Volume 146 — Federal Reporter

Action in assumpsit to recover the sum of $12,000, claimed to be due the plaintiff, A. M. Love, for his services in bringing about a sale of a tract of land belonging to the defendant, Scateherd. The pleas were non assumpsit and nil debit. At the conclusion of all the evidence the court was requested by the defendant to instruct the jury to find against the plaintiff. The plaintiff thereupon requested the court to instruct a verdict for the plaintiff.

<p>1. Specific Performance — Sale op Waterworks at Value to be Appraised.</p> <p>There was a contract between a water company and a city for the construction of waterworks and their operation for 20 years, wherein the company agreed to give the city the option to purchase the works at the end of the term at a price based on their productive worth, to be determined by four appraisers chosen by.the parties and a fifth to be chosen by the four, on condition that the city gave notice of its intention to buy a year before the expiration of the term. The city gave the notice, but subsequently refused to appoint appraisers and to complete the purchase. Held, these facts disclosed an equity in the complainant, which entitled it to a specific performance of the contract, and this remedy was more complete and efficient than any it had at law.</p> <p>2. Same — Sale at Value to be Appraised — Rules—Enforced if Stipulation for Appraisers Subsidiary and Parties Not in Statu Quo; .¡Otherwise Not.</p> <p>Where, in a contract of sale of real estate at a price to be fixed by appraisers to be chosen by the parties, the stipulation for the appraisers is not a condition nor flip essence of tlie agreement, but is subsidiary or auxiliary to its main imrpose and scope, and tlie parties cannot be left or placed in statu quo by a refusal to enforce performance, a court of equity may determine the price itself, or by its master or by appraisers of its own selection, and may enforce specific performance of tlie agreement of sale. But where tlie stipulation for the appraisers is a condition or tlie essence of tlie contract, and a refusal to enforce it will leave the parties in tlieir original situations when the contract was made, a court of equity will not enforce specific performance of it.</p> <p>3. Vendor Aun Furo hash» — Option to Purchase Continuing Owes — Acceptance Exhausts Option and Completes Contract.</p> <p>An option to purchase is a continuing offer by the vendor to sell. Its acceptance by the vendee completes the contract, exhausts tlie option, and estops the vendee from subsequently repudiating it, or choosing the other alternative.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, ⅜ 23.]</p> <p>4. Equity — Adequate Remedy at Law.</p> <p>The adequate remedy at law which will prevent relief in equity must be as certain, complete, prompt, and efficient to attain the ends of justice as the remedy in equity.</p> <p>LEd. Note. — For eases in point, see vol. 10, Cent. Dig. Equity, §§ 151-103.]</p> <p>5. Same — Accounting.</p> <p>Where tlie remedy at law and the remedy in equity involve an accounting and the consideration of many items, the remedy in equity is more complete and efficient and better adapted to attain the ends of justice than tlie remedy at law.</p> <p>I Etl. Note. — For cases in point, see vol. .19, Cent. Dig. Equity, § 152.]</p> <p>6. Specific Performance — Contract for Sale of Waterworks — Breach— Remedy at Law.</p> <p>Where a city lias refused to perform its contract to purchase the waterworks of a company at a price based on their productive worth, to be determined by appraisers, the water company lias no remedy at law as complete and efficient as the specific performance of the contract in equity.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Specific Per- ’ fonnanoe, §§ 5-8. ]</p> <p>(Syllabus by tlie Court.)</p>

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

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

<p>1. Master and Servant — Fellow Servants — Foremen and Workmen.</p> <p>A mere foreman or gang boss is a fellow servant of those working with or under him and for his defaults by which a fellow servant is injured the master is not responsible, unless the duty as to which the default is made is an absolute duty of the master the performance of which has been delegated to such foreman.</p> <p>[Ed. Note. — For cases in point, see vo'l. 34, Cent. Dig. Master and Servant, §§ 433, 449.</p> <p>.Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 608; Flippin v. Kimball, 31 C. C. A. 280.]</p> <p>2, S.YAIK — IXJUBY OP SeKVANT — NeCÍLTOKXCE OP FELLOW SERVANT.</p> <p>Defendant railroad company owned barges on which cars were transported into a dock to bo loaded from a pier alongside. There were two parallel tracks on the barge and between them a platform at about the height of the car doors used in loading the cars. There was a space a foot wide between the platform and the cars and iron plates were provided to he placed across such space from the car doors io the platform. Plaintiff was a workman employed by defendant with others in loading cars on such a barge under direction of a foreman. Having occasion to move one of the cars the foreman directed that the pialo be not replaced and plaintiff -while assisting to roll a cask from such ear to the platform in obedience to an order of the foreman, without knowledge or notice that the plate was not in place stepped backward into the opening and fell and was injured. Held, that defendant having provided proper appliances to make the work safe was not under the personal duty to see that such appliances were replaced after being temporarily removed by the workmen and that plaintiff’s injury was due to the negligence of the foreman -who was his fellow servant for which defendant was not liable but which was one of the assumed risks of the employment.</p>

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

<p>1. Corporations — Contracts—Binding Effect on Stockholders.</p> <p>A contract made by a private corporation on a sale of its property, business, and good will, that it will not again engage in business in competition with the purchaser, is not binding individually on a stockholder, even though he may have been an officer acting for the corporation in the transaction.</p> <p>[Ed. Note. — For cases in point, see vol. 12. Cent. Dig. Corporations, §§ 663, 664, 1457.]</p> <p>2. Trade-Marks and Trade-Names — Right to Use Name in Title of Corporation — Unfair Competition.</p> <p>Hall’s Safe & Lock Company, a corporation, and its predecessors in business were engaged for many years in the manufacture of safes, which were marked and known generally as “HalPs Safes,” and acquired a good reputation. The company sold its property, business, and good will, which were subsequently acquired by complainant, and went out of business. The individual defendants whose name was Hall, and who had throughout their business lives been engaged in the making of safes, subsequently organized a corporation for that purpose under the name of “Hall’s Safe Company.” Held, that the adoption and use of such name was within their rights, provided it was so used as not to mislead the public into the belief tint the company’s products were those of the Hall’s Safe & Lock Company or its successors in business, against which complainant was entitled to an injunction.</p> <p>[Ed. Note. — Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lore v. Harper & Bros., 30 C. C. A. 376.]</p> <p>3. Same — Infringement by Corporation — Liability of Stockholders.</p> <p>Stockholders in a corporation are not individually liable or subject to injunction because of unfair competition practiced alone by the corporation.</p>

This cause conies here upon appeal from a decision of the Circuit Court, Southern District of New York (18(5 Fed. 807), reversing the Board of General Appraisers (G. A. 5,720, T. D. 25,428) and the collector of the port of New York, in the. matter of an importation of certain toys. No question was raised as to the classification of the importations, but only as to their appraisement.

<p>1. Customs Duties — Classification—Petroleum Products — Countervailing Duty.</p> <p>Paragraph 626, Free Dist, § 2, Tariff Act July 24,1897, c. 11. 30 Stat. 199 [TJ. S. Comp. St. 1901, p. 1085], providing a countervailing duty on “crude petroleum, or the products of crude petroleum, produced in any country ■ which imposes a duty on petroleum or its products exported from the United States,” is intended to provide that, when crude 'petroleum or any of its products is imported from a country which imposes a duty thereon when imported from the United States, it shall pay duty at the rate so , imposed by such country on merchandise in the same condition. A product of petroleum is subject to the duty so imposed by the country of manufacture on such product when coming from the United States, rather than to that so imposed on crude petroleum by the country in which the petroleum was produced. If no duty is so imposed on such product by the country in which it is manufactured, it is not liable to the countervailing duty, even though produced from petroleum originating in a country which does impose such a duty thereon.</p> <p>2. Same — Paraffin—Specific Enumeration.</p> <p>■ The' proviso in paragraph 626, Free Dist, § 2. Tariff Act July 24, 1897, c. 11, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685], providing a countervailing duty on “crude petroleum, or the products of crude petroleum,” is not limited to the articles enumerated in the preceding portion of that ■ paragraph, but should be read into every section of the tariff which enumerates a product of petroleum. The special enumeration of “paraffin” in paragraph 633, Freé Dist, § 2, of said act (30 Stat. 200 [U. S. Comp. St. 1901, p. 1686]), does not remove that substance from the scope of the proviso.</p> <p>3. Same — Products of Petroleum — Articles in Chief Value of Petroleum.</p> <p>The provision in paragraph 626, Free Dist, § 2, Tariff Act July 24. 1897, c. 11, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685], for “products of crude petroleum,” does not include articles not composed in chief value of petroleum, even though the petroleum predominates in quantity.</p> <p>4. Same — Determination of Component of Chief Value.</p> <p>The determination as to the component material of chief value of im- , ported merchandise 'is to be in reference to the values of the components in the country where the compound is produced. Evidence as to the value of one component material in one country and of another component in another country is not sufficient to overcome the sworn statement of the manufacturer of the goods.</p> <p>6. Statutory Construction — Scopk op Proviso — Position of Proviso,</p> <p>The general rule that a proviso to a particular section does not apply to other sections, but is to be construed with reference to the immediately preceding parts of the (danse to which it is attached, is not controlling, especially in such composite structures as tariff and' appropriation acts. The true rule seems to be that while the position of a proviso in a statute has a great and sometimes controlling influence upon the question of its application, yet the inference from its position cannot overrule its plain general intent.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Statutes, § 310.] Coxe, Circuit Judge, dissenting.</p>

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (133 Fed. 800), affirming a decision of the Board of General Appraisers (G. A. 5,257, T. D, 24,155), which sustained the collector of the port of New York in the assessment of certain imports under the tariff act of 1897.

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (144 Fed. ‘704), which affirmed a decision of the Board of General Appraisers, G. A. 5,878 (25,891), which sustained the action of the collector.

This cause comes here upon appeal, from a decision of the Circuit Court, Southern District of New York, which affirmed a decision of the P>oard of General Appraisers sustaining the classification by the collector of the port of New York of certain goods for tariff duty.

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

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

At Raw. On motion to strike reply. Action to recover the value of property destroyed by fire, which was insured by the defendant ’company. The defendant admits the making of the policy sued upon and the destruction of the property by fire.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision in question relates to merchandise imported at the port of New York, which was the subject of several protests by theUmporters against the assessment of duty by the collector of customs at that port. The Board gave the importers due notice of the hearing, at which they appeared and filed samples and affidavits.

<p>Gn Motion for Leave to File Amended Complaint.</p>

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

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

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review overruled protests of J. & H. Rosenberg against the assessment of duty by the collector of customs at the port of New York.

<p>1. Buxs aiíi) Notes — Anomalous Indorsement.</p> <p>If a person puts his name in blank on the back of a note at the time it is made or before it is indorsed by the payee, for the purpose of giving the maker credit with the payee, he is an anomalous indorser, and in the federal courts is liable as a joint maker or a guarantor.</p> <p>[Ed. Note. — For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 542-5.19.]</p> <p>2. Same — Alteration oe Contract.</p> <p>An anomalous indorser on a note could not be made liable on a contract written above his indorsement, reciting an agreement by such in-dorser to pay the note according to the terms of another agreement, which added several terms to the note.</p>

Indictment of a bankrupt for perjury committed in giving testimony under oath before a referee in support of contested claims against his bankrupt estate. Demurrer to the indictment sustained.

<p>1. Corporations — Unauthorized Contract by Officer — Ratification by Acceptance of Benefits.</p> <p>Plaintiff entered into a written contract with the secretary of defendant corporation, made in its name, by which he agreed to undertake the sale of its stock on commission. The secretary was without authority to make such contract, but the officers and directors were aware that plaintiff was holding himself out as the company’s agent, and assuming to act for it in making sales, and, in addition to their knowledge ol' sales made and attempted to be made by him, they accepted by formal resolution a proposition secured by him for the purchase of a largo block of stock. Held. that such acceptance was a ratification of the contract, whether or not they knew its terms, which they could not afterwards avoid by an attempted repudiation, and which entitled plaintiff to the stipulated commission on the sale.</p> <p>[Ed. Note. — For cases in point, seo vol. 32, Cent. Dig. Corporations, §§ 1713, 1714.]</p> <p>2. Brokers — Commission on Sam; of Stocks — Acquiescence in Reduction of</p> <p>Amount of Sale.</p> <p>Where a broker made a contract on behalf of a corporation for a sale of its stock, on which he ivas to receive a commission, but on account of difficulty in collecting the price a compromise was made with the purchaser, by which he took and paid for a smaller amount, in which tho broker took part, and to which he did not at the time object, he was entitled to’ commission only on the amount of the actual sale.</p>

<p>Shipping — Damage to Cargo — Dangers of the Sea.</p> <p>Where it is shown that a wooden vessel was seaworthy at the inception of her voyage, that the cargo was properly stowed and protected, that she was properly provided with pumps and the same were properly worked, that her hatches were properly secured, and that she encountered on her voyage heavy seas of unusual violence adequate to strain her seams and cause her to take in an unusual quantity of water, damage to her cargo therefrom, which it is not shown could have been avoided by the exercise of ordinary skill and care, is within the exception of “dangers of the sea” in the bill of lading, for which she is not liable.</p> <p>I Ed. Note. — Losses by perils of the sea, see note to The Dunbritton, .19 C. C. A. 465; Southerland-Limes Co. v. Thynas, 64 O. O. A. 118.J</p>

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

<p>Injunction — Right to Vbeltminary Injunction- — Doubtfulness of Court’s Jurisdiction.</p> <p>A suit in a federal court against a board of state commissioners for an injunction, the real purpose of which is to secure the enforcement of a contract between complainant and the state, in accordance with the Interpretation placed thereon by complainant, the correctness of which is denied by defendants, is one in which the jurisdiction of the court is so doubtful -under the elevfenth constitutional amendment denying jurisdiction of suits against a state that a preliminary injunction will not be granted.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, § 809.]</p>

<p>In Bankruptcy. Ex parte C. H. Sanders.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision under review affirmed the.assessment of duty by the collector of customs at the port of New York, on the authority of a former decision of the Board of General Appraisers, reported as G..A. 5,274 (T. D. 24,206).

<p>1. Constitutional Law — Obligation op Contracts — Negotiable Municipal Bonds — Rights op Bona Fide Purchaser.</p> <p>A bona fide purchaser of negotiable bonds for value before maturity, and without notice of any infirmity therein, is entitled, as an incident to his ownership, to transfer the title to another, with all the rights with Which he is vested; and such right, once accrued, is one of contract, which cannot be destroyed or impaired by state legislation.</p> <p>fEd. Note. — Bona fide purchasers of municipal bonds, see note to Pick-ens Tp. v. Post, 41 C. C. A. 6.J</p> <p>2. Same — Iowa Statute.</p> <p>In 18S8 the Legislature of Iowa enacted an amendment to section 2114 of Code 1873, by which it was provided that if negotiable paper “lias been procured by fraud upon the maker no holder thereof shall recover thereon of the maker a greater sum than lie paid therefor with interest and costs.” Code 1897, $ 3070. At the time of such enactment, a negotiable bond issued ¡by an Iowa school district having statutory power to issue the same was held by an innocent purchaser for value, who, although the bond was. fraudulently issued, was protected by the recitals therein, and both by the law merchant and the state statute entitled to recover its full face value. After its maturity such holder sold and transferred the bond for less than its face to complainant, who had knowledge of its fraudulent character. Hold, that the statute could not affect the right of such holder to transfer the bond with all of her vested rights as an innocent purchaser, and that complainant succeeded to such rights, and was entitled to recover from the district the full amount of the bond and interest, regardless ol' the sum he paid therefor.</p> <p>3. School Districts — Suit by -Bondholder op Divided District — Equity Jurisdiction.</p> <p>Under Code Iowa 1873. § 1715. which provides that upon the division of an independent school district the assets and liabilities of the old district shall be equitably divided between the new districts, a suit by a bondholder of a district which has ceased to exist by reason of the subdivision of its territory into new districts, to enforce payment by the new districts, is within the equity judisdiction of a federal court.</p>

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

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York, which affirmed a decision of the Board of General Appraisers sustaining the action of the collector of the port of New York touching certain importations under the tariff act of July 24,1897 (chapter 11, § 1, Schedule A, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626]) .

This is an appeal by Betty Gluck, one of the claimant’s sureties on a bond for value, given pursuant to section 3459, Rev. St. [U. S. Comp. St. 1901, p. 2281], from a summary judgment entered against the surety after verdict rendered in favor of the United States for.feiting the goods. The opinion of the district judge is found in 138 Fed. 166.

<p>In Error to the Supreme Court of the Territory of Oklahoma.</p>

<p>Customs Duties — Classification—Spangled Hat Ckowns.</p> <p>The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 408, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673], for “articles * * * composed * * * in part of * * * spangles made of * * * gelatin,” being more specific than that In paragraph 450, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], for “manufactures of gelatin.” Hat crowns composed chiefly of gelatin spangles are dutiable under the former provision.</p>

<p>Patents — Infringement—Portahce Boats.</p> <p>The King patents, No. 389.817, claim 1, and No. 507,439, claim 2, each for a combination of elements in the construction of a portable boat, held not Infringed by a construction which did not contain all of the elements of the combination of either claim.</p>

Suit in equity to restrain alleged infringement of claims 3 and 4 of United States letters patent No. 573,533, dated December 33, 1896, and issued to Eugene Pringle for separable button, and also for an accounting.

