Volume 143 — Federal Reporter

<p>1. Appeal—Parties.</p> <p>The rule established in the federal appellate courts requiring all parties against whom a judgment or decree is rendered, in the absence of severance, to join in suing out a writ of error or prosecuting an appeal therefrom, applies only to a joint judgment or decree against such parties, and has no. application to separate judgments or decrees, though rendered at the same time and contained in the same entry.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1798-1S03.]</p> <p>2. Same—Stakeholders.</p> <p>Where certain trustees of a bankrupt as individuals became mere stakeholders of a fund in controversy after the institution of their suit in a state court, which was removed to the federal courts, and obtained and held the stake subject thereto, they were not necessary parties in their individual capacity to an appeal from a portion of a decree deter- ’ mining that appellee was entitled to the fund as against appellant, as to which such stakeholders had no individual concern.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Appeal and Error, §§ 1798-1805.]</p> <p>3. Warehousemen—Warehousing Goods—Elements.</p> <p>The only thing essential to the warehousing of goods is that their possession be changed from that of their owner to that of the warehouseman, and hence it was immaterial that they were warehoused on premises belonging to the owner at the time of the warehousing,- which was leased to the warehouseman for such purpose.-</p> <p>4. Same—Change of Possession—Evidence.</p> <p>Evidence held sufficient to establish a complete change of possession of lumber, alleged to have been warehoused by a corporation, from such corporation to the warehouseman.</p> <p>6. Corporations—Acts of Officers—Authority—Denial—Estoppel.</p> <p>Where a corporation received the proceeds of certain notes which were placed to its credit with plaintiff bank by means of certain transactions conducted by its president, by which he warehoused the corporation’s property and pledged the warehouse receipts to secure the discounts, and thereafter such proceeds were checked from the bank in its name by the president and treasurer, as he was authorized by the bylaws to do, the corporation was estopped to deny that the president had no authority to conduct such transactions.</p> <p>[Ed. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, § 1704.]</p> <p>6. Warehousemen—Taxes—Failure to Pay—Effect.</p> <p>Where a warehouseman, which was a foreign corporation, issued warehouse receipts for certain lumber located in Tennessee on property leased to it by the owner of tbe lumber, the fact that such warehouseman had failed to pay a privilege tax to which'warehousemen in Tennessee were subject, as provided by Acts 1901, e. 128, pp. 200, 221, 227, declaring that any person carrying on their business without paying such tax should be guilty of a misdemeanor, did not invalidate warehouse receipts issued for such lumber in the hands of a bona fide pledgee.</p> <p>7. Bankruptcy—Pledges—Fraud—Good Faith of Pledgee.</p> <p>Where certain warehouse receipts were pledged to a bank by a corporation, while insolvent, to secure a certain note then executed and any liability thereafter contracted, and there was no evidence to impugn the good faith of the bank, it was entitled to maintain its right to the property so pledged not only for the payment of such note, but for other nates subsequently discounted as against the corporation’s trus-“ tee in bankruptcy, though the pledge was made within four months prior to the filing of the petition in bankruptcy.</p> <p>8. Same—Appeal—Objections Not Made at Trial.</p> <p>Where certain notes indorsed by a bankrupt had matured and were treated as a part of the bankrupt’s obligations in a trust agreement for the organization of a new corporation to take over the bankrupt’s assets and continue its business, and at the trial the holder of such notes proved generally that they were a part of the liability of the bankrupt to it, and no objection was made to the form of such proof, the bankrupt’s trustee was not entitled to urge for the first time on appeal that such notes were not valid claims against the bankrupt because of the absence of any proof of presentment for payment and protest.</p> <p>[Ed. Note.—Appeal and review in bankruptcy cases see note to In re Eggert, 43 G. C A. 9.]</p> <p>9. Pledges—Release—Trust Agreement.</p> <p>Where a trust agreement for the organization of a new corporation to take over the assets of a bankrupt expressly provided that a hank, which was one of the bankrupt’s creditors, should retain its right to the proceeds of certain lumber pledged to it over what was necessary to pay a certain note on account of the bankrupt’s liability as indorser on certain other notes, and that to the amount it so received from the lumber it should not be entitled to the common stock in the new corporation, the bank’s signature to such trust agreement did not constitute a waiver of the pledge.</p> <p>10. Bankruptcy—Trustee—State Receivers—Agreements.</p> <p>A bankrupt’s trustee has no right to sue on an agreement made between state receivers of the bankrupt and one of its creditors.</p> <p>11. Appeal—Findings of Master.</p> <p>A finding on a question of fact by a master will not be set aside on appeal, except on a clear showing that it is erroneous.</p>

<p>1. Mortgages—Void Foreclosure—Effect.</p> <p>Where a mortgage foreclosure sale was subsequently declared void, those .holding under the purchaser at the sale are to be regarded as mortgagees in possession.</p> <p>[Ed. Note.—For cases in point, see vol. 35, Cent. Dig. Mortgages, § 1110.]</p> <p>2. Courts—Federal Courts—Decisions of State Courts.</p> <p>The statutes and decisions of the courts of last resort in a state where property mortgaged is situated, and where the controversy arose, are binding on the federal courts as a rule of property.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, §§ 958, 959.</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>3. Mortgages—Breach of Condition—Possession—E.tectmei._.</p> <p>A mortgagee of property located in [Mississippi, on breach of condition, may maintain ejectment to recover the mortgaged land as a means of enforcing the security.</p> <p>4. Same.</p> <p>Where a mortgagee of land located in Mississippi obtained possession under a void foreclosure after breach of condition, he and his grantees are entitled to hold possession until the mortgage debt is paid. -</p> <p>5. Same—Invalid Sale.</p> <p>Where a mortgage was foreclosed by a substituted trustee, whose appointment was invalid, the sale for that reason was voidable only, and not void.</p> <p>6. Same—Disaffirmance of Sale—Election.</p> <p>Where a mortgage foreclosure sale was voidable at the election of the mortgagor or his heirs, the purchaser’s grantee was entitled to relieve himself of the position of a mortgagee in possession by suit in equity to compel the mortgagor or his heirs to affirm or disaffirm the sale, and, in the event of a disaffirmance, to obtain a judicial foreclosure.</p> <p>7. Equity—Bill—Prayer for Relief.</p> <p>Under a general prayer in a bill in equity, the court may grant any relief consistent with, and included in, the allegations of the bill.</p> <p>8. Mortgages—Invalid Sale—Foreclosure by Action—Limitations.</p> <p>Code Miss. 1892, § 2732, provides that, when a mortgagee, after condition broken, shall obtain actual possession or receipt of the rents and profits of the land mortgaged, the mortgagor, or person claiming under him, may not sue to redeem, except within 10 years after the time the mortgagee obtained possession. Section 2755 provides that the completion of the period of limitation shall extinguish the right as well as the remedy. Section 2733 declares that, when an action at law on notes secured by a mortgage is barred, the remedy in equity on the mortgage is also barred. Held, that section 2733 should be construed as applicable alone to a mortgagee out of possession seeking to collect the debt or enforce the mortgage, and hence the fact that the debt secured by a mortgage was barred did not preclude the mortgagee in possession under a void sale from maintaining a suit to compel the mortgagor’s heirs from either electing to affirm the sale, or to disaffirm the same, and for judicial foreclosure.</p>

On a creditors' petition in bankruptcy, filed October 5, 1903, against the Racine Knitting Company, a corporation engaged in manufacturing hose and other knit goods, with factories at Racine and Stevens Point, Wis., the knitting company on October 26, 1903, was adjudged a bankrupt, and appellees were appointed receivers and later were elected trustees. Appellees asserted a right to certain merchandise covered by receipts issued by appellant security company.

<p>1. Railroads—Foreclosure of Mortgages—Liability of Purchaser for Prior Liens Under Decree.</p> <p>Under a decree foreclosing two mortgages on railroad property, which required the purchaser at the sale to pay all claims filed within six months which should be adjudged “prior in lien to the mortgages foreclosed,” where the proceeds of the sale paid the first mortgage debt in full, the purchaser is liable for the payment of a claim filed within the specified time which is adjudged prior in lien to the second mortgage; any equities existing in favor of the first mortgagee, which might be superior to such claim, being only by way of security for its debt and extinguished on its payment.</p> <p>2. Judgment—Conclusiveness of Prior Adjudications.</p> <p>Where the ownership of the right of way, occupied by a railroad through a farm, had been repeatedly litigated in different suits between the successive owners of the farm and of the railroad, involving substantially the same issues, and each time finally determined in favor of the owner of the farm, the last being a proceeding by him to obtain the assessment of damages, to which the mortgagees of the railroad company were made parties, such determinations establish conclusively the right of the land owner to the compensation awarded him, and that the same is prior in lien to the mortgages, and such issues cannot be relitigated on the filing of his claim for allowance in a suit in a federal court for the foreclosure of the mortgages.</p>

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

<p>1. Chattel Mortgages—Foreclosure—Priority or Lien—Evidence.</p> <p>In an action to foreclose the lien of a chattel mortgage, which had been wrongfully used by the debtor to secure notes discounted by plaintiff and defendant banks, evidence held to sustain a finding that the claim of plaintiff bank to a lien fixed by the mortgage was prior in time, and therefore superior in right to that of- defendant bank.</p> <p>2. Same—Description—Cattle.</p> <p>A chattel mortgage on certain cattle described them as 50 (head of registered Hereford cows and heifers, four head of registered Hereford bulls, all located on the mortgagor’s farm, about 15 miles from V. in W. county, Tex. A sheriff’s return on a writ of sequestration in the proceedings to foreclose the mortgage alleged that the sheriff had taken into his possession the property described, pointed out by the mortgagor as the property described in the mortgage, to wit, 35 head of Hereford cows and heiferá, 1 two-year old bull, and 18 head of calves, and a bill of sale taken by defendants described the cattle as 65 head registered Hereford cattle, consisting of cows, calves, heifers, and bulls of all ages, located in the seller’s pasture at his home at Doans and Vernon, in W. county, Tex. Held, that the mortgage was not void for want of a sufficient description of the cattle.</p> <p>[Ed. Note.— For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, § 90.]</p> <p>8. Same—Registration—Acts of Clerk.</p> <p>Where a chattel mortgage securing a negotiable note was duly filed in the office of the clerk as required by Sayles’ Civ. St. 1888-89 Tex. art. 3190b, § 2, the rights of an assignee of the note and mortgage could not be affected either by any subsequent act óf the mortgagor or mortgagee or by the clerk’s failure to make the proper entries in his records- or to keep the paper in its proper place.</p>

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

<p>1. Waters—Supply to City—Contract—Construction.</p> <p>A contract between a city and a water company granting the company a franchise for and obligating it to construct a waterworks system and to maintain the same for a term of years, and by which the city agreed to take and pay for water during such term, in the absence of an express provision that the city shall not construct or operate a water' system of its own during the term, cannot be construed to place such a limitation on the powers of the city by implication.</p> <p>2. Constitutional Law—Taking Property Without Due Process of Law —Competition op City with Water Company.</p> <p>The construction and operation of a waterworks plant by a city in competition with a water company, which constructed its works under a franchise granted by the city, does not amount to a taking of the company’s property without due process of law, within the meaning of the federal Constitution, nor to a taking of its property without just compensation, within the meaning of the Constitution of Mississippi.</p>

The writ of error is addressed to a judgment entered on the election of plaintiffs in error to stand by their declaration, in three counts, to each of which a general demurrer was sustained.

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

The Northwestern Savings Bank, plaintiff in error, sued the town of Centreville Station, in assumpsit, for recovery upon a series of bonds 'issued by that municipality and held by the bank as bona fide owner for value. Upon trial of the issues before the court, on waiver of a jury, a general finding was entered in favor of the defendant town, and this writ of error is prosecuted from the ensuing judgment against the bank.

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>The appellants’ bill alleged that on September 13, 1899, they entered into a written contract with the receivers of the Kansas City, Pittsburgh & Gulf Railroad Company, wherein they agreed to crush and load upon cars for the receivers 100,000 cubic yards of stone ballast of a specified grade “at the rate of 400 cubic yards per day until the completion of this contract,” for the price of 50 cents (reduced on October 21, 1899, to forty-eight cents) per cubic yard, and wherein the receivers agreed to furnish the railroad tracks “necessary for the convenient and economical prosecution of the work” (the grading and bridging to be done at appellants’ expense), to furnish free transportation over their lines “for the men, teams, tools and material necessary to be used upon the work,” and to pay the agreed price upon monthly estimates of the resident engineer of the receivers, less 10 per cent, reserved “until the completion of the contract,” and wherein it was mutually agreed that upon appellants’ failure to comply with the contract, “either as to quality of material furnished or rate of delivery,” the receivers should have the right to cancel the contract upon giving appellants 10 days’ notice and appellants thereupon should have no right of action for damages, that appellants should have no claim for damages for the receivers’ failure to furnish sufficient cars if they had-made reasonable efforts to furnish them, that the monthly estimates should be subject to correction in the “final certificate” of the resident engineer, and that the resident engineer should be the sole arbiter of controversies respecting quality, amount or time of deliveries, and that appellants should have no right of action except such as might be found to exist under the terms of the final certificate; that after the execution of the contract appellants supplied themselves with quarries, machinery, supplies, and workmen, and began and continued the work contemplated until June 18, 1900; that on June 12, 1900, appellants entered into a written contract with appellee Blue, wherein they licensed Blue to use their quarries, buildings, and sidings during the time required to execute the contract with the receivers, employed Blue to carry out that contract for the compensation of 48 cents per cubic yard, and sold him their machinery and supplies at certain prices, and wherein Blue agreed to complete the contract with the receivers, to pay appellants for the use of the quarries five cents per cubic yard for all stone taken and furnished to the receivers or to third persons, and to pay appellants $2,000 on delivery of the machinery and supplies and the balance in installments on the 20th of each month “in amounts equal to six cents for each cubic yard of stone quarried and crushed during the preceding month,” and wherein it was mutually agreed that their contract might be assigned, but without releasing either, that title to the machinery should not pass to Blue until the purchase price was fully paid, and that each party should give the other a $5,000 bond with sureties for the faithful performance of their reciprocal obligations; that on June 18, 1000, the machinery inventoried $5,208.16 and the supplies $3,324.85, Blue paid appellants $2,000 and took possession, and on the same day Blue assigned his contract with appellants to appellee Spencer Stone Company, which company thereupon entered into possession of the quarries, machinery, and supplies, and assumed the execution of appellants’ contract with the receivers; that on June 18, 1900, appellants, relying on their contract with Blue, discharged their employes, and appellants would have carried out their contract with the receivers if they had not relied upon Blue’s doing so; that the stone company continued the work until August 11, 1900, when Blue and the stone company served a written notice on appellants that they rescinded ,the contract on account of fraudulent misrepresentations by appellants, and the stone company quit the work and abandoned possession of the quarries, machinery, and supplies; that appellants have thereby lost their royalty of five cents per cubic yard on 94,720 yards of crushed stone; that appellants will lose $7,500 in excess of the amount to be paid by the receivers in completing the work; that Blue is insolvent, and appellants are entitled in equity to have the stone company pay them the balance of the purchase price of the machinery and supplies, and also their royalties on 94,720 cubic yards, and also the loss they will sustain in completing the contract with the receivers. The bill further alleged that the abandoned machinery and supplies were liable to damage from exposure, decay, and theft, and that a caretaker or receiver should be appointed. (On agreement of the parties the court appointed a caretaker, who subsequently, under orders of the court, sold the machinery and supplies, realizing $4,002.34 above expenses. Appellants were the purchasers, and the court on March 4, 1901, confirmed the sale and accepted appellants’ bond to account for the purchase price).</p> <p>Appellees demurred to parts of the bill and answered the remainder. The demurrer was addressed to the alleged causes of action for royalties on 94,72b cubic yards undelivered, and for $7,500 which would be lost in completing the contract with the receivers. The demurrer was sustained. The answer set up alleged fraudulent misrepresentations by appellants which would justify the rescission of the contract. The master found the part of the bill that was answered to be true and the allegations of the answer to be false. As a conclusion of law, based on the conditional sale of the machinery and on the contract provision that deferred payments for the machinery and supplies should be made “in amounts equal to six cents for each cubic yard of stone quarried and crushed during the preceding month,” the master found, on the theory that the contract between appellants and the receivers was void for lack of mutuality, that appellees had already paid appellants all they were entitled to receive.</p>

This is a suit in assumpsit, by the trustee in bankruptcy, to recover assets of the bankrupt which were appropriated by State Bank of Chicago, plaintiff in error, through attachment and garnishee process, pending the proceedings in bankruptcy; and the writ of error is from the judgment, upon verdict, for $2,692.36 against the bank.

<p>In Error to the Circuit Court of the United States for the Southern District of Illinois.</p> <p>The defendant in error, George Gordon, was the plaintiff below and recovered verdict and judgment against the Toledo, St. Louis & Western Railroad Company, plaintiff in error, in an action on the case for personal injuries, caused by expulsion from a railroad train. This writ of error is brought thereupon, and the alleged errors which are relied upon for reversal are (1) refusal of the court to direct a verdict of not guilty, (.2) refusal of instructions requested by tbe plaintiff in error, and (3) an Instruction to the jury that punitive damages could be awarded.</p> <p>The declaration contained five counts, but the court sustained a demurrer to three and withdrew another from consideration as unsupported by the evidence—thus withdrawing all counts which were predicated on the relation of passenger upon the train—and the case was submitted to the jury under the fifth count only, which charges, in effect, wanton and malicious expulsion from the .train, with violence, while crossing a trestle in darkness, and willfully causing the injuries sustained by the defendant in error. In other words, the issues were submitted in the view that the Injured party was on the train without authority and not entitled to carriage.</p> <p>The defendant in error, with five other men, returning from the State Fair, arrived at Cowden Junction too late to catch a passenger train for Lerna, their destination. The night was dark and rainy, and they waited in a lumber shed about an hour, when a freight train on the road of the plaintiff in .error slowed up for the crossing, bound in the direction of Lerna, and the party entered upon the platforms of the caboose, Gordon and another at the rear platform, and the others at the front. They were discovered by the trainmen, soon after passing the crossing but the testimony is conflicting as to the terms of the altercation and violence used in the expulsion of Gordon; or, as stated in the brief for the plaintiff in error, “there is a wide divergence between the stories of Gordon and his witnesses and that of the” trainmen. These facts, however, are well established: That the conductor insisted upon their jumping from the train while in motion and refused to stop to let them off; that the night was extremely dark and stormy; and that the expulsion of the defendant in error occurred upon a high trestle, causing his fall and serious injury. The conflict is in reference to details of the insistence—the extent of violence in language, threats, or force, rather than the facts of command and threat. On behalf of the defendant in error the testimony plainly tends to prove that the conductor was extremely violent in language and threats, from which physical violence was apprehended, at least, in the expulsion of Gordon; that it was too dark for the latter to discover, and he did not know, that the train was on or near the trestle; and, that he jumped from the step in fear of actual force on the part of the conductor, supposing the place to be reasonably safe and on the level.</p> <p>The instructions refused and given, on which error is assigned, are sufficiently mentioned in the opinion.</p>

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

<p>Bankruptcy—Involuntary Proceedings—Petitioners Having Provable Claims.</p> <p>A subcontractor has no provable claim against a building contractor which entitles him to join in a petition in involuntary bankruptcy against such contractor under Bankr. Act. July 1, 1898, c. 541, § 59b, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3445], for work and material for which the contractor has not yet been paid by the owners furnished under a contract which provides that the liability of the contractor to the subcontractor for such labor and material shall only accrue after the owners shall have paid the contractor on account thereof, and also with respect to payments that the contractor shall pay the subcontractor as the work progresses in the same proportion as he receives payment from the owners under the principal contract and the final payment when he receives final payment from the owners and not before.</p>

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

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

This action was begun in one of the state courts of Mississippi.

The decision below, G. A. 5,966 (T. D. 26,151), affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the board reads as follows: WAITE, General Appraiser. The goods in this importation are described in the invoice as “salt eggs,” and consist of ducks’ eggs In the shell, packed in salt and mud.

The appellant, Columbia Wire Company, is the owner of letters patent No. 365,723. issued June 28, 1887, to A. J. Bates, and this appeal is from a decree dismissing its bill for infringement thereof for want of equity.

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

The bill in the Circuit Court was to restrain the infringement of letters patent No. 499,402, issued June 13th, 1893, to Thomas W. Stewart for a mop. The claims of the plaintiff are as follows: 1.

