Volume 145 — Federal Reporter

This cause comes here upon writ of error to review a conviction of the plaintiff in error under section 5440, Rev. St. U. S. [U. S. Comp.

Appeals from the District Court of the United States for the Southern District of New York. This cause comes here upon appeals from decrees of the District Court, Southern District of New York, which held the steamtugs Benjamin Franklin and Edwin H. Mead both liable for damages from a collision of the former with the barge Emma J. Rose, in tow of the Mead.

<p>1. Damages — Breach oi? Contract- — Law Governing.</p> <p>A contract made in Illinois for the purchase and sale oí cattle then in Montana, and to be there delivered, in the absence of any provision or extrinsic circumstances indicating a different intention, is governed by the law of Montana, where it was to be executed with respect to the measure of damages for its breach.</p> <p>2. Same — Stipulation tor Liquidated Damages — Montana Statute.</p> <p>A contract for the purchase and sale of a large number of beef cattle to be. executed iu Montana, provided that in case of failure to deliver a certain number the seller should pay to the buyer a stipulated sum per head for the number short. Mont. Civ. Code L805, §$ 2213. 2241, provide that stipulations in a contract for liquidated damages for its broach shall be void, except where “from the nature of the case it would be impracticable or extremely difficult to fix the actual damage.” Held, that the contract could not be said, as matter of law, to be within the exception so as to justify the court in instructing the jury that the measure of damages for a failure to deliver the required number of cattle was that stipulated for in the contract.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Damages, §§ 164-'168.]</p> <p>3. Triad — Objection to Evidence — Estopped.</p> <p>The fact that a party objects to the admission of evidence offered to establish a certain measure of damages does not estop him from objecting that an alternative measure adopted by the court is erroneous.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree of the United States District Court for the Southern District of New York, holding the respondent liable for cargo damage. This suit was brought by a libel in personam filed by the underwriters of the owners of said cargo, alleging that the loss was due to the negligence of respondent.</p> <p>The following is the opinion of Holt, District Judge, in the court below;</p> <p>In my opinion the Harter act has no application to this case. That act applies to a vessel transporting merchandise or property to or from any port in the United States. The Patricia was simply lying at anchor and was not making any voyage. The Alster was transporting property which had come from the United States, but she was not transporting the property from any port of the United States. Siie was simply transporting it from the Bulgaria up ihe river to Hamburg. The Bulgaria had ended her voyage, and had delivered the merchandise, the injury to which has given rise to the controversy in this suit. By the terms of the bill of lading the steamer’s responsibility ceased immediately the goods were discharged from the steamer’s deck. I think, therefore, that the transportation of these goods from a port of the United States to a foreign port, in the sense of the language used in the Harter act. had been completed, and that whatever took place after the delivery of the goods to the lighter is not to be governed by the provisions of the Harter act, but is to be governed by tlie law and rules applicable to vessels swinging at anchor in a harbor.</p> <p>There are only two possible explanations of this collision; either the Bulgaria anchored originally too near the Patricia or one or the other of these vessels dragged her anchor. If the Bulgaria originally anchored too near the Patricia, I think that the officers of both steamships were negligent, in not discovering that fact during tlie two days which elapsed after tlie Bulgaria came to anchor and before the collision. But the witnesses from both steamers are positive that the Bulgaria was originally anchored at a safe distance from tlie Patricia, and their only explanation of tlie accident is that the nnchor of one of the steamers must have dragged. If, as tlie respondent claims, the anchor of tlie Bulgaria dragged, so as to bring her nearer to the Patricia, it could only have occurred the day before, for the tide was ebb substantially all the night before tlie collision. Tlie tide turned about 9 o’clock in the evening, and was ebb until about 4 o’clock in the morning, when it turned and caused tlie collision. But the evidence established that at that time of the year, at that place, it continued daylight until about 9 o’clock at night, and if the Bulgaria dragged her anchor in the daytime, so as to bring her. within reach of the Patricia, 1 have no doubt that the officers of both steamers were negligent in not noticing it and anchoring further apart. But I think that the evidence preponderates that it was tlie Patricia that dragged her anchor in vlie night. The officers all testify that there had been no change in the situation of the two steamers on tlie (lay before the accident. If the Bulgaria had dragged her anchor that night, it would have taken her further away from the Patricia than she was before. If either vessel dragged that night, it must have been the Patricia, and I think that the evidence preponderates that that was wliat took place, and that that was the cause of the collision.</p> <p>The important question in the case, therefore, in my opinion, is whether the dragging of the Patricia’s anchor in the night was an excepted sea peril, for the result of which her owners are not responsible. The sudden dragging of an anchor and any consequent injury to a vessel, which is not preventable by ordinary care and skill, is an excepted sea peril, but in this case, assuming that tlie Patricia dragged her anchor that night, there was no danger of a collision until the tide turned, and it seems to me that the lookouts on both steamers were negligent in not discovering that the two vessels had come nearer together before the tide turned. Tlie danger of file two steamers drawing too near each other was an obvious danger, which the officers of each vessel were bound to look out for constantly and vigilantly. Although it was at night and the change of position not as obvious as if it bad occurred in the day time, the steamers’ anchor lights must hare been in place, and I think that the officers on watch were negligent in not discovering that tlie steamers had drawn too near together. When the collision occurred it was about dawn; the weather was clear, and although there would be less likelihood of a small change of situation being noticeable in the dark, I think that when two such steamers had drifted near enough to -each other to be in risk of collision, their officers were negligent in not discovering the fact either in the night or the day. If they had discovered it at any time before the tide actually turned the danger could have been averted. There were several tugs present which could have moved the Patricia back or moved the Alster away, or the Bulgaria could have gone further down the river under her own steam. Her officers claim that in swinging she stuck on the mud forward, but I do not understand that there is any claim that shé was aground before she began to swing with-the tide. In short, in my opinion, whatever view may be adopted as to the manner in which the Patricia and the Bulgaria got too near together, the respondent’s agents.on some of these vessels were negligent in not discovering that they had done so before the tide turned and in not taking efficient steps to prevent the collision before it occurred.</p> <p>The clause in the bill of lading providing that the carrier shall not be liable for damage capable of being covered by insurance in my opinion constitutes no defense in this case. Such a clause is no protection against a claim by the owner of the cargo for damage caused by the respondent’s negligence (The Titania [D. 0.1 19 Bed. 101, 104; The Egypt [D. C.] 25 Bed. 320, 329); and the libelants in this case are subrogated to the rights of the owner of the part of the cargo referred to in this libel. The lighterage clauses in the bill of lading, providing in substance that the Bulgaria should not be responsible for forwarding the cargo in lighters up the Elbe to Hamburg, also, in my opinion, have no application to this case. If the owner of the Bulgaria had not been also the owner of the Alster, and the Alster had left the Bulgaria with the property which was injured on board, and was proceeding to Hamburg, the Bulgaria, under these clauses, would probably not be liable for any injury to the cargo from the negligence of the Alster; but as in this case all three of the vessels were owned by the respondent, and this suit is a suit in personam, and the ground of liability is the negligence of some of the respondent’s agents, I do not see that the lighterage clauses in the bill of lading have any application to the ease.</p> <p>My conclusion is that there should be a decree for the libelants, the form of which should be settled upon notice.</p>

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

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

This cause comes here upon appeal from a decree of the District Court, Western District of New York, holding the steam tug S. W. Gee solely in fault for a collision with the canal boat William Nugent in tow of the .tugboat Trenton.

<p>Writ op Error — Review'—Action Tried to Court.</p> <p>Where an action at law is tried without a jury under Rev. St. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525, 570], and only a general finding is made, and the ultimate facts are not agreed upon by the parties, there can be no review of the question whether the judgment is supported by the facts found, and, unless exceptions are taken to the rulings made during the trial, there is no question which can be reviewed by the appellate court.</p>

<p>X. Customs Duties — Protesj^Subbiciency—Omission ob Paragraph Number.</p> <p>A protest in which an importer claimed a “refund of duty on * * * skins” held a sufficient reference to the provision in the free list of the tariff act for “skins of all kinds,” and to satisfactorily meet the requirement in section 14, Customs Administrative Act June 10, 1890, e. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933), that protests must set forth “distinctly and specifically” the grounds of objection.</p> <p>■ [Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Customs Duties, § 237.]</p> <p>2. Same — Evidence—Sufficiency.</p> <p>As to an importation of mixed hides and bkins, separation of the pieces weighing'less than 12 pounds, which were free of duty, was made by weighers experienced in handling skins, who actually weighed only the pieces as to which they were in doubt. Held, that proof of the results by this method was sufficient to show the amount entitled to free entry.</p>

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

The following is the opinion below of Holt, District Judge, on demurrer to the amended bill: In my opinion, the ground of action alleged in the amended bill does not differ in any essential respect from that alleged in the original bill. The amended bill alleges that (he defendant has delivered to the vendors of the property sold the portion of the securities to which they were entitled.

<p>Appeal from the District Court of the United Statés for the Western District of Missouri.</p>

This cause comes here upon appeal from a decree of the Circuit Court,, Western District of New York, dismissing a bill of complaint in a suit in equity for alleged infringement of United States patent 559,411, granted May 5, 1896, to complainant as assignee of Charles E. Scribner and Frank R. McBerty for improvements in apparatus for telephone switchboard. The opinion of the Circuit Court is reported in 132 Fed. 814.

<p>1. Contracts — Duress—Family Settlement.</p> <p>A written contract made between brothers to settle long standing disputes in regard to their respective rights and interests in mining property will not be set aside on Hie ground of duress, because one party who was in possession signed it reluctantly, while it was insisted on by the others, when the other parties thereafter made large advances in reliance on it which he received without objection and used in the development of the property during several years.</p> <p>2. Equity — Granting Relief to Defendant — Necessity of Cross-Bill.</p> <p>A court of equity, in granting relief to a complainant, may make it conditional on the doing of equity to defendant by paying a sum to» which he is justly entitled, although he has hied no cross-bill therefor.</p>

<p>Bill for Injunctive Relief. Heard oil the merits in open court under stipulation.</p>

<p>1. Internal Revenue — Shipment oe Liquor — Marking and Branding.</p> <p>Section 3449. Rev. St. TU. S. Coi»p. St. 3901, p. 2277], applies solely to shipments of liquors under other than the proper name or brand known to the trade, as designating the kind and quality of the liquor, and not to a shipment concealing the name or brands required by the regulations of the Internal Department to be put upon all vessels containing liquors.</p> <p>2. Indictment — Demurrer.</p> <p>The mere fact that the district attorney makes an indictment as drawn under a certain act of Congress is not sufficient to sustain a demurrer to the indictment, if there is any other statute in force making the acts charged in the indictment an offense.</p> <p>[Ed. Note. — For eases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 284, 489.]</p> <p>3. Criminal Law — Creation of Offense.</p> <p>While Congress may make the violation of a regulation of a head of a department made by its authority, a penal offense, it must be done by a specific act, as penal statutes cannot be made to rest upon presumjrtions.</p> <p>{Syllabus by the Court.)</p>

<p>At Law. On motion to remand to state court.</p>

<p>1. Equity — Jurisdiction—Inadequacy or Legal Remedy.</p> <p>A complainant claiming the exclusive right of fishing in a body of water may maintain a suit in equity, in the nature of a bill of peace, to protect such right by restraining other persons from fishing therein, who claim the right under a state statute as members of the general public, and from committing trespasses upon complainant’s shore property which are only incidental to such fishing.^</p> <p>2. Fish — Right or Fishery — Ponds and Lakes in New Hampshire.</p> <p>By the ancient common or unwritten law prevailing within the locality now constituting the state of New Hampshire exclusive rights of fishing in lakes and ponds did not vest in the proprietor of the soil as such, but fishing, as well as fowling, was free or subject to public control.</p> <p>[Ed. Note. — For cases in noint, see vol. 23, Cent. Dig. Fish, §§ 3, 16.]</p>

<p>Judgments — Res Judicata — Interveners.</p> <p>Where, in a creditor’s suit in a Circuit Court against a corporation vessel owner, in which defendant’s vessels had been taken possession of through a receiver, claimants of maritime liens on such vessels intervened, asserting their liens and asking their adjudication and payment, and their right to such liens was tried and determined adversely to them, both by the Circuit Court and on appeal, such adjudication is conclusive, and the interveners cannot thereafter maintain a suit in rem in a court of admiralty to establish and enforce the same liens against the vessels in the hands of a purchaser under the equity decree.</p>

<p>1. Bankruptcy — Election oe Trustee — Setting Aside.</p> <p>The right to elect a trustee for a bankrupt being given to the creditors by Bankr. Act July 1, 1898, c. 541, § 44, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3438], their election should be permitted to stand, unless it clearly appears that in conducting it some principle of law intended to secure the administration of the bankrupt’s estate in the interest of his creditors has been violated.</p> <p>2. Same- — -Influence oe Bankrupt in Selection oe Trustee.</p> <p>A debtor stated at a meeting of his creditors that he intended to file a petition in bankruptcy as the best way of liquidating, and that if a person ' whom he desired could be elected trustee he thought his estate would pay in full and leave a surplus for himself, and he asked his creditors present to support such person, to which they agreed. After his petition had been filed, a movement having been made by certain creditors to elect a different trustee, and letters having been sent out to creditors in that behalf, a letter was prepared by the bankrupt’s attorney which was signed and sent out by a large creditor advocating the election of the bankrupt’s candidate. At the creditors’ meeting a very large majority of the creditors both in number and in amount of claims .voted for such person; so far as appeared without further solicitation on the part of the bankrupt or his attorney, about half of them in number, and three-fourths in amount of claims, being present and voting in person. Held, that the facts stated did not justify the referee or court in refusing to approve the election, in the absence of anything showing that it would bo detrimental to the interest of any creditor.</p>

<p>On Motions to Ouash Indictments.</p>

<p>1. Indictment — Conspiracy of Officers to Defraud United States.</p> <p>Officers in the revenue service, who conspire with others to defraud the United States, may be prosecuted therefor, under Rev. St. S 3169 [U. S. Comp. St. 1901, p. 2059], or they may be joined with the individual conspirators in an indictment under section 5110 LU. S. Comp. St. 1901, p. 8676].</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 327-333.]</p> <p>2. Same — Trial—Matters Discretionary with Court.</p> <p>The taking of a plea of guilty from one of a number of defendants jointly indicted for conspiracy, in open court, and in the presence of the jury panel, is a matter within tlie discretion of the trial court, and does not constitute error for which a judgment of conviction against the other defendants will be reversed.</p> <p>3. Same — Instructions.</p> <p>On the trial of members of a partnership charged with conspiracy to defraud the United States by obtaining the entry of imported goods at less than their true valuation, a refusal to charge that tlie failure of defendants to produce invoices of the goods on notice by the United States, or to produce their employes as witnesses, could not he considered against them, and the giving of a contrary charge that the jury might consider such facts held not reversible error, in view of the condition of the record.</p> <p>4. Customs Duties — Undervaluation—Conspiracy—Prosecuti on — Evidence.</p> <p>On an issue as to tlie contents and value of certain cases of imported goods which defendants were charged with having secured tlie entry of at an undervaluation through a conspiracy, the testimony of a witness who assisted in the selection and packing of the goods by the foreign seller was not inadmissible, because he did not take part in nor witness all of the steps taken from the selection of the goods for shipment to the closing of the cases and their shipment, and consequently could not testify from his own knowledge to the ultimate fact; but his testimony is admissible, so far as it relates to pertinent facts within his knowledge, to be considered in connection with that of other witnesses and the established course of business in the establishment.</p> <p>5. Criminal Law — Appeal—Review—Harmless Error — Admission of Evidence.</p> <p>In the absence of more specific exceptions than appears in the record, the admission in evidence of a general statement by such a witness of the contents of a particular case, made on reference to an invoice made at the time, was not prejudicial error, where the jury were instructed to consider his evidence only in relation to facts within his personal knowledge. and from Ms entire evidence the jury could readily determine what facts were so within his knowledge.</p> <p>6. Witnesses — Refreshing Memory from 'Books — Contemporaneousness of Entry.</p> <p>Ledger entries in the books of a large mercantile partnership, showing tlie gross amounts of invoices of goods sold to a customer, and payments received thereon, posted at the close of the calendar month in which the sale was made, are sufficiently contemporaneous that they may be referred to by a partner for the purpose of refreshing his memory as to such facts, where they were examined by him at or near the time of their entry and then known by him to be correct.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 881, 882, 887, 888.]</p> <p>7. Customs Duties — Undervaluation—Conspiracy—Indictment—'Variance.'</p> <p>Where an indictment charged a conspiracy to defraud the United States of moneys thereafter to become due from a certain mercantile firm as customs duties, proof that the merchandise in question was consigned to a firm of customs brokers, who paid the duties thereon, was not a variance; the goods being owned by the mercantile firm, and so consigned only for convenience of entry.</p> <p>8. Same — Triai>-Evidence.</p> <p>A defendant, who was an examiner in the customhouse, was charged with conspiracy with his codefendants to permit the entry of goods subject to an ad valorem duty at an undervaluation. It was shown that two cases of goods passed by him were throughout of much higher grade than shown by the invoices, and that each contained a number of inclosed packages, and On cross-examination that he examined only one package out of the two cases. Held, that evidence offered by him to show that it was his custom, with respect to the goods of all importers, to examine one package only of a case in which the goods were all of one kind, and that it was not unusual for him to pass two cases on examination of one, was properly excluded as immaterial on the question of his fraudulent intent, since under the facts shown the examination of the single package was sufficient to have shown the fraudulent character of the entry.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was a suit in equity brought by Marie Antoinette Singers-Bigger, a citizen of Great Britain, as complainant, for and on behalf of the Colorado Amusement Company, a Colorado corporation of which she was a stockholder, and which had refused to bring the suit, against the defendant, the Consolidated Amusement Company, a corporation of Colorado, its officers and others, to impress certain leasehold estates held by the latter corporation, with a trust in favor of the former, for an accounting concerning the profits made by the latter in the operation of the leasehold estates, and for other relief.</p> <p>There is little, if any, dispute about the facts important in the consideration of the main question of liability. William H. Bush and Peter McCourt, prior to 1897, were copartners in the theatrical business, conducting two theaters in Denver known as the “Broadway Theater” and the “Tabor Grand Opera House.” In 1897 they organized the first-mentioned corporation with a capital of 850,000, divided into 50,000 sitares of SI each, with a board of directors to consist of three persons with powers adequate for conducting a general theatrical business, and transferred to the corporation the two leases under which they liad held the two mentioned theaters, in full payment of the capital stock of the company. By their direction all' the stock, with the exception of one share each for themselves and two other shares reserved to qualify others from time to time as directors, was issued, share aud share alike, to their wives; 21,998 shares to Eleanor Bush, and the same number to Emma F. McCourt. Mr. Bush was chosen president, Mr. McCourt vice president and secretary, and one Mays, to whom one share of stock was issued, treasurer. With this executive organization the corporation, in March, 1897, entered upon the conduct of the business of the two theaters and continued so to do until Mr. Bush’s death, in October, 1898. goon thereafter, in November, 1898, Mrs. Bush caused one share of her stock to be issued to Frank C. Young, of Denver, and about the same time appointed him as her agent and attorney to represent and conserve her interests in the amusement company. He was, by appropriate action soon after, made a director and vice president of the company, and remained so until the institution of this suit. Mrs. Bush died in April, 3899, leaving her stock to her daughter, the complainant in this cause, who, in February, 1900, secured a certificate transferring it to lier. Mr. Young thereafter continued to represent the complainant in the same way and with the same powers with which he theretofore represented her mother. The evidence shows that she imposed'implicit confidence In him; that the business of the company was good, making net earnings sufficient to pay large dividends on the capital stock; and that such dividends were frequently declared and paid. Such was the condition of the company and its business in 1899. It was under the exclusive management of Mr. McCourt and Mr. Young, who represented practically all the stock. They agreed upon a salary of $100 a week for Mr. McCourt and of $25 a week for Mr. Young, and worked under this arrangement until February, 1900, when at a special meeting of the board of directors they fixed their salaries at $000 per month for Mr. McCourt and $1,000 per year for Mr. Young, and ordered that the same should be paid from and after September, 1890. Correspondence between complainant and Mr. Young during the year of 1899, and later, discloses a condition of perfect confidence and trust on her part towards him. The operations of the company consisted almost, exclusively in conducting the theatrical business in the two theaters mentioned. The terms for which they were leased to the company expired in April and September, respectively, in 1901. Young, as well as" McCourt, knew that fact. There was no covenant for renewal in either of the leases.</p> <p>Some time about July, 1899, when McCourt was apting as president and general manager of the company, Young, as its vice president, and both as practically the whole board of directors. McCourt had a conversation with Young in which lie disclosed his purpose to secure renewals of the leases to the theaters whenever they should expire, for his own benefit, to the exclusion of ihe old company and the complainant. Young assented to the execution of this purpose by McCourt Although the leases did not expire until about two years thereafter, McCourt proceeded immediately to carry out his purpose. He, with his wife,and attorney, on August 19, 1899, organized the defendant corporation, the Consolidated Amusement Company, and on that day secured the execution of a lease from the owner of the Tabor Grand Opera House to the new corporation for a term of four years, commencing April 5, 1901, the date of .the expiration of the existing lease, and at a later date, November 2, 1900, secured a like lease from the owner of the Broadway Theater, for a term of four years, commencing September 21, 1901, the date of the expiration of the existing lease on that theater. During the time intervening between the execution of these leases and the expiration of the old ones, the theatrical business seemed to proceed much as before. The complainant had no actual knowledge of either the organization of the new corporation, McCourt’s purpose as disclosed, to Young, Young’s assent thereto, or the execution of the leases to the new corporation. On the contrary, the proof shows that in the summer of 1899, while this purpose was being conceived and executed by MeCourt and Young, Mr. Bigger, the husband of the complainant, came from England to this country, and, representing his wife for that purpose, had a conversation with MeCourt and Young separately, concerning the renewals of the two leases when their respective terms should expire. No information was given him concerning McCourt’s purpose. On the contrary, upon his expression of anxiety concerning the renewals of the leases, he was assured that MeCourt would do his best to obtain the same for the company. In fact, knowledge of McCourt’s purpose or Young’s acquiescence in it was not brought home- to complainant until some time in the summer of 1901, a long time after the organization of the new corporation and the execution of both leases to it.</p> <p>Complainant contends that the taking of those leases by MeCourt, while acting as a director and president of the old company, for his own benefit, was. in fraud of the rights of the old company and in fraud of her rights as a stockholder therein. Defendants contend to the contrary and claim affirmatively that Young’s acquiescence in McCourt’s conduct estops complainant from questioning the transaction. Some other special features are raised by the pleadings which will be sufficiently noticed in the progress of the opinion.</p> <p>The cause was finally submitted to the court on the pleadings with voluminous testimony taken before an examiner. A decree followed, finding the equities in favor of the complainant, and that defendants Young and Billings, who each held one share of complainant’s stock, assign and deliver the same to her; that the officers of the new corporation assign the new leases taken by them in its favor to the old company; that the new corporation, its officers and Young, account to the old company for all moneys earned in the operation of the two theaters by or in the name of the new corporation; that the officers of the old company likewise account to it for moneys received by them belonging to it, and the cause was referred to a master to take and state an account. In due time defendants performed the parts of -the decree requiring the assignment of the stock by Young and Billings and the assignment of the new leases to the old company, and the last-named company was let into full and complete possession and enjoyment of the new leaseholds. This was done, however, under a stipulation providing: First, for the reorganization of the board of directors of the old company; and, second, that both the Broadway Theater and the Tabor Grand Opera House should be operated under the direction of the old company “pending a final determination by the entry of a final decree in the Circuit Court and the decision of the Circuit Court of Appeals thereon and any subsequent proceedings that may be necessary to a final adjudication of the rights of the parties.” In due time the master reported that there was due from the new corporation, its officers and Young, to the old company, on March 7, 1903, the sum of $52,788.44, and that some other smaller sums were due from certain of the defendants to the old company. Upon the coming in and confirmation of this report, a final decree was entered accordingly. Both sides appeal, raising questions which we consider in their order.</p>

