson Morris & Co., and the J. C. Bohart Commission Company, a corporation, to recover the value of 226 head of .steex-s alleged to have been converted by them to their own use. Sex-vice was obtained only upon the defendant Edward Morris, and the action proceeded against him alone.

<p>1. Bankruptcy — 'Voidable Preferences — Effect of Delay in Recording Instruments of Transfer.</p> <p>In the provision of Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended in Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, p. 689], that “where tbe preference consists in a transfer, such period of four months shall not expire until four months after, the date of the recording or registering of the transfer, if by law such recording or registering is required,” the word “required” has reference to the character of the instrument of transfer required to be recorded by the state law, rather than to the particular individuals who by reason of adventitious circumstances may or may not be affected by an unrecorded instrument. The purpose and effect of such amendment was to change the rule applied to the original and prior acts, under which, not only the requirement of recording, but the effect of a failure to record were controlled by the state law, by making instruments of transfer required by the state law to be recorded, in the sense in which such phrase is ordinarily used, speak from the date of recording, and not the date of execution, upon the question of voidable preferences.</p> <p>2. Same — Chattel Mortgage.</p> <p>Rev. St. Mo. 1899, § 3404, requires a chattel mortgage to be recorded, within the meaning of Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended in Act Feb. 5, 1903, c. /4S7, § 13, 32 Stat. 799 [ü. S. Comp. St. Supp. 1905, p. 689], although it does not make an unrecorded mortgage void absolutely and under all circumstances, and a chattel mortgage given to a creditor by an insolvent more than four months prior to his bankruptcy, although the creditor did not then know of the insolvency or have reason to believe a preference was intended, constitutes a voidable preference, where it was not recorded until within such four months and after the creditor had such knowledge.</p> <p>3. Same — Missouri Statute.</p> <p>Even if the question of the effect of delay in recording a chattel mortgage is to be determined by the state law, under Rev. St. Mo. 1899, § 3404, which as construed by the state courts makes a chattel mortgage first come into existence as a valid mortgage when it is recorded as against prior general creditors, it then first comes into existence as to a trustee in bankruptcy of the mortgagor, and if, although given before, it is not recorded until within four months prior to the bankruptcy and under circumstances which would render it a voidable preference if it had been then given, the trustee may defeat it as such preference.</p>

<p>1. Indemnity — Action for Breach — Evidence.</p> <p>In an action by the owner of a canal against the surety of a contractor who did work thereon based on a provision of the contract which required the contractor to save the plaintiff harmless from all claims “on account of or by reason of work done or omitted to be done” under his contracts and to defend all suits which might be brought on such claims, the records of judgments obtained against plaintiff in actions brought on claims of such character, and of the pendency of which the contractor and defendant were notified, which judgments plaintiff paid, are relevant evidence to establish a breach of contract and are conclusive on defendant where the actions are shown to have been based on work done by the contractor under the contracts involved, and such fact may be established by extrinsic evidence showing that at the time of the injuries sued for he was in the sole charge of the work under such contracts.</p> <p>2. Damages — Certainty as to Amount.</p> <p>To authorize the recovery of damages the extent of the loss or injury must be proved with reasonable certainty.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent tiig. Damages, §§ 5, 502.]</p> <p>3. Indemnity — Action fob Breach — Defenses.</p> <p>Where a contractor to construct a canal agreed to save the canal company harmless from all claims on account of work done or omitted to be done under the contract, and in the doing of the work obstructed certain ditches of adjoining landowners, causing damages for which they recovered judgments against the company, the contractor and his surety cannot avoid liability to reimburse the company therefor on the ground that after it took possession of the canal it might have prevented the injuries by reopening the ditches, since it was the very purpose of the agreement to place such' duty on the contractor.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.</p> <p>This is a bill to enforce a mortgage upon real estate made by J. W. Brill January 22, 1901, to secure the mortgagor’s note of even date for $6,200, payable to the mortgagee, Charles F. Lefmann. The prayer of the bill is for a sale of the mortgaged premises to satisfy the debt secured. 'Shortly after this mortgage was executed Mrs. Louisa K. Brill, the wife of the mortgagor, filed a petition in the court of common pleas for Cuyahoga county, Ohio, against her husband, the mortgagor, to secure alimony, alleging abandonment without good cause. The only decree sought was one compelling the husband to provide for the maintenance of the wife and children of the marriage. The proceeding was one authorized by section 5702 and 5703, Rev. St. Ohio 1905. By section 5703 it is provided that under such a proceeding the court may “give judgment in favor of the wife for such alimony out of her husband’s real and personal property as is just and equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross -or installments.” A number of parcels of real estate were described as owned by her husband, among them the mortgaged premises, being the place occupied by Mr. and Mrs. Brill on Euclid avenue, Cleveland, Ohio, as a residence. The petitioner prayed for and obtained an order restraining the defendant from selling or incumbering any of the property described, and that same be set apart to her for the maintenance and support of herself and children. By an amended petition filed April 6, 1901, Charles F. Lefmann was made a defendant upon an allegation that “he claimed some interest or estate in the premises described.” That he had in fact any right or interest the petition denied, but prayed that he “be required to answer and set up whatever interest or estate he may claim in said premises or be forever barred from hereafter in any way asserting same.” Lefmann answered and filed a cross-petition, setting up the note and mortgage herein sought to be enforced, and prayed that his interests should be protected and his claim paid out of any proceeds arising from any sale of the premises “prior to any claims of the plaintiff.” J. W. Brill was made a party by publication under sections 5045, 50-49, Rev. St. Ohio 1905, but did not appear or defend. Such proceedings were had as resulted in a decree of the court finding that J. W. Brill had without good -cause abandoned his wife and children, and that the petitioner was entitled to alimony. Thereupon said court adjudged “that the said plaintiff have and possess, as and for a portion of her alimony, all of the real estate herein-before described as parcels A, B, and C, and also all of the defendant’s interest, -being one-half interest in common in the real estate hereinbefore described as parcels Nos. 1 and 2, and that she have and hold the same henceforth as- and for her own separate property and estate free and clear from any and1, all claims of the defendant, Joseph W. Brill. * * * ”</p> <p>The property described as parcels Nos. 1 and 2 are the mortgaged preml ises, said mortgage having been made prior to this suit for alimony. In respect to this mortgage and the cross-petition of Lefmann, the decree cites that the cause was heard upon the “amended petition, the answer and cross-petition of Charles IP. Lefmann, *. * *” and at the tail of the decree it is said: “It is further ordered, adjudged and decreed that the answer and</p> <p>cross-petition of Charles F. Lefmann be, and the same is hereby, dismissed at the cost of the plaintiff without prejudice, however, to any right of- the-said Charles F. Lefmann to hereafter bring or maintain an action to enforce the lien of his mortgage set up by him in his said answer and cross-petition, and the court makes no finding as to the validity or invalidity of the said mortgage.” The right of redemption belonging to J. W. Brill as mortgagor having been acquired by Mrs. Brill through the aforementioned decree of the Cuyahoga court of common pleas, she alone was made a defendant to the-present bill of foreclosure, although an effort to make J. W. Brill personally a party was unsuccessful. The present bill was answered by Mrs. Brill and a decree resisted upon allegation that the mortgage was made by her said husband in anticipation of her said suit for alimony and for the purpose of incumbering his interest in the mortgaged premises, and thereby fraudulently defeating her claim for alimony. The answer further denied that there was-any consideration for the note and mortgage, and that if founded upon any good consideration the note secured by the mortgage had been satisfied, paid,, and canceled. By way of cross-bill the respondent averred that the mortgage so set up constituted a cloud upon her title, and she prayed that it be decreed null and void and canceled as a cloud. Upon pleadings and evidence the Circuit Court held that the mortgage was without consideration, having been made by the said J. W. Brill “for the purpose of creating an apparent incumbrance and lien upon the said property of the defendant, Louisa K. Brill, and that there is nothing whatever due to the complainant upon said note or mortgage. * * i” The court further decreed the cancellation of the mortgage as a cloud upon the cross-complainant’s title. From this decree the complainant, mortgagee has appealed and assigned error.</p>

<p>1. Evidence — Conveyances—Declarations by Grantob.</p> <p>In a suit in equity to have a deed, absolute on its face, from a mother, since deceased, to a child, declared to be held in trust for the benefit of certain others of her children, testimony as to statements made by the grantor both prior and subsequent to the execution of the deed respecting why and for what purpose the same was made, when not a part of the res gestee, and not introduced for the purpose of showing either mental incapacity or duress, held to be inadmissible.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 841, 846, 847.]</p> <p>2. Frauds. Statute of — Memorandum—Sufficiency.</p> <p>Evidence tending to show that the defendant, in a mere matter of bookkeeping, in a corporation of which he was manager and the complainant a stockholder, had entered a charge against the corporation for counsel fees paid by the defendant in respect to the property sought to be charged with such trust, and the fact that at one time the defendant made a written lease of the property, executed by him, with the word “Agent” affixed, without more, held not to be a sufficient memorandum in writing to take the case out of the operation of the statute of frauds.</p> <p>3. Deed — Setting Aside — Fraud.</p> <p>Attacks made by heirs upon deeds from a parent to a favored child, not to be encouraged or sustained, except upon the clearest and fullest proof.</p> <p>[For cases in point, see vol. 16, Cent. Dig. Deeds, § 641.]</p> <p>{Syllabus by the Court.)</p>

<p>1. Post Office — Deposit of Obscene Matter in Mail — Indictment—Duplicity.</p> <p>A count for mailing a single copy of a circular declared by Rev. St. I 3893 [U. S. Comp. St. 1901, p. 2658], to be nonmailable, is not double merely because it alleges two reasons why the circular was nonmailable, viz., that it gave information where an obscene book might be obtained and was in itself obscene.</p> <p>2. Same — Allegation op Scienter — Motion in Arrest of Judgment.</p> <p>An indictment charging the defendant with “willfully, unlawfully, wrongfully, and knowingly” mailing an obscene circular giving information where an obscene book might be obtained, the sufficiency of which is not questioned before verdict, is, upon motion, in arrest of judgment, to be taken as meaning that the circular was mailed with knowledge of its contents and of the contents of the book respecting which it gave information.</p> <p>3. Criminal Law — Request at Conclusion of Government’s Evidence for Directed Verdict of Not Guilty — 'Waiver.</p> <p>Where at the conclusion of the government’s evidence a defendant requests the court to direct a verdict of not guilty, but instead of standing upon the request and his exception to its denial produces evidence in his defense, he waives all right to insist that the verdict should be rested solely upon the evidence produced by the government.</p> <p>4. Post Office — “Causing” Obscene Matter to be Deposited in the Mail— Responsibility of One Partner fob Act of Another.</p> <p>Where, in the execution of their joint enterprise, one partner deposits a nonmailable circular in' the mail by the authorization of another, or with his knowledge and acquiescence, the latter causes the circular to be so deposited within the meaning of Rev. St § 3893 [U. S. Comp. St. 1901, p. 2658.]</p> <p>5. Same — Obscene Matter — Test of Obscenity.</p> <p>Where the acts described and the ideas conveyed in a book are calculated to deprave the morals of the reader by exciting sensual desires and libidinous thoughts, the book is obscene, under Rev. St. ,§ 3893 [U. S. Comp. St 1901, p. 2658] ; and it is immaterial that the information conveyed is accurate and scientific and tends to prevent disease and other ills resulting from existing ignorance upon the topics discussed, that as a whole the book is calculated to be of value to the medical practitioner and to men and women in the marriage relation, that its publication was approved by several physicians, and that some portions of it are extracts from standard medical works.</p> <p>6. Same — Defendant’s Belief.</p> <p>The inquiry under Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], is whether or not the circular or book charged to have been obscene was in fact of that character, and if it was, and the defendant knew its contents at the time of the act charged, it is immaterial that he himself did not regard it as of that character. Everyone who uses the mail for distributing circulars or advertising books must take notice of what is obscene.</p> <p>7. Same — Not Necessary that Entire Book be Considered.</p> <p>Whether or not a book is obscene, under Rev. St. § 3893 [U. S. Comp. St. 1901, p. 2658], is to be determined upon a consideration of such parts of it as are claimed to be of that character, together with so much of the context as may be necessary to a proper understanding of them, but not necessarily upon an inspection of the entire book and with reference to all of its contents.</p> <p>(Syllabus by the Court.)</p>

<p>Coiatsion — Steamer in Fog.</p> <p>Former opinion, holding each of two steamers In fault for a collision In a fog outside Boston Harbor, affirmed on rehearing.</p> <p>[Ed. Note. — Collision rules as to speed of steam vessels in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

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

<p>1. Sale — Construction oe Contract — Practical Construction by Parties.</p> <p>Where, in the performance of a contract by which defendant sold to plaintiff a large quantity of cement to be delivered throughout a year “all in car load lots f. o. b.” shipments to be made at any time within 10 days after the receipt of orders, defendant uniformly obtained the cars, and made no claim that it was plaintiff’s duty to furnish the same, such course of dealing amounted to a practical construction of the contract as imposing such duty on defendant, by which it was bound.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, § 753.]</p> <p>2. Same — Breach oe Contract- — Measure oe Damages.</p> <p>A contract made by letter for the sale.of 200,000 barrels of cement, to be delivered during a year, contained stipulations on the part of the seller: “We will pay you 15c. per barrel as liquidated damages for each and every barrel short of the 200,000 barrels; and we agree to make all shipments to you within ten days after receipt of orders.” Held, that such clause was valid and furnished the only measure of the damages recoverable by the purchaser for nondelivery, whatever might be the rule of damages were the claim merely for delay in filling orders afterward shipped.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. gales, § 1187.]</p>

<p>1. Evidence — Secondary Evidence — Copies oe Documents.</p> <p>The most conclusive proof of the correctness of copies of documents does not abrogate the rule which excludes them as secondary evidence, unless it is shown that the party offering them is unable to produce the originals or to compel their production.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 561.]</p> <p>2. Trial — Reception oe Evidence — Admission oe Pleading eor Particular Purpose.</p> <p>Where a party offered a pleading in a former suit in evidence for a particular purpose which on objection was further limited by the court, to which ruling no exception was taken, the adverse party cannot claim that copies of documents attached to such pleading having no relation to the purpose for which it was offered or admitted were either in evidence or were offered.</p> <p>3. Evidence — Hearsay—Letter Written by'Third Person.</p> <p>The contents of a letter written to a plaintiff by a third person not connected with defendant, which purports to contain a statement made to the writer by defendant, are inadmissible as hearsay.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent Dig. Evidence, § 1194.]</p> <p>4. Trial — Reception oe Evidence — Answers to Previous Letter.</p> <p>Where a letter offered in evidence was in reply to another, the adverse party has the right to require the two to be offered together.</p> <p>5. Evidence — Pertinency.</p> <p>Where the good faith of the action of a plaintiff in demanding security from defendant before doing an act which defendant claimed it had obligated itself to do was in issue, evidence that defendant possessed ample means was pertinent.</p> <p>6. Appeal and Error — Review—Harmless Error.</p> <p>The improper admission of evidence is not reversible error, where it cannot reasonably be supposed to have been prejudicial to the adverse party.</p>

Appeals from the District Court of the United States for the Eastern District of New York. This cause comes here upon cross-appeals from a decree of the District Court, Eastern District of New York, holding both vessels in fault for a collision in the North river, slightly above Pier 1 on June 15, 1902, at 6:30 p. m.

<p>1. Collision — Steam Vessels Meeting — Violation of Passing Agreement.</p> <p>Bar Point Light, which marks the mouth of Detroit river is upon a crib in Lake Erie, some distance south of the mouth of the river, and northward from it on the Canadian side of the river at a distance of 2,800 feet is a gas buoy. The water in the lake between the light and the buoy is of sufficient depth for navigation, and it is the custom and usage for vessels either bound in or out of the river to pass between them. Held, that an agreement to pass port to port made between a vessel passing out of the river when a half mile north of the light, and a vessel coming in which was a half mile to the east of the light, both being headed toward the light, must be construed with reference to such custom, and required each vessel to keep to the starboard side of the channel between the light and the buoy, and that the incoming vessel was in fault for a collision which occurred 400 feet to the northeast of the light for being on the wrong side of such channel.</p> <p>2. Same — Passing Agreement — Usage.</p> <p>The locality being known as one which, in following the usual custom, required each vessel to turn before their courses would cross, the rule respecting crossing courses had no application, nor was it a violation of the passing agreement for the outgoing vessel to make the turn to port so as to pass to the north and east of the light</p> <p>3. Same.</p> <p>One of two vessels which have made a passing agreement is not bound to anticipate that the other will not act lawfully and comply with her agreement, and so long as there is apparently reasonable opportunity for her to do so it is not a fault to act on the assumption that she will.</p> <p>4. Same — Risk op Collision.</p> <p>It is the duty of a vessel to slacken speed, or stop, or reverse if necessary when approaching another, so as to involve risk of collision, but there is no risk of collision within the meaning of the rule so long as the two vessels, by complying with their passing agreement, can certainly pass in safety, and each vessel may be navigated upon .this supposition until the intervention of something which should operate as notice to an officer of skill and prudence of the presence of danger.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 191, 192.]</p> <p>5. Same — Contributory Fault — Evidence to Establish.</p> <p>Where the fault of one vessel for a collision is established beyond question, she is not entitled to a division of damages with the other, except upon clear proof of some fault on the part of the latter, not made in extremis, and reasonable doubts should be resolved in her favor.</p> <p>6. Same.</p> <p>A vessel which in all respects complied with a passing agreement held not chargeable with contributory fault for a collision for not anticipating risk of collision and acting thereon sooner than she did.</p>

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

<p>Appeal from the District Court of the United States for the District of Indiana.</p> <p>The appellants, comprising the firm of W. W. & J. R. Watts, presented claim before the referee in bankruptcy for legal services rendered under employment by the receiver, appointed by the circuit court of Floyd county, Ind., under a complaint filed and proceedings pending therein against M. Zier & Co., the bankrupt corporation, prior to the proceedings in bankruptcy. Their services are recited in an affidavit of W. W. Watts to consist of investigations of transactions of the corporation and its affairs, wherein various complications appeared, advising the receiver in respect of his duties, and effecting various settlements and collections; as substantially continuous from December 30, 1902, when the receiver was appointed, to February 19, 1903, when the receiver tendered his resignation to the state court and ceased operations; and as beneficial to the estate of the bankrupt, and of the value of §1,250. This claim- was allowed by the referee after hearing testimony as to the nature and value of services. On review the/ ruling of the referee was Reversed by the DistfiSFUoufFand the. claim disallowed, and this appeal is from the order thereupon. The District Court finds, as recited in the order, “upon consideration of the records and proceedings of this court in said matter of M. Zier & Company, as well as the additional evidence furnished under the certificate of the referee, that the services of said firm were rendered in an unsuccessful effort to obstruct-and defeat the jurisdiction of this court, which has greatly increased the costs and expenses that are chargeable against the estate in bankruptcy over and above any benefit which it has derived from or is incidental to the services aforesaid”; that the services “were not beneficial to said estate in bankruptcy”; and that the allowance by the referee was in violation of certain rules of the court and was “unauthorized and void.” The proceedings in the Floyd circuit court were instituted by the appellants, .as attorneys on behalf of Joseph T. Ryerson & Son, as creditors of the bankrupt, on December 30, 1902, and the receiver therein was appointed the same day and entered into possession of the assets. The petition for involutary bankruptcy was filed February 6, 1903, and a receiver in bankruptcy was appointed February 11, 1903. Possession of the assets was withheld from the receiver in bankruptcy, under the advice of the appellants, and through their advice and conduct, in the first instance, delay and conflict occurred over the possession, resulting in the proceedings reported as In re Watts and Sachs, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933, and causing large expense to the estate in bankruptcy. The further facts and circumstances which are deemed pertinent are mentioned in the opinion.</p>

This was an action by the railroad company in the United States Court for the Northern District of the Indian Territory to recover from Doherty upon a voluntary subscription. A verdict was returned for the plaintiff, and the judgment thereon was affirmed by the United States Court of Appeals in the-Indian Territory.

This was an action in replevin by Carlisle to recover possession of 40 acres of cotton. In December, 1900, he sold to the defendant Davis a span of mares and took from him a note for the purchase price and to secure the same a chattel mortgage upon the mares and also upon the cotton. It was recited in the defeasance clause of the mortgage that it should be void if Davis paid the note and all other indebtedness including all other accounts made or given up to October 1, 1901.

To appellant’s bill a demurrer on several grounds, some of which are considered in the opinion, was sustained; and, upon appellant’s refusal to amend, a final decree dismissing the bill was entered.

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

<p>1. Action — Action por Violation of Ordinance — Character of Proceeding.</p> <p>An action for violation of a town ordinance, although a fine may be imposed and enforced by imprisonment, is civil and not criminal in char- ° acter.</p> <p>[Ed. Note. — Por cases in point, see vol. 1, Cent. Dig. Action, § 97.]</p> <p>2. Same — Appeal—Arkansas Statutes.</p> <p>Under the provisions of Mansfield’s Digest of Arkansas, in force in the Indian Territory, which confer on mayors of municipal corporations the powers, of a justice of the peace, and provide that appeals from his decisions shall be taken in the same manner' as from those of a justice, and which further require an affidavit to be filed on an appeal from a justice in civil cases, stating that the appeal is not taken for the purpose of delay, such an affidavit is essential to perfect an appeal from the judgment of a mayor’s court imposing a fine for violation of an ordinance.</p>

This was an action in trespass brought by the Warren Live Stock Company, which claimed that the defendants conspired to break up its business of rearing and grazing sheep upon its lands in Colorado, and to drive it and its sheep away.

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

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

In Bankruptcy. Petition to revise in matter of law an order, of the district court of Garfield county, Okl., in a bankruptcy proceeding. One P. S. Doxey was adjudicated a bankrupt upon the petition of W. B. Worsham & Co., creditors.

