Volume 144 — Federal Reporter

<p>1. Criminal Law- — Proof of Motivf — Evidence Tending to Show Other Offenses. .</p> <p>The fact that evidence introduced to show motive in a criminal case also has a tendency to show the commission by defendant of other crimes does not render it inadmissible, if otherwise competent.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 823.]</p> <p>2. Same.</p> <p>On the trial of a defendant charged with counterfeiting bank notes in connection with another person, such person testified that prior to the making of the notes defendant stated to him that, on account of his business, he was liable to be arrested for abortion, and desired the notes to deposit as bail in case of such arrest. Held, that such evidence was competent on the question of motive.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 823.]</p> <p>3. Indictment — Issues—Proof of Alias.</p> <p>Where a defendant was charged in the indictment under an alias, and was arraigned under both names and entered a" general plea of not guilty, it was competent for the government to prove that he assumed the other name as alleged.</p> <p>4. Criminal Law — Review—Harmless Error.</p> <p>Where a witness identified a person then in court as one about whom „</p> <p>. she had testified, the fact that she was permitted to state his name, which she had learned in the ordinary way by hearsay since the transaction, was without prejudice to defendant, even if error.</p> <p>5. Witnesses- — Cross-Examination of Defendant.</p> <p>Where the cross-examination of a defendant in a criminal case was relevant to other testimony introduced to show motive, it was not improper because it related to matters collateral to the issue.</p> <p>6. Same — Impeachment—Competency of Evidence.</p> <p>A statement made by the district attorney to tlie court in asking leniency in the sentence of a person previously convicted, and who was to be a witness for the government in a subsequent case, is not competent- evidence in such case to impeach the credibilty of the witness.</p>

On January 16, 1902, the ship Spartan was chartered to J. J. Moore & Company, a corporation, to carry a full and complete cargo of grain, lumber, Andyor other lawful merchandise from San Francisco to Sydney or Melbourne, as the charterer should elect;'the owners to be paid $9,730 if the cargo was discharged at Sydney, and $11,200 if at Melbourne.

Appeal'and Cross-Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. The complainant railroad company is a citizen of the state of Kentucky, engaged in the business of operating lines of railroad, upon which are transported passengers between New Orleans and points in this and other states reached by complainant and its connections.

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

The plaintiff in error owns and operates a lino of railroad seven miles in length, running from Wallace to Burke, in Shoshone county, Idaho. The road runs through a canyon which is from 100 to 400 feet wide. Along the line of the road are located several important mining properties, and the dwellings of about 4,000 people. From Manchester to Burke, a distance of about four miles, the railroad track is lined by the habitations of residents and by places of business.

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

This was an action for negligently running over and killing Henry Gess-wino, the intestate of the defendant in error. Gesswine was a section hand in the employment of the railroad company at the time of liis injury, and was engaged as one of a gang of hands in impairing the company's main track within the eori>orate limits of the city of Ironton, Ohio, and was run over and killed by a passing passenger train. This train was a regular train and was ordinarily on time.

<p>1. Navy — Enlistment op Mtnoks — Necessity op Consent op Parents op. Guardian.</p> <p>tinder tlie statutes prescribing qualifications for enlistment in the navy (Rev. St. §§ 1418, 1419 [U. S. Comp. St. 1901, p. 1007] and Act March 3, 1899, c. 413, 30 Stat. 1008), which provide that all enlistments shall be for four years, that boys between the ages of 14 to 18 years may be enlisted with the consent of their parents or guardian, but not otherwise, that no minor under the age of 14 years shall be enlisted, and that “other persons” may be enlisted, the consent of parents or guardian is not essential to the valid enlistment of a minor over 18 years of age.</p> <p>[Ed. Note. — For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 46.]</p> <p>2. Army and Navy — Martne Corps — Enlistment op Minors.</p> <p>The marine corps of tlie United States is not a part of the navy, and enlistments therein are not governed by Lhe statutes relating to enlistments in tlie navy, but by regulations prescribed by the Secretary of tlie Navy, under whose government and control such corps is primarily placed; and such officer, having prescribed in the published regulations of his department that “the regulations for the recruiting service of the army shall be applied to the recruiting service of tile marine corps, as far as practicable,” the enlistment of minors therein is governed by tlie statutory provisions relating to army enlistments, , and no person under the age of 21 years can lawfully enlist without the consent of his parents or guardians, as required by Rev. St. § 1117 [U. S. Comp. St. 1901, p. 813].</p> <p>[Ed. Note — For cases in point, see vol. 4, Cent. Dig. Army and Navy,, § 46.]</p>

<p>1. Courts — Jurisdiction of Federal Courts — Suit Against State Board.</p> <p>Const. La. art. 285, having given to any railroad company tlie right to maintain proceedings in a state court against the state railroad commission to contest the validity of any decision, rule, or order of the commission, a company which is a citizen of another state may maintain a suit for the same purpose in a federal court, where the amount involved is sufficient to give the court jurisdiction.</p> <p>2. Same — Amount- or Value in Controversy.</p> <p>Where a-state railroad commission imposed a flue of $2,000 on each of two connecting railroads for through charges made on shipments, in alleged violation of an order of the commission, a bill for an injunction, filed by the companies as joint complainants, alleging such fact, and that the commission threatened and intended also to enforce its said order with respect to future shipments, shows a sufficient value in controversy to give a federal court jurisdiction.</p> <p>LEd. Note. — Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Ten-nent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p> <p>3. Same- — Suit Asainst State.</p> <p>A suit by railroad companies against the Louisiana state railroad commission, to enjoin the enforcement of an alleged illegal rate made by the commission, and the collection of fines imposed by it for past violation of its orders, is not a, suit against the state, within the meaning of the eleventh constitutional amendment, and is within the jurisdiction of a federal court.</p> <p>[Ed. Note. — Federal jurisdiction of suits against states, see note to Tindall v. Wesley, 13 C. C. A. 165.]</p> <p>4. Same — Injunctions—Enjoining Suit in State Court.</p> <p>An injunction to sustain the jurisdiction of a federal court already rightfully acquired is not forbidden by Rev. St. § 720 [U. S. Compt. St. 1901, p. 581], prohibiting injunctions by federal courts to stay proceedings in a state court.</p> <p>[Ed. Note. — Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p> <p>5. Injunction — Preliminary Order — Review on Apbeal.</p> <p>Where a bill is presented asserting claims involving grave questions of law and disputed issues of fact, which the court must determine before rendering a final decree, it is within its sound judicial discretion to preserve the existing status by a preliminary injunction, until the case is finally decided, whenever necessary to protect the complainants’ rights or sustain the jurisdiction of the court, and an order granting such injunction will not be set aside on appeal, unless the court erred in the application of legal principles.</p>

<p>Towage — Capsizing of Tow — Liability of Tug.</p> <p>A dredge boat, 80 leet long and 32 feet wide, had a crowning deck, with a horizontal opening across the bow and stern, occupying the space between the top of the hull, which was straight, and the crowning deck, varying in height from 3 inches at the sides to 9 inches in the center. When equipped with her machinery she drew 18 inches of water, leaving a freeboard below the openings of 3% feet. While being towed by a tug on the Mississippi above New Orleans she was capsized, by having her head forced under the water, and lost all her machinery and equipment. She had no motive power, and was lashed to the side of the tug, which had full control of the navigation. She was seaworthy for her construction, and had made many trips up and down tile river in safety. At the time of the accident there was a head wind blowing and the water was quite rough, llehl, that it was the duty of the tug to navigate with reference to the obvious construction of the dredge and the conditions of the weather and water, and that the accident must be attributed to her excessive speed or want of care in view of such conditions, which rendered her liable for the loss sustained.</p>

<p>Habeas Corpus — Illegal Ehusiiuím op Minor in Army or Navy — Discharge Pending Proceedings of Court Martial.</p> <p>While tlie enlistment of a minor in ihe army or navy of the United States without the written consent of his parents and against the prohibition of the statute is voidable at the instance of his parents, so long as the minor remains in the service he is amenable to the military law, and the civil courts will not interfere to discharge him on habeas corpus on petition of his parents, if at the time of the presentation of the petition for the writ he is under arrest and being held on any charge cognizable by a military court, nor until the termination of the military proceedings and the expiration of his sentence, if any be imposed therein.</p>

34 to the owners of the tug for a salvage service, rendered by the tug Unique in rescuing the steamship Arizonan from a burning dock in Brooklyn. The appellant, the Merritt & Chapman Derrick & Wrecking Company, was the charterer of the tug and intervened, insisting that the salvage, or at least some part thereof, should he paid to it.

<p>1. Copyright — Infringement—Unfair Use op Publication.</p> <p>The use of a complainant's copyrighted publication giving capital and credit ratings of business men generally by defendant, which published a similar hook giving capital and credit ratings only with respect to the lumber trade, inertly for the punióse of checking names which defendant had Cor any reason failed to get, or in a few cases to compare ratings where there was reason to question the accuracy of those obtained by defendant, the facts published by defendant having in every case been obtained by independent investigation, was a fair use, and not an infringement of Hie copyright.</p> <p>[Ed. Note. — Dor eases in point, seo vol. 11, Cent. Dig. Copyrights, §§ M-oT.J</p> <p>2. Same-Grounds for Injunction — -Insignificant Infringement.</p> <p>A court of equity will not enjoin the publication or sale of a credit rating book containing many thousands of names, as an infringement of complainant's copyright, because defendant's agents or correspondents may in a very few cases have made an improper use of complainant's publication, but will remit complainant to his remedy at law.</p>

<p>1. Admiralty — Appeal—Grounds for Dismissal.</p> <p>It is not ground for dismissal of an appeal in admiralty that an order substituting appellant for other parties in the suit, which was made and served before the expiration of the time for appeal, was not filed with the clerk until afterward.</p> <p>2. Same.</p> <p>It is not ground for dismissal of an appeal in admiralty that the notice of appeal was not served on parties for whom appellant had been substituted by an order of the district court, and who make no claim that their interests are not represented by appellant.</p> <p>3. Same.</p> <p>A motion to dismiss an appeal in admiralty calls in question the Jurisdiction of the appellate court to deal with tlio subject-matter of the appeal, and it is not a ground for dismissal that the evidence on which the decree appealed from was rendered is not in the record.</p>

<p>3. COUNTERFEITING — UTTERING FALSE NATIONAL BANK NOTES — PROOF OF INTENT.</p> <p>In a prosecution under Rev. St. § 5415 [TI. S. Comp. St. 1901, p. for passing false or forged national bank notes, knowledge that they were falsely made is an essential element of tile offense, and there must 1)0 some evidence of such knowledge, circumstantial or otherwise. aside from proof merely that the spurious note was passed</p> <p>[Ed. Note. — For cases in point, see vol. IS, Cent. Dig. Counterfeiting, §§’7, 1-1, 45.]</p> <p>2. Criminal Law — Trial—Admission of Evidence.</p> <p>Where the prosecution in a criminal case sought to prove a criminal connection between tlie defendant and a third person, who had in fact given testimony in a previous case directly contrary to the government’s contention, it was misleading and prejudicial error to permit the prosecution to introduce in evidence the record of such person's prior conviction and sentence, for the expressed purpose of showing the reason why lie was not called as a witness; the effect of such evidence being to induce the jury to believe, contrary to the fact, that hut for such conviction lie would have been called to prove the government’s claim.</p>

<p>Patents — Pbiok Public Use — Thill Coupling.</p> <p>Tile Hannan reissued patent, No. 11,260 (original No. 456,117), for a thill coupling, held void for prior public use for more than two years before the filing of the application of the original patent.</p>

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

<p>Patents — Inekingement—Water-Closets.</p> <p>The Chadbourne patent, No. 461,734, for an improved construction of the bowl and seat in water-closets, claim 1, construed and held not infringed.</p>

<p>In Equity. Suit for infringement of letters patent No. 534,785, granted February 26, 1895, and No. 709,001, granted September 16, 1902, for a process of applying asbestos insulation to electrical conductors, and the resulting product, both issued to Louis W. Downes. On final hearing.</p>

<p>1. Patents — Spit to Compel Issuance.</p> <p>A suit by an unsuccessful applicant to compel the issuance of a patent to him under Rey. St. ¡¡4915 [TI. S. Comp. St. 1901, p. 3392], is not an appeal from the proceedings in the "Patent Office or the decision of the Court of Appeals of the District of Columbia, but is one of original equity jurisdiction.</p> <p>2. Same — Prtoeity oe Invention — Evidence Consideeed.</p> <p>Evidence considered, and Jwid to establish the reduction to practice by Edmund C. Schmertz of the process of making wire glass covered by the Appert patent, No. 008,096, prior to the issuance of the French patent, for the invention to Appert, and to entitle Schmertz to patents on his rejected applications covering such process and apparatus for practicing the same as against Appert.</p> <p>3. Same — Laoh.es—Delay in Making Application.</p> <p>Delay by an inventor in applying for a patent after he has reduced his invention to iiractice for the purpose of perfecting it, or testing its practical value, will not constitute an abandonment or laches which will defeat Ills right to a patent where, from some unknown cause, it was not successful in operation, although it subsequently develops that the trouble was due to external causes not affecting the utility or successful working of the invention.</p> <p>[Ed. Note. — For eases in point, see vol. 38, Cent. Dig. Patents, § 108.]</p>

Suit in equity to enjoin alleged infringement of United States reissued letters patent, No. 12,03?, dated September 30, 1902, for kinet-oscope, and for an accounting, granted to complainant Thomas A. Edison.

<p>In Equity. Bill to restrain infringement of patent No. 677,363, granted July 2, 1901, on application filed August 27, 1900, and patent No. 768,268, granted April 26, 1904, on application filed November 30, 1903. On demurrer to bill.</p>

In Equity. Suit for infringement of letters patent No. 495,443, for a traveling contact for electric railways granted to Charles Van De-Poele. On motion for preliminary injunction.

<p>Cancellation or Instruments — Feaud—Evidence Consideked.</p> <p>Evidence considered, and 7ie7<7 insufficient to make out a case of fraud in the making of a contract for the assignment of a patent which entitled complainant to its cancellation; it appearing that the terms were dictated by him and read over to him as taken down, and that the final draft was again read to him before signing.</p>

<p>In Equity. Suit to enjoin infringement of trade-mark.</p>

In Bankruptcy. Several creditors of S. E. Hines, of North Bend, Coos county, Or., on January 25, 1905, filed their petition in court charging him with having committed an act of bankruptcy, in that, while insolvent, and on January 17, 1905, he suffered a judgment to be obtained against him in the sum of $2,030, upon which execution has been issued and certain property of defendant levied upon, and that defendant has not vacated or discharged the same.

<p>1. Bankruptcy — Bonds.</p> <p>Hauler. Act 1898. e. 541, § 3e, 30 Stat. 540 [TT. S. Comp. St. 1901, p. 3423'], provides that when a petition is filed by any person to have another adjudged a bankrupt, and an application is made to take charge of and hold his property, or any part thereof, prior to the adjudication, the petitioner shall file a bond to pay all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the alleged bankrupt in case the petition is dismissed. Held, that the bond required by such section was only issued as a prerequisite to the taking of the property of an alleged bankrupt at the Instance of the petitioners ponding adjudication, and that, where properly of the alleged bankrupts had been already seized under an execution, a bond given to secure an injunction restraining a sale, and to preserve .the property pending the hearing of the bankruptcy petition, was not within such section.</p> <p>2. In,7 unction — Bond—-Recovery-—Extent.</p> <p>Where, pending the sale of a debtor’s stock of goods under execution, certain creditors filed a petition in bankruptcy against him, and obtained an injunction restraining the sale of the goods pending adjudication, which was subsequently denied, the alleged bankrupt was not entitled to recover on the injunction bond either attorney’s or keeper’s fees, damages, or expenses for attending court, but could recover only a docket or attorney’s fee of $20, under chancery rule 34 (89 Bed. xiii, 32 G. C. A. xxxiii, 18 Sup. Ot. ixj, and the costs of taking certain depositions.</p>

<p>1. Railroads — Right of Coal Mirers to Connect Switch Tracks.</p> <p>Under tbe Constitution and statutes of Pennsylvania, which make all railroads public highways and all railroad companies common carriers, the owner of coal mining property adjoining the right of way of a railroad is entitled as a matter of right to connect switch tracks built on his own land with the track of such road, to facilitate the loading and shipping of coal.</p> <p>TEd. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, § 118.]</p> <p>2. Carriers' — Duty to Accept Shipments.</p> <p>A railroad company cannot refuse to accept and transport coal tendered by a shipper, on the ground that it is of inferior quality to other coal also produced on its line, and that the marketing of such coal will injuriously affect the sale and consequently the shipment of the superior quality.</p> <p>[Ed. Note. — Duties and liabilities of carriers as to furnishing facilities for transportation, see note to Harp v. Choctaw, O. & Q. R. Co., 61 C. C. A. 414.]</p>

In Admiralty. Suit for seamens’ wages and damages for delay in payment. Decree for libelants for amount earned by actual service and costs.

Habeas Corpus. The following stipulation is of record in this cause: In the above-entitled cause it is agreed by parties: That the petitioner, William C. Woodward is now confined in the Massachusetts State Prison in the district of Massachusetts under sentences imposed by the United States District Court for the District of Massachusetts.