Writ of error to review judgment of the United States Circuit Court for the Southern District of New York, sustaining demurrer to amended complaint, on the ground that it did not state facts sufficient to constitute a cause of action.

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

<p>1. Master and Servant — Injuries to Servant — Railroads—Appliances— Engineering Scheme.</p> <p>Tlie location of a switch stand in a railroad yard by a railroad company between two tracks, so close to one of them that the switch handle would strike the steps of passenger cars on another track, was a part of an engineering scheme in the construction of the railroad, and, in the absence of manifest errors in construction patent to an ordinary observer; did not involve a question of negligence, to be passed on by a jury in an action for injuries to a switchman while using the switch.</p> <p>[Ed. Note. — Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 O. C. A. 8.]</p> <p>2. Same — Safe Place of Work — Assumed Risk.</p> <p>A switchman in the employ of a railroad company was entitled to assume that the latter would use due care to furnish him with a reasonably safe place in which to do his work and to furnish suitable appliances in the operation of the business, and did not therefore assume the risk of the railroad company’s negligence in performing such duties.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 547-555.</p> <p>Assumpsit of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>3. Knowledge of Defects — Failure to Warn.</p> <p>Where defendant railroad company located a switch stand as a part of its prearranged plans for the construction of its yards in such a position between two track leads that under certain conditions likely to arise the handle of the switch would come in contact with the stops of passenger cars passing the stand, hut such danger was neither obvious nor known to plaintiff, a switchman, who was injured by having his hand crushed between the switch handle and a car step, defendant was guilty of negligence in failing to warn plaintiff of the danger.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 315-310%.]</p>

<p>1. Courts — Circuit Court — Jurisdiction—Proper District — Waiver op Objection.</p> <p>When the jurisdiction of the Circuit Court is based solely upon diversity of citizenship, the suit may be maintained in the district in which either the plaintiff or defendant resides.</p> <p>The removal from state to national court or joinder of objection to district with general demurrer waives the objection that tiie suit is pending in the wrong district.</p> <p>[Ed. Note. — For eases in point, see vol. 13, Cent. Dig. Courts, §§ 811, 815. Waiver of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. I-Iouchens, 52 O. C. A. 192.]</p> <p>2. Same — Court May Permit Amended Petition and Summons Thereon after Quashing Service of Original Summons.</p> <p>After the removal of an action from a state court to a Circuit Court of the United States, and the avoidance of the service of summons by the latter court upon the motion of the defendant, that court may lawfully permit the plaintiff to file an amended petition and may order a summons to issue thereon.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 250.]</p> <p>3. Principal and Surety — Suretyship—Co.vtract of Should Receive Rational Interpretation.</p> <p>A surety is a favorite of the law and never liable beyond the strict terms of his obligation.</p> <p>But his contract is nevertheless but an agreement, and like all other agreements it must receive a just and rational interpretation.</p> <p>[Ed. Note. — For eases in point, see vol. 40, Cent. Dig. Principal and Surety, §§ 103, 108.]</p> <p>4. Contracts — Construction—Actual Intention Prevails Over Inapt or Careless Expressions.</p> <p>The actual intent and meaning of the parties when the agreement was made, deduced from the entire contract, from its subject-matter, from the purpose of its execution, and from the situation and circumstances of the parties when they made it, must prevail over the dry words of the instrument, inapt expressions, and careless recitals therein, unless that intention runs counter to the plain sense of the binding words of the agreement.</p> <p>[Ed. Note.- — For cases in point, see vol. 11, Cent. Dig. Contracts. § 730.1</p> <p>5. Same — Interpretation Which Effectuates Preferred to That AYhich Annuls a Contract.</p> <p>That construction which sustains and vitalizes an agreement should be preferred to that which strikes down and piaralyzes it.</p> <p>[Ed: Noté. — For cases in point, see vol. 11, Cent. Dig. Contracts,, § 734.]</p> <p>6. Indemnity — Contract—Facts—Conclusion.</p> <p>A county board designated a private bank, the Toronto Bank, a depository of tlie funds of the county on condition that an approved bond should be furnished. The cashier of the bank filed with tlie hoard, and tlie latter approved, a bond signed by tlie bank and by tlie fidelity company, as surety, which recited the designation and was conditioned, among other things, that the obligors would indemnify the hoard against any losses it should sustain by reason of the designation. But it coni ained recitals that the corporate body, the Toronto Bank, Toronto, Kan., was tlie principal, and that this corporate body executed the bond, and it contained a condition, among other tilings, that the obligors would indemnify the board against tlie defalcations of this corporate- body. The board deposited the funds of tlie comity with tlie private bank which it had designated, and that bank defaulted. Held, tlie bond shows that tlie intention of the parties was that the obligors should bind themselves thereby to indemnify the board against the defalcations of the designated bank, whether it was a private or a corporate institution, and ilie surety is bound to do so.</p> <p>7. Tktal — Practice—Demurrer to Plaintiff’s Case Waived by Subsequent Evidence for Defendant.</p> <p>A defendant waives a demurrer to tlie plaintiff’s evidence or a motion for judgment because it establishes no cause of action by the subsequent introduction of evidence to the merits on his own behalf..</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial. S§ 981-083.1</p> <p>8. Abpeal — Tktal by Court — Issues of Fact not Reviewable After General Finding.</p> <p>Where a jury is waived, and an action at law is tried by a national court which makes a finding or renders a judgment, no question of fact and no question of mixed law and fact, except those questions of law which have been reserved by exception, motion, or request, are reviewable in an appellate court.</p> <p>TEd. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3388.]</p> <p>9. Trial — Trial by Court — Sufficiency of Evidence — Iiow Reviewed.</p> <p>The quesiion whether or not at the close of tlie trial there is substantial evidence sufficient to sustain a finding for either party is a question of law.</p> <p>Any question of law is reviewable in a trial before a court without a jury, which is reviewable in a trial before a jury.</p> <p>This question is reviewable when the trial is by tlie court without a jury upon a motion for judgment, a request for a declaration of law, or any other action which fairly presents this issue of law to the trial court for determination before the trial ends.</p> <p>The trial ends when tlie finding is filed, or, if no finding is filed before, when tlie judgment is rendered.</p> <p>I Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, §§ 330, 339.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Action — Equitable Defense in Action at Law — Rule of Federal Courts.</p> <p>In an action at law in a federal court to recover money due on a contract, an allegation of fraud in procuring the contract, made in the answer, states an equitable defense, which the court is without jurisdiction to entertain, nor can such jurisdiction be acquired by waiver or consent of parties.</p> <p>2. Vendor and Purchaser — Title of Vendor — Failure to Record Deeds.</p> <p>Under the statutes of North Carolina, title to realty passes by the delivery of a sufficient deed, and the failure to record such deed does not render the grantee’s title unmerchantable nor affect its validity, except as against subsequent purchasers from or creditors of the grantor.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 246-24S:]</p> <p>3. Writ of Error — Review—Instructions.</p> <p>An assignment of error with respect to the charge of the trial court will not be considered by the appellate court unless the objection made was covered by an exception duly taken at the trial.</p> <p>4. Adverse Possession — Title Acquired — Effect of Accebtance of Deed.</p> <p>A title to land acquired by adverse possession is not vitiated by the subsequent acceptance by the person so in possession of a deed thereto from a third person, nor is he estopped by such acceptance to deny that the title was in such third person, but he may rely upon either or both sources of title.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 262, 203.]</p>

<p>1. Rad .roads — Action Against fob Negligence — Pleading.</p> <p>A petition in an action against a railroad company, based on Rev. St. Mo. 1899, § 2804, wliicli makes sucli companies liable for damages caused by tlie negligence of “¡my officer, agent, servant, or employe * * * whilst running, conducting or managing any locomotive, cars,” etc., need not allege in terms that the negligence was that of an officer, agent, or servant, but is sufficient where it alleges that the negligence was that of the company in running a locomotive or cars.</p> <p>2. Same — Evidence—Declaration of Agent.</p> <p>In an action against a railroad company to recover for the death of a person who was struck and killed by an engine while at work at a station at night unloading bedding into stock cars from a wagon, a statement made by defendant’s station agent, in response to an inquiry by a fellow workman with deceased, that there was no train coming, and that they could go ahead and bed the cars, was admissible as a declaration made in the course of his duty as defendant’s agent, both as evidence of a license or permission to go upon the tracks to do the work, and as bearing upon the issue; of contributory negligence, and was sufficient to require the submission of such issue to the jury.</p> <p>3. Trial — Instructions—Refusal of Request.</p> <p>Where the petition in an action against a railroad company for the negligent killing of plaintiff’s minor son alleged two statutory grounds of recovery, and evidence was introduced in support of both, but it was conceded that as to one no right of recovery was proved, it was error tending to mislead the jury to refuse an instruction definitely withdrawing such issue and the evidence offered in support thereof from their consideration.</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from a decree of the District Court for the Southern District, sustaining exceptions and dismissing the libel filed by the owner of the ship Macdiarmid, to recover damages for an alleged breach by the charterers, appellees herein, of a charter party of said ship, dated September 22, 1902.</p>

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

<p>1. Trust — Evidence to Establish.</p> <p>The evidence should be very clear and satisfactory to establish that the title to real property purchased by one with Ins own funds, in his own name, and ostensibly for his own benefit, is held in trust for the benefit of another to whom the purchaser in respect of the transaction sustains no fiduciary relation.</p> <p>LEd. Note. — For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 66-6S.]</p> <p>2. Same.</p> <p>Evidence considered, and held insufficient to establish a parol agreement by a purchaser of land at an execution sale to hold the title for the benefit of the judgment defendant and to permit the latter to redeem .at any time. "</p>

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

This cause comes here on appeal from a decree of the United States District Court for tlie Southern District of New York, holding the city of New Yoi'k solely responsible for damages resulting from injury to libelants’ scow Walter J. by reason of floating ice striking her and cutting into her side while she was in tow of claimant's tug Three Brothers.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The-hill of appellants, Mayr as owner and the stretcher company as his licensee, against appellees for infringement of letters patent No. 617,813, issued January 17, 3899, to Mayr for improvements in cxirtain-stretchers, was dismissed on the ground of noninfringement.</p> <p>The description and claims are as follows: “My invention relates particularly to that class of bars used in frames for stretching lace curtains while drying in which the pins are made movable, so as to engage the meshes of the lace curtain at such a point that it will exert constraining force upon the curtain in but one direction, and thereby prevent a lateral force often found in frames where the bar-pins are made stationary; and the object of my invention is, first, to make a pin that shall he simpler of construction than the pins now in use, and, secondly, to prevent the pin sliding when in use. I attain these objects by means of the mechanism illustrated in the accompanying drawings, in which—</p> <p>“Figure 1 is a plan view of a section of the bar, showing pins in position for use. Fig. 2 is an end view of the bar. Fig. 3 shows views of the pin with base of same piece of wire, and illustrates it with a round and square base. Fig. 4 shows a pin with a base consisting of a piece of metal, with a pin soldered or riveted thereto.</p> <p>“Similar letters refer to similar parts throughout the several views.</p> <p>“a- represents a section of the bar, having a rabbeted edge on its upper surface. Opening on this rabbeted edge is the T-slot o, in which slide, the pins d d. In. Fig. 3 I have shown the base of the pins d in two shapes, round and square: but it is evident that they might have any one of an indefinite number of shapes if made to fit in Hie base of the T-slot. It is also evident that the base might have a different shape, making an T-slot or any similar shape.</p> <p>“The pins are made to move freely in the slot; but when the curtain is stretched upon the frame the pins will he drawn over to the position indicated by the dotted line e in Fig. 2, and the base of the pin will be held rigidly against the sidos of the slot, so as to prevent sliding, thereby giving all the advantage of a stationary pin while in use and of a sliding pin when adjusting- the curtain.</p> <p>“A pin with a metal base having the upright piece soldered or riveted thereto, as shown in Fig. 4, I have found quite satisfactory, hut prefer the pm shown.in Fig. 3, as it can be stamped out of a single piece of wire, thereby lessening the cost to manufacture, and the pin formed in this way is very durable. ' . ,</p> <p>“Having thus described my invention, what I desire to secure by letters patent is— ■ '</p> <p>“(l)o A curtain-stretcher bar, having a rabbeted upper edge, a T or similarly shape°d slot, opening upon the rabbeted upper edge, a pin with a metal base and so constructed that the said pin shall extend upwardly from said base, made movable in said slot, the metal base of said pin and the slot being so proportioned that when tilted such base will hear against both sides of the slot, thereby preventing the sliding of the pin, substantially as and for the purpose set forth.</p> <p>“(2) A curtain-stretcher bar, having a rabbeted upper edge, a T or similarly shaped slot, opening upon the rabbeted upper edge, a pin having- a base formed out of a single piece of wire, and so constructed that the said pin shall extend upwardly from said base, made movable in said slot, the base of said pin and the slot being so proportioned that when tilted such base will bear against both sides of the slot, thereby preventing the sliding of the pin, substantially as and for the purpose set forth.”</p> <p>“The dotted line e in Fig. 2” indicates a tilting of the pin’s base within the slot of 10 degrees or more.</p> <p>Appellees claim to make their curtain-stretcher in accordance with two patents granted to Hoffheins, No. 003,000, May 10, 1898, and No. 070,895, June 25, 190-1, both having been applied for subsequently to Mayr’s application. The three applications were pending in the patent office concurrently for some time before the issuance of a patent upon any of them.</p> <p>From the description in appellees’ second patent, which was for improvements upon the first-, the following quotation will show the character of the pin and its relations to the slot in the rabbeted edge of the bar:</p> <p>“F is the support or base for the movable or adjustable pins, each base formed integral with its pins f by bending a inece of wire on itself to have two side arms or pieces f" and f*, connected at one end by a cross-bar p, as shown in Fig. 9, and having the pin f at the free end of the arm or side piece f" with a bend or curve f at or near the point of juncture, by which the pin. is given a bearing or support at the edge of the mouth e on the face of the rail, as shown in Figs. 8 and 10. The arm or side piece f" lies within the slot or cut e', and the arm or side piece also lies in this slot or cut e on the opposite side, as shown in Figs. 8 and 10, and these arms or side pieces f" and f* at their free ends throw outward, and, as shown, the free end of ft is turned inwardly, to permit the ■ ready entrance of the support F into the slot or groove E’. The side pieces or arms f" and f* have a spring action by which the support is self-held in position by the bearing of the arms against the walls of the slot or cut e', which spring action does not interfere with the ready and easy changing or moving of the pins in use. These movable or adjustable pins in the end rails or pieces permit their being brought together or spread apart at any desired point for setting the side rails or pieces at the required distance apart for the width of curtain or fabric, and by providing the bend or curve f the pin is brought ovér the edge of the mouth or opening e, and away from the inner edge of the rail, which with- an inclined slot, as in Fig. 10, not only gives a firm bearing and support on the rail or piece for the pin, but also carries it farther away from the edge of tho month or opening e. so that there will be less danger of breaking out or splitting the edge from strain in use.”</p> <p>In the first I-Ioffheins patent the following claims were allowed:</p> <p>“(G) The combination of a frame-piece having at the inner edge'a supporting-face terminating in a slot or groove on each side, and an attaching or retaining pin formed integral with its support or base from a single piece of wire bent to produce a support or base having independent side arms or pieces free at one end, and having an outward spring for the side arms or pieces to enter the slots or grooves of the supporting-face, and lock and retain the pin in an adjusted position hy the spring action, forcing tlio side arms or pieces in contact with the wall of the slot, or groove, substantially as and for the purposes specified.</p> <p>“(7) An attaching or retaining pin for a stretcher, consisting of a single piece of wire bent to form tlio pin and a support or base therefor having free arms or side pieces, wider at the ojien Ilian at the closed end, to give a sjiring action for holding the jiiu in an adjusted position, substantially as and for the purposes sjiecified.”</p> <p>And in the second, these:</p> <p>“(9) A. sliding adjustable pin for a curtain-stretcher frame, having a base to enter a longitudinal slot or groove in the frame-rail, and having above the base an outward'bend or curve beyond the base of the pin to overlie the body of the rail, with an upwardly and inwardly inclined pin end, substantially as described.</p> <p>“(10) A curtain-stretcher bar, having a rabbeted upper edge, an open longitudinal slot in the rabbeted upper edge, wider at its base than on the face of the rail, in combination with an adjustable pin movable in said lot, and having an outward curve above the base extending over the body of the rail, thereby supporting the pin against outward strain, and having above the curve an upwardly-projected pin-point, substantially as described.”</p> <p>The record exhibits the following prior patents:</p> <p>No. 42,077, March 29, 1804, to Chess; No. 62,422, February 26, 1867, to Idle; No. 285,886, October 2, 1883. to Flickingor; No. 410,790, September 10, 1889, to Eastman: No. 487.210, December 6, 1892, to Backof; No. 490,230, .January 17, 1893, to Osgood; No. 515,701, February 27, 1894, to Wisner; No. 521,200, June 12, 1894, to Bartley; No. 532,41(5, January 8, 1895, to Cochran; No. 535,154, .March 5, 1895, to Austin; No. 540,783, June 11, 1895, to Eno; No. 543,644, July 30, 1895, to Olieuowcth.</p> <p>Further facts are stated In the opinion.</p>

The action was for libel, the alleged libel being a cut or picture published in defendant’s illustrated weekly paper, known as “Life.” The jury brought in verdict for defendant.