<p>Municipal Coepoeations — Bond op City Teeasubee — Liability op Subety.</p> <p>A resolution passed by a city council relating, inter alia, to the salary of the city treasurer, and providing that the city should “furnish” his bond, which was required by law, amounted only in legal effect to a vote by the council that the city should pay the premium on such bond as authorized by statute, and neither such resolution nor the fact that the city paid the premium charged by a surety company for becoming the treasurer’s surety on his bond rendered such bond invalid as against the surety company because of false or fraudulent statements in the application of the company which was made by the treasurer in his own name and behalf.</p>

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

<p>Aliens — Chinese Exclusion — Construction of Statute.</p> <p>The purpose and effect of Act April 29, 1902, c. 641, 32 Stat. 176, as amended by Act April 27, 1904, c. 1630, § 5, 33 Stat. 428 [U. S. Comp. St. Supp. 1905, p. 295], which provides that all laws in force on April 29, 1902, regulating, suspending, or prohibiting the coming of Chinese persons into the United States or their residence therein, “are hereby reenacted, extended and continued without modification, limitation or condition,” was to continue all such laws in force after the expiration of the then existing treaty with China on December 8, 1894. including sections 5 to 14, inclusive, of Act September 13, 1888, e. 1015, 25 Stat. 477-479 [U. S. Comp. St. 1901, pp. 1314-1317], which are therein expressly enumerated.</p> <p>[Ed. Notes. — Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]</p>

<p>Master and Servant — Contract por Services — Termination—Future Salary op Employé Under Time Contract.</p> <p>An employé of a corporation under a contract for a term of years cannot prove a claim for salary accruing after the corporation has been adjudged a bankrupt, although upon its written admission of its inability to pay its debts and its willingness to be adjudged a bankrupt, where the contract expressly provided that it might be terminated by the corporation in case of its dissolution.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 479; vol. 34, Cent. Dig. Master and Servant, § 25.]</p>

<p>Writ of Error — Review—Effect of Requests for Direction of Verdict</p> <p>Where requests for direction of a verdict are made by both parties, they are concluded by the finding of the court as'to the facts, and the only -question reviewable is the finding on the law, and the reviewing court must affirm if there be any evidence in support thereof.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§3474, 3475; vol. 46, Cent. Dig. Trial, §400.]</p>

<p>Writ of Ereor — Review—Case Tried by Court.</p> <p>Where an action at law was tried by the Circuit Court without a jury by stipulation made pursuant to Rev. St. § 649 [U. S. Comp. St. 1901, p. 525], and it does not appear that there was any special finding of facts, an assignment of error that the court “erred in rendering judgment in favor of the plaintiff, and against the defendant” presents no question which can De reviewed by the Circuit Court of Appeals.</p>

<p>Internal Revenue — War Revenue Act — Tax on Pipe Line Companies.</p> <p>A corporation organized for the purpose of producing natural gas from wells owned or leased by it, piping the same to a city, and selling and distributing it to consumers, and engaged solely in such business, its only Income being derived from the sale of its products which it conveyed through its own pipe lines, is not subject to tax on the excess of its gross annual receipts over $250,000, under section 27, War Revenue Act July 13, 1898, c. 448, 30 Stat. 464 [TJ. S. Comp. St. 1901, p. 2306], imposing such tax on persons or corporations “owning or controlling any pipe line for transporting oil or other products. o</p>

<p>Patents — Infringement—Stop Mechanism foe Winding Machine.</p> <p>The Bowers patent, No. 727,888, for a weight stop motion adapted for use in twine winding spindles, does not cover a pioneer invention, in view of the prior art, and must be construed in matters of infringement in accordance with the rules applicable to ordinary combination patents. As so-construed, held not infringed by the machine of the Worrill patent, No. 736,809, which does not contain all the elements of the Bowers combination.</p>

The appellant, as the owner of certain patents, brought its suit against the appellees for infringement. The patents are: (1) No. 436,792, issued September 23, 1890, to Peter Jordan for a can-body making machine; (2) No. 365,316, issued June 21, 1887, to Edwin Norton, for a can-cap soldering machine ; (3) No. 598,567, issued February 8, 1898, to E. P. Holden and C. M. Brown for a can-body machine. These patents all relate to machines for manufacturing tin can-bodies.

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

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

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

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

The appellant unsuccessfully prosecuted a suit to enjoin the infringement of patent No. 539,366, May 14, 1895, to Norton, and patent No. 543,347, July 23, 1895, to McDonald.

<p>On petition for rehearing. Denied.</p>

<p>At Law. Motion for judgment on the pleadings.</p>

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

Motion to Quash Information. This is a proceeding for contempt, growing out of a temporary restraining order made by this court on March 25, 1902. The restraining order was predicated upon a bill of complaint in equity tiled by the United States attorney for this district, under direction of the Attorney General of the United States, against the defendant railroad company.

<p>1. Wins — Decree oe Probate — Questions Incidentally Adjudicated.</p> <p>An order of a probate court admitting a will to probate is an adjudication of its validity as a testamentary instrument and conclusive on all parties before the court, unless appealed from, as to all material facts, including the place of domicile of the testator, where a finding of such fact is necessary to support the adjudication.</p> <p>[Ed. Note. — For eases in point, see vol. 49, Cent. Dig. Wills, §§ 911-919.]</p> <p>2. Same — Manner oe Execution — Illinois Statute.</p> <p>Under the statutes of Illinois a will is valid to dispose of personal property having its situs in the state, wherever it may have been executed, either (1) when executed in accordance with the requirements of such statute, or (2) when executed and proved in accordance with the laws of the state or country where it was made.</p> <p>[Ed. Note. — For cases in point, see vol..49, Cent. Dig. Wills, § 185.]</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The facts of the case and the nature of the controversy appear from the opinions of the Board of General Appraisers, which are as follows:</p> <p>HAT, General Appraiser. The facts in this case are as follows: The importer, who is the protestant, brought into the port of New Tork a large invoice of lace goods from St. Gall, Switzerland. The invoice is voluminous and embraces many different varieties of goods. Fifteen cases in all are stated upon this invoice. Of this number five were taken to the public stores and examined. Case No. 2,398, which contained curtains, was not taken to public stores, and its contents not examined by the appraiser. The entered value of these curtains was advanced by that officer. The testimony shows, and this is corroborated by the invoice description, that the goods in this case differed materially from those contained in the cases that were sent to public stores and examined, as none of the examined cases contained curtains.</p> <p>The protestant claims that the action of the appraiser in advancing the value of these goods was erroneous and void, for the reason that he did not have them before him and was in no position to place upon them a value other or different from that at which they were entered; that for this reason the assessment of duty was upon a wrong value; and asks that the entry be reliquidated in so far as this case of goods is concerned, and duty assessed on the entered value.</p> <p>The question presented is one properly raised by protest. If the local appraiser proceeded upon a wrong principle or contrary to law in ascertaining the market value of imported merchandise, his action in this respect is reviewable upon protest. Passavant & Co.’s Case, G. A. 4,074 (T. D. 18,949), and Eisenbach Bros. & Co.’s Case, G. A. 5,090 (T. D. 23,558).</p> <p>There is a clear line of demarcation between the action of the local appraiser and the action of a General Appraiser and the function which each performs in passing upon the value of imported merchandise. In Curnen & Stiners Case, G. A. 5,720 (T. D. 25,423), this board held that, where a General Appraiser, in passing upon the value of imported merchandise, upon appeal from the action of a local appraiser, had before him one package in every ten, the requirements of the law were satisfied and that his action was valid, even though the goods in these packages were not representative of those in the other packages stated on the invoice; and that, if it was necessary, in order that he might fix a correct value upon the merchandise, that he should view every or any particular item thereof, it was incumbent upon the party asking for the review of the local appraiser’s action to produce that item before him, upon the principle of law that is universal in every judicial or quasi-judicial tribunal in England and the United States, that the onus probandi is on him who sets the machinery of law in motion on his own behalf. In an appeal by an importer from the value placed upon his goods.by the local appraiser, the onus of showing that the valué is incorrect is upon him, and it was held that it was for him, therefore, if he believed the samples examined by the General Appraiser were not representative of the whole, to produce before that officer such samples as he deemed necessary to establish his ease. This rule, however, does not apply to the action of a local appraiser. He does not act as a reviewing officer. The invoice is not before him upon appeal from the action of any other officer, nor is it brought before him by the voluntary act of the importer. It is his duty under the law to examine and pass upon the value of all imported merchandise. It is his duty by all reasonable ways and means in his power to ascertain, estimate, and appraise the actual market value and wholesale price of ’the merchandise at the time of exportation to the United States. It will not be presumed that he did this by a mere examination of an invoice. Section 2614, Rev. St (U. S. Oomp. St 1901, p. 1804), and section 10,. Act June 10, 1S90, c. 407, 26 Stat. 136 (U. S-. Comp. St. 1901, p. 1922).</p> <p>The merchandise about which this dispute arises was curtains, and the testimony shows that there were no curtains in the cases examined by the appraiser, hence he advanced the value of the curtains in question without seeing them. This action cannot be justified by any rule of law with which we are familiar. It was the appraiser’s duty to ascertain whether or not the goods were entered at the correct value. To determine this it is his duty to examine them. His duty in this respect differs from that of a General Appraiser, in that, when a General Appraiser is called upon to pass upon the value of imported merchandise, it is upon appeal from ,the action of a local appraiser, taken either by the government or the importer. An issue of fact is thereby fairly joined. The presumption of law is always in favor of the correctness of the action of a public officer. The party appealing, therefore, assumes the burden of establishing a value different from that found by the local appraiser, and the onus of presenting every material fact tending to show this is upon him. It logically-follows that, if he fails in this, the action of the General Appraiser in affirming the value found by the local appraiser is valid, whether he examined the merchandise or not. The General Appraiser’s duties in this respect are entirely judicial; the local appraiser’s are not It is the duty of the latter officer to ascertain and report the value of all imported merchandise, not because any one challenges the entered value, but because it is made his duty by law.</p> <p>It was the duty of the appraiser, when he saw from the invoice, as he readily could, that the merchandise in case No. 2,398 was not represented by that contained in the cases brought to the public stores, to call for a sample of this merchandise. He had a perfect right to ask that this case be sent to the public stores; and, if it had already been delivered to the importer, he should have, before acting, made a demand upon the importer for a sample of the same.</p> <p>We conclude that, in ascertaining, estimating, and appraising the actual market value and wholesale price of the merchandise in question, the appraiser “proceeded upon a wrong principle, contrary to law,” and that his act in advancing the entered value was void. The protest is sustained, and the collector is directed to reliquidate the entry, assessing duty upon the entered value of the curtains contained in case No. 2,398.</p> <p>SOMERVILLE, General Appraiser. I concur in the conclusion reached in this case by my colleagues. The subject of the examination of merchandise under appraisement is discussed at some length in the decision of the Circuit Court for the Southern District of New York, rendered by Judge Platt, in the case of Curnen v. U. S. (C. C.) 136 Fed. 807, which modified the view expressed by the majority of the board in Curnen’s Case, G. A. 5,720 (T. D. 25,423).</p> <p>The duty of local appraisers to examine and inspect merchandise under appraisement is made peremptory by section 2614 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 1804], which yet remains in force so far as these officials are concerned.</p> <p>In the Circuit Court, on proceedings for the admission of further evidence, a stipulation was made in lieu of the examination of witnesses, the pertinent portion of which reads as follows:</p> <p>“It is admitted by counsel for the importer herein that on the 26th of January, and the 11th of February, the importer made importations of similar goods; that on the importation of January 26, 1904, there were in one of the cases goods designated by the pattern numbers 4,060 and 4,061; that the goods designated by such pattern numbers 4,060 and 4,061, in the importation of January, were identical with the goods represented by those same pattern numbers in the importation of July, now under consideration; that in the importation of January the appraiser advanced the value of these two numbers, 4,060 and 4,061; that the importer called for a reappraisement, and that the reappraisement resulted in an affirmance of the action of the local appraiser; and that a further reappraisement was waived.”</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 6111 (T. D. 26,608), reversed the assessment of duty by the collector of customs at the port of New York. The case involves the construction of Customs Administrative Act June 10, 1890, c. 407, §19, 26 Stat. 139 [U. S. Comp. St. 1901, p. 1924], the pertinent part of which reads as follows:</p> <p>“Sec. 19. That whenever imported merchandise is subject to an ad valorem rate of duty, * * * the duty shall be assessed upon the actual market value or wholesale price of such merchandise * * * including the value of all cartons, cases, crates, boxes, sacks, and coverings of any kind, * * * and if there be used for covering or holding imported merchandise, whether dutiable or free, any unusual article or form designed for use otherwise than in the bona fide transportation of such merchandise to the United States, additional duty shall be levied and collected upon such material or article at the rate to which the same would be subject if separately imported.”</p> <p>The opinions filed by the board read as follows:</p> <p>“HAY, General Appraiser. These cases raise the question of the government’s right to assess cumulative duty under section 19 of the customs administrative act of June 10, 1890, upon unusual coverings in which imported merchandise is packed and shipped. The articles in question are boxes or cabinets containing cigars. The value of these cabinets was added to the value of the cigars by the appraiser, and upon this total value the proper duty upon cigars was assessed, and in addition thereto a duty of 35 per cent, ad valorem (the proper duty upon manufactures of wood) was assessed upon the cabinets. The importers, in their protests, admit the cabinets to be unusual coverings, but insist that they should only be assessed at 35 per cent, ad valorem, the same duty which they would bear if imported empty, separate and apart from the cigars, and that they should not be required to pay duty upon them as a part of the value of the cigars.</p> <p>“The question thus presented is a difficult one, not only because section 19, literally construed, produces a condition repugnant to fair dealing in the administration of customs laws, but because such construction is in conflict with the report of the committee of Congress in presenting to the House of Representatives the bill which, upon its enactment by Congress, became this act; and our task is not lightened by the fact that there are irreconcilable decisions of the board upon this subject In the absence of express legislation all merchandise is entitled to free admission to our ports. In the wise exercise of its power Congress has from time to time placed a duty upon various enumerated articles of imported merchandise, in order to provide revenue for the government and to encourage the industries of the United States. From the formation of the government it has been the policy of Congress to so frame these laws as to render them the least possible burden to the citizen and uniform in their administration. It is true that from time to time we find in the various tariff laws provisions by which certain articles are made to bear cumulative duties. This, however, is the exception, and unless explicit language to that effect is used it will not be presumed that Congress so intended. U. S. v. Dickson, 73 Fed. 195, 19 C. C. A. 428.</p> <p>“It is frequently difficult, by applying the ordinary rules that govern the •construction of sentences, to determine the exact meaning of paragraphs of the tariff law. In section 19 it is first provided that the value of imported merchandise upon which duty is required to be assessed shall include the value of all cartons, cases, crates, boxes, sacks, and coverings of all kinds, which are the usual coverings known to the trade and customarily used for covering and transporting such goods. It is then declared that when there is used for covering or holding imported merchandise any unusual article or form, designed for use otherwise than the bona fide transportation of such merchandise, additional duty shall be levied and collected upon this covering at the rate to which the same would be subject if separately imported. Viewing this question without other light than the language used in the act, the construction placed upon the same by the board in Arnold & Company’s Case, 6. A. 4,926 (T. D. 23,056), would seem to be a fair and reasonable one. Viewing it, however, in the light of the similar provision in the former tariff laws, and the report of the committee on ways and means when submitting the act ■of June 10, 1890, to the House of Representatives, we think a different conclusion must be reached, and one more in harmony with a fair and equal administration of the customs laws. Under Act March 3, 1883, c. 121, 22 Stat. 488 [U. S. Comp. St. 1901, p. 2247], which was in force up to the enactment ■of the law now under consideration, packages, sacks, crates, and boxes, in which imported merchandise was packed, were not estimated as part of the value of such merchandise, but it was provided that ‘if any packages, sacks, crates, boxes, coverings of any kind shall be of any material or form designed to evade duties thereon, or designed for use otherwise than in the bona fide transportation of goods to the United States, the same shall be subject to a duty of one hundred per centum ad valorem upon the actual value of the ■same.’</p> <p>“The reason is given in the very paragraph itself for the high duty upon unusual coverings. It is intended as a penalty for an attempt to evade duties; but in section 19, which we now have under consideration, the words ‘of any material or form designed to evade duties thereon’ were omitted, and instead of the excessive duty of 100 per cent, ad valorem, which of itself indicates that it is of a penal nature, unusual coverings are to pay duty at the same rate to which they would be subject if separately imported. In reporting the bill to the House of Representatives, the ways and means committee in its report used the following language relative to the provision here under consideration: ‘It omits also the penal duty of 100 per cent, in certain cases prescribed by section 7 of the act of 1883. In lieu thereof it subjects unusual coverings containing free goods or goods subject to a specific ■duty to the duty only to which such coverings would be liable if separately imported.’ From this lauguage it seems to us, in the light of the previous state ■of the law, that at least it was the intention of the committee that framed section 19 that unusual coverings should be subject to no other duty than that which would be imposed upon them if imported separate and apart from the merchandise which they contain. This is in consonance with fair administration and was the view taken by the board in Alessi’s Case, G. A. 5,405 (T. D. 24,622).</p> <p>“We think, therefore, that section 19, when read in the light of previous legislation on the same subject and the report of the ways and means committee of the House of Representatives, contemplates that the value of unusual coverings should not be added to the per se value of the merchandise, as ordinary cartons and crates are, but that such unusual coverings should be assessed separately and duty collected thereon at the rate they would bear if not used to contain the merchandise. Arnold & Company’s Case, G. A. 4,926 (T. D. 23,056), is therefore overruled. The protests are sustained, and the collector is directed to reliquidate the entries accordingly.”</p> <p>“SOMERVILLE, General Appraiser. The question presented in these cases is precisely analogous to that passed on by this board in Re Alessi, G. A. 5,405 (T. D. 24,622). In that case a new leather trunk had been imported containing silk merchandise. The collector, in liquidating the entry, included the value of the trunk as part of the market value of the merchandise^ and in addition to this also assessed a duty of 35 per cent, ad valorem on the' trunk, under paragraph 450 of the present tariff act of 1897, on the ground that it was an unusual covering for such merchandise. It was held that the trunk in question, being an unusual covering for such merchandise, was subject to no other duty than that provided in paragraph 450 of the tariff act of 1897 for manufactures of leather, just as if it were separately imported, and that the value of unusual coverings should not be included in the dutiable value of the merchandise contained therein. In my opinion, this view of the law is unquestionable, and its solution presents no great difficulties. The whole case rests upon the proper construction of section 19 of the customs administrative act of June 10, 1890. The rule is that a statute must be so construed, if possible, as to give some effect to every clause, and not to place one portion in antagonism to another; and a construction which leaves to a sentence or clause of the statute no field of operation should be avoided, if any other reasonable construction of the language can be given. For the reasons stated by the writer of this opinion in said decision of the board, I concur in the conclusion that the protests should be sustained, and that the value of the unusual coverings in these cases should not be included in the dutiable-value of the merchandise under the provisions of section 19 of the customs-administrative act of June 10, 1890.</p> <p>“In the case of Arnold & Co., G. A. 4,926 (T. D. 23,056), referred to by my colleague, the coverings there under consideration were held to be the usual and ordinary coverings of the merchandise, and were assessed for duty at the rate applicable to their' contents. There was a mere dictum in the opinion, which would seem to be contrary to the views expressed in this opinion; but the decision was not predicated on this proposition, and it would therefore seem to be unnecessary to overrule it, but only to disapprove of the dictum. The coverings in question having been held to be the usual coverings, it was entirely aside from the issues involved to go further and decide how they would have been dutiable in the event they had been held to be unusual coverings.”</p>

<p>1. Bankruptcy — Exemptions—Time foe Claiming.</p> <p>The provision of Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], that the trustee shall be vested with the title of the bankrupt to certain property as of the date of adjudication, “except in so far as it is to property which is exempt,” does not show an intent that the claim of exemption must have been made prior to adjudication, and such claim may be allowed, if perfected thereafter within the time allowed by the state law.</p> <p>2. Same — Amendment of Schedules.</p> <p>Bankr. Act July 1, 1898, c. 541, § 7 (8), 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425], providing for the filing of schedules and their contents, is directory, and, taken in connection with the express right of allowing-amendments given by section 39 (2) (30 Stat. 555 [U. S. Comp. St. 1901, p. 3436]), and Gen. Order No. xi (89 Fed. vii, 32 C. C. A. xiv), does not preclude the court in its discretion from allowing claims of exemption to be made by amendment after the original schedule has been filed.</p> <p>3. Same — Homestead Exemption — Virginia Statute.</p> <p>Under Code Va. 1904, § 3642, by which a homestead deed is effectual so far as the question of time is concerned, if recorded before the property “is subjected by sale or otherwise under judgment, decree, order, execution or other legal process,” a claim to a homestead exemption may be allowed to a bankrupt, although not made in the original schedules, and although a homestead deed was made and recorded after the filing of such schedules, but before any action had been taken by the trustee for a sale of the property.</p>

<p>1. Evidence — Opinion Evidence — Competency of Witnesses — Effect of Evidence.</p> <p>The testimony of witnesses wbo from experience were entirely familiar with the color, taste, and smell of a certain bitters that a liquid sold by defendant by that name was not such bitters, but was an imitation, is competent, and, where not directly contradicted and corroborated by the circumstances, is sufficient to establish the fact.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 2355.]</p> <p>2. Trade-Marks and Teade-Names — Nature of Unfair Competition — Sale of Imitation fob Genuine Abticle.</p> <p>Evidence showing that defendant, which conducted 20 stores, advertised in its general catalogue to supply to its customers Hostetter’s Bitters without limit as to quantity at a price only two-thirds of that at which such bitters are sold by complainant, the manufacturer, and that defendant did supply to its customers calling for such bitters an imitation, sometimes, when desired, placing the same in complainant’s bottles, but without using its labels or trade-mark,, is sufficient to establish unfair competition and to entitle complainant to an injunction and an accounting.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, §§ 82, 83, 104-106.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>In Bankruptcy. On objection of trustee to claim of the State Bank of Rock Valley against the bankrupt estate.</p>

On Application for Review of a Decision of the Board of United: States General Appraisers. The merchandise consisted of lemons in boxes; the lemons being dutiable at a specific rate under one paragraph of the tariff act, and the boxes at an ad valorem rate under another paragraph.