<p>In Equity. Bill for alleged infringement of golf ball patent No. €22,834, dated April 11, 1899, and granted to Bertram G. Work and Coburn Haskell, and thereafter assigned to the complainant, Haskell Golf Ball Company.</p>

<p>1. Patents—Right to Obtain by Bill in Equity—Construction of Statute.</p> <p>Act Feb. 9, 1893, c. 74, § 9, 27 Stat. 436 [U. S. Comp. St 1901, p. 3391], creating a Court of Appeals for the District of Columbia, which vests in such court jurisdiction of appeals from the decisions of the Commissioner of Patents theretofore vested in the Supreme Court of the District, and also gives a right of appeal to such court in interference cases, does not by implication repeal Rev. St. § 4915 [U. S. Comp. St. 1901, p. 3392], giving an applicant for a patent whose application is refused a right to obtain a patent by a bill in equity.</p> <p>2. Same—Res Judicata.</p> <p>The decision of the Court of Appeals of the District of Columbia on an appeal from the Commissioner of Patents, taken under Act Feb. 9, 1893, c. 74, 27 Stat. 436 [U. S. Comp. St. 1901, p. 8391] does not constitute an adjudication which precludes the maintenance of a suit in equity by one of the parties against the other to obtain a patent, under Rev. St. § 4915 [U. S. Comp. St. 1901, p. 3392.]</p>

<p>In Equity. On bill and cross-bill and proofs.</p>

<p>Shipping—Demurrage—Derricks Employed foe Loading Cargo.</p> <p>Respondent, as agent for certain steamships, held not liable for demur-rage, because derricks of libelant hired by a shipper to transport locomotives in parts to the steamships and by respondent to hoist the same on board and into the holds at a stipulated price for each were not allowed to deliver the same as rapidly as they could have done, where the parts were received and stowed with reasonable skill and dispatch, and the delay resulted from the character of the cargo and the manner in which it was loaded on the derricks, and it further appeared that libelant furnished a larger number of derricks than could conveniently be discharged at the same time.</p> <p>[Ed. Note.—Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p>

<p>In Admiralty. On exceptions to answer and cross-libel.</p>

<p>Aliens—Chinese Exclusion—Conclusiveness of Decision.</p> <p>The decision of the appropriate immigration officers denying Chinese persons entry into the United States, which right was claimed on the ground that they were minors, and their fathers, respectively, were lawful residents of the United States, if not appealed from and no abuse of discretion is shown, is conclusive, and cannot be reviewed by the courts.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent. Dig. Aliens, §§ 95, 103,</p> <p>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>Shipping—Damage to Cargo—Perils op the Sea.</p> <p>A quantity of arsenic was stowed in the same hold with olive oil, but where the slant of the deck was downward from the arsenic toward the oil, and with a dunnage of about four inches. It was shown that the method of stowing the arsenic was usual, and that there was apparently no danger to .it under ordinary circumstances. It was also shown that the voyage across the Atlantic was very rough, and that the vessel rolled and pitched to an unusual extent, and when she arrived at New York some of the arsenic was found to have been injured from leakage of the oil. Held, that under such evidence the damage must be attributed to perils of the sea, for which the vessel was not liable.-</p> <p>[Ed. Note.—Loss by perils of the sea, see notes to The Dunbritton, 19 C. C. A. 465; Southerland-Innes Co. v. Thynas, 64 O. C. A. 118].</p>

<p>1. Equity—Bill—Necessary Parties.</p> <p>Where the receivers of an insolvent Insurance society assigned to complainant absolutely whatever rights the society or its receivers had against defendant depositaries of the society’s funds arising out of embezzlements by the society’s treasurer, neither the society nor its receivers were necessarily parties to a bill by complainant against such depositaries, though one of the receivers was entitled to one-quarter of whatever complainant collected on the assigned claims.</p> <p>[Ed. Note.—For cases in point, see vol. 4, Cent. Dig. Assignments, §§ 214, 215; vol. 19, Cent. Dig. Equity, §§ 248-251.]</p> <p>2. Same—Multifarious ness.</p> <p>Where the grounds of a suit in equity are in some respects identical or in some way connected, the bill joining causes of action against separate defendants will not be objectionable for multifariousness, though it also shows that one defendant is liable in a different way or to a different extent than the other.</p> <p>[Ed. Note.—For cases in point, see vol. 19, Cent. Dig. Equity, §§ 371-' 379.J</p> <p>8. Same.</p> <p>In a suit against certain depositaries of the funds of an insolvent association, arising out of embezzlements by the association’s treasurer, complainant was interested in all of the alleged fraudulent transactions, all of which were of the same character and grew out of the treasurer’s manipulation of the society’s deposits with the two defendant depositaries. In some of the transactions it was alleged that both depositaries participated and were jointly liable, and it was further charged that the illegal matters were so interwoven that an accounting was necessary of all the different accounts of the society in both depositaries, and that defendants knowingly participated with the treasurer in the misappropriation of certain of the funds. Held, that the bill was not objectionable for multifariousness.</p> <p>[Ed. Note.—For cases in point, see vol. 19, Cent Dig. Equity, §§ 348, 357, 371-379.]</p> <p>4. Same—Adequate Remedy at Daw.</p> <p>The bill was also not objectionable, in that complainant had an adequate remedy at law.</p> <p>5. Assignments—Rights of Assignee—Principal and Subety—Cbiminal Conduct.</p> <p>Complainant surety company, after paying its liability on the bond of the treasurer of an insurance society, arising out of the treasurer’s embezzlement of the funds of the society, received an assignment from the society’s receivers of all the rights of the receivers and the society against defendants, who were depositaries of the society’s funds, under which assignments complainant sued to enforce a liability alleged to arise out of improper payments made by such depositaries. Held, that as complainant claimed under the assignments, and not as surety, it was no defense that the loss to the society was caused by the treasurer’s criminal conduct for which complainant was liable as surety.</p>

<p>1. Federal Courts—Jurisdiction—Amount in Controversy—Federal Question.</p> <p>The fact that a suit in a federal court involves a federal question is not sufficient to confer jurisdiction unless the amount involved exceeds $2,000.</p> <p>[Ed. Note.—Jurisdiction of Circuit Courts as determined by the amount in controversy, see note to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p> <p>2. Same—Cloud on Title—Liens.</p> <p>Where a bill in a federal court to set aside certain assessment certificates for a street improvement alleged that complainant was in possession of the land in controversy through his tenant, and the contractor holding the certificates was not claiming a lien on the street or parkway, a complainant'was not entitled to sustain the jurisdiction of the court by claiming that the improvement ordinance which vacated a 75-foot street had the effect to immediately vest the title to the middle of the street in the adjoining owners, and that the subsequent act of the city in appropriating a part of the property for a street and parkway without condemnation and compensation to complaint was illegal.</p> <p>3. Same.</p> <p>Where suit was brought in a federal court to quiet title to certain property as against certain street improvement certificates amounting to less than $2,000, the amount of the certificates, and not the value of the iand, constituted the subject-matter of the action, and was therefor insufficient to confer jurisdiction.</p>

<p>Collision—Tug With Tow and Anchored Dredge—Mutual Fault.</p> <p>A tug coming down the Hudson river at night with a heavy tow consisting of a number of loaded scows tandem, the whole extending a quarter of a mile in length, held in fault for a collision between her tow and a steam dredge engaged on government work and anchored on the side of the channel where she had been at work during the day, the evidence showing that the tug knew the position of the dredge, and had a tow so large and unwieldy that she could not properly handle it with the strong ebb tide which was running. Held, also, that the dredge was in fault for remaining at night where she did in the channel at a place where, by reason of a bend, it was difficult for vessels with long tows to pass in safety.</p> <p>LEd. Note.—For cases in point, see vol. 10, Cent Dig. Collision, §§ 87, 8S%, 200.]</p>

<p>Collision—Vessels Lying at Anchoe—Dragging of Anchoe.</p> <p>Evidence considered, and held to establish, by a preponderance of proof, that a collision which occurred between a barkentine and a schooner while lying at anchor in the night during a high wind and strong tide was caused by the dragging of the barkentine’s anchor, there-being a direct conflict of evidence, but the testimony of two disinterested and intelligent witnesses from other vessels lying nearby concurring that the barkentine had changed her position of anchorage during the-night, and also testimony that, when her anchors were raised in the-morning to change her position, one was found to be fouled by the chain and in such condition that it would not hold.</p>

<p>At Law. On motion by defendant for judgment notwithstanding the verdict.</p>

<p>At Law. Trial to court on case stated.</p>

<p>At Law. On motion by defendant for judgment upon reserved point, notwithstanding the verdict.</p>

In Bankruptcy. Hearing on petition for review of an order made by the referee allowing a claim to a sum of money which the bankrupt had on deposit in a bank with other money at the time of the initiation of bankruptcy proceedings, on the ground that the amount claimed was held by the bankrupt as trustee for the petitioner.

<p>In Admiralty. Suit to recover charter hire. On exceptions to cross-libel.</p>

<p>Maritime Liens—Life Preservers Furnished Vessels—Lien by Agreement and by Statute oe New Jersey.</p> <p>One who furnished life preservers for vessels in a New Jersey port, in reliance on a statement by the owner that the vessels ¿were sufficient security, is entitled to a lien by contract, and also under the New Jersey statute, which gives a lien for any equipment furnished a vessel under contract with the owner.</p> <p>[Ed. Note.—Maritime liens created by state law's, see note to The Electron, 21 C. C. A. 21.]</p>

<p>1. Collision—Failure to Light Tow—Liability.</p> <p>It is the duty of the master of a tug, and also of the men on scows in tow of such tug, to see that the lights required by law to be carried by the tow are in place and lighted when under way in the night, and all the vessels are in fault for a collision resulting from or contributed to . by the failure to carry such lights.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Collision, §§ 105-123.]</p> <p>2. Same—Apportionment op Damages—Tug and Tow.</p> <p>Where two tugs and two scows in tow of one of the tugs were all in fault for a collision, each vessel is liable for an equal share of the damages resulting.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. ¡Dig. Collisions, § 298.]</p>

<p>1. Exchanges—Quotations—Posting—Publication.</p> <p>Where complainant board of trade collected price quotations which, it furnished to certain telegraph companies under contract that they would transmit the same only to those who would contract and pay therefor for their own legitimate use and the use of their patrons, the-fact that complainant permitted such quotations to be immediately and continuously posted on the boards of another exchange known as the “Open Board of Trade of Chicago,” and on other boards of customers to. which the public had access, did not constitute such a publication of the quotations as authorized their free use by the public.</p> <p>[Ed. Note.—Quotation of prices and transactions on exchanges, see note to Sullivan v. Postal Tel. Cable Co., 61 C. C. A. 2.]</p> <p>2. Same—Continuous Quotations.</p> <p>Where the contract between complainant board of trade and telegraph companies, with reference to the dissemination of plaintiff’s quotations, referred only to “continuous quotations,” which the contract defined as “quotations wherein the price on any commodity shall be quoted oftener than at intervals of ten minutes,” complainant was only entitled to restrain defendants from obtaining and using quotations which were continuous.</p>

<p>Internal Revenue—Legacy Taxes—Wills—Construction.</p> <p>Testator bequeathed the residue of his estate to trustees to invest and from the Income to pay to A. $15,000 a year during her natural life, in quarterly installments. Held, that such bequest should be considered, for internal revenue taxation imposed by Act Cong. June 13, 1898, e. 448, §§ 29, 30, 30 Stat 464, 465 [U. S. Comp. St. 1901, pp. 2307, 2308], as a legacy arising from personal property to which defendant was entitled to immediate possession, and not as a legacy of a series of sums payable out of the income of decedent’s estate.</p>

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

<p>1. Appeal—Matters Review able—Interlocutory Order.</p> <p>While an Interlocutory order dissolving an injunction is appealable under Act March 3, 1891, c. 517, § 7, 26 Stat. 828, creating the Circuit Courts of Appeals, as amended by Act Feb. 18, 1895, c. 96, 28 Stat. 666 [U. S. Comp. St. 1901, p. 550], and on such appeal the court has power to dispose of the whole case, a failure to appeal therefrom does not deprive the complainant of the right to a review of other matters determined by the order, not relating to the injunction, on an appeal from a final decree.</p> <p>2. Action—Joinder op Causes—Legal and Equitable.</p> <p>A bill in a federal court, which sought to compel a reconveyance of property conveyed by complainant to defendants and also to recover damages for breach of the contract under which the conveyance was made, stated two causes of action, one in equity and one at law, and it was not error for the court to require complainant to separate the same by filing a declaration at law for the recovery of his damages.</p> <p>8. Equity—Supplemental Bill—Enforcement of Compromise Agreement.</p> <p>Complainant brought a suit In equity against a corporation and certain individuals to obtain a reconveyance of standing trees to which he had an equitable title, which he had conveyed to the individual defendants for the benefit of the corporation. Pending the suit a compromise agreement was made between complainant and the corporation, by which the latter agreed to “forthwith” cause a reconveyance to be made of certain of the trees, and of the remainder on payment of a sum for which they stood as security; it was also stipulated that the cause should stand continued -to await the final determination of an action at law pending between the parties for the purpose of enabling complainant, if necessary, to enforce the latter conveyance. Such conveyance was subsequently made, but no conveyance was made of the trees, which were to be reconveyed’forthwith; but, on the contrary, the corporation caused ■certain of them to be cut and converted the same to its own use. Held, that the compromise agreement had the effect of a consent decree, and under its terms complainant had the right, by a supplemental bill in the original cause, not only to require such conveyance, but also an accountIng for the trees so converted as ancillary relief, especially In view of the fact that his title to the trees was equitable and would not sustain an action at law for the conversion.</p>

<p>1. Evidence—Production—Court oe Another District Should Compel, Whether Material oe Immaterial.</p> <p>It is not the duty of an auxiliary court or judge, within whose jurisdiction testimony is being taken in a suit pending in the court of another district, to consider or determine the competency, materiality, or relevancy of the evidence which one of the parties seeks to elicit.</p> <p>It is the duty of such a court or judge to compel the production of the evidence, although the judge deems it incompetent, irrelevant, or immaterial, unless the witness or the evidence is privileged, or it clearly and affirmatively appears that the evidence sought cannot possibly be competent, material, or relevant, and that it would be an abuse of the process of the court to compel its 'production.</p> <p>2. Same—This Rule Prevails Alike in Suits in Equity and in Actions at Law.</p> <p>The rule of practice above stated prevails in the taking of testimony before a commissioner or examiner, under rules 67 and 68 in equity, in the taking of testimony before a master empowered to determine the admissibility of evidence under rules 74, 77, 78, 79, and 82 in equity, and in the taking of evidence in actions at law under sections 863, 868, and 869, Rev. St [4 U. S. Comp. St 1901, pp. 661, 664, 665j.</p> <p>(Syllabus by the Court)</p>

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

<p>1. Navigable Waters—Bridges—Power to Enjoin as Obstructions.</p> <p>The right of a railroad company which constructed a bridge over a navigable stream, in. conformity to the requirements of an act of Congress authorizing the same to maintain such bridge as a lawful structure, includes the right to repair or to renew the superstructure when necessary to its safe use, and, where it is at all times, both during and after the alteration, kept and maintained in conformity to the act, the courts have no power to enjoin the work or to abate the structure as a nuisance, on the ground that it is an unlawful obstruction to navigation.</p> <p>2. Eminent Domain—Requiring Removal on Reconstruction—Right to Compensation.</p> <p>A railroad bridge over a navigable stream, built under authority of an act of Congress which contained no reservation as to repeal, modification, or alteration, can only be required to be removed or replaced by a new bridge constructed, in accordance with Act March 3, 1899, c. 425, 30 Stat. 1121, by an act of Congress authorizing the same and providing for just compensation.</p>

The appellant Hall Safe & Lock Company was the complainant below in a bill filed against the appellee, Herring-Hall-Marvin Safe Company, to restrain the use of the name “Hall” in advertisements and otherwise, as descriptive of its business and of the safes manufactured and sold by the appellee.

The bill was to enjoin the appellee from destroying appellant’s telephone plant in the city of Evansville,' Indiana. On final hearing the bill was dismissed. The facts are stated in the opinion.

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

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

<p>1. Indictment—Motion to Quash—Effect op Oedee Extending Time foe Filing. ,</p> <p>. By the practice prevailing in the federal courts in North Carolina, a motion to quash an indictment is recognized as a proper method of presenting matters outside of the record equally with a plea in abatement, and under such practice an order entered by consent on the entry of a plea of not guilty, reserving to the defendant the right to take advantage, on motion in arrest of judgment or for a new trial, of all matters which could be taken advantage of on motion to quash or demurrer, gave him the right at a subsequent term, and even after trial and conviction, to file a motion to quash, on the ground that the grand jury which returned the indictment was not legally constituted.</p> <p>2. Geand Jurt—Qualifications of Jurors—North Carolina Statute.</p> <p>Under Code N. C. § 1722, as it stood in 1897, which required the county commissioners to select the jury list from “such persons only as have paid tax for the preceding year,” as generally understood by the officers acting thereunder, and as inferentially construed by the Supreme Court of the state, only such persons as had paid all of their taxes for the preceding year were.competent to serve as jurors or grand jurors.</p>

For decision below, see 137 Fed. 978, affirming a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Baltimore. Note G. A. 4,721 (T. D. 22,357).

<p>1. Railroads—Injury of Person by Moving Train—Statute Relating to Crossings.</p> <p>Civ. Code S. C. 1902, §§ 2132, 2139,'prescribing the duties and liabilities, of railroad companies in running trains over highway crossings, as con-’ strued by the Supreme Court of the state, can be invoked in an action to recover for a personal injury only where the injury occurred at a crossing and by reason of a collision with a train.</p> <p>2. Same—Action fob Injury to Trespasser—Actionable Negligence.</p> <p>Plaintiff’s intestate, a boy eight years old, finding a highway crossing obstructed by cars of defendant railroad company, walked to the station platform, 40 or 50 feet from the crossing, and stepped from it to the platform of a car standing on a side track, and while thereon the car was struck or moved by an engine engaged in shifting cars on the side track, and he was thrown under the moving cars and killed. His presence on the station platform or car was not known to any of defendant’s employes. Held, that he was a trespasser, to whom defendant owed no duty, except that of not willfully, wantonly, or intentionally injuring him; and that the direction of a verdict for defendant, on the ground that no negligence rendering it liable for the death was shown, was justified.</p> <p>[Ed. Note.—For eases in point, see vol. 41, Cent. Dig. Railroads, §§ 1238, 1239, 1367.]</p>

<p>Carriers—Mandamus—Enforcement of Compliance -with Interstate Commerce Act—Effect of Agreement.</p> <p>An arrangement between an interstate 'railroad company and coal shippers in a certain field, fixing a basis which should be considered equitable for the distribution of cars between such shippers, does not operate to relieve the railroad company from the obligations imposed on it by section 3 of that interstate commerce act of February 4, 1887 (24 Stat. 380, e. 104 [U. S. Comp. St. 1901, p. 3155]), to treat shippers without discrimination, nor does it deprive one of such shippers of the right to maintain a proceeding in a federal court for a writ of mandamus under the amendatory act of March 2, 1889 (25 Stat. 862, e. 382, § 10 [U. S. Comp. St. 1901, p. 3172]), to compel the company to furnish to relator its equitable proportion of cars, upon allegations that the basis of distribution fixed by the agreement was equitable and that defendant has refused to observe it, but has discriminated in favor of other shippers; the agreement being in fact in aid of the act by fixing as between the parties what should be considered and accepted as a compliance with its requirements.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 120; vol. 33, Cent. Dig. Mandamus, § 268.]</p>

<p>Insurance—Action on Accident Policy—Accidental Death.</p> <p>The holder of a policy, insuring him against disability or death "resulting directly, and independently of all other causes, from bodily injuries sustained through external, violent and accidental means,” committed an assault and battery on a person who made no resistance, and, in striking such person in the face, injured his hand, and a few days later died from the effects of blood poisoning which developed in the wound. Held, that such injury, which was the direct means causing the death of the insured, being the natural result of a voluntary act committed when he was in full possession of his mental faculties, was not “accidental,” within the meaning of the policy, and did not give a right of action thereon to recover for the resulting disability or death.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, § 1162.</p> <p>Accident insurance—Risks and causes of loss, see note to National Accident Society of New York v. Dolph, 38 C. C. A. 3.]</p>

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

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

<p>1. Indians—Indian Lands—State Taxation—Allotments Exempt eeom While Inalienable.</p> <p>Lands allotted to Indians, inalienable for certain periods of time during which they are held in trust by the United States for the benefit of the allottees and their heirs under Act Aug. 7, 1882, 22 Stat. 342, c. 434, § 6, or Act Feb. 8, 1887, 24 Stat. 389, c. 119, § 5, are exempt from taxation by any state or county during the period of the trust, because they are instrumentalities lawfully employed by the nation in the exercise of its powers of government to protect, support, and instruct the Indians.</p> <p>2. Same—Proceeds op Inherited Indian Lands Exempt prom State Taxation.</p> <p>The proceeds of the sales of such allotted lands by the Indian heirs of the allottees under Act May 27, 1902, 32 Stat. 245, 275, c. 888, § 7, which have been deposited by direction of the Secretary of the Interior in a bank selected by the Commissioner of Indian Affairs to the credit of the heirs in proper proportions, subject to their checks only when approved by the agent or officer in charge, are held in trust by the United States for the same purposes as were the lands, and are exempt from taxation by any state or county for the same reason.</p> <p>3. Trusts—No Change op Form op 'Property Divests—The Substitute Takes the Nature op the Original.</p> <p>No change of form of property divests it of a trust. The substitute takes the nature of the original and stands charged with the same trust. The authorized sale of trust property by a trustee discharges the property sold from,, and charges the proceeds of the sale in the hands or under the control of the trustee with, the trust.</p> <p>[Ed. Note.—For eases in point, see vol. 47, Cent. Dig. Trusts, § 85.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal—Review—Order Granting Preliminary Injunction.</p> <p>An Interlocutory order granting a preliminary injunction will not be reversed on appeal unless it appears from the record that the injunction was improvidently granted.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3818.]</p> <p>2. Injunction—Preliminary Order—Scope.</p> <p>An order granting an injunction pendente lite restraining defendant from obtaining and using quotations from complainant’s exchange without Its consent considered, and held not broader in its scope than was warranted by the bill and proofs.</p> <p>[Ed. Note.—Quotation of prices and transactions on exchanges, see note ' to Sullivan v. Postal Telegraph Cable Co., 61 C. C. A. 2.]</p>

<p>1. Bankruptcy—Discharge—Burden of Proof to Sustain Objections.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat 550 [U. S. Comp. St. 1901, p. 3427], it is the duty of the court to grant a bankrupt his discharge, unless his commission of one of the offenses therein specified is established by due proof; the burden of proof resting on the objector.</p> <p>2. Same—Sufficiency of Evidence—Concealment of Books.</p> <p>A specification of objection to a bankrupt’s discharge that he concealed certain books of account mentioned in his schedules, with intent to conceal his financial condition, is not sustained, where is appears from the bankrupt’s testimony, which was uncontradicted, that he left the books in his office subject to the control of the trustee, and also that they were not material to the ascertainment of his financial condition, and their concealment could not benefit him; no fact appearing to discredit his testimony, although in fact the books did not come into the actual possession of the trustee.</p>

This appeal is from an order of the District Court, which sets aside and declares void a chattel mortgage in favor of the appellants, upon certain property of H. F. Chandler, bankrupt, involved in the bankruptcy proceedings.

<p>Negligence—Action foe Personal Injury—Sufficiency of Evidence—Questions for Jury.</p> <p>Plaintiff was employed by an independent contractor in putting a steam-heating plant into the large shop of defendant, and was in the habit of walking on rails used by traveling cranes which extended 300 feet, the length of the shop, as the only available means of reaching his work. Such custom was known to those operating the cranes, who had been warned to look out for him; but, on one occasion, as plaintiff was sitting on one of the rails handing some tools to a helper below, one of the cranes, the engineer of which was not looking, struck and knocked him from the track, causing his injury. He was not watching the crane, which when he stooped down was standing still 150 feet away. Held, that it could not be said as matter of law that plaintiff was guilty of contributory negligence in not keeping his eyes on the crane while engaged in his work, and that the jury was justified in finding that he was ■ licensed to use the track; that he was not negligent, and that the engineer of the crane was negligent in failing to keep a lookout for plaintiff.</p> <p>[Ed. Note.—Por eases in point, see vol. 37, Cent. Dig. Negligence, §§ 333-346.]</p>

<p>¡Internal Revenue—Legacy Tax—Construction of Repealing Act.</p> <p>The legacy or inheritance tax provided for by section 29 of the war revenue act of June 13, 1898 (30 Stat. 464, c. 448 [U. S. Comp. St. 1901, p. 2308]), being an ad valorem tax, was not “imposed,” within the meaning of the saving clause of the repealing Act April 12, 1902, e. 500, 32 Stat. 97, § 8 [U. S. Comp. St. Supp. 1905, p. 447], until its assessment, and where an intestate died while the act was in force and more than one year before its repeal, but owing to a dispute as to the heirship and the pendency of unsettled claims the estate did not become distributable nor the tax ascertainable until after the repealing act took effect, it is not subject to the tax.</p>

<p>Bankruptcy—Stay of Suits against Bankrupt—Claims Released by Discharge.</p> <p>A bankrupt, arrested and held on a capias in an action to recover from him the value of property which it is alleged he embezzled and fraudulently converted to his own use, is entitled to release on a writ of habeas corpus, where no facts are pleaded which show such embezzlement to have been committed while acting in a fiduciary capacity, so as to prevent a discharge in bankruptcy from being a release of the debt under Bankr. Act July 1, 1898, c. 541, § 17a (4), 30 Stat 550 [U. S. Comp. St 1901, p. 3428].</p>

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

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

<p>Petition to Review an Order of the District Court of the United States for the Western District of Kentucky.</p>

<p>1. Appeal—Final Order—Allowance op Compensation to Receiver.</p> <p>An order authorizing a receiver to pay to himself from funds in his hands as custodian for the court a specific sum for past services rendered as such receiver is a complete withdrawal of so much of such funds from the court’s possession, and as such is a final order and appealable.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Appeal and Error, § 399.]</p> <p>2. Receivers—Order Allowing Compensation.</p> <p>An order allowing compensation to a receiver should be made only after notice and a hearing, at which the parties interested have an opportunity of contesting.the claim.</p> <p>[Ed. Note.—'For' eases in point, see vol. 42, Cent Dig. Receivers, § 391.]</p>

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

<p>Bankruptcy—Fraudulent Purchase of Goods by Bankrupt—Election by Seller.</p> <p>One from whom a bankrupt obtained goods by means of fraudulent representations, which were not paid for, has his election to confirm the sale and assume the position of a creditor for the price, or to repudiate the sale and recover the goods, but, having made such election, with knowledge of the facts, by proving his claim and voting as a creditor in the bankruptcy proceedings, he is concluded thereby, and cannot thereafter withdraw his claim and recover the goods.</p>

<p>Error, Writ of—Review of Rulings—Failure to Except.</p> <p>An objection to evidence unaccompanied by any exception to its admission cannot be considered by the appellate court on a writ of error.</p> <p>[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Appeal and Error, §1503.]</p>

On petition of appellee for leave to apply to the Circuit Court for permission to file a supplemental bill, in the nature of a bill of review, for the purpose of introducing newly discovered evidence, the court, at its April session, 1905, announced the following rule: That such -leave will be denied, unless the newly discovered evidence offered, had it been in the original record, Would have probably changed the conclusion to which the court came, and the decree entered…

<p>1. Patents—Constbuction of Claims.</p> <p>The law requires a patentee to define in his claim precisely what his Invention is, and, when that has been done in plain terms, a court has no power to disregard such terms and either change or enlarge the claim by reference to the specification.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, § 141.]</p> <p>2. Same—Infeingement—Wibe Rope Clamp.</p> <p>The Crosby patent, No. 388,840, for a wire rope clamp, in view of the prior art, is limited to a clamp with a groove and longitudinally extending wings forming a lateral support to retain the ropes in place, and is not infringed by a clamp not having such wings.</p>

The bill was to restrain Infringement of letters patent No. 725,858, Issued April 21st, 1903, to the appellees for a new and useful improvement in savings banks.