<p>Appeal from the Circuit Court of the United States for the Southern District of Ohio.</p> <p>On motion to dismiss appeal.</p>

<p>Patents — Decree Sustaining Validity — Restraining Party Prom Using Decision to Obtain Trade Advantage.</p> <p>It is doubtful whether a court has power to compel a party to a decree sustaining a patent to recall circulars sent out to customers stating the holding of the court, or to further advise the recipients of the circulars that the decree has been appealed from and superseded by the adverse party, where the decision of the court does not appear to have been willfully perverted.</p>

<p>1. Patents — Construction op Claims.</p> <p>The claims of a patent finally allowed and accepted by the patentee must be read in connection with the claims set forth in the original application and with the prior art, and cannot be construed to cover what was rejected or disclosed by prior devices.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 234, 236%.]</p> <p>2. Same — Novelty—Product op Old Process.</p> <p>If a process is old and well known, the product of such process must likewise be considered as old in a patentable sense, and is not patentable as a separate and distinct invention.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 42, 49.]</p> <p>3. Same — Infringement—Sound Records.</p> <p>The Berliner patent No. 548,623, for duplicate sound records and method of making the same, in view of the prior art and the proceedings in the patent office, must be limited as to the material of which the duplicate records are made to hard rubber, which is that specified in each claim as allowed. As so contrued, held not infringed.</p>

In Equity. On final hearing. On final hearing of bill, alleging ownership of letters patent No. 508,637, issued November 14, 1893, to II. G. Reist for an armature coro, and infringement by the defendant company.

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

<p>Patents — Suit for Infringement — Sufficiency of Biix.</p> <p>A bill to recover damages and profits for infringement of a patent, which merely alleges that it was issued in due form of law on application “to the proper department of the government,” and while alleging title in complainant by assignment does not show the date of such assignment, nor that it carried the right to past damages, is insufficient.</p>

<p>In Equity. Suit for infringement of letters jlatent No. 752,903 for a dredge granted to Oliver K. Hogan February 23, Í904. On demurrer to bill.</p>

In Equity. Suit for injunction and an accounting for alleged infringement of U. S. letters patent No. 397,860, dated February 12, 1889, granted to Henry G. Keasbey for improvement in a machine for molding tubes, ■etc.

<p>In Bankruptcy. On claims of William Arts and Thomas B. McPherson, mortgagees.</p>

In Bankruptcy. On report of special master. On April 21,1904, the Randolph National Bank, James P. Tenley, and Robert Spurling filed in this court their petition against the firm of Hobbs & Co., composed of Frank N. Hobbs. Robert M. Boyle, and Lewis E. Parkinson, asking that said firm be adjudged bankrupt.

In Bankrutcy. Review of holding of referee that under the proofs of claims submitted herein, and the peculiar facts appearing therefrom and the objections thereto, both duly verified, the burden of proceeding with evidence in support of the claims is on the claimants, and consequently that the trustee, objecting, need not produce any evidence in support of the allegations of the objections filed.

<p>1. Commerce — Interstate Regulation — Power or Congress — Transportation Charges.</p> <p>The constitutional power of Congress to regulate commerce among the several states includes the power to regulate freight rates by requiring that they shall be uniform to all shippers, and in construing statutes enacted to that end freight rates should be construed to mean the net cost to the shipper of the transportation of his property, and such regulations may lawfully apply, not only to common carriers, hut to all persons and corporations occupying such relation to transportation that the conduct of their business may operate to impair uniformity of rates.</p> <p>2. Same — Powers ov Interstate Commerce Commission — Private Car Companies.</p> <p>A private car company which delivers its cars to railroad companies to be furnished indiscriminately for the use of shippers, receiving pay for such use from the railroad companies on a mileage basis, is within the provision of Act Feb. 19. 1903, e. 708, 3,2 8tat. 817 [U. 8. Comp. St. Snpp. 1905, p. 599], making it unlawful for any person “or corporation to offer, grant, give, or solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier * * * whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such carrier, or whereby any other advantage is given or discrimination is practiced,” and the giving by such a car company of any rebate or allowance to a shipper using its cars, whereby he secures the transportation of his property at a less rate than that named in the published tariff of the carrier for transportation of such property in its own cars, although from its own funds and without the connivance or knowledge of the carrier, is a violation of the statute. Such a car company is therefore subject to the jurisdiction of the Interstate Commerce Commission, charged with the duty of enforcing the statute and having power to inquire into the operations of any agency of transportation which may so conduct its business as to destroy uniformity of rates.</p>

<p>1. Indictment — Federal Statute — .Joinder of Counts — Arson.</p> <p>Under Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720], which provides that two or more charges for crimes or offenses of the same class may be joined in the same indictment in separate counts, two counts, each charging the same defendants with the burning of a different building, may be joined in an indictment for arson.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 419, 420, 422.]</p> <p>2. Indians — Arson Committed on Reservation Within a State.</p> <p>Act March 3, 18S5, c. 341, § 9, 23 Stat. 3S5, which provides that all Indians committing any one of certain enumerated crimes against the person or property of another Indian or other person within the boundaries of any state and within the limits of any Indian reservation shall be subject to the same laws and penalties “as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States,” by implication repeals Rev. St. § 2143, in so far as that section makes a distinction between white persons and Indians in respect to the crime of arson committed in the Indian country, and under the later statute the crime and the punishment are the same whether committed by a white person or an Indian, or against'a white person or an Indian.</p> <p>3. Arson — Dwelling House — School Building.</p> <p>A school building, one part of which is occupied as a habitation, with interior communication between the parts, is a dwelling house,” within the meaning of the term as used in the law of arson.</p> <p>[Ed. Note. — For cases in point, see vol. 4, Cent. Dig. Arson, §§ 8, 13.]</p> <p>4. Same — Indictment—Description of Building.</p> <p>An indictment for arson by the burning of “a certain dwelling house of the United States of America there situate, such dwelling house being then and there known as the ‘Girls’ Building of the Menominee Indian Training School,’ and then and there occupied and used as such dwelling house of the United States of America by the teachers of the said United States in the Indian service, and by other persons, such teachers and other-persons being to the grand jury unknown,” is sufficient in its description of the building and of the persons occupying tbe same, and shows, within the fair intendment of llse law, that the building was not the habitation of defendants.</p> <p>[Ed. Note. — For cases in point, see vol. 4, Cent. Dig. Arson, § 41.]</p>

<p>1. Garni sume nt — Property Subject to Garnishment — Rights of Garnishee.</p> <p>A railroad company, having in its possession within a state freight cars owned by auollier company whose linns of road are in other states, under an arrangement giving it the right to use such cars in its business in that and other states, until it should be convenient to return them loaded at some point on the owner’s road, has such an interest in them and right to their use that it cannot be compelled to surrender them as garnishee in an action by foreign attachment against the owner in the state where they are found, or to return them to such state after their use elsewhere, and an attempted attachment by service of such garnishment does not give the court jurisdiction.</p> <p>2. Same — Situs of Indebtedness — Consolidated Corporation.</p> <p>A railroad company ivas incorporated under the same name in three different states and operated a line of road extending through all of 1hem. The business was conducted as that of a single corporation having one set of directors and officers. Held that, whether regarded as a single corporation incorporated in three states 'or as three corporations practically consolidated by their stockholders, there was such practical unity that the situs of an indebtedness due to another company arising out of the operation of the road for the jrarposes 0f garnishment was in either one of the three states.</p> <p>8. Same — Indebtedness Arising out of Interstate Commerce.</p> <p>The fact that an indebtedness due to a nonresident railroad company arose out of the conducting of interstate commerce does not exempt it from garnishment under a foreign attachment.</p>

In Equity. On August 3, 3904. the plaint iff Briggs filed his hill in equity against the Traders’ Company, a corporation, and John Koblegard and Burton M. Despa rd. trustees, in which he alleges himself to he k citizen of New York and the defendants of West Virginia; that he is a stockholder of defendant company to the extent of 50 shares of the par value of $5,000; that the company is the owner of a 50-year lease of a lot of ground in Clarksburg, W. Va., upon which it has…

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

<p>On Motion for Leave to Amend Petition for Removal.</p>

<p>Bankruptcy — Priorities of Claims — 1Tax ox Corporate Bonds — Liability otf Corporation to Collect.</p> <p>Revenue Act Pa. June 30, 1885 (P. L. 193) inter alia imposes a tax at a fixed rate on the bonds of corporations owned by residents of tbe state, and makes it the duty of the treasurer of every corporation doing business in the state to collect such tax due from its bondholders, by retaining It from the interest paid on its bonds, and to pay the same to the state treasurer. As such act is construed by the Supreme Court of the state, the tax thereby imposed is not upon the corporation, although it is held liable to the state therefor. Held, that an account settled by the state officers against a bankrupt corporation, on account of taxes so imposed on its bonds, was not a tax due from the bankrupt entitled to priority of payment, under Bankr. Act July 1, 1898, c. 541, § G4a, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], but merely a liability arising from its duty to collect the taxes due from its bondholders and provable and'payable like any ordinary indebtedness, in the absence of any statute making it a preferred claim in case of insolvency.1</p>

<p>Bankruptcy — Partnership—Exemptions.</p> <p>Where, prior to the bankruptcy of a firm, one of its members bad agreed to sell bis interest to bis partners, and thereafter acted on the contract and accepted employment as a clerk in the store operated by his partners and frequently declared that he was no longer a member of the firm, he was not entitled to be treated as a partner and allowed exemptions out of the firm’s assets in bankruptcy, though the sale of his interest had not been completed by the execution of a formal agreement and payment of the consideration.</p>

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

<p>Railroads — Duty ox Purchasers to Operate — Insolvency—Rebuilding.</p> <p>A railroad company was chartered to construct a line from Greenville, S. C., to Knoxville, Tenn. Only 12 miles from Greenville had been built when the whole scheme collapsed because of lack of funds. The 12 miles ended in the woods, and after the appointment of a receiver he borrowed $12,500 on receiver’s certificates to build 3 miles more to reach a town. The receiver operated the road for four years without being able to pay any interest or tlie principal on the receiver’s certificates, or to pay himself anything for his services, or to keep the road in repair.' Its operation was then discontinued, and after three attempts to sell the road at public auction, it was purchased by the holders of the receiver’s certificates for $15,000. The franchise became forfeited because of the purchasers’ failure to organize a corporation to operate the same within 60 days, as required by Rev. St. S. C. § 1610, and after an expert had reported that $10,000 would be required to render the road safe to operate for a year, the receiver was permitted to dismantle the road, and sell the rails and rolling stock. Held that, though the state was not a party to such proceedings, the purchasers were not bound, several years after the railroad had been dismantled, to replace the same in the same condition it was when dismantled, in order that the road could be operated by others as a public highway.</p>

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

This was a suit brought by Rannels to quiet his title to several thousand acres of wild and unoccupied lands in the state of Arkansas. All of the parties interested in the controversy claim title through Edmund McGehee. Part of the property in controversy was patented directly to him as swamp lands in 1858 by the state of Arkansas.

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Western District of New York, in favor of defendant in error, who was plaintiff below. The facts sufficiently appear in the opinion.

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of West Virginia.</p>

<p>1. Shipping — Drafts for Advances — Bottomry Bond.</p> <p>Where the, master of an English vessel lying in the port of New Orleans ready to sail with cargo was without funds, and was unable to hear either from the owners or the charterers, a draft drawn by the master to raise money for supplies 'and to pay legal obligations in such port, which was duly discounted at the instance of the ship's agents, was in the nature of a bottomry bond, and created a lien on the vessel enforceable in admiralty.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Sliipiiing, §§ 362, 373-376, 391.]</p> <p>2. Same — Domestic Charter.</p> <p>Where the master of a foreign vessel lying in the port of New Orleans ready to sail executed a draft in the nature of a bottomry bond to raise money for expenses, the foreign character of the vessel wiis not 'affected by the fact that she was sailing under a charter executed in New York.</p> <p>3. Same — Lien—Enforcement—What Law Governs.</p> <p>Where the charter of an English vessel executed in New York provided that it should be governed by the American law, and the vessel shipped her cargo and contracted debts for which a bottomry bond was executed at New Orleans, the liability of the vessel was governed by the law of the United Slates, and not by the law of the flag.</p> <p>4. Admiralty — Appeal—Record—Evidence.</p> <p>On an appeal in admiralty, evidence not made a part of the bill of exceirtions will not be considered.</p> <p>5. Shipping — Bottomry Bond — Supplies—Defenses—Burden of Proof.</p> <p>Where, on a libel in admiralty on a draft in the nature of a bottomry bond given for supplies, defendants claimed that the supplies might have been obtained on the personal credit of the owners, the burden was on such owners to show that they had credit in the port where the bond was executed.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 398.1</p> <p>6. Admiralty — Appeal—Assignments of Error — Form.</p> <p>An assignment that the court erred in not dismissing a libel against a vessel with costs was a mere expression of opinion of counsel as to the duty of the district judge, and not a sufficient assignment of error.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>Action to recover damages for a personal injury suffered through the alleged negligence of the servant of the plaintiffs in error. There was a verdict for defendants in error for $5,000. On motion for new trial the court below found that the injury was not permanent in its character, and ordered a new trial, unless defendants in error should elect to remit $3,000, and take judgment for $2,000. They so elected, judgment was entered accordingly, and writ of error to review the same sued out.</p>

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

<p>1. Writ of Error — Dismissal—Delay.</p> <p>AVhere, owing to a delay in the payment of the docket fee, the record on a writ of error, though lodged with the clerk in due time, was not filed until five days after the return day, but no continuance resulted or other injury to the defendant in error, the latter’s motion to dismiss on that ground, not made until nearly four months after the record was filed, when the case had then been docketed and the record printed, will be denied.</p> <p>2. Master and Servant — Death of Servant — Operation of Elevators — In. structions.</p> <p>Deceased, an assistant janitor in defendant’s building, was killed while attempting to operate an elevator therein on the sixth day of his employment. Deceased was 51 years of age at the time, and on each day for the first three days of his employment the head janitor personally instructed him in the operation of the elevator. On the second and third days the head janitor permitted deceased to manage the elevator in his presence, and on the fourth and fifth days deceased operated it alone. Such janitor testified that he cautioned deceased about handling the cable, and told him to be careful to pull the cable slowly until he felt the elevator move, and then increase the speed if desired, and that deceased seemed able to operate the same as well as witness could himself. Held, that defendant was not guilty of negligence in failing to properly instruct deceased as to the operation of the elevator.</p>

<p>1. Bankruptcy — Ownership op Property — Bankruptcy Court — Jurisdiction.</p> <p>On the filing of a petition in bankruptcy, followed by an adjudication, all property in the possession of the bankrupt of which he claims ownership passes into the custody of the bankruptcy court, subject to its jurisdiction to determine by plenary action or summary proceeding all adverse or conflicting claims with reference thereto, which jurisdiction cannot be impaired or destroyed by the unauthorized surrender of possession of the property by the officers of the bankruptcy court, or through a seizure thereof by an adverse claimant.</p> <p>2. Same — Trustee -Permission to Sue in State Court — Vacation.</p> <p>Where an ex parte order permitting a claimant of property in the possession of a bankrupt to sue the trustee in a state court to determine the claimant's right thereto was improvidently granted, the court, on being advised of all the facts, had power to vacate such order, and enjoin the claimant from proceeding further i,n the state court.</p>

In the decision below the Circuit Court reversed without opinion three decisions of the Board of United States General Appraisers, which, on the authority of G. A. 5,569 (T. D. 24,972), had overruled protests of Jules & Hugo Rosenberg against the assessment of duty by the collector of customs at the port of New York.

<p>Constitutional Law — Validity or State Statute — Discrimination Against Patented Articles.</p> <p>Act. Ark. April 23,1891 (Sand. & H. Dig. §§ 493-496), which provides that every negotiable instrument taken in payment for any patented machine, implement, substance, or instrument shall be executed on a printed form showing upon its face that it was so taken, making its violation punishable by a fine, and all such negotiable instruments not so showing on their face absolutely void, is unconstitutional and void, as creating a discrimination between articles of property of the same class or character, based solely on the fact that those discriminated against are protected by a patent granted by the United States.</p>

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>Appeal from an interlocutory decree (136 Fed. 414) on dismissing bill for infringement of complainant’s patent No. 569,903, granted October .20, 1896, to Julius D. C. Wenger for a finger nail cutter.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, sustaining the validity and finding infringement of U. S. letters patent 534,543, granted February 19, 1895, to Emile Berliner for the “Gramophone.”</p>

Suit in equity for alleged infringement of United States letters patent No. 587,633, dated August 3. 1897, for a fastener for stair carpets. Complainant seeks an injunction and an accounting.