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

<p>1. COURTS-UNITED STATES COURTS-FOLLOWING STATE DECISIONS — OAKLAND Water Front — Title under Ordinances and by Deed and under Execu- ■ tion Sales and Redemption Proceedings — Validity of Grant — Ratification, Confirmation, and Compromise.</p> <p>For the purpose of facilitating the construction of wharves and other improvements on the Oakland water front, the state of California, by the act of the Legislature of May 4, 1852 (St. 1852, p. 180, c. 107), incorporating the town of Oakland, granted to the town the state tide lands lying within the corporate limits “between high tide and ship channel,” known as the “Water Front Lands.” The town of Oakland, by ordinances and by deed of conveyance, granted these lands to C., upon condition that the grantee should construct certain wharves on the water front extending into the deep water of the harbor, and that he should build a public schoolhouse for the town. C. constructed the wharves and Duilt the public schoolhouse, as provided in the ordinances and deed, and subsequently supported his title to the water front by deeds obtained in pursuance of execution sales on judgments and redemption proceedings against the town with respect to such property, and by a judgment of dismissal in his favor in a suit brought against him by the city of Oakland. The city of Oakland, the municipal successor of the town of Oakland, denied the validity of the grant made by the town of Oakland, and the claim of title thereto under the execution sales and redemption proceedings and the judgment of dismissal, and instituted a number of suits to have the grant declared void. In the last of these suits, commenced August 26, 3893, a judgment was entered in the superior court of Alameda county in favor of the city. On appeal to the Supreme Court of the state that court was of the opinion that it was within the power of the state to alienate those lands which are ■covered and uncovered by the daily flux and reflux of the tide, but that a transfer of the entire water front in bulk to a private citizen, without any reservation of the right of access to the navigable waters by which the town was almost completely surrounded, was a gross and evident excess of power. Oakland v. Oakland Water Front Co.; 50 Pac. 277, 118 Cal. 160, 190. The grant was therefore construed as limited in its extent by the “southerly line of the San Antonio creek or estuary” construed as being the southerly line of low tide of that estuary, and the boundary by “ship channel” construed as the line of low tide on the bay front. The grant as thus limited was sustained — two judges holding that the grant of the tide lands had been ratified and confirmed by the state in the act of May 35 3803 (St. 1861, p. '3S7, c. 360), three judges holding that under a compromise agreement entered into by the city of Oakland on the 1st day of April, 1868, with the claimants of the grant and the representatives of certain railroad interests upder the authority of an act of the Legislature of March 21,1868 (St. 1867-68, p. 222, c. 230), all claims, demands, controversies, and causes of action respecting said water front property had been effectually settled and adjusted and that from and after the 2d day of April, 1868, the city of Oakland ceased to be the owner, as trustee or otherwise, of any portion of her water front except those portions secured to her by the compromise of that date, and such streets, thoroughfares, and other parcels as may have been previously dedicated to public use. With respect to the claim of title based upon the execution sales under judgments against the town of Oakland the court held that the lands were held subject to a public trust, and for that reason were not liable to levy and sale under execution, and with respect to the judgment of dismissal, the action of the court did not determine the validity of the grantee’s title, and did not estop the city of Oakland upon the question of titie.</p> <p>Hold: (1) That whether the grant by the state to the t.own of Oakland and the transfer of such grant by the town of Oakland to a private individual were acts in excess of power, were questions of local law, which, having been determined by the Supreme Court of tiie state, the decision of that court will be followed by the United States Circuit Court.</p> <p>(2) That whether the grant by the town of Oakland of its water front to an individual had been ratified, confirmed, or compromised by authority of law, and to what extent, if any, it had been ratified, confirmed, or compromised, were questions of local law, which, having been determined by the Supreme Court of the state, such decision will be followed by the United States Circuit Court.</p> <p>(3) That the claim of title based upon execution sales and the claim of estoppel upon the judgment of dismissal were questions of local law, which, having been determined by the Supreme Court of the state, such decision will be followed by the United States Circuit Court.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 950, 955, 958. 959, 905.</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>2. Same — Oakland Water Front — Ship Channel.</p> <p>The question, “What did the Uegislature mean by the use of the term ‘ship channel’ in the grant of the lands ‘lying between high tide and ship channel,’?” is a question of local law, which, having been determined by the Supreme Court of (lie state as comprising the waters left free to navigation, and the definite natural boundary of such navigable waters the line of low tide, the decision of that court will be followed by the United States Circuit Court.</p> <p>8. Same — Boundaries of the Grant.</p> <p>The Supreme Court of the state having located the boundaries of the grant of the Oakland water front in determining the extent and validity of (he grant, such boundaries will be followed by the Circuit Court in determining the conflicting claims of parties claiming title to lands upon such water front.</p> <p>4. Municipal Corporations — Oakland Water Front — Bands Below the Line oi' Low Tide.</p> <p>The lands under the navigable waters of the Bay of San Francisco lie-low the line of low tide, in front of the Oakland water front, belong 1o the state, and are not within the boundaries or under the jurisdiction of the town of Oakland as described in the freeholders’ charter of 1889, and are therefore not subject to the provisions of such charter.</p> <p>5. Navigable Waters — Lands Under Water — Ownership and Control.</p> <p>The lands under the navigable waters of the Bay of San Francisco below the line of low tide, in front of the Oakland water front, belong to the state, over which the owners of the shore land have right of access to the navigable waters of the bay, subject to the declared policy of the state as expressed in section 2 of article 15 of the Constitution of the state of 1879, relating to harbor frontage, etc., where it is provided that “no individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this state shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this state shall be always attainable for the people thereof.” The right is subject, also, to the power of the state to make such regulations and provide for such improvements as the public interests may require for the promotion of commerce and navigation.</p> <p>6. Same — Dredging Operations under the Authority of the War Department.</p> <p>Congress has the constitutional power to regulate and improve the harbors and navigable waters of the United States, and this power carries with it the right to deposit the material removed in making the improvements in any other part of the harbor or navigable waters Or other place within its control.</p> <p>(Syllabus by the Court.)</p>

<p>Judgment — Collision—Suit eob Damages — Matters Concluded.</p> <p>In a suit in admiralty for collision, where all of the parties in interest are in court and all of the facts are before the court, it is its duty to determine absolutely as among all of the parties their relative rights, and where two vessels are both held in fault for a collision between one of them and a third vessel, and each of them adjudged to pay half the damages, the decree is conclusive as between them, and one cannot subsequently maintain a second suit against the other to recover the amount it was so required to pay.</p>

<p>1. Admiralty — PleadiNG—Variance.</p> <p>Where the libel In a suit to recover for injury to a vessel alleged to have been caused by the improper navigation of another vessel correctly states the essential facts by reason of which the injury occurred, a failure to give the proper interpretation of such facts, or the correct scientific reason for the result, will not constitute a material variance between the allegations and proof; and, even if so considered, an amendment will be permitted where the case has been tried on the theory stated in the libel.</p> <p>2. Shipping — Injury^ op Vessel on Bridge Pier — Violation op Rums by Overtaking Vessel.</p> <p>The Ohio, a fiat-bottomed steam scow, when a short distance from the open draw of a bridge on the Cuyahoga river was overtaken and passed by the large tug Lutz without any signal or agreement, the stern of the Lutz passing her bow at about the time it entered the draw where the channel was but 60 feet wide, the effect being to create a current or suction which caused the Ohio to sheer, striking some submerged timbers around the bridge pier by which she was so injured that she sank. Held, that the injury was due to the fault of the Lutz in passing in violation of rule 25 of the rules for navigation on the Great Lakes and their tributary waters (Act Feb. 8, 1895, c. 64, § 1, 28 Stat. 649 [U. S. Comp. St. 1901, p. 2891]), and the inspectors’ rules made thereunder, which required her to signal, and -not to pass without the consent of the overtaken vessel, and that she was liable for the injury; no want of care or improper navigation being shown on the part of the Ohio.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 344, 345.]</p> <p>3. Navigable Waters — -Obstruction by Bridge Pier — Liability of City.</p> <p>Where a contractor employed by a city was engaged in rebuilding a drawbridge across a navigable stream, and, in doing the work, had removed the protection piling around the central pier, the city, even if responsible for the acts of the contractor, cannot be held liable for the injury of a vessel by striking against submerged timbering around the pier because of the failure to mark the position of such timbers when their existence was known to the master of the vessel, who tried to avoid them, and the injury was not due to the absence of such marks or signals.</p>

In Bankruptcy. Proceeding to punish for contempt for disobedience of referee’s order to surrender property or money. In May, 1900, William Kerron obtained a Judgment against J. W. Bailey, the bankrupt in this proceeding, for the sum of $337, and attorney’s fees and costs. Thereafter execution was issued and levied on certain property of the bankrupt, which was, on August 1, 1903, sold by the sheriff; Kerron becoming the purchaser at $465.50.

In Equity. On demurrer to bill. The complainant by his bill of complaint avers and shows, in brief, that in September, 1899, he settled upon the S. W. % of section 34, township 2 N., range 32 E., W. M., in Umatilla county, Or.

<p>In Bankruptcy. On application for discharge and motion by credit- or for stay.</p>

<p>In Bankruptcy. On questions certified from referee.</p>

In Equity. On September 29, 1900, William Harrington filed Ills bill in this court against the Union Oil Company and Morris Forst, its vice president, setting up a claim to a one-fourth working interest in an oil lease derived by said Union Oil Company from G. R. McGranalian, F. E. Metzger, and W. H. Ebiuger. Said lease was on a tract of 115 acres of land in Tyler minty, W. Va., owned by 1). Carmichael and wife, and by them leased to McGran-ahan, Metzger, and Ebiuger.

<p>1. Collision — Disabled Vessel— Right to Anchoe.</p> <p>When a vessel, large or small, becomes disabled and loses her motive power, if she cannot safely find a mooring place by the land, she is justified in anchoring where she is, as safer for herself and other vessels than drifting.</p> <p>2. Same — Tow and Anchoe Launch — Failube to Cabby Ancho» Light.</p> <p>A small launch, which had become disabled in the night, and anchored in the channel in East river, near Hell Gate, held not entitled to recover for her injury by collision with a car float on -the side of a tug which ran into her. on the ground that she did not carry the anchor light required by the rules, which would have prevented the collision, although the tug did not have a proper lookout; it appearing that she saw the light from the launch as soon as it was raised into view.</p>

<p>1. Bankruptcy — Conveyance With Intent to Defraud — Vapidity.</p> <p>The salo by a retail merchant of his entire stock is a transaction out: of the ordinary course of his business, which puts the purchaser on inquiry to ascertain the true condition of the seller’s business and circumstances, and where the seller was insolvent, and within four months thereafter was adjudged a bankrupt, and the sale was in fact made to hinder, delay, or defraud creditors, in order to sustain liis title, under Bankr. Act. July 1, 1898, <:. 541, § 67e, 30 Stat. 56-1 (U. S. Comp. 8t. 1901, p. 34491, the burden rests on the purchaser to show that he took all reasonable and proper steps to ascertain the seller’s financial condition and bought in good faith and for a present fair consideration.</p> <p>2. Same — Jurisdiction oe Court — Property in Possession of Adverse Cuaima nt.</p> <p>Whenever, after the filing of a petition in bankruptcy, it appears to be necessary for the preservation of property claimed to be a part of the bankrupt’s estate, it is within the jurisdiction of the court to order the marshal, or a custodian, to take possession of such property, although in possession of an adverse claimant, pending the adjudication of title; such proceeding being one in bankruptcy, and not a controversy at law or in equity, within the meaning of Bankr. Act. Julv 1, 1898, c. 541, § 23a, 30 Stat 552 LC. S. Comp. St. 1901, p. 3131.] And a petition duly verified, which avers that the property consists of- a stock oí merchandise, and that it was transferred by the alleged bankrupt for the purpose of hindering, delaying, and defrauding his creditors, and sets forth facts tending to show, that the transfer was void under the bankruptcy act, that, the purchaser is financially irresponsible, and that there is danger that the property will be lost to the estate without the interposition of the court, is sufficient to make it the duty of the court to exercise such jurisdiction; but the petitioner in such case should be required to give a bond to protect the rights of the claimant.</p>

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

In Equity. The plaintiff is a minor, and seeks by this suit to redeem an undivided interest in lots 5 and 6, block 88, in the city of Portland, or, if impracticable, the whole thereof, from the alleged lien of a certain mortgage executed by Nathan Cohen and Rosa Cohen, his father and mother, to Joseph Hume, to secure originally the payment of the sum of S4,000 loaned by Hume to the said Nathan Cohen.

<p>In Equity. On demurrers to bills.</p>

<p>1. iN.i UNCTION — VAT.IDTTY—PlACE OF SERVICE.</p> <p>A defendant is bound by a preliminary injunction or restraining order issued against him by a court of equity from the time he has actual notice of it, and it is immaterial that it was served upon him at a plaee outside of the territorial jurisdiction of the court.</p> <p>[Ed. Note. — 1’or cases in point, see vol. 27, Cent. Dig. Injunction, §§ 446.]</p> <p>2. Bankruptcy — Suit by Truster — Injunction.</p> <p>The fact that a defendant claims as his own money admitted to have been paid to him by a bankrupt within four months prior to the bankruptcy, on the ground that the payment was made to him as a creditor, does not affect the jurisdiction of a court of bankruptcy in a plenary suit brought by the trustee to recover such money as a voidable preference, or as a transfer in fraud of creditors under Bankr. Act July 1, 1808, c. 641, § 60b, or section 67e, as amended Act Feb. 5, 1903. e. 487, §§13, 16, 32 Stat. 799, 800 [U. S. Comp. St. Supp. 1905, pp. 689, 090], to issue a temporary injunction restraining him from disposing of the same.</p> <p>3. Injunction — Violation—Contempt Proceedings.</p> <p>A defendant who has disobeyed a temporary injunction, when cited for contempt, cannot justify his disobedience on the ground that the injunction was improvidently or erroneously granted.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Big. Injunction, §§ 440, 441.]</p> <p>Note. After the foregoing decision, the defendant adjusted the matter to complainants’ satisfaction, and further proceeding was abandoned.</p>

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

<p>1. ADMINISTRATORS-FOREIGN ADMINISTRATORS-RIGHT TO SUE.</p> <p>An administrator cannot bring suit outside the state of his appointment, without statutory authority in the state where suit is brought.</p> <p>[Ed. Note. — For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 2330.]</p> <p>2. Same — Federal Courts.</p> <p>P. E. N. J. 1887, p, 154, provides that any administrator, by virtue of letters obtained in another state, may prosecute any action in any court of that state, as if , his letters had been granted therein, provided that he shall first file in the office of the clerk of the court in which he is about to proceed an exemplified copy of his letters; and P. L. 1896, p. 173, authorizes any administrator to prosecute any action in any court of the state, as if his letters had been granted in this state, provided he file in the office of the register of the prerogative court an exemplified copy of his letters, on which filing, he is authorized to bring all necessary actions in any of the courts of the state. Held,, that such acts conferred on a foreign administrator the right to sue in a federal court sitting in New Jersey, on filing of an exemplified copy of his letters with the clerk of the court.</p> <p>3. Same — -Appointment oe Administrator — Appeal—Eeeect.</p> <p>Where an administratrix in the foreign state where her letters were originally granted, pending an appeal from the order granting the same, was entitled to sue to recover debts due her intestate, she was entitled, notwithstanding such appeal, to maintain an action for the same purpose in Now Jersey, under I*. L. 1887, p. 154, and P. 17. 180(5, p. 173, authorizing a foreign administrator to sue in New Jersey on filing an exemplified copy of his letters, etc.</p>

<p>1. Shipping — Charter—Liability of Charterer for Negligent Towage.</p> <p>A charterer who contracts to “furnish” certain towage to the chartered vessel cannot relieve himself from responsibility for the manner in which the service is performed by employing a tug to perform it but is liable for any damage or injury caused to the vessel through the negligence or fault of such tug.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Shipping, §§ 219, 220.]</p> <p>2. Same — Towage—Liability of Charterer and Tug for Grounding of Tow.</p> <p>Respondent Pownal Granite Company maintained a wharf on a small stream in which the tide flowed, aijd chartered the schooner of which libelant was master to carry a cargo therefrom agreeing to furnish towage in and out of the stream. It employed its eo-resiiondent’s tug to perform such service and notified the master when to come to take the schooner out. The channel was shallow, crooked, and narrow which rendered the towing hazardous with a loaded vessel, and the master of the tug notified the conijiany’s manager that he desired to be advised in time when the schooner would be loaded so as to start with her before the tide reached the top, which would enable him to get her off on the rising tide should she touch bottom, lie arrived with the tug an hour before high tide, but the manager detained the schooner to finish loading so that she started at full tide, and shortly after leaving the wharf, grounded and received injury. Held, that the company was liable for tile injury on its contract to furnish towage and because of its detention of the vessel, and that the owner of the tug was also liable for negligence in starting after such detention,' both knowing the risk; that the schooner was not in fault, it being shown that her master was wholly unacquainted with the stream, and assumed no control whatever of the towing.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Shipping, §§ 219, 220; vol. 45, Cent. Dig. Towage, §§ 24-26.]</p>

<p>1. Towage — Injuey to Tow — Liability of Towing Vessel.</p> <p>A steamer towing a loaded barge down Niagara river, which broke a propeller blade on a rock and cast the barge loose, allowing it to drift against a pier, by which it was injured, hold, on the evidence, in fault: for such injury, on the ground that she was outside of the usual and marked channel and where navigation was dangerous for vessels of her draft. The barge held not in fault for not dropping her anchor when cast adrift, which, if an error, was one in extremis, in view of her imminent danger from the rapid current.</p> <p>2. Same — Contract—Authority of Master to Extend.</p> <p>Pursuant to an agreement between the owners of a steamer and a barge, the master of the steamer was instructed by telegraph to tow the barge from Marquette, Mich., to Buffalo. On the trip, a further agreement was made between the masters that the towage should be extended to Tonawanda, nine miles further, which was the destination of the barge. Held, that in making such agreement the master of the steamer did not exceed his authority, and that it was valid; the master of the barge having no knowledge of an agreement between the owners, that the towage should stop at Buffalo.</p> <p>3. Same — Action fob Injuhy to Tow — Nature.</p> <p>An action to recover from a towing vessel, for an Injury to her tow through her alleged negligence, is not one for breach of contract, but for a tort.</p> <p>4. Same — Contract—Agreement of Tow to Assume.</p> <p>A towing vessel is liable for an injury to her tow resulting from her negligence, notwithstanding a provision of the contract that the towing should be at the risk of the tow.</p>

<p>Master aot Servant — Injury or Servant — Assumed Risk.</p> <p>Plaintiff’s intestate was employed by defendant to attend to repair work on the machinery in its shop, as to which he was competent and of large experience. He was sent by the foreman to repair a tight pulley on a planer in a large and well-lighted room. The machinery was accessible and convenient to he repaired,, and the only thing required was to tighten a set screw. Deceased pushed the belt from the pulleys on the main and countershafts, and later, in order to better get at the work, he undertook to carry the belt across the pulleys, and in some way it became looped and doubled on the main shaft, and immediately wound up and pulled the hangers of the countershaft from their fastenings, and such shaft fell upon and injured him,. causing his death. There was no defect in the machinery which caused the accident,- the danger was as obvious and well known to the deceased as to the fore' man, and there were other employes whom he was authorized to call to his assistance, if he had desired. Held, that there was no negligence on the part of defendant which rendered it liable for the injury, but that it resulted solely from a risk voluntarily assumed by deceased.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 550, 610-G14.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A, 314.]</p>

<p>1. Mortgages — Bonds—Evidence oe Execution and Delivery.</p> <p>The acknowledgment of a bond for tbe payment of money, and the recitation thereof in a mortgage duly acknowledged and recorded, are evidence that the instruments were executed and delivered.</p> <p>[Ed. Note. — For cases in point, see vol. 35, Cent. Dig. Mortgages, § 172.]</p> <p>2. Same — «Payment—Possession by Maker as Evidence.</p> <p>The fact that the maker of a bond and mortgage had the same in his possession after the death of the payee and delivered them for safe keeping to his counsel, raises no presumption of payment where it is, shown that he was at the time the prospective administrator of the' mortgagee, and was afterward appointed. as such, and that he took possession of the papers of the mortgagee at once on the latter’s death,</p> <p>3. EXECUTORS AND ADMINISTRATORS — INDEBTEDNESS TO DECEDENT- — NEW YORK Statute.</p> <p>2 Rev. St. N. Y. (1st Ed.) pt. 2. e. 0, tit. 3, § 13, provides that “the naming of any person executor in a will shall not operate as a discharge or bequest of any just claim which the testator had against such executor hut * * * such executor shall be liable for the same as for so much money in his hands at the time such debt or demand becomes due, and shall apply and distribute the same * * * as a part of</p> <p>llie personal estate of the deceased.” IJald that, in a ease falling within such provision, a bond for the payment of money given by an administrator to his decedent, and which had matured, became extinguished on the administrator’s appointment, his liability being for the money due thereon, which, under the statute, he was conclusively presumed to have received as administrator.</p> <p>4. Same — Action Against’ — Recovery on Inconsistent Cause of Action.</p> <p>An action against an administratrix on a bond given by the decedent, hut on which action is barred by limitation, cannot be converted into one to recover the proceeds of the bond on the theory that under 2 Rev. Kt. X. T. (1st Ed.) pt. 2, c. 6, tit. 3, § 13, the decedent is presumed to have received the same money on his appointment as administrator of the estate of the payee, since the two causes of action are not only inconsistent, but are based on grounds requiring different allegations and proofs.</p>

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

In Bankruptcy. On review of decision of referee. It is disclosed by the record that, on May 20, 1904, a petition was filed by certain creditors of the T. H. Thompson Milling Company, seeking to have the latter adjudged bankrupt, and subsequently, on July 9, 1904, an order of adjudication was duly made.