<p>1. Courts—Jurisdiction of Federal Courts—Suit Arising under Patent Laws.</p> <p>Where a suit involves the question of infringement of patents, it is-one arising under the patent laws and within the Jurisdiction of a Circuit Court of the United States by virtue of Rev. St. § 629, cl. 9 [U. S. Comp. St. 1901, p. 504], although it also involves the question of the ownership of the patents or other contract rights.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent Dig. Courts, § 832.</p> <p>Jurisdiction of federal courts of suits relating to patents, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. Trusts—Establishment and Enforcement—Following Trust Property.</p> <p>To carry out an agreement between complainants, who were owners of certain patents, and the controlling stockholder in defendant cor-, poration, acting in its behalf for the transfer of the patents to the corporation in exchange for a stated amount of its stock, an absolute assignment of the patents was made to such stockholder, but accompanied by written directions that they should not be conveyed to the corporation until it delivered to him the stock, and also directions for the distribution of the stock by him between complainants and others, for whom they were trustees. He assented to the arrangement, but thereafter conveyed the patents to the corporation, ignoring the conditions, which were never performed. Held, that he took and held the title to the patents as trustee only; that his assignment to the corporation in violation of the trust, of which the corporation had knowledge, was ineffective to convey the title or to protect it from a suit for infringement because of its use of the patented devices; and that such a suit was one arising under the patent laws, within the meaning of Rev. St. § 629, cl. 9 [U. S. Gomp. 1901, p. 504], of which a federal Circuit Court was thereby given jurisdiction, although it incidentally sought other relief by compelling a reconveyance of the patents.</p> <p>3. Patents—Infringement by Corporation—Liability of Stockholder.</p> <p>The owner of the majority of the stock of a corporation, who controlled its affairs and who transferred to it certain patents in violation of a trust under which they had been conveyed to him by the owners, is equally liable with the corporation for its infringement of the patents by the use of the patented devices.</p>

<p>1. Patents—Suit for Infringement—Plea.</p> <p>In a suit in equity for infringement of a patent, the defense of noninfringement cannot be made by plea, except under extraordinary or very special circumstances, and while it may be within the discretion of the court to permit the defense of prior invention to be raised by plea to justify such practice, it should appear with reasonable certainty that the determination of the plea will end the case.</p> <p>[Ed. Note.—For cases in point, see voi. 38, Cent Dig. Patents, § 521.] 143 F.—22</p> <p>2. Same.</p> <p>In a suit in equity for infringement of a patent, a plea alleging that prior to the alleged invention by complainant of the device covered by the patent another invented and disclosed the device made and used by defendant which is claimed to infringe and with reasonable diligence made an application for a patent therefor which is still pending is bad, since it does not go to a single point, nor reduce the case to one point, but to two points, viz., possible prior invention, if the two devices should be shown to be the same, and possible noninfringement, If they should be shown not to be the same.</p>

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

<p>1. Patents—Invention—Reflector for Incandescent Lamps.</p> <p>Tbe Goodchild patent, No. 634,295, for a reflector for incandescent lamps which fits over and is removably supported by the flaring upper portion of the lamp bulb, is void for lack of patentable invention, in view of the prior art.</p> <p>2. Same—Design Patent—Lamp Reflectors.</p> <p>The Mygatt design patent, No. 35,755, for a design for a reflector for artificial lights, was not anticipated, and discloses invention. Also held infringed.</p>

<p>Towage—Negligence in Starting with Barge in Ice—Mutual Fault.</p> <p>A tug held chargeable with negligence in starting to tow, on a hawser, a blunt-bowed sternless barge heavily loaded with sand, out of a harbor-through a channel cut in the ice and filled with floating ice, where there was obvious danger of injury to the barge because of her shape and the fact that she was wider than the tug, and liable for one-half the loss by the sinking of the barge and cargo from contact with the ice; the barge being also in fault for assenting to the towing.</p> <p>[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Towage, § 21.]</p>

<p>This is an action begun by the United States attorney, upon the direction of the Attorney General, at the request of the Interstate Commerce Commission, in accordance with section 6 of the act of March 2, 1893, as amended, to recover a penalty of $200 for violations of that statute.</p> <p>Inspectors of safety appliances in the employ of the Interstate Commerce Commission reported that on December 14, 1904, two coal cars of the Litchfield & Madison Railway Company, loaded with coal, consigned to points in the state of Missouri, were hauled over the line of the Chicago, Peoria & St Louis Railway Company of Illinois, from Madison, in the state of Illinois, to East St. Louis, in said state, and delivered to the Terminal Railroad Association in a defective condition. The defect on coal car 2,734 was on the “B” end; the lock block being missing from the Kelso coupler thereof and the coupler thus being totally inoperative. The defect on coal car 2,171 was on the “B” end thereof; a grab iron being broken off and missing from that end of the car. Prior to July 1, 1904, the Chicago, Peoria & St. Louis Railway Company of Illinois had operated the Litchfield & Madison Railway Company under a general lease, but on that date said lease was canceled. There was an arrangement or agreement in effect on December 14, 1904, whereby the cars of the Litchfield & Madison Railway Company delivered at the Madison yard of said railway company were hauled by the Chicago, Peoria & St. Louis Railway Company of Illinois in its trains from Madison to East St Louis, for which service the Litchfield & Madison Railway Company paid its share of maintenance of said line, based upon its share of the total wheelage and 50 per cent of 5 per cent, interest on the cost of said line. This line of the Chicago, Peoria & St Louis Railway Company of Illinois from Madison to East St Louis is about 3 miles in length. The facts are further set forth in the opinion of the court</p>

<p>1. Trusts—Compensation—Commissions—When Earned.</p> <p>Commissions to a trustee holding securities to secure debentures of an insolvent corporation are given as compensation, not only for the collection of such securities, but for the distribution of the proceeds, and will not be allowed on sums collected and remaining in the hands of the trustee until their distribution.</p> <p>[Ed. Note.—For cases in point, see vol. 47, Cent. Dig. Trusts, § 449.]</p> <p>2. Receivers—Allowance oe Fees erom Trust Fund.</p> <p>Fees are not allowable to a receiver appointed for an insolvent mortgage company or to hi's counsel out of the proceeds of securities pledged in trust by the company to secure its debenture holders, which were collected by the trustee and did not come into the hands of the receiver and in respect to which he performed no service; the amount collected being less than the claims of the debenture holders.</p>

<p>Collision—Vessels at Wharf.</p> <p>While a barge 20 feet wide was discharging on one side of a creek 40 feet wide, a canal boat 17 feet wide was placed alongside to discharge upon the other side, and left during the night, and when the tide receded the vessels sagged together, and the barge was injured. Held, that the canal boat should not have been left in such close proximity to the barge, and was in fault; also that the barge was in fault because during the afternoon and after the canal boat was placed she moved farther up, where the stream was narrower, which brought her closer still to the other vessel.</p>

<p>Corporations—Mortgage Trustee—Liability por Breach.</p> <p>A trustee in a corporation mortgage, which provides that he shall not “be liable or responsible for any other cause, matter or thing except his own willful and intentional breaches of the said trust herein 'expressed and contained” is not liable to bondholders for omissions to act through mistake or misconception of his duty.</p>

<p>Commeece—Safety Appliance Act—Cae Used in Interstate Commerce.</p> <p>A car employed in moving interstate traffic and not equipped with an appliance required by Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], was received from another company by defendant railroad company and hauled from one of its yards to another for the purpose of being put in a train and forwarded to its destination in another state. Held, that in such movement the car was being used in interstate commerce within the meaning of the act, and that defendant was liable for the penalty imposed thereby for its violation.</p>

On Application for Review of a Decision of the Board of United Qtofpc i^atipral AnnfaicPfQ For decision bdow, seeG. A. 5,807 (T. D. 25,648), which affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Customs Duties—Classification—Casein Industbielle—Lactabene.</p> <p>So-called casein industrielle, which is produced by drying the substance left after drawing off the whey from skimmed milk that has been allowed to sour, held to be “lactarene,” under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 094, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1684].</p>

Proceedings for Contempt for Violation of Injunction and for Aiding and Abetting the Same.

<p>On Motion to Impose Sentence and Motion in Arrest of Judgment.</p>

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

<p>Bankruptcy—Claims Entitled to Priority.</p> <p>A member of a banking firm made a loan, taking a note and a mortgage on real estate as security in his own name as agent He afterward sold and transferred the note and mortgage and thereafter collected the interest as it came due and remitted the same to the owner. Before the maturity of the note the maker desired to pay it, and, the owner being absent, the banker received the money, placed it to the credit of the owner in the bank, and promised the maker to obtain and surrender the note and mortgage within a short time. He had no authority from the • owner to accept payment, and both the bank and himself were at the time insolvent and were soon thereafter adjudged bankrupts; the owner of the note not having surrendered the same nor received the money. Held, that the payment created the relation of debtor and creditor between the. bank and the payor and entitled the latter to prove her claim in bankruptcy therefor, but that, in the absence of any statute or rule of decision in the state which gave priority to her debt, the transaction gave her no right to priority of payment of the same, under Bankr. Act July 1, 1898, c. 541, § 64b (5), 80 Stat. 563 [U. S. Comp. St 1901, p. 3448], as a debt entitled to priority by the laws of the state or the United States.</p>

<p>1. Public Lands—Private Claimants—Priority or Right.</p> <p>As between two claimants to public land it is the settled rule of law that the first in time is the first in right.</p> <p>[Ed. Note.—Eor cases in point, see vol. 41, Cent. Dig. Public Lands, § 55.]</p> <p>2. Indians—Act Dividing Great Sioux Reservation—Construction.</p> <p>Act March 2, 1889, c. 405, 25 Stat. 892, providing for the cession of part of the Great Sioux Indian reservation in Dakota, which by its terms was required to be accepted and signed by at least three-fourths of the adult male Indians occupying or interested in the same, is not to be construed as an ordinary statute, but was in effect a treaty with the Sioux Nation and is to be construed with reference to the understanding the Indians had of it at the time they accepted its provisions. Whether or not a person is an Indian, within its meaning, and entitled to the benefit of its provisions, is to be determined, not by the common law, but by the laws or usages of the tribe, by which the children of a marriage between a white man and an Indian woman take the status of their mother with respect to tribal rights and property, and, there having been a large number of such mixed bloods who were' recognized members of the tribes and who signed the treaty, neither they nor other members of their class can be excluded from its benefits.</p> <p>3. Same—Action to Recover Allotment.</p> <p>In an action brought under Act Peb. 6, 1901, c. 217, 31 Stat 760, which gives to a person in whole or in part of Indian blood or descent the right to bring such action to establish the right to an allotment of land by virtue of an act of Congress, which he claims to have been unlawfully denied him, the decision of the Land Department, upon the question whether or not the plaintiff when a person of mixed blood was recognized as a member of the tribe entitled to the benefit of the act, will not in all cases be followed, since in ease of an adverse ruling such rule would leave the plaintiff without the remedy which it was the purpose of the statute to give him.</p> <p>4. Same—Right to Allotment—Membership of Tribe.</p> <p>Complainant was a woman of five-sixteenths Sioux Indian blood on her mother’s side and had been recognized as a member of a Sioux tribe since her birth. On February 10, 1890, at the time of the taking effect of Act March 2, 1889, c. 405, 25 Stat. 892, by which a portion of the Great Sioux reservation was ceded to the government, she was residing with her husband and children on lands on the ceded part of such reservation. Within a year thereafter she filed her election to take an allotment of such lands as permitted by section 13 of the act, but her claim was rejected by the Land Department, on the ground that she was not an Indian, within the meaning of the act, and a trust patent to the land was issued to another member of the tribe who had later settled thereon. Complainant and her children were enrolled on the census, annuity, per capita, and issue rolls of her tribe, and had received rations, annuities, and per capita payments, the same as all other Indians thereof, and two of her brothers signed the acceptance of the act as members of such tribe. Reid, that she was an Indian,' within the meaning of the act, and the head of a family, according to the laws and usages of her tribe, her husband being a white man, and as such was entitled to the allotment and to a cancellation of the patent therefor issued to defendant.</p>

In Bankruptcy. To the petition of the bankrupt for a discharge objections were filed by certain creditors, which were referred to a special master to hear and take testimony and to report his findings of fact and conclusions of law. At the same time the claim of Wood Bros., one of the objecting creditors, was referred to. the same special master to be determined whether it should be allowed against the estate.

<p>1. Indemnity—Contract—Construction.</p> <p>Where an agreement indemnifying a contractor’s surety provided that, in the event of the contractor’s being unable to complete the contract, the contractor thereby assigned such “plant” as the contractor then owned or had upon the work to the surety, the term “plant” was sufficient to include lumber and other materials intended for use in the building in process of erection, together with horses, carts, and harnesses used in connection with the work.</p> <p>2. Bankruptcy—Creditors—Unliquidated Demands.</p> <p>Where an agreement indemnifying a contractor’s surety assigned to the latter all the contractor’s plant in the event of the contractor’s being unable to complete the contract, and the contractor subsequently abandoned the contract, and was declared a bankrupt, the surety became a creditor of the bankrupt from the date of the latter’s abandonment of the contract, within Bankr. Act July 1, 1898, § 60, 30 Stat. 562, e. 541 [U. S. Comp. St. 1901, p. 3445], providing for the avoidance of preferences to creditors, though the amount of the surety’s claim depended on contingencies, and was not liquidated.</p> <p>3. Same—Amount oe Claim—Determination.</p> <p>Where an agreement indemnifying a contractor’s surety, containing an assignment of the contractor’s plant on the work in case the contractor should be unable to carry out the contract, was executed more than four months before the contractor became a bankrupt, and when he was solvent, the amount of the surety’s claim against the bankrupt was not the amount that the latter might' have paid by reason of its liability on the bonds, independent from tbe plant so assigned, but was the amount of the loss it might sustain in completing the contract, with such aid as it might gain by taking and using the plant so assigned.</p> <p>4. Same—Preferences.</p> <p>Where a contractor, more than four months before becoming a bankrupt, and while solvent, executed an agreement indemnifying his surety, containing an assignment of the contractor’s plant in case he should be unable to complete the contract, the exercise of the right thereby acquired by the surety within four months of the bankruptcy proceedings, and with knowledge that the contractor was then insolvent, did not constitute a preference in its favor.</p> <p>5. Indemnity—Contract—Construction.</p> <p>A contractor’s indemnity agreement provided that if the contractor was unable to complete the contract, he assigned to the surety such plant as the contractor owned or might have upon the work. Held, that the surety’s right to the property depended on the facts existing when the right was given, and not on the facts existing when possession was taken, and hence it was immaterial that the property taken by the surety was acquired by the contractor after the execution of the indemnity agreement.</p>

In Bankruptcy. On report of special commissioner. The following is the report of Special Master. Claude M. Dean: On July 8, 1902, H. St. A. Montague, the bankrupt, purchased from L. W. Harris a certain steam launch, known as the “Ruby,” for the sum of $320.80, and paid for the same on that day as shown by the bill of sale filed before me and marked, as “Exhibit H. M. No. 3.” At the time of this sale the launch was in the Westhampton Lake, in Henrico county, Va.

<p>Courts—Jurisdiction of Federal Courts—Stockholder’s Suit.</p> <p>To establish the claim that a suit brought in a federal court by a nonresident stockholder in a local corporation against the corporation and a city to enjoin the enforcement of an ordinance of the city is collusive and a fraud on the jurisdiction of the court, it is not sufficient that the company would be benefited by the success of the complainant, which is the-theory upon which all suits are brought, nor that its officers express-a desire for his success, nor that his counsel represented the company in a prior suit brought by it in the same behalf; but an agreement between complainant and the company, pursuant to which the suit was-brought, must be shown either directly or inferentially.</p>