On Application for Review of Decisions of the Board of United United States General Appraisers. The decisions under review affirmed the assessment of duty by the collector of customs at the port of New York on importations by Gudewill & Bucknall and Nairn Linoleum Company. See G. A. 5,692 (T. D. 25,334).

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>These cases relate to so-called wood-shaving veneers, imported at the port of New York. They consist of exceedingly thin wooden veneers, estimated by one witness to have a thickness of from 1-1000 to 1-900 of an inch, to which a paper backing has been pasted; the purpose of this backing being to keep the material in shape and protect it from destruction in handling and transportation. The collector classified this material as manufactures of the component material of chief value, which in some cases was wood and in others paper. The importers contended that it should have been classified under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule D, par. 198, 30 Stat. 107 [U. S. Comp. St. 1901, p. 1046], for “veneers of wood.” The Board of General Appraisers affirmed the assessment by the collector.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The questions involved are stated in the following extracts from the opinion of the Board of General Appraisers:</p> <p>“FISCHER, General Appraiser. The merchandise is paper upon which duty was assessed at the rate of 25 per cent, under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 402, 30 Stat. 189 [U. S. Comp. St 1901, p. 1672], as paper not specially provided for, and which is claimed to be dutiable property under the provisions of paragraph 396 of said act (30 Stat. 187 [U. S. Comp. St. 1901, p. 1671]), as printing paper. The samples admitted in evidence and the testimony taken in these and other cases, which, on motion, are made part of the record in the present case, show that the article is the imitation parchment, grease-proof paper often passed on by the courts and the board, and held to be dutiable as herein assessed. Note G. A. 4,701, T. D. 22,163, and the authorities cited. * * * In the cases now under consideration the importer has attempted to show that the paper is ‘printing paper suitable for books and newspapers,’ but the evidence they adduced at the hearings tends rather to establish a contrary conclusion. The paper is invoiced sometimes as ‘wrapping paper’ and sometimes as ‘pergament ersatz’ (imitation parchment) ; and its chief and practically its only use is, as shown by the testimony of the importer himself, to be for wrapping meat, butter, lard, and other oleaginous substances. On motion of the attorney for the importer, the record in protest 123,888 was made part of the record in this case. * * * It seems evident from this testimony that the claim that this paper is dutiable as printing paper has no other basis than that it can be printed on; but that is not sufficient to warrant its classification as such, notwithstanding the somewhat liberal meaning that term possesses under recent judicial decisions. We hold that-the paper is not printing paper suitable for books and newspapers, but that it is dutiable as assessed.</p> <p>“The protests are overruled and the decision of tue collector affirmed in each case.”</p>

<p>Pleading — Sufficiency of Complaint — Action under Anti-Trust Act.</p> <p>The complaint, in an action to recover damages under section 7 of the anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 210 [U. S. Comp. St. 1901, p. 3202]), held sufficient on a motion for correction of the same.</p>

<p>1. Bankruptcy — Suit to Recovery Preference — Proof of Insolvency.</p> <p>Evidence considered, and held to sustain a finding by a jury that ft bankrupt was insolvent at the time of the making of a payment to a creditor claimed to constitute a preference.</p> <p>2 Same — Preferential Payment — Judgment Lien.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended by Act Feb. 5, 1903„c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, p. 689], a preference is given wherever, within four months prior to bankruptcy of the debtor, a lien is secured on his real estate by a creditor by virtue of a judgment entered against him by confession or otherwise, which enables the creditor to get out of the property in any manner more than he would have done had he remained a general creditor, and it is immaterial that the debtor himself did not pay it</p> <p>3. Same,</p> <p>A bankrupt, within four months prior to his bankruptcy, contracted to sell certain real estate and to give a clear title thereto. The property was incumbered by liens which the purchaser undertook to pay out of the purchase money, but before such payments were completed or the property was conveyed defendant, who held judgment notes of the bankrupt, entered a judgment thereon, thereby obtaining a lien on the property which the purchaser paid in order to clear the title, although the payment, together with those made to remove the prior liens, exceeded the purchase price of the property. Held, that such payment to defendant constituted a voidable preference to the full amount received, having been obtained from property of the bankrupt through the means of the judgment lien.</p> <p>4. Same — Knowledge of Insolvency.</p> <p>Defendant, who held judgment notes, received a circular letter advising him that the debtor was in failing circumstances and desired to effect a compromise with his creditors, and defendant thereupon "entered judgment on his notes, and, by reason of the lien thus acquired on the debtor’s realty, obtained payment of his debt in full. The debtor was shortly thereafter adjudged bankrupt. Held, that the circular was sufficient to give defendant reasonable cause to believe the debtor to be insolvent, and to render the payment he obtained a voidable preference.</p> <p>5. Same — Interest.</p> <p>Where a preference has been secured by the payment of money, interest only runs in favor of'the trustee from the time demand is made on the creditor for its return.</p>

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

<p>On Motion for Appointment of Receiver.</p>

<p>At Law. Rule for judgment for want of a sufficient affidavit of defense.</p>

<p>In Bankruptcy. On certificate from referee, and exceptions of creditors.</p>

<p>Contbacts — Delay in Completing Building — Stipulated Damages.</p> <p>A contract for the construction of a part of a building for the United States provided that a stipulated sum should be deducted from the contract price as liquidated damages for each day’s delay in the completion of the work after the time therein fixed. Held, that a delay caused by the inability of the contractor to obtain certain steel work in time, owing to the congested condition of work in the steel mills, was not unavoidable, and did not relieve the contractor from the payment of the stipulated damages, where such condition was known when the contract was made, and was supposedly guarded against by the contractor by making the time for the completion of the work much longer than would ordinarily have been required.</p>

<p>1. Carriers — Suit for Violation of Interstate Commerce Law — Sufficiency of Bill.</p> <p>In a suit in equity by the United States against interstate carriers and others, brought, under Elkins Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599], to enjoin the giving and receiving of unlawful rebates, in which the lawfulness of payments made by the carriers depends upon the intent with which they were made and received, the bill is sufficient on its face to show the unlawful intent and the illegality of the payments, where it alleges that a defendant brewing company, which was a large shipper of beer prior to the enactment of such statute, habitually received rebates from carriers; that shortly after such enactment its officers, who were also its controlling stockholders, organized a transit company (defendant) and became its officers and the owners of practically all of its stock, and on behalf of the brewing company.contracted with it to make all the shipments for the brewing company; that the transit company contracted for shipments with such interstate carriers as would pay it from one-tenth to one-eighth of the published rate for the transportation, ostensibly as a commission for obtaining the business, but in fact, as was well known to the' carrier defendants, as a rebate for the benefit of the brewing company.</p> <p>2. Same.</p> <p>It is the manifest purpose of the statutes regulating interstate commerce to strike through all pretense and all ingenious devices to the substance of the transaction, and it is the duty of the courts to recognize and carry into effect such purpose in suits for their enforcement.</p> <p>3. Corporations — Identity—Doctrine op Separate Legal Entity.</p> <p>A corporation will be looked upon as a legal entity, as a general rule, and until sufficient reason to the contrary appears; but, when the notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons; and, where one corporation was organized and is owned by the officers and stockholders of another, making their interests identical, they may be treated as identical when the interests of justice require it.</p> <p>4. Evidence — Intent—Facts Showing System.</p> <p>In case of an equivocal act which is unlawful if so intended, but not otherwise, or which is claimed to have been accidental or through mistake, evidence of unconnected but similar facts is always admissible to show intent or system or rebut accident; and, under such rule, upon an issue as to whether a corporation organized and owned by the officers and stockholders of another is in fact an independent corporation or was organized merely as a dummy to enable the other through it to solicit and obtain illegal rebates from carriers, the fact that the latter had previously and habitually received rebates in violation of law is pertinent and may be alleged and proved.</p>

<p>1. Corporations — Validity of Mortgage — Use of Seal.</p> <p>The omission of a seal from a mortgage made by a business corporation is not fatal to its validity in equity under the Constitution and laws of Arkansas, which contain no provision requiring the use of a seal by such corporations, while the Constitution abolishes the distinction between sealed and unsealed instruments made by individuals.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, § I860.]</p> <p>2. Same — Estoppel—Ratification.</p> <p>A trust deed executed in behalf of a corporation by its president to secure the purchase price of property which the corporation bought and a mortgage given partly in renewal and in part to secure another just indebtedness cannot be impeached for want of a seal, nor because they were not formally authorized at a meeting of directors where the property was retained and used in the corporation’s business and payments were made on the indebtedness with full knowledge of the transaction on. the part of the officers and stockholders.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, § 1714.]</p> <p>3. Chattel Mortgage — Validity—Stock of Merchandise.</p> <p>Under the law of Arkansas a mortgage on a stock of merchandise which is left in control of the mortgagor to be sold in the usual course of business is invalid.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, i 398.]</p>

<p>1. Bankruptcy — Construction of Act — Scheme to Defeat Proceedings.^</p> <p>The main object of the bankruptcy act is to secure an equal distribution of the assets of an insolvent among all his creditors and prevent preferences, and it is the duty of the courts to carry this purpose into effect to the extent which the language of the act justifies. Schemes and artifices to evade the letter and spirit of the law will not be tolerated.</p> <p>2. Same.</p> <p>An insolvent having more than 12 creditors cannot defeat bankruptcy proceedings against him by transferring his property for the benefit of some of his creditors leaving less than three unprovided for, but leaving the preferred creditors actually unpaid for the purpose of requiring them to be counted so that those remaining will be insufficient in number to maintain a petition in bankruptcy, under Bankr. Act July 1, 189S, c. 541, § 59b, 30 Stat. 561 [U. S. Comp. St 1901, p. 3445].</p> <p>'3. Same — Involuntary Proceedings — Number of Creditors.</p> <p>An insolvent sold and transferred all of his property to one creditor, under an agreement that the purchaser should pay all of the seller’s other creditors, except one. The creditors so provided for were notified of the arrangement and expressed no dissent Under the law of the state the purchaser became absolutely bound for the payment of their claims in full. Held, that they must be deemed to'have assented to the transfer for their benefit, and that under Bankr. Act July 1, 1898, c. 541, § 56b, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], which provides that creditors holding security shall not be counted in computing the number of creditors of a bankrupt unless their claims exceed the value of the securities, they should not be counted, and the single creditor left unprovided for, having a claim exceeding $500, could alone maintain a petition in bankruptcy.</p> <p>A, Same.</p> <p>In determining the number of creditors of an alleged bankrupt for the purposes of Bankr. Act July 1, 1898, c. 541, § 59b. 30 Stat. [U. S. Comp. St. 1901, p. 3445], persons to whom at the time of the filing of the petition he owed small bills, contracted after his commission of an act of bankruptcy, for current family necessaries or similar purposes, which are customarily paid monthly or within a short time, and which were for the most part in fact so paid shortly afterward, should not be counted as creditors to defeat proceedings instituted by a bona fide creditor, whose claim it was the evident purpose of the debtor to defeat by a preferential transfer of his property.</p> <p>.5. Same — Preferred Creditors.</p> <p>A creditor will not be considered as preferred because he holds as security for his debt a life insurance policy having no surrender value.</p>

<p>Corporations — Receivership—Restoration op Property at Request op Majority op Stockholders.</p> <p>At the suit of stockholders, and with the consent of the corporation, receivers were appointed for its property, but no order was made for winding up its affairs. It was shown that it was organized and its affairs conducted by its promoters for the purpose of defrauding subsequent purchasers of stock, and that of the amount received from the sale" of stock only a small proportion had been honestly expended for cheir benefit, but the corporation was solvent and had some tangible property and money on hand. A part of the stockholders desired to reorganize the-corporation and continue the enterprise for which it was organized, while others favored its being wound up, and, on the matter being submitted to a vote, a large majority of those voting favored reorganization. Held that, in view of such vote, the receivers would be discharged and the property restored to the stockholders.</p>

<p>Courts — United States Courts- — Jurisdiction—Corporations.</p> <p>Where service is made upon an officer or agent of a foreign corporation temporarily within the state or district of suit, in order to give a federal court jurisdiction to render a personal judgment against the corporation, it must appear that it was actually and substantially engaged in business in such state or district, its business must have been transacted by some agent or manager representing the corporation, and it must, also appear that the local statute provides for suit against such foreign corporation which has been permitted to transact business within the state. A corporation of another state, which had no place of business within the state of suit, but merely solicited and obtained orders for goods therein by correspondence by agent, is not within the rule.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 814.]</p>

<p>Collision — Tug and Catboat — Violation of Rules.</p> <p>A steam tug was proceeding down the Delaware river on a dark night without a lookout, when a collision occurred with a catboat which was sailing up the river on a tack toward the New Jersey shore, and was not seen by the tug until too late to avoid collision. The catboat carried a white light, but was not supplied with a colored lantern, as reauired by article 7, § 3, of the navigation rules (Act Aug. 19, 1890, c. 802, 26 Stat. 322 [U. S. Comp. St. 1901, p. 2866]). Those in charge knew that they were not seen by the tug when 600 feet distant, and that a collision must result if both vessels kept their courses, but did not change the boat’s course. Held, that both vessels were in fault; the tug for failing to keep a lookout and to keep out of the way as required by article 20, 26 Stat. 327 [U. S. Comp. St. 1901, p. 2870], and the catboat for failing to carry the prescribed light or to take measures to avoid the collision as required under the special circumstances by article 27, 20 Stat 327 [U. S. Comp. St 1901, p. 2871].</p>

<p>Bankruptcy — Petition foe Revocation of Discharge — Refusal of Petitionees to Advance Costs.</p> <p>Where a petition for revocation of a bankrupt’s discharge was answered, and the matter referred for hearing to a special referee, and his request for a deposit to cover the costs of the hearing was refused by the petitioners, and no further proceedings before the referee were had, the petition will be dismissed for want of prosecution at the cost of the petitioners.</p>

<p>In Bankruptcy. On application for leave to amend petition.</p>

<p>Bankruptcy — Acts of Bankruptcy — Preference Procured by Petitioning Creditors.</p> <p>Tile failure of an insolvent debtor to discharge the preference obtained by a judgment creditor by the levy of an execution cannot be charged as an act of bankruptcy, where the levy was procured by the attorney for the petitioning creditors for the sole purpose of laying the foundation for the bankruptcy proceedings.</p>

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

<p>Customs Duties — Classification—Bbonze Obnaments — Composition Metal.</p> <p>Bronze ornaments, being manufactured articles and advanced beyond tbe condition of the “old copper,” “clipping,” and “composition metal,” enumerated in paragraph 452, Free List, § 2, c. 349, Tariff Act Aug. 27, 1894, 28 Stat. 539, are not subject to that provision, but are dutiable as manufactures of metal under paragraph 177, Schedule C, § 1, 28 Stat. 520.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The opinion of the Board of General Appraisers reads as follows: SHARRETTS, General Appraiser. The merchandise in question consists •of so-called drilled opal balls and rock-crystal rondelles. The opal balls are about one-fourth of one inch in diameter, and have been pierced and made ■spherical by a process of cutting.

At Law. On motion for rule to plaintiff’s counsel to show their authority for bringing the action, and for dismissal of the action.

<p>In Equity. On exceptions to master’s report and motion to abate suit.</p>

<p>L Trade-Marks — Registration.</p> <p>The registration of a trade-mark by a rope manufacturer, consisting of a colored thread twisted in one of the strands of the rope, had no legal effect except to indicate that such manufacturer claimed the trade-mark set forth in its application at the time of the registration.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 53.]</p> <p>2. Same — Scope of Trade-Mark.</p> <p>Where a rope manufacturer adopted a blue thread twisted into one of the strands of its rope as a trade-mark, which was the only practicable way of marking rope, such manufacturer was not entitled to restrain another manufacturer from using a thread of a different color.</p>

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

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

<p>In Bankruptcy. On objections to discharge.</p>

<p>In Bankruptcy. On certificate from referee concerning claim of Westinghouse, Church, Kerr & Co.</p>

In Bankruptcy. On report of special master, to whom was referred petition in involuntary bankruptcy against Borelli & Callahan, as partners and as individuals, with answer of Callahan in opposition thereto.

<p>In Equity. On petition of Charles Corby for recovery of alleged claim against receivers of defendant company.</p>

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

On Application for Review of a Decision of the Board of United States General Appraisers. This ease relates to a decision in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Schoverling, Daly & Gales. Note G. A. 4,402 (T. D. 20,956).

<p>Customs Duties — Classification—Household Effects — Automobile Extensively Repaired.</p> <p>In construing the provision in Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 504, 30 Stat. 196 [U. S. Comp. St. 1901, p. 1682], for the free admission of household effects actually used abroad more than one year, held that it does not include an automobile which just prior to importation was materially improved in condition by being reupholstered and otherwise extensively repaired.</p>

<p>L Collision — Vessel Dragging Anchoe — Improper Anchorage.</p> <p>The bark Rickmers was anchored at night by her tug at Shilshole Bay, in Puget Sound, during a high wind. She dropped her port anchor, which failed to hold, and she drifted and nearly came into collision with other vessels anchored in the vicinity. She was taken back by the tug to nearly the same place and again anchored with her starboard anchor. No attempt was made to ascertain whether the port anchor was holding, and it was found the next morning that the chain was broken. She again dragged her anchor and came in collision with the schooner Stimson, which was previously anchored with other vessels in the vicinity. Held, under the evidence, that the Stimson was not in fault, being securely anchored and having proper lights and' lookouts; that the Rickmers was in fault in anchoring a second time in the immediate vicinity of the first anchorage, which had proven insecure, in not ascertaining the condition of her second anchor, and in not paying out sufficient cable.</p> <p>2. Same — Measure oe Damages — Permanent Depreciation oe Vessel.</p> <p>The measure of damages recoverable for the injury of a vessel in collision is such amount as will restore her to the condition in which she was at the time of collision; but, if the injury is of such character that it cannot be repaired at reasonable cost, an allowance may be made for permanent depreciation, subject to the rule that damages which are uncertain, contingent, or speculative cannot be recovered.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §5 286-289.]</p> <p>3. Same.</p> <p>A vessel injured in collision held not entitled to recover damages for permanent injury in addition to the expense of repairing, where all known injuries were repaired, and the claim was based solely on general testimony of experts that she was depreciated in value by reason of the collision.</p> <p>4. Same — Interest.</p> <p>The allowance of interest on the amount awarded as damages for injury to a vessel in collision from the time when she was repaired and reloaded held within the discretion of the trial court.</p> <p>[Ed. Note. — For cases in point see vol. 10, Cent. Dig. Collision, § 284.]</p>

<p>1. Tbial — Reception of Evidence — Sufficiency of Objection.</p> <p>A trial court is justified in overruling an objection to a question, or to the 'evidence sought to be elicited thereby, when no ground is specified, or when the ground mentioned is so general in form as to be insufficient to direct attention to the particular defect or objectionable feature relied on.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, §§ 194 — 196.]</p> <p>2. Witnesses — Examination of Adverse Party — Construction of Statute.</p> <p>Under Gen. St. Minn. 1894, § 5659, providing that a party may call and cross-examine an adverse party, or, if such adverse party is a corporation, then its directors, officers, superintendent, or managing agents, as construed by the Supreme Court of the state, the master of a vessel owned by a corporation, with authority to control and direct its movements between ports, is the managing agent of the corporation in respect to such duties, and may be called as an adverse party in a suit against the corporation growing out of the navigation of the vessel.</p> <p>3. Evidence — Presumptions—Mailing and Delivery of Mail.</p> <p>Proof of the mailing to the master of a vessel navigating the Great Lakes, at a post office through which he admittedly received mail, of notices, is evidence of the due delivery of such notices, and a denial by the master of their receipt merely raises a question for determination by the jury.</p> <p>4. Writ of Error — Assignments of Error — Disregard of Rules.</p> <p>Assignments of error in the Circuit Court of Appeals on the admission of evidence will not be considered, where made in violation of rule 11, which requires each error asserted to be set out separately, and that the full substance of the evidence admitted shall be quoted, and where there is also a failure to refer the court in the briefs to the pages of the record relating to such evidence, as required by rule 24.</p> <p>5. Negligence — Evidence to Establish — Precautions against Recurrence of Injury.</p> <p>It is the settled doctrine of the courts of the United States that the taking of additional precautions after the occurrence of an accident is not evidence of want of care in the past.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 255, 256.]</p> <p>6. Shipping — Collision of Vessel with Breakwater — Negligent Navigation.</p> <p>The use by the government of the United States of a white light to mark the location of the unfinished portion of a breakwater on the Great Lakes, in accordance with long custom, instead of a red light, such as was used to mark the position of finished structures, did-not as matter of law exonerate the master of a vessel from the charge of negligent navigation in running his vessel upon the structure so marked, where it was shown that notices of the same were sent to all mariners on the Lakes, including such master, and that he ordinarily paid little or no attention to such notices.</p>

This suit was instituted by the plaintiff in error, hereinafter called plaintiff, against the defendant railroad company to recover damages for the negligent ■operation of its railway resulting in the death of plaintiff’s intestate.