<p>In Equity. Suit for unfair competition.</p>

<p>1. Bankruptcy — Discharge—Obtaining Credit by False Statements.</p> <p>The effect of false statements made by a bankrupt to obtain credit, as barring his right to a discharge under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684], is not different because the credit was obtained by a corporation of which the bankrupt owned a majority of the stock.</p> <p>2. Same — Eeeect oe Amendment oe Statute.</p> <p>The provision of Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 797 [U. S. Comp. St. 1901, p. 3428], introduced by amendment in Act Feb. 5, 1903, c. 487, 32 Stat. 797 [ü. S. Comp. St. Supp. 1005, p. 684], making tlie obtaining of property on credit upon a materially false statement in writing ground for refusing a discharge to a bankrupt, applies to all cases where application for discharge was made after the amendment took effect, although the false statements may have been made before.</p>

<p>In Bankruptcy.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Writ of error to review’ the action of the United States Circuit Court for the Southern District of New York, in directing a verdict for defendants, rendering a judgment on the merits in their favor and ordering that the complaint be dismissed.'</p>

For decisión below, see 141 Fed. 469, reversing 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 New… Held: nevertheless, that it did not prohibit an allowance on the ground of nonimportation for fruit that was so spoiled and rotten as to be entirely destroyed and worthless.

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, holding the tugs Wrestler and Tebo both in fault for a collision which occurred between them in the •East river between Blackwells Island and the New York shore. The following is the opinion below: THOMAS, District Judge.

<p>Customs Duties — Change or Packages oe Goods — Merchandise Entitled to Debenture.</p> <p>In Rev. St. §3030 [U. S. Comp. St. 1901, p. 1995], giving the importer of any “merchandise entitled to debenture” the right to transfer the same into new packages when necessary for its safety or preservation with the permission of the collector of the port where the same may be, the words “entitled to debenture” apply only to imported goods on which the duties have been paid, and which have been entered for export, and having the benefit of drawback under the preceding sections, are entitled to debenture for such drawback. Such section does not authorize a change of packages of imported merchandise remaining in bond and intended for sale and consumption in this country.</p>

<p>3. Appeal and Error — Questions Reviewable — Second Appeal.</p> <p>A question once determined by an appellate court will not he reexamined on the same facts and under the same conditions, on a second appeal or writ of error in the same cause.</p> <p>2. Insurance — Cancellation op Policy — Damages.</p> <p>An action was brought by the insured to recover damages for the wrongful cancellation of a life insurance policy for .alleged nonpayment of a premium after the policy had been in force. for a number of years. The premiums were in the form of assessments' covering only the current death losses of the company, with an added sum for expenses. At the time of the cancellation plaintiff was an invalid and incapable of obtaining other insurance. He died pending the action, and it was revived by his executor. Held, that the measure of damages was the amount of the policy, less the cost of carrying it to maturity had it remained in force, all the amounts entering into the calculation to be valued on a 6 per cent, basis as of the date of cancellation.</p>

This action grow out of the same railroad accident that was under consideration in the case of Southern Pacific Company v. Schuyler, 135 Fed. 1015, 08 U. 0. A. lOi). James 0. Cavin was, as was Schuyler, a mail clerk on board the train at the time of the accident, and received severe injuries in the wreck, for which he sued the railroad company for §40.000 damages, securing a verdict and judgment in the court below for $15,000. After the case was brought here, Cavin died.

This case involves the validity of a judgment obtained by Kelley against the mining company and llio right of Hardin, an attaching creditor, to redeem from an execution sale. In February, 1901, the property of the mining company was sold under an execution on a judgment obtained in a state court in Lawrence county, S. D., and the certificate of sale was thereafter assigned to Kelley who a iso discharged certain liens upon the property.

On the 3d day of November, 1900, the iEtna Life Insurance Company, a corporation created under the laws of Connecticut and doing business in the state of Missouri, issued in the latter state to James Whitfield, a citizen of that state, a policy of accident insurance, the material portions of which are as follows: “Twentieth Century Combination. Principal Sum, $5,000.00. Accident Policy.

<p>1. Post Offices — Deposit of Obscene Mattkb tn the Mah..</p> <p>It is not essential to the commission of tile offense prescribed by section 3893 of the Itevised Statutes [U. S. Com]). Si. 1901, p. 2658J that ilie entire contents of the newspaper, or other parcel, deposited in the mail, be objectionable in character, or that the offender’s responsibility for its being put in the mail extend to its entire contents. Nor is it essential that Hie objectionable matter lie deposited in the mail by the offender himself, or by another acting under Ids express direction, because he is equally responsible if it is deposited therein as a natural and probable consequence of an act intentionally done by him with knowledge ¡hat such will he its natural and probable, effect.</p> <p>[Ed. Note. — Por cases in point, see vol. 40, Cent. Dig. Post Office, §50.</p> <p>Nonmailable obscene mutier, see note to Timmons v. Uniied States, 30 C. C. A. T9.]</p> <p>2. Same.</p> <p>One who causes obscene matter written by him to he printed in a newspaper, intending thereby to bring it to the attention of the readers of the paper, and knowing at Hie time that the established and regular mode of transmitting the paper to its readers is by the use of the mail, knowingly causes the, objectionable matter to lie deposited in the mail, within the meaning of section 3893 of the Itevised Statutes ftT. S. Comp. St. 1903, p. 2658], when in such regular course the paper, with the objectionable matter printed therein, is deposited in the post office for mailing and delivery.</p> <p>3. Criminal Law — Motion- in- Arrest of Judgment.</p> <p>Judgment can be arrested only for matter appearing on the face of the record, and the evidence Is not part of the record for this purpose.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Criminal Law, § 2423.]</p> <p>4. Same — Deficiency in Judgment Entry — Supplied by Reference to Other Parts of Record.</p> <p>Where the judgment as entered in a criminal case fails to specify the offense for which the sentence is imposed, the deficiency may be supplied by reference to what appears in other parts of the record.</p> <p>Hook, Circuit Judge, dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>j¡. Taxation — Tax Sapics — Confirmation of Titee- -Decree — Pbesumutions.</p> <p>Where a doc-roe has boon entered confirming a tax title, it must be conclusively presumed, so long as the decree stands, that; all oí the proceedings which culminated in the tax title; were in due conformity with the law.</p> <p>2. Pleading — Matters of Fact or Conclusions.</p> <p>A bill io set aside a decree continuing a tax title, merely alleging that the decree was null and void and inoperative to cure the defects, irregularities, and illegality in the tax title, without specifying particularly the defects relied on, is insuiiieient.</p> <p>I Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§12, 17.J</p> <p>3. Same — Jurisdictional Defects.</p> <p>"Where, under the general rules of common law, or by express statutory provision, the existence of some particular fact must be established at the trial to enable the court having cognizance of such cases to pronounce judgment in favor of one party or the other, the erroneous conclusion of the court in respect thereof is merely an error, and not a jurisdictional defect.</p> <p>4. Same — Diet,—Knowledge of Facts — Laches.</p> <p>"Where complainant did not purchase certain land which had been sold for taxes until several years after a decree confirming the tax title had been rendered, and did not institute a suit to cancel such decree until more than six years after its rendition, his bill then filed, which failed to charge that his predecessors in title (lid not know or learn of the matters alleged in the bill to invalidate the title in time to appear and assert the same in the suit brought to confirm the title, was fatally defective.</p>

<p>1. Receiving Stolen Goods — Criminal Intent — Sufficiency of Indictment Under Section 5357, Rev. St.</p> <p>Under'section 5357 of the Revised Statutes [U. S. Comp. St. 1901. p. 3639], providing for the punishment of one who receives property, which has been feloniously taken or stolen from another, knowing the same to have been taken or stolen, it is not essential to allege in the indictment that the property was received without the consent of the owner or with intent to deprive him of its use and benefit, the criminal intent and evil purpose of the receiver being sufficiently alleged where his act is characterized as unlawful and felonious. •</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Receiving Stolen Goods, § 10.]</p> <p>2. Witnesses — Incompetency—Prior Conviction Can be Shown Only by Record or Exemplified Copy.</p> <p>In the absence of a controlling statute on the subject, the incompetency of a witness by reason of his prior conviction of a felony cannot be shown upon his examination, but only by the production of the record or an exemplified copy of it.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent Dig. Witnesses, §§ 1161, 1162:]</p> <p>3. Same — Incompetency of Codefendant — Waiver if Objection is Not Made.</p> <p>Where no objection to the testimony of a codefendant on the ground of his incompetency as a witness is. made when he is sworn or at any time during the trial, the objection is waived.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1629; vol. 50, Cent. Dig. Witnesses, §§ 190-192.]</p> <p>(Syllabus by the Court)</p>

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

<p>Courts — Division on State of Washington into Two Districts — Effect.</p> <p>Act March 2, 1903, c. 1305, 33 Stat 824 (U. S. Comp. St. Supp. 1905. p. 120], dividing the state of Washington into two judicial districts, did not in effect abolish the then existing Circuit and District Courts, but left them restricted only as to territory, and Intact in all other respects.</p> <p>2. Death--Damages — Evidence—Physical Condition of Tuainttfits.</p> <p>Under Ballinger’s Ann. Codes & St. (Wash.) §4828, giving a right of action for death caused by wrongful act or neglect to deceased’s heirs or personal representatives, and providing that in every such action the jury may give such damages, pecuniary or exemplary, as under all the circumstances of the case may to them seem just, and section 4838 making an action for a personal injury to any person occasioning his death survive to his wife or children, in an action by deceased’s widow and daughter to recover damages for personal injuries to him resulting in death, evidence as to the physical condition of The widow and daughter was inadmissible.</p> <p>[Ed. Note. — ¿’or cases in point, see vol. 15, Cent. Dig. Death, § 91.]</p>

<p>1. Fraudulent Conveyances — Setting A,sit»: — Constructive Fraud.</p> <p>Under Rev. St. Ohio, § 6343, as amended April 26, 1898 (93 Ohio Laws, p. 290), providing that transfers by a debtor with intent to hinder, delay, or defraud creditors shall be declared void at the suit of any credit- or, the intent to prefer is made constructively fraudulent, rendering the transfer voidable, and il is no-t necessary, in order to set aside a transfer, that actual fraud or intent to defraud be shown.</p> <p>[Ed. Note. — For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, §§ 8, 369.]</p> <p>2. Bankruptcy — Provable Claims.</p> <p>Where a sale by an insolvent, the proceeds of which were used to pay in full certain creditors, was set aside as constructively fraudulent as to other creditors, the vendee liad a valid claim against the insolvent’s trustee for the full amount of the money he had paid, less the expenses of setting aside the sale.</p>

For decision below, see 135 Fed. 254, which affirmed a decision of the Board of United States General Appraisers, G. A. 5,640 (T. D. 25,-194), which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board of Appraisers reads as follows: SOMEI-tVILLE, General Appraiser.

<p>In Error to the District Court of the United States for the Western District of Kentucky.</p> <p>There was no opinion below. Compare U. S. v. Tiffany (C. C.) 137 Fed. 971.</p>

<p>False ImpRisonmunt — Right op Action — Conviction and Imprisonment for Violation of Void Ordinance.</p> <p>An action for false imprisonment based on the arrest, conviction and imprisonment of plaintiff for violation of an invalid city ordinance will not lie against the magistrate who tried the cause, the city attorney who prosecuted, the constable who made the arrest or the person who filed the complaint, where all acted in good faith without malice and in the belief that the ordinance was valid, and the proceedings were regular and the magistrate had jurisdiction of all prosecutions for violations of the city ordinances, which necessarily included jurisdiction to determine the validity of the ordinance.</p>

<p>1. Bankruptcy — Order Requiring Bankrupt to Surrender Property — Review.</p> <p>The issue whether an order should be made requiring a bankrupt to turn over money or property to the trustee is purely of a civil character, determinable on a preponderance of the evidence, and dependent partially, at least, upon the question of fact whether the money or property is in the possession or under the control of the bankrupt, and the finding thereon, cannot be reviewed by the Circuit Court of Appeals on a petition for revision in matter of law, unless so wholly unsupported by the proofs as would require the court, on a writ of error, to set aside a verdict of a jury for want of any evidence whatever to sustain it.</p> <p>2. Same — Married Woman — Money in Hands oe Husband.</p> <p>Money of a married woman received by her husband, but which by the law of the state is her separate property and subject to her absolute control, is presumably held by him as her agent, and the fact of his possession furnishes no excuse for her failure to deliver it to her trustee in bankruptcy, unless she shows that as a matter of fact she is unable to obtain the actual possession of it, to which she is entitled.</p> <p>3. Same — Order Committing for Contempt — Right to Hearing.</p> <p>It is error to embody in an order requiring a bankrupt to turn over money or property to his trustee, which is civil in its nature, what is substantially a judgment for contempt and an alternative order of committal therefor. The issue on the question of contempt is a separate one, on which the bankrupt is entitled to a hearing.</p>

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

11,992, granted May 20, 1902, to J. O’Leary, for a convertible car, and ordering an injunction and an'accounting. The opinion of the court below is reported in 139 Fed. 330.

<p>Appeal from the Circuit Court of the United States for the District of New York.</p> <p>Appeal from decree of the United States Circuit Court for the Southern District of New York granting an injunction and accounting. The opinion of the court is reported in 136 Fed. 600.</p> <p>Argued before ’ TOWNSEND and COXE, Circuit Judges, and HOLT, District Judge.</p>

Suit in equity to restrain the defendant from infringing alleged trade-name or trade-mark “Underwood” by selling typewriter ribbons on spools contained in boxes having the name Underwood thereon, and from infringing two certain United States letters patent, viz.: Design patent, No. 81,675, issued October 17, 1899, to Edward J. Manning, assignor to Wagner Typewriter Company, for ribbon spool for typewriting machines, and mechanical patent, No. 650,438, issued Mar- 29, 1900,…

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

<p>1. Patents — Intention—Book-Sewing Machine.</p> <p>The Reynolds & Jacobs patent, No. 435,613, tor a book-sewing machine, by means of which the signatures are sewn together to form the book by independent lines of stitches located at such points in the hack of the book as the requirements of each particular kind of book render necessary, was not anticipated, and discloses patentable invention; the machine being one of great utility and an advance on the prior art by reason of its adaptability to use on different kinds and sizes of books. Also, held infringed as to claims 3 and 15.</p> <p>2. Same — Infringement.</p> <p>Infringement is established, where, comparing the two machines, it appears that the several devices and elements of one perform substantially the saino funciions as those of the other, in substantially the same way to produce tfie same result.</p> <p>[Ed. Note. — Eor cases in point, see vol. 38, Cent Dig. Patents, § 370.]</p>

<p>1. Patents — Infringement—Washing Machines.</p> <p>The Schroeder patent, No. 535,465, for means for operating washing machines was not anticipated, and is valid. Also helé infringed.</p> <p>2. Same.</p> <p>The giving away of infringing articles as premiums with other goods sold is in effect a sale, and constitutes infringement</p>

<p>Patents — Invention—Electric Signs.</p> <p>The Chase patent, No. 620,007, for an improvement in electric signs in which letters formed with electric lamps are used, having a base' board on which the letters are mounted with slots therein, through which the connecting wires are passed, and means whereby the letters may be readily and speedily removed and changed, construed, and held not anticipated and to disclose invention; also held, infringed.</p>

<p>Patents — Infringement—Electric Motor Regulators.</p> <p>The Knight reissued patent, No. 11,918 (original No. 428,169). for an electric motor regulator consisting of an interlocking device for use on that class of electric motors, in which different levers are used for controlling and reversing the current by which each lever is locked by the other, except when the other is in a predetermined position, is limited by the narrower claims, the reissue to the specific mechanical means shown, or their equivalents. As so construed, held not infringed.</p>

<p>Patents — Int?binokmknt—VioTAiroN or Conditions or Iacunbe.</p> <p>One who knowingly buys and sells patented articles in violation of restrictions placed on their sale by the owner of the patent, fixing a minimum price at which they shall be sold as a condition of the license to use or sell, is chargeable with infringement of the patent.</p> <p>[Ed. Note. — For cases in point, seo vol. SS, Cent. Dig. Patents, §§ 397, 398.]</p>

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

<p>Bankruptcy — Time fob Proof of Claims.</p> <p>Under Bankr. Act July 1, 1898, c. 5-11, § 57n, 30 Stat. 560 [II. S. Comp. St. 1903, p. 3444], providing that claims shall not be proved subsequent to one year after the adjudication, a creditor secured by mortgage, wlio proceeds in the state court to establish his lien in full, cannot, upon an adverse decision, prove Ills claim after the time therefor has expired.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 518.]</p>

<p>1. Process — Service—Exemptions—Atten-i>a.\ce at Court — Bankruptcy PROCEEDINGS.</p> <p>Hearings l)eforo a referee in bankruptcy are within the rule that a party may attend a Judicial hearing away from the place of his residence without being subjected to the service of process.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Process, § 146.]</p> <p>2. Same — Waiver oe Pbivjxwe — Delay.</p> <p>A delay of three weeks in applying to have set aside service of summons made on one while going to the train after attending a Judicial hearing did not operate as a waiver.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Process, § 123.J</p>

<p>Bankruptcy — Proofs of Debt — Judgment Creditors.</p> <p>Under Bankruptcy Act July 1, 1898, c. 541, § 57, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], requiring creditors to file proofs of debt within one year; and section 63, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], making judgments provable debts, in order that judgment creditors may share in the distribution of the estate of a bankrupt, they must file proofs of debt.</p>

<p>Negligence — Question bob Juey — Cabe in Selection ob Servant.</p> <p>The tacts that defendant established a magazine in which a large quantity of dynamite was stored within 1,000 feet of plaintiff’s residence, with no intervening hills, and that a fire was maintained in such magazine to keep the dynamite thawed ready for use, placed upon defendant the duty of exercising a high degree of care in the selection of a custodian; and evidence that the person placed in sole charge was intemperate, and that an explosion occurred by which plaintiff was injured while in his home, was sufficient to require the submission to tbe jury of the question of defendant’s negligence in that regard.</p>

<p>Bankruptcy — Discharge—Refusal of Discharge, in Prior Proceedings.</p> <p>The dismissal of the petition of a bankrupt for discharge for want of prosecution, and the overruling of a motion to reinstate the same constitute an adjudication that he is not' entitled to a discharge which precludes his discharge in a second bankruptcy proceeding from debts that were provable in the first proceeding.</p>