<p>In Error to the District Court of the United States for the Southern District of West Virginia, at Huntington.</p> <p>The first count of the indictment in this case reads as follows:</p> <p>“Indictment.</p> <p>“United States of America, Southern District of West Virginia—ss.:</p> <p>“In the District Court of the United States in and for the Southern District aforesaid at the April term thereof, A. D. 1903, at the city of Huntington, West Virginia.</p> <p>“The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid of the court aforesaid on their oaths, do present, charge, and say:</p> <p>“That heretofore, to wit, on the 21st day of April, 1902, one V. A. Wilder, whose name is unknown to the grand jurors aforesaid otherwise ♦•han V. A. Wilder and one Daniel Justus did, in the county of Kanawha, in the Southern District of West Virginia, and within the jurisdiction of said court, unlawfully, knowingly, corruptly, fraudulently and feloniously conspire, combine, confederate and agree together to commit an offense against the United States, in this, to wit:</p> <p>“That on said last-named day, and for a long time prior thereto, and ever since there was and has been pending and undetermined in the Circuit Court of the United States for the Western District of the state of Virginia, in the Fourth judicial circuit, a certain action at law in ejectment in which the matter in dispute exceeds, and has always exceeded, exclusive of interest and costs, the sum and value of two thousand dollars, and which the said Circuit Court then and there and during the times aforesaid had and still has the lawful and proper jurisdiction to hear and determine, and which action in ejectment one Henry C. Iving, a citizen of the state of New York, instituted in said court against Henry C. Stuart, a citizen of the said state of Virginia, for the recovery of an estate in fee simple and the possession of certain land lying in. the county of Buchanan, in said state of Virginia, which said county of Buchanan, before and at the time of the institution of said action in ejectment, and ever since was, has been and now is within and a part of the said Western District of the state of Virginia, and which land so sought to be recovered by said King in said action in ejectment was, at the time of the institution of said action and ever since has been claimed by said King to be a part of the land granted to-one Robert Morris by the commonwealth of Virginia by patent dated the 23rd day of June, 1795, being as so claimed by said King that part thereof which lies in the said county of Buchanan. That at the time of the institution of said action in ejectment the said Stuart claimed, and has ever since claimed, an estate in freehold in and to certain lands in said county of Buchanan, which the said King at the time of the institution of said action in ejectment claimed, and has ever since claimed to be partly within the boundaries of the land set out and described in the said patent from the commonwealth of Virginia to the said Robert Morris, but how much of the land so claimed by the said Stuart is within the boundaries of the land set out and described in said patent and the true location of the boundaries of the land embraced in said patent were, at the time of the institution of said action in ejectment and ever since have been matters in dispute and controversy of more than two thousand dollars in value, exclusive of interest and costs in said action in ejectment between the said King and said Stuart.</p> <p>“That in the declaration filed by said King in said action of ejectment is set out the location as claimed by him of the boundaries of the land embraced in said patent which includes a large part of the land so claimed by said Stuart, and the said Stuart has always, since the institution of said action in ejectment, claimed and still claims, that the location of the boundaries of the land embraced in said patent as set out by the said King in his said declaration is not the true location and that the true location of the boundaries of the land embraced in said patent would include a much smaller quantity of the land so claimed by said Stuart than is embraced by the location thereof claimed as aforesaid by the said King in his said declaration. That the said action in ejectment was so instituted by the said King against the said Stuart for the purpose of establishing title in fee in said King to the land embraced in said patent which lay in the said county of Buchanan, and to recover from the said Stuart that part of the land so claimed by him, which the said King claimed as aforesaid to be within the boundaries of the land embraced in said patent, and that at the time of the institution of said action in ejectment and ever since the said King claimed and has claimed to be the owner in fee-simple estate and entitled to the possession of that part of the land embraced in said patent which lies in the said county of Buchanan and according to the location thereof as set forth in his said declaration. That shortly after the institution of said action in ejectment, and long prior to the 21st day of April, 1902, to wit, at rules held in the clerk’s office of said court on the first Monday in January, 1898, the said Stuart appeared to said action in ejectment, and the said Stuart shortly after the institution of said action of ejectment and long prior to the 21st day of April, 1902, to wit, at rules held in the said clerk’s office as aforesaid and at the June term, 1S98, of the said court by proper plea interposed in his behalf put in issue the right of the said King to recover in said action in ejectment the land so sought to be recovered by him therein, and said issue has ever since remained between the said King and the said Stuart as a matter in controversy between them to be tried and determined in and by the said Circuit Court of the United States for the Western District of the state of Virginia, and said issue now remains pending and undetermined in said court, and that ever since said action in ejectment was instituted in said court, the said Stuart has controverted and denied and still controverts and denies the right of the said King to recover therein the land so sought to be recovered by him therein as set out in his said declaration, and that said action in ejectment is still pending and undetermined in said court, and that at the time of the institution of said action of ejectment the said King was a citizen of the state of New York and the said Stuart a citizen of the state of Virginia, and they have ever since been citizens of different states, and that at the time of the institution of said action in ejectment and ever since the said Circuit Court of the United States for the Western District of the state of Virginia has had the due and lawful jurisdiction to hear and determine all matters in controversy in said action in ejectment between the said King and the said Stuart and still has such jurisdiction. That the said patent dated the 23rd day of June, 1795, from the commonwealth of Virginia to Robert Morris in describing the land granted thereby designates one of the corners of the said land as, and states the name to be ‘three poplars and a sugar tree by a small branch of Knox creek.’ That ever since said action of ejectment was instituted it has been and now is material and important to said Stuart and of great value to him in defending said action in ejectment, and in contesting the location of the boundaries of the land embraced in said patent as claimed by said King, and set forth in his said declaration, and to show that of the land so claimed by said Stuart a much less quantity is within the boundaries of the land embraced by said patent than is claimed by said King in said declaration and to establish the true location of said boundaries, to show and prove in any trial in said action that said corner so designated as ‘three poplars and a sugar tree by a small branch of Knox creek’ was located near what is known as the Race Fork of Knox Creek in said Buchanan county, the said Race Fork being a small branch of Knox Creek, and that ever since the institution of said action of ejectment it has been and now is material and important and of great value to the said King in order to recover in said action the lands sought to be recovered therein by him as aforesaid, to show and prove in any trial in said action that said corner so designated as aforesaid was not located on or near said Race Fork of Knox Creek. That certain persons residing in said county of Buchanan, to wit’: Riley Lester, William A. Lester, Miles Lester, Andrew Baker, George Childers, Jacob Lester, John Charles, Hiram Smith, Calvin Lester, and the said Daniel Justus had many years prior to the 21st day of April, 1902, to wit: seven years prior thereto seen certain marked poplar trees not over three in number, and a marked sugar tree, standing near together, and near said Race Fork of Knox Creek, in said Buchanan county, and within a short distance, to wit: 400 feet of the house where the said Daniel Justus resided on said 21st day of April, 1902, and were so marked as seen by said persons as to indicate that they were corner trees and might be corner trees of the land embraced in said patent. That said marked trees had long prior to said 21st day of April, 1902, to wit: six years prior thereto, been cut down and destroyed. That the evidence and testimony which said persons who saw said marked trees could give in relation thereto would be material and important, and of great value to said Stuart in any trial of said action of ejectment to show and prove that said marked trees were the corner in whole, or in part, which was described in said patent as aforesaid as ‘three poplars and a sugar tree by a small branch of Knox creek,’ and to show and prove that the corner so designated in said patent was located near said Race Fork of Knox Creek, ana would be damaging and prejudicial to said King in attempting to show and prove in any such trial that the land embraced in said patent was located as claimed in his said declaration.</p> <p>“That heretofore, to wit: on the 21st day of April, 1902, in the county of Kanawha, and in the Southern District of the state of West Virginia, and within the jurisdiction of this court, and after the said Stuart in said action of ejectment had, as hereinbefore set out, put in issue the right of the said King to recover therein the lands sought to be recovered by him therein as aforesaid, and while the said matters in controversy in said action of ejectment between the said King and the said Stuart were, as hereinbefore set out, existing and pending, the said V. A. Wilder and the said Daniel Justus for the unlawful, fraudulent and felonious purpose of corruptly obstructing and impeding and with the unlawful, fraudulent, and felonious intent to obstruct and impede the due administration of justice in the said Circuit Court of the United States for the Western District of Virginia in the said action in ejectment then and there pending and undetermined in said court as aforesaid, between the said Henry C. King and the said Henry C. Stuart, and with full knowledge and notice that said action in ejectment was so peñding and undetermined, did unlawfully, knowingly, corruptly, fraudulently, and feloniously conspire, combine, confederate, and agree together to prevent, obstruct, impede, hinder, embarrass, and defeat the said Henry C. Stuart, from proving in any trial of said action in ejectment that said marked trees had existed and were located as aforesaid, and from proving in any such trial that the corner in said patent described ■ as aforesaid was located near said Race Fork of Knox Creek and at the place above described, in this, to wit, that it was then and there unlawfully, knowingly, corruptly, fraudulently, and feloniously conspired, confederated and agreed by and between the said Wilder and the said Justus that the said Justus should endeavor to procure the said Riley Lester, William A. Lester, John H. Lester, Miles Lester, Andrew Baker, George Childers, Jacob Lester, John Charles, Hiram Smith, and Calvin Lester to make false and corrupt statements in writing under oath which should be inconsistent with, and contradictory of, the true facts which they knew in regard to the existence and location as aforesaid of said marked trees, and that said Justus should endeavor to induce and persuade said last-named persons from ever testifying in any trial which might he had of said action in ejection as to the facts within their knowledge which might prove the existence and location as aforesaid of said marked trees, and that the said Justus should endeavor to procure said last-named persons to make false declarations and statements contradictory of, and inconsistent with the facts within the knowledge of said persons which would tend to prove the existence and location as aforesaid of said marked trees, and to which they would testify if examined as witnesses by said Stuart in any trial of said action of ejectment, and that the said Justus should endeavor to make said last-named persons unfriendly and hostile to the interests of the said Stuart which were involved in said action of ejectment and that the said Justus should endeavor to persuade and get said persons to agree not to tell the truth if they were called or examined as witnesses in behalf of said Stuart in any trial of said action of ejectment, and that the said Justus should endeavor to get said persons to conceal and secrete the facts within their knowledge which would tend to prove the existence and location as aforesaid of said marked trees, and that the said Justus should endeavor to get the said persons to make false statements which would indicate that they could give no evidence tending to prove the existence and location as aforesaid of said marked trees, in order that said persons would not be examined as witnesses in behalf of said Stuart in any trial of said action of ejectment and that the said Justus should endeavor to prevent, obstruct, impede, hinder, embarrass, and defeat the said Henry O. Stuart from securing and producing upon any trial of said action of ejectment the evidence which existed in relation to the existence and location as aforesaid of said marked trees through the knowledge of the said parties who had seen the' same as aforesaid, or through the knowledge of any other persons who had seen said trees, or any of them, marked and located as aforesaid, and that the said Justus should refuse to testify in any such trial as to the facts within his knowledge which might prove the existence and location as aforesaid of said marked trees, and that the sale! Justus should endeavor to find witnesses who, upon any such trial of said action of ejectment, would testify and give evidence against the existence and location as aforesaid of the said marked trees, and evidence to contradict, impair, weaken and destroy the evidence which might be given in any such trial by any of the said persons last named without regard to the fact whether the witnesses so to be found by said Justus would testify honestly and truthfully or falsely and corruptly, and that the said Justus should' himself make a false and corrupt affidavit in writing contradictory of, and inconsistent with, the real facts within the knowledge of said Justus as to the existence and location as aforesaid of said marked trees. That thereafter, to wit, on said 21st day of April, 1902, in the said county of Kanawha and at the city of Charleston, and in pursuance of and for the purpose of effecting and carrying into execution the said unlawful, fraudulent, corrupt, and felonious conspiracy, combination, confederacy, and agreement between the said V. A. Wilder and Daniel Justus, and to effect the object thereof, the said Wilder paid to the said Justus the sum of one hundred dollars in lawful money of the United States as a reward and consideration for what the said Justus was to do and perform as aforesaid in pursuance of said combination, confederation, conspiracy, and agreement and the said Justus did, then and there to effect the object of said unlawful, fraudulent, corrupt and felonious conspiracy, combination, confederacy and agreement between him and the said Wilder, make the false and corrupt affidavit which he had agreed to make as aforesaid, and thereafter, to wit, on the 24th day of April, 1902, and on divers other days, in the said county of Buchanan, the said Justus in pursuance of, and for the purpose of carrying out and to effect the object of the said unlawful, fraudulent, corrupt, and felonious conspiracy, combination, confederacy, and agreement between himself and the said Wilder, did unlawfully and corruptly solicit and endeavor to procure certain parties, to wit, the said Riley Lester, William A. Lester, and John H. Lester and divers other parties to the grand jurors aforesaid unknown to make corrupt and false statements contradictory of, and inconsistent with, the real facts, as the said Justus then and there well knew, within the knowledge of said parties last above named and said unknown parties as to the existence and location as aforesaid of said marked trees, and then and there unlawfully and corruptly offer to pay and give, and to procure to be paid and given, money and other things of valué to said parties last above named and to said unknown parties in order to obtain such statements, and then and there corruptly and fraudulently solicited the said Riley Lester, William A. Lester, and John H. Lester and said unknown parties to conceal the real facts, as the said Justus then and there well knew, within the knowledge of the said parties last above named and said unknown parties as to the existence and location as aforesaid of said marked trees, and then and there corruptly and fraudulently solicited said parties last above named and said unknown parties to pretend and represent that they knew nothing as to the existence and location as aforesaid of said marked trees, although the said Justus then and there well knew that said last-named parties and said' unknown parties had seen some of said marked trees at the location aforesaid and were lawful and competent witnesses to testify in any trial of said action in ejectment to prove the existence and location as aforesaid of said marked trees.</p> <p>“And so the grand jurors aforesaid, upon their oaths aforesaid, do present, charge and say that the said V. A. Wilder and Daniel Justus, in the said county of Kanawha, in the state of West Virginia, and in the Southern-District of said state, heretofore, to wit: on the 21st day of April, 1902, did, in violation of section 5440, Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3676], unlawfully, knowingly, corruptly, fraudulently, and feloniously conspire, combine, confederate, and agree together to commit an offense against the United States, to wit: to corruptly obstruct and impede the due administration of justice in the said Circuit Court of the United States for the Western District of Virginia, as hereinbefore set out, and to effect the object and to carry out the said unlawful, fraudulent, corrupt, and felonious conspiracy, combination, and confederacy, did the acts and things hereinbefore set out; all of which is contrary to the form, force, and effect of the statute of the United States in such case made and provided, and against the peace and dignity of the United States.”</p>

<p>1. Collision—Steam Vessels Meeting—Application of Rules.</p> <p>Rule 3 of the supervising inspectors in force in 1896, providing that “if, when steamers are approaching each other, the pilot of either vessel fails to understand the course or intention of the other,” he shall signify the same by signals, and, if within half a mile of each other, the vessels shall slow down until an agreement is made and understood, does not apply to steamers meeting On the Delaware river where it is 2,000 feet wide, on such courses that, if they are maintained, the vessels will pass in safety, and under such circumstances one of the vessels is not in fault for keeping her course and speed without signaling.</p> <p>[Ed. Note.—Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p> <p>2. Same—Change of Course—Mistaking Signals.</p> <p>A steam vessel, meeting another on courses which, if maintained, would have taken them past each other starboard to starboard without danger of collision, held solely in fault for a collision between them brought about by her mistaking a signal from another vessel for one from the meeting steamer and suddenly porting her helm when they were not more than 300 feet apart; the other vessel having kept her course until such maneuver, when she at once stopped aid reversed.</p>

<p>1. Internal Revenue—Liability on Distiller’s Bond—Tax on Spirits Lost in Warehouse.</p> <p>A surety on a distiller’s bond is not relieved from liability for the tax upon spirits lost in the distillery warehouse, by the fact that at the time of the loss the warehouse was in the possession of the collector, who had seized it for an alleged violation of law, and that the loss was through the negligence of the custodian; his remedy in such case being by an appeal to the Secretary of the Treasury for an abatement of the tax, under Rev. St. § 3221 [U. S. Comp. St. 1901, p. 2087].</p> <p>[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Internal Revenue, § 70.]</p> <p>2. Limitation oe Actions—Suit to Recover Tax—Interest Recoverable.</p> <p>Under Rev. St. § 3184 [U. S. Comp. St. 1901, p. 2072], providing for the collection of delinquent internal revenue taxes with a penalty of 5 per cent, thereon and interest at the rate of 1 per cent a month, such interest is not a penalty, but is recoverable as interest, and the limitation i>f five years, prescribed by Rev. St. § 1047 [ U. S. Comp. St. 1901, p. 727] for suits to recover penalties, does not apply to a suit to recover such interest as a part of the debt.</p> <p>3. Same—Distiller’s Bond—Tax on Spirits Lost in Warehouse.</p> <p>The sureties on a distiller’s bond are not liable, in the first instance, for taxes on spirits which were .lost after being placed in a warehouse, and thus brought within the express terms of the warehousing bond, whatever their ultimate liability may be should the remedy by suit on the latter bond prove unavailing. .</p>

The appellant, Darlington, filed his libel in the court below against the steamboat Clifton, her tackle, apparel, etc., and H. B. Hulings and George F. Jones, to recover possession of said steamboat, under the following agreement filed with the libel: “Articles of agreement made and concluded this ,18th day of August, A. D. 1904, between George F. Jones,, of the borough of Wilkinsburg, county of Allegheny and state of Pennsylvania, and H. B. Hulings, of the city of…

<p>1. Bankruptcy—Practice Before Referees—Objections to Evidence.</p> <p>It is the duty of a referee in bankruptcy on a hearing before him either as referee or as special commissioner to receive and record all evidence offered, noting objections made as required by General Order No. 22 (89 Fed. x; IS Sup. Ct vii).</p> <p>2. Same.</p> <p>A referee is not required to stop proceedings before him and to certify to the court for decision questions raised on objections to evidence.</p> <p>3. Same—Punishment of Contempts.</p> <p>A referee has no power to punish a witness for contempt in refusing to answer questions or to produce documents that power being expressly vested in the District Court by Bankr. Act July 1, 1898, c. 541, § 41b, 30 Stat. 556 [U. S. Comp. St. 1901, p. 3437], which also clearly prescribes the duty of the referee.</p>

<p>•Collision—Yacht and Tug with Tow—Yacht Drifting in River Channel.</p> <p>A sloop yacht with a number of persons on board was making her way up the Delaware river at night with the flood tide. The wind was very light and finally failed, leaving the yacht drifting without power of control from the western side of the river toward the center of the channel. No proper lookout was kept, but the master saw a tug and tow- approaching from up the river when half a mile distant Nothing was done to control the yacht until too late, and she continued to drift until she came into collision with one of the tows and was sunk. The tug also, which had three barges in tow abreast with a hawser and bridle, saw the yacht when half a mile distant almost' directly ahead, but continued her speed and also her course, until she had passed a meeting vessel, when she changed to port, but did not at once signal the barges to do the same, and when she did later they were unable to clear the yacht. Held, that both vessels were in fault; the yacht for failure to keep a lookout and for not anchoring near the shore when the wind failed, but permitting herself to drift ■ into the track of passing vessels, and the tug for not stopping, instead of trying to pass between the yacht and the meeting vessel with her tow, the danger being apparent, and also for not sooner signaling her tow to change course.</p>

<p>Customs Duties—Protest—Sufficiency—Reference to Similitude Clause.</p> <p>Where an importer' protests against the assessment of duty on the ground of an alleged application of the similitude clause of Tariff Act Aug. 27, 1894, c. 349, § 4, 28 Stat. 547, unless the protest contains reference to said provision, it is not sufficiently distinct and specific to meet the requirements of Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933],</p>

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

<p>1. Contracts—Evidence—Materiality.</p> <p>In an action on a contract, evidence of negotiations between the parties for a modification of the contract which was not made is immaterial.</p> <p>2. Same.</p> <p>In an action on a contract for the doing of certain work by plaintiff for defendant, where it was shown that defendant, acting under a provision of the contract giving it that right, employed others to complete the work, paying therefor less than the contract price for the work so done, reports made by defendant’s engineer, showing the amounts saved and stating them as credits on plaintiff’s contract, were immaterial as evidence and properly excluded; the question of plaintiff’s right to such credits being one of law.</p> <p>3. Same.</p> <p>In an action to recover for work done under a contract, in which defendant pleaded in recoupment a claim for damages for the alleged failure of plaintiff to do the work as required by the contract, evidence that the other contractors did similar work for defendant in the same way as plaintiff is immaterial.</p>

On appeal by the defendant, Robert B. Roosevelt, from a decree of the-Circuit Court for the Eastern District of New York requiring him to account for the sum of $127,984 (less a small contingent deduction), which was lost by the Holland Building Association through the negligence and mismanagement of the said defendant while acting as its president.

<p>1. Master and Servant—Death of Longshoreman—Defective Hatch Covering—Fellow Servants—Negligence.</p> <p>Deceased, a longshoreman, was killed by being precipitated into the hold of a vessel by the falling of a hatch cover. He had been working with a gang for several days unloading and loading the vessel;' the practice being for the gang to cover the hatch at night and uncover it again in the morning. The night before the accident the cover that fell had been placed by new men. The next morning, while deceased was in the act of removing the adjoining cover, he placed his entire weight on the cover in question, which caused it to fall. There was no Inherent defect or improper construction in the cover, except that it was about two inches shorter than the space between the beam and the coaming, which was an ordinary condition compensated for by the use of wedges which had not been inserted the night before. Held, that the negligence, if any, was that of deceased’s fellow servants in setting the cover without wedging it, for which there could be no recovery.</p> <p>2. Same—Employees’ Liability Act.</p> <p>There being no pretense that the hatch cover fell by the negligence of an employé of defendant intrusted with and exercising superintendence, or that the accident was attributable to the defect which arose from, or had not been discovered or remedied owing to defendant’s negligence, there could be no recovery, under the New York employers’ liability act (Laws 1902, p. 1784, c. 600) making an employer liable for injuries to a servant by the negligence of his superintendent or foreman.</p> <p>8. Same—Res Ipsa Loquitur.</p> <p>Where a longshoreman was precipitated into the hold of a vessel and killed through the negligence of his fellow servants in failing to properly set a hatch cover the night before, the mere happening of the accident was insufficient to establish negligence on the part of the master under the doctrine of res ipsa loquitur.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.]</p> <p>4. Same—Injuries to Servant—Care Required.</p> <p>A master is only required to use reasonable care in providing- suitable instrumentalities for the use of his servants.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 173.]</p>

<p>Fraudulent Conveyances—Transfer by Debtor for Benefit of Creditors —Estoppel.</p> <p>An insolvent manufacturer, at the instance of a committee of his creditors, entered into a contract by which he conveyed to them all of his property, and they conveyed it to a corporation organized by them to carry on his business for the benefit of all of his creditors. It was agreed that all whose claims were less than $100 should be first paid in full; that the debtor should manage the business under the committee’s direction, and should receive a salary to be fixed by them; that, if any surplus should remain after the debts were paid, it should go to him; and that he should have the privilege of repurchasing the property at a price which was greater than its value at the time and about 50 per cent of his indebtedness. All of the creditors except one signed the agreement, and such one, while refusing to sign, expressed no objection to the plan, which was carried out. Six months afterward the nonparticipating creditor commenced an action against the debtor and attached the property. Held, that the transfer was not fraudulent either in fact or in law, and could not be impeached by such creditor, especially in view of its silence at the time and delay in asserting its objection.</p>

For decision below, see 137 Fed. 674, affirming a decision of the Board of United States General Appraisers, which had reversed the assessment of duty by William F. Stone, collector of customs at the port of Baltimore on merchandise imported by Frank H. Shallus.

<p>1. Patents—Original Inventor—Machine for Molding Pipe Coverings.</p> <p>Evidence considered, and held insufficient to overcome the presumption, arising from the granting of the patent, that the patentee was the original inventor of the machine .of the Keasbey patent, No. 397,860, for molding tubes or cylinders for covering steam pipes.</p> <p>2. Same—Validity—Description of Machine.</p> <p>A patent for a machine, described as one for molding tubes or cylinders, is not invalid, because in the use of the machine it makes only half tubes or cylinders capable of being fitted together and so designed.</p> <p>3. Same—Infringement—Machine for Molding Pipe Coverings.</p> <p>The Keasbey patent, No. 397,860, for a machine for molding tubes or cylinders from plastic material such as are used for covering steam pipes, was not anticipated by anything in the prior molding art, from which the machine of the patent differs essentially, owing to the difference in the materials used and the requirement of uniform density to render the product nonconductive and serviceable for pipe covering, and the patent discloses patentable invention. Claim 1 also held infringed.</p>

<p>1. Witnesses—Party Called by Opposite Party—Right to Contradict Testimony.</p> <p>A party who calls the opposite party as a witness is not concluded by his testimony, but may contradict him.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1097, 1269.]</p> <p>2. Patents—Contract to Assign—Evidence Considered.</p> <p>Evidence considered, and held to fairly sustain the claim of complainant that certain inventions, made by defendant, and for which he applied for patents after leaving complainant’s employment, were made during the term of such employment, and were within the terms of a contract by which he agreed to assign to complainant all rights to any inventions made by him while the employment continued.</p> <p>3. Specific Performance—Contract to Assign Inventions—Consideration and Mutuality.</p> <p>A written • contract by an employé, by which he agreed, in consideration of his employment at a stated salary, to assign to his employer all inventions made by him during the term of his employment, which was terminable at any time by either party on notice, is based on a sufficient consideration, and does not lack mutuality, and is specifically enforceable in equity, where it has been fully executed by the employer by retaining the employé until he voluntarily left its service.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 71; vol. 44, Cent. Dig. Specific Performance, § 204.]</p>

383,258, granted to John W. Sutton and owned by complainants. For opinions below see 95 Fed. 474; 108 Fed. 82, 85. The opinion of the Supreme Court reviewing the entire field of litigation in the lower courts and sustaining the Sutton patent, after restricting somewhat the scope of the eighth claim, is reported in 198 U. S. 399, 25 Sup. Ct. C97, 49 L. Ed. 1100.

<p>Patents—Infbingement—Milk Cans.</p> <p>Tbe Haigk patent, No. 607,433, for a milk can, is limited to the specific means shown for uniting the reinforcing neck portion with the neck portion of the body of the can, by an interlocking flange as its only novel feature, in view of the prior art, and it is not infringed by a construction which does not employ such interlocking means.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On appeal from a decree of the Circuit Court for the Southern District of New York adjudging claims 1 and 2 of patent No. 629,391, granted July 25, 1899, to R. W. Parramore, valid and infringed, and granting an injunction and an accounting. This court, Judges Wallace, Lacombe, and Shipman sitting, sustained the patent in suit in Parramore v. Taylor, reported in 114 Fed. 97, 52 C. C. A. 45. A writ of certiorari to review this decision was denied by the Supreme Court, 186 U. S. 484, 22 Sup. Ct. 944, 46 L. Ed. 1261. In Parramore v. Cohn (C. C.) 116 Fed. 1022, the Circuit Court held that the devices shown in the patents to Andrews and Banfleld seemed no nearer to the patent in suit than those considered by this court in the Taylor Case. In Kleinart Rubber Co v. Stein the Circuit Court of Appeals for the Seventh Circuit, 133 Fed. 230, 06 C. C. A. 282, decided that the Parramore patent was anticipated by the patent to Andrews (No. 550,551). A petition for a writ of certiorari to review this decision was denied by the Supreme Court, 196 U. S. 041, 25 Sup. Ct 796, 49 L. Ed. 631.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of New York.</p> <p>The opinion in the court below is reported in (C. C.) 138 Eed. 68, where the facts are fully stated, and all of the leading authorities collected. The validity of claim 2 of the Morrin patent in suit, No. 463,307, was sustained in Morrin v. Lawler (O. C.) 90 Fed. 285, and Morrin v. Edison Electric Co. (C. C.) 90 Fed. 285, affirmed 99 Fed. 977, 40 C. C. A. 204.</p>

<p>1. Patents—Invention—Use of Old Device in Different Combination.</p> <p>The use of a ball and socket joint to accomplish the same purpose for which it had previously been used in the same art, in a different but old combination, does not constitute invention.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, §§ 27-32.]</p> <p>2. Same—Thiel Coupling.</p> <p>The Bradley patent, No. 485,856, for a thill coupling, is void for lack of patentable novelty.</p>

<p>1. Patents—Yalidity and Infringement—Separable Buttons.</p> <p>The Pringle patent, No. 580,000, claim 1, for a separable button catch designed for use with a stud member to form a separable button or fastener, is for an operative device disclosing novelty and utility, and was not anticipated; also held infringed by the device of the Bradley patent, No. 735,655. ' .</p> <p>2. Judgment—Res Judicata—Dismissal Without Hearing on Merits.</p> <p>To constitute an adjudication of a cause of action which will bar a second suit thereon between the same parties, the judgment or decree must have been rendered after a trial or hearing on the merits, and it will not have such effect where it was a decree of dismissal in effect for failure to prosecute.</p> <p>[Ed. Note.—For cases in point, see vol. 30, Cent Dig. Judgment, §§ 1028, 1040,]</p>

<p>In Equity. Suit for infringement of patent. On motion for preliminary injunction.0</p>

<p>1. Patents—Invention—Adaptation op Device to New Aet.</p> <p>The strengthening of iron castings by the insertion of wrought iron-bars or rods in the process of making belongs in the casting or foundry art, and not in the art in which the particular casting may be used, and' the employment of the device in casting brake shpes, after its use for the same purpose in casting sleigh runners, annealing boxes and other articles did not constitute its transfer and adaptation to a new art, nor involve invention.</p> <p>2. Same—Casting Brake Shoes.</p> <p>The Herron patent, No. 423,996, for a brake shoe having wrought iron bars imbedded in the casting for the purpose of' strengthening it is void for lack of invention, in view of the prior casting art.</p>

<p>■ 1. Patents—Invention—Printers’ Drying Racks.</p> <p>The Koerner patent, No. 392,735, for drying racks for lithographers and printers, while of narrow scope in view of the prior art, was not anticipated, and discloses patentable invention in its feature of so constructing the trays or racks that they slide upon and interlock with each other to form a stack, and facilitate handling and moving. Also held infringed.</p> <p>2. Same.</p> <p>The Koerner patent, No. 504,985, for a drying rack for lithographic or printed sheets, which covers an improvement on the device of the prior patent No. 392,735, to the same patentee, is void for lack of invention.</p>