<p>Patents-'Vror.ATioN of Injunction Against Infringement.</p> <p>. A tine imposed for contempt of court in violating an injunction against infringement of a patent.</p>

<p>1. Bankruptcy — Grounds for Refusing- Discharge — Concealment of Assets.</p> <p>Wiiere a bankrupt bad voluntarily surrendered a lease giving him an option to purchase the leased property more than four, months prior to the bankruptcy proceedings, he is not chargeable with concealing property from his trustee because of his failure to schedule such property, in the absence of liroof that the surrender was not in good faith.</p> <p>2. Same — Objections to Discharge — Sufficiency of Proof.</p> <p>The burden of proof rests -upon a creditor objecting to the discharge of a bankrupt, and, while the. acts charged may be established by inference from the facts proved, it is not sufficient that such facts justify a suspicion of fraud, but they must be inconsistent with honesty and good faith.</p>

<p>In Bankruptcy. On exceptions to receiver’s account.</p>

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

<p>Customs Duties — Tbeasuey Regulations — Scientific Ahpakatus.</p> <p>Certain scientific apparatus, etc., imported for educational institutions, was claimed to be subject to paragraph 638, Tariff Act July 24, 1897, c. 11, § 2, Eree Dist, 30 Stat. 200 [U. S. Comp. St. 1901, p. 16861, exempting such articles from duty when imported in. compliance with regulations of the Secretary of the Treasury; but the importers had not filed a certificate of delivery to the institutions within 90 days after entry, as required by such regulations. Held, that that requirement is a reasonable, one, and that-the collector, in default of a compliance therewith, properly exacted duty on the apparatus.</p>

On Application for Review of a Decision of. the Board of United States General Appraisers. The decision below is reported as G. A. 5,962 (T. D.'26,147), and affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by F.'C. Cassel. ' J '

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below, which is reported as G. A. 6,112 (T. D. 26,609). affirmed the assessment of duty by the collector of customs at the port of New York.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision in question reversed the assessment of duty by the collector of customs at the port of New York on an importation by A. Lueder.</p>

<p>In Equity. On motion to continue temporary injunction.</p>

<p>In Admiralty. On plea to jurisdiction.</p>

<p>1. Courts — ENFORCEMENT or Remedy Given by State Statutes — Suits Re-dating to Water Rtgiits.</p> <p>Civ. Code, Mont. § 1891, which provides that in actions for the protection of water rights the plaintiff may make any or ail persons who have diverted water from the same stream or source parties, and the court may in one judgment settle the relative priorities and rights of all parties to the action, establishes a procedure substantially consistent with the ordinary modes of proceeding in chancery, and the rights thereby given may be enforced by a federal court of equity having jurisdiction of the suit by reason of diversity of citizenship.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 972.]</p> <p>2. Same — Jurisdiction oe Federal Court — Cross-Bills.</p> <p>In a suit in a federal court of equity to establish and protect rights in the waters of a stream against other separate appropriators of water from the same stream, all of whom are citizens of different states from complainant, the court may entertain cross-bills by any or all of the several defendants setting up priority of right as against complainant or their codefendants, since they relate to the subject of the original suit, which is the water of the stream, and, being ancillary to the original suit, the court has jurisdiction to determine the issues raised thereby without regard to the citizenship of the parties thereto.</p>

<p>Bankruptcy — Property Passing to Trustee — Estoppet. to Assert E quit arm Titee.</p> <p>A bankrupt had been a stockholder in a corporation which owned western lands, and with the other stockholders had advanced money to the corporation to pay its debts, to secure which a mortgage was taken on its lands. The mortgage was foreclosed by the trustee therein, who bought in the lands as such trustee. Subsequently, at request of the stockholders, he conveyed the lands without consideration to the bankrupt individually, and the latter, in order to settle any question -as to bis title and to facilitate sales, instituted a suit in equity, to which the stockholders became voluntary parties, in which it was decreed tlmt he was the absolute owner of the lands in fee simple, the title was quieted in him, his heirs and grantees, and all the defendants were enjoined from questioning the same. From time to time thereafter he sold portions of the lands, and mingled the proceeds with his other funds, but kept an account of the same, and when sufficient accumulated distributed the amounts so received among the stockholders of the corporation. At the time of his adjudication as a bankrupt he still held certain of the lands, and also had in his possession proceeds of others sold, which he had put into the form of a draft payable to him as trustee. Held,, that the stockholders of the corporation were estopped by the decree to which they had consented from asserting any equity or trust, which would prevent the property from passing to the bankrupt’s trustee, under Bankr. Act July 1, 1898, c. 541, § 70 (5), 30 Stat. 565 |U. K. Comp. St. 1901, p. 3451], as property which he could have transferred, and which might have been levied upon and sold under judicial process against him.</p>

In Bankruptcy. On petition for review of referee’s decision. The following is the opinion of the referee: Clarence II. Reavy, the trustee in bankruptcy, applied to this court for leave to sell all of the assets of said estate.

<p>1. Injunction — Contracts—Inducing . Breach.</p> <p>Complainant manufactured a proprietary medicine, which it sold under a trade-mark and only to wholesale dealers under contracts which bound . them to sell, only at a certain price, and only to retail dealers who also had contracts with complainant fixing the price at which the medicine should be sold to consumers. Held, that such contracts were legal, and that complainant was entitled to an injunction restraining defendants, who, not having entered info any contract with complainant, were therefore not entitled to buy and sell the medicine, from inducing any purchaser who had made such a contract to violate the same by selling to defendants, or from knowingly purchasing from any such person in violation of his contract, and also from selling the medicine to consumers after the cartons and labels containing the directions for its use had been removed from the bottles.</p> <p>2. Same — Evidence or Intention.</p> <p>The fact that defendants, who were shown to be selling large quantities of the medicine to consumers at less than the prices fixed by complainant, before doing so removed from the bottles all cartons and labels containing numbers which would enable complainant to trace the original purchaser, in. the absence of evidence showing to the contrary, was sufficient to authorize a finding that defendants knowingly participated in the breaches of the contracts between the sellers and complainant.</p>

<p>Trade-Marks — Suit for Contributory Infringement — Waiver op Claim Against Principal Inpringee.</p> <p>Complainant brought a suit for infringement of a trade-mark, which was settled by stipulation, and a decree entered establishing complainant’s exclusivo right to the trade-mark from that date; but it was stipulated that neither the defendant therein nor its customers should be held liable for past infringements. Held, that, having thus waived all claim against the principal infringer, a court of equity would not there- , after entertain a suit by complainant for contributory infringement 'against one who had made and furnished to such infringer the cartons used by it containing the infringing trade-mark.</p>

<p>1. COURTS-JURISDICTION OR CIRCUIT COURT — ReVIJ \V OR PROCEEDINGS OR DISTRICT Court in Bankruptcy.</p> <p>A Circuit Court of the United States is without jurisdiction of a suit which seeks to review a judgment of a District Court in bankruptcy, to recover money in the hands of a trustee in bankruptcy and to enjoin him from paying the same out in dividends in obedience to the order of the District Court even though it is alleged that such judgment was rendered coram non judice.</p> <p>[Ed. Note. — Appeal and review in bankruptcy eases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Suit Against Trustee.</p> <p>The jurisdiction of a Circuit Court of a suit by an adverse claimant of property against a trustee in bankruptcy is expressly excluded by Bankr. Act Julyl, 1898, c. 541, § 23a, 30 Slat. 552 TU. S. Comp. St. 1901, p. 3431], where it would not have had jurisdiction if the suit had been against the bankrupt.</p>

<p>Abut and Navy— Offenses — Pledging Clothing and Accouterments op Soldiers.</p> <p>The seventeenth article of war (Act July 27, 1S92, e. 272, § 1, 27 Stat. 277 [U. S. Comp. St. 1901, p. 947]), liravides that any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or- accouterments shall be punished as a court-martial shall adjudge. Rev, St. §,3748 [U. S. Comp. St. 1901, p. 2527], declares that clothes, arms, military outfits, arid-accouterments furnished by the United States to any soldier shall not be sold, bartered, exchanged, pledged, loaned-, or given away, and that no person not a soldier or duly authorized officer of the United States who has possession of any such clothes, etc., shall have any right, title, or interest therein, but the same may be seized and taken wherever found: Held, that clothing issued to soldiers while in the military service remained the property of the United States, .within section 5438 [U. S Comp. St. 1901, p. 3674], providing that every person who knowingly purchases' or receives in pledge from any soldier any clothes, equipment, or other public property, which the person selling or pledging the same has no right to sell, shall be imprisoned, etc.</p>

<p>On Petition for Leave to Intervene.</p>

<p>Trade-Marks and Trade-Names — Title op Publication.</p> <p>Complainant held entitled to protection in tlie trade-mark “Buster Brown” as the title of a comic section of a newspaper it being shown ■that it was the first to use the title, and that it was so used exclusively by complainant and its licensees for such length of time as to give it a proprietary right therein.</p>

In Equity. On motion for preliminary injunction. Complainant seeks pendente lite to enjoin defendant from further manufacturing and 'selling comic sections of newspapers, containing pictures in imitation of those produced-by complainant and employing in connection therewith a title (“Buster Brown”) associated with said pictures, . -

<p>On Motion to Set Aside Service of Summons.</p>

<p>1. DOMICILE, Chance of- — Intent.</p> <p>Though the question whether a person, who has removed himself from one district to another, has thereby become an inhabitant or resident of the district where he is living and doing business when served with process is to be determined principally by his intent, his own declaration as to his intent, especially when made after he has become appreciative of the consequences of a change of domicile are not controlling.</p> <p>[Ed. Note. — For cases in point, see v-ol. 17, Cent. Dig. Domicile, §§ 9-11, 15, 22.]</p> <p>2. Same.</p> <p>When defendant left Chicago a suit against him was being tried, the result of which he must have understood would be adverse, and which was of such a character that execution under the judgment would run against his person and result in his imprisonment. He came to New York, entered into business, took a lease of an office for a year and a hall', and of apartments for nine months. Though he left his wife and child in Chicago, he had for several years, whenever absent from Chicago, traveled with his mistress. Since the entry of the Illinois - decree against him he had been in Chicago but a single day, a Sunday. Meld, that defendant bad become a resident of the New York district, and could be sued therein.</p> <p>[Ed. Note. — For cases in point, see vol. 17, 'Cent. Dig. Domicile, §§ 9-13, 15, 22.]</p>

<p>1. Cancellation of Instruments — Fraud—Mutual Mistake.</p> <p>Where a bill to rescind a contract assigning territory for the promotion of burial associations under copyrighted by-laws was based on alleged, false and fraudulent representations by defendant, the bill could not be sustained by proof of mutual mistake.</p> <p>[Ed. Note. — For eases in point, see vol. 8- Cent. Dig. Cancellation of Instruments, § 96.]</p> <p>2. Same — Evidence.</p> <p>In a suit to rescind a contract assigning rights within certain territory under a copyright of articles of association and by-laws for the organizations of mutual burial associations and to cancel notes and mortgage given therefor, evidence held insufficient to sustain a finding that defendant represented that the copyright conferred on any purchaser the exclusive right to organize and operate under the plan disclosed, and that no organization using any of the features of such copyrighted plan would or could he operated without obtaining from defendant the right to do so, and that persons so operating were not subject to insurance laws of the several states.</p> <p>3. Copyrights — Effect—Rights Obtained.</p> <p>The copyright of a pamphlet containing articles of association and bylaws of a mutual burial association did not irrotect the system, considered merely as a system, so as to confer on the person owning the copyright or his transferees the .exclusive right to organize associations under the plan described.</p> <p>[Ed. /Note. — For cases in point, see vol. 11, Cent. Dig. Copyrights, § 37.]</p> <p>4. Contracts — Rescission—Misrepresentations—Question of Law.</p> <p>Where defendant assigned the right to organize mutual burial associations according to a copyrighted plan throughout several states to complainants for the full term of the copyright, together with all defendant’s right, title, and interest thereto within the states named, secured to defendant by such copyright, any opinions expressed by defendant concerning what his rights were under such copyright, in the absence of a misunderstanding of the facts or bad faith, constituted a mere matter of mistake of law, which was insufficient to authorize a cancellation of the contract.</p> <p>I Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 427, 1166.]</p> <p>5. Same.</p> <p>Where complainants purchased from defendant, who was an ignorant man, the right to use defendant’s copyrighted plan for the establishment of mutual burial associations in several states on defendant’s alleged misrepresentations concerning his rights under his copyright, and that the plan was not subject to supervision by state insurance departments, and when the matter remained in escrow for two months before the transaction was completed, and complainants had ample time to ascertain their rights tinder the contract, if they failed to do so, they were not thereafter entitled to demand a rescission because of such misrepresentations. „</p> <p>[Ed. Note. — For cases ill point, see vol. 11, Cent. Dig. Contracts, §§ 425, 1160-1164.] •</p> <p>6. Same — Ratification.</p> <p>Where complainants, having purchased, an assignment of the right to organize and operate mutual burial associations under a copyrighted plan in June, 1902, discovered the falsity of certain alleged representations of the seller concerning complainants’ rights under the contract within a month after the contract was made, but continued, notwithstanding, to operate under the contract, and made no demand for rescission until suit was brought to cancel the contract more than a year thereafter, the fraud, if any existed, was waived.</p> <p>[Ed. Note. — For eases in point, see vol. 11, 'Cent. Dig. Contracts, §§ 440, 1181, 1183.]</p> <p>7. Deeds — Blanks—Completion.</p> <p>Where the name of the grantee in a deed executed, acknowledged, and deposited in escrow was left blank at the request of the vendee, the fact that he thereafter filled the blank with his own name and recorded the deed did not invalidate it.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Deeds, § 64.].</p> <p>8. Same — Parol Authority.</p> <p>Under Gen. St. Kan. 1901, § 1195, providing that a deed to real estate situated in that state need not be under seal, parol authority, express or implied, was sufficient to authorize a vendee to fill his own name-in a blank left for that purpose in a deed to land located in that state.</p>

<p>1. Post Office — Use of Maij> — Scheme to Defraud — Description is Indictment.</p> <p>In. a prosecution for depositing a letter in the post office in execution of a scheme to defraud in violation of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], defendant cannot be convicted unless the proof establishes the “scheme” substantially as alleged in the indictment.</p> <p>[Ed. Note. — Nonmailable matter relating to frauds and counterfeiting, see note to Timmons v. United States, 30 C. C. A. 86.]</p> <p>2. Same — Issues and Proof.</p> <p>Accused was indicted for depositing a letter in the post office in execution of a scheme to defraud. The scheme alleged consisted of the insertion of an advertisement in a newspaper containing the words “How to speculate on Board of Trade. Sent free by J. D. Brown & Co.,” etc., to induce the public through correspondence conducted by mail to purchase through defendant under the name of “.T. Tj. Brown & Co.” commodities on some board of trade to enable defendant who did not intend to make such purchases to convert the money to his own use. The proof was that one Hardwick saw such advertisement and without correspondence sent defendant $1,000 by wire, with instructions to buy options on pork. Defendant immediately returned a memorandum showing a sale made by him to Hardwick, and not a purchase made on a board of trade for him. Thereafter Hardwick deposited more money, and directed further pur-eliases of pork, which were made in the same manner. Held, that such facts, were insufficient to establish the charge laid in the indictment.</p>

<p>1. Post Officio — Use of Mates — -Schemes to Defraud — Offenses.</p> <p>In order to make out the offense defined by Rev. St. § 5480 [U. S. Comp. St. 190.1, j). 3696], prohibiting the mailing of a letter in the execution or attempted execution of a scheme to defraud, there must not only be a scheme intended to defraud, but such scheme must contemplate as one of its essential parts the use of the United States post office establishment to effect its purpose, the gist of the offense being the mailing of the letter in furtherance of such scheme.</p> <p>[Ed. Note. — Por cases in point, see yol.. 40, Cent. Dig. Post Office, § 55.</p> <p>Use of mails for schemes to defraud, see note to Timmons v. United States, 30 C. C..A. 80.]</p> <p>2. Same — Indictment.</p> <p>An indictment for mailing a letter in execution or attempted execution of a scheme to defraud in violation of Rev. Stat. § 5480 [IT. S. Comí). St 1901, p. 3696], while required to allege the particulars of the scheme with sufficient certainty to show its existence, and character, need not do so with the same particularity as to time, place, and circumstance as. is required with reference to the mailing of the letter.</p> <p>' ' [Ed. Note.- — For cases in point, see yol. 40, Cent. Dig. Post 'Office, § 72.]</p> <p>3. Same. . ■ '</p> <p>■ ’ If the scheme is sufficiently outlined to show its design and adaptability to deceive, and to fairly acquaint the accused with what he is required . to meet, it answers the requirement of the statute.</p> <p>4. 'Same. , . . .</p> <p>• Whether the pretensions made by the accused, which are averred to constitute the scheme to defraud, constitute an agreement, valid or otherwise, .or consist of representations of fact, present or future, an expression of opinion or assurance of past, present, or future conditions, it may constitute a scheme to defraud, provided only it be designed and ; reasonably adapted to deceive.</p> <p>p. Samis'.</p> <p>. An indictment for mailing a letter in execution of a scheme to defraud, in violation of Rev. St. § 5480 [TJ. S. Comp. St. 1901, p. 3690], alleged that the defendant with others by means of advertisements-published in • newspapers, and correspondence conducted by and through the • United :States mail service, pretended to be engaged under the' name “National Securities Company” in a lucrative and honorable business as a .broker, dealing in grain, provisions, and stocks, and pretended to be possessed of superior knowledge concerning the business, making loss improbable, and pretended to pay interest to depositors' at the rate of C per cent, per month, and to permit withdrawals at the depositors’ election, when in fact he had no such superior knowledge, did not intend for any great length ' of time to pay 6 per cent, per month, nor' permit withdrawals at depositors’ pleasure, but intended by such false pretensions to induce deposits, for the sole' purpose of converting them to his own use. Hold, that the indictment sufficiently alleged a scheme to defraud, within such sec-tiqn.</p> <p>6. Same — Instructions. "</p> <p>'. In a prosecution for mailing certain letters in execution of a scheme to defraud, in violation of Rev. St. § 54S0 [U. S. Comp. St. 1901, p. 3696], the 'court properly charged that defendant could not be convicted for devising the scheme alone, but that the gravamen of the offense rested in the ..mailing, of the letters alleged in the indictment, and that in 'order to convict the jury must find that defendant placed or caused tlie letters to bo placed in the post office, as alleged.</p> <p>7. Criminal Law — Declarations of Defendant.</p> <p>Where in "a prosecution for mailing certain letters in furtherance of a scheme to defraud; it was charged that the letters were mailed, one on December 10, 1902, one on January 13, 1903, and another on January 29, 1903, and there was no evidence that defendant’s admissions to a post office inspector concerning his operation of the scheme were not made after the mailing of the letters in question, such admissions were not erroneously admitted as made prior to the mailing of the letters.</p> <p>8. Sam^ISvtdence — Existence of Things — Presumption of Continued Existence.</p> <p>. That the defendant had charge of the mailing of letters and literature flor a fraudulent securities company in November, 1902, was insufficient .to' justify a presumption that he continued indefinitely thereafter in the same employment, under the rule that from x>roof of the existence of a certain condition of things at one time the same condition, of things, if of a continuing nature, is presumed to continue until the contrary is shown.</p> <p>9. Post Office — Scheme to Defraud — Use of Mails — Mailing Letters— Evidence.</p> <p>In a prosecution for the mailing of certain letters in furtherance of a scheme to defraud, evidence held sufficient to justify a finding that defendant mailed or caused the letters in question to be mailed.</p> <p>10. SAME — 'EVmiOXOfl.</p> <p>Accused did business under the name “National Securities Company.” lie advertised to invest deposits in grain, provisions, and securities, so as to yield his customers <> per cent, per month, and to permit them to withdraw their deposits at their election. He sent out through the mail laudatory circulars, affidavits, and letters purporting to come from others, some of which were entitled “Do you know of something, anything hotter ?” “Our company strong, well financed, capital full paid.” “Our plan infallible, 1ms never lost a dollar. An assured success.” “Our management honest, conservative, intelligent, and experienced.” “Our proposition very profitable, cannot be excelled. Our profits justify it.” Held, that such documents in themselves constituted evidence of the existence of a scheme to defraud.</p> <p>11. Sami?.</p> <p>Where, in a prosecution for mailing certain letters in furtherance of a scheme to defraud, defendant’s participation in securing a certain false affidavit and laudatory letter appeared in the stock advertisements of the business in which defendant was engaged, such stock advertisements and copies of the affidavit and letter were admissible.</p> <p>12. Same.</p> <p>In a prosecution for mailing certain letters in furtherance of a scheme to defraud, letters other than those counted on in an indictment, purporting to have been written by the eompany operated by defendant, to different persons throughout the country, and relating to transactions by the company with them, were admissible to show that the scheme contemplated the use of the mails, and as bearing on the intent with which the business was done, and the existence of a scheme to defraud.</p>