<p>In Bankruptcy. On exceptions to specification of objections to discharge.</p>

<p>1. Courts — Federal Courts — Jurisdiction—Judiciart Act — Construction.</p> <p>Act March 3, 1887, c. 373, § 1, 24 Stat. 552 [U. S. Comp. St. 1901, p. 508], confers jurisdiction on the Circuit Courts of the United States of all suits of a civil nature, wherein the requisite amount is involved, and in which there shall be a controversy between citizens of different states and citizens of a state and foreign states, citizens, or subjects. The second part of the section provides that no civil suit shall be so brought in any other district than that whereof the defendant is an inhabitant, but that, when jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Held, that the jurisdiction of the Circuit Courts is conferred by the first part of the section, which cannot be affected by the consent of the parties, and that the second part of the section relates merely to the place where the jurisdiction shall be exercised, and is a mere personal exemption granted to the defendant, which he is authorized to waive.</p> <p>2. Appearance — Effect—Place of Suit — Waiver.</p> <p>Where a defendant, sued in a Circuit Court of the United States in a district other than that of his residence, appears generally, without claiming the benefit of his privilege to be sued in the district of his residence, he thereby waives his exemption.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appearance, §§ 79-82.</p> <p>Waiver of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192.]</p> <p>3. Removal of Causes — Consent of Plaintiff.</p> <p>Where an alien brought suit in a state court against a nonresident corporation, plaintiff thereby voluntarily submitted his person to the jurisdiction of any court sitting in that state having jurisdiction of the subject-matter, so that, the action being otherwise removable to the federal courts sitting in such state, it was removable by defendant without plaintiff’s consent.</p> <p>4 Same-Separable Controversies — Liabilities on Different Grounds.</p> <p>Where plaintiff, an alien, sued defendant guaranty company, a nonresident corporation, on a fidelity bond, in which the only obligation of the principal was to hold the guaranty company harmless from any liability on the bond, and in the same action plaintiff sought to hold the principal liable for the embezzlement for which action was brought on the bond, the controversy between plaintiff and the guaranty company was separable from that between it and the principal on the bond, and removable to the federal courts, regardless of the citizenship of the principal, who was a resident of the state where the action was brought.</p> <p>[Ed. Notes. — Removal of causes — Separable controversy, see notes to Robbins v. Ellenbogen, 18 O. O. A. 86; Meelce v. Valleytown Mineral Co., 35 C. C. A. 155,]</p> <p>5. Parties — Joinder—State Statutes.</p> <p>Code Iowa 1897, § 3462, provides that any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved in the action, except as otherwise expressly provided, and section 3545 declares that causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, if held by the same party and against the same party in the same right, may be joined in the same petition. Held, that such sections did not authorize different parties liable to plaintiff on different causes of action to be joined as parties defendant ill one action.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Parties, §§ 31, 32.]</p> <p>6. Removal or Causes — Separable Controversy — Aliens and Nonresidents.</p> <p>Under Removal Act, March 3, 1873, c. 137, 18 Stat. 470 [IT. S. Comp. St 1901. pp. 507-509], giving to a nonresident defendant the right to remove from a state court, any suit there pending of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, including a controversy between citizens of a state and foreign states, citizens or subjects, in wliieh the matter in dispute exceeds, exclusive of interest and costs, the sum of $2,000, a. stiit in which there is a separable controversy between an alien corporation and a nonresident corporation defendant is subject to removal.</p> <p>7. Same — Misjoinder oe Parties.</p> <p>Where, in a suit brought in a state court, it appeared by plaintiff’s petition that there was a misjoinder with a nonresident defendant of a citizen of the same state as the plaintiff, or an alien, the presence of such citizen or alien as a party defendant may be disregarded for the purpose of removal of the cause to the federal court.</p>

<p>1. Specific Performance — Contracts—Manufacture and Sale of Specific Articles — Continuing Contracts.</p> <p>A contract to remain in force for 15 years provided, that defendant should not manufacture certain electric controllers for use in the United States; that complainant would sell and deliver such' controllers to defendant at specified prices; that defendant would sell them to the exclusion of all others of the same kind, and that complainant would sell defendant's overhead trolleys to the exclusion of all others; and that if complainant failed to supply defendant with controllers pursuant to contract, defendant might manufacture them. Held, that it was not a contract of which equity would compel specific performance.</p> <p>2. Injunction — Mutuality of Remedy.</p> <p>There being no mutuality of remedy, complainant could not, in effect, enforce specific performance by an injunction restraining defendant from making and selling similar controllers in violation of its agreement.</p> <p>3. Same — -Adequate Remedy at Law.</p> <p>Where a contract for the manufacture and sale of electric equipment provided that in ease either party violated the same, it should pay as liquidated damages and not as a penalty 50 per cent, of the price at which the appliances referred to were at the time being regularly sold to users, performance at all events was not contemplated by the parties, and complainant was not entitled to an injunction to restrain defendant’s violation of the contract, on the ground that complainant had no adequate remedy at law.</p> <p>4. Same — Accounting—Discovery.</p> <p>Where a contract for the manufacture and sale of electrical appliances provided that in case of violation, the party guilty should pay the other as liquidated damages 50 per cent, of the price at which the appliance in question was being regularly sold at the time, an injunction restraining the violation of such contract could not be allowed for the reason that the damages were difficult of ascertainment, complainant being entitled to a discovery of sales made by defendant, in violation of the agreement in an action at law, as authorized by Rev. St. U. S. § 724 [U. S. Comp. St.' 1901, p. 583].</p> <p>5. Courts — Federal Courts — Practice—Demurrer—Conclusions of Law.</p> <p>The rule that a demurrer does not admit legal conclusions pleaded obtains in the federal courts.</p> <p>6. Injunction — Gjrovnds—Multiplicity op Suits.</p> <p>Where a contract bound defendant not to manufacture certain electrical controllers except on complainant’s failure to furnish similar controllers at certain prices and declared that in case of violation thereof, defendant should pay as liquidated damages, and not as a penalty BO per cent, of the price at which such controllers at the time were being regularly sold to users, complainant was not entitled to an injunction to restrain a violation of such contract, in order to avoid a multiplicity of actions at law for damages.</p>

<p>In Bankruptcy. On petition for review.</p> <p>The following is the opinion of Referee Banks, referred to in the opinion of the court:</p> <p>This is a petition by Hanft & Co., of the city of New York, alleging, in substance, that on September 13, 1905, petitioners purchased in good faith certain merchandise of the bankrupt herein, paying him therefor $1,300 and taking possession of the same; that thereafter said merchandise was taken from their possession by an officer under a writ of attachment in a suit against said Paulis, and later came into possession of the trustee herein by virtue of these bankruptcy proceedings; and praying that the trustee be ordered to surrender possession to the petitioners. I find the facts to be as alleged in the petition. The only question remaining is that raised by the demurrer to the trustee’s answer. The answer alleges that tlae alleged sale was made .without the formalities required by chapter 211, p. 408, of the Public Acts of this state of .1905, and the demurrer raises the question of the constitutionality of that act.</p> <p>This statute provides in substance that, when any retail merchant shall at a single transaction sell the whole or a large part of his stock in trade, such sale shall be void as against creditors, unless he shall at least 7, and not more than 30, days before such sale file in the town clerk’s office a notice of his intention to make such sale describing in general terms the property to be sold, the conditions of the sale, and the parties thereto. It is conceded that no such notice was filed in this ease, and that, if the statute is constitutional, the demurrer should be overruled and the petition dismissed. It is not claimed that the statute is in violation of the state Constitution, but that it is repugnant to the rule of the federal Constitution that no citizen shall be deprived of “life, liberty or property,” or be denied the “equal protection of the laws.”</p> <p>Two considerations present themselves to the referee upon, the threshold of this discussion. The first is the strong presumption which exists in favor of the constitutionality of all legislative acts. While in a proper case the authority of the court to declare a law unconstitutional is unquestioned, it should be exercised with great care and only when the case is practically free from doubt. This consideration should, perhaps, have special weight when addressed to a court of inferior jurisdiction, and in this case the referee approaches with diffidence the task which is thrust upon iiim. The second is the well-established rule that in the interpretation and construction of state statutes the federal courts will adopt the construction, if any, already placed upon the statute by the highest court of the state. A statute restricting sales in bulk was first passed in this state in 3901 (chapter 361, p. 3356, Pub. Acts 3901), as amended became section 4868 of the Revision of 1902, was again amended by chapter 72, p. 49, Pub. Acts 1903, and as now in force appears in Pub. Acts 3905, p. 408, c. 211. The original act and that of the Revision of 1902 provided that the saio should be void, unless it was in writing and recorded in the town clerk’s office within one day after the sale was made. The present act requires a notice of intention to sell to be recorded at least seven days prior to the sale. In Walp v. Mooar, 76 Conn. 515, 57 Atl. 277, the Supreme Court of this state held that the act of 3902 was not unconstitutional either as applying only to a particular class or as to depriving such persons of their property without due process of law. The court said: “The purpose of the act is to prevent fraud, and it is of the same general character as our law requiring assignments of future earnings and conditional sales to .bo recorded. It in no way interferes with the conduct of any retail business in the usual manner. It applies only to sales not made in the ordinary course of business, and imposes no unreasonable burden upon the parties to sales of that character. The Legislature lias the undoubted power to adopt reasonable measures for regulating the sale of merchandise in this state so as to prevent fraud, and we think the act under consideration is clearly within that power.”</p> <p>It must be conceded, therefore, that acting under its police power, the Legislature is authorized to adopt reasonable measures for regulating the sale of merchandise so as to prevent fraud, and that the act of 1902 was such a measure. The only question remaining is whether the present act is an unreasonable restriction upon a person’s right to dispose of his property. and in discussing that question it must be borne in mind that if “the act has a fair, just and reasonable relation to the general welfare,” it may so regulate “the conduct of an individual and the use of property” as to “interfere to some extent with the freedom of the one and the enjoyment of the other.” Wright v. Hart (N. Y.) 14 Am. Bankr. R. 584, 75 N. K. 404. Statutes regulating the sale of goods in hulk have been enacted in 23 states and by Congress for the District of Columbia. It has been said that this indicates the extent of the evil, and the necessity of legislation to suppress it, while, on the other hand, Judge Werner, in Wright v. Hart (N. Y.) 14 Am. Bankr. R. 5G5, 75 N. B. 409, calls- attention to the fact that “statutes that are passed pro bono publico rarely sweep the country with such irresistible momentum, while much fantastic legislation has resulted from organized crusades upon Legislatures by the advocates and supporters of special classes.” Though the extent of the legislation upon this subject may not. therefore, furnish any sound argument either for or against its constitutionality, it does supply a large number of statutes for comparison with the act under investigation and a number of decisions in which their constitutionality has been considered.</p> <p>Statutes regulating sales in bulk have been declared unconstitutional by the courts of New York, Ohio, and TTtali. In each of these states the statute requires (1) that seller and purchaser should make, at least five (in Ohio six) days before the sale, a full and detailed inventory showing quantity and cost price of each article, (2) full explicit inquiry of the seller by the purchaser as to name and place of residence of every creditor and the amount owing him, (3) at least five days’ notice by the purchaser personally or by registered mail to each creditor of the proposed sale, and of cost price and sales price of the property to be sold. The New York and Ohio statutes require, in addition, that the inventory should be retained by the purchaser for at least six months. The Ohio and Utah statutes make a failure to comply with the terms of the statute a misdemeanor punishable by fine or imprisonment. In each case the sale, if not made in accordance with the requirements of the act', is declared fraudulent and void. The drastic nature of these statutes is clearly pointed out in the opinions in Wright v. Hart, supra, Miller v. Crawford, 70 Ohio St. 207, 71 N. E. 633, ■Hid Block v. Schwartz, 27 Utah, 387, 76 Pac. 22, 65 L. R. A. 308, 303. Am, St. Rep. 971. On the other hand, similar statutes have been held valid in Massachusetts, Tennessee, and Washington. Squire & Co. v. Tellier, 185 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322; Neas v. Borehes, 109 Tenn. 898, 71 S. W. 50, 97 Am. St. Rep. 851; McDaniels v. Connelly Shoe Co., 30 Wash. 549, 71 Pac. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889. The Massachusetts and Tennessee laws both require the full detailed inventory to be made showing the cost price of each article, that the seller shall give the purchaser a complete list of his creditors, and that the purchaser shall notify the creditors personally or by registered mail of the sale and the terms thereof. The Massachusetts act provides that, if its .requirements are not complied with, the sale shall be void. The Tennessee act provides that the sale in that event “shall be presumed to be fraudulent and void” ns against creditors. The Washington statute requires that the vendor shall furnish the vendee with a verified list of his creditors and the amounts due them, and that unless the vendee pays the creditors appearing upon this list, or sees to it that the purchase money is applied to the .payment of their claims, Hie sale shall be fraudulent and void. It will be observed that the Massachusetts and Tennessee statutes, which have been upheld, have substantially the same requirements as the New York, Ohio, and Utah acts, which have been declared unconstitutional.</p> <p>The cases do not differ widely in the enunciation of the principles to be applied in determining the constitutionality of these acts. The power of the Legislature to adopt reasonable regulations restricting the transfer oí property to prevent fraud is conceded in each case. Taking substantially the same regulations, the one line of eases holds that they are reasonable restrictions upon the right of a person to transfer his property, and the other that they are so unreasonable as to constitute in effect a taking ot property without due process of law. The arguments in support of each position are stated exhaustively in the majority and minority opinions, respectively, in the case of Wright v. Hart. It would serve no good purpose to review that discussion, and the referee doubts his ability to add thereto. It seems to me, however, that the Connecticut act differs radically from all of those which have been referred to herein. It has hardly a feature in common, for instance, with the New York statute, save that they both treat of the same .subject-matter. The New York act requires a full detailed inventory to be made by the seller and buyer together, giving the cost price of each article. The purchaser must make explicit inquiry of the seller as to names and addresses of all his creditors and the amount due each, and obtain a written answer to such inquiry, which answer and the inventory must be retained by him at least six months. The purchaser must also at least five days before the sale notify each creditor personally or by registered letter of the proposed sale, the cost price of the merchandise to be sold, and the price to be paid therefor. It is obvious that in the case of the sale of a large department store, as instanced by counsel, these restrictions might well be prohibitive of the sale. Contrast the simple requirements of the Connecticut act. No duty whatever is laid upon the purchaser. The only requirement of the seller is that not less than 7, nor more than 30, days before the sale he shall file in the town clerk’s office a notice describing in general terms the property to be sold, and the conditions of the sale, and the parties thereto. This may be a paper of a dozen lines or less, in 'the preparation of which no technical skill is needed. No information is demanded which the seller has not at hand nor any the publication of which would prevent the sale. The act is, as was said of its predecessor in Walp v. Mooar, “of the same general character as our laws requiring assignments of future earnings and conditional sales to be recorded,” with this exception' — that the notice must be recorded seven days prior to the sale, instead of afterwards, it is true that this is a radical change obviously required if the act were to be effective. The recording of the notice after 1he sale had been made, the title passed, and the goods perhaps shipped out of the state, was very much like locking the stable door after the horse was stolen. The amendment of- the act makes it effective to prevent fraud. Does it at the same time make it unconstitutional? It undoubtedly does interfere with one’s ability to transfer his property without paying his debts. If the vendor pays his debts, he can sell without regard to the statute. The statute, without placing any burdensome duties upon either vendor or vendee, in effect gives the creditors of the former a reasonable opportunity to secure the payment of their claim out of the property of their debtor before he can place it beyond their reach. The statute does prevent an immediate transfer of the property of this Mud unless the seller can satisfy the purchaser that all his creditors will be paid. Such sales are not in the ordinary course of business, and would usually bo made only after the taking of an inventory and with no necessity of an immediate consummation. Cases can be imagined, however, where even this restriction might prove a hardship. Poes the act upon the whole so promote the general welfare as to justify the restriction upon the individual? The extent of the evil resulting from these sales of stock in bulk is a matter of common knowledge. The facts in the ease at bar disclose a transaction typical of this class.</p> <p>The bankruptcy schedules disclose that Paulis owed upwards of $0,700. Ills only assets consisted of the stock of merchandise which he sold to claimants for $J,300, although, as Ha aft testified, he first asked $2,000, which is probably about what It was worth. Claimants came up from New York, and, though they had not seen the stock before and knew nothing about it, in an hour and a half they had made their bargain with Paulis, bought the stock, and paid for It with two $500 bills and three $100 bills. As soon as he received the money, Mr. Paulis disappeared, and has not been heard of since, though his presence has been earnestly desired by bis creditors in these bankruptcy proceedings. Claimants at once proceeded to get packing cases and a truck, and when the sheriff came about three hours later had part of the stock already packed and on the truck ready to be taken to the station and shipped to New York. The vendor, with liabilities more than thrice his assets, sells his entire stock without inventory and ata large discount for cash, and at once disappears with the itroeeeds. There is no question of the fraudulent character of the transaction so far as he is concerned. The vendees say that they Inquired of Paulis if he had any creditors and he fold them that he owed nothing. A delay, not of seven days, but of a few hours, would bave brought convincing proof to the contrary in tlie appearance of tlie sheriff. It would not in such a case seem unreasonable to require of tlie purchaser something more than tlie acceptance of the inherently improbable statement of tlie vendor that he owes nothing. Creditors are in fact defrauded, but the fraudulent intent can rarely be brought home to the purchaser, who. in the absence of the statute, could buy without investigation and in absolute disregard of tlie existence of creditors.</p> <p>The more statement of these facts indicates tlie desirability of some legislation to prevent a fraud so easily perpetrated. That adopted by most of the states has, as it seems to me, gone to the limit of tlie constitutional power of the Legislature, if, indeed, it has not transcended it. On the contrary, the Connecticut Legislature lias wisely avoided the drastic features of these acts and enacted a statute calculated to suppress the evil to be remedied with tlie least possible interference with the rigid of the individual to dispose of his property. The subject-matter of the act is clearly within the province of the Legislature, and the act -itself is a reasonable regulation of the sale of merchandise so as to prevent fraud, and must, therefore, be upheld by the courts.</p> <p>Tlie demurrer is overruled, and the petition dismissed. Claimants may file a petition for review and certificate of facts thereon within 10 days.</p>

<p>In the matter of the intervening petition of the city of St. Louis, and the St. Louis, Kansas City & Colorado Railroad Company, filed herein July 12, 1886. Application and motion of the St. Louis, Kansas City & Colorado Railroad Company to construe decree herein.</p>

<p>Aliens — Natdkalization—Oí-penses—Statutes—Constbuction.</p> <p>Rev. St. § 5424 [U. S. Comp. St. 1903, p. 3668], provides that every person applying to be admitted as a citizen, or appearing as a witness for any such person who knowingly personates any other person than himself or falsely appears in the name of a deceased person, or in an assumed or fictitious name, or falsely makes, forges, or counterfeits any oath, notice, affidavit, certificate, order, record, etc., shall be punished. Held, that such provision should be construed as though it read, “or any person who falsely makes, forges or counterfeits,” etc., and as so construed prohibited the felonious making of a certificate of naturalizatipn by a person other than the “person applying to be admitted a citizen ' or appearing as a witness for any such person.”</p>

In Equity. Sur demurrer to bill. This was a suit in equity by the author and authorized publisher for infringement of copyright of the book “Mada the Lily.” A demurrer was filed on the principal ground that the bill did not allege that notice of the United States copyright had been printed in all editions of the book issued'in countries other than the United States, and did not, therefore, show a compliance with Rev. St. § 4962, which entitled complainants to maintain the…

<p>In Equity. Suit for infringement of copyright. On motion for preliminary inj unction.</p>

<p>1. Bankruptcy — Recovery •of Goods — Contract—Sale or Bailment — Wiiat Law Governs.</p> <p>In a proceeding against a bankrupt’s trustee to recover certain goods alleged to have been bailed and not sold to the bankrupt, whether the contract constituted a bailment or a sale is governed by the local law.</p> <p>2. Same' — Burden of Proof.</p> <p>Where goods sought to be recovered from the bankrupt’s possession and accounts claimed by the petitioners for goods sold by the bankrupt were standing on the bankrupt’s books in his name, both the goods and the accounts were presumptively his, and the burden was on petitioners to show title thereto.</p> <p>3. Sales — Sale Distinguished From Bailment — Contract—Construction.</p> <p>Goods were bilied by petitioners to a bankrupt at definite prices and on fixed terms of credit and discount; the bankrupt undertaking to settle or pay for them and to be responsible for the freight. He also agreed to give petitioners his exclusive trade and to render accounts for goods sold every six months. He was also required to hold separate and in trust all “goods unsold and all currency, open accounts, notes, liens, mortgages, or other values received for goods sold,” and that, where goods were sold on credit, notes should be taken on blanks furnished by petitioners and made payable to tbeir order, the bankrupt indorsing and guarantying them, ¿eld, that the trust provision of the contract related merely to the manner of payment for the goods, and that the contract was one of sale, and not of bailment.</p>

In Bankruptcy. On specifications of objection to discharge. Held: to wit, at Chicago, Saratoga, Buffalo, and Milwaukee, at which conventions the subject of perfecting amendments to the law was considered, and a pretty general discussion ivas liad at such conventions on all subjects, except those in relation to compensation of the referees, upon which subject they liad voted never to make any…

The bill in this case was filed January 25, 1006, by the New York Cotton Exchange, against. Clarence P. Hunt.