Suit in equity for infringement of U. S. letters patent No. 623,933, for improvement in howling alleys, dated April 25, 1899, granted to complainant as assignee of William II. Wiggins.

<p>In Equity. On motion for attachment for contempt.</p>

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

In equity. Suit for alleged infringement of letters patent No. 556,-913, granted March 24, 1896, to Johann C. W. F. Tiemann, on application filed May 11, 1893, for aromatic ketone and process of making same.

<p>1. Property — Secret Process — Incidents of Ownership.</p> <p>The patent and copyright statutes, in conferring upon an inventor or author the exclusive right to make use and sell articles embodying his invention or authorship, create in him a new right and do not extend or continue a previously existing right. The owner of a secret process, not patented, has no such exclusive right to make, use, and vend the article to which it relates, hut he has the right to keep his knowledge to himself and to protection of the same as a property right against one, who, In violation of contract or through a breach of trust or confidence, undertakes to apply the secret to his own use or to impart it to others.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Property, §* 2.</p> <p>Disclosure of trade secrets, see note to S. Jarvis Adams Co. v. Knapp, 58 C. C. A. 8.]</p> <p>2. Sales — Right to Restrict Future Sales — Effect of Patent.</p> <p>The owner of a patent or copyright after an absolute sale of the article covered thereby may, by virtue of the exclusive right given him by statute, and his right to withhold or restrict licenses under his monopoly, retain control of future trade in the article sold, as to prices of resale, etc., irrespective of any condition in the contract of sale, but the right to reserve such future control by contract is not derived from the statute, but exists if at. all by the common law, and may as lawfully he exercised by the seller of an unpateuted article.</p> <p>8. Contracts — Restraint of Trade — Sale of Article Made by Secret Process.</p> <p>Provisions in a contract for the sale of a secret process restraining its use or its communication to others are not invalid as in restraint of trade, because necessary to protect the property right in the subject-matter of the contract, but such considerations do not apply to contracts for the sale of the article produced by such process which are subject to the same rules as contracts for the sale of any other article of manufacture.</p> <p>4. Same.</p> <p>A system of contracts made by the manufacturer of a proprietary medicine between him and wholesale dealers, to whom alone he sold his medicine, by which they were bound to sell only at a certain price and to retail dealers designated by him, and between him and the retail dealers by which, in consideration of being so designated, they agreed to sell to consumers only at a certain price, is not unlawful as in restraint of trade, but is a reasonable provision for the protection of the manufacturer’s trade, and be is entitled to an injunction to restrain a defendant from inducing other parties' to such contracts to violate tile same.</p>

<p>In Bankruptcy. On motion to confirm report of'special master.</p>

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

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

<p>Costs — Requirement of Security — Rules of Court.</p> <p>Under rule 53 of the circuit court for the Southern District of New York, a nonresident plaintiff, although joined with a resident, is required to give security for costs.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Costs, § 433.]</p>

In Bankruptcy. On petition to vacate adjudication. On the 15th of January, 1903, a petition was filed against F. M. Billing by certain of his creditors, praying that he be adjudged a bankrupt, the act of bankruirtcy charged being the making of a conveyance of a part of his real estate, on December 22, 1902, while insolvent, etc. Billing appeared 'and contested. The matter was referred to the referee to ascertain and report the facts.

<p>1. Carriers — • Foreign Shipments — Through Rates under Joint Schedules.</p> <p>Through shipments o£ iron pipe were made from points in New Jersey and Pennsylvania to Winnipeg. Canada, part over the Baltimore & Ohio Railroad and part over the Philadelphia & Reading to the Great Lakes; thence by the Mutual Transit Company, a water carrier, to Duluth: and thence by the Great Northern Railway and its connections. There was no through joint rate filed or published, but there was a joint rate of 24% cents per 100 pounds between the initial points and Duluth published and filed by participating carriers, and one of 25 cents per 100 between Duluth and Winnipeg filed by the Great Northern Railway Company. Held, that the lawful rate for the through carriage was the sum of such two rates, or 49% cents per 100, and that under the interstate commerce law, as amended by Act March 2, 1889, c. 882, 25 Slat 855 |U. S. Comp. St. 1901, p. 315G], neither line over which the shipments passed could lawfully charge a greater or less sum than was specified in the filed and published schedule of rates to which it was a party.</p> <p>2. Same — Receiving Rebate from Joint Rate.</p> <p>The Elkins act of February 19, 1903 (chapter 708, 32 Stat. 847 III. S. Comp. St. Supp. 1905, p. 599j) makes it unlawful for a earner to grant a rebate from a joint tariff rate which it has filed with the Interstate Commerce Commission or published, or in which it participates when filed or published by another carrier, but It does not make it a criminal offense to receive a rebate from a joint rate unless such rate has been both filed and published.</p> <p>8- Same — Parties to Through Shipment.</p> <p>When a carrier unites with one or more others in making a rate for interstate or foreign shipments, and a through bill is issued therefor, it is subject to the interstate commerce act. An express agreement for the through rate is not required, but the successive receipt and forwarding in the ordinary course of business by two or more carriers under through bills, or any arrangement for a continuous carriage, constitutes assent to such common arrangement, and makes the carrier a party to the contract, within the meaning of the act.</p> <p>4. Same — Acceptance of Rebate — Criminal Liability.</p> <p>The fact that a shipper who contracts for and receives a rebate in violation of the statute personally receives no benefit therefrom, but turns the same over without consideration to another, does not relieve him from criminal liability.</p> <p>5. Same — Acceptance of Rebate by Corporation — Liability of Stockholder.</p> <p>The fact alone that a defendant is a stockholder in a corporation which has accepted rebates in violation of law does not render him subject to the pienalty imposed by the statute therefor.</p>

<p>1. Removal oe Causes — Bonds—Suiticiency.</p> <p>Civ. Code S. C. 1902, §§ 599, 600, authorizing the giving of surety company bonds, declares that any foreign company, empowered by its charter to issue bonds or policies of suretyship, may, with the consent and approval of the Governor, Comptroller General, and Secretary of State, issue such bonds within the state. A removal bond tendered with a removal petition was signed by M. as attorney in fact for the foreign corporate surety, authorized to do business within the state, and was sealed with the seal of the corporation. It also contained an affidavit that the affiant saw the corporate seal of the company affixed, saw M. sign as attorney in fact for such surety, and witnessed the execution and delivery thereof as the act and deed of such surety. Meld, that the bond was sufficient, though it was not accompanied by a power of attorney authorizing M. to sign the bond.</p> <p>2. Same — Order oe Removal — Necessity.</p> <p>Where a proper petition and bond for the removal of a cause to a federal court is filed in proper time with the clerk of the state court where the cause sought to be removed is pending, and a certified copy of the record is filed in the federal conn, the latter court acquires jurisdiction without an order of the state court transferring the cause.</p> <p>[Ed. Note. — For eases in point, see vol. 42, Cent. Dig. Removal of Causes, §198.]</p> <p>3. Same- State Court Proceedings — Injunction.</p> <p>Where a cause was properly removed to a federal court, hut the state court erroneously denied a motion for an order transferring the cause, the federal court had jurisdiction on the application of the party removing the cause to grant an ancillary injunction restraining the opposite party from taking further proceedings in the state court, without violating Rev. St. §720 [U. S. Comp. St. 1901, p. 581], forbidding a federal court from enjoining proceedings in a state court.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 206.]</p>

<p>1. Collision — Boats Breaking from Wharf tn Flood — Sufficiency of Mooring.</p> <p>Respondent bad a fleet of 93 empty coal barges tied up at a landing on the Obio river a short distance below Pittsburg, tbe most of which broke loose when the river was in flood and struck and destroyed or damaged certain sand boats of libelant which were moored at a landing below. Respondent’s fleet was divided into three sections, the upper, which first broke away, having 17 boats, 7 of which were abreast in each of the first two tiers. At the head of the landing was a breakwater which extended into the stream a sufficient distance to protect 4 of the inner boats from the current. They were made up and tied in a customary manner, and secured by more than the usual number of lines. The river was high when they were placed there, and during the succeeding two days rose thirteen feet, and at the time of the accident, boats were engaged in removing the outer barges. Held, that it was not chargeable with negligence; it appearing that the fleet was not only moored and tied in the usual manner, but was being constantly looked after by experienced men who - had not previously deemed it necessary to change the position of any of the boats, and, further, that the breaking way was in fact caused by certain overturned barges which came down from above, and were carried by the current under those of the fleet.</p> <p>2. Same — Negligence—Reasonable and Ordinary Care.</p> <p>The measure of the respondent’s duty was reasonable care, the standard of which is that of the man of average foresight and prudence, which in the situation here is to be determined by that which was usual and ordinary.</p>

<p>Navigable Waters — Drawbridges—Collision Between Tow and Bridge.</p> <p>On a libel in personam against a bridge company for injuries to a derrick scow in collision with a portion of the draw of a bridge, opened to permit tbe passage of a tug and tow, evidence held to require a finding that the bridge was fully opened, and that the collision was caused by the negligent navigation of the tug in charge of the tow and another tug belonging to libelant while passing through the bridge passage at the same time.</p>

<p>Bankruptcy— Amendment oe Schedules — Opening Proceedings.</p> <p>Bankr. Act July 1,1898, c. 541, § 17, 30 Stat. 550 rtf. S. Coinp. St. 1901, p. 3428], provides that a discharge shall release the bankrupt from all provable debts except those not scheduled in time for proof and allowance, unless the creditor had notice or actual knowledge of the proceedings in bankruptcy, and section 57,’ subd. “n” (30 Stat. 561 [U. S. Comp. St. 1901, p. 3444]), declares that claims shall not be proved against a bankrupt estate subsequent to a year after the adjudication, except in the case of infants and insane persons, without guardians, who are allowed six months more. Section 2, subd'. 12, 30 Stat. 545, 546 [TJ. S. Comp. St. 1901, p. 3421]), confers on courts of bankruptcy jurisdiction to discharge or refuse to discharge bankrupts, and to set aside discharges, and reinstate the eases, and subdivision 15 authorizes the making of orders, the issue of process, and entry of judgments, in addition to ’those specifically provided for necessary for the enforcement of the provisions of the act. Held, that, where more than 18 months had elapsed after the granting of a bankrupt’s discharge, it was too late for the bankrupt to have the proceedings opened in order to permit him to amend his schedules by including an omitted creditor, who was not made a party to the proceedings prior to the granting of the discharge, who had no notice or knowledge of the proceedings, though there were ho assets -belonging to the estate.</p>

<p>Damages — Liquidated Damages and Penalties — Consteuction op Stipulation.</p> <p>A provision of a building contract reciting that in case of delay in the completion of the building the damages sustained by the owner will be difficult of computation, and that it is therefore agreed that the contractor shall pay a stated sum per day for the time which may elapse after a date fixed before the completion of the building as liquidated damages, where it is shown that in fact the damages actually sustained by the owner by reason of the delay cannot be calculated, will be construed as one for liquidated damages, and not for a penalty, and so enforced.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Damages, §§ 164, 167.]</p>

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

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

<p>Specific Performance — Parol Contract — Measure of Proof Required.</p> <p>TO entitle a complainant to a decree for the specific performance of a parol contract, the evidence must he clear and satisfactory both as to the existence of tlie contract and as to its terms.</p> <p>TEd. Note. — Por cases in point, see vol. 44, Cent. Dig. Specific Performance, § 380.]</p>

<p>On Motion for New Trial.</p>

<p>Seamen — Injury in Service — Expense oe Cure.</p> <p>A seaman injured in the service of a vessel is entitled to recover from the vessel all expense necessary to effect his cure, including board, medicines, and treatment so far as ordinary medical means extend, but not for extraordinary treatment, nor for attention which he can himself give.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent Dig. Seamen, §§ 39-44.]</p>

<p>Discovery — Inspection of Premises by Adverse Party — State Statute.</p> <p>Section 372, p. 107, of the court and practice act of Rhode Island of 1905, which requires a defendant to allow a reasonable inspection of its promises, is applicable to actions at law for a personal injury in a federal court within the state, and violates no constitutional right of a defendant.</p>

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

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

<p>1.' Corporations — 'Workmen's Liens — Right op Corporation to Lien — State Statute — Construction.</p> <p>Under W. Va. Code 1899, e. 75, § 7, providing that every workman, laborer, or “other person,” who shall do or perform any work or labor by virtue of any contract for any Incorporated company doing business within the state shall have a lien therefor on the real estate and personal property of the company, and Chapter 13, § 17, subd. 9, declaring that the word “person” includes corporations, if not restricted by the context, a corporation employed to supervise the construction of an electric railway by means of the personal services of its officers and servants is entitled to a lien therefor.</p> <p>2. Same — Amount oe Compensation.</p> <p>That a contract employing a corporation to superintend the construction of an electric railway provided that the compensation should be measured by a percentage on the actual uet cost of all materials and labor necessary for ¡lie construction of the railway, instead of a specific sum, did not affect the corporation’s right to a lien for the amount due which was susceptible of definite ascertainment by calculation.</p> <p>3. Same — Foreign Corporations — Noncompliance with State Law — Right to Sue.</p> <p>Under W. Va. Code 1899, c. 54, § 30, as amended by Acts 1901, p. 108, e. 35, § 31, providing that a foreign corporation not having complied with the laws of the state shall not be entitled to maintain any action in the courts of tlie state, and that the failure of a foreign corporation plaintiff to so qualify may be pleaded in abatement in any action, suit, or proceeding, such failure, so far as the federal courts are concerned, does not affect the jurisdiction of the court in which the suit is pending nor the validity of a contract sued on, but is a matter which the defendant is entitled to raise or waive at its election.</p> <p>4. Appearance — Pleading—Filing Demurrer.</p> <p>In Hie federal courts, the filing of a demurrer amounts to a general appearance.</p> <p>5. Plea — Abatement and Revival — Capacity to Sue — Abatement—Time.</p> <p>Where, in an action by a foreign corporation, defendant demurred and after the demurrer was overruled, filed an answer to which replication was had after which defendant filed a cross-bill, and after a demurrer to this was overruled plaintiff answered the cross-bill and a replication was filed to this on which issue was joined and a trial had on the merits, it was then too late for defendant to plead in abatement plaintiff’s alleged disability to sue because it had not complied with the laws of the state.</p> <p>6. Corporations — Workmen’s Liens — Right to Lien — Payment in Bonds.</p> <p>Where an option contained in a railroad construction contract by which plaintiff was entitled to take ono-lmlf of the amount due it thereunder in bonds of the railroad company at a reduced rate instead of money was not availed of, but instead of tendering the bonds defendant canceled tbe contract, prevented plaintiff from further performing the same, and denied all liability thereunder, such option did not deprive plaintiff of the right to a lien given by a state statute for Hie amount due under tbe contract.</p> <p>7. Same — Priority—Objections—Estoppel.</p> <p>Where defendant railroad company bad broken a construction contract sued on, and was itself in the hands of a receiver, it was estopped from itself objecting to the amount found clue tlie contractor, and to the order of priority of the lien awarded to it.</p> <p>8. Railroads — Construction Contract — Breach—Lien—Sale op Property.</p> <p>Where a railroad contractor was entitled to a lien on the road on the railroad’s breach of a construction contract and the appointment of a receiver of the railroad’s property, it was proper for the court on foreclosing such lien to decree a sale of the property to pay the indebtedness found to be due.</p> <p>9. Appeal — Objections Not Raised at Trial — Other Action Pending.</p> <p>Xu a suit to foreclose a lien on the property of a railroad company, an objection to an order of sale because of receivership proceedings pending in a federal court sitting in another state could not be raised for the first time on appeal.</p>

<p>1. Bankruptcy — Review—Mode—Appeal—Petition to Revise.</p> <p>Where the validity of a trust deed given by a bankrupt within four months of the institution of bankruptcy proceedings, as against other creditors, arose in the bankruptcy proceedings in determining the priority of claims, such question was reviewable by the Circuit Court of Appeals on a petition to superintend and revise, as authorized by Bankr. Act July 1, 1898, e. 541, §§ 23, 24, 30 Stat. 552, 553 [U. S. Comp. St. 1901, p. 3431], and not by appeal.</p> <p>2. Same — Preference—Trust Deeds — Validity.</p> <p>Where a trust deed was executed by a bankrupt to secure an antecedent debt without any actual fraud within four months prior to the institution of bankruptcy proceedings, and was intended to create a preference, and was accepted for that purpose at a time when the bankrupt was insolvent, and it resulted in giving a preference, it was avoided by the bankrupt’s adjudication as a bankrupt, as provided by Bankr. Act July 1, 1898, c. 541, §§ 60a, b, 67e, 30 Stat. 562, 504 [U. S. Comp. St 1901, pp. 3445, 3449].</p> <p>3. Same — Invalidity Under State Laws.</p> <p>A trust deed securing an antecedent debt without a new consideration, executed by a corporation while insolvent for the purpose of prefering one creditor over another, which was accepted for that purpose, and operated as a preference, was void provided it was assailed within four months of the recordation thereof, as provided by Code W. Va. 1899, c. 74, § 2, and was therefore also void as against the grantor's creditors in bankruptcy, as provided by Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 504 LU. S. Comp. St. 1901, p. 3449].</p> <p>4. Same — Contract—Relation.</p> <p>Where a contract providing for the execution of a trust deed to secure bonds of a corporation given for advances was not recorded, a trust deed executed pursuant to such contract within fo.ur months prior to the institution of bankruptcy proceedings could not take effect by relation as of the date of the contract, in order to sustain the same as against unsecured creditors of the bankrupt.</p> <p>5. Courts — Federal Courts — Rules of Decision.</p> <p>In determining the validity of a mechanic’s lien in a bankruptcy proceeding, the federal courts will be governed by the state laws.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of West Virginia, at Martins-burg.</p>

<p>Bankruptcy — Claims—Taxes—Payment.-</p> <p>A bankrupt while a deputy sheriff received tax bills for collection, including bills on his own property, amounting to $011.47. He made no final settlement with the sheriff, though he made large payments on account of tax collections, including the bills on his own property. After the expiration of the sheriff’s term, the latter made an assignment to a trustee, who took possession of all the tax books, including tax bills found in the desk of the bankrupt in the sheriff’s office, amounting to $2,390.71. These bills did not include the bankrupt's individual taxes, which had been taken from the tax books and were in the bankrupt’s possession ; he claiming them to have been paid. Held that, as it was the sheriff’s duty to close his tax transactions with the. county annually, and to have returned delinquent taxes unpaid, and the bills against his deputy could not. be -so returned, the latter's taxes should be regarded as paid, and did not constitute a valid claim against his estate in bankruptcy.</p>

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

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

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

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, who was plaintiff below, against plaintiff in error and the Interurban Street Railway Company, who were defendants below.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, who was plaintiff below, against plaintiff in error and the Holbrook, Cabot & Daly Contracting Company, whp were defendants below.</p>

.Appeal from the District Court of the United States for the Eastern District of New York. This cause comes here upon appeal by libelants from a decree of the District Court, Eastern District of New York, dismissing the libel. The following is the opinion of the District Court by Thomas, District Judge: The ferryboat. McCullough was approaching her slip at Chambers street on a course about southeast by south.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>This cause conies here upon appeal from a decree of the District Court, Southern District of New York, holding the tug solely responsible for damages resulting from a collision between a car float which she had in tow and libelant’s steamer City of Atlanta.</p>

<p>1. Appeal — Assignment of Error — New Trial — Refusal to Grant.</p> <p>The refusal of the trial court to grant a new trial cannot he made the subject of an assignment of error in the Circuit Court of Appeals.</p> <p>[Ed. Note.' — Eor cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3864.]</p> <p>2. Courts — Federal Courts — Judicial District — Division of State.</p> <p>The division of the state of Washington into two judicial districts left ihe then existing Circuit and District Courts restricted only as to territory and intact as to all other respects.</p>

<p>Removal of Causes — Recasting Pleadings — Division of Cause — Effect!</p> <p>On the removal of a cause to obtain both equitable and legal relief, complainant filed amended pleadings, as required by Circuit Court rule 39, splitting the cause into two. one an action at law, and the other a suit in equity, after which it was held in the law action that the cause was improperly removed. Held, that; the bill in equity so filed did not constitute the commencement of a separate and distinct suit, and hence on the reversal of a decree therein the suit should be remanded to the state court.</p>

This cause comes here upon appeal from a decree of the district court, Southern District of New York, dismissing a libel by the owners of the brig Jennie Ilurlbut to recover freight, dead freight, average, and demurrage under a charter of that vessel for a voyage from Maracaibo to New York to carry a full cargo of asphalt in boxes and/or barrels. The freight and average were paid into court after libel was filed.