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

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

<p>Bankruptcy- — Concealment of Assets — Evidence to Justify Finding.</p> <p>Tlie indebtedness of bankrupts wlio were dealers in diamonds and jewelry was about $90,000, all of whicli liad beeu contracted within the past 15 months. There was a shortage of assets, not satisfactorily accounted for of $60,000, and besides that within 10 days shortly prior to their bankruptcy they drew from the bank on checks $18,200. On their examination they refused to answer questions in respect to such transaction, but later when their discharge was opposed on that ground, testified that they had paid the money drawn for diamonds previously purchased from a stranger which they suspected to have been smuggled, and that at his request the transaction was not entered on their books, but was shown in a small book kept by them. Such book was not produced and their testimony was wholly uncorroborated. Held, that their testimony was not • credible, and that the evidence justified a finding that they had concealed the money, and an order requiring them to pay it over to their trustee.</p>

This is the second appeal from the United States Circuit Court for the Eastern District of North Carolina, at Raleigh, in the equity cause therein depending wherein W. B: Trenchard and others were plaintiffs and F. Kell was defendant, the original appeal taken by the defendant in the court below having been decided by this court on the 9th day of November, 1905 (142 Fed. 116) ; the present appeal by the same appellant, the defendant in the court below, being from the decree…

<p>Appeal — Review—Excessive Damages.</p> <p>An assignment that the verdict awarded excessive damages through passion and prejudice could not be reviewed on appeal to the Circuit Court of Appeals, such question being within the exclusive jurisdiction of the trial court, determinable on a motion for a new trial.</p> <p>[Ed. Note. — f or cases in point, see voi. 3, Cent. Dig. Appeal and Error, § 3944.]</p>

<p>In Equity. Suit for infringement of patent. On exceptions to ruling of master and motion for instructions in proceedings for an account.</p> <p>Patent considered and sustained in Walker Patent Pivoted Bin Co. v. Brown & Krause (C. C.) 110 Eed. 649, and in Walker Patent Pivoted Bin Co. v. Miller & England, 132 Eed. 823; affirmed (C. C. A.) 139 Eed. 134. See, also, Miller & England v. Walker Patent Pivoted Bin. Co. (C. C.) 138 Eed. 919, affirmed (C. C. A.) 145 Eed. 832.</p>

<p>This is a suit in equity to restrain alleged infringement of letters patent No. 645,02(5. dated March ti, 1900, and. issued to Hugh Woods, assignor to the Nathan Manufacturing Company, for improvement in lubricators for the valves and cylinders of locomotive engines, and for an accounting. The defendant the Delaware, Lackawanna & Western Railroad Company uses upon its locomotive engines lubricators furnished by the Michigan Lubricator Company, and these lubricators furnished by this company are the alleged infringing devices. The defendant Michigan Lubricator Company has become a party to the suit, and lias assumed its defense.</p>

<p>On Motions to Require Witness to Answer Questions "Before Master, and to Punish Him for Contempt for His Refusal.</p>

<p>On Motion by the Receivers to Compel Mr. Franklin Bien to Pay Over to Them the Sum of $2,000.</p>

<p>1. Tbade-Makks and Teade-Names — Unfair Competition — Similarity of Dress.</p> <p>Where articles of merchandise of the same kind are made by different manufacturers in the same city, the name of which appears on the packages, one having a long established reputation, a later manufacturer is required to exercise care to differentiate his packages, so that purchasers wild not confuse the two products.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Trial, §§ 73, 74, 86.</p> <p>Unfair competition, see notes to Schener v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 37CJ.</p> <p>2. Same — Right to Injunction — Fraudulent Use of Packages by Complainant.</p> <p>A motion for preliminary injunction to restrain unfair competition by the imitation of complainant’s packages will not be granted although such imitation is shown where there is evidence which, though disputed, tends to show that complainant lias used its packages for an article different from that for which they were designed, of inferior quality, and not made at the place thereon stated.</p> <p>n-M. Note. — For cases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, §§ 94, 108.]</p>

The complaint was based upon section 67e of tbe United States bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 504, 565 [U. S. Comp. St. 1901, p. 3450]).

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

<p>On Motion to Quash Indictment.</p>

<p>BANKS AM BANKING-PROSECUTION FOR MISAPPLICATION OF FUNDS OF NATIONAL Bank — Variance.</p> <p>An indictment under Rev. St. §5209 [TJ. S. Comp. St. 1901, p. :!497], against an officer or director of a national bank for willful misapplication of its funds, in order to advise tlie defendant of tlie issues to be met, must set forth all of the facts necessary to show how tlie misapplication was made, and ihat it was an unlawful one. Under sucli an indictment charging Unit the misapplication was made by the drawing of cheeks on tlie bank, and obtaining their payment when lie had in fact no money oil deposit, where it appeared on the trial that defendant had an apparent-credit on the books of the bank sufficient to cover tlie checks, the government cannot impeach such apparent credit by showing that a deposit previously entered on the hooks to the credit of defendant’s account was false and fictitious, and the entry thereof fraudulently , procured by defendant ; no such transaction being charged, in the indifitment.</p>

<p>1. Carriers — Interstate Commerce — Rebating—Indictment.</p> <p>An indictment against a railroad company for violation of tlie interstate commerce, act (Act Cong. Eeb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), as supplemented by the Elkins act (Act Cong. Eeb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), alleged that defendant published a sugar schedule for the transportation of sugar from New York to Cleveland at the rate of 21 cents per 100 pounds; that on a specified day the American Sugar Refining Company induced defendant to make an unlawful agreement to allow a rebate of 6 cents on sugar shipped by it to Cleveland for recousignment, and 4 cents on sugar shipped to Cleveland as its ultimate destination; that the sugar company thereafter shipped various consignments, paid the schedule rate, and afterwards made claims on the railroad company, and was paid a rebate. Held, that such facts sufficiently showed a violation of the provisions of the act prohibiting deviations from the published rates.</p> <p>2. Same — Observation of Published Tariff — Willful Failure.</p> <p>An indictment against a railroad company and the agent ■ of certain shippers, alleging that full schedule rates were first paid by the railroad company for the transportation of certain freight, and that thereafter $920.39 was paid to the shipper’s agent by way of rebates and concessions in respect to the transportation of freight under a previously made unlawful agreement, sufficiently charged that the payment of the rebate was a willful failure to observe the published tariff, and therefore stated a violation of the interstate commerce act (Act Cong. Eeb. 4, 1887, c. 104, 24 Stat. 379 [Ü. S. Comp. St. 1901, p. 3L54]), as supplemented by the Elkins act (Act Cong. Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]). .</p> <p>3. Same — Parties—Joinder.</p> <p>Under the interstate commerce act (Act Cong. Feb. 4, 1887, c. 104, 24 Stat. 379 TU. S. Comp. St. 1901, p. 3154]), as supplemented by the Elkins act (Act Cong. Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), providing that a corporation engaged in interstate commerce and its agents may be criminally liable for giving rebates, a carrier and its agents may .be prosecuted for the same offense in a single indictment.</p> <p>4. Conspiracy — Carriers—Giving and Accepting Rebates — Indictment.</p> <p>Under the Elkins act (Act Cong. Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), abolishing imprisonment as a punishment for offenses committed against the acts regulating interstate commerce, an indictment alleging that the agents of a shipper and the agents of a railroad company engaged in interstate commerce stipulated to give and receive rebates on the transportation of sugar from New York to Detroit, and thereafter gave and received such rebates in pursuance of such fraudulent conspiracy, merely alleged a violation of the interstate commerce act as amended by the Elkins act, and was therefore not sustainable as alleging a conspiracy to commit an offense against the United States, punishable by imprisonment, under Rev. St. § 5440.[U. S. Comp. St. 1901, p. 3676].</p> <p>5. Statutes — Prospective Operation.</p> <p>Act Cong. June 29, 1906, amending the Elkins act (Act Cong. Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 TU- S. Comp. St. Supp. 1905, p. 599]) by striking the provision abolishing imprisonment for offenses under the acts to regulate commerce, and providing a punishment of imprisonment for a term not exceeding two years, etc., was prospective only in operation.</p>

<p>Constitutional Law — Delegation of Legislative Power — Creation . of Crimes.</p> <p>The provision of the sundry civil appropriation act of June 4, 1897, c. 2, 30 Stat 34 [U. S. Comp. St. 1901, p. 1540], making it a criminal offense to violate any rule or regulation which should thereafter be made by the Secretary of the Interior, under the power therein conferred (since transferred to the Secretary of Agriculture), for the protection of forest reservations, is void as an attempted delegation of legislative power to an administrative officer, and an indictment will not lie for the pasturing of sheep on a forest reservation without a permit, in- violation of 'a regulation made by the secretary, but which is not prohibited by any statute of tiie United States.</p> <p>[Ed. Note. — Eor cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 96-99.]</p>

On Motion to Remand to State. Court. The plaintiff, a New Jersey corporation, on April 25th last instituted this proceeding in the state courts, under the eminent domain laws of the state of Montana, to condemn certain lands for flooding purposes; it being alleged that it. is necessary, for it to cover the lands described with water in the operation of its dam and electrical plant. It alleges that five tracts, each of which is separately described, are necessary.

<p>Bankruptcy — Equitable Lien — Agbeement to Assign- Life Insurance Policies.</p> <p>A husband, at a time when he was solvent, made a parol agreement to assign to his wife certain life insurance policies then held by him in consideration of her relinquishment of her dower interest in their residence, which he desired to transfer as security for a loan, and she made such relinquishment. The cash value of the policies was about the same as the value of her dower interest in the property, and the agreement was made in good faith, but through neglect the husband did not formally' assign the .policies until after he became insolvent, and. within four months prior to his bankruptcy. Held, that the agreement gave the wife an equitable lien on the policies, and that , the assignment should be upheld as against the husband’s trustee in bankruptcy.</p>

<p>1. Salvage — Contract to Deliver Stranded Vessel — Failure of Performance.</p> <p>A tug which was under a written contract to float and deliver a stranded schooner at. a stated port, the contract otherwise to he void, hut which failed to perform the contract, cannot recover compensation as salvage for services rendered in attempting -its performance, as a result of which the schooner was subsequently floated by the wind and tide, and became a derelict, and exposed to greater peril than when on the bank, until rescued by other vessels after her abandonment by the tug.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Salvage, § 30.]</p> <p>2. Salvage — Award of Compensation — Rule in Case of Derelict.</p> <p>The ancient rule for the allowance of a moiety of the value saved in' the salving of a derelict to the salvors, while somewhat flexible, and subject to change in extraordinary cases, is a safe and salutary limit upon judicial discretion, and not to be lightly disregarded.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Salvage, §§ 56, 65.</p> <p>Salvage awards in federal courts, see note to The Lamiiigton, 30 C. C. A. 280.]'</p> <p>3. Same — Facts Considered.</p> <p>Á large schooner became stranded on Frying Pan Shoals off the North Carolina coast in March. A contract was made with the owner of tugs to float the schooner and deliver her at a port, but the effort was unsuccessful. Ten days after the stranding, and after she had been abandoned by the master and crew, she was moved off the shoal by a high wind, and one of the tugs attempted to tow her to port, but was unable and abandoned her. Her hull was under water and her masts and rudder gone. Subsequently a tug from Savannah went in search of and found her, about 100 miles from Charleston, which was (the nearest port she could enter owing to her draft. After going to Charleston, and obtaining the assistance of two other tugs, she was again found, and the three tugs towed her to that port nearly 10 days after she had gone adrift. Meantime the insurer had sent out a tug, which made a search for her, but not in the locality where she could have been found.- She was sold with her cargo for $24.000. The salvage service was performed with skill, and at considerable trouble and risk, owing to her condition. Held, that she was a derelict, and that the. salvors were entitled for their services to one-half the proceeds of vessel and cargo after payment of the expenses and costs.</p>

<p>'in Equity. Suit for infringement of copyright.</p>

<p>Bankruptcy — Failure to Obey Order to Turn Over Money — Pending Indictment for Embezzlement.</p> <p>. A motion to commit the treasurer of a bankrupt corporation for contempt for failure to obey an order of the referee requiring him to turn over money to the trustee will not be considered where he is under bail to appear and answer to indictments in the state courts for the embezzlement of such money from the corporation until after such indictments are disposed of.</p>

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

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

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

<p>Appeal from the Circuit Court of the United States for the Northern District of .Illinois.</p> <p>This is an appeal from a final decree-of the United States Circuit Court for the Northern District of Illinois, dismissing tlie bill of complaint of the appellant for want of equity, the case having been heard upon tlie pleadings and an agreed statement of facts. The bill was filed to restrain infringement of copyright in the book entitled “Webster’s High School Dictionary.” The facts briefly stated are as follows:</p> <p>Appellant, before the publication in this or any foreign country, was the owner of the literary property in and the right to copyright the book “Webster’s High School Dictionary,” and on August 9, 1892, published and copyrighted tlie same simultaneously in Great Britain and the United States. Thereafter appellant continued to publish and sell this book in the United States, complying with all the requirements of the statutes and printing the statutory notice of copyright in every copy published or sold in this country. The book under the name “Webster’s Brief International Dictionary” was subsequently published commercially in England under an agreement between appellant and George Bell & Sons entered into on July 18, 1894. This contract expressly provides that George Bell & Sons will not either directly or indirectly sell in or import the book into the United States or sell to others for the purpose of importation, and George Bell & Sons agree to use all reasonable means to prevent such importation by others. Under this contract the hook lias been published and sold in England. The copies so published and sold in England by George Bell & Sons have not borne the notice of the American copyright,, but have been in full compliance with all tlie provisions of the English copyright law, and appellant has in England a valid and subsisting copyright in the book. No copies of the English book have over been imported into or sold hi the United States either by appellant or George Bell & Sons, or any one acting for or on behalf of either. The appellee, United Dictionary Company, is an Illinois corporation organized in June, 1904, with a capital stock of 81,500. George W. Ogilvie. wlio was the organizer of defendant corporation, in January, 1905, caused a newsdealer in Chicago to cable to England and procure for him a copy of Webster’s Brief International Dictionary. This book was received in due course and turned over to Ogilvie. This and another copy subsequently imported by Ogilvie are the only copies of Webster's Brief International Dictionary, as far as the record shows, that ever came into this country. Upon receipt of the first copy, the appellee, United Dictionary Company, of which Ogilvie is director and principal stockholder, had the pages of Webster’s Brief International Dictionary photographed and reproduced verbatim and had plates made which completely reproduced that book and which also reproduced Webster’s High School Dictionary except the first 3 and the last 34 pages; 'the remainder of the two books .being identical. This reproduction was with full knowledge of the American copyright and of the identity of the books. It is expressly stipulated that “said Ogilvie obtained said copy of said ‘Webster’s Brief International Dictionary,’ not for the purpose of selling said individual copy, but for the purpose and Intent of having the United Dictionary Company reprint and republish said book without the consent of either complainant or George Bell & Sons.”</p> <p>Appellee advertised the intended publication of its book in the Publishers’ Weekly and has circulated pamphlets and printed matter in which this announcement is made. The book has not yet been published, but will be, unless its publication is restrained. And, if published, will constitute an infringement of appellant’s copyright in the book “Webster’s High School Dictionary,” if that copyright be valid.</p> <p>The question chiefly argued in this court is whether the failure, under the circumstances of this case, to insert in the books published in England, the copyright notice required by the United States' copyright law, works a forfeiture of the United States copyright, notwithstanding an exact and literal compliance with the United States statute in regard to all books published or circulated by or with the consent of appellant in the United States.</p>

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

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

<p>1. Master and Servant — Injury of Servant — Negligence of Master.</p> <p>Plaintiff, who was 16 years old, and was employed by defendant as a tool boy for a gang of workmen, was sent by the foreman to bring some tools from an island which was reached by a bridge passing over the island at a height of about 60 feet, from which a stairway had been built down to tlie ground. The island and stairway were owned by a third party. There had been some ice on the stairway in the morning, but it had melted off, except where shaded by the bridge on the upper part. Plaintiff was told to hurry, and had obtained the tools, and climbed a little more than half way up the stairs, when he slipped, and, having both arms occupied in carrying the tools, was unable to catch the railing, and fell under it to the ground and was seriously injured. IIcJil, that no negligence could be imputed to defendant or its foreman which would render it liable for the injury, either because plaintiff was not warned of the danger, or because he was required to carry too great a load; it appearing that he was strong and intelligent, and that lie was not given any direction that he must bring all of the tools at one time, but that the injury was the result of an accident, the risk of which was incident to the employment.</p> <p>2. Same — Safe Place to Work — Bruit of Master’s Duty.</p> <p>The duty of a master to provide a reasonably safe place in which his servant shall work does not extend to safeguarding the route of every journey the servant may he required to make in fetching and carrying, whether messages or portable articles.</p>

<p>1. Lakceny — Evidence—Relevancy—Facts—Decision.</p> <p>Upon a trial for larceny, the question was whether the defendant stole some cattle or ¡bought them of one Read without notice that they had been stolen. There was evidence which tended to show that the defendant paid Read for the cattle $250 in currency, and gave him a draft for $710 on a commission company, payable to Read’s arder, and that the iat-ter sent the draft to the company in a letter, wherein he directed them to place its proceeds in a certain bank to his credit. The territory produced three bankers, who testified, oyer the defendant’s objection that their testimony was incompetent, irrelevant, and immaterial, that there was no method known to banking institutions whereby such a draft could be paid without the indorsement of the payee. Held, this evidence was irrelevant and immaterial, and its admission was error.</p> <p>2. Criminal Law — Evidence—Admission op Immaterial or Irrelevant Testimony Fatal.</p> <p>The admission of irrelevant or immaterial evidence is a fatal eiror, because it tends to withdraw the attention of the jury from the actual issues in the case, to lead them to decide it upon extraneous questions, and thus to violate the right of the parties to a trial of the case upon the law and evidence applicable to the real issues it involves, and upon those only.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3137.]</p> <p>3. Same — Evidence—General Objection, When Available.</p> <p>The general objection that evidence is incompetent, irrelevant, and immaterial is sufficient when the reason for the objection is readily discernible. But where the ground of the objection is not suggested thereby, it will not avail in an appellate court.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, §| 1633-1637.]</p> <p>(Syllabus by the Court.)</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.