<p>1. Criminal Daw — New Trial — G-rounds.</p> <p>Where jurors who had read certain newspaper comments were excused from service, and only those selected wlio had seen none of the articles objected to, the court’s refusal to grant a continuance on the day the cause was called for trial, because certain newspapers had published a ■ highly sensational article that morning with reference to the matter in controversy, was not ground for a new trial.</p> <p>2. Same — Misconduct of Jurors.</p> <p>That one of the jurors during the trial had possession of a newspaper containing a report of the trial of the case, and some incidents connected therewith, which he did not read, and that another juror found a newspaper in the jury room, and read certain matter with reference to the case, which wasi not prejudicial to defendant, was not ground for new trial.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Gent. Dig. Criminal Law, § 2252.]</p> <p>3. Same — Conspiracy—Declarations of Conspirators.</p> <p>Where, in a prosecution for conspiracy to use the mails in furtherance of a scheme to defraud, in violation of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], the government established a prima facie case of conspiracy, it was then properly permitted to show all relevant declarations of the co-conspirators made in furtherance of the conspiracy, though in defendant’s absence.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Daw, §§ 989-1001.]</p> <p>4. Same — Evidence—-Motion to Strike.</p> <p>Where, in a prosecution for conspiracy to use the United States mails with intent to defraud, defendant’s counsel, knowing that a person had been arrested for an alleged attempt to bribe one of the government’s witnesses, asked her on cross-examination if anyone had offered to “make up to her” the money she had lost, and insisted that she answer the question, which she did, to the effect that a certain party had approached her and offered her money back if she would speak for defendant, defendant was then not entitled to have the answer stricken out and to withdraw a Juror.</p> <p>5. Same — Arrest Dceing Trial.</p> <p>Where, during a criminal prosecution, the government obtained information sufficient, to justify the arrest of a person for attempted subornation of one of the government’s witnesses, it was proper for the district attorney to cause such arrest to be made without waiting for the termination of the trial.</p> <p>6. Same — Dimitations.</p> <p>Where an indictment charged that defendant and others did, on the 18th day of April, 1904, unlawfully, etc., conspire together to commit an offense against the United States, and the evidence established that defendant came into the conspiracy in October, 1902, while the indictment was found June 15, 1905, the offense was not barred by the three-years’ limitation fixed by liev. St. § 1004 [U. S. Comí). St. 1901, p. 713.1</p> <p>7. Indictment — Issues and Proof — Place and Time of Offense.</p> <p>While the time and place of the commission of an offense must be averred, it may be proved to have been committed on any day prior to the finding of the bill during the period of limitations.</p> <p>[Ed. Note. — For eases in point, see vol. 27, Cent. Dig. Indictment and Information, § 548.]</p> <p>8. Criminal Daw — Verdict—Effect—Dimitations.</p> <p>After a plea of not guilty, a general verdict of conviction establishes the fact that the act charged in the indictment was committed within the time fixed by the statute of limitations.</p>

In Admiralty. On exceptions to report of commissioner. The following is, in substance, the report of Henry P. Brown, commissioner : It was shown to your commissioner by competent and respectable testimony that Dr. John M. B. Ward, the deceased, had been for 8 years prior to his death assistant quarantine physician at Marcus Hook, on the Delaware river. He had been a physician i'or 32 years and was then 39 years of age.

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

<p>1. TiíAIM-MARKS — iKl'lilXOKM lONT — DlXIBPTtON OR BUYERS- — EVIDENCE;</p> <p>Evidence examined, and hold insufiieiont to show that buyers were decerned by the defendant’s use of any feature of the complainant’s label on tobacco packages which was peculiar to the complainant and which the defendant has no right to use.</p> <p>LEd. Note. — Unfair competition in trade, see notes to Seheuer v. Muller, 20 C. C. A. 165; Bare v. Harper & Bros., HO C. C. A. 376.]</p> <p>2. Same — 1’raud.</p> <p>While fraud alone is not sufficient to entitle the complainant to a decree restraining unfair competition, yet it is a fact to be taken into consideration by the court.</p> <p>[Ed. Note. — For cases in ¡joint, see vol. 40, Cent. Dig. Trade-Marks and Trade-Names, §§ 78-80.1</p> <p>3. Same — Deception op Puistuc — Meaxs.</p> <p>A dealer may lawfully seek to enlarge his custom by selling cheaper than a rival packages of tobacco put up in an old form even though they deceive a careless public, but he may not lawfully seek to obtain the rival’s custom by deceiving the public through the appropriation of some characteristic of the rival's package which was new in the art, and is the rival’s peculiar property.</p> <p>[Ed. Note.' — Dor case in point, see vol. 46, Cent. Dig. Trade-Marks-and Trade-Names, §§ 83, 83. 86.]</p>

<p>1. Bakks and Banking — Insolvency—Receivers—Claims—Establishment —Separate Suit.</p> <p>Where the court in which the settlement of the affairs of an insolvent bank was pending permitted a creditor to establish his claim in a separate suit, and, after the claimant’s judgment was reported to the court, it appointed a special receiver to enforce the stockholders’ liability to pay the same, it was no .defense to a suit against a stockholder that the claim should have been filed with the receiver in the original suit.</p> <p>2. Same — Stockholders’ Liability — Statutes—What Law Governs.</p> <p>While, in a proper case, the liability of a nonresident stockholder of an insolvent bank would be determined by the construction placed on the statute creating such liability by the courts of the domicile of the corporation, the remedy or method of enforcing such liability against him must conform to the procedure of the forum whose aid is invoked.</p> <p>3. Same — Subscription Liability — Power to Enforce.</p> <p>During the solvency of á bank, tile stockholders’ subscription liability can only be enforced by assessment made in conformity with the bylaws of the corporation.</p> <p>4. Same — Liability after Insolvency.</p> <p>After a bank has become insolvent and its property has been placed in the hands of a receiver for liquidation, the court in which the receivership proceedings are pending has power to levy assessments against stockholders to enforce their subscription liability.</p> <p>5. Same — Suit Against Stockholder.</p> <p>Prior to the levy of an assessment, a stockholder of a bank cannot be pursued by suit to enforce his subscription liability.</p> <p>6. Same — Judgment Against Bank — Conclusiveness as Against Stockholders.</p> <p>Where a creditor of a bank obtained a judgment against it for services rendered after the bank was placed in the hands of a receiver, such judgment, though prima facie conclusive on the question of the indebtedness of the corporation did not deprive a court of equity sitting in another state of the right to determine whether the claimant’s right of action was such as to bind the stockholders, in a proceeding to enforce a stockholder’s subscription and statutory liability.</p> <p>7. Banks and Banking — Insolvency—Stockholders—Power to Bind.</p> <p>Where a bank became insolvent and went into liquidation, its power to bind its stockholders ceased except with reference to transactions implied in the duty of liquidation.</p> <p>8. Receivers — Suit in Foreign Court — Power.</p> <p>An ordinary receiver of a bank acting in an equity suit to liquidate the bank’s affairs having no other title to the corporation’s assets than that derived from the order of the court appointing him, has no power to sue in a foreign jurisdiction to enforce an alleged liability of stockholders.</p>

<p>1. Bankruptcy — Reopening Estate.</p> <p>Where bankrupt partners were refused a discharge after the estate in bankruptcy had been closed, on the ground that they had in their possession several thousand dollars in money which they did not schedule, and there is evidence tending to show that they have since invested such money in property in the names of other persons, creditors are entitled to have the estate reopened, to the end that proceedings may be instituted to recover such property for their benefit.</p> <p>2. Same — Phoceedings fob Second Adjudication.</p> <p>A bond given by bankrupts on an appeal from an order refusing them a discharge is merely one for costs, and does not suspend or affect the right of creditors to institute 'proceedings to have them adjudicated bankrupts a .second time, on the ground of the commission of a new act of bankruptcy; and such proceedings .cannot be maintained after the lapse of more than four months from the date of such act.</p> <p>3. Same — Right to Second Adjudication — After-Acquired Property.</p> <p>Creditors who have proved their claims in bankruptcy are not entitled, while the estate is still in process of administration, but after the bankrupt has been refused a discharge, to maintain proceedings to have him adjudged a bankrupt a second time on account of the same debts, on the ground that he acquired property after the first adjudication, which he is alleged to have conveyed in fraud of his creditors.</p>

<p>3. Bankeuptcy — Secubed Claims — Pisoor—Amount.</p> <p>Where a creditor of a bankrupt received certain orders drawn on third persons to secure payment of his claim, such creditor was only entitled to prove the balance of his claim after accounting for and crediting the value of the orders as provided by Bankr. Act July 1, 1898, c. 541, §§ t>7e, 37h, 30 Stat. 5(50 [U. S. Comp. St. 1901, p. 3443],</p> <p>2. Same — Accepted Oeders — Assignments—1Transfer of Property — Preferences.</p> <p>Accepted orders drawn by a bankrupt on third persons given to a creditor as security for his claim were effective as assignments of the funds on which they were drawn and constituted a transfer'of property within Bankr. Act 1898 relating to preferences.</p> <p>3. Same — Intent to Prefer — Relief.</p> <p>Where a creditor of a bankrupt at the time he reaeived a preference had reasonable cause to believe that a preference was intended, and should have known from the circumstances surrounding the bankrupt’s condition that he was insolvent,. the creditor’s actual belief was immaterial on the issue of. the voidability of the preference.</p> <p>4. Same — Evidence.</p> <p>A bankrupt at the time he assigned certain orders for work done to a creditor was slow pay, and without adequate means to carry on his building contracts. The amount due the creditor had been long past due, and for several months the bankrupt had been unable to make payments. His real estate was heavily mortgaged, and he had borrowed all he could at the bank, and was admittedly dependent on collections on his contracts to keep him going, and the creditor before taking the orders which he first refused, threatened to sue unless something was done. Held, that such facts were sufficient to require a finding that the creditor had knowledge that the bankrupt was insolvent at the time of the transfer, and that the same was therefore a voidable preference as provided by Bankr. Act July 1, 1898,- c. 541, §§ 57g, 60b, 30 Stat. 560, 562 [TJ. S. Comp. St. 1901, p. 3443], as amended by Act Feb. 5, 1903, c. 487, § 12, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, 689].</p> <p>5. Same — Transfers by Third Person.</p> <p>Where, after a bankrupt had made an assignment for the benefit of his creditors, and just before bankruptcy proceedings were instituted against him, the firm of which he was a member paid an entire claim against him on which the firm was at most only partially liable, such payment did not constitute a preference to such creditor received from the bankrupt.!</p>

<p>In Bankruptcy. " On petition to review referee’s order.</p>

<p>1. Bankruptcy — Receiver—Right to Sue.</p> <p>Bankr. Act July 1, 1898, c. 541, § 2, cl. 3, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3421], authorizes the appointment of a receiver by a court of bankruptcy, in case it is necessary for the preservation of the estates for the court to take charge of the property of the bankrupt after the filing of the petition, and until it is dismissed or the trustee Is qualified. Held, that a receiver appointed under such section has only power to take charge of the visible property of the bankrupt and preserve It as a custodian until the appointment of a trustee, and is without power to sue to set aside an alleged fraudulent transfer of the bankrupt’s property.*</p> <p>2. Fraudulent Conveyances — Creditor’s Suit — When Maintainable.</p> <p>Act 'Pa. March 28, 1905 (P. L. 62), provides that certain sales of personal property in bulk and out .of the ordinary course of business shall be void as to creditors, unless certain requirements are complied with, and authorizes the maintenance of a suit to set the same aside within 90 days. Held, that where it was impossible for creditors to pursue their claims to judgment and execution against the property alleged to have been transferred in violation of such act within the time specified, any creditor was entitled to file a creditor’s bill on behalf of himself and others to set aside such transfer.</p> <p>3. Bankruptcy — Creditor’s Suit.</p> <p>Where it was impossible for creditors to pursue their claims to Judgment and execution against the property alleged to have been transferred in violation of Act Pa. March 28, 1905 (P. L. 62), within the time specified by such act, any creditor was entitled to file a creditor’s suit on behalf of himself and others to set aside such transfer, either before or after bankruptcy proceedings against the debtor.</p>

<p>Shipping — Steamer Causing Dangerous Swell- — Liability for Injury o» Another Vessel.</p> <p>■ A large steamer which proceeds at such speed as to create a swell which causes injury to another vessel of a kind properly in the waters which she is natvigating, and which is properly handled, is liable for such injury.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 345. J</p>

<p>BANKRUPTCY — VOLUNTARY PROCEEDINGS — SlNGTJB DEBT-No ASSETS.</p> <p>A debtor having but one debt and no assets to which the trustee can take title may become a voluntary bankrupt under section 4 Bankr. Act July 1. 1808, c. 511, 30 Stat. 547 [O'. 8. Comp. St. 1001, p. 3423], which provides that any person who has “debts’’ except a corporation, .shall be entitled to the benefits of the act, section 1, subd. 29, providing that words importing The plural number may be applied to and mean only a single person or thing.</p>

<p>1. Bankruptcy — Involuntary Pbooeedings — Dismissal--Seizure oit Property — Bonds—Liability op Ceedttobs.</p> <p>Where, pending involuntary bankruptcy proceedings, the creditors secured a warrant under which the marshal took possession of the alleged bankrupts’ canning factory, and a bond was executed, as required by Bankr. Act, 1898, § Se [U. S. Comp. St. 1901, p. 3123], conditioned for the-payment of all costs, expenses, and damages caused by the seizure, taking, and detention of the property, on the dismissal of the bankruptcy proceedings, the alleged bankrupts eouid only recover on the bond such costs, expenses, and damages as were incident to the taking and withholding of the property, as distinguished from costs, expenses, and damages incident to the institution of bankruptcy proceedings.</p> <p>2. Same — Injury to Property.</p> <p>Where the marshal, while in possession of the property, permitted certain pipes thereon to freeze and burst, the alleged bankrupts were entitled to recover damages sustained thereby on such bond, notwithstanding they had free access to the factory, the petitioning creditors, in taking possession of the property through the marshal, assuming full responsibility for its care.</p>

<p>1. ADMIRALTY — SUIT TO RECOVER VESSEL — RIGHT OF REAL PARTEES IN INTEREST to Defend — Stipulate for Costs, etc.</p> <p>In a suit in admiralty to recover a vessel which has been seized by state officers for violation of a state fishery law, and is held by respondents merely as their custodians, such officers or other representatives of the state may appear and answer without giving the stipulation with sureties for the payment of costs and damages required from interveners by admiralty rule 34.</p> <p>2. Courts — Conflict of Jurisdiction — Libel Against Vessel Seized under State Law — Appearance for State — Motion to Dismiss — Practice.</p> <p>A court of admiralty is not deprived of jurisdiction of a suit to recover possession of a vessel duly licensed and enrolled, under the navigation laws of the United States, by the appearance of officers of the state claiming to iiold the vessel under process issued by a state court for violation of a state fishery law, where the constitutionality of such law is seriously attacked by the libelant, since such appearance does not render the suit one against the state, within the meaning of the eleventh constitutional amendment, and the question is one which it is competent for the libelant to raise, and for the court to determine.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below, G. A. 5,885 (T. D. 25,914), affirmed the assessment of duty by the collector of customs at the port of Philadelphia, on importations by the Franklin Sugar Refining Company. The case involves the construction'of the convention between 1he United States and Cuba (33 Stat. 2136), signed December 12, 1902, and approved by Congress December 17, 1903 (33 Stat. 1, e. 1).

<p>In Bankruptcy. On question certified by referee.</p>

<p>Motion for Judgment by Plaintiff on Report of Referee, and Motion by Defendant for a New Trial on Exceptions to Such Report.</p>

<p>1’EirovAT, or Causes — Diversity of Citizenship — Intervener—Heat, Party to Suit.</p> <p>Tlie lessee under a long term lease of a railroad assuming all the lessor’s obligations is the real party to a suit to compel the lessor to grant switch connections in accordance with a stipulation in its grant of right of way, and is entitled to intervene; and being a citizen of another state is entitled to a removal to the federal court.</p> <p>[Ed. Note--For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 81.]</p>

In Bankruptcy. On involuntary petition. The following is the substantial part of the report of William li. Held: the facts above reported warrant the conclusion that, when, on November 27, 1903, she. assigned to Brady 81,137.69 of the Altruria street contracts, she transferred, while insolvent, a portion, if no! all, of her property to one of her creditors, and this necessarily; she being chargeable with'the consequence of her acts, with intent…

This cause comes hero upon appeal from a decree of the District Court, Western District of New York, adjudicating appellant a bankrupt. Counsel for petitioning and intervening creditors moves that the appeal be dismissed, because it was not taken within the time prescribed by the act.

This suit was originally instituted by the defendant in error, in the city court of Birmingham, to recover damages of the plaintiff: in error, and was subsequently removed to the circuit court The complaint, filed by the plaintiff, contained the three following counts: “First Count.