<p>1. Writ op Eeeoe — Review—Action Teied to Court.</p> <p>Where a jury is waived by stipulation in a circuit court pursuant to Rev. St. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525, 570], and no special finding of facts is made, the only questions reviewable by the Circuit Court of Appeals are whether the judgment is supported by the pleadings, whether there is any substantial evidence to support it, and whether error was committed in the admission or exclusion of evidence.</p> <p>2. Municipal Corporations — Action Against — Conditions Precedent.</p> <p>Gen. St. Minn. 1894, § 687, which provides that, before any account, claim, or demand against any town or county for any property or services shall be audited or allowed, it shall be reduced to writing in items, verified, etc., which under the decisions of the Supreme Court of the state creates a condition precedent to any action on any such claim or demand, contemplates such claims only as can be itemized, and it has no application to a claim for damages for failure to perform a statutory duty as by the refusal of the council of a city to levy a special tax to pay for street improvements for which it contracted.</p> <p>3. Same — Contract for Street Improvement — Legality.</p> <p>A temporary injunction restraining a city from entering into any contract for the improvement of a street, whereby any pecuniary liability will be incurred by or in behalf of said city for any of said improvement which will necessitate the payment or expenditure of any of the current funds of said city whatever, save and except such as can be lawfully raised by special assessments made on property benefited other than property belonging to the city, did not render invalid a contract for the improvement which imposed no liability for its cost upon the city, but expressly provided that it should be paid for out of money lawfully raised by special assessment on property other than that owned by the city.</p> <p>4. Courts — Federal Courts — Following State Decisions.</p> <p>A decision of the highest court of a state, holding a contract made by a city void upon the facts shown, and not upon a construction of the local statutes, is not conclusive upon a federal court, nor in any event where the rights of the plaintiff in the federal court under the contract were fixed prior to such decision to which it was not a party.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 950, 962.</p> <p>State laws' as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>5. Judgment — Persons Concluded.</p> <p>Where a contractor with a city- was not a party to a suit brought against the city to have ■ such contract adjudged void, it is not bound by the judgment therein because it had knowledge of the suit, nor because it agreed to, and did, pay the fee of an attorney selected and employed by the city to assist in the defense.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1230-1233.]</p> <p>6. Same — -Two Actions Pending — State and Federal Courts.</p> <p>The pendency in a state court of an action between the same parties involving the same issues is not ground for abatement of a subsequent action brought by the defendant therein in a federal court, where no conflict arises between the courts over the custody or dominion of specific property; nor is the defendant therein concluded by a judgment against him rendered after he has recovered a judgment in his favor in the federal court.</p> <p>[Ed. Note. — Pendency of action in federal or state court ground for abatement of action in the other, see note to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205.]</p> <p>7. Municipal Corporations — Contracts for Improvements — Validity.</p> <p>The decisions of the Supreme Court of Minnesota that a city of that state, required by its charter to let contracts for public improvements to the lowest responsible bidder in accordance with plans and specifications previously on file, has no power to enter into a contract with a bidder containing substantial provisions beneficial to him not included in or contemplated by the terms and specifications upon which the bids were invited, do not render invalid a contract because of departures from the specifications in matters not substantial, or where the departure is not for the benefit of the contractor.</p> <p>8. Same — Contracts for Improvements — Variations from Specifications.</p> <p>A reasonable degree of latitude essential to an intelligent and practical administration of public affairs is allowed in matters of detail, involved in the execution of powers clearly conferred by fundamental law.</p> <p>9. Same — Limitation of Indebtedness — Contracts Creating a Debt.</p> <p>A contract by a city for a street improvement, which binds the city only to levy and collect a special assessment on abutting property to pay the cost, as required by statute, does not create an indebtedness against the city, within the meaning of a statute fixing the limit of its permissible indebtedness; nor is an action to recover a judgment against the city for the amount of the contract price because of its refusal to levy and collect such special assessment one founded on a debt, but it is one sounding in tort, "the liability of the city arising out of its refusal to perform a statutory duty.</p> <p>[Ed. Note. — Constitutional and statutory, limitations of municipal indebtedness, see note to City of Helena v. Mills, 86 C. C. A. 6.]</p>

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

<p>1. Public Lands — Mexican Grant — Act oe Sale — Construction of Instrument.</p> <p>In 1830 a grant of lands in sale was made by the governor of the Mexican state of Coahuila and Texas to a Mexican officer pursuant to law, such lands, to be located in the vacant lands of the department of Nacogdoches in the place or places which might best suit the interests of the grantee. In 1831 the grantee executed a power of attorney to locate such lands to Frost Thom, and two days later executed an act of sale to Thorn. In 1832 Thorn duly executed an instrument which appears as a part of the aforesaid power of attorney, in which he declared: “I have substituted and do by these presents substitute citizen Andres Dexter as my attorney with the same faculties hereby granted him that I as attorney hold.” Immediately thereafter Dexter applied to the proper authorities of Nacogdoches for a location and survey of the grant, and obtained an instrument of title vesting in him and his heirs and successors title and possession of the lands so selected and surveyed. On Dexter’s death in 1837 such lands were distributed as a part of his estate to his heirs, who, with their subsequent grantees, have continued since to notoriously claim the same and to pay taxes thereon. Thorn was a prominent citizen of Nacogdoches from about 1822 until his death in 1854. He had large dealings in lands and left a large estate, which was administered by men fully acquainted with his business affairs, and who had been associated with him in his land transactions. It did not appear that Thorn in his lifetime ever made any claim to the lands granted to Dexter. They were not administered as a part of his estate, and it was shown that neither his administrators nor his heirs during many years after his death made any claim hereto. Held, that the instrument executed by him to Dexter must be construed as an act of sale, and not merely as a power of attorney, he being at the time the owner of the grant, and that its effect supplemented by the subsequent conveyance made pursuant thereto was to vest title to the lands selected in Dexter.</p> <p>2. Writ of Error — Reversal—Remand.</p> <p>In an action of trespass to try title to which there were numerous parties each claiming parts of the tract in dispute, on the close of plaintiff’s evidence motions for a directed verdict were made by both plaintiffs and defendants, and the motion by defendants was granted. On appeal it was determined that such action was erroneous, and that on the record the motion of plaintiffs should have been granted. Seld, it appearing that separate and affirmative defenses were pleaded by certain of the defendants, which had not been tried, that the court would not render judgment for plaintiffs, but would remand the case for a new trial.</p>

<p>1. Bankruptcy — Preferences—Recovery.</p> <p>Defendant, a creditor of a bankrupt firm, was instrumental in procuring a purchaser for the bankrupt’s stock and business within four months prior to the commencement of bankruptcy proceedings. The purchaser assumed the bankrupt’s indebtedness to defendant, only a portion of which was due as a part of the purchase price, and executed his note for the amount, which was accepted in consideration of such agreement. 'Held, that such transaction amounted to a preference which was voidable by the bankrupt’s trustee, as provided by Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S.-- Comp. St. 1901, p. 3445], provided defendant dr his agents had reasonable cause at the time to believe that it was intended thereby to give defendant a preference.</p> <p>2. Same — Payment of Debts — Assets—Knowledge.”</p> <p>Where, at the time of the giving of an alleged preference by a bankrupt, defendant’s agent was informed that, in case of a sale of the bankrupt’s goods at their then estimated worth, the bankrupt’s ability to pay its creditors in full would depend on its ability to collect its then outstanding accounts of an undisclosed amount, such information was insufficient of itself to charge defendant with knowledge that a preference was intended by the completion of the transaction in question.</p> <p>3. Same — Evidence.</p> <p>In an action by a bankrupt’s trustee to recover an alleged preference, evidence held insufficient to sustain a finding that defendant had notice that a preference was intended at the time the transaction in question was consummated.</p> <p>4. Same — Equitable Remedy.</p> <p>Courts of bankruptcy have equitable jurisdiction of suits to set aside alleged fraudulent preferences, under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], conferring on such-courts jurisdiction to recover preferences concurrent with that of state courts.</p> <p>5. Same — Preferences—Securities Received — Surrender</p> <p>Where an alleged preferred creditor of a bankrupt had not received payment of a note of a third person alleged to have constituted the preference, such creditor was not chargeable in equity with the assumed value of the note, but should only be required to surrender the same if preferential.</p>

<p>1. Master and Servant — Negligence of Master — Evidence of Servant’s Incompetency.</p> <p>An allegation of negligence against a master in employing an incompetent servant is not sustained by proof of a single act of negligence on the part of the servant which caused the injury sued for.</p> <p>2. Same — Pleading—Variance.</p> <p>In a suit against a vessel to recover for an injury to a stevedore, where the only ground of liability alleged and relied upon at the trial was that the master employed an inexperienced and incompetent winch-man, a recovery is not authorized by evidence of a single act of negligence on the part of the winchman on the occasion of the accident, since the libel cannot be construed as covering such ground of liability.</p> <p>3. Same — Hiring Servant to Third Party — Liability for Negligence.</p> <p>The consignee of a cargo exercised its option to discharge the cargo, being allowed a deduction from the freight therefor, and the vessel being required to furnish steam, winches, and men to operate the saíne. The winchmen so furnished acted under the immediate orders of the master stevedore employed by the consignee. JSeld that, if ordinary care was exercised by the master of the vessel to furnish competent winchmen, the vessel was not liable for an injury to a stevedore resulting from a negligent act of one of the winchmen.</p> <p>4. Same — Fellow Servants.</p> <p>In such case the stevedore and winchman were fellow servants of the contracting stevedore; both being at the time working in a common employment under the same general control and direction.</p> <p>[Ed. Notes. — Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p>

<p>Customs Duties — Countervailing Duty Because of Export Bounty-Sugar.</p> <p>The “additional” duty imposed by Tariff Act of July 24, 1897, c. 11, § 5, 30 Stat 205 [U. S. Comp. St. 1901, p. 1693] on articles or merchandise imported into the United States and upon which an export bounty has been paid by the country of production, and which it is provided shall be “equal to the net amount of such bounty,” is leviable only upon the article or merchandise which enters the United States, and in case of merchandise dutiable by weight and as to which the bounty as. declared by the Secretary of the Treasury is also by weight, such as sugar, where the quantity entered at the custom house as shown by the official weigher is less than that shown by the foreign invoice, the “additional” duty, like the regular duty, is assessable only on the quantity so entered, and the cause of the loss or shrinkage is immaterial. The mere diminution in the quantity of units of weight or measure of a commodity usually measured by such units is not such a change of condition “by remanufacture or otherwise,” within the meaning of such section, as to authorize a resort to other than the usual means for ascertaining the amount of the additional duty.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western Division of the Eastern District of Arkansas, in Bankruptcy.</p>

<p>1. Bankruptcy — Appellate and Revisory Jurisdiction Not Exclusive, but Cumulative.</p> <p>The right of appeal and the right of superintendence and revision in matter of law only under Bankr. Act July 1, 1898, c. 541, § 24b, 80 Stat. 553 [U. S. Comp. St. 1901, 3482] are not exclusive, but cumulative. In a proper ease an aggrieved party has the option to review the controverted facts and the law which condition an order or judgment by appeal, or to review the law only by petition for revision.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Time for Appeal — Petition to Revise Appealable Order.</p> <p>The time within which a petition for the revision in matter of law, under Bankr. Act July 1, 1898, e. 541, § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], of an appealable order or judgment may be presented, is limited by the time fixed by the bankruptcy law for the appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. Negligence — Running Down op Rowboat — Contributory Negligecne.</p> <p>A tug, having a car float on each side and projecting ahead of her, was passing up the Delaware river in the daytime, and when opposite Philadelphia one of the floats ran down a small rowboat being rowed across the river by plaintiff’s intestate, and he was drowned. The tug was-going at usual speed. She had no lookout on either float, and the pilot’s view of the river was obstructed by box cars on the floats. She gave no signal and kept her speed until after the accident. The deceased was accustomed to crossing the river at that point and was a skilled rower. He had nearly passed the further float when he was struck, and there was evidence tending to show that he was caught by floating ice. Held that, in view of the circumstances shown, it could not be said as matter of law that the decedent was guilty of contributory negligence, but that the question was one for the jury.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 277-286.]-</p> <p>2. Same — Cabe Required as against Negligence op Another.</p> <p>Under the facts so shown the case was one for the application of the rule that the negligence of a person in exposing himself to a danger will not preclude a recovery for an injury, if the defendant, whose negligence primarily caused the injury, knew the danger of the injured person or should have discovered it, in the exercise of ordinary care, in time to have prevented the injury; and such question should have been submitted to the jury, in view of the clear fault of the tug in failing to maintain a proper lookout at a place where small vessels were likely to be crossing.</p>

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

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

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

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>Some time prior to the 8th day of September, 1903, Curr filed in the district Court of El Paso county, Colo., a petition in condemnation proceedings, whereby he sought to obtain a judgment of that court authorizing and empowering him to enlarge the Myers ditch, described in said petition, and also to condemn certain lands for the purpose of constructing the Curr reservoir ditch; said enlargement of the Myers ditch and the construction of the Curr reservoir ditch being for the purpose of carrying to petitioner’s reservoir the surplus and flood waters of North and South Cheyenne Creeks. The Broad-moor Land Company, as the owner of the Myers ditch and also a portion of the land, sought to be condemned for the construction of the Curr reservoir ditch, was made a party defendant in said proceedings, and on the 8th day of September, 1903, duly removed said proceedings into the United States Circuit Court for the District of Colorado; said land company being a citizen of the state of New Jersey, and Curr being a citizen of Colorado. On October 1G, 1903, Curr filed an amended petition in said United States Circuit Court, and on the same day that court made an order that the cause be set down for hearing on the 23d day of November, 1903, in so far as the same pertained to the controversy between the petitioner and the Broadmoor Land Company. No process or order was served upon said company in said proceeding so far as shown by the record, but on the 23d day of November, 1903, it filed an answer to the petition of Curr, wherein it alleged, among other defenses, facts tending to show that there was no necessity for enlarging the Myers ditch and that to do so would not be practicable or feasible, also facts tending to show that the Myers ditch was not a private ditch, and therefore not subject to enlargement at the suit of petitioner, under the laws of Colorado. A reply was filed by Curr to the amended answer of the Broadmoor Land Company filed January 11, 1904. On January 9, 1904, the Broadmoor Land Company filed a petition in said proceedings, which is in the following language: “Now comes the respondent, Broadmoor Land Company, and prays the court for an order appointing a board of commissioners of not less than three freeholders, as provided by law, to ascertain and determine the necessity, if any there be, for the enlargement of the Myers ditch, described in the petitioner’s amended petition and in this respondent’s answer thereto, or for the taking possession thereof for the purpose of such enlargement or the use of said Myers ditch for the purpose of flowing water through the same b'y the petitioner, and to ascertain and determine the necessity for taking any of the lands or property of this respondent for the purpose of the construction of the ditch proposed and described in the amended petition, or any other ditch. And your petitioner further prays that such a board of commissioners shall be appointed by this court as provided by the statutes of the state of Colorado In such case made and provided, and that, when so appointed, the inquiry and jurisdiction of such board of commissioners be limited to the single question of ascertaining and determining the necessity, if any, for the proposed taking and enlargement of the said Myers ditch, and the necessity for the proposed flowing of water through the same by the petitioner and the necessity of taking any other lands and property of this respondent for the purpose of constructing a ditch over or across the same at any time or at any place.” Also on the same day said company filed a petition in said proceedings in the following language: “Now comes the respondent, Broadmoor Land Company, without in any way waiving its petition for a board of commissioners, to ascertain and determine the necessity of enlarging the said Myers ditch or the taking of any of the lands or property of this respondent, but insisting upon its rights to have such board of commissioners appointed to determine the question of necessity, as aforesaid, and prays and requests the court that, in the event such board of commissioners shall find there is necessity for the enlargement of said Myers ditch, or for the taking of any lands or property of this respondent in this proceeding, that the question of damages or compensation to be allowed this respondent for such enlargement of said Myers ditch, and such taking of the lands and property of this respondent may be heard and inquired of by a jury of freeholders to be selected, impaneled, and sworn as provided by the statutes of the state of Colorado in such case made and provided.” Both of said petitions were denied by the court on January 18, 1904, and an exception taken to such rulings. On the 2d day of February, 1904, said case came on for trial before the court and a jury selected from the regular panel of jurors in attendance upon the court. Eleven of the jurors who composed the trial jury were nonresidents and nonfreeholders of the county of El Paso; that being the county, in which the petition was filed. Each of said 11 jurors was challenged by-counsel for the Broadmoor Land Company for the reason that they were nonresidents and freeholders of El Paso county, which challenge was by the court denied. After the jury were impaneled, and before the trial commenced, counsel for the Broadmoor Land Company again asked for the appointment of commissioners to determine the necessity, practicability, and feasibility of the proposed taking. The trial proceeded against the protest of counsel for the Broadmoor Land Company, and only two questions were submitted by the court to the jury, viz., “First What is the market value of the strip of land actually taken for right of way for ditch purposes? What is its value at this time? Second. To what extent, if at all, are the remaining lands of the respondent, Broadmoor Company, depreciated in their value by the construction of the ditch over the strip taken?” The jury returned a verdict for petitioner, and assessed the damages for land taken and damaged at $2,500. Judgment having been entered on this verdict, the Broad-moor Land Company procured a writ of error from this court to reverse the same.</p>

<p>1. Appeal — Grounds for Dismissal — Failure to Comply with Rules.</p> <p>The rule of the Circuit Court, of Appeals, requiring writs of error and citations to be made returnable and the transcript to be filed not exceeding 30 days from the day of signing the citation, is directory and not jurisdictional, and an appeal will not be dismissed because of noncomplianee therewith, where the appellee has appeared and it appears that no injury has resulted from the failure to comply with the rule.</p> <p>2. Courts — Appellate Jurisdiction — Circuit Court of Appeals.</p> <p>An appeal lies from a Circuit Court to the Circuit Court of Appeals in a case where diversity of citizenship is duly alleged as the basis for the jurisdiction of the Circuit Court and the substantial question involved is the validity and proper construction of a state statute which is alleged to be void as in violation of the federal Constitution.</p> <p>[Ed. Note. — Jurisdiction of Circuit Court of Appeals, see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>3. Same — State Decisions Binding on Federal Courts — Texas Court of Criminal Appeals.</p> <p>Upon the question of the construction of a Texas statute, enforceable through criminal proceedings, a federal court is bound by the construction placed thereon by the Texas Court of Criminal Appeals.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 957.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p>

<p>Appeals and Cross-Appeal from, the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>Under the tariff law of 1894 lumber was free of duty. By the law of 1897, which became effective by the President’s signature at six minutes after 4 o’clock p. m. July 24, 1897, a duty was imposed upon lumber imported from foreign countries. At Chicago the law went into effect at six minutes after 3 p. m.</p> <p>On July 23, 1897, the propeller Maine had in tow the barges Pendell, Buckhout, and Exile, and the propeller Toltee had in tow the barge Miztec, all laden with lumber, bound from Canada to Chicago. The lumber on the Maine, Pendell, and Buckhout was consigned to the Hartwell Company, that on the Exile, Toltee, and Miztec to the Spry Company. The consignees tendered entry of the lumber on that day and also during the forenoon of July 24th. The collector refused to accept the tenders.</p> <p>Prior to 3:06 p. m., July 24th, the Toltee and the Miztec were in American waters and within the collection district of Chicago, but they were still under way and had not arrived at the place outside of the breakwater where it was customary, when the water was sufficiently calm, to break up the tows to be taken in charge by tugs. But the Maine and its barges had reached that point shortly after 2 o’clock and were then lying to and engaged in negotiating with tugs to take them up the Chicago river to the lumber docks. They had some delays in securing tugs and were at the same location at six minutes after 3.</p> <p>The lumber was entered on July 26th, and the collector demanded and was paid, under protest, duties on all of it at the rates prescribed in the act of 1897. His action was sustained by the board of general appraisers. The Circuit Court affirmed the ruling respecting the lumber on the Toltee and Miztec, consigned to the Spry Company, and overruled it as to the lumber on the Maine, Pendell, and Buckhout, consigned to the Hartwell Company, and on the Exile, consigned to the Spry Company. These appeals and cross-appeal followed.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy. The trustee of the estate of Birck & Co., bankrupt, petitions for review of an order of the District Court sitting in bankruptcy, which affirms an order of the referee in bankruptcy, directing that the trustee pay to William Torpey, respondent, the sum of $2,084.