<p>OOPYRIGTIT — PENALTY FOR INFRINGEMENT — PAINTING.</p> <p>Under Rev. St. § 4965 [U. S. Comp. St. 1901, p. 3414]. providing the penalties recoverable for infringement of a copyright, and that the in-fringer “in case of a painting * * * shall forfeit ten dollars for every copy of the same in his possession or by him sold or exposed for sale,” it is not necessary that the infringing copies of a painting shall be found in defendant’s possession to authorize the recovery of the penalty named, as in case of a book or photograph, but it is sufficient if they were either so found or have been sold or offered for sale by defendant.</p>

Appeal by the importers from a judgment of the Circuit Court for the Southern District of Hew York (135 Red. ,214), which affirmed a decision of the Board of General Appraisers (G. A. 5,6(51, T. D. 25,251), sustaining the collector in assessing a duty of 45 per cent, ad valorem upon the imported merchandise.

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>In the Lee Tai Lung Case there was no opinion. The decisions covered by these appeals affirmed two decisions of the Board of United States General Appraisers, G. A. 5,701 (T. D. 25,359) and G. A. 6,221 (T. D. 26,888), which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board in the former case is set forth in the report of the Circuit Court decision in the Ceballos Case (C. C.) 139 Fed. 705, supra. The opinion of the Board in the latter case is as follows;</p> <p>WAITE, General Appraiser. The importation in this ease' consists of five boxes of dried olives imported from China. They wore assessed for duty at 15 cents per gallon, under the following provision in Tariff Act July 24, 1897, e. 11, § 1, Schedule G, par. 204, 30 Stat 171 [U. S. Comp. St. 1901, p. 1051] :</p> <p>‘•.(204) * * * Olives, green or prepared, in bottles, jars, or similar packages, twenty-five cents per gallon; in casks or otherwise than in bottles, jars, or similar packages, fifteen cents per gallon.”</p> <p>There appeals to be no dispute that the goods were correctly classified under paragraph 264, the only question raised relating to whether they should be assessed upon the basis of the gallon of liquid measure, containing 231 cubic inches, which was used by the customs officers, or the gallon of dry measure, presumably that containing 268.8 cubic inches, which the importer claims should be applied. Additional information derived from the record in this case and from other sources confirms the opinion expressed by the board in the Ceballos Case (G. A. 5.701, T. D. 25,359), affirmed by the Circuit Court in Ceballos v. U. S. (O. C.) 139 Eed. 705 (T. D. 25,879), namely, that the customs gallon of the United States is the wine gallon of 231 cubic Inches, if, indeed, that is not the only gallon in general use in the commerce of this country. While it appears that Congress, under its constitutional authority to •‘fix the standard of weights and measures” (article 1, § 8, Const.), has never in terms formulated a system of standard weights and measures for the United States, there has boon practically a legislative adoption of certain standards in use, including the wine gallon of 231 cubic inches, but not, so far as we are informed, the dry gallon. The history of this legislation and the related facts are summarized in a compilation issued by the Bureau of Standards of the Department of Commerce and Labor, entitled “Laws concerning the weights and measures of the United States,” from which we quote (page vii): “At the time of the American Devolution the weights and measures in common use were of English origin. Most of them had been procured from time to time by the colonies from Great Britain, and although it was well known that there were variations in the weights and measures of the same denomination throughout the states, it was not until 1830 that the matter received attention from Congress. At this time an investigation of the weights and measures in use in the various custom houses was ordered by a resolution of the Senate. As a result of this investigation, the avoirdupois pound, the English yard, the wine gallon of 231 cubic inches, and bushel of 2.150.42 cubic inches were adopted by the Treasury Department, and the construction of copies of the standards thus established was immediately undertaken, in order to supply the custom houses with uniform weights >and measures. In 1836 a joint resolution of Congress directed the Secretary of the Treasury to deliver to the governor of each state in the Union a complete set of all the weights and measures adopted as standards by the department, to the end that a uniform standard of weights and measures might bo established throughout the United States. Nearly all of the states have been supplied with complete sets of standards, in accordance with the resolution mentioned, and in many cases they have been adopted by legislative action as the standards of the state.” The joint resolution of .1836 referred to is found in 5 Stat. 133, and reads as follows:</p> <p>“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Treasury be, and he hereby is directed to causo a complete set of all the weights and measures adopted as standards and now either made or in the progress of manufacture for the use of the several custom-houses, and for other purposes, to be delivered to the Governor of each state in the Union, or such person as he may appoint, for the use of the states respectively, to the end that an uniform standard of weights and measures may be established throughout the United States.</p> <p>“Approved June 14, 1836.”</p> <p>This statute appears to be a legislative recognition of the standards adopted in the investigation of 1830. A later act (that of August 18, 1894, c. 301, 28 Stat. 383 [U. S. Comp. St. 1901, p. 2382]), directs the Secretary of the Treasury, who then had supervision of such matters, “to furnish precise copies of standard weights and measures to * * * any state, territory, or institution not heretofore furnished with the same, upon application in writing,’’ etc. By act of March 3, 1901, c. 872, 31 Stat. 1449 [ü. S. Comp.. St. 1001, p. 2383], Congress created the National Bureau of Standards, section 2 of which provides, among other things, “that the functions of the bureau shall consist in the custody of the standards, the comparison of the standards used in scientific investigations, engineering, manufacturing, commerce, and educational institutions with the standards adopted or recognized by the government; the construction, when necessary, of standards, their "multiples and subdivisions; * * * the solution of problems which arise in connection with standards. * * * The Board has before it a certificate, under the signature of the director of the Bureau of Standards, and the seal of the Bureau, containing a list of standard weights and measures adopted by the Treasury Department, copies of which have, from time to time, been transmitted to the Governors of the several states of the Union, pursuant to the joint resolution of June 14, 1836, and the act of August 18, 1894. The only gallon mentioned in this schedule is the gallon of 231 cubic inches' capacity. The state statutes printed in the compilation above quoted show that at least 38 out of the 45 states in the Union have by law expressly adopted the weights surd measures prescribed by the federal government In many instances these statutes specifically include the wine gallon, but in only three states, apparently, is there any legislative reference to such a unit of measure as the dry gallon. These states are Connecticut and Wisconsin, which provide for a dry gallon of 282 cubic inches capacity, and Minnesota, which provides for a dry gallon of 26S.8 cubic inches capacity.</p> <p>From the foregoing review of legislation and official action upon this subject, it Is apparent that the only gallon which has ever been “adopted or recognized” as a standard by the federal government is the wine gallon of 231 cubic inches. We are clearly of the opinion that this is the gallon referred to in paragraph 264. It is not shown that there is any such objection to measuring a dry substance like the goods in controversy by the liquid gallon as would make the construction of paragraph 264, adopted by the customs officers, unjust, unreasonable, or absurd. It is true the term “gallon” imports a liquid measure, and the commodity in question is of such a nature that it might be measured by dry measure. Still, as no measure is designated by the tariff in connection with the importation of olives except the gallon, and it has always' been the practice of the custom house to measure dry olives by the liquid gallon, we think that practice should maintain. The construction placed upon the law by the officers who administer it frequently influences the construction given it by the courts. Robertson v. Downing, 127 U. S. 607, 8 Sup. Ot. 1328, 32 D. Ed. 269. Ifi is improbable that the word “gallon,” as used in paragraph 264, means one unit of quantity when the olives are dried, and quite another when' they are in brine or liquid. Ce-ballos v. U. S., supra.</p> <p>We hold that the gauge of dried olives must be made by the gallon of 233 cubic inches, and overrule the protest, affirming the collector’s decision.</p>

<p>1. Bankruptcy — Discharge—-Obtaining Property by Means of False Statement.</p> <p>Bankr. Act July .1, 1898. e. .111, ⅜ lib (3), 80 Stat. 550 TU. S. Comp. St. 1001, p. 3428], as amended in 1908 (Act Del). 5, c. 487, §4, 32 Stat. 797 [TJ. S. Comp. St. Supp. 1905, p. 6841), which authorizes the refusal of a discharge to a bankrupt if lie has ‘‘obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such properly on credit,” should not be given tile strict construction required -in ease of a criminal statute, but one sufficiently liberal to effectuate the intention of Congress, which uus to deprive any bankrupt of the benefit of a discharge who has obtained property by means of a written statement false in material matters, and within the fair meaning of the clause tine statement was “made to such person,” if it was given to an agent for the purpose of using it in obtaining property for the bankrupt, and if its contents were communicated by the agent to such person, and it is not necessary that the statement itself should have been delivered to such person, nor that it should have been made for the purpose of inducing any particular person to rely upon il.</p> <p>2. Same — Refusal to Answer Questions.</p> <p>The fact that the refusal of a. bankrupt to answer material questions in the course of the proceedings which were approved by the referee was based on the claim of ids constitutional privilege not to incriminate himself does not deprive the court of the right to deny him a discharge because of such refusal, under Bankr. Act July 1, 1898, e. 541, § 14b (6), 30 Stat. 550 [TJ. S. Comp. St. 1901, p. 3428]. as amended in 1903 (Act Feb. 5, c. 487, §4, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684]).</p>

This was a suit in equity, commenced by the appellants against the appellee under the provisions of sections 2325 and 232G, Rev. St. U. S. [Comp. St. 1901, pp. 1429, 1430], to determine the question of the right of possession of certain mining ground situated in Touo-pah/ Nye county, Nev. The court rendered a decree in favor of the defendant. The complainants appeal.

<p>In Equity. Suit for infringement of letters patent No. 483,033 for a hermetically sealed jar, granted to Achille Weissenthanner. Gn final hearing.</p>

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

<p>On Motion by Defendant to Set Aside the Verdict and Grant a New Trial.</p>

<p>At Raw. On demurrer to plaintiff’s statement.</p>

<p>At Raw. On demurrer to answers.</p>

<p>In Bankruptcy. On certificate from referee sur exceptions' to account of trustee.</p>

On Motion to Quash Attachment and Service of Process. The plaintiff, a citizen of Iowa, as administrator of the estate of Frank E. Jandt, deceased, filed in the district court of Iowa in and for Woodbury county a petition against the defendant railway company, asking judgment against it in the sum of $10,000 for the alleged wrongful and negligent killing of the deceased in the state of Illinois while a passenger on one of its trains in that state.

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

<p>1. Courts — United States Courts — Jurisdiction—Amount in Controversy.</p> <p>In a suit concerning water rights the thing in controversy is the right to the use of the water, and where that exceeds in value 82,000, exclusive of interest and costs, a Circuit Court of the United States has jurisdiction.</p> <p>2. Water and Water Courses — Actions to Protect Rights — Right of Action — Interstate Streams — I uiusdiction.</p> <p>A citizen of one state may maintain a suit in a Circuit Court of the United States in another state to enjoin the unlawful diversion of water in the state where the suit is brought, which prevents its flowing- to his lands in the state of his, residence.</p> <p>3. Same — Appropriation of Water Eights.</p> <p>The complainant, a citizen and resident of Wyoming, instituted a suit in the Circuit Court of the United States -for the District of Montana to enjoin the defendants, residents and citizens of that state, from diverting water from a stream rising in Montana and flowing into Wyoming. Held, that'defendants could not justify their diversion of water in Montana in hostility to the rights of the complainant in Wyoming upon the ground that the laws of Montana authorize its citizens to appropriate water within the state. Held further, that the fact that the stream has its source in Montana, and from thence flows into Wyoming, does not affect the right to appropriate, hut that the general doctrine of priority governs regardless of state lines.</p> <p>4. Same — Definition-.</p> <p>An appropriation consists of the diversion of water and its application to some beneficial use. In the absence of any statute, if the work is prosecuted with reasonable diligence, the right of the appropriate»: relates to the beginning of the work.</p> <p>5. Same — Kecording—Notice.</p> <p>Where one approiiriates under a statute, the recording of the claim- is constructive notice, but such statutes do not preclude the taking of water for beneficial uses by methods other than those therein prescribed. The effect of the statutes is to preclude an appropriator from claiming, by the doctrine of relation, to the time when the work was begun as against one who does comply with the statutory requirements, and prosecutes the work to completion in accordance therewith.</p> <p>6.- Same — Appropriation in Wyoming — Repeal of Statute. .</p> <p>Complainant, without complying with the statutes of Wyoming, .diverted water from Sage creek in that state. Under the statutes then in force, one so appropriating was precluded from giving evidence in any proceeding to enforce a claim to the water thereby appropriated, but the statute was repealed prior to the institution of this suit. Held, that the effect of the statute was not to deny the right to appropriate, and that its repeal removed the only obstacle to the assertion of his rights in the courts. Held further, that the rights of complainant must be governed by the laws of Wyoming, where his appropriation was made.</p> <p>7. Same — Equities.</p> <p>One who appropriates water is entitled to the full amount appropriated, to the exclusion of all subsequent takers, and equity will not intervene to deprive one of the rights thus acquired by distributing the water to those subsequently claiming, even though the general benefits would be thereby increased.</p> <p>81 Same — Rifarían Rights.</p> <p>The defendants acquired lands in the Crow Indian Reservation in Montana subsequent to appropriations made in Wyoming, and they claim riparian ownership as successors of the Indians. Held, that the Indians never had any riparian rights, the fee always having been in the government subject to their occupancy. Held further, that appropriations could be made of waters running through the reservation which are superior to the rights of those subsequently becoming riparian owners.</p> <p>9. Same — Riparian Owner — Right to Use.</p> <p>While a riparian owner has the right to reasonably use the water of a stream, he c.annot deprive his co-riparian owners of like use. In the absence of any testimony as to what is a reasonable use, there can be no decree regulating the use as between such owners.</p> <p>10. Same — Statute of Limitations — Nature of Possession.</p> <p>The statute of limitations does not run upon a scrambling possession. The use must be adverse, exclusive, .and uninterrupted under a claim of right, and the gradual and Imperceptible encroachment by subsequent appropriators upon the rights of a prior appropriator will not permit the invoking of the statute as against the latter.</p> <p>11. Same — Abandonment.</p> <p>The provisions of the statute of Wyoming that failure to use water appropriated for a period of two years is to be construed as an abandonment applies to a voluntary act, and not to an enforced discontinuance.</p> <p>12. Same — Enforcement of Rights — Laches.</p> <p>One is not guilty of laches who complains of hostile diversion, and receives water when the same Is turned down to him from time to time, or who is prevented from the use of water appropriated by him by gradual diminution through hostile diversions, unless such diversions continue with the acquiescence, knowledge, and consent of such appropriator.</p> <p>13. Same — Estoppel.</p> <p>One who goes upon a stream and diverts water must take notice of all prior appropriations, whether made pursuant to statutory notice or otherwise». The volume of water in the stream and the visible supply is notice of all waters appropriated, and where one takes subsequently to another of the waters of a stream he cannot invoke the doctrine of estoppel as against a prior appropriator on the ground that sncli appropriator has stood by and permitted him to build up improvements on the strength of diversion of the water, for the reason that one is as much estopped as the other; the facts being within the knowledge of both.</p> <p>34. Same — Damages.</p> <p>Where various persons along a si ream divert water in violation of the rights of a prior appropriator, without any community of action, nothing other than nominal damages can he awarded in a suit in equity to restrain the defendants from diverting the water.</p> <p>(Syllabus by the Court.)</p>

<p>1. CORPORATIONS — FOREIGN CORPORATIONS-COMPLIANCE WITH STATE LAWS — • Contracts.</p> <p>Code Towa 1897, § 3637, requires foreign corporations doing business within the state to file copies of their articles of incorporation with tins Secretary of State, ancl otherwise comply with the law relating to domestic corporations, etc.; hut: section 3636 declares that no person or persons acting as a corporation shall be permitted to set np a want of legal organization as a defense to any action against it, nor shall any person sued on a contract made with such corporation be permitted to set up a want of such legal organization in his defense. Hold that, where a foreign corporation was acting as a corporation in Iowa at the time it made the contract sued on with defendant, it was no defense to an action thereon that plaintiff had not complied with section 3637.</p> <p>[Ed. Note. — For cases in point, see vol. 12, Gent. Dig. Corporations, §§ 2561-2563.)</p> <p>2. Same.</p> <p>A defendant sued by a corporation on a contract made with it cannot question the right or authority of the corporation to make the contract or to transact business in the state in which the contract was made; such question being within the exclusive province of the state.</p> <p>[Ed. Note. — For cases in point, see vol. 32, Cent. Dig. Corporations, §§ 2536-2348.]</p> <p>g. Same — Judgment oe Ouster.</p> <p>In a direct action by a state to oust a foreign corporation from doing business therein without complying witli the state law regulating foreign corporations, judgment of ouster will not be awarded if the corporation complies with such law within a reasonable time.</p>

<p>1. Contracts — Building Public Work — Action to Recover Contract Price.</p> <p>A contract for a public work for a city which gave the eiiy the right to stop the work of the contractor if at any time in the opinion of the director of public works he was not complying with the contract, and to complete the work and charge the cost to the contractor, construed, and a provision, requiring the contractor to obtain a final certificate from such director of the completion of the work in accordance with the contract before being entitled to final payment, held not applicable where such right was exorcised and the work completed by the city, and the obtaining of such certificate not a condition precedent to an action by the contractor to recover from the city an alleged balance due him under the contract.</p> <p>IFd. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, § 1308.]</p> <p>2. Same.</p> <p>A contract with a city for the construction of a reservoir gave the city the right, if in the opinion of the director of public works there was undue delay in the work or a failure to comply with the contract in good faith, to stop the work of the contractor and complete the work at his expense; the contractor to be entitled to any excess of the amount due him under the contract above the cost of such completion, and liable for any deficiency. It also contained a provision that any dispute arising between the parties under the contract should be submitted to the director of public works as arbitrator, whose decision should be final and conclusive. Held, that the exercise by such director of the right given him to stop the work of the contractor and the completion of the work by the city was a waiver of the arbitration clause, and that the contractor could not be required to submit the question of the amount due him after the work was completed to the director as arbitrator, but was entitled to maintain an action in the courts therefor.</p> <p>S. Same — Burden of Proof.</p> <p>In such an action the burden does not rest upon the contractor to show the cost of the work done by the city in completing the contract, there being no presumption that such cost exceeded the prices specifically fixed by the contract for the work so done, and being, moreover, peculiarly within the knowledge of the defendant, any excess of cost is a matter of affirmative defense.</p>

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

<p>1. Sai.es — Construction of Contract — Di scription of Property Sold. .</p> <p>Defendants contracted to sell and deliver to plaintiff at agreed prices all the lumber (hey then had on hand at their mill and loading station, which they “estimated” at about 800,000 feet of oak and 300,000 feet of gum. Also their “entire cut” of lumber during the year 1903, “estimated to be 1,500,000 feet, more or less,” of oak, including the stock on hand, and 1,000,000 feet, more or less, of gum. Held, that such contract was not one for the sale of a definite quantity of lumber, but of defendants’ entire stock on bund at their mill and shipping station, much or little, and of whatever quantity they should cut during the year 1903, regardless of departures from estimates, in the absence of fraud.</p> <p>2. Same — Action* for Breach of Contract — Evidence.</p> <p>In an action for the breach of such contract by defendants by their failure to deliver the lumber, evidence offered by them to show the quantity actually cut in 1903 was material on the question of damages, and its exclusion was error.</p> <p>3. Appeal and Error — Error in Exclusión op Evidence — Presumption op Prejudice.</p> <p>Where plain error was committed in the exclusion of evidence on the trial of a case. Hie judgment should be reversed, unless it is clear that the error was not so prejudicial as to exclude every reasonable doubt.</p> <p>4. Evidence — Letter from Agent to Principal — Admissibility Against Third Person.</p> <p>A letter from an agent to his principal, reporting an interview between, the agent and a third person which occurred some time before, is merely a narrative of a past transaction, and is not admissible as independent evidence against such third person, nor to corroborate the testimony of tlie agent.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 351.]</p> <p>5. Witness — Corroboration—Previous Statements.</p> <p>The mere fact that there is a conflict of testimony between two or more witnesses does not authorize the corroboration of one by his former statements.</p> <p>I Ed. Note. — For eases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1085, 1284.]</p>

This was an action by Anderson, a citizen of Iowa, to recover $4,200 from H. Schiffer, a citizen of New York, and Abe Schiffer and I. W. Schiffer, citizens of Colorado, who were alleged to be copartners as H. Schiffer & Bro., and also under the name of the Bank of Alamosa. H. Schiffer was not served with process, and did not enter an appearance in the cause. The evidence showed that he was not a member of the firm, and no judgment was rendered against him.