<p>1. Jury — .Throbs—'Disqualification—Frio* Service — Federal Statutes.</p> <p>Under the express provisions of Act Cong. June 30, 1879, c. 52, § 2, 21 Stat. 43 find. T. Ann. St. 1899, § 4193], prior service is no ground for disqualification of a juror, unless such service was in the capacity of a petit juror.</p> <p>[Ed. Note. — For cases in point, see vol. 31, Cent. Dig. Jury, §§ 423-130.]</p> <p>2. Save — Indian Territory.</p> <p>Under Afansf. Dig. § 3905 rind. T. Ann. St. 1899, § 2675], declaring that no person shall be compelled to serve as a grand or petit juror more than one term in any one year, prior service asa juror is not a disqualification, but a personal exemption, which the person called to serve may urge or waive at his election.</p> <p>3. AVrit oe Error — Evidence—Exceptions.</p> <p>The admission of evidence cannot be reviewed where no exception was reserved to the ruling.</p> <p>4. Replevin — Instructions—Evidence.</p> <p>Where in replevin to recover certain mortgaged cattle there was no claim that the marshal had not taken the cattle claimed by plaintiff, or that he had taken any that were not so claimed, an instruction making plaintiff’s right to recover depend on whether its mortgage covered the cattle taken hy the marshal under the writ was not erroneous ; the record making it certain that the jury could not have understood the reference to the cattle taken under the writ as meaning anything other than the cattle claimed by the plaintiff.</p> <p>5. Same.</p> <p>AYhere plaintiff sued to recover certain mortgaged cattle described as 326 head of three year old steers, located in a certain feed lot, which cattle subsequently became intermingled with cattle mortgaged to another, all of which were in defendant's possession, it was immaterial whether the cattle covered by plaintiff’s mortgage were designated in an instruction hy reference to tlieir age or to their location át the date of the mortgage.</p>

<p>1. Aliens — Chinese—Deportation—Judgment—Recital of Facts.</p> <p>Where a judgment for the deportation of a Chinese person recited that it appeared to the court that accused was a Chinese laborer and a subject, of the Emperor of China; that he was not registered as required by Acts Cong, approved May 5, 1892, c. 60, § 6, 27 Stat. 25, and Act Cong. Nov. 3, 1893. (chapter 14, § 1, 28 Stat. 7 [U. S. Comp. St. 1901, p. 1320]), and that he did not belong to one of the classes of Chinese excepted by said acts from such registration, and was unlawfully within the United States, it was not objectionable for failure to state sufficient facts to sustain it.</p> <p>[Ed. Notes. — Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A, 332.]</p> <p>2. Appeal — Record—Bill op Exceptions — Evidence—Review.</p> <p>Where the evidence printed in the record was not embodied in a bill of exceptions or otherwise authenticated as. having been used before the trial court, assignments of error based on the evidence could not be reviewed.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2433-2440.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The following is the opinion of the Circuit Court, by Townsend, Circuit Judge:</p> <p>On motion for preliminary injunction against infringement of claim 1, of patent No. 504,065. granted August 29, 1893; claim 7 of patent No. 563,163, granted June 30, 1896; and claims 1, 2, and 3 of patent No. 563,164, granted June 30, 1896 — all to Graham & Saveli. These patents have never been adjudicated, but the evidence of universal public acquiescence for a period of 12 years, and of the relations of defendant Munson to complainant as its agent, are sufficient to sustain the motion.</p> <p>The patents relate to certain alleged inventions in india-rubber cushions for typewriter keys. Patent No. 563,163 need not be considered, as, if construed broadly enough to cover defendants’ construction, it would be void, in view of the prior state of the art. Patent No. 563,164 covers a process of inlaying letters by vulcanization and the resulting product, both of which appear to be old, in view of similar processes and products in the general field of art relating to the manufacture of articles of india rubber.</p> <p>Claim one, of patent No. 504,065, the one as to which infringement is here claimed, is as follows: “(1) A hollow cushioned cap for the keys of typewriting machines, having a letter or character on its surface, said cap provided with means for engaging the key for maintaining the cap elevated to form an air space or cushion between the inner top wall of the cap and top of the key.” The cap, as described in the specifications, comprises a metallic sleeve arranged to fit over the rim of a typewriter key, having above it a rim or flange .with a neck of smaller diameter, and above this an outwardly expanding flange. The “hollow elastic cap is stretched over the flange, a, until the lower edge of it fits into the space or neck between the body, A, and the flange, a, where it is firmly held in place. * * * When this cap is in place there is a hollow space between the thin surface of the caj> and inner portion of the cup-shaped flange, a, and in addition to this when the rim, A, has been fitted upon the key, a certain amount of air is retained within the space between the key and the elastic cap which serves as a cushion, making the pressure with the fingers very soft and agreeable, and preventing any soreness or injury to the fingers by constant striking of the keys.”</p> <p>There is no prior art which shows such a construction. The only patent relied on to limit the invention is No. 455,319, to Green, in which an ordinary rubber thimble is pushed down directly on the key without any interposed structure, and is held in place simply by the elasticity of its rubber rim. The objection to this construction is that it lacks the cushioning qualities provided for by the construction of the patent in suit, and that, as appears from the affidavits, it is impracticable because, by reason of the dependence upon the elasticity of the rim as the means of attachment, it is only capable of use for a short time. It' is true, as found by the Patent Office when the application for the patent in suit was pending, that Green shows an air space between the top of the key and the solid rubber cap, but this is not in construction or operation the air cushion of the patent in suit, which, by means of the flange construction, maintains the cap elevated to form an air space or cushion as claimed. The defendants’ cap differs from that of Green, in that it introduces into its construction means for engaging the keys and for maintaining the cap elevated, consisting of an external band supporting tlie key and cushion, provided with punching points to hold the robber in place. The effect of this arrangement is to form an interposed air space or cushion like that of the patent in suit. The defendants contend, however, that this construction does not infringe because said air space is crossed by two bands or bridges of rubber extending at right angles to tlie exterior band across the air space, and because in the latter construction the air space lias been further obstructed or filled up with sponge rubber, thus reducing the elasticity of the cushion and thereby introducing a novel improvement.</p> <p>Defendants appear to have appropriated the essential element, the elevated air space or cushion of the first claim of patent No. 504,005. Tlie fact that they have introduced rubber bridges or pieces of sponge rubber merely so as to reduce the amount of resiliency secured by the patented construction is not sufficient to relieve them of the charge of infringement.</p> <p>Tlie motion for a preliminary injunction as to claim 1 of patent No. 504,005 is granted, and is denied as to the other two patents.</p>

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

<p>1. Patents — Construction of Claims — Changes in Patent Office.</p> <p>The claims of a patent as allowed must be construed with reference to the action of the Patent Office thereon as the prior art; (hey are not affected by a mere change in the wording at the instance of the Patent Office which leaves rlie substance unchanged, but, if narrowed in scope, and so accepted by the applicant, he is bound thereby.</p> <p>(Ed. Note. — For cases in point, see vol. 38, Cent Dig. Patents, §§ 2431/2, 244.]</p> <p>2. Same — Infringement—Lamp Appliance.</p> <p>The I-leald patent. No. 423, 317, for an appliance for use with incandescent gas lamps, cannot be construed to cover, as a part of the invention, the removable tubular support for the lower end of 1 he mantle and the supporting rod, which was old, and a claim therefor rejected by the Patent Office, hut is limited to the feature of the refractory ring support at the top of the mantle. As so limited, held not infringed.</p>

<p>Patents — Infringement—Numbering Machines.</p> <p>The Bates patent. No. 721,276, for a typographic numbering machine, claims 13, 14, and 15, which relate to a drop-cipher device, were not anticipated, and disclose invention, but are for mere improvements on machines in the prior art, and come within the rule that one who selects and combines elements from the inventions of others into a new structure, adapted to accomplish the old result, is entitled to a patent only for his own particular form of adaptation, and hence are not entitled to the benefit of the doctrine of equivalents. As so limited, held not infringed.</p>

<p>Patents — Inerinoement—Numberins Machine.</p> <p>The Bates patent, No. 676,084, for a numbering machine, while not for a pioneer invention, covers patentable improvements which overcame objections to the machines of the prior art, and entitle its claims to a reasonably broad construction and range of equivalents. As so construed, claims 2 and 22 held infringed.</p>

<p>Patents — Infringement—Stairway.</p> <p>The Wheeler patent, No. 479,864 for a stairway, construed, and held not anticipated, valid, and infringed as to claims 6 and 10, and not infringed as to claims 7, 11, and 12.</p>

<p>Patents — Suit fob Infringement — Equity Jurisdiction.</p> <p>A bill for infringement of a patent wliich charges past infringement only and contains no allegation of present or threatened infringement, does not state a ease within the jurisdiction of a court of equity, when taken in connection with a plea denying any infringement since more than a year prior to the filing of the' bill, and with the fact that the patent expired before the hearing.'</p>

<p>Patents — Infringement—Separable Buttons.</p> <p>The Pringle patent, No. 580,001, for a separable button, claims 1 and 2, relating to the socket member, disclose a patentable invention, but cover a new combination of old elements, and must be limited to the precise combination shown. As so limited, they are not infringed by the device of tile Kerngood patent, No. 645,024.</p>

<p>1. Patents — Anticipation—Abandonment op Machine.</p> <p>A machino fully embodying a device subsequently patented .by another does not lose its effect as an anticipation because its use was abandoned solely for the reason that the product in making which it was employed was not successful where it is'shown that the machine worked successfully and the maker did not abandon the invention embodied therein.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 73.]</p> <p>2. Same.</p> <p>Notwithstanding that A., having embodied his invention in a machine whose use was soon abandoned, later failed to describe it in the patent granted him, so that the latter was inoperative, yet the attempt to obtain the patent is evidence that A.’s invention was not an abandoned experiment.</p> <p>3. Same — Clutch.</p> <p>The Davey & Ladd patent, No. 672,056, for a clutch, is void for anticipation.</p>

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

<p>1. Receivers — Preferential Claims — Railroads—Foreclosure of Mortgage.</p> <p>To entitle a general creditor of an insolvent railroad company to preference over a mortgage which covered not only the corpus of the railroad property of every kind and description, hut also the net income after deducting current operating expenses, the debt must have been contracted upon the faith of being paid from such current income, and not created for construction or ordinary equipment; and even when so contracted, as a general rule, there is no equity which entitles the creditor to preferential payment over the mortgagee from the proceeds of the property at foreclosure sale, where it brings less than the mortgage debt, or to subject the corpus of the property in the hands of the purchaser to its payment, unless it is shown that there was a diversion of net income to the benefit of the mortgagee, and the burden of proving such fact rests upon the claimant.</p> <p>2. Same-Right of Purchaser to Contest.</p> <p>The fact that the court, in a suit for foreclosure of a railroad mortgage, may in its orders have directed that preferential claims for supplies and materials be paid out of the proceeds of the sale or the corpus oí the property in the hands of the purchaser, does not deprive the purchaser of the right to contest such claims, on the ground that they are subordinate in right to that of the prior mortgagee.</p> <p>3. Same — Diversion of Income.</p> <p>Diversion by a railroad company of net income properly applicable to the payment of current claims for supplies, etc., to the benefit of a mortgagee, in order to entitle the holder of such a claim to priority of payment over the mortgagee from the corpus of the property, must have been made after the creation of the debt sought to he so enforced as an equitable lien.</p> <p>4. Same — Improvements by Receiver.</p> <p>The fact that an indebtedness for permanent improvements incurred by railroad receivers in a creditor’s suit to which a mortgagee was not at the time a party was authorized by the court does not effect a displacement of the mortgage lien in favor of such indebtedness, nor does the fact that at the time such indebtedness was authorized there was default on the mortgage, and the mortgagee might have become a party, amount to an acquiescence in the expenditure, which estops him to assert the priority of his lien, except as to income which may have been diverted to such purpose prior to the filing of his cross-bill.</p> <p>5. Equity — Exceptions to Master’s Findings.</p> <p>Exceptions to findings of fact by a master should not be the general result, but must be specific, and point out the particular errors relied on, and where they are based on particular evidence should refer to the place in the record where the same may be found.</p> <p>6. Receivers — Preferential Claims — Railroads—Foreclosure of Mortgage.</p> <p>Where a number of railroads owned by different companies were operated together as a single system, charges made by one against another for rental of locomotives and expenses advanced in maintaining the joint officers and oflieos are not preferential, and entitled to jiriority over a prior mortgage given by the company charged, where there was no diversion of net income to the benefit of the mortgagee.</p> <p>7. Same — Claim iron Ballast Caes.</p> <p>An indebtedness of a railroad company for ballast cars for use in improving its roadbed is not necessarily entitled to preference over a mortgage upon Hie corpus of the railroad property, and is not allowable as a preferred lien, where it appears that there ivas no net income from the operation of the road after it was contracted, either before or after the receivership.</p> <p>8. Same — Diversion of Income — Payment of Rent.</p> <p>Rent paid by railroad receivers on a lease of another road, made prior to the receivership, and adopted by them, does not constitute a diversion of income which entitles a creditor whose claim originated after the lease was made to preference over a mortgage out of the corpus of tile property, but is an operating expense.</p> <p>9. Same.</p> <p>A diversion of earnings by railroad receivers in making new constructions, even if it inures to the benefit of bondholders, will not avail to entitle an unsecured creditor to priority of payment over the mortgagee from tlie corpus of the property, unless it is further shown that but for such diversion there would have been net earnings subject to the equitable lien.</p> <p>30. Same.</p> <p>A claim against a railroad company for breach of contract is not one on which a claim to preference over a mortgage can arise.</p>

<p>In Equity. On exceptions to master’s report.</p>

<p>1. Shipping — Damage to Cargo — Negligence of Tug and Tow.</p> <p>Damage to a cargo of wheat, through the sinking of a canal boat in a dock, 7icld not to have resulted from unseaworthiness, but to have been due to the pushing of the boat by her towing tug into the slip, while it was filled with ice, which was done at the request of the master of the boat, and for which both tng and tow were chargeable with negligence.</p> <p>2. Towage' — Liability of Towing Tug — Harter Aot.</p> <p>'Tlie Harter Act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) has no application to the question of the liability of a tug for damage to the cargo of her tow, which arises upon a contract of towage and not of affreightment.</p> <p>3. Insurance — Assignment by Insured of Claim Against Carrier — Recovery by Insurer.</p> <p>A cargo insurer, under a policy which provides that the insurance shall not inure to the benefit of any carrier, and shall be null and void to the extent of any amount recoverable by the insured from any carrier, who lias advanced lo the insured tlie amount of a loss as a loan and taken an assignment of a claim for tlie loss against the carrier, may recover thereon, notwithstanding a provision of tlie bill of lading that tlie carrier shall have the benefit of any Insurance effected by the owner.</p>

On Application for Review of Decisions of the Board of United States General Appraisers. The decisions in question affirmed the assessment of duty by the collector of customs at the port of New York on importations by G. Falk & Bro. and American Cigar Company. Note G. A. 5,695, T. D. 25,353.

<p>On Motions by Defendant for a New Trial, and for Judgment on Reserved Point, Notwithstanding the Verdict.</p>

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

<p>1. Mandamus — Enforcement of Judgment Against Town — Compelling Action by Officers.</p> <p>It is no defense, to an application for a writ of mandamus to compel officers of a town to perform duties imposed on them by statute toward providing for the payment of a judgment against the town, that such duties do not include all the acts requisite to a full satisfaction of the judgment.</p> <p>[Ed. Note — Enforcement of judgment against municipality by mandamus, see note to Holt County v. National Life Ins. Co., 25 C. C. A. 475.]</p> <p>2. Municipal Corporations — Payment of Debt — Authority to Tax.</p> <p>Authority given to a town by statute to contract a debt carries with it authority to tax. for the payment of such debt, unless expressly withheld.</p> <p>[Ed. Note. — For eases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 2043.]</p> <p>3. Same — Mandamus to Compel Levy of Tax — Defenses.</p> <p>It is no defense, to an application for a writ of mandamus to compel the levy of a tax by a town to pay a judgment against it, that the authority of the town to tax is limited, unless it is also' shown that such limited authority has been exhausted. The authority is not exhausted by an issue of bonds.</p> <p>4. Same — Atjthobity to Pat Debt.</p> <p>Authority given a town by statute to contract a debt necessarily carries with it authority to appropriate money for the payment of such debt.</p> <p>5. Municipal Cobpokations — Duties of Ommoees — Town Wabden in Rhode Island.</p> <p>By the statutes of Rhode Island, a warden, in towns authorized by their charters to elect such officers, is vested with the powers and duties of a justice of the peace.</p>

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

<p>1. Feaud — Action foe Deceit — Questions foe Juey.</p> <p>In an action in the nature of one for deceit to recover damages for false representations, by which plaintiff was induced to enter into a contract, where the evidence is conflicting as to the exact language used, the question whether defendant intended to state an existing fact, or merely to express an opinion, is one of fact for the jury.</p> <p>[Ed. Note. — For eases in point, see vol. 23, Cent. Dig. Fraud, § 67.]</p> <p>2. Same — Fat.se Representations — Knowledge ok Falsity.</p> <p>An action of deceit may be supported by proof of false representations made by defendant to influence the action of plaintiff, if defendant either knew them to be false, or was consciously ignorant or recklessly indifferent as to whether they were true or false.</p> <p>[Ed. Koto. — For cases in point, see rol. 23, Gent. Dig. Fraud, §§ 3-5.]</p> <p>3. Same — Damages—Sufficiency ok Proof.</p> <p>A plaintiff suing to recover damages for false representations, by which it was induced to enter into a contract to manufacture a large quantity of castings, which contract it afterward rescinded, cannot recover damages because ol' depreciation in tlio market value of a quantity of iron bought for use in carrying out the contract, where it is not shown how much was used before rescission of the contract, nor what was done with the remainder.</p>