<p>Appeal from the District Court of the United States for the Eastern . Division of the Northern District of Illinois.</p> <p>This appeal is from a decree of the District Court, sitting in admiralty, against the appellant, North German Fire Insurance Company, for recovery of the amount insured under its fire insurance policy upon the steamer Gordon Campbell. The policy is executed in the standard form of insurance against loss or damage by fire, in favor of the Ontario Navigation Company, with a printed form attached, under the head for description of property, entitled “Standard Form — Fire Policy on Lake Vessels,” insuring “on the hull of the Gordon Campbell, together with her tackle” and other equipments, and permitting, navigation and other incidents of steamer service. It also contains a coinsurance clause which provides: “In case of a fire occurring at a place where repairs cannot be made, this policy shall contribute its portion of the expense of getting the vessel to the nearest port of repairs; vessel, cargo and freight each to contribute to such expense in proportion to their respective values.” The libel in personam was filed by Isaac D. Adams as assignee of the policy, and the material averments of fact are undisputed — including the ownership of the steamer Gordon Campbell by the assured and the facts (1) that the steamer possessed the jurisdictional qualifications, (2) was “engaged in the business of commerce and navigation upon the Great Lakes,” and (3) was damaged by fire during such engagement within the term of the policy. While error is assigned for rulings of the trial court upon the merits of the controversy, all questions thereupon are withdrawn by the appellant, and a single question is submitted for review — whether the cause stated in the libel is cognizable In the admiralty.</p>

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

This cause comes here upon petition to review an order of the District Court, Northern District of New York, confirming a report of a special master, overruling exceptions to the same, and adjudging that certain poli-' cies of insurance upon the life of Jacob M. Mertens (one of the members of the bankrupt firm of “J. M. Mertens & Co.”), and all the rights, title, and interest of said Mertens in and to said policies, and the rights, powers, and property represented thereby,…

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

<p>Judgments — Proceedings to Vacate — Powers of Federal Courts.</p> <p>A federal court has no power, on motion or petition in an action at law, to vacate a judgment rendered at a previous term; the appropriate remedy, in case the judgment was wrongfully or fraudulently obtained, being by a bill in equity.</p> <p>[Ed. Note. — For eases in point, see vol. 30, Cent. Dig. Judgment, § 668.]</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.</p> <p>The appellant is the owner of. patents No. 654,843, No. 654,844, and No. 654,845, issued July 31,1900, to Schofield, and No. 609,251, issued March 5, 1901, to Pilstrup and Schofield. They all relate to improvements in connection with saw-sharpening machines. Infringement was admitted if the claims were valid. The Circuit Court dismissed the bill for want of equity on the ground that the claims were void for lack of invention.</p> <p>The claims relied on are these:</p> <p>Patent No. 654,843: “(3) In a saw-sharpening machine, the combination with the frame thereof, of a vertically-movable slide connected with the front ■end of the frame, means for adjusting said slide, a stop-carrying bar fixedly secured to said slide, stops thereon, and a guide-bar pivotally supported from said slide and limited in movement on its pivot by said stops, substantially as and for the purpose set forth.</p> <p>“(4) In a saw-sharpening machine, the combination with a frame provided at its front end with a vertical guide-channel, a slide movable in said channel,. a stop-bar secured to said slide, adjustable stops connected .with said bar, a guide-bar pivotally supported from said slide and limited in movement by said stops, and means for raising and lowering said slide, substantially as and for the purpose set forth.”</p> <p>Patent No. 654,844: “(5) In a saw-grinding machine, the combination with a frame provided at its front end with a bearing-bloclk for a feed-arm, of a feed-arm provided with a feed-finger with a replaceable horizontal bearing-block, and a replaceable vertical bearing-block serving to hold said horizontal bearing-block in place, substantially as and for the purpose set forth.”</p> <p>Patent No. 654,845: “(5) In a saw-support, the combination of a suitable base, a stem projecting upwardly therefrom, means for raising and lowering: said stem, a head carried by said stem provided with two stops, and a bar-form saw-bearing pivoted on a transversely-extending pivot intermediate said stops and left free to swing in the plane of the saw, substantially as and for the purpose set forth.”</p> <p>Patent No. 669,251: “(3) In a saw-sharpening machine for operating upon band-saws having teeth on each edge, said machine having a shaft for communicating motion directly or indirectly to the grinding-wheel arbor, a sleeve journaled on said shaft, a pulley secured to said sleeve through the medium of which said sleeve is rotated, a pulley rotated through the medium of said sleeve, a pulley journaled on said shaft, a counter-pulley, means for communicating motion from said sleeve-actuated pulley to said counter-pulley and back in the reverse direction to the pulley journaled on said shaft, and means for connecting either one of said last-named pulleys to cause said shaft to rotate therewith, substantially as and for the purpose set forth.</p> <p>“(5) In a saw-sharpening machine for operating upon band-saws having teeth on each edge, said machine having a shaft for communicating motion directly or indirectly to the grinding-wheel arbor, a sleeve journaled upon said shaft, a pulley through the medium of which said sleeve is rotated, a pulley rotated through the medium of said sleeve, a pulley journaled on said shaft, a clutch movable longitudinally of said shaft, and serving to communicate motion to the shaft, clutch members connected with the sleeve-actuated pulley and the pulley journaled on said shaft, means for shifting the clutch on said shaft to bring the same into engagement with either of said clutch members as desired, and means for communicating a reverse motion from the sleeve-actuated pulley to the pulley journaled on said shaft, substantially as and for the purpose set forth.</p> <p>“(6) In a saw-sharpening machine for operating upon band-saws having teeth on each edge, said machine having a shaft of the nature described, a sleeve journaled on said shaft, a pulley for communicating motion to said sleeve, a pulley actuated by said sleeve, a clutch member connected with said last-named pulley to rotate therewith, a clutch, F, keyed to said shaft, a pulley, E, having a clutch member, a shifting-lever, F3, and means for communicating motion in a reverse direction from the sleeve-actuated pulley to the pulley journaled on said shaft, substantially as described.”</p> <p>The following, among many prior patents, were cited: No. 98,695, January 11, 1870, to Kinney; No. 392,610, November 13, 1888, to Hoffman; and No.. 468,470, February 9,1892, to Watson.</p>

This cause comes here on writ of error by defendant from judgment entered in favor of plaintiffs in the United States Circuit Court for the Southern District of New York on a verdict for $35,000 damages for breach of contract for payment of royalties under plaintiffs’ patent, No. 346,563, granted to John Robertson, August 3, 1886, for a hydraulic lead press. The action was originally brought in the Supreme Court of New York, but was duly removed to the federal court.

In Equity. On final hearing. The following represents the draft as amended in pencil before January 7, 1896, when read, with the pen additions, and without the words canceled or italicized: UNITED STATES PATENT OFFICE. William Liddell, of Brooklyn, New York, Assignor to tlie Eastern Paper Bag Company, of Connecticut. Paper-Bag Machine. Specification forming part of letters patent, No. 558,969, dated April 28, 1896. Application filed February 6, 1896. Serial No. 578,291.

<p>1. Same — Profits—Savings by Use of Infringing Device.</p> <p>Where a patent for certain improvements in machines for making paper bags was found to be infringed by machines made and used, but not sold, by defendant, and it appears that the product of such machines has no superiority which gives it an enhanced price over that of noninfringing machines, the only profits recoverable are the savings in the cost of construction and maintenance of the machines, or in the cost of the product due to the use of the infringing devices.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 566-576. C</p> <p>Accounting for profits by infringer of patent, see note to Brickell v. Mayor, etc., of City of New York, 50 C. C. A. 8.]</p> <p>2. Same — Rules Governing Accounting.</p> <p>The rules applicable on an accounting for damages and profits for infringement of a patent discussed with reference to the particular facts shown by the record.</p>

<p>Patents — Infringement—'Water-Wheel Buckets.</p> <p>The Dodd patent, No. 454,638, for a water-wheel bucket, Is for an improvement oh the buckets of the prior art, and not of broad scope. It is not infringed by the bucket of the Doble patent, No. 633,184, which is also an improved form of bucket, but lacks essential elements of the Dodd invention.</p>

<p>Patents — Validity and Inebingement — Bath-Seats.</p> <p>The Silver patent, No. 736,032, for a bath-seat, consisting of a wooden board, which is reversible, and having holes extending into the ends iu which the arms of bent wire hangers are inserted and held solely by frictional contact, being removable and adjustable to adapt the seat to bath-tubs of different widths, while for a simple device, discloses invention, and was not anticipated nor invalidated by prior public use. Also held infringed by one structure made by defendants, but not by another.</p>

<p>1. Patents — Licenses.—Right to Attach Conditions.</p> <p>It is within the rights of the owner of a patent to grant licenses conditioned that the licensees shall sell the patented article only at prices fixed by the agreement and also restricting the production of a licensee, and such agreements, if made in good faith and for the purpose of protecting the patent monopoly, are not illegal as in restraint of trade and commerce, and such good faith is not impeached by the fact that the patent has been held invalid by the federal courts in some circuits, where it has been sustained in others.</p> <p>[Ed. Note. — Power of patentee to control his invention, see note to Heaton-Peninsular Button Fastener Co. v. Eureka Specialty Co., 25 C. C. A. 280.]</p> <p>2. Patents — Licenses—Validity op Provisions — Restraint op Trade.</p> <p>Complainant, owner of a patent for a rubber tire which had been adjudged invalid by the Circuit Court of Appeals for the Sixth Circuit, entered into license contracts with all of the large manufacturers of tires in the United States, all of whom were engaged in interstate commerce. Such contracts were uniform, and each made a part thereof collateral contracts made at the same time, one of which was between complainant on one part and all of the licensees on the other. As a whole the contracts provided for the payment of a royalty equal to 4 per cent, of the net selling price of the tires made thereunder, fixed the prices at which the tires should be sold at a substantial advance over the then market price, and also limited the production of each licensee to a certain per cent, of the production of all, providing that if the licensee made less than his “quota” he should be paid a rebate of 20 per cent, on the value of the shortage, and if he made more he should pay a royalty of 20 per cent, on the excess. The contracts also provided for a board to supervise the operations of the licensees to which one-half the royalties should be paid and which should have power, with the consent of a majority of the licensees, to purchase tires from any of them and resell at such prices as it deemed for the interest of all. Beld, that such contracts went beyond the rights of complainant under its patent monopoly in raising and maintaining prices in the states composing the Sixth federal circuit, in which the monopoly had no practical existence, and in creating a fund to be used to crush competition by outside manufacturers, as well in the Sixth circuit as elsewhere, and were illegal and void as creating a combination in restraint of interstate trade and commerce, in violation of the anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St 1901, p. 3200.])</p>

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

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

<p>In Equity. Suit for infringement of patent. On demurrer to amended bill.</p>

<p>1. Descent and Distribution — Title oe Heir — Action Relating to Real Property.</p> <p>Under the law of California a sole heir is vested at once on the death of the ancestor with title to real estate which will support an action against a third party with respect thereto, regardless of whether there has been a settlement of the estate and a decree of distribution.</p> <p>2. Constitutional Law — Exercise oe Police Power — Judicial Power to Review.</p> <p>The question whether an ordinance is a fair, reasonable, and appropriate exercise of the police power, or is an unreasonable, arbitrary interference with the right to hold and enjoy property under the guise of an exercise of police power, is a judicial one, and the courts are not precluded from determining it by the mere fact that a municipal body has expressed its judgment</p> <p>3. Municipal Corporations — Police Power — Reasonableness of Regulation.</p> <p>An ordinance which arbitrarily prohibits the burial of bodies within aD entire county, embracing large tracts of land unoccupied and remote from human habitation, where the public health and safety could not possibly be endangered, is unreasonable and void.</p> <p>4. Same — Prohibiting Use of Cemetery.</p> <p>If a cemetery has never been and will not become a nuisance, and is not dangerous to life nor detrimental to the public health, it is not within the constitutional powers of a municipality to prohibit its use.</p>

<p>In Bankruptcy. On petition of Jock B. Henderson against James M.. Henrie and others.</p>

<p>Shipping — Time por Loading Under Charter — Reasonable Dispatch.</p> <p>A verbal charter of a schooner to carry a cargo of lumber fixed the port of loading, but contained no stipulations as to the time she should arrive, nor for lay days, nor for her loading at any particular dock or place. Without her fault she was delayed, and did not arrive until 60 days after she was expected by both parties; but when she arrived she was loaded by the charterer, although the cargo originally intended for her had in the meantime been forwarded. Held that, the charter being still in force, it was the duty of the charterer thereunder to have a cargo ready and to load her with reasonable dispatch, and that it was not relieved from such absolute obligation by the circumstances nor by the fact that the mill at which she was directed to load did not have sufficient lumber on hand and it was necessary to wait until it could be manufactured, even -though reasonable diligence was exercised in providing the cargo.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 572. 573.]</p>

<p>1. Partnership — Real Estate oe Firm — Nature op Property in Equity.</p> <p>Partnership real estate is regarded in equity as personal property and assets of the firm, not only for the payment of debts, but also for every other purpose properly connected with the settlement of the partnership affairs.</p> <p>2. Same.</p> <p>After the death of a partner his interest in the partnership and its property, which included real estate standing in the name of the partners, was purchased by the surviving partner who paid full value therefor to the executors and the same was distributed as a part of the estate. Defendants, who were residuary legatees of the decedent, were minors at the time and did not join in the conveyance made by other legatees to the purchaser, but after attaining their majority they joined in approving the executor’s final settlement. Held, that while they were the owners of the legal title to an undivided portion of the real estate, the equitable title was in the purchaser, and they would be enjoined from enforcing a judgment in ejectment obtained by. them for such interest in an action at law.</p>

<p>Bankruptcy — Estate op Partner — Rights op Partnership Creditors.</p> <p>Banlsr. Act July 1, 1898, c. 541, § 5f, 30 Stat. 548 [U. S. Comp. St. 1901, p. 3424], which provides that “the net proceeds of the partnership property shall he appropriated to the payment of the partnership debts and the net proceeds of the individual estate of each partner to the payment of his individual debts,” but that any surplus remaining of either estate shall be added to the other, limits the right of a partnership creditor to share in the estate of a partner in all cases to the surplus which may remain after his individual debts are paid; and there is no exception, even where the partnership has no assets and no solvent partner-.</p>

<p>In Bankruptcy. On petition for revision filed by Herman Fouse.</p> <p>On February 3, 1900, J. M. Jackson and J. M. Jackson, Jr., the owners, leased the Hotel Monroe, in Parkersburg, W. Va., to S. H. Biddle for a term of five years, beginning March 1, 1900, and terminating February 28, 1905. One of the stipulations of this lease prohibited Biddle from assigning, transferring, underletting to, or taking into partnership, any other without the consent of the Jacksons, their heirs, or representatives in writing. On July 1, 1901, a modification was made in writing, fixing the rent payable at $180 per month from July 1, 1901, to February 28, 1902, after which date such rent was to be $200 per month for the remainder of the term. On January 15, 1902, Biddle assigned this lease to J. W. Depue, with the written consent of the Jacksons. On January 10, 1905, Depue executed six negotiable notes, four for $300 each, payable in three, four, six, and eight months, one for $392.90, payable in ten months, and the sixth for $1,482.10, payable in four months. All these notes were accommodation ones, payable to R. M. Olendenning, and indorsed by him; and to secure and save him harmless Depue executed the same day a deed of trust to D. O. Oasto, trustee, upon the furniture in said Hotel Monroe, providing in said trust that, in case he made default in the payment of said notes and in protecting Olendenning from liability therefor, then sale should be made of said furniture and personal property, upon request of Olendenning or any holder of all or any one of said notes. On March 8, 1905, Depue by bill of sale, in consideration of real estate, conveyed to him, situate in Parkersburg, W. Va., and Columbus, Ohio, sold said furniture and fixtures in said Hotel Monroe to Herman Fouse, agreeing to surrender to the latter “the said business and its patronage” and “to relieve said property from all bills and liabilities at the time outstanding.” On March 11, 1905, Depue executed to Oasto, trustee, another deed of trust upon the Parkersburg property derived by him by the conveyance of March 8, 1905, by Hughes and wife at the instance of Fouse and in part payment of the latter’s purchase price for the furniture and hotel business, to secure Olendenning harmless and the payment of the same six notes secured by his former trust deed of January 10, 1905, upon the furniture itself. On March 16, 1905, Fouse, by bill of sale, transferred to L. H. Mclntire all of said furniture and fixtures in said hotel derived by him from Depue in consideration of $5,000, for which Mclntire executed two $500 negotiable notes, payable in six and twelve months, and four for $1,000 each, payable in two, three, four, and five years from that date, with interest, and on the same day, and to secure these notes, Mclntire executed a deed of trust to Casto, trustee, upon the same furniture and fixtures. Thereupon Mclntire took possession of said hotel business, but without written consent of the Jacksons or any further transfer of the lease to him from Depue, although it is admitted that the agent for the Jackson heirs received from him, while in possession, $133.33 upon rent due. In this condition of affairs, proceedings were instituted, and Mclntire adjudged bankrupt, and a reference was made to George W. Johnson, referee, by this court.</p> <p>By two petitions filed May 26, 1905, and June 1, 1905, respectively, before said referee, the Jacksons, by their agent, set up the lease held by Depue; that various people were put in charge of the hotel by him, but no assignment of the lease was agreed to by the lessors or their agent; that rent to the amount of $2,066.67 was in arrear and distress warrant had been sued out and levied upon the furniture and fixtures in the hotel therefor; that Mclntire had listed such furniture and fixtures as assets of his in the bankruptcy proceeding; and that such claim for rent in arrear was a lien'upon such personal property first payable in full before all others. On June 5, 1905, the said Herman Douse filed his specification and claim for $5,010, the amount of principal and interest due upon his six notes of Mclntire’s, and claiming a first lien upon said furniture and personal property by reason of his deed of trust from Mclntire. On June 9, 1905, R. M. Clendenning filed his claim for the sum of $3,075, by reason of the six accommodation notes made by Depue to him, and claiming a first lien upon said furniture by virtue of Depue’s deed of trust to Casto in his favor. Meanwhile T. J. Helmick had been appointed trustee for said bankrupt, ánd on June 3, 1905, reported a sale of said furniture as having been made for cash for $1,340. On August 2, 1905, Douse filed his exception and answer to Clendenning’s proof of claim, in which he alleges that, when he purchased said furniture from Depue, he paid full value by the conveyance of real estate; that Depue agreed to relieve it of all liabilities; that Clendenning at the time agreed to release his deed of trust upon it and did sign such release, but it was not recorded; that Clendenning’s lien was to be, and was, in fact, transferred from this personal property and placed upon the real estate so conveyed to Depue under and by virtue of the deed of trust to Casto, trustee, of date March 11, 1905; that in consequence Clendenning waived and released all his rights under and by virtue of his deed of trust upon such furniture, and he asks said claim as a lien or charge against the proceeds of its sale be disallowed. On the same day he filed his demurrer, answer, and protest to claim and petition of the Jacksons for rent, in which he demurs because the proof of claim is made by the agent for the Jacksons, because the petitions do not allege that the Jacksons have no other security except their supposed lien upon said furniture or its proceeds, and because their claim is against Depue, and not the bankrupt, Mclntire. Dor answer he alleges his purchase from Depue of the furniture; his exchange of real estate worth $5,000 therefor; the recordation of his bill of sale; his sale of the property to the bankrupt, Mclntire, by writing recorded; its consideration of $5,000, evidenced by the six notes; the deed of trust executed and recorded to secure them; the taking possession of the hotel and property by Mclntire without objection from the Jacksons; the acceptance of $133.33 rent by them from him; that his deed of trust debt is in the nature of a vendors lien upon said furniture; and asks that it be ordered paid first out of the proceeds of its sale to the extent of such proceeds, and protests against the application thereof to the Jacksons’ rent demand. On August 3, 1905, the Jacksons filed an additional affidavit in proof of their claim, in which they more elaborately set out the facts upon which it was based, and with which they file the original lease and copy of the distress warrant and levy sued out by them. Douse filed exceptions to trustee Helmick’s report, which objected to the trustee’s allowance of rent to the Jacksons after he took charge as such trustee, but these are not very material to the question involved. On August 7, 1905, at a meeting of creditors, referee Johnson decided the Jacksons had a landlord’s lien upon said furniture and fixtures prior to all others, and directed by order duly entered the application of the proceeds of the sale thereof to their claim after payment of costs, subject, however, to decision upon another claim of a brewing company, not material to consider.</p> <p>After the rendering of this decree, on August 8, 1905, Fouse filed his petition in the nature of a bill of review, in which he sets forth substantially his original objections to the claim of the Jacksons, and then for the first time charges that before buying said property from Depue he was informed by W. W. Jackson, agent for the Jacksons, that Depue had arranged the rent, at that time in arrear, in a manner satisfactory to such agent, and that, upon the strength of this representation made to him by such agent, he closed the sale with Depue, paying full value for the furniture. He further charges that the arrangement made by Depue with the agent of the Jacksons for such rent in arrear was the delivery by him to such agent of the accommodation notes made by Depue to the order of Olendenning, indorsed by the latter and secured by the deed of trust upon the furniture in favor of Olendenning heretofore set out, and that Jackson, agent, still holds these notes and is trying to relieve Olendenning from his indorsement by enforcing the landlord’s lien. He further charges that, when he talked to W. W. Jackson, agent, the latter refused to lease the hotel to Mclntire without an increase of rent, but said that he could take charge as long as he paid the rent, but, if he did not, the Jacksons would hold Depue therefor.</p> <p>To this petition the Jacksons on" August 15, 1905, filed a written demurrer, and on August 16, 1905, the referee sustained the same and by order refused to set aside or modify his order of August 7, 1905. Thereupon Fouse brings the matter up for review.</p>

In Equity. . On demurrer to bill. The complainant, who is a citizen of the state of California, seeks by this bill to enjoin the city of North Little Rock, a municipal corporation existing under the laws of the state of Arkansas, from constructing a viaduct along and upon Newton avenue or Main street of said city, for the construction of which it had entered into a contract with its codefendant.

<p>1. Contracts — Legality—Conditions in Sale oe Proprietary Medicines.</p> <p>The manufacturer of an article sold as a medicine and made under a secret process or formula of which he is the sole owner may sell such, article or withhold it from sale at his pleasure, may sell to one and not to another, and may lawfully, by contracts with purchasers, impose such conditions as he sees fit with respect to the prices at which it shall be-sold to others or the persons to whom it may be sold. ’</p> <p>2. Injunction — Inducing Violation of Contract — Defenses.</p> <p>In a suit by the manufacturer of an article'made in accordance with a secret formula to enjoin the defendant from attempting to induce persons to whom complainant sells such article to violate the contracts under which such sales are made, as an infringement or violation of complainant’s property rights, an answer setting up that complainant has entered into an unlawful conspiracy with others to maintain the price of such article and others of like character, and prevent competition in their sale, states no defense, since the right sought to be protected does not. arise out of, and is in no way dependant, upon, such alleged conspiracy.</p>

<p>1. Seamen — Right to Reduce Wages.</p> <p>A reduction in the wages of a mate after the completion of the voyage, for alleged incompetency or neglect of duty, will not be approved, where the employment was on a coasting vessel and there was opportunity to discharge him, but no action was taken by the master to that end, nor to disrate him.</p> <p>2. Same — Refusal to Pay — Recovery of Penalty.</p> <p>Where there was fair ground for claiming the right to reduce the wages of a mate because of neglect of duty, the refusal to pay him the agreed wages in full on his discharge was not “without sufficient cause,” so as to subject the master or owner to the penalty imposed by Rev. St § 4529, as amended by Act Dec. 21, 1898, c. 28, § 4, 30 Stat. 756 [U. s. Comp. St. 1901, p. 3077].</p>

<p>In Equity. On exceptions to report of master appointed by interlocutory decree, entered August 22, 1904, to take and state the partnership account between the parties. The decision at final hearing is found in 131 Fed. 124.</p>

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

Action at law to recover of the defendants, as directors of the Neptune Mining Company, a Colorado corporation, the sum of $5,500 as the aggregate amount of the claims or demands of the plaintiff and of 30 other persons, firms, or corporations against said mining company, which have been assigned to the plaintiff.