, Appeals from the Circuit Court of the United States for the Southern District of New York. These causes come here upon appeals by the importers from a decision of the United States Circuit Court for the Southern District of New York (145 Fed. 574) affirming a decision of the Board of General Appraisers, G. A. 5,695 (T. D. 25,353), which sustained the action of the collector.

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

<p>1. Courts — Rules—Discretion in Enforcement.</p> <p>Parties to an action cannot, without the consent of the court, stipulate for the abrogation of rules which are formulated for its own benefit and 'are designed to facilitate the proper discharge of its own duties; when rules of such a character are disregarded, it is discretionary with the court whether it will enforce the prescribed penalty, and, in the absence of gross abuse of such discretion, its order in the premises will be respected on aj>peal or writ of error.</p> <p>[Ed. Note. — For eases in point, see vol. 13, Cent. Dig. Courts, §§ 291, 295; vol. 44, Cent. Dig. Stipulations, § 2.1</p> <p>2. Appeal — Dismissal—Failure to File Briefs.</p> <p>The dismissal of an appeal on the ground that the appellant did not file its brief until nearly three years after the time fixed therefor by the standing rule of the court and by its order made in the cause was within the discretion of the court, and the case was not altered by the fact that the delay was authorized by a stipulation of the parties made without the court’s consent nor because a brief was filed a short time before the dismissal.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. §§ 3129, 3104-3108; vol. 44, Cent Dig. Stipulations, § 2.]</p>

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

Writ of error to review a judgment of the United States Circuit Court for the District of Vermont, entered upon the verdict of a jury in favor of the plaintiff. The material facts are stated in the opinion.

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

•'->■-•. >■ =• -‘.n. On appeal from a decree in favor of Frances M. Barnes, libelant, and against the Minnetonka, for damages sustained by her by reason of the loss of her jewelry, which was, as she alleges, stolen from her while a passenger: oh i/the steamship by one or more of the stewards in the employ of the claimant, the Atlantic Transport Company. ■ The decree was against the Minnetonka in rem in the sum of $5,000 damages and $237.90 costs, and against- claimant in…

<p>In Admiralty. Suit by passengers for damage to baggagé.</p>

<p>Suit in equity to restrain alleged infringement of United States letters patent No.' 717,014, dated December 30, 1903, application filed November 36, 1898, and issued to Universal Brush Company, as-signee of William Morrison, the inventor, for improvements in making brushes. Complainant also asks an accounting.</p>

<p>1. Patents — Expiration of Foreign Patent — Identity op Invention.</p> <p>A prior patent in a foreign country for a manor part of a broad or basic invention is not for the same invention as a subsequent United States patent covering both the minor parts and the broad main invention, within the meaning of Rev. St. § 4887 [U. S. Oomp. St. 1901, p. 3382], and such foreign patenting of a part does not so affect the whole that the expiration of the foreign patent terminates the whole of the American patent including the broad claims.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§'188½-191.]</p> <p>2. Same — Term op Foreign Patent.</p> <p>The provision of Rev. St §4887 [U. S. Comp. St. 1901, p. 3382], that a United States patent shall expire at the same time as a prior foreign patent for the same invention, has reference to the legal term of the foreign patent as appears on its face at the time of the issuance of the United States patent, and the latter is not further limited by the subsequent* lapse or forfeiture of any portion of such legal term of the foreign patent by the failure to comply with a condition subsequent, such as the payment of additional fees at stated Intervals.</p> <p>8. Same — Infringement—Gramophone.</p> <p>The Berliner patent, No. 534,643, for improvements in talking machines, claims 5 and 35, held valid as against the claim that they expired with certain foreign patents, and a preliminary injunction granted restraining their infringement on prior adjudication of their validity.</p>

This is a suit in equity to restrain alleged infringement by defendant of claims o, 6, and 7 of United States letters patent No. 489,682, dated January 10, 1893, and issued to the complainant as assignee of Amandus Metzger, and also for an accounting.

<p>In Equity. Suit for infringement of Claims, 1, 2, 4, 5, 6, and 8, of letters patent No. 508,637, granted to the General Electric Company, November 14, 1893, as the assignee of Henry G. Reist.</p>

<p>In Equity. Suit for alleged infringement of letters patent No. 573,-107 granted to the General Electric Company December 15, 1896, as the assignee of Henry G. Reist.</p>

In Equity. Suit for ■ alleged infringement of claim 1 of letters patent No. 463,704, granted to Albert E. Pareelle, November 24, 1891, and now owned by the complainant.

<p>1. Contempt — Commitment—Expiration of Order.</p> <p>Where accused was committed for contempt for Ms refusal to appear as *a witness before a grand jury and there produce certain records, etc., in response to a subpoena duces tecum, the term during which he could he imprisoned under such order expired on ihe discharge of the grand jury.</p> <p>[Ed. Noie. — For cases in point, see vol. 10, Gent. Dig. Contempt, §§ 25⅜--254.]</p> <p>2. Same — Purging Contempt.</p> <p>Where accused was imprisoned for his refusal to obey a subpoena requiring him to appear and produce records before a grand jury, and lie remained recalcitrant until after the grand jury was discharged, he was not thereby purged of his contempt and was subject to sentence to imprisonment for a specified term.</p> <p>[Ed. Note. — For cases in point, see vol. .10, Cent. Dig. Contempt, §§ 25:5-254.1</p> <p>3. Witnesses — Incriminating Question — Books and Papers — Production.</p> <p>Where accused was subpoenaed to appear before a grand jury, and to produce books, papers, and tiles of a certain linn, of which he was a member, on the investigation of a charge against the members of such firm for conspiracy to defraud the government, accused could not refuse to appear and produce such books and papers because they were self-incriminating. but was bound to produce the records and, after being sworn as a witness, object that the documents produced would tend to his incrimination, and therefore insist on his constitutional guaranty that their contents be not disclosed.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1038-1040. J</p>

<p>Guana Jury — Investigation off Corporations — Right to Require Production oí Books.</p> <p>A corporation may be required to produce its books and papers before a grand jury engaged in -investigating its acts wifhin reasonable limits, and a subpoena which requires the production of its minute books for three years and letter copy books covering a period of three or four months is not too broad and sweeping.</p>

<p>Motion to punish William E. Ransom for contempt for failure to obey a subpoena duces tecum. The motion is made on presentment of the grand jury.</p>

<p>1. Commerce — Rates—Interstate Commerce Commission — Classification— Orders — Burden of Proof.</p> <p>Interstate Commerce Act Feb. 4, 1887, e. 104, § 14, 24 Stat. 384 [17. S, Comp. St. 1901, p. 3164] provides that whenever an investigation shall he made by the commission, it shall make a report in writing, which shall include the findings of facts on which the conclusions of the commission are based, together with its recommendation as to what reparation should bo made by the carrier to any party found to have been injured, and that such findings shall thereafter bo deemed prima facie evidence as to the facts found in all judicial proceedings, field, that where the Interstate Commerce Commission found that a reclassification of laundry soap shipped in less than carloads was unjustifiable, the burden was on the railroad proceeded against,- in a suit by the commission to restrain the enforcement of such reclassification, to show that the facts on which the commission acted were not as found.</p> <p>2. Carriers — Interstate Transportation — Classification — Change op Rates.</p> <p>Where common laundry soap in less than carload lots was assigned to the fourth class in the first classification made under the interstate commerce act, and was voluntarily maintained there by ¿tefendant railroad companies for more than 13 years, defendants were not justified in reclassifying such freight so that it would pay 20 per cent, less than third class rates, without changing the carload classification, on the mere claim that the prior classifications had been inadequate to pay the cost of carriage in less than carload lots, there having been no general reclassification which would proximately apportion the cost of the service equally among the different articles of traffic as between carloads and less than carload lots.</p>

<p>1. Shipping- — Construction op Charter — Pay of Winciimen.</p> <p>By an express provision of a charter party requiring the ship to provide men to work the winches, she assumed the risk of any difficulty, not created hy the charterer, which might prevent the use of her own crew for such purpose at any of the ports where she might rightfully be required to go, and is liable for the cost of extra winekmen which it became necessary to hire because the stevedores at certain ports refused to work with any winchman from the crew, although there were such men who were competent.</p> <p>2. Same — Demise of Ship — Liability foe Cargo Storage.</p> <p>A charter of a vessel at a monthly hire for vessel and crew which provided that “the captain (although appointed by the owners) shall be under the orders and direction of the charterers as regards employment, agency, or other arrangements; and the charterers hereby agree to indemnify the owners from all consequences or liabilities that may arise from the captain signing bills of lading or otherwise complying with the same” constituted a demise of the ship, and not a contract of affreightment with respect to the cargo as to which the charterer became the owner of the ship pro hac vice, and he cannot recover from the owner for a shortage in delivery.</p> <p>rEd. Note. — Demise of vessel, see note to The Del Norte, 65 O. C. A. 225.]</p> <p>3. Same — Hartek Act.</p> <p>The provision of section 2 of the Harter Act (Act Deb. 13, 1893, c. 105, 27 Stat 445 [U. S. Oomp. St. 1901, p. 2946]) making it unlawful for the owner of a ship “to insert In any bill of lading or shipping document any covenant or agreement * * * whereby the obligations of the master, officers, agents or servants to carefully handle and stow her cargo, and to care for and properly deliver the same shall in anywise be lessened, weakened, or avoided,” relates to contracts between carrier and shipper, and does not apply to a charter party by which a ship is demised.</p> <p>[Kd. Note. — Limitation of liability of shipowner, see note to The Longfellow, 45 G. 0. A. 387.]</p>

<p>In Admiralty. Suit in rem to enforce maritime lien,</p>

<p>1. Waters and Water Courses — Suit eor Diversion of Water erom Stream —Defenses.</p> <p>In a suit by an appropriator of water from a stream to enjoin diversion of the water by others above him in violation of his prior right; in which no damages are claimed, it is no defense for one defendant, as against the claim of complainant, that others inferior in right to himself are diverting a larger quantity of the water than is claimed by complainant.</p> <p>2. Courts — Equity—Pleading—Matters Adjudicated on Piea — Availability on Answer.</p> <p>Matters which have been adjudged on a plea not to constitute a defense cannot be again set up in the answer.</p> <p>[Ed. Note. — Eor cases in point, see vol. 13, Cent. Dig. Courts, § 340.]</p> <p>3. Equity — Cross-Bills—Pleading Defensive Matter.</p> <p>In a suit to enjoin diversion of water from a stream, a cross-bill filed by a defendant against the complainant, which merely alleges priority of right in such defendant and diversion by complainant, and prays affirmative relief, sets up only matter of defense, which may properly be taken by answer and is demurrable.</p> <p>[Ed. Note. — Eor cases in point, see vol. 19, Cent. Dig. Equity, § 469.]</p> <p>4. Same. '</p> <p>A defendant cannot by calling his pleading a cross-bill, and praying for affirmative relief, require complainant to answer the same, where the matter set up therein is purely defensive.</p> <p>[Ed. Note. — Eor eases in point, see vol. 19, Cent. Dig. Equity, § 469.]</p> <p>5. Courts — Jurisdiction of Eederal Courts — Ancillary Proceedings on Cross-Bills.</p> <p>Cross-bills between defendants in a suit in a federal court to determine appropriators’ rights in the waters of a stream, of which the court has jurisdiction by reason of the diversity of citizenship between complainant and defendants, are ancillary to the original suit, and within the jurisdiction of the court, without regard to the citizenship of the parties thereto.</p> <p>[Ed. Note. — Eor eases in point, see vol. 13, Cent. Dig. Courts, § 801.</p> <p>Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. T. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.]</p> <p>6. Sake — Federal and State Courts — Pbiobity of Jurisdiction.</p> <p>Where a federal court has first acquired jurisdiction of a suit to determine the respective rights of appropriators of water from a stream, it is its right and duty to protect such jurisdiction against interference, and it will enjoin a defendant from prosecuting a later suit brought by him against the complainant in a state court relating to the same subject-matter.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1315, 1418-1430.]</p> <p>7. Same — Protection of Prior Jurisdiction — Purchaser Pendente Lite.</p> <p>A corporation organized by a defendant in a suit in a federal court, and to which he has, pending the suit, conveyed his water rights, which are the subject of the litigation, takes the same subject to any orders which might be made therein against its grantor, and may be enjoined by the court from instituting and prosecuting a suit in a state court for the determination of the same rights. ,</p>

At Law. Alotions by defendant to set aside the verdict, of the jury and for a new trial in each case, on the grounds that the verdict is contrary to the law and evidence and unsupported thereby, and on the exceptions to the ruling of the judge in refusing to direct a verdict for the defendant at the close of plaintiffs’ case and again at the close of the whole evidence.

Iii Equity. Suit by the Delaware Securities Company, a corporation of the state of Delaware, against the Metropolitan Trust Company of the city of New York, successor to the Atlantic Trust Company, a corporation of the state of New York, as trustee holding certain shares of stock in the Raflin & Rand Powder Company, a New York corporation, actually owned by the said securities company, to compel the said trust company, defendant, to execute and deliver to it a proper proxy…

In Admiralty. Libel in personam for damages alleged to have been done by the steamer Asbury Park, owned by respondent, to several scows of libelant, on different occasions by the heavy swells created by the rapid passage of this steamer while navigating the upper and lower New York harbors or bays, and in passing the Narrows from the one to the other.

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

<p>Common — tugs Meeting — Violation ojt Passing Hules.</p> <p>A tug coining out light from the Atlantic Basin and turning up the Buttermilk Channel at night, field, solely in fault for a collision with a tug passing down with a tow on her side a little to the eastward of the middle of the channel, on evidence which, although conflicting, showed by a preponderance that on coming from the basin she had the other tug on her starboard hand on a crossing course and was bound to keep out of the way, and that after she turned up stream article 1 of the pilot rules applied and required the vessels to pass port to port in conformity to which the descending tug signaled and ported her helm. The latter held not in fault for not stopping and reversing; it being doubtful if the vessels were far enough apart when the danger became apparent to thus avoid the collision, and the plain faults of the other tug being sufficient to account for it.</p>

<p>In Admiralty. Suit to recover charter hire paid.</p>

<p>1. Courts — Fed er at, Courts — Rule oé Decision — Statute of Frauds — State X.aw.</p> <p>Since Hie statute of frauds attacks Hie remedy, tlio lex fori governs, and 1lie law of tlie state on such subject is a rule of decision in the federal courts.</p> <p>[Ed. Note. — For cases in point, gee vol. IS, Cent. Dig. Courts, § 940. State laws as rules of decision in federal courts, see W'ilson v. Perrin, 11 C. C. A. 71 ; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Frauds, Statute of — Contract or Employment--Contract fob More Tuan a Year — Memorandum.</p> <p>Where a contract of eiuplojmont which was not to be performed within a year was evidenced l>5 certain correspondence between the parties which was vague and was declared to be “Supplemented by conversations” or aided by oral testimony to supply defends or omissions, the writing was insufficient as a memorándum to comply with the statute of frauds.</p> <p>[Ed. Note. — For cases in x>oint, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 240, 375.]</p> <p>3. Work and Dabob — Action on Contract — Quantum: Meruit.</p> <p>Where a complaint distinctly counted on a contract of employment which was within the statute of frauds and on a breach thereof, there could be no recovery on a quantum meruit.</p> <p>[Ed. Note. — -For cases in point, see vol. 50, Cent. Dig. Work and Babor, §§ 25, 4-1; vol.. 23, Cent. Dig. Frauds, Statute of, §§ 330, 331, 342.]</p> <p>4. Pijeadinc — Demurrer—Certificate of Counsel. — Motion to Strike.</p> <p>Where a demurrer to a complaint lacked the required certificate of counsel, plaintiff's remedy was to attack such irregularity by motion to strike.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, § 1103.]</p> <p>5. Same — Goon Faith.</p> <p>Where a mere glance at a demurrer to the complaint was sufficient to show that it. was iilod in the best of faith, a statement of counsel that it was not interposed for delay was not required.</p>

<p>Libel — Action BY CORPORATION-PTJiADlNO.</p> <p>A corporation can maintain an action to recover for pecuniary loss as the result of a libelous publication precisely as an individual could in a like situation, and where the publication is libelous per se, and calculated to injuriously affect plaintiff’s business, special damages need not be alleged.</p> <p>[Ed. Note. — Tor cases in point, seo vol. 32, Cent. Dig. Libel and Slander, § 171.]</p>

In Bankruptcy. On report of referee granting discharge. In this case objections were made to the discharge of the bankrupts, who were a firm of stockbrokers in the city of New York. It was found by the referee that they had pledged as security for loans to the firm, made by the Hanover National Bank and the Consolidated National Bank, certain stock certificates, which' were the property of their customers, who had not authorized the pledge.