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

<p>Municipal Corporations — Taxation—Telephone Company — Contract With City Construed.</p> <p>An ordinance granting a franchise to a telephone company to construct and operate its plant and the right to maintain its poles and wires in the streets contained a provision that the company should pay to the city annually a stated sum for each box in use by it, “in lien of all other taxes except water tax.” Under the Constitution and statutes of the state, the city had no powey to exempt property from ad valorem taxation, but was expressly prohibited from doing so. SeM that, in view of such limitation and of the rule that, where a statute or an ordinance is capable of two constructions, one of which would make it valid and the other void, the former is to be adopted, such provision must be construed as providing the box tax as the measure of the municipal taxes or charges which might be imposed by the city on account of the use and occupation of its streets anti public places; that, as so construed, it was valid, and the payment of the tax therein provided for did not affect the right and duty of the city to tax the property of the company as assessed by the state for general purposes.</p>

<p>Master and Servant — Action fob Killing of Brakeman — Questions fob Jury.</p> <p>Plaintiff’s intestate, a brakeman, when attending to the coupling of two freight cars, on one of which he was riding, stepped upon the bumper of such car which was loose and turned, throwing him to the track where he was run over and fatally injured. In an action to recover for his death on the ground of defendant’s negligence in failing to inspect the bumper and keep it in repair, there was evidence tending to show, not only a custom of brakemen in performing the duty in which deceased was engaged to step upon the bumpers, but also that in the particular case it was necessary for him to do so in order to get off the car and make the coupling. Held, that such evidence presented questions for the jury, and that it was error to direct a verdict for defendant on the ground that the bumper was not intended to be used as a step and defendant therefore owed no duty of inspection to deceased, but his death was due to his own negligence in using it for an illegitimate purpose.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent, Dig. Master and Servant, § 1020.]</p>

<p>Appeals from the District Court of the United States from the Eastern District of New York.</p> <p>These causes come here upon appeals from decrees of the United States District Court for the Eastern District of New York, dividing damages and costs in a case of towage. The opinion of the court below is reported in 134 Fed. 757.</p>

<p>Railroads — Connecting Lines Operated as Single System — Liability for Negligence of Subordinate Company.</p> <p>Whore one railroad company controls others through the ownership of their stock and operates the lilies of all as a single system, though the general management of each road is retained by the corporation owning it, the relation between the dominant and subordinate companies with respect to traffic originating on the lines of the former is that of principal and agent, and the dominant company is directly liable for an injury fo one employed in unloading one of its own cars on the tracks of a subordinate company through the negligence of employes of the latter.</p> <p>]Ed. Xoto. — For cases in point, see vol. 41, Cent. Dig. Railroads, §ij 821, 826.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The opinion of the Board reads in part as follows:</p> <p>HOWELL, General Appraiser. The merchandise in question was returned by the appraiser as “labels -of silk and cotton, .cotton chief value,” and was classified by the collector as dutiable * * * under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 320, 30 Stat. 179 [U. S. Comp. St. 1901, p. 1661], for “labels, for garments or other articles, composed of cotton or other vegetable fiber.” The protestant claims that , the merchandise is properly dutiable * * * under paragraph 322, Schedule I, 30 Stat. 179 [U. S. Comp. St. 1901, p. 1061], as a manufacture of cotton. * * * It appears from an examination of the samples admitted in evidence that the goods consist of woven strips of colored cotton, about two inches in width, and several yards in length, into which are woven in coarse silk, at intervals varying from 3 to 6 inches, the names of certain shoe companies, together with a word designed to indicate a particular style of shoe, the goods being intended, when properly cut, to be sewn or otherwise attached inside the tops of shoes. It does not clearly appear upon what theory the protestant’s claims are based. The only testimony in the case is that of the importer, who, in addition to proving the samples and admitting that the goods are composed in chief value of cotton, testified that he had handled these goods for two years and that they are sold in the wholesale trade as shoe top facings. If it is contended that these articles have a commercial designation which would exclude them from classification as labels, the evidence is entirely insufficient to sustain such contention. As was said by Judge Lacombe, in charging the jury in Batterson v. Magone (O. O.) 48 Fed. 289: “Of course it is not enough for a party who c-laims that his article is not within the ordinary meaning of the terms of common speech to show that it always has in trade some special name that it. is called by, unless he goes further and shows that in that same trade the general term, which otherwise would cover it, is used exclusively for articles other than the one as to which he claims the special designation.”</p> <p>The burden of proof in such cases is on the importer, and the testimony of a single interested witness is insufficient to establish commercial designation. Neuss v. U. S. (O. C.) 142 Fed. 281. In Re Wolff, G. A. 4.209 (T. D. 20,047), this board, in passing upon woven cotton initials, had the benefit of the testimony of manufacturers and dealers in all kinds of labels, and in that case found from the preponderance of the evidence “that there is no essential difference in the meaning of the term ‘label’ as used in commerce and in common speech. According to standard lexicographers, the term, so far as it relates to articles of the general character of these in question, includes a slip or tag of paper or other material, bearing the inscription in the form of a word or words, name, monogram, letter, scroll, or trade-mark, indicating the character, origin, owner, or destination of the article to which it is attached.” In our opinion the articles here in question unmistakably belong to that class of goods known as labels; and, as such, being composed in chief value of cotton, are specially provided for in the paragraph in the tariff act under which duty was assessed. The protest is accordingly overruled, and the assessment of duty affirmed.</p> <p>The foregoing decision was reversed by the circuit court on the ground that the goods were not labels because, not being cut, something more remained to be done to them; also, on the ground that they could not be said to be “composed of cotton,” within the meaning of the law, because made in part of silk.</p>

<p>Shipping — Dumping of Deck Load by Lightee — Liability of Steamship fob Causing Swell.</p> <p>While a lighter with mahogany logs piled on her deck to a height of 12 or 14 feet was unloading at a pier, the waves produced by a passing vessel caused her to break her moorings and strike two or three times violently against the pier, thereby shifting her cargo, and causing her to list to starboard toward the pier. After she had resumed unloading and a log weighing some 2500 pounds had been swung over the pier by means of a boom 60 feet long fastened to the mast 9 feet above the deck, she suddenly careened toward the pier, and a large number of the logs rolled from her deck and were lost. II eld, that conceding the correctness of a finding that respondent steamship produced the swell which caused the original shifting of the logs, the facts did not show that to have been the proximate cause of the loss, so as to render the steamship liable therefor, but rather that it was due to the negligence of those in charge of the lighter, whose duty it was to correct the list before subjecting her to the additional overturning force of the boom and the weight at its end.</p>

<p>1. Criminal Law — Trial—Issues.</p> <p>Where the defendant in a criminal case was tried without having interposed a plea to any of the counts of the indictment except one, to which he pleaded not guilty, the issue made by such plea is the only one which can be tried.</p> <p>2. Post Office — Using Mails to Defraud — Variance Between Indictment and Proof.</p> <p>A defendant charged in the indictment with having devised a scheme to defraud, to be effected by means of the post office establishment, in violation of Rev. St. § 5480 LU. S. Comp. St. 1901, p. 3696], must be shown to have devised the particular scheme specified in the indictment, and cannot be convicted on evidence that is as consistent with a different scheme, which, although equally within the statute, is not charged.</p> <p>[Ed. Note. — Use of mails to defraud, see note to Timmons v. United States, 30 C. C. A. 86.]</p>

<p>Teade-Names — “Fabee” Pencils — Unfate Competition.</p> <p>Defendant, John Eberhard Faber, held not entitled to use the word “Faber” without the prefix “E.” or “J. E.” or “Eberhard” or “J. Eberhard” on lead pencils sold in competition with the German house of A. W. Faber.</p> <p>(Ed. Note. — Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>Appeal — Reversal—^iNSurvicncxcY or Record.</p> <p>Where the record fails to show facts essential to a proper decision of the case by the appellate court, it will reverse the decree on its own motion, and remand the ease for a rehearing with directions to permit the taking of further evidence.</p>

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

<p>Patents — Infeingejient—Bkkecii-Loading Guns.</p> <p>The Hepburn patent, No. 434,062, for a breech-loading gun, claim 27, which relates to an improved hook extractor, held not infringed.</p>

<p>Patents — Infringement—Baeret. Washers.</p> <p>Tbe Klamt patent, No. 400,646, and tbe Schock patent. No. 605,138, each for a barrel-washing apparatus, construed, and, as limited by the prior art, held not infringed.</p>

<p>Patents — Anticipation—Process for Making Sound Records.</p> <p>Tiie Jones patent, No. 688,739, for a method of producing sound records-for use in talking machines of the gramophone type, in which the original record is produced by cutting or engraving the sound groove on a plate of waxlike material by means of the vibrations of the stylus, and a metallic matrix is formed thereon by electrolysis," from which the duplicate records are made by impression, is void for anticipation in the prior art.</p>

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

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

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

<p>Patents — Soit fob Infringement — Sufficiency of Riel.</p> <p>A bill for Infringement of a patent is not demurrable because of its failure to allege that the invention was not patented in a foreign country more than seven months prior to the filing of the application in this country: the provision of Rev. St. § 4887, as amended by Act March 3, 1897, c. 391, § 3, 29 Stat. 092 [U. S. Comp. St. 1901 p. 3382J, denying the right to a patent in case of such foreign patenting more than seven months prior to the application, being a matter of defense to be pleaded by answer.</p>

<p>1. Banks and Banking — Deposits—Relation of Deposito» and Bank— Taxes.</p> <p>The deposit of money in a bank establishes the relation of debtor and creditor between the depositor and the bank, and this, though the fund deposited arose from taxes levied for municipal and school purposes.</p> <p>I Ed. Note. — -For eases in point, see vol. 6, Cent. Dig. Banks and Banking, §§ 289, 290.]</p> <p>2. Contracts — Agreement to Stifle Competition — Validity.</p> <p>The controlling banks in two of the largest cities and towns of a county, with a view to stifling competition among themselves whereby they would obtain the use of the county’s moneys at reduced rates, agreed that one of them should obtain the money on an understood bid. In order to give color to a competitive bidding, another bank put in a bid lower than that it knew would be offered by the favored bank, with the distinct understanding that the latter, on becoming the depositary, should parcel out the deposits among all the banks in the combination in given proportions, the allottees paying on the respective sums the amount of interest the favored bank agreed to pay to the county, and that the funds paid under the agreement to the combining banks should only be subject to withdrawal on checks or warrants drawn by the county. Held, that such combination was a fraud on the county and invalid.</p> <p>FEd. Note. — Eor cases in point, see vol. 11, Cent Dig. Contracts, §§ 654, 657.]</p> <p>3. Bankruptcy — Bank Deposits — Rights of Creditors.</p> <p>Where several banks entered into an illegal combination to suppress bidding for county funds, under an agreement providing that, af>r the successful bidder obtained the funds, they should be apportioned among the members of the combination, and that such funds should not be subject to check, except for the payment of drafts and warrants drawn by the county, on the bankruptcy of the successful bidder, and the discovery of such scheme, the county was entitled to rescind and recover funds in the possession of another of the conspiring banks as against the bankrupt’s general creditors.</p>

<p>1. Eminent Domain — Condemnation of Land for Harbor Purposes — Discretionary Power of Secretary of'War.</p> <p>An appropriation act of Congress made an appropriation for improving the Point Judith harbor of refuge, Rhode Island, under direction of the Secretary of War, and provided that the amount should be applied “in extending the easterly or shore arm of the breakwater and continuing it to the shore, with a view of providing a shelter for a landing place for the passengers, crews, and cargoes of vessels in distress and other vessels, and for the life boats of the Point Judith life-saving service.” Held, that under a fair construction of the act, having in view the purpose of the improvement, it authorized the taking not only of suph part of the shore as the end of the breakwater should actually rest upon, but of such additional land as would give the government control of the shore terminus, and of a landing place tor passengers, cargoes and life boats, with access to a highway over its own land, and that the determination of the amount required for such purposes was committed to the discretion of the Secretary of War, whose judgment could not be controlled or reviewed by the courts unless his authority was clearly exceeded.</p> <p>2. Same. .</p> <p>Act Aug. 1, 1SS8, c. 728, 25 Stat. 357 [U. S. Comp. St. 1901, p. 2516], providing for proceedings for the condemnation of land for public use by the United States confers no general authority to acquire land, but only authority to institute proceedings for condemnation where its acquirement is otherwise authorized, but by Act April 24, 1888. c. 194, 25 Stat. 94 [U. S. Comp. St. 1901, p. 3525], the Secretary of War is directly given the right to institute proceedings for “condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement, of rivers and harbors for which provision has been made by law,” and under such act he is intrusted with the power and duty of determining specifically what land, right of way, or material is needed for such works as are authorized by law.</p>

In Bankruptcy. On petition for review of order of referee. Hatcher was adjudged bankrupt upon the petition of creditors. In due season he filed his application for discharge and paid the sum of $5.45 for the issuance and publication of .necessary notices of the proceeding. Eor the sum thus paid, covering the issuance and publication of notices to creditors, he claims reimbursement.

<p>In Equity. On motion for preliminary injunction and demurrer to bill in each case.</p>

<p>On Motion for New Trial.</p>

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

<p>In Equity. On demurrer to bill for want of jurisdiction.</p>

In Bankruptcy. On petition of Margaret E. Mooney, executrix to reopen hearing. An order was made reopening the estate of the bankrupt on petition and affidavits of creditors showing that real estate transferred by him a short time before the bankruptcy, and not scheduled nor administered as part of his estate, was conveyed either as security only or in trust to be held for his benefit in fraud of his creditors.

<p>Motion by defendant to set aside the verdict of the jury in favor of the plaintiff and for a new trial, on the grounds that the verdict is contrary to the evidence and law and upon the exceptions taken upon the trial.</p>

<p>Shipping — Fittings Supplied to Charterer — Right of Yendor to Remove on Rescission oe Sale.</p> <p>Culinary fittings supplied at the instance of a charterer and affixed to a vessel cannot be removed by the vendor on a claim of rescission based on an alleged fraud by false representations made by the vendee, unless the vessel is placed in as good condition as she was before the installation of such fittings, in so far as their removal would injuriously affect her; nor can the owner of the vessel be required to pay for the fittings, which are of little or no value to it, on the refusal of the vendor to remove them on such terms.</p>

<p>At Law. On trial by the court without a jury.</p>

In Admiralty. On exceptions to libel. After stating. that the several companies parties to this proceeding were incorporated, the libel proceeds in effect as follows: About August 20, 1901, libelant entered into a contract with a Chinese syndicate at Hong Kong, China, for the sale and shipment of 40,000 barrels of flour during the months of September, October, November, and December following, to be delivered by libelant on board ship at Portland, Or., or on Puget Sound; the…

<p>This is an action in ejectment. After stating the necessary jurisdictional facts, the complaint alleges that the plaintiff is the owner in fee simple, and entitled to the immediate possession, of the real property in dispute (describing it), and that no one is in the actual possession of said premises, but that defendant is acting as owner thereof. The answer denies each and every allegation of the complaint, and for a separate defense alleges that prior to October 1, 1859, one John Barnes was the owner of a certain donation land claim, that the tract of land described in the complaint is a part of such claim, and that defendant is seized of an estate in fee simple, and is entitled to the possession of said tract through conveyance from the donee. The plaintiff, for reply, after denying the allegation relative to defendant’s seisin, sets up that the only claim had by defendant in and to the land in dispute is by virtue of a certain writing (setting the same out by copy). The writing purports to be a deed of conveyance of the following tenor: “I, John Barnes. * * * in consideration of $500 paid to me by E. Hamilton, W. S. Ladd, and Caleb Ritchie, county commissioners of said (Multnomah) county, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, and convey unto said commissioners and assigns forever the following real estate,” describing the land in dispute. The instrument is witnessed by three witnesses, and acknowledged before the county clerk, but the private seal of the grantor is wanting. The reply further alleges that the consideration stated in the writing was not the true consideration, and that neither the said sum of $500 nor any sum was paid or agreed to be paid by such commissioners, but that the sole and only consideration therefor was that on October 1, 1S59, the said John Barnes being the owner in fee simple of his donation land claim, of the then value of over $3,000, the said county commissioners attempted to agree with him, in consideration that he should sign the above instrument or writing, that said Multnomah county would furnish him with a living on said land, food, clothing, and supplies, so long as he should live, and that Barnes signed and delivered said paper upon said alleged consideration, and not otherwise; that the defendant, or the said commissioners, or any of them, never at any time took possession of said land, or any part thereof; that about 30 days after the signing of said paper John Barnes died intestate, and that plaintiff has succeeded to his interest in the premises. Upon the filing of such reply, the defendant moved the court for judgment on the pleadings in its favor dismissing the complaint, and for the recovery of costs and disbursements.</p>

<p>Shipping — Damage to Cargo — Validity op Limitation op Liability in Bill ok Lading.</p> <p>A condition in bills of lading issued by a steamship company, limiting its liability in case of loss to a specified sum per package unless the value of the goods shall be expressed therein, is not an agreed valuation of the goods, and is invalid to relieve the company from liability for tlie full loss in case of their loss or injury through negligence, hut a limitation to the invoice or declared value is reasonable and enforceable.</p> <p>I Ed. Note. — Eor cases in point, see vol. 9, Cent. Dig. Carriers, §§ (i(>3 — (i()5, 70S; vol. 44, Cent. Dig. Shipping. § 495.]</p>

In Admiralty. On motion to vacate warrant of arrest. This is a proceeding, by libel in rem, preferred by the United States against the tug John McCraken and the dredge Columbia, their engines, boilers, etc., for the recovery of damages arising from a collision with the Manzanita, a lighthouse tender, the property of the United States, alleged to have been caused by the negligence of the masters of the vessels libeled.