<p>In Bankruptcy. On petition of the bankrupt for review of the-order of the referee denying to him a quantity of corn as a part of his exemptions.</p>

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

The appellee was the complainant in the court below, and in its bill alleges that the defendant to the suit, appellant here, is a corporation engaged in the business of operating certain mines on section 34, township 33 H, range 6 W., M. D. M., and elsewhere in the neighborhood thereof, and of mining, roasting, burning, smelting, and refining copper and other ores mined therefrom, its works being on section 18, township 32 N., range 5 W., M. D. M., and upon other land near…

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

<p>1. Insurance — Requirement of Immediate Notice in Accident Policy— Waiver.</p> <p>Where, under an accident insurance policy which required “immediate notice” to be given to the company of any accident and injury to the insured, no such notice was given until 189 days after an accident which resulted in the death of the insured, and 07 days after his death, the default was not waived by an objection to the validity of the claim on other grounds, the failure to give such notice being one of the grounds assigned for its final rejection, since in any event the default could not have been cured by the claimant, nor could its effect be avoided except by an express waiver by the company.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1307-1378.</p> <p>Time for notice of loss see note to 55 O. O. A. 376.]</p> <p>2. Same — Construction of Condition in Policy — Failure to Give Notice of Accident.</p> <p>Where an accident insurance providing for the payment of a weekly indemnity to the insured in case of an accidental injury, and the payment of the amount of the policy to a named beneficiary in case of his death from such an injury, made it an express condition that “immediate written notice” should be given to the company “of any accident and Injury for which claim is made,” such proviso required notice to be given within a reasonable time; and where the insured lived for 72 days after an accidental injury, during which time he was in full possession of his faculties, his failure to give any notice of the accident before his death, without any excuse therefor appearing, as a matter of law defeated any right the beneficiary would otherwise have had to recover on the policy for his death, which was dependent on such notice as fully as the right of the insured to recover benefits in his lifetime.</p> <p>[Ed. Note. — Eor cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1328-1333.]</p>

<p>1. Specific Performance — Necessity of Contractual Relation — Agents.</p> <p>Complainant entered into a contract with , the patentee of certain disinfecting apparatus and fluids by which he was given for an indefinite time the exclusive right to sell such patented articles in Philadelphia and vicinity, the patentee to furnish him with the same at agreed prices. Defendants were general agents of the patentee, and it was through them that the contract was made, although they were not parties thereto, and they were to furnish the supplies and to collect therefor. After a number of years they purchased the patents and themselves opened a place of business in Philadelphia, where they sold the articles and refused to longer supply complainant. Held, that there was no contractual relation between them and complainant which entitled him to a specific enforcement of the contract against them or to an injunction restraining them from entering into competition with him in his business, since their relation to the contract was in their capacity as agents only and terminated with their agency.</p> <p>2. Same — Right to Remedy — Mutuality.</p> <p>A contract by which complainant was given the exclusive right to sell in a specified territory certain patented articles to be sold to him by the other party as required, and by which he agreed to push the sale of the articles, the contract to continue so long as he did so, was in effect one for continuing personal service on his part, which he could not specifically enforce in equity for want of mutuality in the remedy.'</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 9, 210. ■</p> <p>Specific performance of contracts requiring performance of continuous acts, see note to Berlinger Gramophone v. Seaman, 49 C. C. A. 103.]</p>

<p>JL Carriers — Limitation oe Liability — Condition in Bill oe Lading.</p> <p>A common carrier cannot relieve itself from any portion of its common-law liability for the loss or destruction of goods in shipment, except by express or implied contract with the shipper, and in the absence of an express agreement no contract to that end will be implied from any condition or .regulation contained in a bill of lading not within the general knowledge of the shipper, unless clearly and distinctly brought to his attention at the time of the shipment.' There is no presumption, either of law or fact, that he had knowledge of such condition, where there is nothing in its position or the color or style of type in which it is printed to render it conspicuous, and the question of actual knowledge in such case is one of fact for the jury.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Carrier, §§ 691-693.]</p> <p>:2. Same — Construction oe Bill oe Lading.</p> <p>Any reasonable doubt as to the proper construction of the printed portion of a bill of lading should be resolved against the .carrier which prepared it.</p> <p>[Ed. Note. — For cases, in point, see vol. 9, Cent Dig. Carriers, §§ 14S-150, 166.]</p> <p>3. Same.</p> <p>Whether or not a shipper was negligent in failing to read a condition printed on the back of a bill of lading limiting the valuation of the property in case of loss is immaterial on an issue as to whether he was bound thereby, which depends entirely on whether he assented to the condition.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent Dig. Carriers, §§ 691-697.]</p>

Petition to review order of the United States District Court for the Southern District of New York overruling objections filed by trustee and allowing claim.

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

<p>1. Master and Servant — Railroads—Fellow Servants under Ohio Statutes.</p> <p>87 Ohio Laws, p. 150, § 3, in providing that every person in the employ of a railroad company “having charge or control of employés in any separate branch or department shall be held to be the superior and not fellow servant of employés in any other branch or department who haye no power to direct or control in the branch or department in which they are employed,” divides all of the employés of a railroad company, with respect to those working in separate branches or departments constructively, into superiors and subordinates; superiors being all those having authority over any co-employé whatever, and subordinates those having none. And under the decisions of the Supreme Court of the state that separate trains are separate “branches or departments,” within the meaning of the statute, a company is liable for the injury or death of a fireman through the negligence of the engineer of another train having authority over his own fireman, although he is himself subject to the control of the conductor of his train.</p> <p>[Ed. Note. — For cases in point see vol. 34, Cent. Dig. Master and Servant, § 508.</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>2. Same — Action for Death of Fireman — Contributory Negligence.</p> <p>Plaintiff’s intestate, who was a fireman on an engine on defendant’s railroad, was killed while his train was in the yards of the company, as the result of a collision alleged to have been caused by the negligence of the engineer of another train. Deceased was at the time standing on the running board On the front of his engine cleaning the headlight or number plate, and the engine was backing very slowly, drawing a number of cars after it. It was a part of his duty to clean the engine, and it was clearly shown that it was the custom of firemen on defendant’s road to do so during the day, sometimes while the engines were standing still, and sometimes while they were in motion, and that such custom was known to and sanctioned by the company, although a rule provided that firemen should clean the engines “at the end of each trip.” Held that, in view of such general custom, which in effect abrogated the rule, the deceased could not be said as matter of law to have been guilty of contributory negligence in being in the position where he was at the time of the collision, but that such question was one for the jury.</p>

<p>1. Water Courses — Pollution—Right to Injunction.</p> <p>A lower riparian owner is. entitled to protection by injunction from the pollution of the stream which prevents his reasonable use of it, in the absence of special equities or qualifying circumstances which take the case out of the general rule.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 66.</p> <p>Pollution of water courses, see note to 37 C. C. A. 538.]</p> <p>2. Same — Irreparable Injury.</p> <p>Complainant established a pulp mill on the Potomac river a few miles below an ore bank which had been worked for many years, and for the-last few with washers to free the ore from the clay; the waste water being run into settling pools and allowed to clear before being returned to the river. Subsequently defendant acquired the ore bank, greatly enlarged the works, and ran the waste water from the washers directly into the river, so discoloring the water with clay and ochre that complainant was obliged to stop its mill for about one-half the time. Held that, in the absence of proof by defendant that complainant could avoid the injury at a reasonable expense, the latter was entitled to an injunction re straining defendant from polluting the stream; it further appearing that he could provide settling pools, as formerly done, for a moderate outlay..</p>

<p>1. Insurance — Acceptance of Premium After Due — Authority of Agent.</p> <p>Where the general agent of a life insurance company had authority to accept payment of premiums at any time within 30 days after they became due, provided the policy holder was then insurable, ■ his acceptanee of a premium and delivery of the receipt therefor within such time, either himself or through a collecting agent, operated to renew and extend the policy from that time, even though he had no authority to agree to an extension, so as to keep the policy in force during the time of such extension before payment of the premium.</p> <p>2. Same — Action on Policy — Payment oe Premium.</p> <p>The general agent of a life insurance company, having authority to accept payment of renewal premiums at any time within 30 days after they became due, sent a policy holder’s receipt to a bank for collection, with instructions that it might be held a reasonable time. On the last day of the 30 days’ grace the insured went to the bank, of which he was a customer, and gave the bank a draft on a third party for the amount of the premium and interest. The bank stamped the receipt “Paid” and delivered it, entered the payment on its books, and drew its own draft in favor of the agent for the amount of the premium less its charges, and inclosed it in a letter for mailing, but it was not then deposited in the mail. The draft made by the insured was dishonored, and on notice of such fact a satisfactory arrangement was made by him to protect the bank, and four days after the delivery of the receipt the draft in favor of the agent was mailed to him. On the same day the insured was killed, and, learning such fact, the agent refused to accept the payment. The renewal receipt contained a provision that if any check or draft was taken by the company it should not constitute payment until it was collected. Held, in an action on the policy, that whether the transaction constituted a payment on the day of the delivery of the receipt depended on whether the draft was taken by the bank for the company or whether the bank itself discounted it and advanced the money, which, in view of the circumstances and relation between the bank and the insured, was a question for the jury.</p>

<p>1. Negligence — Premises Abutting on Highway — Duty of Abutting Owner.</p> <p>Where an owner of land erected a retaining wall by the side of a highway with the consent of the county commissioners, he was under no obligation to construct a rail on the top of the wall, to prevent people from falling off the highway onto his premises, so as to be liable to one attempting to go on the lot for his own purposes without any express invitation of the owner.</p> <p>2. Highways — Guard Rails — County Commissioners — Duties—Statutes.</p> <p>Rev. St. Ohio, § 4941-1, makes it the duty of the board of commissioners to maintain guard rails on each end of every county bridge, viaduct, or culvert, and on each side of every approach to every county bridge, viaduct, or culvert, whenever such' approach or embankment is more than six feet high; and section 4941-3 provides that a failure to comply shall render the county liable for all accidents or damages which may occur therefrom, etc. Held, that such sections did not require county commissioners to construct a railing on a wall separating a highway approach to a canal bridge from adjoining property, where it was not to be anticipated that travelers on the highway would leave it for the purpose of going on such adjoining property for- their own purposes and at a point where there was no invitation, usage, or necessity for so doing.</p>

The plaintiff below brought this action to recover damages resulting from an alleged breach of a contract for the purchase of oak lumber to be delivered by the defendants at Clarksville, Tenn., witnessed by a letter from the defendant, the terms of which were duly accepted by the plaintiff, as follows: “Clarksville, Tenn., January 28, 1902. “Dear Sirs: We enter yotir order for the following order: Three hundred to five hundred thousand feet (estimated) of quartered white oak.

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

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

<p>1. Negligence — Contributory Negligence — Burden of Proof.</p> <p>In the federal courts, contributory negligence is a defense, and the burden of proof upon the issue rests on the defendant.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent Dig. Negligence, § 224.]</p> <p>2. Same — Questions for Jury.</p> <p>As a general rule, the question of contributory negligence is one for the jury, and it is only where the evidence is practically undisputed, and the inferences dedueible therefrom point to the conclusion that plaintiff was at fault, and to that conclusion alone, that the court is justified in determining the question as a matter of law.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 333-342.]</p> <p>3. Same — Sufficiency of Evidence — Questions for Jury.</p> <p>It was not error to refuse to dismiss an action for a personal injury, on the ground that plaintiff was guilty of contributory negligence in starting to drive a carriage across a street having a driveway 28 feet wide in front of defendant’s wagon, which struck the carriage and caused the injury, where the only evidence before the court was to the effect that when plaintiff started to cross the driveway the wagon was 80 feet distant. •</p> <p>4. Municipal Corporations — Ordinance Regulating Driving in Streets— Construction.</p> <p>The New Fork ordinance, providing that on all the streets of the city all vehicles going in a northerly or southerly direction shall have the right of way over any vehicle going in an easterly or westerly direction, cannot be construed to require east or west bound teams to pause at the streets and avenues running north and south because a team is visible approaching from north or south, unless the condition is apparently such that neither team can cross ahead and clear the other as they are proceeding.</p> <p>5. Trial — Instructions—Refusal of Requests.</p> <p>It is a well-settled rule in the United States courts that, if the charge given by the court covers the entire ease, and submits it properly to the jury, such court may refuse to instruct further.</p>

<p>1. Shipping — Limitation op Liability — Knowledge ob Privity op Owner.</p> <p>Au owner who, after a general inspection, purchases a vessel from a shipbuilder of recognized standing and reputation, who equips her with machinery, means, and appliances which are suitable and sufficient, if properly used, may limit his liability for injuries to a stevedore, occasioned by the negligent use of such appliances by his employes.</p> <p>[Ed. Note. — Limitation of liability of shipowner, see note to The Longfellow, 45 C. C. A. 387.]</p> <p>2. Same — Injury op Stevedores — Liability op Owner.</p> <p>Where the bulkhead between two bins in a coal barge was faulty in construction and insufficient to sustain the pressure if one bin was unloaded while the other was full, and the defects were such as could readily have been discovered by the master by inspection, but he directed the unloading of one bin before the other, and in consequence the bulkhead collapsed and killed and injured stevedores engaged in discharging the coal, the injuries were attributable to the negligence of the master, for which the owner was responsible, and without contributory negligence on the part of the persons injured, who had a right to rely upon the duty of the owner to provide them with safe place in which to work.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 335, 350.]</p>

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

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

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>The following is the opinion in the Circuit Court by Cross, District Judge, in motion for new trial:</p> <p>Application is made to set aside a verdict on the grounds of surprise and merits. At the hearing of the rule it was stipulated in writing by counsel for the parties that the testimony taken in the Court of Chancery of New Jersey, in a cause wherein Charles R. Myers was complainant and S. M. Friedenburg et al. were defendants, before the Honorable Martin P. Grey, Vice Chancellor, should be taken and considered by the court as if taken under the rule to show cause herein. I have read the testimony referred to, and have reached the conclusion that the plaintiff herein took the notes in question, which were regular upon their face, before maturity, in good faith and for value, and without notice of any defenses thereto. Under these circumstances the alleged defenses could not be maintained. Indeed, I may go further, and say that even in a suit between the maker and payee I do not think the defenses, if interposed, would or ought to succeed. The testimony taken before the Vice Chancellor attempted to show that the notes were given on Sunday and on account of a stock-gambling transaction. As to the latter defense, there is no evidence whatever which, under the decisions, would warrant a verdict for the defendants, and as to the former the evidence against it clearly preponderates. The most that can be said in its favor is that there would be sufficient evidence were the suit between the original parties to the notes to compel its submission to a jury. I therefore deny the motion to set aside the verdict without giving consideration to the question of surprise.</p> <p>What has been said, however, only applies to the defendant Charles R. Myers. As to him I think the verdict should stand, but as to the defendant John Myers, who is only liable as an indorser of the notes, the verdict should be set aside. At the trial the court did not understand, from the opening of counsel or otherwise, that the suit was against any other than the defendant Charles R. Myers, or the verdict would not have been allowed to go against the indorser, John Myers. There was no notice of protest given to this defendant, so far as the evidence discloses. The fact that a certificate of protest was appended to the notes when offered in evidence was not sufficient. ■Counsel for the plaintiff contends that the verdict against the indorser can be sustained as if it were a judgment by default, but this is not so. The defendant John Myers had filed his plea, and this put the plaintiff to the proof •of his case, independently of whether or not the defendant appeared at the trial.</p> <p>An order setting aside the verdict will be entered as to the defendant John Myers, and discharging the rule to show cause as to the defendant Charles R. Myers.</p>

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

<p>Customs Duties — Classification—Bronze Hardener — Metal Unwrouqht— Metallic Mineral Substance.</p> <p>An alloy in the form of pigs, which is used chiefly in hardening manganese bronze, and which, in order to produce that effect, must be melted and mixed with other metals, held to come within paragraph 183, Schedule C, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 166 [ü, S. Comp. St. 1901, p 1645], relating to “metallic mineral substances in a crude state, and metals unwrought,” rather than paragraph 193, 30 Stat. 167 [ü. S. Comp. St. 1901, p. 1645], relating to articles composed of metal, or paragraph 122, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636], by similitude to the “ferro-manganese” there enumerated.</p>

This is an appeal, by the defendants, from a decree of the Circuit Court for the' Northern District of New York, sustaining eight claims of letters patent No. 528,223, granted October 30, 1894, to D. M. Cooper for a workman’s time recorder.

This cause comes here by appeal from a decree on final hearing dismissing bill alleging Infringement of complainant’s patents, No. 617,942, of January 17, 1899, and No. 634,838, of October 10, 1899, both granted to Henry E. Shaffer for improvements in Acetylene Gas Burners.

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

<p>Patents — Infringement—Artificial Musk.</p> <p>The Baur patent, No. 451,847, for an artificial musk, in view of the disclaimer filed, limiting it to the product of the process of patent No. 416,710 to the same patentee, is not infringed by a product not shown to have been made by such process.</p>

<p>Patents — Infringement—Electric Battery.</p> <p>Infringement of the Hoggson patent, No. 520,429, for an electric battery, by a battery in which the cells are not connected by the spring clamp specified in the patent, and which is an important, if not an essential, feature of the invention, nor by any equivalent therefbr, is too doubtful to warrant the granting of a preliminary injunction.</p>

The decree of the United States Circuit Court for the Southern District of New York dismissed a bill alleging infringement of complainant’s patents, Nos. 441,962, 532,175, and 703,440, granted to Charles Morrill for improvements in saw-sets.

<p>In Equity. Suit to enjoin alleged infringement of United States letters patent No. 512,504, dated January 9, 1894, to Alphons Custodis, of Dusseldorf, Germany, for chimney.</p>

<p>1. Patents — Invention—Adapting Device to Different Use.</p> <p>A mere increase in the size, weight, or strength of a device so as to adapt it to an analogous use, although in a different art, is not invention.</p> <p>[Ed. Note. — For cases In point, see vol. 88, Cent Dig. Patents, §§ 19, 20, 44.]</p> <p>2. Same — Meat Teee.</p> <p>The Oehmen patent, No. 688,674, for a meat tree is void for lack of patentable invention in view of prior devices used to display goods, practically the same in construction and mode of use.</p>

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

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

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

<p>Prisons — Federal Prisoners in State Prisons — Right of Officers to Parole.</p> <p>Under Rev. St §§ 5539, 5544 [U. S. Comp. St 1901, pp. 3720, 3721], which provide that persons convicted of offenses against the United States and who are imprisoned in the jail or penitentiary of any state or territory shall be exclusively under the control of the officers having charge of the same, in all respects subject to the same discipline and treatment as convicts sentenced by the courts of the state or territory and entitled to the same rule of credits for good behavior as other prisoners, a federal prisoner sentenced to imprisonment in a workhouse in Ohio may be paroled by the prison authorities, as authorized by Rev. St Ohio 1892, §2102.</p>

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

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

<p>1. Customs Duties — Classification—Scrapbooks—Postal Card Albums.</p> <p>Books or albums used for preserving collections of postal cards are dutiable as “scrapbooks.” under Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 404, 30 Stat 189 [U. S. Comp. St. 1901, p. 1673].</p> <p>2. Same — Commercial Designation — Designation at Enactment of Tariff.</p> <p>Held, that albums intended for holding collections of postal cards, a use to which scrapbooks are not applied, are subject to classification for duty as “scrapbooks,” because such articles were commercially known as scrapbooks at the time of the enactment of the tariff.</p>