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

The appellee, the Associates Realty Company, a corporation of Minneapolis, Minn., being the owner of 44 feet of lots 1 and 2, in block 221, in the city of Minneapolis, with the store building thereon, leased the same, on the 26th day of March, 1900. to J. F. Evans, R. W. Munzer, Adam Pickering, A. Y. Hamburg, W. A. Alden and J. F. Elwell, partners under the firm name of Evans, Munzer, Pickering & Co., to run 60 years from the 1st day of April, 1900, at an annual rental of…

The plaintiff in error filed his complaint in the Circuit Court of the United States for the Eastern District of Wisconsin, alleging in substance that he was a citizen of the state of New Jersey, and that the defendant was a municipal corporation having applied for and received its charter from the Legislature of Wisconsin; that within its limits the municipality maintained a certain draw, jackknife, or bascule bridge known as the “Grand Avenue Bridge,” over the Milwaukee…

<p>1. Bankruptcy- — Petition—Amendment—Acts of Bankrupt.</p> <p>An original bankruptcy petition alleged the act of bankruptcy to bo the removal, transfer, and concealment of its property from their designated places of business “with intent to hinder, delay and defraud creditors.” At the trial, the bankrupts admitted their insolvency and testified that they did not remove or transfer any of their stock “with intent to hinder, delay, or defraud creditors,” but that they disposed of all of their merchandise and the cash realized from the sale thereof by transferring it to certain of 1heir creditors in payment of alleged debts due them. 7telé, that It was not an improper exercise of the trial court’s discretion, after setting aside a verdict in favor of petitioners and granting the bankrupts a new trial, to permit petitioners to amend their petition by alleging as acts of bankruptcy that the bankrupts removed and sold their merchandise and assets and transferred the same to various creditors with the intent to prefer them.</p> <p>2. Same — -Amendment Nunc Peo Tunc.</p> <p>The original petition having been filed within four months after the making of such transfers, it was proper for the court to permit the amendments, which were not filed, until after the four months had expired,- to be filed nunc pro tunc as of the date of the filing of the original petition.</p>

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

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>This is an action on a policy of life insurance issued on October 4, 1895, to J. D. McDougald for $10,000, payable to his estate on his death. Prior to his death, which occurred November 17, 1898. he assigned said policy to his sister-in-law, Mrs. Margaret McDougald, as security for an indebtedness, which, after' his death, was assumed by his widow (plaintiff iu error).</p> <p>The policy provides that: “The company further agrees that this policy shall be incontestable after it has been in force one full year from the date of the execution of this contract if the premiums have been duly paid as provided herein. This contract is made in consideration of the written application for this policy, which is hereby made a part of this contract, and in further consideration of the sum of six hundred and thirty-nine dollars and-cents, to be paid in advance (being the premium for two years’ term insurance), and of the payment of four hundred and sixty-five dollars and - cents (being the life premium) on the thirtieth day of June in every year thereafter during the continuance of this policy. The benefits and provisions placed by the company on the next page are conditions precedent and are a part of this contract. * * * ”</p> <p>Among the benefits and provisions of the policy which are referred to as conditions precedent are the following: “If any premium is not paid on or before the day when due. this policy shall become void, and all payments previously made shall remain the property of the company, except as here-inaftor provided. A grace of one month will be allowed in payment of subsequent premiums after this policy shall hare been in force three months, subject to an interest charge at* the rate of 5 per cent, per annum for the number of days during which the premium remains due and unpaid. During the month of grace this policy remains in force, and the unpaid premium, with interest as above, remains an indebtedness to the company, which will 1)0 deducted from the amount payable under this policy if the death of the insured shall occur during the month, 'this policy will be reinstated on written appliealion therefor within six months after nonpayment of any premium, subject to evidence of good health satisfactory to the company, and payment of premiums to date of reinstatement with interest at the rate of 5 per cent, per annum. * * * This policy cannot be forfeited after it shall have been in force three full years, as hereinafter provided.” At the timo the policy was Issued ¡McDougald gave his note in payment of the two-year premium, but never i>aid the note. The annual life premium was never paid in whole or in part.</p> <p>The answer of the defendant in error seis up nine separate defenses. In tile fifth it is alleged: ‘‘(1) That on the tilth day of September, 1895, at the city of Stockton, within this district and state of California, one John D. McDougald made written application to defendant for the issuance and delivery to him of a policy of insurance upon ids life, in which application said John D. McDougald expressly contracted and agreed with defendant that if said policy should be issued and delivered to him, no suit should be brought against defendant after two years from the time when a cause of action should have arisen thereon, nor after two years from the time of said ax>plicant’s death. (2) That on the 4 th day of October, 189,I, in compliance with said application, defendant made, executed and delivered to said John D. McDougald and the latter accepted the policy of life insurance applied for, * ⅞ ⅞ but said policy was so made, executed, and delivered as of, and intended and considered by the parties thereto as commencing on (he JOth day of June, 1S95, at the request of said John T>. McDougald, and in order that ho might thereby secure a lower rate and premium upon said policy than if said policy commenced to run at its date aforesaid. (3) Defendant denies that said John D. McDougald or the alleged assignee of said policy. Mrs. John D. McDougald or plaintiff herein, or they or either or any of them, have or has duly or at all performed or complied with all or any of the conditions or provisions of said policy, or any thereof, upon their or each of their part to ho kept or performed. (4) That more than two years have elapsed from the time that the alleged cause of action arose which is sot forth in the complaint herein to the time when the above entitled action was brought, and the same is therefore barred by the provisions of said application hereinbefore referred to.” The court rendered judgment in favor of defendant.</p> <p>ft is assigned as error: (1) That the Circuit Court “erred in deciding that the first life premium referred to in the complaint became due and payable by its terms on June .'50, 1897, or within, or at the expiration of .‘>0 days thereafter, or at any time prior to June 80, 1898, or within, or at the expiration of 30 days thereafter; (2) that the court erred in deciding that the New York notice law, as amended by the act of April 8, 1897, is applicable to the policy sued on, and erred in deciding that the act of October 3, 1892, was not applicable to said policy.”</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of California.</p> <p>The appellees commenced this suit on the 4th day of April, 3904, in the United States Circuit Court for the Northern District of California, against the appellant, then doing business under the corporate name of Wj. W. Adams & Co., alleging in their bill, among other things, in substance, that the complainants and their predecessors in interest hare continuously for a period of over 70 years been engaged in the manufacturing and selling of brushes throughout the United States, under the firm name and style of .T. J. Adams & Co.; that by reason of the care, skill, and fidelity used by the complainants and their predecessors their brushes have acquired a great reputation throughout the United States, so that they are. and for many years past have been, universally known and described by the trade and users of brushes throughout the United States simply as the “Adams Brush,” and that the production and sale of their brushes has from time to time greatly increased in magnitude, and that a large demand for them has been created and exists tinder and by the name of the “Adams Brush” throughout the United States, and elsewhere, which is a source of great profit to the complainants; that in order that their brushes should be universally known and recognized, the complainants and their predecessors have been in the habit of stamping upon them either the word “Adams” or the words “J. J. Adams,” and that those words appearing upon a brush are now, and for many years have been recognized by buyers and consumers throughout the United States as indicating “The Adams Brush” so-called, and as the product of the complainants and their predecessors exclusively. That for more than 70 years the complainants and their predecessors in business have held and enjoyed exclusively the reputation of being the makers of the “Adams Brush,” and have been in the sole and undisturbed possession and enjoyment of the use of the said trade-names and trade-marks “Adams” and “J. J. Adams,” and that their exclusive rights in the jiremises have been universally admitted and recognized by the trade and public, without dissent, so that when in a few instances there has been a use of the said trade-names or trade-marks by others, such use has been speedily discontinued on demand, or suppressed and enjoined by legal proceedings: that in the year 3902 the defendants Emeric-k, Williams, Maunder, Hill, and William W. Adams, were severally engaged as dealers and jobbers in or salesmen of articles of merchandise in connection with which brushes are commonly sold, and were each and all fully informed of the great reputation of ihe “Adams Brush,” and the large trade therein enjoyed by 1he complainants, and that the defendants wrongfully and fraudulently intending to engage in the business of selling brushes as and for ■ the “Adams Brush,” but not manufactured or sold by the. complainants, on or about August 2. 1902, organized a corporation under ail'd by virtue of the laws of Ihe state of California, ostensibly, as declared by the articles of incorporation, “to do a general mercantile business, to buy and sell goods of all kinds and classes, to enter, buy, deal in, and mortgage real estate, to use, deal in, buy, and speculate in stocks, bonds and other securities.” but in reality to trade upon the reputation of the complainants, and fraudulently abstract from them a largo part of good will of their trade, and that the defendants, in order to mislead the public and consumers, and to cause confusion and mistake in the minds of the public and of the trade, and in order that the public and consumers might, by reason of. the similarity of the two names be misled to purchase their product supposing the same to he the complainants' manufacture, adopted the corporate name of W. W. Adams & Co.; that the defendant W. W. Adams was given by the other defendants five shares of tiie capital stock of that corporation, in order to exhibit some color of right in the adoption of said corporate name; that the defendant W. W. Adams & Co. is the corporation thus organized and existing, and that it carries on the business of selling brasiles throughout the state of California and elsewhere which are stamped with the words “W. W. Adams & Co.” in fraudulent imitation of the comjilainants’ trademark and trade-name, and which are sold ns the “Adams Brush,” but are not manufactured or sold by or for the complainants.</p> <p>The complainants prayed, among other things, for a writ enjoining the defendants, and each of them, from directly or indirectly selling, offering for sale, or putting up any brushes not made by. the'complainants upon which shall be placed, stamped, or applied in any form or manner, the word “Adam,” or- the word “Adams,” or the words “J. J. Adams,” or the words “W. W. Adams,” or any word like or substantially like the word “Adams” in sound or appearance, and from in any' form or manner making use of the word “Adam,” or “Adams,” or any word substantially like the words “Adams,” in connection with the manufacture or sale or offering for sale, of any brushes not made by the complainants; that the defendants be directed to forthwith apply to the superior court of the state of California in and for the county in which the articles of incorporation of the defendant W. W. Adams & Co. were originally filed or in which the property of such corporation is situated, for a change of its corporate name to another name in no manner like the firm name of the complainants, and to diligently pursue such application until they shall obtain a proper order of such court authorizing such change of name, in pursuance of the statutes of that-state; that the defendants be required to deliver up to be destroyed all brushes in their possession or under their control in any manner designed to imitate the complainants’ brushes, or capable of being substituted or sold as and for the complainants’ brushes, and that an accounting be had and the defendants be adjudged to pay all such damages and profits to the complainants as may be shown, with costs of suit.'</p> <p>Before the time fixed for the appearance of the defendants in the suit, negotiations for a settlement thereof were initiated by the defendants and culminated in the following written stipulation, to wit: “It is hereby stipulated and agreed that this suit shall be settled in the manner following; that 'is to say: (1) The defendant corporation will immediately commence, and diligently pursue proceedings to change its corporate name from W. W. Adams & Co. to some name which shall not contain the word ‘Adams’ or ‘Adam.’ (2) The defendant corporation will, in such manner as shall be satisfactory to complainants, obliterate or remove from all brushes that it now has in stock the words ‘W: W. Adams & Co.’ and the words ‘Adams’ or ‘Adam.’ (3) The defendant corporation will furnish to complainants a true ■list of the names and addresses of all the manufacturers of the brushes heretofore bought by it, and of all its customers for brushes heretofore sold by it. (4) The defendant corporation will furnish to the complainants a true list of the names and addresses of all its officers and stockholders. (5) The defendant corporation will confess the bill of complaint by failing to appear in response to the subpoena. (6) The complainants shall thereupon take a decree in all respects in accordance to the prayer of the complaint, but immediately on the entry of the decree will mark the same fully satisfied in respect to damages, profits, and costs.”</p> <p>The record shows that the appellant, who was defendant in the court below, procured; its' corporate name to be changed from “W. "W. Adams & Co.” to “Emeriek & Duncan Company,” and removed from all of its brushes in stock the words objected to by the complainants, furnished to the complainants a list of appellant’s officers and stockholders, and a “list of manufacturers whom we are buying paint brushes from,” and of its customers who had bought'brushes from it, which list of manufacturers, however, did not show, as the appellees claim the stipulation required it to do, the names of the manufacturers who had stamped “W. W. Adams & Co.” upon the appellant’s brushes. The list was conveyed to the complainants’ solicitor by letter dated September 19, 1904, and the defendant, having confessed the bill of complaint by failing to appear in response to the subpoena, an interlocutory decree was entered on the 7th day of October, 1904, for the complainants, granting the relief prayed for by them, and referring the matter td the standing master to fake an account.</p> <p>A copy of the interlocutory decree, and of the letter containing the list. of the stockholders and directors of the defendant W. W. Adams & Co., and the list of manufacturers from whom that company had bought its brushes, having been sent to the complainants by its solicitor, the complainant? objected to such list, upon tlie ground that it did not state that such manufacturers had supplied the defendant company with brushes stamped “W. W. Adams & Co.,” whereupon the solicitor of the complainants demanded of the appellant a list of the manufacturers who had stamped its brushes “W. W. Adams & Co.,” with which demand the appellant refused to comply, claiming. among other tilings, that it had already fully complied with the requirements of the stipulation. The complainants thereupon, on the 10th day of November, 1904, proceeded with an accounting before the master, in accordance with the provisions of the interlocutory decree, whereupon the following proceedings were had:</p> <p>“Mr. Jacobs (Counsel for Defendants) : If your honor please, as a preliminary objection to these proceedings, I introduce in evidence this stipulation by Mr. Wright. The part thereof to which I particularly desire to refer (Heads clauses 5 and 6 of 1he stipulation). Now, if the decree is here, your honor will see that the only thing l'or which it was referred to your honor was: ‘That it be referred to E. II. Hancock, Esq., standing master in chancery in this court, to take an account: of the damages which complainants J. j. Adams & Oo„ have sustained and the profits which defendants W. W. Adams & Co., its officers and stockholders, have made by the practices set forth in the bill of complaint, and report the same to this court:, and that said complainant shall have and recover of and from said defendant the damages and profits which shall be found by the said master, and have execution Therefor.’ This decree was made, of course, without the filing of this stipulation. This stipulation has never been filed, as a matter of fact. I will file it now. So that the filing of this stipulation, the genuineness of which is admitted, renders futile, nugatory, and valueless and a waste of lime, the taking of testimony that your honor alone is authorized to take. In other words, your honor is authorized to do that and nothing else. Dales’ Equity Procedure, 746. (Argument.) The situation is simply this: I ask at this time a continuance for a week; that is, past the first law and motion day of the court, at which time T will ask the court to direct the counsel to comply with this stipulation, and order a satisfaction entered in respect to the damages, costs, and profits; and I think the request is reasonable under the circumstances. The stipulation was not before the court when it made the decree, otherwise possibly the decree might have been different. But I do not even question that. I do not care what the form of the decree is. The master is not going to take his time and the time of the parties doing a futile act. (After argument by Mr. Wright.) Mr. Wright, do you admit that the first provision of the stipulation has been complied with? That is, that the corporate name has been changed?</p> <p>“Mr. Wright: Yes, that lias.</p> <p>“Mr. Jacobs: Do you admit that the second provision of the stipulation has been complied with; that is. Hie obliteration of the name of ‘W. W. Adams & Co.,’ and the words ‘Adams’ and ‘Adam’ from the brushes?</p> <p>“Mr. Wright: I have no means of knowing whether that has been complied with or not.</p> <p>“Mr. Jacobs: Don’t you know that your company saw that it was done?</p> <p>“Mr. Wright: I do not.</p> <p>“Mr. Jacobs: Did not Mr. Brawner so inform you?</p> <p>“Mr. Wright: I decline to answer any such question. It is not a proper question to put to me. But I will say that he did not inform me to that effect. Mr. Brawner informed me to the effect that he had seen the defendant corporatioji in the act of apparently removing the name from some brushes, but Mr. Brawner never informed me as to whether that portion of the stipulation had been complied with. That is a frank answer.</p> <p>“Mr. Jacobs: The third is that the defendant corporation will furnish to file complainants a true list of the names and addresses of the manufacturers of brushes heretofore bought by the defendants and the brushes heretofore sold by it. Now do you deny that the corporation defendant furnished you a list which purported to be a true list ?</p> <p>“Mr. Wright: They furnished me a list which clearly, upon its face, was an evasion.</p> <p>“Mr. Jacobs: llave yon that list here?</p> <p>“Mr. Wright: I think I have.</p> <p>“Mr. Jacobs: Will you be good enough to produce it?</p> <p>“Mr. Wright: No, I decline to produce it, on the ground that you are intending to make a motion in court, as you say, and I will produce it there and explain my reasons. I will say, furthermore, that these questions are answered by me purely as a matter of civility. •</p> <p>“The .Master (after argument) : I take it that that stipulation is to be considered by the master as one whole. It is by virtue of a decree that I am to take an accounting. By virtue of the last clause of that stipulation I am to do a useless act in taking the accounting if that stipulation has been carried out. Now, if, in fact, each and every of the objects incorporated in the stipulation has not been carried out in good faith, the stipulation in my judgment has and no part of it has, any binding effect, and therefore the master would not be doing a useless act in proceeding with the accounting.</p> <p>“Mr. Wright (after argument) : Mr. Duncan, the president of the defendant corporation, and Mr. Emeriek, the secretary, each requested me to take proceedings upon the ground that they did not like to disclose the names of the manufacturers. They asked me to take these proceedings to force a disclosure of the names.</p> <p>“The Master (after argument) : I will continue the case for one week, and, in the meantime, counsel can take such steps as they may deem advisable. At that time, unless I am otherwise directed by the court, I shall proceed with the accounting. (It is stipulated by the respective parties that if the master is still authorized to proceed with the accounting after the making of such motion before the court as counsel for defendant proposes to make, that the master shall proceed with such accounting within five days after the court shall have decided the motion made by defendant’s counsel, without notice except notice of the decision of the motion.)</p> <p>“Mr. Jacobs: If your honor please, if Mr. Wright is correct in his understanding as to the attitude of the parties defendant, I will merely not appear, but will let the proceedings be had before the master in my absence.</p> <p>“Mr. Wright: I would prefer that your honor postpone the hearing to a day certain, and direct the witness to be here, unless otherwise relieved by order of. court.</p> <p>“The Master: Then let the witness be sworn.”</p> <p>The secretary of the defendant corporation was thereupon sworn as a witness, and the hearing continued and resumed on the 21st day of November, 1904, but without any further appearance on the part of counsel for defendants. The testimony of the secretary of the defendant corporation before the master disclosed the names of the manufacturers who had stamp'ed “W. W. Adams & Co.” on the brushes bought by them and also that for the 4,505 5-12 dozen brushes marked “W. W. Adams & Co.,” which it had bought it paid $16,690.68, of which brushes it sold 3,809 5-12 dozen for $19,286.53, and that the defendant corporation paid the freight on the brushes so purchased by it, amounting to 5 per cent, on their cost.</p> <p>Concluding his testimony before the master, the secretary of the defendant corporation was asked by counsel for the complainants: “Q. Have you made a statement of the profits of W. W. Adams & Co., the defendant corporation, upon all the brushes sold by you which bore the name ‘W. W. Adams & Co.?’ A. Yes, sir. Q. Have you got that figure? A. Yes. sir. Q. How much was it? A. Four thousand one hundred and ninety-one dollars and sixty-five cents. Q. Then I understand you to say you admit the defendant corporation W. W. Adams & Co. made a profit of how much? A. Four thousand one hundred and ninety-one dollars and eighty-five cents. Q. On the brushes sold by it bearing the name ‘W. W. Adams & Co?’ A. Cross (gross) profit; yes, sir.</p> <p>“Mr. Wright: Complainant does not ask the master to consider the question of damages other than profits.”</p> <p>The proceedings before the master were concluded November 30, 1904, and. on the 7th day of December, thereafter, he made his report, stating the profits to be $4,468, and that the appellees had waived an inquiry as to damages. No exception to tlie master's report was filed, nor was the matter in. any war brought to the attention of the court by either party until April 25, 1905. Some time after the time within which exceptions to the report might have been filed, counsel for the appellees demanded of the appellant payment of the costs of the accounting, amounting to $72.90, but not the amount of profits reported by the master.</p> <p>On the 25th day of April, 1905, complainants’ counsel gave notice of a motion for a final decree in the cause for the complainants and against the defendants, for the sum of $4,468, the profits reported by the master to have been made bv the defendants by the practices set forth in the complaint. and for the costs, and to be relieved from that part of the stipulation whereby the complainants agreed immediately on the entry of the decree to mark the same fully satisfied in respect to damages, profits, and costs; so that notwithstanding such stipulation, the complainants might have execution for the profits found by the muster, and costs, the grounds of such motion being: “(1) That the master's report in respect to such profits has been on file more than 30 'days, and no exceptions thereto have been filed. (2) That the stipulation of the complainants to waive damages, profits,, and costs was made on the faith of statements by the defendants that they had made little or no profits by the practices set forth in the hill of complaint, which statements were untrue. (3) That the stipulation -of the complainants to waive damages, profits, and costs was made on the faith of a promise by the defendants to furnish a true list of the names and addresses of all the manufacturers of brushes theretofore bought by the defendants bearing the name ‘Adams’ or ‘W. W. Adams’ stamped on them; which promise the defendants afterward refused to perform. (4) That by the refusal of the defendants to perforin their said promise the complainants have been subjected to unnecessary costs and charges. (5) That there is a failure of consideration for the stipulation made by complainants.”</p> <p>The appellants did not, either in making the motion or at any time, restore or offer to restore or make compensation for anything they had received under the stipulation; or to set aside the decree entered upon the default provided for by the stipulation. The motion was granted without conditions, and a final decrecí entered awarding the injunction as prayed for, and judgment for the profits reported by the master, and providing “that the complainants * * * be not required to enter satisfaction of this decree as provided by the sixth clause of the stipulation filed herein upon the 3d day of December, 3904.”</p> <p>The appeal is from that decree.</p>

This is an action upon a fire insurance policy to recover for a loss alleged to have been sustained thereunder.