<p>In Equity. Suit for infringement of patent. On motion for preliminary injunction.</p>

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

<p>1. Customs Duties—Fruit in Packages—Allowance for Decay.</p> <p>Tbe rule that the duty on fruit should be assessed only on the sound and merchantable portion, allowance being made for such as is rendered worthless, and unsalable through decay, held to apply to fruit in packages, even though the decayed portion is not separated, but, after being removed for the purpose of estimating its quantity, is replaced in the package and sold with the good fruit.</p> <p>2. Same—Measurement—Allowance for Rotten Fruit—Evidence.</p> <p>For the purpose of ascertaining the percentage of decay in importations of fruit, the importers opened at least one package in ten of the consignments from each shipper; and the percentage thus estimated was assumed to prevail throughout the other packages, and.was accepted by the bidders at the auction sales held immediately on the dock. Held, that this method of averaging constituted a reasonably certain and sufficient mode of proof, and should be accepted by the customs officers as a proper basis for making allowance for the decayed fruit.</p>

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

<p>Removal of Causes—Foeeign Attachment—Sufficiency of Bond—Condition foe Special Bail.</p> <p>An undertaking to dissolve a foreign attachment, under the law of Pennsylvania, must be an absolute one for the payment of the debt or damages recovered, and constitutes “special bail,” within the meaning of the removal act (Act March 3, 1875, c. 137, § 3, 18 Stat. 470 [U. S. Comp. St. 1901, p. 510]), which requires a bond for the removal of a cause to be conditioned for the entering of such bail when originally requisite; but, since a defendant is not required to enter such bail under the law of the state, but may at his option appear and contest the action, leaving the attachment in force, it is not necessary that a removal bond in such case be so conditioned, particularly where an undertaking to that effect has been given in the state court, which necessarily remains in full force and effect in the federal court after the removal.</p>

<p>Equity—Dismissal of Suit—Settlement of .Issues.</p> <p>A bill in equity against an administrator alleged a partnership between complainant and defendant’s intestate, and prayed for an accounting as to the partnership business and injunctive relief against interference therewith by defendant By an answer and a cross-bill defendant denied the partnership and asked affirmative relief. After the case had lain dormant for two or three years defendant filed-a supplemental cross-bill alleging a settlement pursuant to which the property in controversy had been transferred to a corporation formed for the purpose. Held, that no issues remained for trial, and that the court would not retain the case for the purpose of litigating the right of defendant to enforce an alleged agreement by plaintiff in the settlement to deliver to defendant certain stock of the. corporation, against plaintiff’s petition to dismiss.</p>

<p>1. Bankruptcy—Voidable Preferences—Suit in Equity to Recover.</p> <p>A trustee in bankruptcy may at his election maintain a suit in equity to recover a payment made by a bankrupt to a creditor as a voidable preference; such suit being in the nature of a creditors’ suit to set aside a fraudulent conveyance. ’ ■</p> <p>.2. Same—Knowledge of Debtor of Creditor’s Intent.</p> <p>A payment made by an insolvent to a ■ creditor within four months prior to the debtor’s bankruptcy may be recovered by his trustee as a voidable preference, under Bankr. Act July 1, 1898, c. 541, § 60, 30 Stat. 562 [TJ. S. Comp. St. 1901, p. 3445], if the creditor had reasonable cause to believe a preference was intended, irrespective of the debtor’s actual intention; and such reasonable cause exists if the creditor had knowledge of the insolvency, or of facts which reasonably charge him with such knowledge.</p> <p>-3. Same—Evidence.</p> <p>Evidence considered, and held to establish knowledge on the part of creditors, who obtained payment from an insolvent within four months prior to the bankruptcy, of such facts as to give them reasonable cause to believe that he was insolvent and intended a preference, and to entitle his trustee to recover the payment.</p>

<p>Insurance—Assignment .of Life Policy—Right of Assignee.</p> <p>Where a wife joined in the assignment of a paid-up policy of insurance on the life of her husband, in which she was beneficiary, to a bank, with the understanding on her part, justified by the conversation at the time between her husband and the officer of the bank that the assignment was made only as security for a loan then made her husband, it can be enforced after the death of her husband only to that extent as against her, notwithstanding a further agreement, made contemporaneously between her husband and the bank, that the assignment should stand as security for other indebtedness.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 492, 1481.]</p>

<p>Rule for a New Trial.</p>

<p>At Law. On motion to quash attachment.</p>

In Bankruptcy. On application by the E. Clements Horst Company for an order directing the manner in which its claims for unliquidated damages against the bankrupt may be liquidated.

<p>Railroads—Construction on Street—Injunction.</p> <p>Under Civ. Code Ga. § 2167, which authorizes any railroad company to lay its track along any street or highway with the written consent of the municipal or county authorities, a lot owner cannot enjoin the construction of a railroad along a street on which his lot abuts, with the consent of the city council, on the ground that the contemplated change of grade, also approved by the council, will result in incidental damages to his lot which have not been ascertained or paid; and the rule is the. same whether the fee of the street is in the public or in the abutting lot owners, it being the settled law of the state that damages arising from the grading of a street by the municipality are recoverable only by an action at law.</p>

On Rule to Show Cause Why a New Trial Should Not be Granted.

<p>1. Master and Servant—Injury of Servant—Liability of Master.</p> <p>The cause of the breaking of a rope sling used in hoisting lumber from the hold of a vessel, resulting in the injury of a seaman, held, under the evidence, not due to the unsound condition of the rope, which might have rendered the vessel liable for the injury, but to the unusual strain put upon it by the catching of the load upon the hatch coaming, for which the vessel was not liable.</p> <p>2. Same—Unsafe Appliances—Defects Due to Wear.</p> <p>While it is the duty of a master to furnish reasonably safe appliances for the use of his servants, it is not his duty to repair defects arising in the daily use of an appliance not permanent in its character, such as a rope sling used in loading and discharging a vessel, which is liable to become worn and unsafe- at any time, and if the owner supplies the workmen with new and sound rope which they may use in repairing or renewing the slings, when required, the vessel is not liable for the injury of a seaman through a failure to use such material, even though it is due to the negligence of an officer, who in such case is not the agent of the owner, but a fellow servant.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 252, 253.]</p>

<p>Fixtures—Machinery Installed by Contract Purchaser of Realty—Intention of Parties.</p> <p>Machinery placed upon land by a purchaser under an executory contract does not become a part of the realty as between the vendor and purchaser, where there Is a clearly expressed agreement between them that it shall remain the personal property of the purchaser, nor can the vendor, after the purchaser’s bankruptcy, enforce a provision of the contract limiting the time within which such machinery might be removed by the purchaser in case of his default in making payment for the property, where such default was due to the fault of the vendor in failing to perfect the title until after the time for performance had expired and after the purchaser had become unable to perform, and where no claim of the right to enforce such forfeiture was made until after the bankruptcy.</p> <p>[Ed. Note.—For eases in point, see vol. 23, Cent. Dig. Fixtures, § 47.]</p>

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

In Bankruptcy. On review of referee’s report on the claim of Frank M. Fargo against the individual estate of George Watkinson. Held: of which Watkinson was apprised, presumably by Fargo, and the correspondence must, I think, be read and considered with these thoughts in mind. To whom the money was to be paid is not stated in the correspondence. To whom was it due, and, when part payment was made pursuant to the above purpose, to whom was the money paid?

In Bankruptcy. On application for discharge. On May 15, 1905, the firm of A. F. Hardie & Co. and the individual members thereof, to wit, Alva Finley Hardie, his son, James Mallory Hardie, and Max Kaliski, were, upon the petition of creditors, adjudged bankrupt. An application for discharge was filed by the members of the firm on the 27th of October following.

<p>In Admiralty. Suit for possession of a vessel.</p>

<p>At Law. On motion by defendant. for judgment upon reserved point notwithstanding the verdict.</p>

This is an application by the Ufiited States Attorney for the Northern District of New York, under section 1014 of the Revised Statutes of the United States [U. S. Comp.

<p>In Equitv. On appeal from decisions of receiver.</p>

<p>Shipping—Damage to Caego—Liability oe Vessel.</p> <p>In an action to recover for damage to a cargo of rice alleged to have been received by the ship in good condition but to have been delivered at the end of the voyage in a damaged condition due to sea water and consequent heating, where the owners of the vessel clearly show that she was seaworthy and in all respects properly equipped for the carriage of the cargo at the beginning of the voyage, and also at its termination, that the cargo was properly stowed and that there was no negligence during the voyage which would account for the entry of sea water, they have fully established a defense under a bill of lading which exempted the vessel from liability for damage from sweating, natural decay, or from sea water caused without the ship’s fault or negligence.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 440, 449, 484.]</p>

<p>1. Criminal Law—Federal Statutes—Construction—Use of Common-Law Terms. „</p> <p>When Congress in a statute refers to or adopts a common-law offense without further definition, the common-law definition must obtain.</p> <p>[Ed. Note.—For eases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 8-12.]</p> <p>2. Arson Committed on Reservation—Construction of Statute.</p> <p>Act March 3, 1885, c.'341, § 9, 23 Stat. 385 [U. S. Comp. St. 1901, p. 362], which provides for the trial and punishment of any Indian who shall commit any one of the crimes enumerated, including “arson,” upon an Indian reservation, uses such term in its common law meaning and is in effect an extension of the provisions of Rev. St. § 5385 [U. S. Comp. St. 1901, p. 3648], punishing the offense of arson within a fort, dockyard, etc., to the same offense committed by an Indian on a reservation; and an Indictment charging an Indian with the burning of a “building” on a reservation, not averred to have been a dwelling house, nor occupied as such, does not state an offense thereunder.</p>

<p>1. Municipal Corporations—Ratification op Unauthorized Contract-Power under Pennsylvania Statute.</p> <p>Notwithstanding the provisions of the statutes of Pennsylvania governing cities of the second class which require contracts for public improvements to be let to the lowest bidder after notiee and to be based on and be within prior estimates of the cost, a claim for materials furnished a city for a public work under a contract made without such formalities, because of the urgency of the demand for such materials, may be legalized by a joint resolution passed by two-thirds vote of the councils and approved by the mayor, recognizing its validity and directing its payment, under Act May 23, 1874 (P. L. 232) § 5, which provides that “no ordinance shall be passed except by a two-thirds vote of both councils and approved by the mayor * * * providing for the payment of any claim against the city without previous authority of law.”</p> <p>2. Same—Appearance by City Controller—City Solicitor.</p> <p>The city solicitor, under the direction of councils, according to the Pennsylvania statutes, is the duly appointed representative of the municipality in legal affairs; and it is to say the least doubtful, therefore, ■whether the city controller is entitled to appear on behalf of the city in an action against it and contest the plaintiff’s claim.</p>

<p>Bankruptcy—Creditors—Dissolution of Partnership—Discharge — Persons Entitled to Oppose.</p> <p>Where a partnership which had proved a claim against a bankrupt estate was dissolved pending the proceedings, without any disposition of the claim being made as between the partners, no one could thereafter maintain objections to the bankrupt’s discharge without showing affirmatively that all assented to the action.</p>

<p>1. Bankruptcy—Debts Entitled to Priority—Costs of Attachment Suit.</p> <p>The insolvency act of California of March 26, 1895 (St. 1895, p. 153, c. 143, § 69), which makes the costs incurred in an attachment suit a preferred claim if the claim upon which such suit was commenced is-proved against the estate of the debtor in insolvency proceedings, is in conflict with Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], which makes the lien of the attachment void' if obtained within four months prior to the bankruptcy of the debtor, and is therefore suspended by that act, and cannot be invoked to entitle the attaching creditor to priority as to such costs, under section 64b, subd. 5 (30 Stat 563 [U. S. Comp. St. 1901, p. 3447]), as a debt entitled' to priority by the laws of the state.</p> <p>2. Same.</p> <p>A claim for taxable costs incurred in good faith by a creditor of a. bankrupt in an attachment suit to recover a provable debt, which attachment was rendered void by the subsequent bankruptcy proceedings, is not' a debt owing by the bankrupt, within the meaning of Bankr. Act July 1, 1898, c. 541, § 64b, subd. 5, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447],. and entitled to priority thereunder as one given priority by St. Cal. 1895, p. 153, c. 143, § 69, conceding such provision to be in force and applicable, since, while it makes such costs a preferred claim against the- . estate of the debtor in insolvency, it does not make the insolvent personally liable therefor.</p>

<p>Insurance—Accident Insurance—Cause’ of Death.</p> <p>Where the holder of an accident insurance policy while assisting another to carry a door along a level street, said to the other that he was tired, and suddenly fell down and died, the death being ascertained by an autopsy to have resulted from a rupture of the heart, which was very badly diseased, the death was not the result of an injury sustained from extraordinary, violent, and accidental means, independent of all other causes, within the meaning of the policy, and there can be no recovery thereon, there being in fact nothing of an accidental nature, and no external cause not fully anticipated and expected by the insured.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1166-1170.</p> <p>Accident insurance—Risks and causes of loss, see note to National Acc. Society v. Dolph, 38 C. C. A. 3.]</p>

<p>In Equity. On motions to dismiss and to vacate temporary injunction.</p>

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

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

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

<p>In Bankruptcy. On petition of receiver to require alleged bankrupts to deliver to him their books of account.</p>

<p>1. Bankruptcy—Corporations—Effect of State Insolvency Law.</p> <p>Act Pa. April 7, 1870 (P. L. 58), which provides that on return of an execution against a corporation of certain classes unsatisfied the judgment creditor may procure a special writ of fieri facias on which all the property of the corporation, except real estate held in fee, shall be sold and the proceeds distributed by the sheriff among all its creditors as provided in Act Pa. June 16, 1836 (P. L. 775), is in effect an insolvency law and proceedings thereunder cannot defeat the operation of the bankruptcy law. While such proceedings do not give the creditor a preference so as to constitute an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3a (3), Stat. 546 [U. S. Comp. St. 1901, p. 3422], they result in placing the sheriff as a receiver or trustee in charge of the property of the corporation because of its insolvency which constitutes an act of bankruptcy under section 3a (4) as amended by Act Feb. 5, 1903, c. 487, § 2, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 683],</p> <p>[Ed. Note.—Effect of national bankruptcy act on state insolvency laws and assignments for benefit of creditors, see note to Carling v. Seymour Lumber Co., 51 C. C. A. 11.]</p> <p>2. Same.</p> <p>Proceedings under Act Pa. April 7, 1870 (P. Tj. 58), by which all of the property of an insolvent corporation is sold under a special writ of fieri facias for distribution among its creditors does not work a dissolution of the corporation so as to defeat subsequent bankruptcy proceedings against it, based on such proceedings as constituting an act of bankruptcy, or disenable its directors to admit its insolvency and its willingness to be adjudged a bankrupt which constitutes an act of bankruptcy under .Bahkr. Act July 1, 1898, c. 541, § 3a (5), 30 Stat. 546 [U. S. Comp. St. 1901, p. 3422].</p>

<p>Bankruptcy—Property Passing to Trustee—Property Held under Conditional Sale.</p> <p>Property in the possession of a bankrupt under an unrecorded conditional sale, the title to which remains in the seller under the state law, except as against attaching creditors or subsequent purchasers from the purchaser without notice, does not pass to the trustee in bankruptcy, under Bankr. Act 1898, c. 541, § 70a (5), 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], as property which might have been levied upon and sold1 under judicial process against the bankrupt; such right being confined to a particular creditor who attaches without notice, resting on the es toppel of the true owner, and not extending to the general body of creditors, some of whom may have had notice.</p>

<p>1. Bankruptcy—Property Passing to Trustee—Law Governing Trust Funds.</p> <p>Whether or not the provisions of a will create a trust, such as to prevent a fund bequeathed from passing to the trustee in bankruptcy of the beneficiary or legatee, is to be determined by the law of the state.</p> <p>2. Same—Trust—Title to Fund. A testator bequeathed to his wife and son, respectively, the use of a certain specified sum during their natural lives, the principal to be then disposed of as provided. The will directed the executors to pay such sums to a designated trustee, taking its receipt, showing the purpose to which they were to be applied, and directed the trustee to pay the income and principal to the legatees entitled thereto under its provisions. Held, that the will created an express trust in personalty, and under the law of New York the title to the funds vested in the trustee designated, or in the trustee appointed by the court on a failure of the one designated to serve, and did not pass to the trustees in bankruptcy of the wife and son.</p>

<p>1. Bankruptcy—Disobedience of Oedee to Subbendeb Peopeety—Contempt Proceedings.</p> <p>A bankrupt should not be committed for contempt for failing to obey an order requiring him to turn over money or property to his trustee without a hearing on the motion to commit, nor unless the court is satisfied on such hearing of his present ability to comply with the order.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>While the admitted receipt of goods or money by a bankrupt and repeated refusals to explain or account for their disappearance may be a sufficient ground for a contempt order, they do not necessarily-establish the present ability of the bankrupt to restore the property or money to his trustee, or that his failure to comply with an order requiring him to do so is contumacious and willful, and all the facts and circumstances in each case should be considered.</p> <p>8. Same—Abuse of Power to Punish foe Contempt.</p> <p>The court will not commit a bankrupt woman for contempt for failing to comply with an order to turn over property or money, where it is in doubt as to her ability to do so, in order to compel her husband or other persons who appear to have been the principals in the fraudulent conversion of the property to come to her relief.</p>

<p>In Admiralty. Action for personal injury.</p>

<p>At Law. On motion of defendant concerning costs.</p>

<p>On Demurrer to Complaint.</p> <p>Demurrer to plaintiff’s complaint, on the ground that two Inconsistent causes of action are improperly united, viz.: (1) On a special contract by which plaintiff was to perform certain services and receive as compensation therefor certain specific stock in a certain corporation which defendants refused to deliver, whereby, it is alleged, plaintiff sustained damages in the sum of $23,800, the alleged value of the stock; and (2) on a contract for the performance of such services by defendant and an agreement to pay therefor, and, by implication, to pay what such services were reasonably worth. The claim is that such causes of action are stated in the complaint, and that they are inconsistent with each other.</p>

<p>1. Action—Joinder oe Causes—Law Governing.</p> <p>The right of a plaintiff to join different causes of action in the same suit is to be determined by the law of the place where the suit is brought</p> <p>2. Same—Suit Against . Stockholders.</p> <p>The double liability of stockholders in corporations under the Constitution and laws of Kansas, while statutory, is contractual in its nature; and under the law of Pennsylvania which permits the joinder of causes: of action on contract in the same suit, a judgment creditor of a Kansas, corporation suing a stockholder in a federal court in Pennsylvania may join in his statement of claim a count, based on Gen. St. Kan. 1889, c. 23, § 32, giving him a right of action because of the insolvency of the-corporation, and one based on section 44, giving him a right of action because of its dissolution.</p>

<p>Contracts—Construction by Parties—Estoppel.</p> <p>Plaintiff contracted to furnish to the United States three wood-turning lathes for use at a navy yard. Being apparently in doubt as to the meaning of one part of the specifications he wrote the naval constructor, and was informed specifically as to the requirement and afterward delivered the lathes in conformity therewith, without objection, and also signed a voucher for the contract price. Held, that, conceding the contract to have been ambiguous, he was bound by the construction placed .thereon by the government and on which he acted in performing it, and could not thereafter insist on a different construction and recover an additional sum, on the ground that the lathes furnished were more expensive than those required thereby.</p>

<p>Removal of Causes—Separable Controversy.</p> <p>The complaint, in an action in a state court, stated a joint cause of action against two defendants, one a domestic, and the other a foreign, corporation. The latter, which was brought in by substituted service, made default, and a judgment was entered against it thereon. On a trial of the case against the domestic corporation, a judgment was rendered in its favor, from which plaintiff appealed. Held that, until final disposition of the appeal, it was not established that a separable controversy existed between plaintiff and the foreign corporation which entitled the latter to remove the cause.</p> <p>[Ed. Note.—Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.]</p>

<p>■ Contracts—Action fob Breach—Measure of Damages.</p> <p>A provision of a contract for doing work for the United States that, in case of failure to duly prosecute the work, the contract might be annulled by the engineer in charge, in which case all percentages due or to become due to the contractor should be forfeited, is not inconsistent with a further provision that if the contractor failed to complete the work as agreed all sums due and percentages retained should be forfeited, and the United States might recover any damages sustained in excess of the amount for-. feited, and both may be enforced, the contractor being given credit, when the full measure of compensatory damages has been ascertained, for all sums so forfeited.</p> <p>[Ed. Note.—Eor cases in point, see vol. 11, Cent. Dig. Contracts, § 744.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision under review, see G. A. 5,917 (T. D. 26,029) affirming the assessment of duty by the collector of customs at the port of New York. The pertinent portions of the paragraphs of Tariff Act July 24, 1897, c. 11, referred to in the following opinion, read as follows: “262.

<p>Customs Duties—Classification—Rubbek Sponges.</p> <p>Paragraph 82, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1631], relating to “sponges,” does not include rubber sponges, which are not within the dictionary definition of that term.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,045 (T. D. 26,374), affirming the assessment of duty by the collector of customs at the port of New York.

<p>Customs Duties—Classification—Powdered Opium—Drug.</p> <p>Powdered opium, produced by grinding and sifting lump opium whicH has been subjected to an artificial process of evaporation, held to be dutiable as “opium, crude or unmanufactured,” under paragraph 43, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 153 [U. S. Comp. St. 1901, p. 1629], and not as a “drug,” under paragraph 20, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628]. The article is “crude” in the sense that it is not refined.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,888 (T. D. 25,941), 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 under the tariff act of 1897.