<p>In Equity.</p> <p>The complainants seek by this bill to quiet their title to a tract of land constituting an island in the Mississippi river, now known as “Island No. 76.” The material allegations in the original bill and amendment thereto are that the complainants, citizens of the state of Illinois, are the owners and in pop-session of the lands in controversy, which are situated in the county of Desha and state of Arkansas. They derain their title to all of the lands except 51 acres as follows: Certificates of purchase and patents from the</p> <p>United States government, issued in July, 1847, and at various times thereafter during the same year, showing purchases and entries at the United States Land Office in Helena, Ark.; the lands being described as being in fractional sections 35 and "36, township 11 S. of the base line, range 1 E. of the fifth principal meridian, and fractional sections 1 and 2, in township 15 S. of the base line, range 1 E. of the fifth principal meridian. That after-wards said lands, having been duly assessed by the proper officers of tfie state of Arkansas for taxes, were forfeited to the state for the nonpayment thereof. While thus held by the state, it instituted an action in equity on the chancery side of the circuit court of Desha county, state of Arkansas, under the provisions of the statutes of that state then in force, to determine whether the forfeiture of those lands to the state of Arkansas was valid, and, if not, to ascertain the taxes due thereon to the state and county, declare them a lien upon said lands, and, if not paid by a time to be designated by the court, that they be sold for the taxes thus found by the court to be due and declared a lien thereon. That on October 11, 1883, a decree was rendered by said court setting aside the forfeitures to the state, finding the amount of taxes due on the lands, and declaring them to be a lien, and, if not paid within the time designated by the decree, that they be sold by the special commissioner appointed by the court for that purpose. The moneys decreed to be due and declared to be a lien on the lands not having been paid, they were sold in conformity with the orders of the court, by the special commissioner appointed for that purpose, and purchased by Sallie H. Murphy, to whom, after confirmation of the sale by the court and the expiration of the time within which the owners had, under the law, the right to redeem, a proper deed of conveyance was executed; and complainants now claim title by conveyance from the said Sallie H. Murphy, made on August 22, 1898, and ever since which time they allege they have been in possession thereof.</p> <p>As to the remaining 51 acres of the island not included in the sales made by the United States, when the other lands were sold in 1847, complainants derain their title as follows: A patent from the United States to the state of Arkansas under the swamp land grant of 1850, which patent was executed in 1858, the lands having been selected by the state of Arkansas as swamp and overflowed lands; subsequent conveyances by the state of Arkansas to John Evans, under whom complainants claim title by mesne conveyances fully set out in the bill. It is then charged that the island is in the Mississippi river, lying in front of portions of Bolivar county, state of Mississippi, and Desha county, state of Arkansas; that, ever since the sales made by the government and the conveyance by the state of Arkansas, the lands were assessed and subjected to state and county taxes in Desha county, Ark. It is further charged that by act of Congress of 1817, admitting the state of Mississippi into the Union, the western boundary of that state was fixed on the eastern bank of the Mississippi river, which has never been changed by any act of Congress, and that the said east bank of the Mississippi river is still the western boundary of that state; that in 1836 (Daws 1836, p. 9) the Legislature of that state, in establishing the county of Bolivar, fixed the boundary line on the west as “to the Mississippi river; thence up the Mississippi river.” It is also charged that at the time of the admission of the state of Arkansas into the Union in 1836, and at the date of the survey of the public lands in said state by the Surveyor General of the United States for said state, the main channel of the Mississippi river was east of this island, and therefore the island became a part of the territory of said state, although since then the main channel of the river has changed, first to one side and then to the other. That, notwithstanding these facts, the complainants learned in 1899 that the state of Mississippi claimed ownership of these lands by reason of forfeitures for nonpayment of the state and county taxes assessed and levied by the authorities of Bolivar county, Miss., and that under such claim the state sold them to the defendants, citizens of Mississippi, who now claim title thereto. That neither the state of Mississippi nor the county of Bolivar made any claim that said island was in that state until in 1882, after changes had been made in the main channel of the Mississippi river. That in 1892 the state of Mississippi sold the island, which it claimed to own by reason of a forfeiture for the nonpayment of taxes, to Curry & Hall, but that in 1893 or 1894, upon the application of said Curry & Hall to the Auditor of State, a board authorized by the laws of the state of Mississippi to determine those questions decided that those lands were situated in the state of Arkansas and not subject to taxation in the state of Mississippi, and for this reason caused the money paid by Curry & Hall to the state for the purchase of those lands to be refunded to them out of the state treasury, which was done. That notwithstanding these facts, defendants, during the temporary absence of complainants from the island, attempted to take possession of these lands by threats of intimidation. The bill then proceeds to narrate various acts of the parties interfering with complainants’ rightful possession, and prays for process, for an injunction against the defendants, and to quiet their titles. The defendants pleaded to the jurisdiction of the court, upon the ground that the lands are not situated in the state of Arkansas, but in the state of Mississippi. They also deny most of the material allegations in the bill, but, as upon the argument it appeared that the only question necessary for a proper determination of the controversy is in what state the lands are lying, it is unnecessary, in this statement of facts, to refer to any parts of the answer other than those material to the plea of the jurisdiction of the court.</p> <p>" The plea or answer denies that the legal effect of the act of Congress admitting the state of Mississippi into the Union fixes the eastern bank of the Mississippi river as the western boundary of the state, but charges that by that act the middle of the main channel of the Mississippi river was fixed as such boundary, and that the state of Mississippi has been in possession of all tlie island ever since, exercising jurisdiction over the same. They deny that at the time the surveys for Arkansas were made the main channel of the river was east of the island, but charge that at that time, and long prior thereto, and at the time of the admission of Mississippi into the Union, the main channel of the river was west of the island. They also deny that any officials of that state, authorized by law to act for the state, ever abandoned the state’s claim of jurisdiction, or conceded it to the state of Arkansas, and, if they did so, they acted without authority and in violation of the Constitution of the state of Mississippi, and their acts therefore were void and not binding upon the state.</p>

Criminal Prosecution. On motion by defendants and cross-motion by the United States to direct a verdict on trial of pleas in bar. Held: separate meetings and interviews with Edward Swift, vice president of Swift & Co., with Edward Morris, vice president of the Fairbank Canning Company, and with Jesse P. Lyman, president of the National Packing Company.

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

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

<p>1. Street Railroads — Transfer of Franchise — Legislative' Recognition.</p> <p>The effect of the incorporation in 1801 of the West Division Railway-Company to take over, so far as related to the West Side in Chicago, the rights of the South Side Railroad Company, which held a franchise to operate street railroads on both the South and West Sides, together with the act of 1865 ratifying all transfers of rights between the two companies and the subsequent action of the city council since that time In dealing with the two separately, was, at least prima facie, to entirely segregate the companies and to divest the South Side Company of all rights and incidental obligations on the West Side.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 123, 124.]</p> <p>2. Constitutional Law — Due Process of Law — Ordinance Providing for Universal Transfers on Street Railroads.</p> <p>A city ordinance requiring a street railroad company to accept transfers issued to passengers by other companies, in no way connected with it, and to carry such passengers over its lines without charge, is unconstitutional and void as depriving such company of its property without due process of law; and it is immaterial that the requirement is reciprocal and that in operation the effect of the ordinance might be to increase business to such an extent th'at the companies would suffer no loss.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent Dig. Constitutional Law, §§ 762-847.]</p> <p>3. Courts — Jurisdiction of Federal Courts — Federal Question.</p> <p>A suit to enjoin the enforcement of an ordinance requiring a street railroad company to carry without pay passengers holding transfers from other ear lines is cognizable in equity on the ground of preventing a multiplicity of suits and is within the jurisdiction of a federal court, where the invalidity of the ordinance is alleged on the ground that it deprives the company of its property without due process of law in violation of the federal Constitution.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 823.]</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>Note Mills v. U. S., 114 Fed. 257, 52 C. C. A. 92, and H. B. Claflin Co. v. U. S., 114 Fed. 259, 52 C. C. A. 94.</p> <p>, These proceedings relate to a decision of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by A. Wimpfheimer & Go. The opinion of the Board,- so far as relevant, reads as follows (G. A. 4,542, T. D. 21,569) :</p> <p>“TICHENOR, General Appraiser. The goods in controversy are figured silk fabrics, about 17 inches and upward in width and 20 yards or more in length, and are of the class chiefly known in trade as necktie silks. They were assessed for duty at specific rates, according to weight, percentage of silk, etc., under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 387, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1669], and are claimed to be dutiable under the provision in paragraph 391 of said act (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]) for ‘all Jacquard figured goods in the piece, made on looms, of which silk is the component material of chief value, dyed in the yarn, and containing two or more colors in the filling.’ The goods are unquestionably woven fabrics in the piece, and are dutiable as such, unless otherwise more specifically provided for in the act. The provision for ‘manufactures of silk not specially provided for’ is less specific, and the claim thereunder may be dismissed without further comment. The only remaining question is whetHer they are ‘Jacquard figured goods in the piece,’ etc. If they are within that provision, they are dutiable under it, since it is not limited by the expression ‘not specially provided for,’ and it is more specific than the provision for ‘woven fabrics in the piece,’ which is so limited.</p> <p>“These facts are undisputed: (1) That the goods are composed wholly or in chief value of silk; (2) that they are dyed in the yarn; (.3) that they are not composed in part of wool; (4) that they are made on looms and are figured. The points in controversy are: (1) Are they Jacquard figured goods? (2) If so, have they two or more colors in the filling?</p> <p>“Jacquard goods take their name from the inventor of the Jacquard loom attachment, and it appears that the expression ‘Jacquard figured goods’ has no particular technical meaning in commerce, but relates simply to goods figured by means of the Jacquard device. In weaving plain fabrics a portion of every alternate warp thread is raised; the corresponding portion of the others being depressed, thus forming what is called the ‘shed.’ A filling thread then passes from side to side in the space between the raised and depressed warp threads, and is then driven Or pressed close up to the part of the fabric already woven. The ‘shed’ is then reversed, the raised threads being depressed and the depressed threads raised, when the filling thread passes through again in the opposite direction; and so the operation is repeated continuously. If, in weaving such plain fabric, the warp threads are of one color and the filling threads of another, the result is a mixture of color throughout the fabric. Stripes across the fabric are formed by a shuttle carrying a filling thread of one color until the desired width of such .color or stripe is woven, when another shuttle is introduced carrying a thread of a different color, and this shuttle may in turn be displaced by others, each having its own color of thread, thus employing any number of shuttles desired. The warp may also be so arranged in different colors as to produce longitudinal stripes, or plaids. These variations of color, although involving the use of more than one shuttle, are produced on plain looms operating one shuttle at a time. Such other effects as twills, diagonals, and the like are also produced on plain looms. This cursory reference to the processes in weaving plain fabrics is merely introductory to consideration of the method of weaving such goods as these in question here.</p> <p>“We will now consider, for illustration, a fabric in which all the warp threads are of one color and all the filling threads of another. If the warp threads are raised or depressed in groups, instead of singly, the process of weaving being otherwise the same as in plain fabrics, the colored filling threads appear on the surface continuously for distances corresponding to the grouping of the warp threads, because the shuttle, when passing through, carries a filling thread over all the groups of warp threads, that have, been depressed and under all such groups as have been raised. If the grouping of the warp threads remains the same, the result is a stripe running the length of the goods. By altering the arrangement of groups of warp threads, however, each time the filling thread passes through any desired figure may be formed on the surface; such figure appearing on the back in the warp threads, while it appears on the front in the filling threads, or vice versa.</p> <p>“Jacquard’s invention was an apparatus for automatically raising groups of warp threads and changing the grouping with every transmission of the filling thread in such manner as to execute a prearranged design. In these Jacquard goods the warp and filling threads, which are essential elements of a woven fabric, are so manipulated as to form the figures; no other threads being added. If this method should be.employed in weaving a fabric of quite light weight and color with isolated figures of dark color, the dark threads, extending from figure to figure on the back, would show through to such extent on the front as to render the goods unmerchantable. In such cases, therefore, a device called the ‘swivel attachment’ is used, and the fabrics are called ‘swivel goods.’ In some particulars the swivel operates in the same way as the Jacquard attachment, namely, in raising groups of warp threads, and in the movement at right angles to the warp of the shuttle or swivel which inserts the figure threads. In other respects its operation is substantially different. In the use of the swivel device each figure has its own shuttle or swivel, which travels back and forth over the space occupied by the figure only. When each swivel has inserted one thread of its figure, the next filling thread of the fabric is brought up to hold it in place. This process is repeated until the figure is complete, when the swivel ceases operating until the position for the next figure is reached. The Jacquard attachment (as used in the goods here in question) has no shuttle other than the regular shuttle of the loom, carrying the filling and forming the plain fabric when the attachment is at rest. The swivel attachment may have almost any number of shuttles or swivels, and must have one for every longitudinal row of figures. These are additional to the shuttle of the plain loom.</p> <p>“The difference in effect may be readily observed in a completed fabric. The thread of the swivel zigzags through the figure until it is completed, running in the same direction — parallel to the filling — on both sides of the fabric, except at the edges of the figure, where the turn is made. An end of the swivel thread is found at each extremity of the figure, and it may be picked out and the figure removed without destroying or seriously injuring the fabric. The threads of the Jacquard figures are, on the contrary, .essentially necessary to the formation and existence of the fabric, and can only be removed by unraveling the fabric and reducing it to the threads of which it is composed. The shape of the figure appears on the back of the Jacquard goods in the threads crossing those on the face, but in the swivel goods the threads run the same way on both sides. It appears that goods may be woven on a loom with either a Jacquard or with a swivel attachment alone, or with both combined.</p> <p>• “We find as a matter of fact: * * * (6) That the remainder of the goods in question are combinations of the Jacquard and swivel — that is to say, some of the figures in them are produced by the Jacquard attachment and some by the swivel device; that in these goods the filling threads, which also form the Jacquard figures, are all of one color, and the threads which form the swivel figures are of a different color in each instance. * * * We are of opinion that the goods covered by our sixth finding fall within the description ‘Jacquard figured goods in the piece, made on looms,’ since the Jacquard figures in them are a prominent feature, and the addition of the swivel figures is not sufficient to remove them from that class. But do they fulfill the other requirement of the law, namely, have they two or more colors in the filling? This resolves itself practically into the question whether the swivel theads are ‘filling,’ within the meaning of that term as used in paragraph 391, because, if the swivel threads are not included, the filling is all of one color, including the Jacquard .figures, but if the swivel threads are included, then there are two colors in the filling. The word ‘filling,’ in its ordinary sense, means something that fills. In weaving it is synonymous with ‘weft,’ and relates to the threads that fill the interstices in the warp, and thus form the fabric. Such threads run from edge to edge or from selvage to selvage of the fabric. Consequently there is an appropriateness in referring to tho Jacquard goods as haying ‘two or more colors in the filling,’ as the figures in such goods are composed strictly of filling threads, running from one edge to the other, filling the warp and constituting an essential part of the fabric, although serving the purpose of an ornament as well. The swivel threads, on the contrary, are solely for the purpose of ornamentation. They are inserted side by side with the filling, and are additional to it. The warp Is ‘filled’ without them.</p> <p>“The foregoing discussion relative to Jacquard goods has reference to silk fabrics of the kind here in question. In Jacquard cotton goods an extra shuttle is sometimes used — and in instances, perhaps, more than one — for the purpose only of carrying threads of different colors. This extra shuttle moves entirely across the fabric, and inserts the thread additional to the ordinary filling threads. These additional threads extend loosely from figure to figure on the back of the fabric, and are afterwards trimmed off. This method does not appear to be employed in silk goods, but in them the thread forming the Jaequaz'd figure is the regular filling thread, and remains in the fabric throughout its width, and is not clipped off. Cotton goods, ornamented by means of the swivel attachment, were the subject of the decision of the Circuit Court of Appeals in the ease of U. S. v. Albert, 60 Fed. 1012, 9 C. C. A. 332, 20 U. S. App. 599. While the court does not designate them by' the name ‘swivel,’ it is apparent from the description quoted by the court from the appellant’s brief that the goods were of that character. The court there says: ‘The threads which compose these figures are not a part of the filling. They are additional to the filling, and the piece would be perfect without them.’ In the case of Hedden v. Robertson, 151 U. S. 520, 14 Sup. Ct. 434, 38 Ij. Ed. 257, we have a decision of the Suprezne Court on Jacquard cotton goods (not swivel). In this case the court said: ‘These figures or patterns were woven into the groundwork by means of a machine called the “Jacquard attachment.” When the fabric was taken from the loom, it was not in a finished state. The threads forming the weft or filling, furnished by the Jacquard attachment (used entirely for the figures or patterns), loosely connected the figures izi a horizontal line, and were raised above the smooth surface of the groundwork. In order to bring out the figure or pattern more distinctly, the .whole fabric was run through a clipping machine two or more times, and the loose threads, together with the raised parts of the pattern, were cut off, so as to make the fabric smooth and even.’</p> <p>“The court calls the Jacquard threads ‘filling threads,’ but says they are used entirely for the figures or patterns, so that there must be another filling thread for the groundwork. As the Court of Appeals cited this case, it must be presumed that it fully appreciated the difference, because it designated ‘swivel threads’ as additional to the filling, although the Supreme Court had designated Jacquard threads as filling. Although there is a distinction between the method of production of the Jacquard figures in the Robertson Case and those here in question, there is no distinction between the method of production of the swivel figures in the Albert Case and the swivel figures in these cases. The only difference is in the material.</p> <p>“We accordingly hold that the goods covered by our sixth finding are dutiable as assessed, and overrule the protest relative thereto.”</p>

In Bankruptcy. On review of order of Franz Fiset, referee. The questions involved arise upon a petition, filed by McMurtrey & Smith, to review the order of the referee adjudging them involuntary bankrupts. The case is fully stated in the following opinion of the referee: The petition in this cause seeks, at the instance of creditors, the adjudication of the firm of McMurtrey & Smith and of its members on the ground of preference made by the firm.

<p>1. Nuisance — Abatement—Slaughterhouse—Abolition of Private Franchise.</p> <p>Plaintiff was the hereditary owner through a grant from the Spanish government of the exclusive franchise to slaughter cattle in the city of Havana, and maintained a slaughterhouse, the offal from which was discharged into a creek which passed through a portion of the city and emptied into the harbor.. By reason of such offal and also of sewage discharged into the creek it became a public nuisance dangerous to health. Held that, while such facts authorized the abatement of the nuisance by the public authorities in the exercise of the police power, they did not justify the abolition of plaintiff’s franchise by the United States military governor of Cuba as an exercise of such power; it being shown that the slaughterhouse itself was kept in a sanitary condition and was not dangerous to the public health.</p> <p>2. United States — Military Governor of Cuba — Liability foe Official Acts.</p> <p>Defendant, while governor of Cuba during its occupation by the United States, abolished a valuable franchise owned by plaintiff, who was a Spanish subject. On appeal the Secretary of War of the United States confirmed the governor’s order. Subsequently, by the so-called “Platt Amendment,” incorporated in the treaty between the United States and the Republic of Cuba, it was provided that “all acts of the United States in Cuba during its military occupancy thereof are ratified and validated and all lawful rights acquired thereunder shall be maintained and protected.” Held, that such ratification was equivalent to an original authorization of defendant by the United States government to make the order in question and exempted defendant from any personal liability to plaintiff for depriving her of her property right in the franchise, and transferred such liability, if any, to the United States, or to the government of Cuba.</p>

On Motion to Remand to State Court. These are' motions to remand to the state court. The facts as presented on the face of these records are as follows: On the 3d of November, 1904, the complainant, Holmes & Co., was a merchant at Durhamville, Lauderdale county, Tenn., and on that day took out a fire insurance policy for $1,000 on its stock of goods with the defendant insurance company.

In Equity. Supplemental bill in nature of bill of review. On final hearing. For original opinion upholding the patent and finding infringement, see (C. C.) 120 Fed. 282, affirmed 123 Fed. 882, 59 C. C. A. 370; 129 Fed. 756, 64 C. C. A. 284; permission granted by Circuit Court of Appeals to reopen the case, 136 Fed. 855; and opinion on petition, in pursuance of same, for leave to file the present bill (C. C.) 138 Fed. 833.

<p>1. Corporations — Acts of Officers — Willful Torts.</p> <p>Where all of the stock of a corporation, except one share, was owned by one family, and M., who was president of the corporation, had control, management, and power of disposition of property of the corporation destroyed by fire the same as if he had the title, evidence that the fire which destroyed the property was deliberately and purposely caused by him to enable the corporation to collect its insurance was admissible in an action brought by the corporation on a policy on such stock.</p> <p>2. Insurance — Cause of Loss — Wrongful Acts of Insured.</p> <p>In an action by a corporation on a policy, an instruction that if M. had control, management, and power of disposition of the property the same as if he had title, or if there was an understanding among the stockholders that M. should burn the property in order that they might collect the insurance, and M. did willfully set fire to the store as alleged, defendant could not recover, was proper.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, § 1138.)</p> <p>3. Trial — Instructions—Inadvertencies—Prejudice.</p> <p>Where, in an action On a policy by a corporation, it was claimed that M., who was president of the corporation, willfully fired the property, that the corporation might collect the insurance, the fact that, the court in its charge inadvertently referred to M. as the “plaintiff” was not prejudicial to plaintiff; the jury being nowhere instructed that M. was plaintiff.</p> <p>4. Insurance — Action on Policy — Instructions.</p> <p>Where, in an action on a policy, it was claimed that the president of plaintiff corporation willfully set fire to the property, and the court charged that, In order that such fact should constitute a defense, It was necessary that the corporation either assented to or had knowledge of the burning, the fact that the court modified certain requests to charge by adding that they were true if the president did not burn the property as alleged was not error, as eliminating the question of plaintiff’s assent to or knowledge of the burning.</p> <p>5. Same — Incendiarism—Instructions.</p> <p>Where, in an action on a policy, four witnesses were called to prove that the fire started in at least three different places at the same time, it was proper for the court to charge that the jury should take that matter into consideration in determining whether or not the fires were caused by human agency.</p>

In Equity. Suit for injunction. This was a bill in equity brought by the Preferred Mercantile Company of Boston, a corporation,- and George E. Stillings, and Guy C. Stillings, respectively, president and secretary of the corporation, against George A. Hibbard, as Postmaster of the United States at Boston, for the purpose of restraining the respondent from enforcing the provisions of a so-called “fraud order” issued by the Postmaster General against the Preferred Mercantile…

<p>In Bankruptcy. On petition of the state of Maryland, for the use of the county commissioners of Wicomico county, to be allowed priority of payment over the general creditors of the bankrupt.</p>

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

<p>In Bankruptcy. On petition for allowance of attorney’s fees, and referee’s report thereon.</p>

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

In Bankruptcy. These were petitions to review four orders made by the referee, one upon a petition by Edwin Hawley and Frank H. Ray, for leave to file objections to the claims of the Cotton Exchange creditors of the bankrupts; another by McCormick, Berg, and Cahn, three creditors for small amounts, for the same purpose; another by Hawley and Ray, for leave to examine the bankrupts’ books and papers in the possession of the trustee; and another by the three creditors…

<p>1. Curtesy — Bar—Conveyance to Wife by Husband.</p> <p>The right of a husband to hold land of his ■ deceased wife during his lifetime as tenant by the curtesy, expressly given by Rev. St. Wis. 1898, § 2180, is not affected by the fact that such land was conveyed by the husband by general warranty deed to one who afterwards conveyed to the wife.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Curtesy, §§ 22, 27.J</p> <p>2. Homestead — Title under Wisconsin Statute — Tenant by the Curtesy.</p> <p>Under the homestead statute of Wisconsin, which provides that “such exemption shall extend * * * to any estate less than a fee held by any person by lease, contract, or otherwise,” a tenant by the curtesy is entitled to the exemption in lands occupied by him and his children as a homestead after the death of his wife.</p> <p>[Ed. Note. — For cases in point, see vol. 25, Cent Dig. Homestead, §§ 114, 119.]</p> <p>3. Bankruptcy — Right to Homestead Exemption — Waiver.</p> <p>Under the decisions of the Supreme Court of a state that its homestead law is to be liberally construed to effect its purpose, the fact that a bankrupt failed to schedule real estate standing in the name of his deceased wife, of which he was tenant by the curtesy, and which was occupied by him and his children as a homestead, or to claim his right of exemption therein, was not such a waiver of his right as to preclude the court from allowing him to subsequently amend his schedule and assert his claim, where the omission was due to his ignorance of the law concerning which his counsel failed to enlighten him, although advised of the facts.</p>