<p>1. Witnesses — Production of Documents--Hooks of Partners hip.</p> <p>.A showing that books of account which a witness is required by a subpoena to produce are the hooks of a partnership of which he is a member and are not in his custody except as a member of the firm, without more, affords no ground of excuse of his refusal to produce them.</p> <p>2. Sauk — Ceaim. of Pbiviukge.</p> <p>A claim of privilege under the fifth constitutional amendment is insufficient lo excuse the failure to produce books as required by a subpoena duces ¡('cum where It Is based solely on the statement of the person making the claim that the hooks if produced will constitute evidence which will tend to incriminate him, and'he has not moreover been sworn as a witness. To entitle him to make such claim he must have been sworn as a witness, and must satisfy the court that there is reasonable ground therefor by something further than his mere assertion.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 106-1, 1066.]</p>

<p>Insurance — Valued Marine Policy on Freight — Partial Loss.</p> <p>A marine policy insuring a vessel for one year in a stated amount against loss of freight “on board or not. on board,” “carried or not carried.” “full interest admitted: tlie policy being deemed sufficient proof of interest,” does not render tlie insurer liable for the full valued amount on a partial loss, and on a stranding of the vessel, preventing the completion of a voyage, it is entitled to a deduction of freight prepaid, and the amount earned by forwarding a portion of the cargo, above the cost of the salvage, and its liability is limited to the proportion of tlie face of die policy that the amount of the actual loss bears to the amount of tlie freight which would have been earned had the voyage been completed.</p>

<p>Contracts — Evidence to Establish — Action for Breach.</p> <p>Evidence considered, and hold not to establish a contract between libelant and respondent to operate libelant’s steamships and respondent’s railroad as a through line of transportation for goods between oriental ports and points in the United States, for the breach of which libelant sued, but to show that, while there were negotiations looking to such a contract and a temporary agreement was made for interchange of traffic between the parties, the contract for a definite term claimed was never consummated.</p>

<p>1. Collisions — Steam Vessels Oiios.srNG — Violation oe Rums.</p> <p>A collision occurred in the East river in the daytime between the steamer Starin passing down and the ferryboat Jamaica crossing from the Brooklyn side and as a result the Starin was forced against and injured a barge lying in a slip on the Manhattan side. Each vessel gave and persisted in signals announcing it's intention of crossing ahead of the other, and the Starin, at the time of her first signal, ported her wheel, and again later so that the collision occurred within about 100 feet of the Manhattan doclcs. Held, that both vessels were in fault for persisting in such intention, the Jamaica also for violation of articles 19, 22 and 23 of the inland navigation rules of June 7, 1897, c. 4, 30 Stat. 101 [U. S. Comp. St. 1901, p. 2883], which required her as the vessel having the other on her own starboard side to keep out of the way, to avoid crossing ahead and to slacken her speed or stop, and tlie Starin for violation of article 21, which required her to keep her course and speed, and that both were liable for the resulting injury to libelant’s barge.</p> <p>2. Same — Insistence on Right of Wax.</p> <p>There is no right of way on which a vessel is entitled to insist when it is obvious that it will result in danger of a collision.</p> <p>[Ed. Eote. — Por cases in point, see vol. 10, Cent. Dig. Collision, § 17.]</p>

<p>1. Bailment — Liability of Bailee — Evidence of Negligence.</p> <p>While there must be sufficient evidence to warrant a finding of negligence to fix liability on a bailee, such evidence may be supplied by presumption, and such presumption arises against a bailee for hire, where it appears that the subject of the bailment was injured or destroyed while in his custody by an accident such as in the ordinary course of things does not happen when due care is exercised.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bailment, § 124.]</p> <p>2. Shipping — Charterer of Pile Driver — Liability for Loss by Capsizing.</p> <p>The capsizing of a pile driver while being towed by respondent company to which it had been chartered, held, under the evidence, not due to unseaworthiness, but to improper towing in turning it too suddenly, which rendered respondent liable for the damages.</p>

In Admiralty. Action against tug for damage to tow and cargo. Questions of fact with reference to fault in abandonment of iron barge in tow, and failure to seek for it subsequently, determined in favor of the tug.

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

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

<p>Shipping — Contract for Repair' of Scows — Rates for Dockage and Lay Days.</p> <p>An oral contract for repairs to be made to respondent's scows by libelant, a dry dock company, without rates for docking and lay days being mentioned, only imposed a liability on respondent to pay the customary rates in the harbor of New York where the work was done.</p>

<p>Maritime Liens — Coal Supplies — Agreement por Lien.</p> <p>A steam yacht was delivered by her owner to another in her home port, under an agreement for her purchase, but was subsequently retaken by the owner because of the purchaser's default. The purchaser, while in possession, placed an agent on board with authority to look after supplies, and such agent contracted with libelant for supplying her with coal, stating at the time that tile yacht was “good for her bills.” and certain coal was supplied thereunder and charged to the vessel. Held-, that the representation of the agent was within his authority, as well as that of his principal, and created a maritime lien oil the vessel.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Maritime Liens, § 48.]</p>

<p>Removal of Cai’ses — Time fob Riling Petition — Stipulation Extending Time to Plead.</p> <p>A written ,stipulation by tbe parlies to a suit in the Supreme Court of New York, signed tbe day after it was brought, providing that no steps should lie taken in tlie cause by either party before a stated time pending a provisional agreement for settlement, that no advantage should be taken of the time that might elapse by reason of tbe agreement, and in case it should not become effective defendant should have twenty days thereafter in which to make proper defense, estopped plaintiffs from objecting that a petition for removal filed within such 20 days was not in time, stipulations being recognized by (Jen. Prac. Rule 24 of the state court as a proper and effective method of extending the time to plead.</p>

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

<p>Seamen — Taen tor Wages — Priority Over Claim for Collision Damages.</p> <p>Claims of seamen for wages against a vessel arc entitled to priority of payment over an award of collision damages against tlie vessel from the proceeds of her sale in the collision suit, hut such right of priority does not extend to wages due to the pilot, who was actually the master and responsible for the vessel’s faulty navigation.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Seamen, § 166.]</p>

<p>Cheeks op Courts- — Fees op Greeks op Circuit Court — Making Return to Writ op Error.</p> <p>For making return to an order contained in a writ of error to a Circuit Court directing it “to send the record and proceedings aforesaid with all things concerning the same” to the Appellate Court, Hie clerk is entitled to charge the fee of 15 cents for each folio authorized for making any “return” by Rev. St. 828 [U. S. Comp. St. 1901, p. 635.J</p>

<p>Appeal from the Circuit Court of the United States for tne Eastern District of North Carolina, at Wilmington.</p>

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

<p>1. Sales — Action for Breach of Warranty of Boilers — Effect of Delay in Making Test.</p> <p>Plaintiff purchased boilers from defendant under a warranty as to their dvaporating capacity, as shown by a test to he made by a person named in the contract. Held, that in view of plaintiffs right at its election to retain the boilers in any event, and to recover damages in case they did not comply with the warranty, it was not bound to have the test made at once, hut that such test was within a reasonable time and in compliance with the contract, if made while the boilers were in such condition that they could be fairly tested.</p> <p>[Ed. Note. — -For cases in point, see vol. 13, Cent. Dig. Sales, § 794.]</p> <p>2. Samu — Construction of Warranty.</p> <p>Tinder a warranty of the capacity of a battery of boilers sold, under stated conditions, which designated a certain expert to make the test, if two kinds of tests were made in practice, one a guaranty test to determino maximum efficiency, and the other a working or commercial test fo determine practical efficiency, and the contract contained no provision as to which should be made, the parties must be supposed to have intended to leave that matter to the determination of the expert, in view of the terms of the contract and warranty.</p> <p>3. Same — Questions for Jury.</p> <p>In an action to recover damages for breach of a warranty of boilers sold, whether a test was made in accordance with the terms of the warranty, and whether, if not, the test actually made was accepted by the parties as a sufficient test under the contract, held, under the evidence, to have been questions for the jury, as well as the final question whether the test made showed a compliance with the warranty.</p> <p>4. Contracts — Construction—1-Vctton fob Breach.</p> <p>By a contract for a sale of boilers by defendant to plaintiff, defendant was required to furnish plans and specifications for the setting, and to direct and supervise such erection and setting up-in a proper and skillful manner. Defendant furnished the plans and specifications and a superintendent to direct and supervise the work, and plaintiff employed a third person to furnish the materials and labor. By direction of defendant’s superintendent, certain tying of the brickwork called for by the specifications was omitted, as a result of which the setting was defective and caused damage to plaintiff. Held that, in the absence of proof that plaintiff knew of and acquiesced in the variance, the same was chargeable to the default of defendant to furnish proper and skillful superintendence, and that under the evidence the question of such acquiescence was one for the jury.</p>

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

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

The appellant, a Chinese, appeals from an order and judgment of the District Court affirming the order and judgment of deportation made by the United States Commissioner upon a complaint charging him with being a Chi-' nese manual laborer within the limits of the Northern District of California without the requisite certificate of residence.

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

This was an action upon the bond of Elisha W. Davis as Indian agent, conditioned that he carefully discharge the duties of such office and faithfully disburse all public moneys and honestly account without fraud or delay for the same and for all public funds and property coming into his hands. Although named as a defendant, Davis died before the action was commenced, and it proceeded against his sureties.

<p>1. Equity — Interlocutory Proceeding — Submission on Pleadings.</p> <p>Where the petition of a receiver to require the complainant in the suit to pay the costs and expenses of the receivership, which exceeded the proceeds of the property when sold, was submitted upon complainant’s answer thereto, as upon bill and answer, complainant is entitled to the benefit of all denials of matters alleged in the petition and of all matters of defense properly pleaded.</p> <p>I Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, § 711.]</p> <p>2. Receivers — Cost of Receivership — Liability of Complainant.</p> <p>The trustee in a mortgage given by a corporation to secure its bonds which, instead of exercising tlie power of sale given it by the mortgage, institutes a foreclosure suit and obtains the appointment of a receiver for the property of the corporation may be adjudged liable for the costs and expenses of the receivership where they exceed the amount realized from the property, and it is not relieved from such liability, by the fact that it was not notified of such claim until final settlement of the receiver’s accounts nor is tlie receiver required to make bondholders who intervened in the suit parties defendant to his petition against the complainant.</p> <p>[Ed. Note. — For cases in point, see voi. 42, Cent. Dig. Receivers, § 400.]</p>

<p>1. Bankruptcy — Pbeeebences—Mutual Accounts Between Bank And Depósitos.</p> <p>Where a manufacturing company for some two years before its bankruptcy had an agreement with the bank in which it kept its account subject to check by which it was allowed to overdraw in payment of current expenses subsequent deposits to be applied to payment of such overdrafts, deposits so made in the usual course of business and applied in payment of previous overdrafts, made in payment ol' its.pay rolls, freight on material received, and other necessary expenses, do- not constitute preferences which the bank must surrender before proving an indebtedness on notes against tbe bankrupt estate although the company ivas insolvent when the deposits were made the bank having the right of set-oif in respect to the overdraft and the deposits under Bankr. Act 1898, c. 541,- § 68a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450.]</p> <p>2. Same — Agkeement to Give Secukity.</p> <p>Where a bank allowed a customer to overdraw on the express agreement that the customer should assign good accounts for collection to pay the overdraft the subsequent assignment of the accounts, although the customer was insolvent, did not constitute the giviug of a preference.</p>

<p>1; Negligence — Sale oe Dangerous Article — Liability foe Injury to Third Persons.</p> <p>A retailer of illuminating oil must be held to contemplate that it will be used in the ordinary and usual lamps in the households of purchasers, and where the oil sold is not of the quality called for, but is unfit and dangerous for such purpose, the seller is liable for an injury resulting from such ordinary use to a member of the purchaser’s family.</p> <p>[Ed. Note. — For cases in point, see vol. 37, Cent. Dig. Negligence, § 25.</p> <p>Liabilities of venders of injurious substances for injuries to persons other than immediate vendees, see note to Standard Oil Co. v. Murray, 57 C. C. A. 5.]</p> <p>2. Same — Action—Evidence as to Explosion of Lamp.</p> <p>Plaintiff’s intestate, a child 10 years old, was alone in a room, when her clothing took fire and she was fatally burned. The pieces of a kerosene lamp which had stood upon a table were found upon the floor, within a circle about three feet in diameter, and the carpet within such circle and the tablecloth were in flames. Such pieces and the burner were introduced in evidence. It was also shown that the oil with which the lamp was filled contained a dangerous admixture of gasoline. Held that, the physical exhibits not being brought up, the reviewing court cannot say that there was a failure of evidence to support a finding that the death of the child was caused by the explosion of the lamp due to the dangerous character of the oil.</p> <p>8. Evidence — Competency—Method of Conducting Business.</p> <p>Where the evidence was conflicting upon the issue whether or not kerosene oil sold by defendant contained a dangerous proportion of gasoline, evidence to show a general custom on the part of defendant’s employes to use the same buckets indiscriminately in drawing kerosene and gasoline was competent and properly admitted.</p> <p>[Ed. Note. — For eases in point, see vol. 20, Cent. Dig. Evidence, §§ 248, 251.]</p>

<p>Patents — Anticipation—Tilting Bins.</p> <p>The Bacon patent, No. 447,5S2, for a tilting bin, Is void for anticipation.</p>

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

<p>1. Equity — Demurbeb.</p> <p>It is not the purpose of a demurrer in equity to raise issues of fact, and, in passing upon one, facts alleged therein must be disregarded, and the allegations of the bill taken as true.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, § 494.]</p> <p>2. Patents — Interference Suit — Demubrer.</p> <p>An interference suit brought under the provisions of Rev. St. § 4918 [U. S. Comp. St. 1901, p. 3394], in which the issues depend to some extent on the construction and scope of the claims of the earlier patent in view of the prior art, will not be determined on demurrer.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 536.</p> <p>Demurrer for lack of novelty and invention in patent infringement suits, see note to Caldwell v. Powell, 19 C. C. A. 595.]</p>

<p>1. Uttnioipat. Corporations — Contracts—Power op Dock Master to Bind City op New York.</p> <p>Under Ash’s Greater New York Charter (2d Ed.) §419, which provides that “ho expenditure for work or supplies involving an amount for which no contract is required shall he made except the necessity therefor be certified to by tiie appropriate borough president or the head of the appropriate department, and the expenditure has been duly authorized and appropriated” a dock master unless duly authorized by the department of docks and ferries has no power to bind the city to pay for work done by his direction.</p> <p>2. Same — Unauthorized Contract by Agent.</p> <p>Persons dealing with a municipal corporation through its agent are bound to know the extent of the agent’s authority and the corporation cannot be subjected to liability on a contract which he was not authorized to make.</p> <p>[Ed. Note. — For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 581, 684, 879.]</p>

<p>Towage — Sinking oe Tow by Ice — Negblgunce oe Tugs.</p> <p>In the making up of a tow, the duty rests upon the tug to see that it is properly made up, and that proper lines are used, and, where a tow consisting of a number of vessels was being- made up in the Hudson river at a time' when there were dangerous floes of ice being carried down by the ebb tide, the allowing of one of the tows to project beyond the others, and to swing out because of the absence of breast lines, in consequence of which she was struck by the ice, and after being beached by the tugs sank, was through the fault of the tugs, for which they are liable.</p> <p>[Ed. Note. — For cases in point, see voi. 45, Cent. Dig. Towage, §§ 15, 21.]</p>

<p>1. Collision — East River — Rule Requiring Vessels to Keep at Distance from: Piers.</p> <p>The rule requiring vessels passing up or down the East river to keep away from the ends of the piers cannot be invoked in a suit for collision, by a vessel which was also transgressing it.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 185.]</p> <p>2. Same — Vessels Meeting — Taking Unnecessary Risk.</p> <p>A schooner in tow of a tug was passing down East river near the Manhattan piers with another tug with a car float also passing down a short distance outside when a water boat coming out from a slip ahead of them in attempting to pass up between the two tows came into collision with the schooner and was injured. Held, on the evidence that the schooner was not chargeable with any fault, but that the collision was due to the fault of the water boat in attempting to pass through the narrow space between the tows when she could safely have passed across their bows to the outside or remained in the slip until they had passed.</p>

<p>In Admiralty. On exceptions to libel.</p>

<p>Customs Duties — Classification—Beavee Stbips.</p> <p>So-called “beaver strips,” which are in the form of rectangular strips or hands of various sizes, consisting of rabbit fur and woolen cloth, used in the making of bats, the fur being the component material of chief value, are dutiable as a manufacture of fur, under paragraph 450 of the tariff act of July 24, 1897 (chapter 11, § 1, Schedule N, 30 Stat. 193 [U. S. Comp. St. 1901, p. 3678]), and not under paragraph 370, c. 11, § 1, Schedule K, 30 Stat. 184 [U. S. Comp. St. 3901, p. 1667], as articles of wearing apparel composed wholly or in part of wool, nor under paragraph 432, c. I t, § 1, Schedule N, 30 Stat. 191 LU. S. Comp. St. 1903, p. 1675], as hats or bonnets or forms therefor composed in chief value of fur.</p>

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

<p>1. Army and Navy — Enlistment—Minors.</p> <p>Rev. St. § 1418, as amended by Act Cong. March 3, 1899, c. 413, § 16, 30 Stat. 1008 [U. S. Comp. St. 1901, p. 1007], provides that boys between 14 and 18 years of age may be enlisted to serve in the navy until they arrive at the age of 21, while other persons may be enlisted for a term not exceeding four years. Section 1419 [U. S. Comp. St. 1901, p. 1007] declares that persons between 14 and 18 shall not he enlisted without the consent of their parents or guardians, and section 1420 [U. S. Comp. St. 1901, p. 1008] declares that no minor under the age of 14 shall be enlisted. Held, that a boy hetween 14 and 18 could not be enlisted under any circumstances without the consent of his parents or guardian.</p> <p>[Ed. Note. — Eor cases in point, see vol. 4,.Cent. Dig. Army and Navy, §§ 45-50.]</p> <p>2. Same — Offenses—Fraudulent Enlistment — Court-Martial.</p> <p>Rev. St. § 1024, art. 22 ru. S. Comp. St. 1901, p. 1112], declares that all offenses committed by persons “belonging to the navy,” not specified in the foregoing articles, shall he punishable as a court-martial shall direct; and Act March 3, 1893, c. 212, 27 Stat. 710 [U. S. Comp. St. 1901, p. 10001, provides for punishment for false enlistment in the navy by court-martial. Held, that where an infant not eligible to enlistment in the navy enlisted without the consent of his parents or guardian, he was not “a person belonging to the navy,” and was not punishable as for fraudulent enlistment under such act.</p> <p>3. Habeas Corpus — Possession of Minor — Offenses.</p> <p>In a habeas corpus proceeding to recover possession of a minor under 18 years of age, who had enlisted in the navy without the consent of his parents or guardian, it was no answer to the writ that the naval authorities were entitled to retain the custody of the minor for the purpose of having him tried by a naval court-martial for fraudulent enlistment.</p>

<p>Judgment — Motion roe Judgment Non Obstante Veredicto — Pennsylvania Statute.</p> <p>Pa. Act April 22, 1905 (P. Tj. 286), which provides that whenever upon the trial of any issue a point requesting binding instructions has been reserved or declined; the party presenting the point may move to have all of the evidence taken duly certified and filed, and for judgment non obstante veredicto upon the record, does not apply to a case in which the jury disagreed.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Pastern District of Texas.</p>

<p>1. Action — Premature Commencement — Accrual or Cause or Action Pending Suit.</p> <p>A plaintiff’s right to recover depends upon his right at the inception of the suit, and the nonexistence of a cause of action when the suit was begun is a fatal defect, which cannot be cured by the accrual of a cause of action pending suit.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent. Dig. Action, §§ 718-723.]</p> <p>■ 2. Same.</p> <p>Where a judgment against a building contractor and his surety was reversed because of the failure of the plaintiff to allege or prove that its claim had been audited and certified by the architect, which, under the terms of the contract, was essential to give a right of action, or that such certificate had been wrongfully refused, the action could not be sustained upon an amendment of the declaration showing that such certificate was procured after the reversal, but without alleging that it had previously been refused.</p>

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

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

<p>1. Street Railroads — Dangerous Appliances — Guv Wires — Railroad Crossings.</p> <p>Where a street railway company, maintaining a grade crossing over the tracks of a railroad, failed to elevate its trolley wire on elevating the crossing in order to conform to the grade of the railroad, which resulted in plaintiff, a railroad hrakeman, being injured by coming in contact with the trolley or guy wire as he was passing under the same while standing on the top of a freight ear, and there was evidence that the wires could have been elevated so as to be out of danger, whether the street car company was guilty of negligence in failing to do so was for the jury.</p> <p>2. Release — Joint Tort-Feasors.</p> <p>Where plaintiff, a railroad hrakeman, was injured by coming in contact with a trolley or guy wire belonging to a street car company al leged to have been negligently permitted to remain in a dangerously low position over a railroad crossing, and the only act of negligence with which the railroad company could be charged was in omitting to warn plaintiff of the presence of the wire or in itself requiring the street car company to raise it, the railroad company and the street ear company were not joint tort-feasors so that the latter was not relieved from liability by a release executed by plaintiff to the railroad company.</p>

<p>1. Shipping — Action foe Injury of Passenger — Instructions.</p> <p>The charge of a trial court as to the degree of care required from a steamship company for the safety of a passenger considered and approved, in an action for the passenger’s injury.</p> <p>2. Shipping — Carriage of Passengers — Personal Injuries — Questions foe Jury.</p> <p>Plaintiff, while a passenger on defendant’s steamship, complained of the narrowness of his berth, and the steward made a bed for him on a couch, widening it by placing a board under the mattress. This board prevented the insertion of the usual vertical protecting board in front, and during a storm plaintiff was thrown from the couch, owing to the pitching of the vessel, and was injured. Held, in an action to recover for such injury, that the questions whether or not defendant was negligent in failing to provide a protecting board, and whether the danger was so obvious that plaintiff was chargeable with contributory negligence, were properly submitted to the jury.</p> <p>£Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 551.]</p> <p>3. Evidence — Pertinency—Knowledge oe Party.</p> <p>On redirect examination of plaintiff as a witness, in an action for personal injury in which the defense of contributory negligence was relied on, a question asking whether plaintiff knew at the time that the conditions out of which the injury arose were dangerous, called for a statement of fact, and not of opinion, and was pertinent and-proper.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of Pennsylvania. On September 7, 1905, the respondents filed their petition in Involuntary bankruptcy in the United States District Court for the Western District of Pennsylvania, against a person named in the petition as William S. Service.