<p>In Admiralty.-</p>

<p>1. Customs Duties—Classification—Embroidery Cottons.</p> <p>Thread or yarn used chiefly for machine embroidering field to be within the provision for “embroidery cottons,” in paragraph 303, Schedule I, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 175 [U. S. Comp. St 1901, p. 1056.]</p> <p>2. Same—Evidence—Commercial Designation.</p> <p>Held that testimony that thread used in machine embroidering was not “embroidery cottons” was insufficient, where it appeared that the witnesses had never seen the thread or yarn used in jnachine embroidery, and had no familiarity with the article in question.</p>

<p>At Law. On defendant’s motion to strike out and also to amend complaint.</p>

<p>Removal of Causes—Amount in Contbovebsy—Construction of Declaration.</p> <p>A declaration containing two counts, each claiming damages in the sum of $1,900, and which alleges that the acts of' defendant complained of have caused damage to plaintiff in its present and accrued sales in the sum of $1,900, and also in its future sales and business in a like sum, authorizes a recovery of $3,800, and the amount involved is sufficient to render the cause removable, where the other jurisdictional facts appear.</p> <p>[Ed. Note.—Jurisdiction of federal courts as determined by the amount In controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p>

<p>Courts—Federal Courts—Process—Substituted Service.</p> <p>A suit by a receiver to adjust equities existing between himself as such receiver and nonresident defendants in whose behalf in part another defendant has obtained a judgment in his own name which he is seeking to enforce against a fund in the receiver’s hands is one to remove an “incumbrance or lien or cloud upon the title to * * * property within the district” within the meaning of section 8 of the federal judiciary act of March 3, 1875, 18 Stat. 472, c. 137 [U. S. Comp. St. 1901, p. 513], and in which substituted service may be made on the nonresident defendants, as therein provided.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, § 917.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. In the decision below (G. A. 5,854, T. D. 25,779) the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York on an importation by Emil Frank, which was classified under paragraph 391, Schedule L, § 1, c. 11, Tariff Act July 24,1897, 30 St. 187 [U. S. Comp. St. 1901, p. 1670],

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

<p>1. Appeal and Ebbob—Dismissal—Informality in Pboduction of Exhibits.</p> <p>Where, at the argument and submission of a case in the appellate court, exhibits used in the trial court are referred to and treated by both parties as properly before the court, any informality in the manner in which they were brought into court is waived, and is not ground for dismissal of the writ of error.</p> <p>[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3133.]</p> <p>2/ Boundabies—Conflicting Elements—Contbol—Refeeence to Map.</p> <p>In a deed to a tract of land in the townsite of Denver, Colo., executed in 1872 by the probate judge, who held the title of the townsite in trust for the occupants, under acts of Congress, to be conveyed to those entitled thereto under regulations prescribed by the Legislature of the territory, the boundaries given were as follows: “Beginning at a point on the west line of F street in the East division of the city of Denver, in said county and territory 106 feet northerly from the Northwest corner of F street and Williams street; thence on the west line of F street 144 feet; thence at right angles with F street westerly to the east line of the old bed of the South Platte river, as the same is marked and defined on the map of said city as per survey of F. J. Ebert; thence southerly along the east line of the old bed of the South Platte river 62 feet; thence in a direct line southerly and parallel with F street to a point 106 feet northerly from Williams street and 125 feet westerly from the westerly line of F street; thence at right angles and in a direct line easterly 125 feet to F street, the place of beginning.” At this time, as well as when the map referred to was made, the lines of the old river bed had been obliterated by floods and could not be located on the ground with certainty, but they were shown on the Ebert map, which was drawn to a stated scale and was of record, and according to such map the east line was some 350 feet west of F street. Other deeds under which defendants claimed, made about the same time, conveyed adjoining tracts and the river bed itself, and all referred to said map as showing its location. Plaintiffs claimed under the deed set out. Held, that the map must be regarded as an artificial monument adopted by the parties to the original conveyances as a final and conclusive reference for the location of the east line of the old river bed, and in the deed set out controlled the call for the distance of 125 feet for the last course, which must be rejected as an error.</p> <p>3. Same—Consteuction.</p> <p>Where in a deed a recorded map is referred to as monument fixing a boundary, the addition of the words “as per survey of” a person named must be construed only as intended to identify the map, and they do not render the map impeachable by the field notes of the survey.</p> <p>4. Public Lands—Townsite Entby—Pbobate Judge—Judgment—Validity and Effeci^-Depaetuee Fbom Pleading.</p> <p>Where a probate judge, in whom title to a townsite was vested by law in trust for the benefit of the several occupants of the land, was authorized by statute to determine summarily, on a petition filed before him, the right of any occupant to land claimed by him and to execute a conveyance therefor, his decision to be final ánd conclusive, unless a rehearing was obtained, the validity and effect of a decision and conveyance made by him thereunder are not affected by the fact that the extent or boundaries of the tract conveyed are not the same as those claimed in the petition, whether the quantity be more or less.</p>

<p>1. Indians—Citizenship in Indian Tribes—Power to Determine Legislative, Not Judicial.</p> <p>The power conferred upon the Dawes Commission and the United States courts in the Indian Terrritory by Act June 10, 1896, c. 398, 29 Stat. 339, 340, and upon the Supreme Court by Act July 1, 1898, c. 545, 30 Stat. 591, to determine who were citizens of the Choctaw and Chickasaw Nations, was legislative, and not judicial, and judgments thereunder were subject to any subsequent legislation of the United States respecting the question of citizenship, which was enacted before allotments of lands were made to successful litigants.</p> <p>2. Same—Judgments of Citizenship Rights Conferred before Allotments.</p> <p>Claimants of citizenship who secured judgments in their favor, which were final under these acts when they were rendered, and took possession of, and demanded suitable lands as their allotments, before their judgments were made reviewable, acquired no vested rights therein against subsequent legislation enacted before the lands were allotted t<> them.</p> <p>3. Same—Judgments of Citizenship Reviewable by Subsequent Act of Congress.</p> <p>The judgments of citizenship rendered by the courts were conclusive-upon the .parties in the absence of subsequent legislation, but, though final when rendered, were voidable and reviewable by subsequent acts of Congress enacted before allotments of land were made under them.</p> <p>4. Same—Citizenship Court—Validity.</p> <p>The Act July 1, 1902, e. 1362, 32 Stat. 641, whereby a citizenship court was created and empowered to review the final judgments of the courts' of the United States under Act June 10, 1896, c. 398, 29 Stat. 339, which had been affirmed by the Supreme Court, was constitutional and valitt against successful litigants who had not procured allotments before its passage.</p> <p>¡5. Courts—Territorial Courts Legislative, Not Constitutional.</p> <p>The United States courts in the territories and the Supreme Court in reviewing their decisions do not exercise the judicial power granted by article 3 of the Constitution, but a jurisdiction conferred upon them by the legislative department of the government by virtue of the sovereignty of the nation and the authority granted to Congress by section 3, art. 4, of the Constitution, to dispose of, and make all needful rules and regulations respecting the territory belonging the the United States.</p> <p>■6. Same—Courts of Indian Territory—Jurisdiction—Ejectment foe Indian Allotment.</p> <p>The United States courts in the Indian Territory have jurisdiction ot an action of ejectment brought by an Indian allottee against one in possession of his allotment.</p> <p>'7. Indians—Indian Allotment—Title of Allottee Chargeable in Equity in those Courts with Trust for Rightful Claimant.</p> <p>The United States courts in the Indian Territory have jurisdiction in equity to charge the legal title to land evidenced by a certificate of allotment issued by the Dawes Commission under the direction of the Secretary of the Interior, with a trust in favor of the rightful claimant, either on account of an error of the commission in the construction of the law' or its misapprehension of the facts induced through fraud or gross mistake.</p> <p>8. Same—Allotment by Dawes Commission—Effect.</p> <p>The jurisdiction of the Dawes Commission, under the direction of the Secretary of the Interior, and the effect of their action in the allotment of lands of the Choctaw and Chickasaw Nations, are the same as the jurisdiction and the effect of the action of the Land Department of the United States in the disposition by patent of the public lands within its control.</p> <p>9. Judgment—Recitals—Jurisdiction.</p> <p>The recital in a judgment or decree that a required notice was “given to the defendants in conformity of law” raises the presumption of due service and of jurisdiction of the persons, in the absence of any inconsistent record or evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. Statutes—Rules of Construction—Criminal Statute.</p> <p>The rule that a criminal or penal statute must be strictly construed, does not mean that its language must be given the narrowest interpretation, ' but contemplates a reasonable construction in aid of the purposes of the act, and courts should adopt that sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the Legislature.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent Dig. Statutes, §§ 322,- 323.]</p> <p>2. Records—Definition as Used in Criminal Statute—Records of Court.</p> <p>In Rev. St. § 5403 [U. S. Comp. St. 1901, p. 3656], which makes it a criminal offense to steal or destroy “any record, paper or proceeding of a court of justice,” or “any paper or document or record filed or deposited in any public office or with any judicial or public officer,” the words “record” and “document” are not limited in their meaning to the technical common-law records of courts as enrolled, or to technical documents, but are used in the common and ordinary sense, and include all and every part, not only of such technical records or documents, but of any paper filed and which becomes a part of the records of the court or office, broadly speaking, and is treated as a record of what it contains.</p> <p>8. Same—Federal Statute—Stealing or Destroying.</p> <p>The original application of an alien for naturalization filed in a court of the United States, together with the affidavits, certificates and record of proceedings thereon, preserved in the office of the clerk, bound in one of a series of books kept for the purpose, and which are evidence of the rights of the applicant as a citizen, constitute a record of the court within the meaning of Rev. St. § 5403 [U. S. Comp. St. 1901, p. 3656], and the stealing or destruction of any part thereof is a criminal offense thereunder.</p> <p>4. Same—.Prosecution—Defense.</p> <p>It is not a defense to a prosecution under Rev. St. § 5403 [U. S. Comp. St 1901, p. 3656], for stealing or destroying a record of a court that such record was technically imperfect or incorrectly kept</p> <p>5. Criminal Law—Evidence—Public Record.</p> <p>A verified copy of a ship’s manifest containing a list of its alien immigrant passengers, and giving their names, nationality, last residence, and destination, delivered to the inspection officers of a port of the . United States as a report, under the requirement of Act March 3, 1891, c. 551, § 8, 26 Stat 1085 [U. S. Comp. St. 1901, p. 1298], and preserved in the immigration office, is a public record, and when produced by the proper custodian is admissible as evidence of the facts stated. therein.</p> <p>6. Same—Identity of Person—Evidence.</p> <p>On the question of the identity of a defendant on trial and an alien immigrant who arrived in this country on a certain- vessel, descriptive matter relating to the immigrant stated in the report of the vessel’s commanding officer to the immigration officers, giving his name, age, nationality, place of birth, and port of arrival in this country, corresponding closely in each particular with the facts relating to defendant as shown by other evidence, is admissible as circumstantial evidence, its weight to be determined by the jury.</p>

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>This is an appeal taken from an' order secured by appellee (complainant In the court below) enjoining appellants (defendants in the court below) from interfering in any manner with the use of 5,000 inches of the waters of Milk river in the state of Montana. The order was made by the court upon a hearing under a rule to show cause why the preliminary injunction should not be granted. The suit involves the right of the appellee, and of the Indians residing upon the Ft. Belknap Indian reservation, to the use of the waters of Milk river for useful and beneficial purposes. This Indian reservation was established by the treaty or convention between the government of the United States and the Indians May 1, 1888 (25 Stat. 113-133, e. 213). Appellee’s complaint is quite lengthy, as are also the affidavits and statements presented by the appellants at the hearing. We shall endeavor to condense the facts derived from the pleadings and evidence, and make a general reference to the statutes and treaties bearing upon the issues raised herein. The Indian reservation comprises an area of about 1,400 square miles, embracing about 1,000,000 acres of land, the greater portion of which is grazing land, “well adapted to stock raising.” Act June 10, 1896, c. 398, 29 Stat. 351. There are, however, some portions thereof that are suitable for agriculture, •and of these portions “approximately about 30,000 acres are susceptible of irrigation with the waters of Milk river.” There is but little water to be found upon the reservation itself, and this scarcity of water “renders the pursuit of agriculture difficult and uncertain.” 29 Stat. 351, e. 398. The center of Milk river is the northern boundary line of the reserve throughout its entire width, and this stream is the only source of supply for the various uses of the government and the Indians at the agency, and for irrigation purposes generally on the reserve. Since 1889 and 1890 a portion of the waters of the stream have been continuously used by the government and the Indians for household, domestic, and irrigating purposes, at and near the agency proper, and this is the only source of supply from which to satisfy their requirements and necessities at that place. Since the year 1898 water has been taken from Milk river by means of a canal and used on the reservation for the purpose of irrigating the cultivable lands susceptible of irrigation with the waters of that stream. As alleged in the complaint, “approximately 5,000 acres of land are being irrigated upon said reservation for the purpose of producing thereon crops of hay, grass, grain, and vegetables with the waters diverted by means of said canal and lateral ditches distributing said waters from said canal over the lands.” This canal has a carrying capacity of at least 5,000 inches of water, and such amount of water is required for the present needs and requirements of the government and the Indians, for household, domestic, agricultural, and irrigating purposes on said reserve. Besides, stock raising, principally horses and cattle, has always been and is now extensively carried on by the Indians everywhere on the reserve. “The main reliance of these Indians for self-support is to be found in cattle raising.” 29 Stat. 351, c. 398. And the. stock ranging and feeding in the northern portion of the reserve all along the channel of the stream, from the eastern to the western limits of the reserve, must depend principally upon Milk river for drinking water. At the time of the Institution of this suit no water reached any part of the reservation, the same having been diverted by the appellants.</p> <p>Prior to the enactment of any law recognizing the right of appropriation to the waters on the public lands all of the country within the state of Montana was Indian country. By the provisions of article 4 of the treaty of October 17, 1855, proclaimed April 25, 1856, there was established and reserved to the Ft Belknap Indians, and other Indian tribes, as and for their home and abiding place, nearly all that part of the state lying north of the Mussel Shell river, and extending from the crest of the main range of the Rocky Mountains eastward, approximately to what is now the western boundary line of the Ft. Peck Indian reservation. Revision of Indian Treaties, p. 7, 11 Stat. 658. By the .terms and provisions of this treaty the Ft. Belknap Indians reserved to themselves the “uninterrupted privileges of hunting, fishing, and gathering fruit, grazing animals, curing meat, and dressing robes.” Article 3 of Treaty, 11 Stat. 657. The territory which was so set apart and reserved to them at that time embraced the channel and the waters of Milk river from its source to its mouth lying within the confines of the United States. This continued to be the abode of these Indians until 1874, at which time their territory was reduced so as to embrace nearly all that part of Montana lying to the north of the Missouri river, and extending from the Rocky Mountains eastward to the Dakota boundary line, including Milk river. Act of April 15, 1874, c. 96, 18 Stat. 28. The tract so set apart remained Indian country and the Indian reservation of these Indians until 1888, at which time the present Ft. Belknap Indian reservation was carved out of the larger reserve established in 1874 as their “permanent home,” with the center of Milk river as the northern boundary line of the reservation, and which is now its northern boundary line. The diversion of the waters by appellants is admitted by them, but they claim the right to divert the waters of Milk river on the ground that the waters of the stream in question were legally and properly appropriated by them and each of them for a beneficial and useful purpose, under the laws of the state of Montana authorizing the appropriation of the waters of, the streams within that state for household, domestic, agricultural, irrigating, and other proper purposes as the same are sanctioned, recognized, and confirmed by the federal statutes. Their rights to the water are based upon the appropriation of the waters, and the rights relied upon and asserted by them are those, and those only, that inure to appropriators of water under state and federal laws.'</p> <p>The proofs show: That the individual appellants are owners of different quantities of land acquired by them under the desert land laws of the United States. That their title to a large portion of the lands was obtained from the government of the United States under said laws. Others had settled upon and applied to enter the land claimed by them under the desert land laws. Some of them had appropriated different quantities of water from the West Fork of Milk river, and others from the North Fork of Milk river, and all claim that at the time the waters were appropriated and diverted by them the lands along the bank of said stream above the point of said diversions were unappropriated public lands. Large amounts of money, exceeding over $100,000, had been expended by them in diverting the water and in making other improvements on their lands. The acquisition of their lands under the desert land laws, and appropriations of water, were made during the years 1895, 1900, and 1903. That in all said acts they relied upon the land laws of the United States, and upon the rights granted to appropriators of water, for the purpose- of reclaiming desert lands; made entries under the land laws of the United States of the lands held by them, respectively, and diverted and appropriated the waters of the West Fork and North Fork of Milk river, outside of the limits of the Indian reservation, and the appropriations were made to be used upon lands which were thrown open to settlement upon the extinguishment of the rights of the Indians thereto. All of the lands owned or claimed by appellants, as well as the land owned by appellee and occupied by the Indians, under the treaty with the government, are dry and arid, and crops cannot be grown thereon without sufficient water to irrigate the same. Unless water is obtained, the lands and homes of the respective parties would be rendered valueless and useless.</p> <p>There are four assignments of error: “(1) The said Circuit Court erred in holding that by the treaty made and entered into the 1st day of May, 1888, between the United States and the Indians residing upon the Ft. Belknap Indian reservation, there was reserved to the said Indians the right to the use of the waters of Milk river to an extent reasonably necessary to irrigate the lands included in the reserve created by the said treaty, and that by the said treaty there was reserved to the said Indians the right to the use of said waters at all. (2) The said Circuit Court erred in holding that the reservation of the waters of Milk river, if any, contained in the treaty of May 1, 1888, entered into by the United States, to the Indians residing upon the Ft. Belknap reservation, was binding upon respondents or any of them so as to affect the rights of the respondents to the use of the waters of the tributaries of said Milk river based upon .acts of appropriation done and had in pursuance to the laws of the United States, the laws of the state of Montana and decisions of its courts, and the customs of the country. (3) The said Circuit Court erred in holding that the rights of the Indians living upon said reservation to the use of the waters of Milk river were superior to the rights of the respondents or either of them, for the reason that the proof showed affirmatively and without contradiction that the respondents and each of them had diverted, appropriated, and applied to a useful purpose the waters of the said river or its tributaries, according to the laws of the United States, the laws of the state of Montana and decisions of its courts, and customs of the country to the extent claimed by them, and there was no proof showing that there had ever been an appropriation of the said waters according to the said laws, decisions, and customs of the said waters or any thereof according to the said laws, decisions, and customs by the said Indians, or on their behalf. (4) The said Circuit Court erred in holding that the Indians residing upon said reservation, or the United States for their use and benefit, were entitled as against these respondents or either of them to the prior right to the use of 5,000 inches of the waters of Milk river, or to the prior right to the use of the said waters at all.”</p>

<p>1. Insurance—Action on Accident Policy—Construction of Contract.</p> <p>A policy of accident insurance for the principal sum of $10,000 provided, by clause C, for the payment of one-half the principal sum in case of an injury resulting in the loss of an arm or leg and on surrender of the policy. Clause E provided for the payment of a fixed weekly indemnity in case of a nonfatal injury resulting in total disability, and clause F for a smaller indemnity in case of a lesser injury; the amount depending on the extent of the disability. Clause G provided that, in case of an injury received while insured was riding as a passenger in any public conveyance, the amount payable under any of the preceding clauses should be doubled. Clause M provided that no indemnity should be paid in excess of the value of the insured’s time, and that If he carried concurrent insurance “making an aggregate weekly indemnity in .excess of the money value of his time, then (except in case of a claim consequent on the death of the assured or loss of the sight of both eyes or the loss of two entire limbs), this corporation shall be liable for only such proportion of this insurance for weekly indemnity, fixed indemnity or otherwise, as such money value of his time shall bear to the aggregate of the weekly indemnity of the entire insurance so held by him.” Plaintiff, while traveling as a passenger upon a public conveyance, sustained an accidental injury through which he suffered the loss of an arm, being at the time the holder of a policy in another company similar in terms, except as to clause M. Held, that he was entitled to recover the sum of $10,000 under clauses O and G without regard to the value of his time, and that clause M had no application to the case, but applied only to cases where weekly indemnity, “fixed or otherwise,” become payable under clause E or F.</p> <p>2. Contracts—Construction—Inconsistent Clauses.</p> <p>It is a settled rule of construction that, if two clauses of a contract are repugnant and cannot stand together, the first will stand and the last be rejected, and especially should the rule be applied where the later provision, if given effect, would in certain contingencies completely alter the principal terms of the agreement which has previously been clearly set out.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, § 744.]</p> <p>3. Same—Provisos.</p> <p>The ordinary office of an exception or proviso in a contract or law is to take special cases out of a general class or to guard against a misinterpretation, and where the exception is of something which would not without it have been included the exception must be regarded as having been introduced merely out of excess of caution, and has no important bearing on the construction of the provision in which it is found. In such case it will not operate to include in the general class other matters of the same class as those excepted.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent. Dig. Contracts, § 765.]</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Oregon.</p> <p>See 133 Fed.'953.</p> <p>This suit, which was one in equity, was brought to obtain a decree canceling a patent theretofore issued by the government to the Oregon & California Railroad Company, of certain lands within the primary limits of the grant made by Congress on the 25th day of July, 1866, by its act entitled: “An act granting lands to aid in the construction of a railroad and telegraph line from the Central 'Pacific Railroad in California, to Portland, in Oregon.” 14 Stat. 239, c. 242. The cause was submitted to the court below upon an agreed statement of facts, and, having resulted in a judgment for the defendant to the suit, is brought here for review by the government.</p> <p>The stipulation of the parties is as follows:</p> <p>“It is stipulated and agreed as follows:</p> <p>“Item 1. The act of Congress approved July 25, 1866, entitled ‘An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad in California, to Portland, in Oregon,’ as printed in volume 14 of the United States Statutes at Large, on pages 239 and following, is admitted in evidence.</p> <p>“Item 2. The Oregon Central Railroad Company is a- corporation duly Incorporated and organized on April 22, 1867, by and in virtue of the laws of the state of Oregon.</p> <p>“Item 3. That the Legislature of the state of Oregon, by its joint resolution adopted October 20, 1868, duly designated the said Oregon Central Railroad Company as the company entitled to receive the lands granted in Oregon, and the benefits and privileges conferred by the act of Congress referred to in item 1 hereof; and prior to the year 1869 the said company duly became entitled to all the benefits, privileges, and grants in the state of Oregon, mentioned in or offered by the said act of Congress.</p> <p>“Item 4. The act of Congress approved June 25, 1868, entitled ‘an act to amend an act entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad, in California, to Portland, in Oregon,” ’ as printed in volume 15 of the United States Statutes at Large, on page 80, is admitted in evidence.</p> <p>“Item 5. The act of Congress approved April 10, 1869, entitled ‘An act to amend an act entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad, in California, to Portland, in Oregon,” approved July twenty-five, eighteen hundred and sixty-six,’ as printed in volume 16 of the United States Statutes at Large, on page 47, is admitted in evidence.</p> <p>“Item 6. That on or about July 1, 1869, the said Oregon Central Railroad Company duly filed in the Department of the Interior its assent to the act of Congress referred to in item 1 hereof.</p> <p>“Item 7. On October 29, 1869, the said Oregon Central Railroad Company filed in the office of the Secretary of the Interior, and on January 29, 1870, the Secretary of the Interior duly accepted and approved, a map of the definite location and survey of the first section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from Portland to a point at or near Jefferson, and comprised not less than 60 continuous miles from the northern terminus thereof.</p> <p>“Item 8. On March 26, 1870, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on March 29, 1870, duly accepted and approved, maps of the definite location and survey of the second section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said point at or near Jefferson, to a point on the south line of township 27 south, range 6 west, Willamette meridian, and comprised not less than 120 continuous miles of railroad from Jefferson; on January 7, 1871, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on March 2, 1871, duly accepted and approved, a map of the definite location and survey of the third section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said point on the south line of township 27 south, range 6 west, to a point in section 30, in township 30 south, range 5 west; on April 6, 1882, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on April 8, 1882, duly accepted and approved, an amended map of the definite location and survey of the said third section of railroad, which amended line of railroad extended from station 1,154 in section 28, township 29 south, range 5 west, to station 1,320+50, in section 6, township 30 south, range 5 west; on April 6, 1882, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on April 8, 1882, duly accepted and approved, a map of the definite location and survey of the fourth section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said station 1,320+50 in section 6, township 30 south, range 5 west, to station 2,376+50 in township 31 south, range 7 west; on August 24, 1882, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on September 7, 1882, duly accepted and approved, a map of the definite location and survey of the fifth section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said station 2,376+50 in township 31 south, range 7 west, to the north line of section 33, township '34 south, range 6 west; on June 6, 18S3, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on that day duly accepted and approved, a map of the definite location and survey of the sixth section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said north line of section 33, township 34 south, range 6 west, to the east line of section 21, township 36 south, range 3 west; on July 3, 1883, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on July 6, 1883, duly accepted and approved, a map of the definite location and survey of the seventh section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said east line of section 21, township 36 south, range 3 west, to the south line of section 32, township 37 south, range 1 west; on September 4, 1883, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on that day duly accepted and approved, a map of the definite location and survey of the eighth section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the south line of section 32, township 37 south, range 1 west, to the east line of section 25, township 39 south, range 1 west; on August 1, 1883, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on that day duly accepted and approved, a map of the definite location and survey of the ninth section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said point on the east line of section 25, township 39 south, range 1 east, to the north line of section 30, township 40 south, range 2 east; and on August 18, 1884, the defendant filed in the office of the Secretary of the Interior, and the Secretary of the Interior on that day duly accepted and approved, a map of the definite location and survey of the tenth. section of the railroad in Oregon provided for by the said act of July 25, 1866, which section of railroad extended from the said point on the north line of section 30, township 40 south, range 2 east, to the southern line of the state of Oregon, in section 13, township 41 south, range 1 east</p> <p>“Item 9. The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, withdrew all odd-numbered sections of land within 30 miles on each side of the line of railroad shown on the maps set forth and described in item 8 hereof, from sale or location, preemption or homestead entry, on the following dates: Opposite, and coterminous with, the said first section of railroad, on January 31, 1870; opposite, and coterminous with, the said second section of railroad, on April 7, 1870; opposite, and coterminous with, the said third section of railroad, on March 31, 1871; opposite, and coterminous with, the said amended section of railroad, on July 5, 1883; opposite, and coterminous with, the said fourth section of railroad, on July 5, 1883; opposite, and coterminous with, the said fifth section of railroad, on July 5, 1883; opposite, and coterminous with, the said sixth section of railroad, on July 5, 1883; .opposite, and coterminous with, the said seventh section of railroad, on September 3, 1883; opposite, and coterminous with, the said eighth section of railroad, on October 27, 1883; opposite, and coterminous with, the said ninth section of railroad, on October 27, 1883; and opposite, and coterminous with, the said tenth section of railroad, on December 19, 1884. And the said withdrawals by the commissioner have, each and all, remained in full force and effect from the date thereof continuously, to and including the present time, except in so far as, if at all, they have been affected by an order by the Secretary of the Interior, made on August 15, 1887, declaring said withdrawals revoked as to the odd-numbered sections within the indemnity limits of the grant made by the said act of July 25, 1866.</p> <p>“Item 10. The entire railroad contemplated and provided for by the said act of July 25, 1866, along the line shown on the maps set foijth and described in item 8 hereof, was constructed in several sections and fully equipped in all respects as required by the said act of July 25. 1866, by the said Oregon Central Railroad Company and this defendant; and commissioners, duly appointed by the President of the United States for that purpose, duly examined the said railroad as completed and equipped in the several sections aforesaid, and duly reported to the President of the United States, under oath, that each of said sections of railroad had been completed and equipped in all respects as required by the said act of Congress, and that the same was and were ready for the service contemplated by the said act, which reports were duly accepted and approved by the «President of the United States. The said reports were so made, accepted, and approved, on the following dates: The first 20 miles, commencing at Portland, report made on December 31, 1869, accepted and approved on January 29, 1870; the second 20 miles, report made on September 28, 1870, accepted and approved on February 28, 1871; third 20 miles and fourth 20 miles, report made on December 10, 1870, accepted and approved on February 28, 1871; fifth 20 miles, report made on August 11, (1871), accepted and approved on March 11, 1872; sixth 20 miles, report made on January 13, 1872, accepted and approved on March 11, 1872; seventh, eighth, and ninth sections, including the last 78 miles of the said railroad from Portland to Roseburg, report made on July 10, 1878, accepted and approved July 11, 1878; from Roseburg to the south boundary line of Oregon, in several sections, reports made and approved as the railroad was completed and examined in sections, during the years 1878 to 1899.</p> <p>“Item 11. The E. % of S. W. % and W. % of S. E. % of section 21, township 1 south, range 3 east, Willamette meridian, are parts of an odd-numbered section of unoffered land within the primary limits of the grant made by the said aet of July 25, 1866, and are opposite and coterminous with that section of the defendant’s railroad, the map of definite location and survey of which was filed with the Secretary of the Interior on October 29, 1869, and approved by the Secretary of the Interior on January 29, 1870. (a) On March 3, 1865, one Michael Kelley filed his homestead claim No. 256, in the proper land office of the United States, for the said land, and on November 21, 1867, he (the said Michael Kelley) filed in the same land office his relinquishment unto the United States of the land and homestead claim, which homestead filing and the relinquishment thereof have ever since remained of record in the said land office; but final proof or payment was never tendered nor made under or in pursuance of the said filing, (b) On June 18, 1877, the proper officers of the United States issued a patent, in due form, purporting to convey the said land unto the defendant as part and portion of the lands granted by the said act of July 25, 1866, which patent was duly and properly issued, unless the homestead filing of Michael Kelley, hereinbefore set forth, excepted the said land from the lands granted by the said act of July 25, 1866. (c) On February 28, 1891, by deed bearing that date, the defendant sold and conveyed the N. E. % of S. W.% and N. W. % of S. E. % of the said section 21, unto Andrew D. Gibbs, for the sum of $267.20 in hand paid; on February 4, 1895, by deed bearing that date, the defendant sold and conveyed the S. E. % of S. W. % of the said section 21, unto Mrs. S. E. Sumner Kline, for the sum of $200 in hand paid; and on February 28, 1891, by deed bearing that date, the defendant sold and conveyed the S. W. % of the S. E. % of the said section 21, unto A. Walter Scott, for the sum of $200 in hand paid. That each of the said purchases and sales were made in good faith, for full value of the land, without notice to the said purchasers, or any of them, other than such presumptive notice as is given by law, of the existence of the said homestead filing, or record thereof.</p> <p>“Item 12. The grant made by the said act of July 25, 1866, is in course of adjustment by the Secretary of the Interior, and the proper officers of the United States, but has not'been finally adjusted; and, including all the lands described in the bill of complaint herein, the defendant has not received the full quantity of land promised in the grant by the said act of July 25, 1866.</p> <p>“Item 13. It is further agreed that this stipulation is, and shall always be deemed, conclusive evidence, for the purposes of this suit, of the truth of all the matters and things in it stipulated and agreed to be true as fully and effectually as if each and all of such matters and things were or had been conclusively proven by the introduction and the testimony of witnesses; but each party reserves the right to introduce further and additional testimony and evidence.</p> <p>“Dated and signed on October 6, 1902.</p> <p>“John H. Hall,</p> <p>“United States Attorney for Oregon. “Wm. D. Fenton ánd “Wm. Singer, Jr.,</p> <p>“Attorneys for the Defendant “H. M. Hoyt,</p> <p>“Acting U. S. Attorney General.”</p>