<p>1. Banks and Banking — Authority of Officers — Borrowing Money.</p> <p>The executive officers of a national bank may legitimately borrow money for the bank’s use, in the usual course of business without special authority from their board of directors.</p> <p>2. Same — Conversion ey Correspondent — Fictitious Deposit.</p> <p>The president of a national bank discounted his note with a correspondent bank under an agreement by which the latter placed the proceeds to the credit of his own bank in a special account which was not subject to check, but was to be held to meet the note at its maturity. The books of his bank showed'the amount as a deposit in its general account with the correspondent, the purpose being to deceive tile examiner. On the failure of his bank the correspondent charged the note to the special account In accordance with the agreement. Held, that the amount to the credit of the insolvent bank in such account did not in fact belong to it, hut remained the property of the pretended lender; tho whole transaction being merely a subterfuge, and that its application to the payment of the note was not a conversion.</p> <p>3. Same.</p> <p>If the transaction be regarded as a real, and not a pretended, loan, it was one made for the benefit of the borrowing bank, and not of its president, and its application to the payment of his nolo, which was in reality that of the bank, was within the right of the lender.</p>

<p>On Application for Writ of Habeas Corpus.</p>

The American Bridge Company, the defendant below, complains of a judgment which Edward M. Seeds recovered against it for an injury he sustained while he was in its employment. The bridge company was engaged in removing the old railroad bridge and in constructing a new bridge across the Missouri river at Atchison.

<p>1. MASTER AND SERVANT — SAFE PLACE AND MACHINERY — REASONABLE CARE— Limit of Doty Regarding-.</p> <p>The limit of the master’s duty to his servant regarding places and appliances is to exercise ordinary care, having regard to the hazards of the service, to provide the servant with' reasonably safe working places; machinery, tools, and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair. It is not his duty to provide reasonably safe working places, machinery, tools, or appliances, or to keep them in a reasonably safe condition of repair.-</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, |§ 171-177.]</p> <p>2. Appeal — Practice—Error Implies Prejudice.</p> <p>The legal presumption is that error produces prejudice. It is only when the fact appears so clearly as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced, the coin-plaining party, that the rule that error without prejudice is no ground for reversal is applicable.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4029-4033.]</p> <p>3. Same — Charge of Court — Contradictory Rules in. Fatal.</p> <p>The vice of a wrong rule in a charge is not extracted by the fact that the right rule is also given, because it is impossible to tell by which rule the jury was governed.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. .Dig. Trial, § 718.].</p> <p>(Syllabus by the Court.)</p>

<p>On Application lor a Writ of Habeas Corpus.</p>

<p>1. Eminent Domain — Railroads—Right or Way — Appropriation-—Property Owner — Remedies. ,</p> <p>Where a railroad company appropriated plaintiff’s lot without exercising its right of eminent domain or otherwise legally, acquiring title or-right io do so. plaintiff could waive the trespass and recover compensation for all damages sustained by reason of such appropriation.</p> <p>[Ed. Note. — For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 729.]</p> <p>2. Same — Payment of Judgment — -Passing Title.</p> <p>Payment of the judgment recovered by plaintiff in such action was a condition precedent to the passing of title to the land appropriated under Const. Kan. art. 12, § 4, declaring that no right of way shall be appropriated to the use of any corporation until full compensation thereof be first made in money or secured by a deposit-of money to the owner.</p> <p>[Ed. Note. — For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§851, 852.]</p> <p>3. Same — Judgment—Conclttstveness—Parties—Successors in Inteeest.</p> <p>Where, after a -railroad company appropriated certain land belonging to plaintiff for a right of way, without right, plaintiff recovered judgment in a suit on a quasi contract for the value of the land, such judgment was conclusive as to plaintiff’s damages, not only as against the company guilty of such taking, but also against a successor corporation which purchased the railroad under foreclosure proceedings.</p> <p>4. Mortgages — Foreclosure—Decree—Effect.</p> <p>Where a decree foreclosing a railroad mortgage reserved to the court jurisdiction, both as against the parties to the suit and the purchaser at the contemplated sale, to adjudicate all pending and undetermined claims presented, whether contracted by the receiver or the mortgagor company before commencement of the suit, and to determine whether such claims were valid and entitled to priority over the mortgage' debts, etc., a creditor of the mortgagor company holding judgment for damages for land appropriated by (he mortgagor company for a right of way, who ivas not a party to the foreclosure proceedings, was not bound by the foreclosure decree, nor required to enforce his judgment by intervention therein.</p>

<p>Appeal — Appealable Decree — Dismissal as to Subordinate Issue.</p> <p>A decree dismissing á bill, in so far as relates to one branch only of the controversy between the parties, and that a subordinate one, leaving the principal issue in the case undetermined, is not a final decree, and is not appealable.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 501.]</p>

<p>1. CARRIERS — (CONTRACT OP SHIPMENT.</p> <p>Neither a bill of lading nor any other writing is necessary to constitute a contract of shipment, an oral contract, in the absence of fraud or imposition, when satisfactorily proved, being as obligatory on both carrier and shipper as a written one.</p> <p>[Ed. Note. — For-cases in point, see vol. 9, Cent. Dig. Carriers, §202.]</p> <p>2. Same — Evidence of Contract — Unsigned Bilí, of Lading.</p> <p>Plaintiff, through an agent, delivered certain goods to defendant railroad company for shipment, and asked for a bill of lading, which was given, but the station agent neglected to sign it. The goods having been lost, plaintiff brought suit for their value, setting up the writing as the contract of shipment. Held, that the paper, while not constituting a written contract, was evidence of the contract actually made, and, in the absence of any evidence to the contrary, established the terms of such contract.</p> <p>3. Same — Limitation of Liability for Loss op Goods.</p> <p>A contract, by which the liability of a carrier for loss of goods in shipment is limited to an agreed value per hundred pounds, in consideration of a reduced rate given the shipper, is valid, and enforceable.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 663-667.]</p> <p>4. Same — Contract of Shipment — Estoppel.</p> <p>Where a .shipper accepted and acted on a paper given to his agent as a bill of lading, and which, contained a provision limiting the carrier’s liability in ease of loss, he cannot deny that such was the contract, on the ground that his agent was unable to read it.</p> <p>6. Appeal and Error — Affirmance—Remission of Part of Recovery.</p> <p>Where a railroad company, when sued by a shfijper for a loss of goods, pleaded a limitation of its liability, but did not tender or offer to pay the amount due upon its oivn construction of the contract, and, relying on ■another defense, contested the case and carried it through several courts, incurring heavy costs, on a final decision sustaining its contention as to the limitation, the appellate court will affirm the judgment for the reduced amount bn a remittitur of the excess by plaintiff.</p>

This is an action to recover damages for the breach of a contract brought by John Burnett, plaintiff, a citizen of Louisiana, against the Kirby-Carpenter Company, defendant, a corporation chartered under the laws of the state of Illinois.

<p>1. Corporations — Powers op Public Service Corporations — Sale op Property.</p> <p>The rule that a public service corporation cannot without the ¿ssent of the Legislature, transfer its franchise and property to another, and thus disenable itself to perform its duties to the public, does not apply where the transfer is to the public, and a contract by a gas company made' in accepting its franchise from a city giving the municipality the right to buy all of its property therein at appraised value is not ultra vires. ' .;</p> <p>2. Municipal Corporations — Grant op Franchise — Conditions.</p> <p>It is competent for a city in granting a franchise to a gas company to use its streets to make the grant terminable after a specified term or whenever after a stated number of years it shall elect to purchase the company’s plant and property at an appraised valuation, and it is not beyond the power of the company to accept the franchise on such conditions, since its charter from the state gives it no right to exercise its functions within the city except on such terms as the city may impose.</p> <p>3. Same — Powers—Purchase op Natural Gas Plant.</p> <p>Statutory power given a city “to construct and establish gas works, or to regulate the establishment thereof” by others is broad enough to authorize the city to contract for the purchase of a natural gas distributing plant, and the construction of the term “gas works” is not to be narrowed by the fact that when the authority was granted,' natural gas was not known to be a product available for use in the locality.</p> <p>4. Same — Option to Purchase Gas Plant — Validity.</p> <p>An option reserved by a city in the grant of a franchise to a gas company to purchase “the entire plant or plants” of the company at an appraised valuation is not defeated by the fact that the company had disposed of a portion of its property^ before the city sought to exercise it, but is enforceable as to the remaining property ;• nor can the right of the city to exercise such option be defeated on the ground that it intends to resell the plant or on the ground that it has no legal power to raise the-money to pay for it, such matters being of no concern to the company or its stockholders.</p>

<p>1. Chattel Mortgages — Validity—Agreement ros Sam and Replacemekt op Property by Mortgagor.</p> <p>Under tlio New York authorities, a chattel mortgage on property in that state, including materials in a shipyard, which expressly gives the mortgagor the right before default to soil, use, and replace any or all of the property and to use the money received therefor in its business generally. is void as against the trustee in bankruptcy of the mortgagor, notwithstanding a provision that the security shall not be thereby in any way reduced or impaired.</p> <p>2. Same — Ajttee-Acqvikeu Property — Law of New York.</p> <p>A mortgage given by a shipbuilding company which subsequently became bankrupt covered all the materials, tools, vessels, and other personal property in its yards, and contained an after-acquired property c-lause. It also contained a recital that the mortgagor was doing a general manufacturing business, and that the mortgage was given to secure money borrowed for the purposes of its business. Held, that such recitals did not amount to an agreement that the mortgagor should have the right to sell or use the materials mortgaged and apply the proceeds to its general use, and that, under the New York decisions which governed tile case, the mortgage was valid as to such property or materials as were on hand when it was given, and remained so and passed into the hands of the receiver in bankruptcy, but was not valid as to after-acquired property, and therefore not a lien on a houseboat in the yards ehielly built with labor and from materials furnished after it was given, although some of the material may have been taken from the stock then on baud.</p>

This cause comes here upon appeals from decrees of the District Court which held the steamtug Carlisle solely responsible for the damages resulting from a collision between one of her tow, the barge Oak Hill and the schooner Gladys. The opinion of the District Judge is reported in 135 Fed. 601.

<p>Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York.</p> <p>Tills is a petition by tbe Ninth National Bank of New York to review two orders made by the District Court for the Southern District of New York. The first of these orders is dated April 11, 1905, and is as follows:</p> <p>“Ordered, that all proceedings in a certain suit in the New York Supreme Court, County of New York, entitled ‘Ninth National Bank, plaintiff, against Marcus A. Adler, impleaded with others, defendants,’ upon the part of the plaintiff in said action and its attorneys, agents and servants, be, and they are and each-of them is hereby stayed as against said Marcus A. Adler for the space of twelve months from the date of the adjudication herein, or if within that time the said bankrupt shall apply for a discharge, then until the question of such discharge shall be determined. And that said plaintiff in said action and its attorneys, agents and servants be, and they are and each of them is hereby, enjoined and restrained during said period from further proceeding in said action, and particularly from' proceeding in said proceeding to punish the above-named bankrupt Marcus A. Adler as and for a civil contempt of said Supreme Court.”</p> <p>The second order is dated May 19, 1905, and is an order denying a motion to vacate the order of April 11, 1905. ■ Adler -was adjudicated a bankrupt April 10, 1905.</p>

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

On appeal by both parties from a decree of the District Court of the Southern District of New York finding the libelant’s ferry-boat Hamburg’ and the steam tug Berwind jointly liable for the damage to the ferry-boat occasioned by a collision between them on the 11th of September, 1903, opposite the foot of Barclay street, North river. The decree awarded the libelant half its damages and costs, amounting to $4,785.97. No opinion was written in the District Court.

This cause comes here upon appeal from a decree of the district court, Southern District of New York holding the tug E. D. Eevy liable for damages to the barge Stunner, which she had in tdw and which collided with a sunken wreck in the Hudson river near Dow’s Point just below Albany. The facts are rehearsed in the opinion of the district judge, reported in 108 Eed. 435.

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

<p>Bankruptcy — Preferred Claims — Sales—Bailment.</p> <p>A contract for the reduction of ore between claimant and the T. company, the bankrupt’s predecessor, provided that the claimant should deliver ore to the T. company for reduction on a schedule of treatment rates which included freight to the mill, that settlement for all ore shipped by claimant to the T. company should be based on the latter’s weights and samples, that, in case of disagreements as to assay values, the same should be submitted to certain arbitrators, and that payments for all gold ore delivered should be made by the T. company promptly on agreement as to assay values, on a basis of §20 an ounce for gold, less treatment charges. On delivery of ore each car was numbered and weighed, a test made to determine moisture, and samples taken and divided into three parts — one for the claimant, one for the T. company, and a third for the umpire in case of dispute — after which the ore was mixed with ore shipped by others, and it was then impossible to identify claimant’s ore. All risk of loss through theft or failure of the ore to come up to sample value was on the T. company, and settlements were made by a check of the latter, in which it was treated as a debtor. Held, that the contract construed by the parties’ method of business operated as a sale of ore delivered and not as a bailment, so that claimant was" not entitled to a preference in the distribution of the assets of the T. company’s bankrupt successor.</p>

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

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the steam tug McCaldin solely in fault for collision between her tow the schooner James Young, and a car float in tow of the steam tug Transfer No. 10. The transfer was bound from Jersey City to the docks of the New Haven Railroad at Oak Point opposite to North Brother Island. She had a car float lashed to each side and projecting 200 feet beyond the stem of the tug.

States for the Southern District of New York. This is an appeal from a decree in equity, entered in the Circuit Court for the Southern District of New York, directing the specific performance of a contract to pay the sum of ÍS5.000 annually to the complainants as the personal representatives of Christian Dancel, deceased.

This cause comes here upon an appeal from a decree of the District Court, Southern District of New York, holding both vessels in fault for a collision between the Senff and a car float in tow of the Gladiator. The collision happened in the East river near the Brooklyn Bridge, and the opinion of the district judge is reported in 132 Fed. 876. -

<p>Teade-Marks and Trade-Names — Unfair Competition — Similitude in Dress of Goods.</p> <p>Certain forms and styles of cards, used by defendant and containing hooks and eyes of its manufacture as dressed for market, held not to have such similitude to those of complainant as to constitute infringements or to make a case of unfair competition, and others held to infringe.</p>

In the decision below the Circuit Court affirmed without o£>inion a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty as to excess alcohol surrounding cherries imported under the provisions of the tariff act of 1897 by the collector of customs at the port of New York. The subject of the controversy consisted of fruit preserved in spirits, imported from France.

<p>Patents — Infringement—'Telephone Switchboards.</p> <p>The Scribner patent, No. 609,708, for apparatus for telephone switchboards, the principal feature of which is the use of electric lamps as signals to indicate whether a line with which connection is made is free or busy, together with the mechanical means shown for operating such signals, construed, and, as limited by the prior art, held not infringed.</p>

This is an appeal from a decree of the Circuit Court of the Eastern District of New York dismissing the bill, on the ground of nonin-fringement, in an equity action founded on letters patent No. 553,740, granted January 28, 1896, to the complainant for a “starter’s gate for race tracks.”

This cause comes here upon appeal from a decree of the Circuit Court, District of Connecticut, dismissing a bill in equity. The suit is for alleged infringement of two United States letters patent. The first is No. 750,177, dated March 29, 1904, to complainant for seamless woven cartridge belt. The second is No. 756,178, dated March 29, 1904, to the same patentee for a cartridge belt.

This cause comes here upon appeal from a decree of the Circuit Court, Eastern District of New York, dismissing a bill of complaint. The suit was. for alleged infringement of United States letters patent No. 573,205, issued December 15, 1893, to J. W. Carter for a gas heater.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below, which is known as G. A. 6,026 (T. D. 26,334), affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board of General Appraisers reads as follows: MCCLELLAND, General Appraiser. This protest involves the classification of certain granite monuments on four separate invoices.

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,878 (T. D. 25,891), which affirmed the assessment of duty by the collector of customs at the port of New York. .The case involves the construction of the provision in Tariff Act July 24, 1897, c. 11, Schedule N, § 1, par. 408, 30 Stat. 189 [U. S. .Comp.

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,142, T. D. 26,687, which affirmed the assessment of duty by the collector of customs at the port of New York. The case involves the construction of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 414, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674], with reference to parts of buttons. Said paragraph reads as follows: “414.

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

<p>Removal of Causes — Delay in Prosecution — Dismissal.</p> <p>Where, after removal from tlie state court, a rule was granted on the plaintiff in the federal court to show cause why the case should not be proceeded with, though plaintiff’s counsel has been negligent, the federal court is not authorized to enter an order of nonsuit and dismissal and award defendant costs, with judgment and execution against plaintiff for the same, but can only dismiss the proceedings and remand them to the state court.</p>

<p>Street Railroads — Injury of Person on Street — Action for Damages.</p> <p>Evidence of the negligence of a defendant in operating a street ear by which plaintiff was injured, by running at excessive speed, and failing to give warning by signals, and of contributory negligence by plaintiff, held such as to render proper the submission of both issues to the jury.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent Dig. Street Railroads, §§ 251-257.]</p>

<p>Habeas Corpus Proceedings.</p>

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

At Law. On demurrer of defendant Banigan to plaintiff’s declaration, and plaintiff’s demurrer to defendant Banigan’s second, third, and fourth pleas.