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

<p>1. Copyright-- — I neringement — Penalties—Replevin.</p> <p>Replevin cannot be availed of to seize lithographs alleged to infringe complainant’s copyrights to which lithographs complainant had neither title nor right to possession which were desired only for the purposes of a suit in assumpsit to recover penalties under Rev. St. § 4065 [U. S. Comp. St. 1901, p. 3414], providing that in case of infringement of a copyright, etc., the defendant shall forfeit $1 for every sheet of the same found in his possession.</p> <p>2. Judgments — Res Judicata — Interlocutory Decree.</p> <p>A decree awarding a perpetual injunction, and an accounting by the defendant in copyright infringement proceedings and referring the cause to a master to ascertain the amount complainant is entitled to recover is a mere interlocutory decree, and is therefore not res judicata as to any issues involved.</p>

<p>In Bankruptcy. Involuntary proceeding. On report of referee.</p>

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

<p>'Master and Servant — Action for Injury — Pleading—Allegations.</p> <p>A declaration in an action against a railroad company by an employe to recover for a personal injury, the substance of the negligence charged being the running of an engine by defendant against a line of standing cars, on one, of which plaintiff was working in obedience to orders, witli such force as to cause his injury, is insufficient, where it does not allege by what agent or servant of defendant the alleged act of negligence was committed, but merely that it was committed by defendant.</p> <p>[IOd. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 820.]</p>

<p>Master anb Servant — Injury of Servant — Unsafe Place to Work.</p> <p>Where a foreman who is in authority deliberately arranges a place for his men to work which is unsafe, and then puts a man to work there, who had theretofore been provided with a safe place in which to do the same kind of work, without calling his attention to the danger, the master is liable for the workman’s injury resulting.</p> <p>[Ed. Note — For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 297.]</p>

<p>1. Corporations — Action Against Stockholders — Kansas Statute.</p> <p>Under Gen. St. Kan. 1868, c. 23, § 40, as amended by Laws 1883, p. 88, e. 46, a cause of action accrues in favor of a creditor of a corporation against each stockholder one year after the corporation has suspended business.</p> <p>2. Limitation or Actions — Pleading Statute.</p> <p>The fact that an answer pleads a limitation of six years, whereas the statute applicable makes the limitation three years, does not render the plea unavailing.</p> <p>[Ed. Note. — For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, § 704.]</p> <p>3. Corporations — Action Against' Stockholder — Statute Applicable.</p> <p>The three-year statute of limitations prescribed by Code Civ. Proc. N. Y. § 394, for suits against stockholders of corporations to enforce a statutory liability is applicable to an action brought in that state against a stockholder of a foreign corporation.</p>

<p>1. Towage — Stranding of Tow — Liability of Tugs.</p> <p>Where a steamship being towed by two tugs from her dock through a narrow channel with which she was unacquainted promptly obeyed all orders of the tugs, the burden of proof rests upon them to show that they exercised due care, and, unless such burden is met, liability for her stranding rests on one or both.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent Dig. Towage, § 34.]</p> <p>2. Same — Joint Service by Two Tugs — Liability of One for Fault of the Other.</p> <p>Two tugs belonging to the same owner were engaged in towing a steamship under a contract made with such owner. The master of the leading tug directed the movements of the ship, but as to her own movements the tug behind was under control of her own master. Held, that the rear tug was not liable in rem for the stranding of the tow, which occurred solely through the fault of the leading tug.</p>

<p>1. Courts — United States Courts — State Laws as Rules of Procedure— Service on Foreign Corporations.</p> <p>While service of subpoena from a federal court in equity upon a nonresident corporation is not controlled by state statutes, yet, where there is no applicable provision of a federal statute, the procedure of the state statute, if deemed proper and reasonable, will be followed as, for instance, when the state statute declares what persons shall represent the corporation in receiving service of process.</p> <p>[Ed. Note. — Service of process on foreign corpbrations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3.]</p> <p>2. Corporations — Foreign Corporations — Service of Process — Managing Agent.</p> <p>Under Rev. St. Ohio 1906, § 5043, which provides that “when the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent,” as construed by the Supreme Court of the state, the person who chiefly represents such a corporation as agent for the sale of its goods in a locality in the state, and who maintains an office or storeroom where such goods are kept, is a managing agent, within the meaning of the statute, although he is paid only by commissions on sales made within his district.</p> <p>3. Equity — Jurisdiction—Mode of Taking Objection.</p> <p>The objection that equity is without jurisdiction to grant an injunction, on the ground that there is an adequate remedy at law should be taken in limine before answering to the merits, and, if not so taken, it will not be considered, where the remedy is at least suitable on the case made by the bill.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, §§ 173-176.]</p> <p>4. Equity — Maxims—Complainant Must Have Clean Hands.</p> <p>Complainant made and sold a “Butcher’s Computing Scale” which it stated in its circulars*to the trade would make a dealer a profit of 3 per cent, even If he sold at the same price per .pound he paid. This was done by so constructing the computing mechanism that the price shown by the scale for the draft weighed was that for the next even numbered ounce above the actual weight. Held, that complainant had no standing in a court of equity to entitle it to a preliminary injunction to restrain a competitor from calling the attention of purchasers and the public to the fraudulent and dishonest character of such scale, where the proofs on the motion disclosed such facts.</p> <p>[Ed. Note. — Por cases in point, see vol. 19, Cent. Dig. Equity, §§ 185-187; vol. 38, Cent. Dig. Patents, § 449; vol. 40, Cent. Dig. Trade-Marks and Trade-Names, §§ 25, 94.]</p>

<p>1. Bankruptcy — Who may be Adjudged Bankrupt — Corporations—Mercantile Pursuits.</p> <p>The term “mercantile pursuits” in Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], making corporations principally engaged in such pursuits subject to the act, is to be given its common and generally understood meaning, and includes only corporations engaged in the buying and selling of commodities.</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to In re Taylor, 42 C. C. A. 4.]</p> <p>2. Same — Corporation Engaged Principally in Publishing.</p> <p>An incorporated mercantile agency whose business is to rate and report the credit seekers of the United States and Canada, to publish these ratings in the form of a book, and to furnish such book and also special reports at a special price per hundred to all mercantile agency users in this- country and Canada, is not engaged principally in publishing or in mercantile pursuits, within the meaning of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], and cannot be adjudged an involuntary bankrupt thereunder.</p> <p>3. Same — Act op Bankruptcy — Appointment op Receiver.</p> <p>The General Incorporation Act of New Jersey, §§ 65, 66 (P. L. 1896, p. 298), provide that on a bill filed by a creditor or stockholder of a corporation charging its insolvency, the Court of Chancery, “being satisfied by affidavit or otherwise * * * of the truth of the allegations” and upon such notice as the court may direct, may grant an injunction and at the same time or at any time afterward may appoint a receiver. Held, that such statute contemplates and requires a judicial determination of insolvency before the appointment of a receiver thereunder, and that the appointment of a temporary receiver ex parte on the filing of the bill, and at the time notice was directed to be served on the corporation, was not made under the statute, but under the general equity powers of the court, and did not constitute the appointing of a receiver under the laws of the state because of insolvency within the meaning of Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 [U. S. Corop. St. 1901, p. 3422], as amended by Act Feb. 5, 1903, c. 487, § 2, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 683], wbieb makes such an appointment an act of bankruptcy.</p>

Appeals from the District Court of the United States for the Southern District of New York. Appeals by steamtug Wrestler from decrees on cross-libels in collision adjudging the Wrestler solely in fault.

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

<p>1. Collision — Tow Drifting Against Vessel at Pier — Liability oe Tug.</p> <p>A tug with a number of coal barges in tow which rounded to at the month of Newtown creek, Long Island, to permit the barges to sag into the creek, where some of them were to be distributed, was in fault for a collision between one of the barges and a derrick which was lying at a wharf with others on the north side and was seen by the master, and the fact that he miscalculated the distance or the effect of the wind and tide did not relieve the tug from liability.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 68-70, 200.]</p> <p>2. Same — Vessel Lying at Pier — Dangerous Exposure of Anchor.</p> <p>A vessel while lying at a pier is bound to have her anchor out of the way of passing vessels whenever there is liability of collision or danger of interference with their movements, and a derrick lying outside of two other vessels at a bulkhead in the mouth of a creek, where it was customary to distribute barges, the whole extending into the stream over 100 feet, which allowed her anchor to hang over the outside in the water without necessity, was in fault for the sinking of a barge forming part of a tow entering the creek, which swung against the derrick and tore a hole in her bottom by catching on the anchor.</p>

<p>In Error to the Circuit Court of the United States for the Western-District of Kentucky.</p> <p>This was an action against Henry D. McClure, individually, and Henry D. McClure, as executor of Mary D. McClure, upon an account for services rendered and moneys expended at their request. Mary D. McClure was the mother of Henry D. McClure. She was a widow and an invalid. She was a stockholder in a small corporation known as the Anchor Roller Mill, making flour at Corydon, Ky. Henry D. McClure was a stockholder in the same corporation. Between them they owned one-half Of the capital stock, which was $30,000, but how much of this one-half each owned is not shown. They were both directors, but the mill was under management of C. L. King and C. B. Harness; one being president and the other secretary and manager. The plaintiff is a Missouri corporation having its office in St. Louis. Its business, as shown by its charter, was “the investigation of crimes and offenses committed or suffered to have been committed; to cause the apprehension of criminals and offenders; to prevent the commission of crime and offenses contemplated; to guard and protect personal and real property and to look up testimony, facts and witnesses in matters of property, in matters of personal rights and legal proceedings.”</p> <p>Not being satisfied with the management and results of the corporate business of the Anchor Roller Mills, Henry D. McClure employed the services of the plaintiff to conduct an investigation into its affairs. The contention was that this employment was both for himself and his mother, the testatrix, Mary D. McClure, and there was evidence tending to show that he represented himself as acting for himself and his mother, and that he exhibited a power of.attorney from his mother. That paper was in these words:</p> <p>“Know all men by these presents: That I, Mary H. McClure, of Henderson county, Kentucky, do hereby name, constitute and appoint my son, Henry D. McClure, of the same county and state, my true lawful and only ag,ent and attorney in fact, with full power, right and authority for me and in my name to-take charge of, manage and control all of my business relating to my personal estate, that is to sell and dispose of any personal property I may own whatsoever situated, and to collect and dispose of the proceeds thereof, to collect any and all debts due me, sign my name to checks on any bank account of mine, and execute and deliver any and all other papers for me and in my name that I myself could execute relating to my personal business and personal estate, save and except only that under this power my said agent and attorney cannot sell and convey real estate, but he may and can under this power rent out and lease any real estate for such term of years and upon such conditions as he may think best and to my interest, and I hereby ratify and confirm whatever my said agent and attorney may do for me and in my name in the premises.</p> <p>“Witness my hand this April 21, 1903.</p> <p>“Mary H. McClure.”</p> <p>Pending the rendition of plaintiff’s services, which extended over a period of several months, Mrs. McClure died. For the services so rendered the plaintiff presented an account aggregating $3,533.23. Henry D. McClure confessed judgment, but at the close of all of the plaintiff’s evidence the court instructed the jury to find for the estate of Mrs. Mary H. McClure. This is now assigned as error.</p>

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

<p>'Insurance — Title to Property — Construction—Losses Covered.</p> <p>A testator, who owned a half interest in a mortgage, devised his whole estate to his widow for life, with remainder to his children in equal parts. Plaintiff acquired by assignment the interests of two of such children in the mortgage and obtained from defendant, a title guaranty company, a contract of guaranty against loss or damage which he might sustain by reason of existing defects of title or liens affecting his interest in the mortgage. Held, that such contract could not be construed, in the absence of any express provision therefor, to be a guaranty that plaintiff acquired a legal title to the assigned interest in the mortgage, and that to entitle him to recover on the contract it was incumbent on him to prove some loss or damage, which was not done merely by evidence that a receiver appointed for the estate of the decedent had collected the portion of the mortgage debt belonging to the estate, and satisfied the mortgage to that extent; it not appearing that the proceeds were not still in the hands of the receiver.</p>

<p>1. Bankruptcy — Power of Court — Expenses of Receivership.</p> <p>A court of bankruptcy lias authority under its general equity powers to order the petitioning creditors to' pay the expenses of a receivership where the receiver was appointed on their application on the filing of their petition which was subsequently dismissed as unfounded.</p> <p>2. Same — Enforcement of Order by Proceedings for Contempt.</p> <p>A court of bankruptcy may enforce an order requiring petitioning creditors to pay the expenses of a receivership procured by them by proceedings in contempt under Bankr. Act July 1, 1898, c. 541, § 2, cl. 13, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3421], at least where by the law of the state, as by Code Civ. Proe. N. Y. § 1241, imprisonment for contempt is permitted for disobedience of an order requiring the payment of money to the court, or an officer of the court.</p>

<p>1. Bankruptcy — Dismissal of Petition fob Want of Peosecution.</p> <p>A District Court has discretionary power to dismiss a petition in involuntary bankruptcy for want of prosecution, and its action is reviewable only where it appears that there has been an abuse of discretion.</p> <p>2. Same — Notice of Motion.</p> <p>The provisions of Bankr. Act July 1, 1898, c. 541, §§ 58, 59, 30 Stat. 501, 562 [U. S. Comp. St. 1901, pp. 3444, 3445], relating to notice, construed together do not require notice of a motion by the defendant to dismiss an involuntary petition for want of prosecution, except to the petitioning creditors, where no list of creditors has been filed, and no other creditors have intervened or appeared in any manner in the proceedings, and there is no reason to suspect collusion.</p>

<p>1. Pleading — Demurrer—Facts Inferable From Allegations.</p> <p>A fact plainly inferable from the allegations of a pleading is, as against the pleader, of equal effect on demurrer, as though expressly stated.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 525-526%.]</p> <p>2. Highways — Obstruction—Injuries—Action—Sufficiency of Declaration.</p> <p>The declaration, in an action by the conductor of an electric street car against a telephone company to recover for a personal injury, alleged that while standing on the steps of his car, observing the operation of the trolley, plaintiff was injured by striking his head against one of defendant’s poles which stood in dangerous proximity to the track. It also alleged that “the dangerous condition arising from the close proximity of said telephone pole was unknown to the plaintiff.” Held, that it was a reasonable inference from such allegation that plaintiff knew the position of the pole and was' guilty of contributory negligence, and that, in the absence of further allegations denying such knowledge or stating circumstances which might relieve him from such charge of negligence, the declaration did not state a cause of action.</p>

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

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

In Equity. Suit for infringement of letters patent, No. 572,014 for a fireproof blind granted to William R. Kinnear November 24, 1896. On appeal from an interlocutory decree for complainant.

This cause is brought here by appeal from a judgment in favor of complainant for $6,440.77 for royalties held to be due from defendants for advertising racks placed in cars manufactured by them, by virtue of a parol license under patent No. 3S0,696, granted to Isaac H. Randall April 10, 18S8.

This cause comes here on appeal from an interlocutory decree of the United States Circuit Court for the Southern District of New York, adjudging the validity, and infringement by defendant of complainant’s three patents for chocolate machinery, namely, patent No. 492,205, granted February 21, 1893, to Daniel M. Holmes, claim 1; patent No. 526,968, granted October 2, 1894, to Cyprien Gousset, claim 4; and patent No. 533,974, granted February 12, 1895, to William Walter, claim…

<p>Conspiracy — Concealment of Property by Bankrupt — ¡Indictment.</p> <p>An indictment will lie under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], making it an offense to conspire to commit any offense against the United States wliere any act is done to effect the object of the conspiracy, for conspiracy to conceal from the trustee of one of the defendants in bankruptcy, property belonging to his estate in bankruptcy, in violation of Bankr. Act July 1, 1898, c. 541, § 29b, 30 Stat. 554 [U. S. Comp. St. 1901, p. 3433], which makes it a criminal offense for any person “while a bankrupt” to conceal property of his estate from his trustee; and such indictment is not demurrable because the date of the conspiracy and concealment is laid prior to the bankruptcy proceedings where it is charged as a part of the conspiracy that a plan was formed to bring about such proceedings pursuant to which the property was removed and concealed, purposely omitted from the bankrupt’s schedules, and kept concealed from the trustee after his appointment.</p>

<p>Bells and Notes — Liability of Indorser — Law Governing.</p> <p>Where a note was indorsed in Pennsylvania, although dated and delivered in another state, and therefore a contract of such state, the liability of the indorser is governed by the law of Pennsylvania, which requires protest and notice of dishonor to bind him, and when the evidence of such notice is conflicting, the question is one for the jury.</p> <p>[Ed. Note. — For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 1052.]</p>

<p>In Admiralty. Action for wages.</p>

In Equity. .On demurrer to bill. This is a suit in equity, the purpose being to have the defendant declared the holder of the legal title to the premises described in the bill of complaint, namely, lots 1, 2, 3, and 4 in section 10, and lots 1, 17, and 18 in section 15, In township 40 S., range 8 E. of the Willamette Meridian, in Klamath county, Or., in trust for the plaintiff.

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

In Equity. This is a suit by the Galena-Signal Oil Company, a corporation organized •and existing under the laws of Pennsylvania, against W. P. Puller & Co., a corporation organized and existing under the laws of California, to restrain the infringement of complainant’s trade-mark.

<p>1. Monopolies — Conspiracy—Restraint of Trade — Burden of Proof.</p> <p>The burden of proving a combination and conspiracy between manufacturers and wholesale and retail dealers of proprietary medicines and drugs in restraint of trade, in violation of Act Cong. July 2, 1890, c. 647, 26 Stat 209 [U. S. Comp. St. 1901, p. 3200], Injurious to plaintiff, and that defendants were engaged and took part in such conspiracy, was on the plaintiff.</p> <p>2. Same — Combinations in Restraint of Interstate Commerce — Fixing Prices.</p> <p>Where three voluntary associations, composed of the manufacturers, wholesalers, and retailers, respectively, of drugs, proprietary medicines, etc., were organized to arbitrarily fix a minimum retail price for such articles, which were 6f universal consumption and were of absolute and daily necessity, and then restricted the sale of such articles to such retailers only as conducted their retail business in accordance with the arbitrary standard of prices, such combination was in restraint of interstate commerce in the drug trade in so far as it excluded “aggressive cutters” of prices and those who dealt with them, and was in violation of Act Cong. July 2, 1890, c. 647, 26 Stat 209 [U. S. Comp. St. 1901, p. 3200J, prohibiting monopolies in restraint of interstate trade and commerce, etc.</p> <p>3. Trial — Admission of Evidence — Order of Proof.</p> <p>In an action to recover damages for an alleged conspiracy in restraint of interstate commerce, it was within the discretion of the trial court to admit evidence of acts and declarations of various of the defendant associations, their officers, committees, members, and agents,'made in the absence of many of the other defendants, before a prima facie case of conspiracy had been established, and before privity of some of the defendants had been proven, on condition that such connecting evidence should be thereafter given.</p> <p>4. Monopolies — Evidence—Findings.</p> <p>In an action for damages arising on an alleged conspiracy In restraint of interstate commerce, in violation of Act Cong. July 2, 1890, c. 647, 26 Stat. 209 [TJ. S. Comp. St.. 1901, p. 3200], evidence held sufficient to establish the participation of certain of the defendants in such conspiracy.</p> <p>5. Same — Combinations in Restraint of Tbade — Damages—Burden of Proof.</p> <p>In an action for damages for conspiracy in restraint of interstate commerce, in violation of Act Cong. July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], the burden was on plaintiff to show some real actual damage to his business by reason of the alleged unlawful combination.</p> <p>6. Same — Damages—Evidence.</p> <p>Where, in an action for damages to plaintiff’s business because of an alleged conspiracy in restraint of interstate commerce, plaintiff claimed $5,000 compensation to himself for extra work claimed to have been required by reason of such unlawful combination, but failed to prove how much additional time he was required to spend in his business after the combination went into effect, he was not entitled to recover for such alleged extra services.</p> <p>7. Same — Additional Capital.</p> <p>Where, in a suit for damages to plaintiff’s business because of an alleged unlawful combination in restraint of interstate commerce, plaintiff claimed that because of such combination it was necessary to put $10,000 extra capital into his business from rents of his building, which were collected from time to time, but he testified on cross-examination that the payments of interest and taxes on the building were in excess of the amount paid into the business, he was not entitled to recover interest on such alleged additional capital.</p> <p>8. Same — Increased Cost.</p> <p>Where, by reason of an unlawful combination in restraint of interstate commerce in violation of the Sherman act, plaintiff was compelled to conduct his business at a greater cost, though it was greater in volume, and by reason of the injury he received a less percentage of return, he was entitled to recover such additional cost, though by reason of his increased efforts and the.-natural increase of his business he was enabled to withdraw from the business for his personal services an amount equal to, or larger than, he drew from the business before the conspiracy became operative.</p>

<p>In Admiralty. Actions on policies of marine insurance. °</p>

At Law. On demurrer to reply and motion for judgment on the pleadings. This is an action in trover for the alleged conversion by the defendant of 86 bales of hops. The complaint contains the usual allegations by plaintiffs of ownership and right to the possession of the hops on December 4, 1903, and the wrongful conversion on that date of the same by defendant.

<p>1". Shipping — Loss op Baggage by Passenger.</p> <p>Evidence held to sustain the claim of a passenger that personal baggage was stolen on the steamship during the voyage.</p> <p>2. Same — Limitation op Liability — Provision in Ticket.</p> <p>A clause of a steamship ticket headed “notice.” limiting the liability .of the -vessel or owners to $100 for loss of the passenger’s personal effects, is not a part of the contract, and does not relieve the owner from full liability, where it was not read by or made known to the passenger.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1548, 1549.</p> <p>Limitation of liability for baggage, see note to Clark v. Geer, 32 C. C. A. 301J</p>

<p>In Admiralty. Petition for limitation of liability.</p>

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

<p>In error to the Circuit Court of the United States for the Northern District of Ohio. Arrel, McVey, Rowland & Harrington and Allen, Water & Andress, for plaintiff in error.</p>

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

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

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

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

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

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

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

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

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

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