<p>In Error to the District Court of the United States for the Northern District of California.</p> <p>The plaintiff in error (defendant in the court below) was indicted under section 5480 of the Revised Statutes, as amended March 2, 1889 (25 Stat 873, c. 393, § 1 [U. S. Comp. St 1901, p. 3696]). This section, as far as applicable to this case, reads as follows: .“If any person having devised or intending to devise any scheme or artifice to defraud * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the postoffiee establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter, packet, writing, circular, pamphlet, or advertisement in any postoffiee, branch postoffiee, or street or hotel letter-box of the United States, to be sent or delivered by the said postoffiee establishment, or shall take or receive any such therefrom, such person so misusing the postoffiee establishment shall, upon conviction, be punishable by a fine of not more than five hundred dollars and by imprisonment for not more than eighteen months, or by both such punishments, at the discretion of the court. The indictment, information, or complaint may severally charge offenses to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the postoffiee establishment enters as an instrument into such fraudulent scheme and device.” The indictment, as found by the grand jury, charged the plaintiff in error with three separate offenses, contained in three separate counts. The plaintiff in error moved to quash the indictment and each count thereof, among other things, upon the ground that the alleged offense charged in the first count was consummated March 29, 1901, that the alleged offense charged in the second count was completed March 24, 1903, and that the alleged offense charged in the third count was consummated October 7, 1903, and that no two of said three alleged offenses were consummated in the same six calendar months, and on the ground of misjoinder of counts. The court upon the hearing of this motion ordered “that the motion to quash the indictment herein will be granted unless the government elects to proceed upon one count of the indictment.” To this order the plaintiff in error duly excepted. Thereupon the United States Attorney elected to proceed upon the third count, and entered a nolle prosequi as to the first and second counts.</p> <p>The third count of the indictment in substance charges that on the 1st day of January, 1901, at the city and county of San Francisco, in the state and Northern district of California, defendant had then and there devised a scheme and artifice to defraud one Frank T. Terry, of Milwaukee, Wis., Dix W. Smith, and John Bull, Jr., of Elmira, N. Y., composing the firm of Smith & Bull, and divers other persons; that this scheme to defraud was to be carried on and effected with the parties named, and with other persons whose names are unknown, by means of the post-office establishment of the United States, by inciting those persons to open a correspondence through the post-office establishment with the said George W. Rumble; that this use and misuse of the post-office establishment of the United States was a part of said scheme and artifice to defraud.</p> <p>The scheme which is charged against the defendant in the indictment is substantially this: That the defendant devised and intended that he would write and send through the post-office establishment of the United States certain letters to the said Frank T. Terry, Dix W. Smith, John Bull, Jr., and divers other persons whose names are unknown, representing himself to be the secretary and general manager of the Sunset Mining Company, a corporation organized and incorporated under the laws of the state of California, and having a capital stock of $10,000,000, divided into 10,000,000 shares of the par value of $1 per share; that the Sunset Mining Company did a general mining and mine promoting business and owned 12 gold mines in the counties of Butte, Shasta, and Siskiyou, Cal.; that as money makers these mines were rated among the best in the state of California, not excepting any mother lode property; that some of these mines were the “Amo.” the “Amo Hydraulic,” and the “Old Glory”; that, in addition to these mines, the Sunset Mining Company owned a gold dredge, styled “Modern Electric Dredge,” which was being operated by the Sunset Mining Company in Butte county; that there had been found by the Sunset Mining Company in one portion of the alleged property known as the “Amo” mines, in addition to the free gold, thousands of tons of black, gold-bearing sand which assayed $500 to $800 per ton; that the defendant, Rumble, further devised that he should represent in his letters to these parties that all of the mining properties before mentioned were being actively and successfully worked by the said Sunset Mining Company, and were producing large quantities of gold and other precious metals; that by reason of the operations of these alleged mining properties by the Sunset Mining Company the company each month received large profits; that the net proceeds from such operations were so large that the Sunset Mining Company was able to and did declare and pay out of the surplus of said net proceeds a monthly cash dividend of 2 per cent, upon the par value of each share of the issued capital stock of the said Sunset Mining Company; that the defendant, Rumble, devised that he should falsely represent that if the said Frank T. Terry, the said Dix W. Smith, and John Bull, Jr., of the firm of Smith & Bull, and divers other persons, would purchase shares of the capital stock of the Sunset Mining Company, they, and each of them, would receive each and every month thereafter, out of the net proceeds derived from the working of the various alleged mining properties of the Sunset ¡Mining Company, a dividend of 2 per cent, upon the par value of each of the shares so purchased by them, or any of them; that the defendant, Rumble, devised and intended that he should falsely and fraudulently represent to the above-named persons, and each of them, that the Sunset Mining Company had paid a monthly dividend of 2 per cent, every month since the month of February, 1894, out of the net proceeds of mining operations conducted by it; .that during the year 1902 the gross proceeds derived by the Sunset Mining Company from its operation of the mine known as the “Old Glory” amounted to $02,784.50, while the expenses of such operations during the same year amounted to only $14,400.56; that the dividends paid during the said year to stockholders of the Sunset Mining Company out of the net proceeds derived from the mining operations conducted by said company in the “Old Glory” mine during that year amounted to $22,812.56; that, by reason of the proceeds derived from the mining operations in the “Old Glory” mine during the year 1902, the Sunset Mining Company obtained a surplus over and above the operating expenses and dividends of $25,571.49, and that the proceeds from the sale of treasury stock, together with -the aforesaid surplus from the “Old Glory” mine, were used to acquire and equip other properties; that the defendant devised that he should falsely and fraudulently represent the value of the “Old Glory” mine to be $500,000, and that the value of the other properties belonging to the Sunset Mining Company was $500,000, and that the resources of the Sunset Mining Company, over and above all liabilities, on the 2d day of February, 1903, were $89S,250.00; that the defendant, Rumble, made each of the representations aforesaid, to the parties named, by means of the post-office establishment of the United States of America, for the purpose of inducing them, and each of them, to purchase shares of the capital stock of the Sunset Mining Company; that the representations were false and fraudulent, and that the defendant at all the times mentioned in the indictment intended to convert to his own use any and all moneys which these* persons might pay to the Sunset Mining Company in exchange for shares of the capital stock of said company and thereby defraud them; that at the time of opening the communication and the correspondence with these parties through the post-office establishment of the United States, and at the time of devising the scheme and artifice to defraud as aforesaid, the defendant, Rumble, well knew that all of the representations contained íd the said letters were false and fraudulent; that in furtherance of the sriae lie and artifice to defraud, to be effected as alleged In the Indictment, the defendant did on the 7th day of October, 1903, at Oroville, in the state and Northern district of California, willfully, unlawfully, knowingly, and feloniously place and cause to be placed and deposited in the said post-office establishment of the United States as aforesaid, to be sent and delivered by said post-office establishment of the United States, a certain letter inclosed In a sealed envelope and stamped with a postage stamp of the United States, and addressed to Smith & Bull, Realty Building, Elmira, New York.</p> <p>This letter is in the words and figures as follows, to wit:</p> <p>“First Incorporated 1889. Chronicle Building, Suite 57 and 58.</p> <p>[Pictorial Representation of</p> <p>Great Seal of California.]</p> <p>“General Gold Mining.</p> <p>“Operating and Promoting Both in United States and Europe.</p> <p>“Mines: Butte, Shasta and Siskiyou Counties, California.</p> <p>“Have Paid Monthly Dividends Consecutively Since February, 1894.</p> <p>“Officers:</p> <p>Ira A. Pease, President and Superintendent of Mines.</p> <p>G. W. Rumble, General Manager and Secretary.</p> <p>Frank Rogers, Consulting Director, Retired Miner.</p> <p>Henry Armstrong, Consulting Director, Mining Engineer.,</p> <p>Haden Whitney, Banker, Chestnut and 13th Sts., Philadelphia, 'Pa.</p> <p>“Sunset Mining Co. of California.</p> <p>“California, U. S. A., Oct. 7, 1903.</p> <p>“Wednesday,</p> <p>“Oroville,</p> <p>“Old Glory Mine.</p> <p>“Messrs. Smith & Bull—Gentlemen: Referring to yours sept 28, which has reached me here, the mine is not working owing to labor troubles which I think was brought about by Mr. Aubury. who has done & is doing everything his ingenuity can devise to injure both yours truly & the S. M. Co. I have complained of him many times to the governer who being a politician of the same creed, pays no attention to the matter. The Oct 1. dividends had to be skipped the first in 9 years. I am spending most of my time at the mine when I can get time on my return to S. F. I think I can satisfy you on all points.</p> <p>“Truly yours, , G. W. Rumble.”</p> <p>To the third count the plaintiff in error interposed a demurrer upon the ground that said count does not state facts sufficient to constitute an offense under the statute, in this: that it does not set forth any letter deposited or mailed by the defendant through said post-office establishment containing any of the representations alleged in said count, and that said count fails to show that the defendant deposited in the post-office establishment of the United States any letter containing any of said alleged representations.</p> <p>This demurrer was overruled by the court, and the plaintiff in error excepted. He then entered his plea of not guilty, and thereafter was tried before a jury, and found guilty of the offense as charged in the third count. The plaintiff in error moved that the judgment be arrested upon substantially the same grounds as set forth in the demurrer, which motion was overruled, and exception taken thereto.</p> <p>There are divers assignments of error committed by the court in the admission of evidence, and numerous objections to the charge of the court and in its refusal to give instructions requested by the plaintiff in error.</p>

<p>1. Statutes—Construction—Rules Governing.</p> <p>In construing a statute of the United States, the courts should search out and follow the true intent of Congress, and adopt the sense of the words which harmonizes best with the context and promotes in the fullest manner the apparent policy and object of the legislation.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 259, 262.]</p> <p>2. Same—Conflicting Provisions.</p> <p>When one section of a statute treats specially and solely of a matter, that section prevails in reference to that matter over other sections in which only incidental reference is made thereto.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, § 284.]</p> <p>3. Same.</p> <p>When words occur in a statute which can be given no effect consistent with the plain intent of the statute, they must be rejected as without meaning.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, § 266.]</p> <p>4. Same.</p> <p>It is a well-settled rule of construction that, where there is an Irreconcilable conflict between different parts of the same act, the last in the order of arrangement will control.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, § 284.]</p> <p>5. Same—Retrospective Construction.</p> <p>A statute is never to be construed retrospectively, unless the language of the act shall render such construction indispensable.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, § 344.]</p> <p>6. Prisons—Allowance eor Good Time—Federal Statute.</p> <p>Act June 21, 1902, c. 1140, 32 Stat. 397 [U. S. Comp. St. Supp. 1905, p. 731] provides, in section 1, that “each prisoner who has been, or shall hereafter be, convicted of any offense against the laws of the United States, and is confined” in execution of the judgment, shall be entitled to an allowance of good time as therein specified. Section 3 (32 Stat. 398 [ U. S. Comp. St. Supp. 1905, p. 731]) expressly provides that the act “shall apply only to sentences imposed by courts subsequent to the time when this act takes effect,” and that prisoners sentenced prior to such time shall be entitled to the commutation theretofore allowed under existing laws. Held, that the language of the first section was very probably intended to make the act applicable to cases of prisoners convicted before it became operative, but not sentenced until afterward; but that, in any event, the third section, being the later and also the more specific, must govern, and the act did not apply to prisoners sentenced before it took effect.</p>

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

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

This cause comes here on writ of error to review a judgment entered upon a verdict of a jury in the United States Circuit Court for the Southern District of New York, in favor of the defendant in error (plaintiff below), for the sum of $5,119.51, damages and costs.

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>See 139 Fed. 684.</p>

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.</p> <p>The record shows that on the 15th of May, 1903, the appellants R. M. Henningsen and Edward W. Clive, then being copartners, entered into a contract in writing with G. S. Bingham, major and quartermaster, United States army, representing the government of the United States, for the construction of certain buildings at Fort Lawton, in the state of Washington, for the faithful performance of which contract on the part of Henningsen and Clive they, as principals, and the United States Fidelity & Guaranty Company of Baltimore, Md., as surety, executed a bond to the United States conditioned that Henningsen and Clive would in all respects duly and fully perform all of their agreements and obligations specified in the contract, and would promptly make -full payment to all persons supplying labor or materials in the prosecution of the work therein provided for; which bond was accepted by the government, upon which acceptance the contract was awarded to Henningsen and Clive, and its performance entered upon by them. Subsequently, and before the making by Henningsen of the assignment to the defendant Spencer, afterwards mentioned, Clive withdrew from participation in the performance of the contract under an agreement between himself and Henningsen. The contract, in so far as concerned the completion of the buildings, was fully performed, but the contractors failed to pay in full all persons supplying labor and materials in the prosecution of the work, and failed and refused to pay just and lawful claims for such labor and materials amounting, in the aggregate, to $15,409.04, and in that respect, and to that extent made default in the terms, conditions, and obligations of the bond. After the contractors had so defaulted, the surety commenced suit in the court below against Henningsen, Clive, and each of the persons to whom they were indebted for such labor and materials, stating in its bill its liability upon the bond to such creditors to the full extent of the penalty of the bond, to wit, the sum of $11,625, which suit resulted in a decree adjudging the surety company indebted to such creditors of Henningsen and Clive in the full sum of $11,625, and directing payment thereof to the creditors pro rata, and decreeing that upon making such payment the liability of the surety on the bond be discharged.</p> <p>Subsequent to the execution of the bond and contract, and after Clive, under his agreement with Henningsen, had ceased his connection with the performance of the contract, and after the latter had been in large part executed. Henningsen executed to the defendant Spencer, in trust for the defendant National Bank of Commerce, of Seattle, an assignment of the balance of the money coming to him under the contract, and directing the quartermaster to pay over to Spencer all such moneys. The purpose of the assignment was to secure the repayment of a loan made by the bank to Henningsen on or about October 10, 1903, of $3,500, and subsequent loans of $1,000 and $370. All of the money so loaned by the bank to Henningsen was paid by it directly to him, who disbursed it without any supervision or control upon the part of the bank or of Spencer.</p> <p>At the time of the commencement of the present suit by the surety, there was in the hands of the quartermaster, representing the United States, the sum of $13,066, earned by Henningsen under the contract, which sum of money the quartermaster was about to pay over to Spencer in pursuance of the aforesaid assignment and order. The object of this suit was, in part, to prevent such payment, and to obtain a decree that such assignment and order were invalid. Upon the filing of the original bill in the court below, Henningsen, the bank, and Spencer were temporarily enjoined from receiving the money from the quartermaster, after which a written stipulation was entered into between the complainant surety, Henningsen, Spencer, and the bank, pursuant to the terms of which $8,024.21 of the $13,066 were paid to creditors of Henningsen, who had performed labor and furnished materials in the performance of the contract, and the balance, to wit, $5,041.79, was applied in conditional payment and satisfaction of the indebtedness of Henningsen to the bank, which amounted to $5,041.79; the stipulation further providing that, in the event it should be finally determined by appropriate litigation that the complainant surety was entitled to receive the last-mentioned amount, the bank would pay the same to it. The liability and loss of the surety, as finally established and decreed by the court below, in the suit hereinbefore referred to, having exceeded the said sum of $5,041.79, the court below held that the surety company was equitably entitled to receive the said; sum of $5,041.79, and accordingly gave judgment against the bank for that sum, with costs. It does not appear that at the time that judgment was entered the surety had, in fact, paid to the laborers and materialmen the full penalty of its bond, as asked for and decreed in the suit brought by it against them and others; but it appears from the certificate of the clerk of the court below, filed in this court, that the complainant has since done so; so that the judgment of the court below is the judgment to which theappellee is entitled, if its equity to the balance of the fund is superior to that of the bank.</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>March 18, 1899, the New York Life Insurance Company Issued and delivered to Henry C. Lefler two policies of insurance upon his. life. Each policy was for $2,500, designated Sarah E. Lefler as the beneficiary, and provided for the payment by the insured of an annual premium of $115.10 on the 18th day of March in each year, until 20 premiums should be paid. Each contained what is called an automatic nonforfeiture provision, under which, notwithstanding a failure to duly pay the second premium, the first having been duly paid, the insurance was to continue automatically for two months beyond the first year, and, notwithstanding a failure to duly pay the third premium, the first and second having been duly paid, the insurance was to continue automatically for two years and two months beyond the second year, and so on, according to a table which was set forth. The premium for the first year was paid, one half in cash when the policies were issued and the other half six months later, according to the terms of two notes given therefor when the policies were issued. One half of the premium for the second year was paid when due and the other half was covered by two notes executed by the insured at that time and similar to those before given. Each policy provided: “If any premium is not paid on or before due, or within the month of grace, the liability shall be only as hereinbefore provided for such case”; the concluding words having reference to the automatic nonforfeiture provision. The words “or within the month of grace” were explained by the following: “A grace of one month during which the policy remains in full force will be allowed in payment of all premiums except the first, subject to an interest charge at the rate of five per cent, per annum.” The notes given for the remaining half of the second premium were as follows:</p> <p>“March 18, 1900.</p> <p>“Without grace, six months after date I promise to pay to the order of the New York Life' Insurance Company, 57.55 Dollars at First National Bank, Omaha, Neb. Value received, with interest at the rate of five per cent per annum. This note is given in part payment of the premium due March 18, 1900, on the above policy, with the understanding that all claims to further insurance, and all benefits whatever, which full payment in cash of said premium would have secured, shall become immediately void and forfeited to the New York Life Insurance Company, if this note is not paid at maturity, except as otherwise provided in the policy itself. Henry C. Lefler.”</p> <p>These notes were not paid or offered to be paid on or before September 18, 1900, which was six months after their date; but three days later, September 21st, the insured tendered payment thereof and the tender was rejected because not made in time. About that time the company wrote to the insured saying: “The notes which you gave in part settlement of premiums due March 18th, 1900, under policies Nos. 931,817-18 has been returned by our branch office unpaid, and the policies are now canceled in accordance with the agreement under which the notes were accepted. As the matter now stands, all claims to further insurance and all benefits whatever which a full payment in cash would have secured to you, have now become void and forfeited, except as otherwise provided in the policies or by statute.” November 1, 1902, the insured died. In an action at law on the policies, the beneficiary in her petition set forth the facts just stated, and, in addition to other matters not here material, alleged that at the time of the issuance and delivery of the policies the company’s agent at Omaha, Neb., through whom the policies were issued and delivered, told the insured that the company would permit the premium to be paid semiannually; that this could be accomplished by the insured paying one half of each premium in cash when due, and then giving notes like that before set forth for the other half; that this arrangement would give him the same privileges and rights which he would have obtained if the policies themselves provided for the payment of the premiums semiannually; and that the company would so construe the policies and notes. And it was alleged that the insured, relying upon these statements of the agent, did not read the notes before he signed them. A demurrer to the petition was sustained, and, plaintiff declining to amend, judgment was rendered for defendant.</p>