Omitting formal allegations, the complaint states, in brief: That on April 19, 1902, plaintiff had on deposit with the defendant bank $10,000, on which date he entered into a contract with defendants, which is made a part of the complaint; that on March 20, 1902, in the district court of Silver Bow county, state of Montana, there was rendered a joint judgment in favor of William Lowery and others, as plaintiffs, against the plaintiff herein and Davis and Andrews, as…

<p>In Bankruptcy. On report of special commissioners on application for order requiring bankrupt to turn over assets.</p> <p>The following is the report of Robert F. Tilney, Special Commissioner :</p> <p>“This matter was referred to me as special commissioner upon the return of an order to show cause'why the bankrupt should not turn over to the trustee certain property, or the proceeds of the same, alleged to have been concealed by him. Prior to April 24. 1905. ar, which date the order of adjudication in bankruptcy was made, Max Frankfort, the bankrupt, was engaged in business as a dealer in butter and eggs and groceries at No. .139 Sands street, in the city of Brooklyn. His schedules showed an indebtedness of between $10,000 and $11,000; the great majority of which indebtedness was incurred for merchandise purchased from about the 1st of April. The trustee, on taking possession, found a stock of goods appraised at something like $200, and this was all the bankrupt had to show as the result of his dealings during the month of April.</p> <p>He accounts for some four thousand and odd dollars by the introduction of returned checks showing payments to various creditors aggregating that amount. He accounts for the balance of the amount which lie should have on hand in the following way: He testified that on the 19th of April he had in his possession 84,000 in bills and §2,039.10 in checks of customers. This money and these cheeks he put into a satchel, which, as both lie and his wife testified, was large enough to carry lunch for five or six people, and had been used for that purpose, and he told his wife to take this money and checks to the Borough Bank of Brooklyn where he had an account, and to have the checks certified at the various banks on which they were drawn, and have the bills changed to ones of larger denominations. The reason why, as lie testified, he wished to have this done, instead of depositing this in, the Borough Bank, was that he was going to change his account to the Kings County Bank and that he wanted certified checks so that a deposit could be made as if it was cash, and as lie didn’t propose to change his account for several days, he wanted the bills of larger denomination so that they would not occupy so much space in his safe.</p> <p>We are met at the outset of this story with, it seems to me, a very insufficient reason for its existence. Mrs. Frankfort testified that she took the satchel-containing the money and the checks and went to the various hanks to have the checks certified or cashed, and was unable, on account of her not being known at those banks, to accomplish this object. She then went to the Borough Bank and there the cashier told her that she could deposit the checks and then draw a check against the amount of the deposited checks which the bank would honor and pay to her in cash. To get the cheek she had to go back to the store, and so, with the satchel and the money, she went back to the store, had her husband sign the check, and then she came back again to the Borough Bank, presented the check, and the money, two thousand and odd dollars, was paid to her in cash which she put into this satchel, together with the $4,000 already in it. She further testifies that she went to several banks in the neighborhood- and changed some of this money so that she had 21 $100 bills and the rest of the $6,000 in smaller bills, with the ex-eeption of about $50.10 in silver. She then started hack to the store, but, as she says, thought that she would go down Fulton street and look in at the shop windows and see the bargains, and that this shopping excursion lasted from a half an hour to an hour. She said she carried the satchel ligiitly in her left hand, and that it was quite heavy to carry. Having carried it along Fulton street, and' looked at the bargains and the shop windows she then made up her mind that she would go home, and coming to the corner of Smith and Fulton streets, where she was to take the car, she looked down to open the bag to get 10 cents for her car fare when she found that she had only the handle of the satchel in her hand, and that the body of it was gone.</p> <p>She says that some time before,, when she was looking in at Matthews’ window on Fulton street, she had felt the satchel lighter, but that she did not look down to see the reason for this, and, in fact, she hadn’t looked down at the bag from the time she left the Borough Bank until, wishing to open it, she found that it was gone; that she had not felt anyone grab it, or attempt to take it away from her; and that, in fact, nothing unusual had occurred while she was on her shopping expedition, so far as the bag was concerned; that then, without making any outcry, without retracing her steps, without notifying the police, she threw the handle into the street and walked home weeping. When she arrived at home she told her husband- that she had lost the money, but she didn’t tell him how, the circumstances of it, and he didn’t ask her. He told her not to say anything about it, not to tell anybody anything about it; and she even testified that her brother-in-law, David Frankfort, who was in the employ of her husband, didn’t know anything about the loss until he heard the story of it as she told it in court. She also testified that after she came home and told her husband of this loss that he sent her again to the Borough Bank for the purpose of withdrawing one of the checks which had been deposited, and that even then she did not tell any one at the Borough Bank th,at she had lost this §0,000.</p> <p>The bankrupt says that he didn’t tell anybody of this loss; that he didn’t notify the police; that he didn’t advertise for it; in fact, that he made no effort whatsoever to recover the money. ' That he went over that afternoon to the market in New York, and saw some parties with whom he was in the habit of dealing, but that he said nothing to them about this loss. I think the story of both the bankrupt and his wife is false, and that the money was not lost as they say it wa§. It is beyond belief that this womah should have lost the money as she said she did; that she could have walked the street holding the handle only for so long a time, and not have missed it; and it seems to me that this was a bald conspiracy, hatched up between the husband and wife to defraud the creditors of this amount of money.</p> <p>Although the story of both the bankrupt and his wife is uncontradicted we are not, under the decisions of cases of this kind, bound to believe it; and in fact the cases hold that where money or property is lost' under circumstances which are not to be credited, the bankrupt must refund the same. It is urged by the attorney for the bankrupt that in the reported cases of extraordinary losses of this kind that the losses have always come when the money or property was in the physical possession of the bankrupt himself, but this case differs in that the money was lost by the bankrupt’s wife. To my mind this only, so far as the bankrupt is concerned, adds to his guilt, in that he is not man enough to face the responsibility, but foists the loss off on the woman.</p> <p>The bankrupt further testified that when he put this $4,000 in the satchel on the morning of the 10th he also had about $400 in cash in his possession. It has been shown further he had purchased, and there were delivered to him on the evening of the 18th and the morning of the 19th, 286 cases of eggs, of which he had on that morning, before his wife went with this money to the bank, sold some 10 or 15 cases, leaving the value of about 275 cases of eggs, amounting to $1,520, to be accounted for. On the following Sunday, the bankrupt left his home and went away. He was gone for almost a week', his whereabouts not being known by his wife. She conducted the business and sold goods, but it is evident that this $1,520 worth of goods had been disposed of before the husband left.</p> <p>It seems to me. then, that the bankrupt lias concealed and is concealing property from the trustee, and that he should turn over to him the sum of $7,050.10, made lip as follows:</p> <p>Cash alleged to have been lost by bis wife.$0,030 10</p> <p>Cash on hand April 10th. 400 00</p> <p>Proceeds of 275 cases of eggs. 1,520 00</p> <p>7,959 10</p>

<p>On Demurrer for Want of Jurisdiction.</p>

In Bankruptcy. On involuntary petition. The following is the report of Referee Olmstead, acting as master on question of adjudication: This creditors’ petition, filed June 22, 1905, against the Mathews Com-solidated Slate Company, seeking an adjudication on the ground that It had committed acts of bankruptcy, was referred to the referee acting as master, under rule 12 of the general orders in bankruptcy (89 Fed. vii, 32 C. C. A. xvi), to ascertain and report the facts.

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

<p>1. Pleading — Allegation of Fraud.</p> <p>A mere allegation in a bill of complaint tlmt the plan of reorganization between two street railway companies was fraudulently designed, without specifically charging that said companies participated therein, or specifying in what the fraud consisted, is a mere brutum fulmen. It presents no issuable fact, as it is a mere conclusion of the pleader.</p> <p>[Ed. Note. — For eases in point, see vol. 23, Cent. Dig. Fraud, § 37; voi.' 39, Cent. Dig. Pleading, § 28%.]</p> <p>2. Removal of Causes.</p> <p>Where the bill in equity instituted in the state court on its face states no ground of equitable relief against two defendant corporations, citizens of the same state as that of the complainants, such defendants should be eliminated from the ease in determining the right of removal by a nonresident defendant in such action.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 71.]</p> <p>3. Equity — Prayer for Alternative Relief.</p> <p>While the pleader, in the instance where he is uncertain as to what specific relief he is entitled, may so frame his bill as to entitle him to an alternative prayer for relief; yet he may not be so entitled where the bill clearly discloses the fact that he seeks relief based upon the recognition of the validity of a transad ion which he seeks to specifically enforce, and at the same time pray for the annulment of such transaction as fraudulent,</p> <p>4. Specific Performance — Parties to Sens for Specific Performance.</p> <p>The parties to the contract, as a general rule, are the only proper parties to a suit for its performance, except in case of an assignment of tlie entire contract, or there are some special circumstances authorizing a departure from the rule.</p> <p>[Kd. Note. — For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 342-351.]</p> <p>5. Removal of Causes — Separability of Suit foe Purpose of Removal.</p> <p>Where the bill seeks specific performance of an alleged contract between the complainants and the nonresident citizen defendant, claiming that under the contract the complainants are entitled to an allotment of an aliquot proportion of a large mass of bonds and securities, controlled by such nonresident defendant, against whom a decree for such allotment would apparently afford the complainants complete relief, a third party defendant, a citizen of the same state as complainants. to whom the nonresident defendant lias made an allotment of like apportionment without complainant’s consent, is not such a necessary party defendant as to disentitle the nonresident defendant to remove the controversy into the United States Circuit Court.</p> <p>[Ed. Note. — Separable controversy as ground for removal of canse to federal court, see notes to Robbins v. líllenbogen, 18 C. C. A. 8G; Mecke v. Talley town Mineral Co., 85 O. C. A. 155.]</p> <p>6. Speciftc Performance.</p> <p>The remedy by specific performance, lying within the domain of judicial discretion not arbitrarily exercised, may be refused whenever there is any uncertainty or doubt about the terms of the proposed contract, or a well-founded conviction that its specific enforcement, under tlio facts and circumstances of the case, would be harsh and unreasonable, or more hurtful to the rights of others in interest than its denial to the suitor.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 17, 38. 34, 35.]</p> <p>7. Same — Merits of the Case Stated.</p> <p>Where two street railway companies, to prevent financial disaster, enter into a tripartite agreement with designated Syndicate Managers for a plan of reorganization, whereby such managers were to control, for a given period, and sell participating interests in certain bonds and securities hypothecated as collaterals to secure a contract between the two street railway companies, to raise the necessary funds to meet pressing, maturing obligations of iho pledgor company, providing for a Specific time of control by and compensation to such Syndicate Managers, who, in order to raise an immediate fund of 87,000,000, submitted to tile complainants as shareholders in the pledgor company a proposition to allot to them an aliquot portion of such bonds and securities on the payment to a designated agent of the Syndicate Managers of the purchase price, such interest in the purchaser to be evidenced by a participating receipt to be delivered to him by such agent, which proposition the complainants accepted, and, when they made tender of the designated purchase price, refused to execute the agreement, evidencing the right of the Syndicate Managers to hold and manage the securities for the designated period and compensation for their services, which was left by the Syndicate Managers with such agent to be signed by the purchasers before delivering to them the participating receipt evidencing such allotment. Held that, it appearing from the evidence that the complainants had participated in the meeting of the stockholders of said railroads providing for such reorganization, and that they had notice before the submission of said proposition to them of the terms of said agreement submitted for their signature, their I’efusal to so execute the same was a departure from the syndicate proposal of sale and disentitled the complainants to a specific performance.</p> <p>8. Trusts — Express and Implied ’Pri st.</p> <p>If the settlor, even without a valuable consideration, makes an explicit declaration of trust duly executed, with the intention of it being obligatory uxDon him, equity will enforce such trust. But, If it be a mere agreement without consideration to execute an agreement declaratory of a trust, the court will not enforce.it, awl no trust relation arises where there is a mere promise to execute an agreement when the promise is conditioned upon the promisee executing on his part a collateral obligation which he refuses ta do. In such case no implied trust arises, for the reason that the vendees did not accept the proposition on the conditions submitted by the vendors.</p> <p>(Syllabus by the Court.)</p> <p>On Motion for Rehearing.</p> <p>9. Removal ojt Causes — Record—Subsequent Pleadings.</p> <p>The right to remove a suit in equity must be determined on the allegations of the bill as filed in the state court, and neither the allegations of a.bill of repléader'filed in the federal court after removal nor of the answer can be considered.</p> <p>. [Ed. Note. — Eor cases in point, see vol. 42, Cent. Dig. Removal 'of Causes, §§ 58, 59.]</p> <p>10. Courts — Circuit Court of Appeals — Certification op Question to Supreme Court.</p> <p>The certification of a question of law by a Circuit Court of Appeals to the supreme court under Act March 3, 1891, c. 517, § C, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549], is a matter resting in the discretion of the court, the exercise of 'which camiot be invoked by a party as a matter of right. Such certification should not be made, except in cases of grave doubt, and not after the case has been decided by the Circuit Cburt of Appeals.</p> <p>[Ed. Note. — Eor cases in point, see vol. 13, Cent. Dig. Courts, § 1021.]</p>

Tlie statutes of the state of Missouri empower any two corporations of that state organized or created solely for manufacturing purposes whose objects and business are of the same nature, to consolidate into one corporation upon the consent of the owners of three-fifths of the capital stock of each. Rev. St. Mo. 1899, §{5 1334, 1333, 1339.

The principle questions, relating to the right of the petitioner to limit its liability, were decided by this court in June, 1905. La Bourgogne (C. C. A.) 139 Fed. 433. . A commissioner was appointed by the District Court to, take testimony as to the amounts due the various claimants who had filed claims, other than those for loss of life, and report the same to the court.

The appeal in this case is taken from a decree in a proceeding to limit and determine the liability of the Michigan Steamship Company for injuries arising from the explosion of a fuel oil tank on its steamer nrogreso, on December 3, 1902.

The plaintiff in error was jointly indicted with Harry W. Miller and Frank E. Kineart for subornation of perjury. The plaintiff in error was tried separately and was found guilty of the first, second, third, and fifth counts of the indictment. The counts are all similar, differing only in the names of the persons suborned to perjury.

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

<p>1. Courts — Federal Courts — State Rules os Property Prevail in.</p> <p>Rules of property established by the construction by the highest judicial tribunal of a state of its Constitution or statutes prevail in the federal courts where no question of right under the Constitution and laws of the nation, and no question of general or commercial law is involved.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 958.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. O. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Mortgage — Foreclosure Sales in Illinois — Owneh of Rents and Profits During Redemption I’ertod.</p> <p>During the period of redemption from fordo,sure and execution sales of real estate in Illinois the mortgagor or judgment debtor is entitled to the possession and rents and profits of the property. The purchaser has a lien for the amount of his bid and interest during this period. If no redemption is made the title he acquires at the expiration of the period of redemption relates back to the beginning of his lien to cut off intervening incumbrances, but it does not divest the mortgagor or judgment debtor of. or vest in the purchaser the right to the possession or to the rents and profits during the period of redemption.</p> <p>[Ed. Note — -For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 1562, 1567.]</p> <p>3. Same — A Judgment Creditor Wiio Redeems Has the Same Rights as a Purchaser.</p> <p>A judgment creditor who redeems from a foreclosure or execution sale under the statutes of Illinois buys the lien of the purchaser and secures no more or less rights than the purchaser would have acquired if no redemption had been made.</p> <p>4. Same — Coal in Mine is Real Estate and Subject to Redemption.</p> <p>Coal lying under land in Its natural deposit is real estate and foreclosure and execution sales thereof are subject to redemption.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, § 134.] t</p> <p>5. Mines and Minerals — Rents and Profits of — What arm.</p> <p>The coal and other materials derived from the ordinary and reasonable operation of open coal mines, iron mines, lead mines, gravel banks, clay pits, stone quarries, slate quarries, salt works, oil wells, and other property of this character which diminishes in quantity and value by use, constitute the rents and profits thereof, and not the body of the properly, and belong to the owners of the former and not to the owners of the latter.</p> <p>(5. Mortgage — Foreclosure Sale of Mine — Right of Judgment Creditor Who Redeems to Coal Mined During Redemption Period.</p> <p>A judgment creditor who redeems from a foreclosure sale of mortgaged coal in an opened mine under the statutes of Illinois is not entitled to recover damages from a receiver in the foreclosure suit for his extraction of coal from the mine by ordinary and reasonable mining operations during the period of redemption.</p> <p>7. Courts — Opinions—General Statements Not Authoritative Beyond Question at Issue.</p> <p>General expressions in the opinions of courts are not authoritative beyond the questions which they were considering and deciding when they used them.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 335.]</p> <p>(Syllabus by the Court.)</p>

Appeal by the Variok Bank of New York from an order of the District Court, made as a court of bankruptcy, disallowing two claims which the bank sought to prove; one against the partnership estate of the bankrupts, and the other against the individual estate oí Jacob M. Mertcns, one of the partners.

<p>BahkRuptcy — Lien—Novation op Debt.</p> <p>A bankrupt corporation had given purchase money mortgages on cer-. tain of its chattel property, and afterward sold the same to another corporation will eh executed a now mortgage to the mortgagee covering the same and other property. After the bankruptcy, the trustee obtained possession of the property, and by order of the court sold the same free of in-cumbrances ; the mortgagee being given the right to assert his lien against the proceeds. UeM, that the evidence was not sufficient to show an intention of the parties that the taking of the new security should effect a novation of the debt, but, even if so intended under the circumstances, the trustee having obtained the property, the mortgagee was entitled to enforce his lien against the proceeds.</p>

The ai>pellants were the complainants in a bill, the substance of which is as follows: The appellants were husband and wife and were residing at Whatcom, Wash., and were possessed of real estate of the value of 841,000. They were desirous of engaging in the dry goods business. Their desire becoming known to the defendant J. M. Griffith, he, with Cyrus A. Campbell, Edwin D. Buck, and Geo.

<p>1. Public Lands — Suit to Adjust Land Geant — Equity Jurisdiction.</p> <p>Acts March 8, 1887, c. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], and Act March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], authorize a suit by the United States against a railroad company to which land has been erroneously patented under a grant, on a money demand alone to recover the price of such land only after a determination by the Land Department that the land has been sold by the company to a bona fide purchaser, whose purchase is protected by the acts, on a claim made by or on behalf of such purchaser; and where no such claim has been made, but it appears that there is a basis for one, equity has jurisdiction of a suit by the United States against the company to recover, the land or the price, as the facts may appear.</p> <p>2. Same — Validity of Statute.</p> <p>The objection that such statutes are retroactive and void, in so far as they purport to give a right of action to recover the value of land which had been previously patented and sold by the company, cannot be made, where the sum sought to be recovered is less than that received by the company for the land, since it was clearly competent for Congress to require the company to account for the proceeds, as for money had and received for the use of the United States.</p>

<p>Original Proceeding. On petition for writ of habeas corpus.</p>

<p>In Equity.</p> <p>In the matter bf the petition of Frank D. Xell, filed in this court on May 2, 1906, praying that the writ of mandamus issue from this court to the Circuit Court of the United stales for the Eastern District of Virginia, requiring said court to admit the petitioner as a party to said cause, and to allow him an appeal from and supersedeas to the decree of sale entered by said court in that cause on the 17th day of March, 1906.</p>

<p>Trade-Marks and Trade-Names — Suit for Unfair Competition — Preliminary Injunction.</p> <p>A complainant in a suit for unfair competition is not entitled to a preliminary injunction, where the real defendant, who is defending although not nominally a party, has been openly and notoriously carrying on the competition complained of for more than 10 years in the same city with complainant and with its knowledge, and no such relief has been previously asked for.</p> <p>[Ed. Note. — Eor cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 108.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>Appeal — Api>ealablb Decree — Dismissal as to Ose Depekdant.</p> <p>A decree dismissing a hill as to one oí two or more defendants, leaving the case undisposed of as to the others, is not a final decree, and not ap-pealable.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 484-493.]</p>

This cause comes here upon writ of error to review a judgment upon a verdict against plaintiffs in error, who were defendants below, in the Circuit Court, Southern District of New York.