<p>1. Internal Revenue — Violation or Raw — Forfeiture of Spirits — Stamps.</p> <p>Rev. St. § 3334 [ü. S. Comp. St. 190.1, p. 21.83], declares that all distilled spirits forfeited to the United States, sold by order of court, or under process of distraint, shall be sold subject to tax, and the purchaser shall immediately, and before he takes possession, pay the tax thereon; that, if any tax-paid stamps are affixed to any cask or package so condemned, the stamps shall be obliterated and destroyed before sale. Held that, where stamped liquors were forfeited for a violation of the internal revenue law, the forfeiture included the stamps as well as the property.</p> <p>2. Same — Sale of Property — Application of Proceeds.</p> <p>The proceeds of a sale of spirits forfeited to the United States for violation of the internal revenue law belong exclusively to the government, and cannot be applied to the payment of the tax thereon.</p> <p>8. Samf,.</p> <p>Distilled spirits are subject to forfeiture for misconduct of the distiller. even though the tax on the same may have been paid in full.</p> <p>4. Same — Sale of Unstamped Spirits — Forfeiture—Purchase of Stamps by Buyer — Redemption.</p> <p>A distiller sold certain casks of unstamped spirits to plaintiff, which were then in the government warehouse, and on March 10, 1902, plaintiff paid the tax on the spirits, but before the attachment of stamps the spirits were seized on the same day for violation of the internal revenue law by the distiller, discovered March 4, 1002, after which the spirits were forfeited .to the government and sold. Held, that as Act Aug. 27, 1894, e. 349, § 48, 2S Stat. 563 [ü. S. Oomp. St. 1901, p. 2109], requires the payment of the tax by the distiller and the issuance of stamps to him, plaintiff was not entitled to recover from the United States the internal revenue tax so paid.</p>

<p>Appeal from the District Court of the United States for the Eastern District of' New York.</p> <p>On appeal from an order of tlie District Court for the Eastern Disiriet of New York, dated June 29, 1905, directing the distribution of a fund of SG,-802.77, held by the trustee in bankruptcy, which fund represents the share of the bankrupt in the estate of his father. The referee in bankruptcy to whom, as .special commissioner, the claims of the various parties were referred, reported that the following creditors had presented secured claims in the following chronological order: .1. Alfred B. Ililton, judgment for $1,-097.90, docketed in Queens county, January 21, 1897. 2. William B. Hewlett. assignment for $3,000, October 8, 1897. 3. Francis Gilman, assignment for $5,000. November 8, 1901. 4. Mary It. King, assignment for $1,000. February 14, 1902. 5. William J. Jenner, assignment for $1,120, August 15, 1903.</p> <p>The claims of Hewlett, King and Jenner were allowed by tlie referee and tlie court. Tlie Hilton claim was disallowed by the referee but was allowed by tlie court. The Gilman claim was disallowed by the referee but was allowed by Hie court in tlie sum of $1,800. The appeal presents only the question of the validity of the Hilton and Gilman claims. If these claims are defeated tlie appellant, Mary R. King, will realize the full amount of her claim.</p> <p>The opinion of the District Court, where the important facts are stated, is reported in 138 Eed. (50(5.</p>

<p>1. Master and Servant — Injury to Servant — Fellow Servants.</p> <p>Plaintiff was employed by defendant as a stationary engineer in its car shops, where he was under the orders of a chief engineer, who called him-from his regular duties to another part of the works to assist in testing a new electric motor. Plaintiff had no knowledge of such ma-chiries, but the chief engineer had and directed the work. The motor became heated, as the evidence tended to sIioav, from the presence of water therein, which was a recognized source of danger; but the chief engineer, although having knowledge of sucli fact, again turned on the current, when an explosion took place, by Avliich plaintiff was injured. Held, that the rule of fellow servants did not apply, nor did plaintiff assume, the risk from such danger, which was unknoArn to him and not in his regular line of employment, but that the duty of seeing that the motor was free from any dangerous defect which was discoverable by reasonable inspection was a positive one of the master, Avhich plaintiff had the right to assume would be performed, that in such respect the chief engineer was defendant’s representative, for whose negligence, if proved, it was responsible to plaintiff.</p> <p>[Ed. Note. — For eases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 422, 016.]</p> <p>2'. Appeal — Reservation oe Objection — Objection Evidence— Sufficiency.</p> <p>A general objection to a question asked a witness as “improper ail'd immaterial” is insufficient as a basis for an assignment of error, where ihc evidence called for is not so clearly incompetent from its essential nature upon any issue in the case that further specification of objection is unnecessary.</p> <p>I Ed. Note. — For cases in point, see vol. 2. Geni. Dig. Appeal and Error, § 1141 ; vol. 46, Cent. Dig. Trial. §! 104-196, 19!).!</p>

<p>1. Trial — Tmal by Court — General Exception After Judgment Eutile.</p> <p>An exception “to each, all, and every of said finding, conclusion, and judgment,” after a judgment has been rendered on a special finding of facts made by tlie court at the close of a trial before it, is futile, in the absence of any objection, exception, or request for a declaration of law.</p> <p>2. Appeal — Sufficiency. op Facts Found to Sustain Judgment — Necessity oe Exception.</p> <p>The question whether or not the facts found by tile court sustain the judgment upon them arises on the face of the record, and no objection or exception is necessary to present it to an appellate court.</p> <p>3. Trial — Finding oe Sueerotent Ultimate Facts Not Avoided by Finding of Otimcr Facts Not Inconsistent.</p> <p>Where tlie finding by the court of tlie ultimate facts sustains the judgment mid clearly shows that it is based oil all the evidence and not on evidentiary or other facts it contains alone, and tlie hitter facts are not necessarily inconsistent with the ultimate facts found, they present no ground for a reversal of tlie judgment.</p> <p>4. Sa.ub — Finding Not Affected by Recital of Facts in Opinion.</p> <p>Where tlie court lias made a separate special finding of facts upon which the judgment lias been rendered, the recital of facts in the opinion of tlie court constitutes no part of the finding and cannot be invoiced to assail it.</p> <p>(Syllabus by tlie Court.)</p>

<p>1. Trial — Instructions—Exiuucssion ok Otunion as to Facts.</p> <p>The charge of the court in an action against a street railroad company to recover for an injury to a passenger by being thrown to the ground by tlie sudden starting of the car when she was in the act of stepping off, construed, and held not. to withdraw the question of defendant’s negligence iron; the jury, but to leave its ultimate determination to them, merely expressing an opinion as to the effect of the evidence.</p> <p>2. Caretkrs — Action for Injury to Passenger — Evidence oe Negligence.</p> <p>Evidence considered and held to conclusively establish the negligence of ■ a. street railroad company in starting a car suddenly while a passenger was alighting therefrom.</p>

Appeals from the District Court of the United States for the Southern District of New York.

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

<p>1. Seameit — Whaler Under -Lay Contract — Validity of Release.</p> <p>A seaman who shipped on a whaling voyage under a lay contract, but to whom no accounting was made by the owner of the vessel on the completion of the voyage, will not he held bound by a release given by him some time afterward, when greatly intoxicated, on the payment to him of an inadequate sum in settlement for his share of the catch.</p> <p>[3¡¡d. Note.- — For cases in point, see vol. 48, Cent. Dig. Seamen, § 120.]</p> <p>2. Same — Failure oe Shipowner to Divide Product oe Yoxaoe — Liability eor Value oe Seaman’s Share.</p> <p>Where the owner of a whaling vessel, on her return from a voyage on which libelant served as a seaman under a lay contract, shipped away the product taken without making a division, it thereby became liable to libelant for the reasonable value of his share.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Seamen, §§ 137-100.J</p>

<p>1. Banks and Banking — Banker’s Lien — Statutes—Construction.</p> <p>The lien given to a banker by Rev. St. Idaho 1887, § 3448, declaring that a banker has a general lion dependent on possession on all property in his hands belonging to a customer for the balance due him from such customer in the ordinary course of business, is limited to property taken by a banker in the usual course of the banking business, such as banks are in the habit of dealing in. or in taking on deposit, or for collection, or otherwise, as notes, bonds, stocks, and other choses in action, and does not include stocks of merchandise, etc., which cannot conveniently pass into the actual possession of the bank.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig, Banks and Banking, § 673.]</p> <p>2. BANKRUPTCY — TRANSFERS-PREFERENCES-VAULHITY.</p> <p>A bankrupt, while insolvent, and while making other like transfers of his property for a like purpose, about 10 days prior'to the filing of a petition in bankruptcy by his creditors, asking that he be adjudged a bankrupt, which was done a short time after, transferred certain of his property to certain banks, without any new consideration, which operated to give them a preference over other creditors. Meld, that the transfers were unenforceable.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, l§ 2-17 — 285.]</p>

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

<p>Mandamus — Grounds fob Wp.it — Enforcement of Compliance with Mandate.</p> <p>Where a decree in bankruptcy entered by a District Court upon a mandate from the Circuit Court of Appeals clearly does not conform to such mandate, and a party is without other remedy to preserve rights which have been sustained by a decision of the Supreme Court to enforce which the mandate was issued, the Circuit Court of Appeals may enforce a compliance with such mandate by mandamus requiring a modification of the decree.</p> <p>[Ed. Note — For eases in point, see vol. 33, Cent. Dig. Mandamus, § 121J</p>

<p>Appeal from the Circuit Court of the United States for the- Eastern Division of the Northern District of Illinois.</p> <p>On motion to vacate order allowing appeal.</p>

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

<p>PATE3frS — iA'FKtNGEJiENT—MlEBOHS.</p> <p>The Wright & Curry patent No. 631,033, for a mirror Is not so limited by the prior art as to require it to be given a narrow construction and is entitled to a fair range of equivalents. Also, held infringed.</p>

<p>Patents — Tnttbtngjcment—Sewage Apparatus.</p> <p>The Glover patent No. 559,522 for a sewage apparatus reconsidered and Jw7d not to cover the principle of septic treatment of sewage, and not infringed by an apparatus using a septic tank.</p>

<p>Patents — Infringement—Brush.</p> <p>The Shepherd patent, Ho. 001,405, for a brush having a reticulated back, the openings in which extend between the bristles having the greatest diameter at the rear of the brush “and decreasing in diameter to the face thereof” is limited by the prior art and by the proceedings in the Patent Office to a construction in which the openings so decrease in diameter from the rear to the front of the brush back, and is not infringed by a brush in which the openings are of uniform diameter, ' except for a bevel at the back extending but a short distance.</p>

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

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

<p>Rnlc. on Receiver to Pay over Money.</p>

<p>On Motion to Vacate Attachment.</p>

<p>Attachment — Vacation—Motion by Claimant op Property.</p> <p>A third, person, claiming ownership of a fund in a bank attached as the property of a defendant, through a transfer to him of the certificate of deposit issued for the same, may properly intervene in the action, and assert his claim by a motion to vacate the attachment as to such property; but the attachment will not be vacated on such ground on ex parte affidavits.</p>

<p>Discovery — Ownership oe Stock in Corporation — Bint, by Receiver.</p> <p>A receiver for an insolvent corporation who lias been ordered by the court to collect an Installment due from stockholders for the benefit of the creditors ⅛ entitled to maintain a bill of discovery against a broker, wlio as agent purchased certain of the stock for an undisclosed principal, to compel a disclosure of the real ownership of such stock to enable him to bring a suit for the collection of the assessment.</p>

<p>Indictment for Conspiracy to Defraud the United States by Presenting False Claims, etc. On pleas of Benjamin D. Greene and John F. Gaynor.</p>

<p>On 'Special Pleas of Defendants and Demurrer Thereto.</p>

<p>1. Embezzlement — Public Money of United States — Scope of Statute.</p> <p>Rev. St. § 5497 [U. S. Comp. St. 1901, p. 3707], extends the crime of embezzlement of public money to “every * * * person * * * who uses, transfers, converts, appropriates, or applies any portion of the public money for any purpose not prescribed by law.”</p> <p>[Ed. Note. — For eases in point, see vol. 18, Cent. Dig. Embezzlement, §§ 2A-29.]</p> <p>2. Indictment — Sufficiency of Averment — Fugitives from Justice.</p> <p>An averment in an indictment that the accused are “fugitives from justice” is sufficient, without further specification, to put them upon notice of the charge which the government means to prove.</p> <p>3. Embezzlement — Indictment—Description of Offense.</p> <p>An indictment for embezzlement of public money considered, and held to sufficiently describe tbe offense charged.</p>

<p>On Motion to Consolidate Indictments.</p>

<p>1. Conspiracy- — Criminal Prosecution-Evidence.</p> <p>On the trial of defendants, charged with conspiracy to defraud the United States, evidence is admissible to show the state of ¿mind of one charged as a co-conspirator with respect to the matters to which the alleged conspiracy related, prior to the date when it is alleged to have been formed.</p> <p>2. Same — Documents in Possession or Co-Conspirator — Letterpress Copy op Letter.</p> <p>■■ A letterpress copy of a letter purporting to have been written by an alleged eorconspirator of defendants on trial, found in his possession and shown to be in his handwriting, is admissible as original evidence to show , his state of mind at the time the letter was written, where that may be . material evidence in proof of the conspiracy, without showing that the original letter was sent to the person to whom it was addressed.</p>

<p>GoNSPIRACY — CRIMINA!. PROSECUTTOX-EVIDENCE.</p> <p>Letters held admissible in. evidence on the trial of defendants, charged with conspiracy to defraud the United States in. relation to contracts for public work, as tending to show an outside business association and intimacy between defendants and their alleged co-conspirator, who was the government engineer in charge of the public work.</p>

<p>On Objection of Defendants to Evidence Offered.</p>

<p>On Objection of Defendants to Admission of Evidence</p>

<p>On Objection of Defendants to the Admission of Evidence.</p>

<p>On Objection by the Government to a Question Asked an Expert Witness bv the Defense.</p>

<p>1. CONSPIRACY — CRIMINAL PROSECUTION — FACTS TO BE CONSIDERED BY .TORY.</p> <p>Upon the trial of a charge of conspiracy, where the prosecution depends upon inferences to bé drawn from facts to prove the conspiracy, great latitude of proof must he allowed, and the jury should have before them, and are entitled to consider, every fact which has a bearing upon and a tendency to prove the ultimate fact in issue.</p> <p>2. Crijunat, Law — Instructions—Reasonable Doubt.</p> <p>A reasonable doubt in a criminal case is not a mere possible doubt, hut exists where, after the entire comparison and consideration of all of the evidence, the minds of the jurors are left in such a condition that they cannot say they feel an abiding conviction, to a moral certainty of the truth of the charge. By reasonable,.doubt is not meant a strained or -whimsical conjecture, hut an actual sincere mental hesitation, caused either by insufficient evidence or by unsatisfactory evidencie.</p> <p>[Ed. Note. — For cases in point, see vol 14, Cent. Dig. Criminal Daw, '§§ 1267, 1268, 1904-1922.]</p> <p>3. Same — Circumstantial Evidence — Weight and Sufficiency.</p> <p>Direct and circumstantial evidence differ merely in their logical relation to the fact in issue. Evidence as to the existence of the fact is direct. Circumstantial evidence is composed of facts which raise a logical inference as to the existence of the fact in issue. A conviction may well be had upon circumstantial evidence, but to warrant such conviction the proven facts must not only be consistent with the hypothesis of guilt, but must clearly and satisfactorily exclude every other reasonable hypothesis save that of guilt.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Daw, §§ 1262-1209, 1883-1888.]</p> <p>4. Conspiracy — Criminal Prosecution — Evidence of Intimacy Between Parties Charged.</p> <p>Previous intimacy between persons charged with conspiracy is competent and important proof on the trial, and proof of close intimacy is especially important, if the duties of the parties respectively were intended to be in opposition, and should the occasion arise might forbid such intimacy, as where the conspiracy charged was to defraud the government in respect to contracts for public work, and the alleged conspirators were respectively contractors for such work and the government engineer officer in charge of the same.</p> <p>5. Criminal Daw — Facts Relevant to Issue — Flight of Accused.</p> <p>It is always competent to prove the flight of the accused as having a tendency to establish guilt; but such fact, if shown, is not conclusive, nor does it raise a legal presumption of guilt, but is to be given the weight to which the jury think it entitled, under the circumstances shown. In this connection they may take into consideration the defendant’s age, intelligence, and financial ability to make a defense.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Daw, §§ 779-7S0, 1257.]</p> <p>6. Same — Limitation of Prosecution — Persons Fleeing from Justice.</p> <p>Where a person charged with crime against the United States in the courts of one federal district, when found elsewhere, resists removal to such district, with intent to avoid the jurisdiction and process of the court therein, such action constitutes a fleeing from justice, which, under Rev. St. § 1045 [U. S. Comp. St. 1901, p. 726], takes away from him the privilege of pleading the statute of limitations, and, until he submits himself to such jurisdiction, the statute does not run in his favor as against prosecution for any offense charged to have been previously committed in said district.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 278.]</p> <p>7. Same.</p> <p>Although, under the extradition treaty of 1S90 between Great Britain and the United States and the laws of. Canada, a person whose extradition is sought by the United States from the Dominion of Canada has the right to oppose his extradition by legal proceedings, he is nevertheless, during the pendency of such proceedings, a person fleeing from justice, within the meaning of Rev. St. § 1045 [U. S. Comp. St. 1901, p. 726].</p> <p>8. 'Conspiracy — Criminal Prosecution — Instructions—Review of Evidence.</p> <p>Evidence reviewed in the charge to the jury on trial of consolidated indictments and counts severally charging conspiracy to defraud the United States between contractors for public work and the government engineer officer in charge of the same, the presentation of fraudulent claims against, and embezzlement from, the United States.</p>

At Law. Action on contract to recover damages in the sum of $30,000 which complainant alleges it has sustained by reason of alleged breach of contractu The case was tried before the court, a jury being waived.