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

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>This was an action instituted by Clagett, plaintiff in error, to recover on three bonds, each for $1,000 issued by the township of Duluth, defendant in error. The bonds recited on their face that they were issued “for the purpose of constructing and -improving roads and bridges of said town.” The town defended the. action on the ground that it had no authority to issue bonds for the purpose specified, and that by reason of such want of authority it had been enjoined by a decree of the district court of St. Louis county, Minn., in a suit instituted by a taxpayer against it, from paying the same. The trial court sustained the defense, and the case is brought here for review.</p>

The defendant in error, John Brynteson, was the plaintiff below (hereinafter referred to as plaintiff), in an action against the Ophir Consolidated Mines Company and J. O. Buckley, plaintiffs in error (hereinafter referred to as defendants), to recover the purchase price of stock in the defendant corporation and interest thereon, pursuant to express contract of “sale or return.” Upon the trial before a jury, verdict was entered against the defendants, by direction of the…

<p>In Error to the Circuit Court of the United States for the District of Indiana.</p> <p>Action at law to recover damages for personal injury to the ward, Ada M. Lawson.</p> <p>It appears that on May 14, 1903, the order of Royal Neighbors, an auxiliary to the Modern Woodmen, and composed of women, was holding a national convention in the city of Indianapolis, the ward of the defendant in error being in attendance. Some time prior to the convention a committee of the society solicited a donation from the plaintiff in error. The committee was informed that the company could not make a donation, but would arrange for three of its street cars to be placed at the disposal of the committee for the entertainment of their guests by trolley ride. The committee thereupon caused an invitation to be issued to the assembled delegates, and a large number of the delegates availed themselves of the invitation, and boarded the cars for the purpose of an excursion through the principal parts of the city. During the progress of the ride a collision occurred between two of the cars in which Mrs. Lawson was injured. It further appears that the three cars were in charge of the regular conductors and motormen employed by the company, and the jury found that the company, and not the delegates being carried on the cars, was in control of these conductors and motormen. Defendant in error recovered a verdict for $8,000, upon which judgment was entered June 17, 1905, and to review such judgment this writ of error is brought.</p> <p>At the beginning of the argument defendant in error by petition suggested the death of-his ward, Mrs. Lawson, after judgment and writ of error, and that he had been duly appointed administrator of her estate; and asked to be substituted in his capacity as such administrator for himself in his capacity as guardian. His motion was granted by the court.</p>

<p>1. Trial—Province of Jury.</p> <p>Where a case fairly depends upon the effect or weight of the testimony, it is one for the consideration and determination of the jury.</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 332-343.]</p> <p>2. Master and Servant—Wrongful Discharge—Question for Jury.</p> <p>To carry the question of the discharge of a plaintiff from his employment by defendant to the jury, it is not necessary that plaintiff produce evidence of an express and formal discharge, but is sufficient if he proves facts from which an intent to discharge him may reasonably be inferred.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 57.]</p> <p>3. Same—Action for Breach of Contract—Damages Recoverable.</p> <p>An employe wrongfully discharged may, at his election, treat the contract of employment as absolutely and finally broken and recover the stipulated compensation for its full term, less what he might have earned and may earn in the future during such term.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 50-53.]</p> <p>4. Evidence—Opinion Evidence—Physical Condition of 'Person.</p> <p>In an action for breach of a contract of employment by the wrongful discharge of plaintiff, his own testimony that at the time of his discharge his health was such that he was able to perform the services required by his contract is competent; the weight to be given his opinion being a matter for the jury in connection with the other evidence.</p>

<p>1. Damages—Breach op Contract—Provision por Liquidated Damages.</p> <p>A provision of a building contract, authorizing the owner to deduct from any sums due the contractor a stipulated sum as liquidated damages, and not as a penalty, for each day’s delay in the completion of the work beyond a date fixed, is valid, and conclusively furnishes the measure of the owner’s damages on account of such delay.</p> <p>2. Contracts—Modification—Extension of Time.</p> <p>A provision of a building contract, for the payment by the contractor of a certain sum as liquidated damages for each day the completion of the work was delayed beyond the time fixed, was not waived by the failure of the owner to answer a letter written by the contractor explaining a cause of delay which would prevent him from completing the work within the time agreed, where he did not ask any extension or modification of the contract.</p> <p>3. Same.</p> <p>Where a building contract provided for the issuance by the architect of certificates for the work done as it progressed, and for payments to the contractor thereon, and also authorized the owner to “deduct and retain, out of the moneys which may be due or become due,” to the contractor, liquidated damages for each day’s delay in the completion of the work, except where work was suspended by direction of the architect, the issuance of certificates by the architect for work done after the time fixed for its completion did not involve an admission that the delay was by his direction or consent; nor did the payment by the owner, after such time, of orders given to subcontractors, in itself, constitute a waiver of the provision for damages.</p> <p>Acheson, Circuit Judge, dissenting.</p>

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

<p>1. Shipping—Lawful Cargo under West Indian Charter—Asphalt.</p> <p>Asphalt is “lawful cargo,” under a charter which includes the West Indies ; and it is the duty of the owner, in order to render the vessel seaworthy, to fit her for the proper carriage of such cargo by lining, where her construction is such as to require it, and in this respect there is no difference between a time charter and a voyage charter.</p> <p>2. Same—Seaworthiness—Lining for Asphalt Cargo.</p> <p>A vessel under a time charter for a voyage to South American and West Indian ports and return, which provided that she should be in every way fitted for the service and employed in carrying lawful merchandise, was required to load a cargo of asphalt for the return voyage. The vessel was fitted with permanent battens, with spaces between them, and not being lined a large quantity of asphalt was forced between and behind the battens and they had to be taken off in order to remove it. The owners refusing to bear this expense, the work was done by the charterer. Held, that such work was not within the duty of the charterer to clean the vessel, but was made necessary by her unseaworthiness for the carriage of the cargo, and that the charterer was entitled to an offset against the charter hire for the expense of the removal, and the time lost.</p> <p>[Ed. Note.—For eases in point, see vol. 44, Cent. Dig. Shipping, § 164.]</p>

On September 18, 1903, about 2:30 a. m., the steam ferryboat City of Portsmouth, on a regular trip from Portsmouth to Norfolk, collided with barge No. 21, which, together with barge No. 17, was being towed by the steam tug-Apollo. Both the barges and the steam tug belonged to the appellant, the Merchants & Miners Transportation Company.

<p>On Petition for Review.</p>

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

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

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, entered upon the verdict of a jury in favor of defendant in error, who was defendant below. The action was brought to recover for plaintiff’s services in instituting and carrying on negotiations between the defendant and the Turkish government, looking to the purchase of a cruiser or war vessel from the defendant

This cause comes here upon appeal from an Interlocutory decree of the United States Circuit Court for the Northern District of New York, on final hearing, adjudicating the validity, and infringement by defendant, of claims one and two of complainant’s patent No. 417,451, .granted to Edmund Victory, December 17, 1889, for a pulp screening machine.

<p>L 'Patents—Suit fob Infbingement—Extent of Use of Device.</p> <p>That the device of a patent was publicly used and exhibited in actual use for two years is sufficient to sustain a suit for infringement without a showing that it has been in constant use since that time.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent Dig. Patents, § 34.]</p> <p>2. Same—Validity—Presumption From Grant.</p> <p>Due consideration must always be given by the court or jury, as the case may be, to the presumption of 'validity arising from the grant of a patent and the real question in all cases is whether or not the evidence in the case is sufficient to overcome such presumption.</p> <p>[Ed. Note.—For cases in point see vol. 38, Cent. Dig. Patents, §§ 162-165.]</p> <p>3. Same—Construction of Claims—Generic Claims.</p> <p>A pioneer inventor is entitled to a generic claim, and may also include specific claims in the same patent, and in such ease the broad claims are not, prima facie, to be restricted by reading into them the specific devices claimed in the narrower ones.</p> <p>[Ed. Note.—For eases in point, see vol. 38, Cent Dig. Patents, §248.]</p> <p>4. Same—Validity and Infringement—Regulator fob Mechanical Musical Instruments.</p> <p>The Tremaine & Pain patent No. 552,796, for improvements in mechanical musical instruments using perforated music sheets, by which two such sheets in two separate organs or a bank organ, are made to move in unison, so that the instruments will play without variation in time, is valid, and embodies an invention of such novelty and importance as to constitute a distinct step in the progress of the art, and to entitle its claims to a broad and liberal construction. As so construed it is infringed by the device of the Fleming patent, No. 659,442, which, although differing in details, embodies and appropriates the essential principles of the earlier invention.</p>

<p>1. Patents—Infringement—Gas Burning Stoves.</p> <p>The Howard patent, No. 626,997, for improvements in heating stoves designed to secure the more perfect combustion of gases by means for introducing heated air above the fuel, was not anticipated and discloses invention; the construction shown being more effective to secure the result sought than any in the prior art. Also held infringed by a construction which is only colorably different from that of the patent. ■</p> <p>2. Same—Colorable Alterations.</p> <p>Neither the joinder of two elements of a patented combination into one integral part, accomplishing the purpose of both and no more, nor the separation of one integral part into two, together doing precisely or substantially what was done by the single element, will evade a charge of infringement.</p> <p>8. Same.</p> <p>The impairment of the function of a part of a patented structure, by omitting a portion, will not avoid infringement, nor will a mere change of form, when the principle of operation is preserved and appropriated.</p>

See 131 Fed. 884. This case comes here on appeal by defendants from a final decree of the United States Circuit Court for the Eastern District of New York in favor of complainant against the defendant Sawyer-Boss Manufacturing Company in the sum of $5,889.02, for profits realized by defendant from the manufacture of a hand stamp which infringed complainant’s patent, No. 462,065, granted October 27, 1901, to Willard E. Sawyer, and against the defendant Holihan for $1,172.63,…

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

<p>1. Courts—Previous Decisions as Precedents.</p> <p>The decision of a Circuit Court of Appeals sustaining the validity of a patent, especially where such court has had the same or related patents before it in a number of cases, should be followed by a Circuit Court in another circuit where there are no conflicting decisions.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, §§ 327, 32S.]</p> <p>2. Patents—Infringement—Traveling Contact for Electric Railways.</p> <p>The Van Depoele reissued patent, No. 11,872 (original No. 495,443), for a traveling contact for electric railways, held valid and infringed.</p> <p>3. Same—Injunction—Scope.</p> <p>An injunction against infringement of a patent should not be made so broad as to prevent the defendant from making and selling a device which it had added to that of the patent and designed to be used with it.</p>

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

<p>In Equity. On final hearing.</p> <p>Affirmed by Circuit Court of Appeals, 143 Fed. 985.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,867 (T. D. 25,857), which affirmed the assessment of duty by the collector of customs at the port of New York on importations by John Hunter under the tariff act of 1897.

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,352 (T. D. 24,494), affirming the assessment of duty by the collector of customs at the port of New York on merchandise imported under the tariff act of 1897. Note U. S. v. Boden (C. C.) 133 Fed. 839.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 5,943 (T. D. 26,090), affirming the assessment of duty by the collector of customs at the port of New York on importations under tariff act July 24, 1897, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626].</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,024 (T. D. 26,310), which affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by George Lueders & Co. This merchandise consisted of so-called muguet pomade, or lily of the valley pomade.

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings relate to a decision which sustained the protest of Llenry S. Beer against the assessment of duty by the collector of customs at the port of New York.

On Application for Review of Decisions of the Board of United States General Appraisers. In the decisions below the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York on importations by Harry Robinson.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The question involved is whether the importers’ protest sufficiently complied with the provisions of Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp.

<p>Courts—Jurisdiction oe Federal Courts—Diversity oe Citizenship.</p> <p>When the jurisdiction of a federal court depends upon diversity of citizenship alone, and there are more defendants than one, all must be liable to be sued in the particular suit, and the court is without jurisdiction. -when one defendant is a citizen of the same state with the plaintiff.</p> <p>[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Courts, § 855.</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

<p>Bankbuptcy—Landlord’s Lien—Pennsylvania Statute.</p> <p>Although Act Pa. 1836, §§ 83-85 (P. L. 777), provides that the goods and chattels on any demised premises liable to the distress of the landlord, which have been taken by virtue of an execution, shall be liable for the rent in arrears for one year at the time of such taking, the landlord has no lien which will be preserved in a court of bankruptcy, where the bankruptcy proceedings were instituted within four months after the issuing of the execution.</p>

<p>At Law. The plaintiff and defendant having rested, the testimony being all before the court, counsel for the defendant moved the court for a nonsuit, and that the court direct the jury to return a verdict for the defendant.</p>

This was an action in assumpsit to recover money paid upon a contract for the construction of a boat to be built for the plaintiff by the defendants. The contract between the parties was in writing and bore date of December 5, 1901. The defendant companies undertook to furnish all of the materials and construct and equip and deliver in New York June 1, 1902, one launch according to plans and specifications covering dimensions, fittings, equipment, and speed.

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

<p>Colusión—Schooner and Barge in Tow—Inefficient Lookout.</p> <p>Evidence considered, and held to establish fault on the part of a tug and her tow and a schooner for a collision in Nantucket Sound at night between the schooner and tow while on nearly parallel opposite courses—the tug in running too near the easterly side of the channel, unduly crowding the schooner, which was to the eastward and near shoal water, and in not sooner discovering the schooner’s lights; the tow in failing to keep a proper lookout or to change her wheel when collision was imminent; and the schooner in failing to see the lights on the tow, and negligently taking a course which brought her upon a bell buoy and made a further change of course necessary.</p>

<p>1. Customs and Usages—Custom Must be Uniform, Certain, Known, or Notorious—Pacts Held Insufficient to Establish.</p> <p>A custom must be uniform, certain, and known, or so notorious that a person of ordinary prudence, in the exercise of reasonable care, dealing-with its subject,’ would have been aware of it.</p> <p>Where the plaintiff’s witnesses testify that there was a custom of doing an act in a certain way and that they followed this custom, and: defendant’s witnesses testify that they performed the act at the same place during the same time in another way, and no witness contradicts 'the testimony of the litter or testifies that the alleged custom mentioned by the plaintiff’s witnesses was either uniform or universal, it is held that the evidence is insufficient to warrant-a finding by a jury that the alleged custom was uniform, and hence the question of its existence should not have been submitted to them.</p> <p>[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Customs and Usages, §§ 5, 23, 24.]</p> <p>2. Damages—Future 'Pain Must be Reasonably Certain to Authorize Recovery—Those Which May Result Are Not Recoverable.</p> <p>The liability for future damages for the wrongful infliction of a personal injury is strictly limited to compensation for such pain and other evil effects as are reasonably certain to result from it. Possible, even probable, future effects are too remote and speculative to form the basis of legal recovery.</p> <p>A charge that the plaintiff may recover damages for pain and suffering which may result from the injury in the future is erroneous.</p> <p>[Ed. Note.—For eases in point, see vol. 15, Cent. Dig. Damages, §§ 55-57, 552.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Insurance—Construction op Lite Policy—Date op Expiration by Lapse.</p> <p>An application for life insurance made in December requested that the annual premiums- should become due November 11th each year and gave the applicant’s age as 44. His forty-fourth birthday was the nearest on November 11th, but his forty-fifth was nearest counting from the date of the application or of the policy, which was issued on January 15th following. The first year’s premium was then paid in full but the next was made payable on the following November 11th, and was then paid and the succeeding ones on the same date each year. On each payment a receipt was given and accepted providing that the policy was thereby continued in force for one year from that date. The annual premiums on such a policy were each about $8 less when a person was insured at the age of 44, than when at the age of 45, and this policy was written at the lower rate. By its terms it was to lapse at once on the failure to pay any premium when due, but it contained a non-forfeiture clause by which in the event of a lapse the net reserve to its credit was to be applied to the purchase of paid up insurance in the same amount for such term as the sum would pay for. After paying three premiums the insured made default, and subsequently died. Whether or not the extended term insurance, applying to its purchase the sum credited to the policy by the company, was in force at the time of his death depended on whether the policy lapsed and the term commenced on November 11th, when the default occurred or on January 15th, three years after its date. Held, that it was the evident intention of the parties that the yearly terms of the policy should commence and end on November 11th each year, and that the lapse took effect on that date when the default occurred, the consideration to the insured for the shortening of the first year being the lower premium rate he secured by being accepted as of the age of 44.</p> <p>2. Same—Right to Credit by Dividends—Effect of Lapse.</p> <p>In January preceding the lapse of the policy the directors of the insurance company adopted a resolution appropriating a gross sum of money to the payment of dividends on all participating policies which should be “continued in force on their anniversaries” in that calendar year, and a certain part of such sum was apportioned to the policy of the insured. Held, that the anniversary of the policy was on the ensuing November 11th, and because of its lapse on that date it was not entitled under such resolution to participate in the dividend.</p> <p>3. Same—Settlement of Interest Charge Against Policy Holder—Impeachment.</p> <p>A settlement of an interest charge on a preceding premium loan made between an insured and the company at the time a premium was paid cannot be impeached or opened after the death of the insured, in the absence of any showing of fraud or mistake.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk, in Admiralty.</p> <p>For opinion below, see 135 Fed. 879.</p>

<p>Bankruptcy—Liquidation op Claim.</p> <p>Evidence considered, and held not to sustain tbe contention of a claimant that certain stocks owned by him were converted by the bankrupts, and his claim for the value of the stocks, which remained in the bankrupts’ hands, liquidated.</p>

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

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

<p>1. Bankruptcy—Review of Order of Referee—Jurisdiction of Court.</p> <p>Where, pending action by a district court on a petition to review an order of a referee, a preliminary order was made by consent of all parties in interest, permitting certain creditors to also 'become petitioners, the jurisdiction of the court to set aside the order of the referee cannot be questioned on the ground that the original petitioner had no standing to make the application for review.</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—Order Authorizing Private Sale of Property—Necessity of Notice.</p> <p>Where the time fixed in an order by a referee authorizing a private sale of the property of a bankrupt at a specified upset price had expired without a sale having been made, notice to creditors and others Interested was essential before tlie making of a new order of sale, and such an order, and a further order confirming a private sale made thereunder, both made without notice, will be set aside at the instance of creditors, and especially where the price obtained was materially less that the minimum price fixed by the first order of which they had notice.</p>

<p>Patents—Infringement—Automatic Electric Circuit Breaker.</p> <p>The Wright & Aalborg patent, No. 633,772, for an automatic' electric circuit breaker, claims 2 and 5, construed, and held not anticipated, but to disclose patentable novelty and utility; also 'held infringed.</p> <p>Gray, Circuit Judge, dissenting.</p>

<p>Appeal from Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>For opinion below, see 139 Fed. 28.</p>

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

<p>1. Patents—Invention.</p> <p>An increase in the size of an existing device to more completely fulfill its purpose does not constitute patentable invention.</p> <p>[Ed. Note.—For cases in point, see vol. 38, Cent. Dig. Patents, § 19.]</p> <p>. 2. Same—Foot Rest foe Chaibs.</p> <p>The Strelt patent, No. 668,268, for a foot rest for chairs, which slides on ways under the chair seat and when not in use turns down on hinges against the front of the chair frame and becomes in appearance a part of the chair front, is void, for lack of patentable invention in view of the prior art</p>

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

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

<p>1. Patents—Infringement—Manhole for Boilers.</p> <p>The Munroe patent, No. 339,998, for a manhole for boilers, held, not anticipated, valid, and infringed.</p> <p>2. Same.</p> <p>The Munroe patent, No. 446,151, for a manhole cover, held not infringed.</p>

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

In Bankruptcy. On review of decision of referee ordering trustee not to pay certain claims charged against him as trustee.

Admiralty. Collision- off Tucker Beach Light, New Jersey coast, between a schooner and a barge in tow of the tug Richmond and a subsequent collision, due to the first, between a barge in a tow of… Held: that the Boswell was in fault for all the damages, for failing to avoid the schooner with her tow.

<p>In Equity. On rehearing on the question of jurisdiction.</p> <p>For former opinion, see 125 Fed. 979.</p>

In Equity. Suit by the owner of unoccupied land to have an adjudication of an adverse claim to the title asserted by the defendants under a sale pursuant to judicial proceedings foreclosing a tax lien. Heard on bill and answer. For lack of proof to establish diversity of citizenship, jurisdiction of the case disclaimed.

<p>Collision—Vessel Dbieting ebom Moobings—Negligent Inattention to Lines.</p> <p>The William E. Reis, a steam propeller weighing with the cargo of ore on board about 8,000 tons, was moored for the winter at a dock in Cuyahoga river at Cleveland being fastened to the wharf by a number of lines. A flood due to heavy rains and melting snow occurred during the winter, and for two or three days the water rose and when it had risen five feet the Reis broke from her moorings by reason of the parting of ail of her lines, and drifted against and injured a number of vessels moored below. It appeared by a preponderance of evidence that the fastenings would have been reasonably sufficient if they had been properly adjusted, but that they were not, and, in consequence, they were probably broken by the unequal strain to which they were subjected by the lifting of the vessel. The only person left on board in charge during the rising of the water was a boy without experience, and physically unable to properly adjust the lines. It also appeared that no other of the numerous vessels moored in the river broke loose. Helé, that the vessel had not sustained the burden resting on her to show that her drifting was the result of inevitable accident or of a cause which due care and nautical skill could not have provided against, and that she was liable for the resulting damages.</p> <p>[Ed. Note.—For cases in point see vol. 10, Cent Dig. Collision, § 85%.]</p>

<p>1. Bankruptcy—Exempt Property—Jurisdiction of Court Over.</p> <p>A court of bankruptcy has no jurisdiction over exempt property of the bankrupt, except to set the same aside, and where the exemption is claimed in money in the hands of the trustee, upon which a creditor claims an equitable Hen superior to the exemption right the bankruptcy court can do no more than to set aside the exemption, direct the trustee to hold the fund until proceedings to determine the right thereto can be instituted in a court of competent jurisdiction, and in the meantime to withhold a discharge.</p> <p>[Ed. Note.—For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§ 672-674.]</p> <p>2. Same—Right to Exemption—Georgia Statutes.</p> <p>The good faith required of a debtor by Code Ga. 1895, § 2S30, to entitle him to his homestead exemption, as such section is construed by the Supreme Court of the state is in making a full and fair disclosure of his property, and a court of bankruptcy is not justified in denying his exemption because of his fraud in other respects.</p>

<p>In Bankruptcy. On allowance of costs and expenses.</p>

<p>Courts—Federal Courts—Conformity to State Practice—Attachment— Special Attachment Pending Action—Massachusetts Statute.</p> <p>Under Rev. Laws Mass. c. 167, § 80, which authorizes an attachment at any time during the pendency of an action where one would have been authorized when it was commenced, no ground is necessary to be shown for such special attachment other than lack of security for any judgment plaintiff may recover, which is in general sufficient ground for an attachment under the law of the state.</p>