<p>Petition for Writ' of Mandamus from the District Court of the United States for the Western District of Tennessee.</p>

<p>Libel — Action by Corporation — Language Libelous Per Se.</p> <p>A declaration in libc-l alleged that, after defendant liad operated the. sole telephone exchange in the city of Memphis for 20 years, plaintiff corporation was organized, and granted a franchise to construct and operate a competing exchange; that when its exchange was two-thirds completed, and after it had secured thousands of subscribers defendant caused to he published in a newspaper an article entitled “Support the Promoter,” which proceeded as follows: “It took the promoters twehty years after the art of telephoning was discovered to undertake the building of an exchange, and then only after trying to float twice its value in. bonds and the same in stock. It will not take them twenty minutes to get out if they succeed in unloading this ‘wad’ of ‘securities' on the ‘dear public.’” This was followed by an appeal to the public to subscribe for defendant’s sendee. Held. that, the language of the article, given its natural and reasonable meaning, referred to the promoters of plaintiff,. and could not be enlarged by innuendo to apply to the corporation itself; that so taken it was not libelous per se as against plaintiff, and would not.support an action without an averment of special damages.</p>

<p>1. Shipping — Account for Repairs — Lay Days for Use of Dry Doce.</p> <p>It is the duty of a repairer of a vessel to release her from the dry dock as soon as the repairs are so far along that they can be completed with her afloat, and he will not be allowed a charge for lay days for use of the dock after the time she should have been so released by the use of reasonable dispatch in the work.</p> <p>2. Same — Set-Off—Demurrage i.'oe Delay.</p> <p>Evidence held sufficient to entitle the owner of a vessel to a set-off for demurrage against the cost of repairs, because of unnecessary delay in their completion during the busy season of navigation.</p> <p>[Ed. Note. — Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.1</p> <p>S. Interest — Law of Place — Contract to Repair Vessel.</p> <p>Under a contract for repairing a vessel made in the state where the repairs were to be made, interest on the cost should be computed in accordance with the laws of such state.</p>

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

<p>Customs Duties — Classification — Rock-Crystal Intaglios — Precious Stones.</p> <p>Rock-crystal intaglios, produced in an expensive manner by engraving, and then painted, are within the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 435. 30 Stat. 192 [U. S. Comp. St 1901, p. 1676], for “precious stones advanced in condition or value * « * by * * * cutting or other process,” regardless of their advancement in value by painting.</p>

This cause comes here upon appeal from a decree dismissing bill charging infringement of claims 1, 3, 6, and 7 of complainants’ patent No. 561,559, granted to David C. Beilis June 9, 1896, for a knitting machine.

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

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

<p>1. Patents — Contributory Infringement — Limitation of Doctrine.</p> <p>The doctrine of contributory infringement should be limited to cases where tlie articles sold are either parts of a patented combination or device, or are produced for the sole purpose of being so used as to constitute infringement, and should not be extended to apply to ordinary and staple articles of commerce, used in connection with a patented machine, because the patentee sells or licenses such machine upon the condition that he alone shall furnish such articles. Townsend, Circuit Judge, dissenting.</p> <p>Hid. Note. — For eases in point, see vol. 38, Cent, Dig. Patents, §§ 400-402.</p> <p>Contributory infringement of patents, see note to Edison Electric L. Co. v. Peninsular Light, P. & H. Co., 43 C. C. A. 485.]</p> <p>2. Same — Sufficiency of Proof.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting on a complainant to show that defendant had knowledge of restrictions contained in the licenses granted by complainant to users of its patented machines, so as to charge defendant with liability for contributory infringement in selling an article to such users to be used in violation of such restrictions.</p>

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

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

<p>Patents — Suit for Infringement-Recovery of Profits.</p> <p>Tbe owner of a xiatent, wlio has granted an exclusive license thereunder for certain territory, cannot, suing alone, recover xirofits made by an infringer which, but for the infringement, would have inured to the sole benefit of the licensee.</p> <p>[Ed. Note. — Por casos in point, see vol. 38, Cent. Dig. Patents, § 580.</p> <p>Accounting for profits by infringer of xiatent, see note to Brickill v. Mayor, etc., of City of New York, 50 C. C. A. 8.]</p>

<p>Judgment — Res Judicata — Patents—Suit for Infringement.</p> <p>The bill in a suit for infringement of a patent alleged that defendant claimed the right to make the alleged infringing articles by virtue of another patent, and that the same was void, because for the same invention, and granted on a later application than complainant’s. Defendant, however, did not set up such patent as a defense, nor were any proofs taken in relation thereto. Meld, that a decree for complainant in the suit was not an adjudication upon the validity of such patent, which was not within the issues, and did not constitute a bar to a subsequent suit between the same parties for its infringement.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1263. 1263.</p> <p>Operation and effect of decree in equitable -suits for infringement of patents, see note to Westinghouse Electric & Mfg. Co. v. Stanley Instrument Co., 68 C. C.- A. 541.]</p>

<p>1. Patents — Suit to Recover Royalties — Equity Jurisdiction.</p> <p>A court of equity is without jurisdiction of a suit for au accounting for profits, damages, or royalties based on a contract granting a license under a patent, nor is such jurisdiction conferred by the fact that the bill also prays for the cancellation of other patents, since a suit for that purpose cannot be maintained by a private individual.</p> <p>[Ed. Note.- — For eases in point, see vol. 38, Cent. Dig. Patents, § 348.]</p> <p>2. Costs — Dismissal eor Want oe Jurisdiction.</p> <p>Where both parties have taken proofs without objection, in a suit which is subsequently dismissed for want of jurisdiction appearing on the face of the bill, defendant will not be allowed costs.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Costs, § 197.]</p>

<p>Patents — Suit for Infringement — Plea.</p> <p>In a suit iu equity for infringement of a patent, a plea which sets up the single defense of noninfringement is not a good plea, such defense being one which should be taken by answer, and the plea will either be stricken out or ordered to stand as an answer, as in the judgment of the court will best subserve the ends of justice.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 521.)</p>

<p>Patents — Infringement—Automatic Scale.</p> <p>The Smith patent, No. 375,102, for an automatic scale (claim 11), which covers a device for returning the indicator to its normal position after it has indicated a person’s weight by means independent of the weighing mechanism, is limited to the particular means shown. As so limited, held not infringed.</p>

<p>Patents — Sum for Infrinhement — District of Sm.</p> <p>In a suit for infringement of a patent brought in the Southern District of New York against a corporation of another «tute having a regular place of business in New York City, infringement within the district of suit required To sustain !ho suit, under Act March 3, 1897, c. 395, 29 Stat. (¡93 [t:. S. Comp. Si. 1901. p. 589], is not made out by proof (hat an infringing article sold in another state boro a label with the name of defendant and the words “Now York" thereon, in the absence of evidence that defendant made, used, or sold the article, or attached the label, or was engaged in the manufacture of similar articles in New York.</p>

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

<p>Patents — Invention-—Neckwear Supporter.</p> <p>Tbe Krans patent, No. 719,814, for a neckwear supporter and fastener, is void for lack of patentable invention in view of the xirior art.</p>

<p>1. Insurance — Marine Policy Insuring Against Liability for Collision or Stranding of Tow — Costs of Successful Defense.</p> <p>Under the liability policy upon a tug set out in the opinion the insurer is not liable for the cost of a successful defense made, by the tug In a suit 1o subject it to liability, which the insurer had declined to defend.</p> <p>2. Same — Construction of Policy.</p> <p>In a policy insuring a tug against legal liability for loss or damage caused to its tows or other vessels through collision or stranding, a sue and a labor clause, authorizing the tug to make all reasonable efforts in and about the defense, safeguard, and recovery of such vessels, without prejudice, has no application to expenses incurred In defending the tug itself against a suit brought to subject it to liability.</p>

In Admiralty. Cross-libels for collision. On the evening of 18th of March, 3906. about 7:30 o’clock, the steamer Norfolk, a vessel of 3,248 gross tons burden, length 246 feet, beam 46 feet, one of tbe line of steamers plying between the cities of Norfolk, Va., and Washington, D. C., while en route to Washington, at a point in Chesapeake Bay between Old Point and Thimble Light, and about midway between said places, collided with the schooner Mary P. Mosquito, a two-masted…

<p>Interfax, Revente--Eneoucemext oe Tax — Replevin of Property Sold— Remedy in Federal Court — Exclusiveness.</p> <p>Properly seized and sold by a collector, in the enforcement of the internal revenue laws, cannot be replevied from the purchasers by the former owner under process from a state court, and such a proceeding will uot be tolerated by a federal court; the remedy for a wrongful seizure given by the statute being exclusive.</p> <p>[Ed. Noli'. — For cases in point, see vol. 29, Cent. Dig. Internal Revenue, § 78.]</p>

<p>On Motion to Amend Verdict.</p>

<p>New Trial— Gitorxns — Verthot Agaixst Ev idknce — Oolt.tsiox—Runktxg JOow x Rowiioat — ixsrrFKUKXT Tookout.</p> <p>A new trial denied to defendant in an action for ilie running down and killing of plaintiff's liusband, who ivas In a rowiioat, by defendant’s tug and tow, on the ground that the question whether the killing was due to defendant’s negligence in failing to maintain a proper lookout was one for determination by the jury.</p> <p>|Kd. Note. — For eases in point, see vol. 37, Cent. Dig. New Trial. §$ 135-149.1</p>

Review of the decision of referee in bankruptcy adjudging that the costs and expenses of the proceedings in bankruptcy, including commissions of referee and trustee, and claims for labor performed within three months of the adjudication, not exceeding .8300 to each laborer, be paid from the amount received by the trustee in bankruptcy on a street paving contract between William J. Cramond, now Ihc bankrupt, and the city of Rome, N. Y., which money was not actually due and…

<p>1. Discovery — Production op Books and Papers — Uemedies—Motion.</p> <p>In a suit in equity for an accounting and to foreclose a mechanics’ lien for railroad construction work, complainant was entitled to discovery of books and papers In defendant’s possession necessary to establish complainant's cause of action on a motion supported by affidavit before trial.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Discovery, §§ 85, 89.1</p> <p>2. Same — Answer Under Oath — Waiver.</p> <p>Where complainant filed a 1)111 for an accounting and foreclosure of a mechanic’s lien, the fact that the bill waived an answer under oath did not amount to a waiver of complainant’s right to discovery.</p> <p>8. Same — Aemdavit—Description op Papers.</p> <p>Complainant sued for an accounting to foreclose a mechanic’s lien for railroad construction work done under a contract. Defendant denied the indebtedness, and filed a cross-bill to recover damages for complainant's failure to complete the work, which complainant answered, alleging a change of route and consequent delay, and that defendant had paid certain monthly estimates after the time limited by the contract for the completion of the work had expired, whereupon complainant moved to inspect books, papers, and documents in defendant’s possession, described as tlio.se relating to final estimates, showing quantities and classifies) • tious allowed throughout the work, maps of the railroad line, and the building, cross section, and other notes, particulars of haul, showing .number of cubic yards moved, distance hauled, and notes of classification allowed for current estimates and filial estimates, prepared by defendant's engineer, as provided by the construction contract, all of which were alone in the possession of defendant. Hold, that the character and materiality of the papers desired to lie produced was sufficiently disclosed.</p>

<p>Master and Servant — Injuries to Servant — Railroads—Fellow Servants— Statutes — Construction.</p> <p>Act Mont. Mareii 5, 1903 (Laws 1903, p. 150, c. 83) provides tliat every railroad corporation within the state shall be liable for all damages sustained by an employs thereof within the state, without contributory negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, engineer, or any other employs who has superintendence of any stationary or hand signal. Held, that the word “engineer,” as used in such section, had reference only to servants in charge of locomotives, and that the statute did not cover an injury sustained by a servant of a railroad caused by the negligence of the operator of a stationary engine used to draw a plow along the floor of flat cars for the unloading of gravel.</p> <p>[Ed. Note. — Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]</p>

<p>1. Post Office — Bond of Bidder for Mail Contract — Nature of Obugatiow.</p> <p>A proposal bond, given by a bidder for a contract for carrying the mail, conditioned as required by Act June 23, 1874, c. 456, § 12, 18 Stat. 235 [U. S. Comp. St. 1901, p. 2695], which provides that “every proposal for carrying the mail shall be accompanied by the bond of the bidder, * * and in case of failure of any bidder to enter into such a contract to perform the service, or, having executed a contract, in case of failure to perform the service according to his contract, he and bis sureties shall be liable for the amount of said bond as liquidated damages, to be recovered in an action of debt in said bond,” is an absolute undertaking to pay the amount named- therein as liquidated damages in case of condition broken, and not one of indemnity or security to the government against loss or damages for breach of contract, and in an action thereon the actual damages cannot be inquired into.</p> <p>2. Same — Action on Proposal Bond — Defenses.</p> <p>In an action on a proposal bond given by a bidder for a contract for carrying the mail, as required by Act June 23, 3874, c. 456, § 12, 18 Stat. 235 [TJ. S. Comp. St. 1901, p. 2095], where the bidder entered into the contract with the required surety for its faithful performance, but failed to complete such performance, the fact that the government recovered from such surety the actual damages sustained by reason of the breach of contract does not constitute a defense</p>

<p>On Motion for Judgment on Reserved Question.</p>

<p>1. Garriers — Interstate Commerce — Rf.uates— Corporations — Elkins Act — Violation.</p> <p>A refrigerator company was incorporated to own and operate a private ear line,'and to have charge of all the interstate transportation of the product of a brewing company. A majority of the brewing company’s stock, however, was owned by persons who had no interest m the refrigerator company, and the stock of the latter was bought and paid for by the holders with their own money and in their own interest; none of it being held in trust for the brewing company, though tile majority of it was owned by persons who also owned brewing . company stock. The brewing company paid its freights in full and received no rehates, nor was it a party to contracts between the refrigerator company and the railroad companies by which the refrigerator company received a rebate of from one-eiglith to oiie-tenth of all freight moneys on all interstate traffic it controlled. Held, that such facts were insufficient to establish •that the brewing company had received rebates in violation of Elkins Act, Feb. 19, 1903, c. 70S, 32 Stat. 847 [U. S. Comp. St Supp. 1905, p. 599.]</p> <p>2. Injunction — Carriers,—Rebating—Restraining Crtme.</p> <p>Equity has jurisdiction to grant an injunction at the instance of the United States against carriers and other corporations, restraining them from giving and receiving rebates in violation of Elkins Act, Eeb. 19, 1903, e. 708, 32 Stat. 847 [U. S. Comp. St Supp. 1905, p. 599], though such acts may also constitute a crime.</p> <p>3. Carriers — Regulation—Rebates—Injunction—Rio iit to Sue.</p> <p>Elkins Act, Feb. 19, 1903, c. 708, § 3, 32 Stat. S48 [U. S. Comp. St. Supp. 1905, p. 600], prohibiting rebates by carriers, provides for actions by the Interstate Commerce Commission after investigation, and declares that it shall be the duty of the several District Attorneys of the United States, whenever the Attorney General shall direct, either of his own motion or upon the request of the Interstate Commerce Commission, to institute and prosecute such proceedings. Held, that the Attorney General had authority to institute a proceeding to restrain rebating by interstate carriers of his own motion, without direction or investigation on the part of the Interstate Commerce Commission.</p> <p>4. Same — Counsel for United States — Appointment.</p> <p>Where a proceeding to restrain certain carriers and shippers from giving and receiving rebates on interstate shipments was instituted at the direction of the Attorney General, who retained special counsel nominated by the informing witness, and defendants made no application for a stay of proceedings in order to object to the appearance of such special counsel, they were not entitled to a dismissal on the ground that prosecutor had agreed with the Attorney General to bear a deficiency in the expense of the prosecution after applying the balance of the Attorney General’s appropriation applicable to that purpose.</p> <p>5. Same — Statutes—Construction—Shippers.</p> <p>Elkins Act, Eeb. 19. 1903. e. 70S. 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599J, provides that it shall he unlawful for any person, persons, or corporations to solicit, accept, or receive any rebate, concession or discrimination in respect of the transportation of any property in interstate or foreign commerce, whereby such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by -the carrier, and section 2 declares that it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the rate, regulation, or practice under consideration. Held, that a refrigerator company organized for the purpose of controlling the interstate transportation of a brewing company, having entered into a contract for rebates with certain railroads, was a “party interested in the traffic,” and was therefore subject to the provisions of such act.</p> <p>6. Same.</p> <p>Under Elkins Act. Feb. 19. 1903, c. 70S, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 590], prohibiting the giving or receiving of rebates in respect to the transportation of any property in interstate or foreign commerce “by any device whatever” it was unlawful for a corporation organized to control the interstate transportation of a brewing- "company to demand and receive as a consideration for the routing' of the brewing company’s products over certain linos of railroad a concession equal to one-eighth or one-tenth of the published freight rates.</p>

<p>In Bankruptcy. Rule on M. P. Cawley to turn over money.</p>

<p>On motion to set aside the verdict of the jury in favor of defendant, and for a new trial on various grounds, among others, because of errors in the charge.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review reversed the assessment of .duty by the collector of customs at the port of New York on 'merchandise imported under the tariff act of March 3, 1883.

<p>Courts — Concurrent Jurisdiction — Action by Federal Receiver in Statb Court — Priority op Jurisdictio.n.</p> <p>Where a federal receiver has commenced an action on a claim in a state court, which has the power to entertain equitable defenses in actions at law, the federal court will not direct him to suspend such action to permit the defendant to prosecute a suit in equity therein to establish the right to a set-off, merely because the courts of the two jurisdictions held different views on the right of set-off under the facts, but will stay the suit before it until the state court, which first acquired jurisdiction of the parties and subject-matter, has disposed of the action before it.</p> <p>(Ed. Note. — Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank of Providence, IG C. C. A. 90; Central Trust Co. of New York v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p>

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

<p>Petition to Review Order ol‘ the District Court of the United States for the Southern District of New York. J. A. Hodge, for petitioner.</p>

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

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

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

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

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

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

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

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

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

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

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

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