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

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

<p>1. Signatures — -Mark—Witnessing.</p> <p>Under Cutt. Comp. Laws Nev. §4.634, which provides that the signature of a party shall be equally valid if the party cannot write provided he make his mark, his name being written near it, and the mark being witnessed by a person who writes his own name as a witness, a signature to a contract by the mark of the party, opposite which were the words, “Signed in the presence of .1. S. C. — O. A. M.,” was witnessed as prescribed by the statute, and the question whether the party made the mark or the person who wrote his own name thereto as a witness was simply a matter of evidence.</p> <p>2. Corporations — Contract—Signature by Manager.</p> <p>A contract purporting in its body to be the obligation of a corporation and signed by If., manager, he having the authority to do so, was the contract of the corporation.</p>

<p>Raiijsoabs — Safkty Aímascb Act — Moving Cabs — Tebminal Company.</p> <p>A termino 1 company which received cars of coal coming from another state, and delivered them within its yards to the engines of a railroad company, was engaged In moving interstate traffic, within Safetv Appliance Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174],</p>

<p>■ Injunction — Restraining Breach of Contract — Sale of Good Will of Business.</p> <p>One who sold and transferred a long-established retail mercantile business, together with its good will and the right to use the firm name under which it was conducted, and agreed to serve the purchaser as an employs for a stated term and use his best efforts to retain the em-ployés and customers, will be enjoined from attempting to entice away employés or soliciting customers who were such at the time of the sale to trade with a competing firm organized by him after his term of service expired, or from in any way using the old firm name for such purposes, as will, also, his partners and employés, who in such matters act as agents for the firm and all the partners.</p>

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

<p>In Bankruptcy. On objections to bankrupt’s discharge.</p>

<p>Equity — Exceptions to Answee.</p> <p>Exceptions to an answer in equity considered.</p>

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

<p>1. Sales- — Contract—Performance—Deliveries.</p> <p>Defendant' contracted to furnish all the tin cans that should be used in plaintiff’s cannery in San Francisco during the packing season of 1899, not exceeding 100,000 cans in any one day. No other contract was entered into with reference to the delivery of cans for that year, and during the season at a meeting of the parties, plaintiff requested defendant to furnish 12,500 cans per day in addition to those delivered under the contract, and- permit plaintiffs to divert them to San José, to which defendants replied that they were not bound to furnish any cans except for defendant’s cannery in San Francisco, but that if plaintiff desired to divert 12,500 cans daily to San José no serious objection would be made to furnishing them. Helé, that the cans so diverted should be considered as a portion of the deliveries required by the contract.</p> <p>2. Same — Failure to Deliver — Strikes.</p> <p>Where a contract for the sale and delivery of tin cans to be used in a canning factory, and to be delivered daily as ordered, provided that if the seller was unable to perform afiy of its obligations by reason of a strike such obligations should at once terminate and cease, he was not liable for failure to deliver cans on a day when his employes refused to work.</p> <p>3. Same — Sunday.</p> <p>A seller' of tin cans- to be delivered daily as ordered, was not bound to deliver cans on Sunday.</p> <p>4. Same — Cumulative Deliveries.</p> <p>Where a contract-provided for the daily delivery of tin cans to a canning factory as ordered, and the seller knew that an excessive delivery on one day was nevertheless all used on that day, he was not excused by such excessive delivery from a failure to deliver the proper order on the succeeding day.</p> <p>5. Same- — Measure oe Damages — Evidence.</p> <p>Where, in an action for breach of contract to deliver cans to a cannery, there was evidence that plaintiff was compelled to throw away considerable fruit, because the cans were not delivered in sufficient quantities as ordered, and the contract quantity of cans was never delivered, nor was plaintiff able to supply the deficiency, plaintiff was entitled to recover the actual loss sustained consisting of the profits on goods sold, but not delivered because of lack of cans, added to the cost of fruit thrown away and the cost of labor not utilized for the same reason, under Civ. Code Cul. § 3300, providing that for a breach of an obliga tion arising from contract, the measure of damages, except as otherwise provided, shall be the amount that will compensate the party aggrieved for all detriment próximately caused thereby, or which, in the ordinary course of things,, would be likely to. result therefrom.</p> <p>6. Same.</p> <p>Where it was impossible for plaintiff to purchase cans to supply a shortage caused by defendant’s breach of a contract to deliver cans to plaintiff’s cannery as ordered, plaintiff in an action for breach of such contract was not limited to the measure of damages specified by Civ. Code Cal. §§ 3308, 3354, providing that the detriment caused by the seller’s breach of contract is the excess of the value of the property to the buyer over the amount which would have been due to the seller under the contract if it had been fulfilled, etc.</p> <p>7. SET-OW AND COTTHTICROI,AIM-SAME TEAXSACTTON.</p> <p>In an action for breach of a contract to deliver cans, defendant was only-entitled to counterclaim so much of a note held against plaintiff as represented the price of cans delivered under the contract out of which the controversy arose.</p>

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

<p>Bankruptcy — Composition—-Deposit Required oe Bankrupt.</p> <p>A bankrupt in a composition proceeding is required to deposit for the purpose of carrying out the composition sufficient to cover costs, priority claims and expenses, and in addition, the percentage named, not only on all claims filed before confirmation, but also on all other claims listed by him in his schedule; but lie is not required to deposit sufficient to cover such percentage on secured claims, nor for any supposed deficiency -•thereon if it lias not yet been ascertainable and filed.</p>

<p>At Raw. On rule for new trial.</p>

<p>Action to Recover Special Tax Paid. Trial to court.</p>

<p>Bankruptcy — Partnership—Provable Debts.</p> <p>A postmaster,- who was managing partner in a firm, used money of the government in paying debts ol' the partnership, and the sureties on his bond furnished the money to make' up the defalcation. Thereupon he executed notes of the firm to such sureties, covering the amounts advanced, to which no objection was made by the other partner. Held, that such'notes were not without legal consideration and were provable in bankruptcy as debts of the partnership.</p>

<p>1. COUNTIES-BONDS-TAX IiEVY — STATUTES.</p> <p>Acts Ky. 1887-88, vol. 1, pp. 912-919, C. 449. authorized 13. county to subscribe for stock of a railroad, company, and issue bonds in payment of i1s subscription, directing an annual tax levy sufficient to pay the principal and interest on the bonds, provided that the company should make a preliminary survey of its route within a year after the passage of the act, and should commence work in good faith on its roadbed within the next year, and should perform each year thereafter one-fifth of the necessary work required to complete it. Held, that the county’s liability to levy a tax did not depend on whether the conditions of the proviso had been performed by the railroad company, but on whether the bonds had been properly issued by the county.</p> <p>2. Same — Subscription to Stock ot Railroad Company — Delegation oe Authority.</p> <p>The county judge in Kentucky, being the presiding officer of the fiscal court, and the general business agent of the county, and the Legislature, by Acts 1887-88, vol. 1, pp. 918-919, p. 449. having authorized the fiscal court to subscribe for the stock of a railroad company, it was competent for such court, after having determined to make the subscription, to delegate the ministerial duties involved to the county judge.</p> <p>8. Same — Aro Bonds — Improper Delivery.</p> <p>That county railroad aid bonds were delivered before any work was done by the railroad company, in violation of Acts Ky. 3887-88, vol. 1, pp. 913-939, c. 449. authorizing the issuance of such bonds, did not necessarily render the bonds void.</p> <p>4. Maxdamus — Counties—Bonds—Payment—Taxation.</p> <p>Where an order awarding a peremptory mandamus against the fiscal court of a county to compel the levy of a tax to pay railroad aid bonds specifically declared that it was for the collection of the amount specified in the judgment on the bonds, which was referred to, the order was not fatally defective for failure to specify the amount to be collected.</p> <p>5. Judgment — Res Judicata — Validity op County Bonds.</p> <p>Where a county appeared and contested the regularity and sufficiency of proceedings taken to authorize the issue of railroad aid bonds, first in a state court in a suit brought to compel their issue, and again in the federal court in a suit to recover the contents of coupons on the bonds, brought by a privy to the plaintiff, and the whole issue of bonds and coupons was adjudged to be valid, the county was estopped by such decree from thereafter contesting the validity of the bonds in a proceeding to compel the levy of a tax to pay them.</p>

<p>1. Courts — Jurisdiction of Federal Courts — Allegation of Citizenship.</p> <p>Proper allegations showing diversity of citizenship made in a declaration filed in a circuit court are sufficient prima facie to give the court jurisdiction, and the allegation of plaintiff’s citizenship can only be controverted by proper pleading supported by proof.</p> <p>TEd. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 817, 876, 298.</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>2. Libel — Pro6f of Innuendo — -Matters for Consideration by Jury.</p> <p>In an action for libel in which the declaration alleges by way of innuendo that plaintiff was the person meant in the statements made in the alleged libelous publication, such allegation must be proved, and while the impression which would be made on the mind of the ordinary reader is not conclusive on the issue it may be a pertinent inquiry under the facts and circumstances shown, and where such issue is found for plaintiff the question whether the publication would be understood by the ordinary reader to refer to plaintiff becomes material for consideration by the jury in determining whether or not the plaintiff was damaged.</p> <p>[Ed. Note. — For eases in point, see vol. 32, Cent. Dig. Libel and Slander, § 360.]</p>

<p>3. BANKRUPTCY — PROVABLE DEBTS-SURRENDER OP REFERENCE.</p> <p>To render a preference voidable under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 3901, p. 3445], and therefore one wbieb must be surrendered by the creditor receiving it before proving his claim under section 57g (30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]) as amended by section 12. Act Feb. 5, 1903, c. 487, 32 Stat. 799 (U. S. Comp. St. Supp. 1905, p. 688]), there must have been an actual intention on the part of the debtor to give a preference, and such intention cannot be presumed from the fact alone that he knew himself to be insolvent. Without the existence of such intention in fact a creditor cannot be said to harre had reasonable cause to believe that a preference was intended, which is also essential to the requirement that it shall be surrendered.</p> <p>2. Same.</p> <p>Facts considered in relation to a payment made by an insolvent to a creditor by 'a return of goods and held to show a common purpose to make a colorable showing of a belief in the debtor’s solvency, without making such examination as would have disclosed the truth, which charged both debtor and creditor as with knowledge that the result of the transaction would be to give the creditor a preference, and. rendered the preference one which must be surrendered before the creditor could prove his claim.</p> <p>3. Same.</p> <p>A creditor who indirectly repurchased goods from a debtor who was insolvent and sold the same again at a loss of 30 per cent., held to be assumed to have had reasonable cause to believe that a preference was intended, as it in fact was.</p>

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

<p>1. Collision — Suit for Damages — Pleading.</p> <p>Technical inaccuracies in the statement of facts in a libel in admiralty for collision are not ordinarily regarded, where they do not effect the rights of the parties.</p> <p>2. Same — Saitaxg Teasecs Meeting — Mi’tfai. Fatot.</p> <p>Two schooners botli held in fault for a collision when meeting at night in the open ocean: The one, which was light and sailing free, for not making sufficient allowance for the yawing of the other which was close hauled in a strong wind and heavy sea, and the other for probably allowing herself to fall off owing to the fact that her master was performing the duties of both wheelsman and lookout.</p>

<p>1. Contracts — Building Contract- — Warranty.</p> <p>A clause in the specifications for the foundation of a building, drawn by the architect and made a part of the contract, “the whole to be made perfectly water-tight and guarantied.” did not constitute a guaranty by the contractor that the cellar should be water-tight, where the specifications prescribed in detail the maimer of construction and the materials to be used, but was a guaranty only of his compliance with the specifications, and of the effectiveness of his work in matters about which he had a discretion.</p> <p>2. Same- — Provision Requiring Architect’s Certificate — Evidence to Dispense with Certificate.</p> <p>A provision in a building contract that the work shall be paid for “only on the certificates of the architect,” the final payment to be made within 30 days after its completion, and all payments to be due when certificates for them are issued, is valid and binding on the parties, and to entitle the contractor to recover the final payment it is incumbent on him to produce the architect’s certificate that the work has been properly completed, or to allege and prove that it was either capriciously or fraudulently withheld, which is a question to be determined by the Jury. Evidence that the work was completed in substantial compliance with the contract is an essential element of such proof, but is not alone sufficient, since it would substitute the judgment of the jury for that of the architect, and, in effect, nullify such provision of the contract.</p> <p>3. Same — Substantial Performance.</p> <p>The rule that a substantial performance of a building contract is shown, if the work was complete except as to unimportant particulars, which a reasonable allowance would enable the owner to supply and remedy, is only intended to cover the inconsiderable details of construction, which do not enter into the substance of the contract, and cannot properly be extended to a material part of the work.</p>

The following is the charge to the jury of Shelby, Circuit Judge: This is a suit brought by the plaintiff against the defendant for damages for the wrongful and negligent killing of William 3. Stutts. The plaintiff alleges that Stutts came to his death by wrongful and negligent acts of the defendant, which are stated in the complaint which has been road to you.

<p>Appeal from the District Court of tlie United States for the Southern District of New York.</p> <p>This cause comes here upon cross-appeals from a decree holding both vessels in fault for a collision in the Upper Bay of New York near red buoy No. 14 between the steamships Jefferson and Sicilian Prince. The opinion of the District Judge will be found in 128 Fed. 133.</p>

<p>Courts — Circuit Courts of Appeals — Time fop. Taking Appeal — Effect of Eailure to Perfect.</p> <p>Under section 11 of Act March 3, 1891, creating the. Circuit Courts of Appeals, 20 Stat. 829. c. 517 [U. S. Comp. St. 1901, p. 052], providing that no appeal shall be taken to such court except within six months after the entry of the decree or order sought to he reviewed, where, although an appeal was allowed within that time, no citation was issued to the persons who procured the order appealed from, and the record was not filed within the time required by rulé 16 of the court (90 Eed. clix, 31 C. C. A. clix), nor until nearly a year after the appeal was allowed, the ¿ouut has no power to then award a (Ration, and, by a nunc pro tune order, allow the appeal to stand as of the date when the record was filed.</p>

<p>Habeas Corpus — Federal Courts — Interference with Process of State Courts.</p> <p>Except under unusual and extraordinary circumstances, a federal court will not issue a writ of habeas corpus for the release of a person held under process issued by a state court in a civil case, on the ground that such court was- without jurisdiction in the particular suit, where it has jurisdiction over such suits in general.</p> <p>[Ed.' Note. — For cases in point, see rol. 2.3. Cent. Dig. Habeas Corpus, § 43.</p> <p>Jurisdiction of federal courts on habeas cor] >us, see note to In re Iiuse, 26 C. 0. A. 4.]</p>

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

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>Action by the administratrix to recover damages for the death of her intestate alleged to have been caused by the negligence of the railroad company. Trial to a jury followed by a verdict and-judgment for the plaintiff.</p>

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

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

These were appeals from judgments of the District Court (143 Fed. 147), denying petitions for writs of habeas corpus. Appellants having failed to enter the appeals on or before the return day of the citations, as required by rule 16 of the Circuit Court of Appeals (90 Fed. lv, 31 C. C. A. lv), on petition of the United States the cases were each docketed and dismissed.

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

This cause comes here upon appeal from an order of the District Court, Southern District of New York, allowing the claim of Andrew J. Nellis against the bankrupt estate.

This cause comes here upon appeal from an order of the District Court, Southern District of New York, reversing an order of the referee in bankruptcy, and allowing a claim of II. C. Bennett & Co. against the bankrupt’s estate. The opinion of the District Judge is reported in 133 Fed. 562.

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

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

<p>Patents — Invention—System of Ebectkical Distribution.</p> <p>The Thomson- & Rice patent, No. 413,293, for a system of electrical distribution especially adapted to lighting purposes, and having for its objects to run lamps or other translating devices in series and in multiple on one and the same system, and from one and the same source of supply, embodies a combination or aggregation of elements, all of which were old, and each of which performs only its old function, and in view of the prio.r art, and especially of the Edison municipal system, is void for lack of patentable invention.</p> <p>[Ed. Note. — Eor eases in point, see vol. 38, Cent. Dig. Patents, §§ 27-29.]</p>

<p>PATJS2TTS-NOYKLTY — TeNTIHG CLOTH.</p> <p>The Miteliolson patent, No. 718,4.09, for tenting cloth, for use in covering tobacco fields, etc., is void for lack of patentable novelty.</p>

<p>1. Evidence — Presumption from Failure to Produce.</p> <p>Where the evidence was conflicting as to whether a rope, the parting of which caused the death of a seaman, was defective, the doubt should be solved against the vessel because of her failure to produce the rope which was in her possession.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 95, 9S.]</p> <p>2. Master and Servant — Negligence of Both Master and Fellow Servant.</p> <p>A vessel was liable for the death of a seaman who was thrown overboard by the parting of a defective trip line attached to the davit of the hawse pipe as the block and tackle was being drawn back after lowering the anchor, though the accident was caused by the act of a fellow servant in improperly seizing hold of the fish line which supported the block, thereby placing the strain aud weight on the trip line, which was not intended to be used for such purpose, as it was incumbent on the vessel to furnish such a rope as would provide against this contingency.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 515, 518-523, 526.</p> <p>Concurrent negligence of master and fellow servant, see note to Maupin v. Railway Co., 40 C. C. A. 236.]</p> <p>3. Same — Hazardous Work — Precautions.</p> <p>Where, in moving the anchor of a ship under way at full speed, her oval deck at the place where the work was being done was covered with ice and sleet, and two of the five seamen raising the block were confessedly incompetent, extraordinary precautions should have been taken to prevent accident, and only safe instrumentalities used.</p> <p>4. Death — Damages—Amount oe Award.</p> <p>An award of $2,500 allowed for the death of a competent seaman, 26 years old, who was able to earn $20 per month.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Death, §§ 120-130.]</p>

<p>Removai/'of Causes — -Record—Ancillary Proceedings.</p> <p>Under the statutes of Georgia, and especially Civ. Code 1895, § 4518, which provides that an attachment against a nonresident of the state may he made returnable to the superior court of any county where an attachment is sued out in one county, and executed by serving summons of garnishment in another county on filing in the court therein a certified copy of the original affidavit and bond, the proceedings in the court where the service is made are ancillary to, and a part of, the original suit, and on a removal of such suit, the record required to be filed in the federal court includes such proceedings.</p>

<p>Habeas Corpus — Jurisdiction or Trial Court — -Questions op Fact.</p> <p>A prisoner, serving a sentence imposed on a conviction of crime by a court of the United States, cannot be discharged on a writ of habeas corpus, on the ground that the court was without; jurisdiction, where such jurisdiction depends on questions of fact which must; he conclusively presumed to have been determined adversely to his contention by the trial court.</p>

In Bankruptcy. Upon certificate of Henry. G. Newton, referee. “I, Henry G. Newton, one of the referees in bankruptcy of said court, do hereby certify: That in the course of the proceedings in said cause before me, I was requested to pass upon the question whether an attachment by Eneas Warner of a debt due the above-named bankrupt from Jerome T. Donovan was or was not dissolved.

<p>On Motion for Judgment for Want of Sufficient Affidavit of Defense.</p>

<p>On Motion by Plaintiff to Discontinue.</p>

<p>In Admiralty. Suit for salvage service.</p>

<p>At Law. On motion to set aside verdict and grant a new trial.</p>

<p>1. Conspiracy — Boycotts—Union Labob — Injury to .Business.</p> <p>Where. peuding a labor controversy between complainant and its employes. defendants as members of unincorporated labor organizations published' notices, viz.: ‘‘Organized Labor and Friends: Don’t drink-scab beer!” — and then naming certain different kinds of beer and alleging the samo to he “unfair,” together with other signs directing' organized- labor and friends not to use “this beer,” and advising that they should guard their health by refusing, to drink “unfair beer,” which was alleged to include beer manufactured by complainants, such notices amounted to a b<weott which complainants were entitled to enjoin.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Conspiracy, §§ 7-10; vol. 27, Cent, Dig. Injunction, § 174.]</p> <p>2. Injunction — Violation-—Notice.</p> <p>A party, knowing of an injunction, who violates it, is liable to punishment for contempt, whether there was any legal service of the injunction on him or not.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, §§ ' 445-447.]</p> <p>3. Trade Unions — Actions—Parties.</p> <p>In a suit to restrain an alleged boycott against complainants’ beer by • voluntary labor associations, members of such associations w’ere properly , sued in their individual capacity.</p> <p>4. Courts — Federal Courts — Jurisdiction—Citizenship.</p> <p>In a suit to restrain a boycott instituted by certain labor associations which were not corporations, such associations were properly designated , as parties for the purpose of locating the citizenship of their members, also made defendants, in order to determine the requisite diversity of citizenship to establish federal jurisdiction.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 861.</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>On Petition for Discharge on Writ of Habeas Corpus.</p>

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

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

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

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

The assignments of error referred to in the opinion relate to the percentage of pulp wood in one of the importations in controversy, as to which it was contended that only 34.9 per cent, was made from wood cut from public lands in the province of Quebec, and not 40 per cent., as found in the decisions below.

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

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

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

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

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

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

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

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