<p>1. Admiralty — Jurisdiction— Suit Against United States.</p> <p>Admiralty jurisdiction in a suit in personam is not dependent ón a right to proceed in rem. but upon the subject-matter of the suit, and a suit against the United States, brought under the provisions of Act March 3, 1S87, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752], and based upon a maritime contract of affreightment, is within the admiralty jurisdiction of the Circuit or District Court.</p> <p>[Ed. Note.- — For eases in point, see vol. 1, Cent. Dig. Admiralty, §§ 131-149, 185-190.]</p> <p>2. Shipping — Construction op Bill of Lading — Time for Discharging.</p> <p>A provision of a bill of lading that the cargo shall be “received by the consignee immediately the vessel is ready to discharge, and continuously at all such hours as the customhouse or port authorities may give permission for the ship to work,” means only that the discharge shall be reasonably continuous, considering the time, place, and circumstances, the nature of the cargo, the situation of the vessel, and prevailing conditions generally.</p> <p>3. Same — Demurrage.'</p> <p>Libelant contracted with a naval officer of the United States to carry ammunition and naval stores from the Brooklyn Navy Yard to the naval station at C.avite, Philippine Islands, to be there received, and immediately and continuously discharged by the consignee. A state of war prevailed in the Islands at the time, Cavite was not a port of entry, but merely a naval and military station, and owing to the nature of the cargo and the prevailing conditions the regulations required it to be discharged only in the daytime by means of government lighters, and that no more should be discharged in a day than could be deposited in the arsenal on shore the same day. Helé, that all such conditions which were known to the parties rendered the regulations reasonable, and must be presumed to have been contemplated by the parties; that the United States was not liable for demurrage because of delay in discharging, in so far as it was carried on with reasonable dispatch under such regulations, but that it was liable for delay due to the failure to keep all of the lighters engaged in- the work in use during such hours as they might have been, and transferred their cargoes to the arsenal before night.</p> <p>[Ed. Note_Demurrage, see notes to Harrison v. Smith, 14 O. O. A. C5T; Randall v. Sprague, 21 O. O. A. 337; Hagerman v. Norton, 46-C. O. A. 4.]</p> <p>4. Same — Measure oe Recovery.</p> <p>Iu the absence of contract, the charter price per day of a vessel under a time charter is not the measure of demurrage recoverable for delay in discharging cargo taken by the charterer for another, hut rather the-probable net earnings of the vessel during the time lost in the usual course of its employment.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, § 593.]</p>

<p>1. Bankruptcy — Provable Cjaxms — -Construction or Act.</p> <p>The .several subdivisions of Bankr. Act July 1, 1898, C. 541, § 63a, 30 Stat. 502 [U. S. Comp. St. 1901, p. 3447J, are not to be regarded as an enumeration of a group of characteristics all of which are essential -to a provable claim, but as a classification, each specifying a separate class of provable claims independently of the others, and the provision of subdivision 1, limiting the claims provable thereunder to those which were a fixed liability absolutely owing at the time of the filing of the petition, does not impose the same limitation upon claims within other classes.</p> <p>2. Same — Contingent Tuabtlities — -Indorser or Commercial Paper.</p> <p>The liabilfty of a bankrupt indorser on commercial paper which did. not become absolute until after the filing of the petition is a debt founded upon a contract within Bankr. Act July 1, 1898, c. 541, § 63a (4), 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], and provable In bankruptcy thereunder after such liability has become fixed and within the time limited for proving claims.</p>

<p>Removal of Causes — Separable Controversy — Joint Suit for Injunction.</p> <p>‘ In. a suit to enjoin the destruction of a water privilege by diverting water from a stream, the complainant may properly join as defendants the persons who are undertaking such diversion, and one with whom they have contracted to do the work, and ask for a common injunction against all, and in such case there is no separable controversy which entitles the former to remove the cause when the contractor could not.</p> <p>[Ed. Note. — For cases hi point, see vol. 42, Cent. Big. Removal of Causes, §§ 95-99.</p> <p>Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Meeke v. Yalleytowu Mineral Co., 35 C. C. A. 155.]</p>

<p>1. Tbial — Frannres—CONSTRUCTION.</p> <p>Where the facts material to the judgment were agreed on, a recital that the court, finds the issues of the case with the defendant should be construed to refer to the issues of law.</p> <p>2. Same.</p> <p>Where the facts are agreed on, they are the equivalent of facts found by the court.</p> <p>[Ed. Qsote. — For cases in point, see vol. 40, Cent. Dig. Trial, §880,1</p> <p>3. Mortgages — Assignment-Foreclosure.</p> <p>Where a mortgagee assigned the mortgage with other property as collateral for debt owing by the mortgagee, and the assignee thereafter caused the mortgage to be foreclosed and purchased the property at a sale under a foreclosure decree, he held the mortgagor’s title, in the absence of agreement to the contrary, for his own benefit, and not as trustee for the assignor.</p> <p>iEd. Note. — For cast's in point, see vol. 35, Cent. Dig. Mortgages, §§ 603, 1532-1336.1</p> <p>4. Judicial Sales — Wito May Purchase — Fuse hash by Pledgee.</p> <p>The rule that a pledgee who is a trustee cannot become the purchaser at his own sale of the pledge is inapplicable to a judicial sale conducted by an oiiieer of the law.</p> <p>[Ed. Note. — For eases in point, see vol. 31, Cent. Dig. Judicial Sales. §40.1</p> <p>5. Wills — Construction—Remainders.</p> <p>Testator declared that if either of his two sons died without lineal descendants, the survivor should take his estate, and if I lie survivor died without lineal descendants, then one-half both of (lie decedent’s original portion as well as one-half of the portion taken by survivorship should go to iestator’s brother P„ and the other half to such of testator’s brothers and sisters as might be living at the time of the death of the surviving soil. Held, that the sons thereby acquired a life estate in a moiety of the property with a remainder to the survivor of the one first dying, in the event he died without lineal descendants, the survivor then taking a life estate in both moieties, with remainder to his lineal descendants living at his death, otherwise to testator’s collateral relatives.</p> <p>IEd. Note. — For cases in point, see vol. 49, Cent. Dig. Wills, §§ 144Í4--1414.]</p> <p>6. Trusts — Duration—Dimitation.</p> <p>Where testator directed that his trustees should deliver a settlement of their trust to each of his two sons on their reaching the age of 21 years, respectively, and then put them in possession of one-half of the property, except that there might be a reservation of a fraction of the moiety until the sons should, respectively, arrive at the age of 23 years, when the remaining part should be delivered to them, the trustees’ authority as such expired by limitation on the arrival of the youngest son at 23 years of age.</p> <p>[Ed. Note. — For cases in point, see vol. 47, Cent. Dig. Trusts, § 82.]</p> <p>7. Executors--Salk of Eanu — Authority—Pkouatk Order.</p> <p>Executors not expressly authorized by the will cannot convey lands to pay debts except under the authority of an order of the probate court entered after notice to the parties interested.</p> <p>[Ed. Note. — For cases in point, see vol. 22, Cent. Dig. Executors and . Administrators, §§ 533-530, 358.]</p> <p>8. Trusts — Trustees—Deeds.</p> <p>Deeds by testamentary trustees, not delivered until after their authority as trustees had expired by limitation, were void.</p> <p>9. Life Estates — Life Tenants — Conveyance in Trust — Remaindermen.</p> <p>Where, by testator’s will, an estate in- remainder after the death of his surviving son was given to his lineal descendants, it was beyond the power of the tenants for life to defeat or prejudice the remaindermen by an attempted declaration of trust of the property.</p>

<p>1. Railroads — -Fires—Evidence as to Condition or Spark Aeeesteb.</p> <p>In an action against a railroad company to recover for the loss of property alleged to have been set on fire, and burned by sparks from a locomotive engine on defendant’s road where witnesses for defendant testified that tlie engine was equipped with the most approved kind of spark arresting device, and that the same was in good condition, plaintiff was entitled to show in rebuttal of such testimony that on the same day ten fires were caused by sparks from the same engine within two miles of plaintiff’s property and by the testimony of experts that such fact would indicate that the spark arrester was not in good condition.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1719-1723.]</p> <p>2. Same — Action Under Ohio Statute — Burden and Measure of Proof.</p> <p>Under the provision of Rev. St. Ohio 1906, § 3365-6, which makes the fact that a fire was set to property adjacent to a railroad by sparks escaping from a locomotive prima facie proof of the railroad company’s negligence, in an action to recover for the, loss of such property, the company is not required in order to overcome such prima facie case to* produce a preponderance of the evidence bearing on the question of negligence, but it is sufficient if it produce enough to counterbalance that by which the prima facie case is made out, the ground of recovery under the statute as under the common law being negligence the burden of proving which rests upon the plaintiff.</p> <p>[Ed. Note. — For eases in point, see vol. 41, Cent. Dig. Railroads, §§ 731, 1709-1716.]</p>

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

The action was brought by the plaintiff, as assignee of John C. Underwood, to recover a balance alleged to be due the said Underwood tinder a contract with the defendant whereby the association agreed to pay him an annual salary as superintendent and secretary and also a commission of 25 per cent, on the first £200,000, and 20 per cent, on all sums above said amount, raised and collected by him for tlie memorial fund of the association.

<p>1. Writ op Error — Parties—Including Persons not Parties to Suit.</p> <p>The inclusion as plaintiffs in error of persons who were not parties to the action does not vitiate the writ as to those who were parties, but is an error which may be corrected by dismissing the writ as to such persons, or by striking out their names.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1868-1876.]</p> <p>3. Same — Amendment op Writ — Adding Names op Omitted Plaintiffs.</p> <p>The right to amend a writ of error and citation by adding omitted plaintiffs depends primarily upon whether the record, shows enough to authorize the amendment, under Rev. St. § 1005 [U. S. Comp. St. 1901, p. 714]. If It appears from the record that the omission was accidental, the amendment should be allowed.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 2115-2119.]</p> <p>8. Abatement and Revival — Federal Courts — -Death op Joint Plaintiff.</p> <p>An action brought in a federal court by plaintiffs as joint owners of bonds does not abate by the death of one of the plaintiffs, but under Rev. St. § 956 [U. S. Comp. St. 1901, p. 697], the suit may proceed in the name of the survivors upon the suggestion of the death upon the record.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent. Dig. Abatement and Revival, §§ 315-319.]</p>

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

<p>In Error to the Supreme Court of the Territory of Oklahoma.</p>

<p>Conspiracy — Indictment—Issues and Proof.</p> <p>Where accused was indicted for conspiracy to rob the post office at E., evidence was incompetent to show a general conspiracy, in which accused participated, to rob banks and everything that was “robbable.”</p>

This cause comes here upon appeal from a decree holding the three tugs jointly responsible with the ferryboat Chicago for a collision resulting in the sinking of the barge Eliza, one of a number of boats in tow of the three tugs. The opinion of the District Court is reported in 134 Fed. 1013.

The suit in the Circuit Court was to restrain infringement of claims one, two and four, of letters patent No. 628,176. issued July 4, 1899, to Dorr E. Felt, for an improvement in tabulating machines. The claims sued upon are as follows: 1.

<p>'Patents — Invention—Process of Expanding Sheet Metae.</p> <p>The Golding patent No. 527,242, for a process of making open or reticulated sheet metal by slitting and stretching the sheet at the same time, is void for lack of patentable invention in that it describes merely an abstract idea without sufficiently disclosing means by which it may be put into practice.</p>

<p>Patents — Validity- and Infringement — Paint Remover.</p> <p>The Ellis patent, No. 714,880, for a composition for removing paint and varnish and the process of making the same, which consists in dissolving a wax in a hydrocarbon oil or other suitable solvent and the subsequent precipitation of the wax by the addition of an alcoholic body miscible with the solvent, the purpose being to thicken the composition and prevent the volatilizing of the solvent when apxilied, was not anticipated and discloses patentable invention; the remover described being more practicable and successful in use than any in the prior art. It is also infringed by a similar composition, in which acetone is substituted for alcohol, for which in such composition and for the purpose employed it is the chemical equivalent.</p>

<p>In Equity. On petition to punish for contempt for violation of preliminary injunction.</p>

<p>1. Courts — Jurisdiction of Federal Courts — Ancillary Suits.</p> <p>A suit in equity commenced in a federal court, tlie purpose of which is to set aside a judgment of dismissal entered by the same court in an action at law, is ancillary to such action and within the jurisdiction of the court without regard to the citizenship of the parties, and where the defendants named in the bill were parties to the original action, or are in privity with such parties, service may be made upon them, although they reside beyond the limits of the district.</p> <p>[Ed. Note. — For eases in point, see vol. 13, Cent. Dig. Courts, § 801.</p> <p>Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.]</p> <p>2. Same- — Transfer of Causes — Act Creating New District.</p> <p>Under Act March 13, 3902, c. 183, § 7, 32 Stat. 66 [U. S. Comp. St. Supp. 1905, p. 114], dividing the state of Texas into four federal judicial distticts, which section transfers to the courts of the new Southern district jurisdiction of all causes of which said courts would have had jurisdiction if they had been constituted when such causes were commenced, provided, inter, alia, that pending causes in which evidence had been taken should be retained and disposed of in the courts where pending, an action in which evidence had been taken, and in. which a judgment of dismissal had been entered, remains in the court which entered such judgment for the purpose of determining jurisdiction of an ancillary bill in equity to set aside the dismissal, although if an original suit it would be within the jurisdiction of the courts of the new district.</p> <p>[Ed. Note. — F.or cases in point, see vol. 13, Cent. Dig. Courts, § 1117.]</p>

<p>In Bankruptcy. On review of referee’s order respecting disputed claim to exemptions.</p>

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

<p>1. Vendor and Purchaser — Fraudulent Misrepresentations — Rescission.</p> <p>A misrepresentation with regard to material facts, by which a purchase of property is intentionally induced, amounts to a fraud, which vitiates the transaction and entitles the purchaser to be relieved.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 38-60.]</p> <p>2. Same — Means of Knowledge — Duty of Purchaser.</p> <p>Whore, however, the moans of knowledge are at hand, and are equally open to both parties, if the purchaser does not avail himself of them, he will not he heard to say that he has been deceived by the misrepresentations of the vendor, being charged with a knowledge of all that could have been so readily ascertained.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Oent. Dig. Vendor and Purchaser, §§ 38-60; vol. 23, Cent. Dig. Fraud, §§ 19, 20.]</p> <p>3. Same — Independent Investigation by Purchaser.</p> <p>And the same rule obtains where, not resting on the statements of the vendor, he undertakes to make and does make an independent investigation and verification of his own.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 38-60; vol. 23, Cent. Dig. Fraud, § 18.]</p> <p>4. Same — Fraud Practiced in Course of Investigation.</p> <p>In order, however, to have this effect, the examination must be an untrammeled one; and this is not the case where fraud or concealment is practiced in the course of it, or misrepresentations made which would themselves afford occasion for relief. An examination perverted in this way by the act of the vendor is the same as no examination at all.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, || 38-60; vol. 23, Cent. Dig. Fraud, §§ 17-22.]</p> <p>5. Samsc — Value of Bargain in Material.</p> <p>Neither does it matter, if misconduct be proved, that the bargain, even so, was a good one, from which the purchaser is likely to sustain no loss. He is entitled to the bargain which he supposed and was led to believe that he was getting, and is not to be pul; off with any other, however good.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §| 38-60; vol. 23, Cent. Dig. Fraud, § 24.]</p> <p>6. Same — Sale of Mineral Land — Qualified Representations — “Trade Talk.”</p> <p>Where, as a part of the negotiations for the sale of coal lands, it was represented by the defendants that the land was underlaid throughout its entire extent with a particular vein of coking coal, for which the plaintiffs were seeking and on which the land was sold, but it was also stated as a qualification that’ they had not themselves been over the property and were not much acquainted with it, their representations are to be taken as nothing more than the usual commendatory exxiressions, which, as “trade talk,” are accustomed to pass at such a time, and by which, however, positive, no one is expected to be hound.</p> <p>IEd. Note. — For eases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, |§ 40, 50, 52, 53; vol. 23, Cent. Dig’. Fraud, §| 12-14.]</p> <p>7. Principal and Agent — Acts and Statements of Accredited Agent.</p> <p>But the acts of an accredited agent within the apparent scope of his authority are the acts of the principal. Where, therefore, prospective purchasers of coal lands were referred by those who had them for sale to a party employed by them to show the property as one who was thoroughly acquainted with it and as their representative on the ground, and such party, in the course of an examination of it by experts, made statements with regard to it which he knew to be untrue, and also concealed and deceived them with regard to certain important tests and indications which would be damaging, the territory being wild and mountainous, and requiring some one to guide such experts over it, and the coal indications being obscure to a casual observer, the vendors were responsible for such misconduct, and, a purchase having been induced thereby, the purchasers were entitled to be relieved.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Principal and Agent, |§ 583, 719J</p> <p>8. Vendor and Purchaser — Rescission—Status Quo.</p> <p>While rescission will not be ordered, where the status quo has been so changed that it cannot be restored, a substantial restoration is all that is required; and it is satisfied, as a rule, where the party against whom the rescission is asked gets back what he parted with, and the other party gives up what he got, unchanged.</p> <p>[Ed. Note. — For eases in point, see vol. 4S, Cent. Dig. Vendor and Purchaser, §§ 205, 208, 209.]</p> <p>9. Same — Rand Options.</p> <p>Plaintiffs by fraudulent misrepresentations were induced to purchase a body of coal lands on which at the time the defendants had some 60 different options or rights to purchase at a certain price per acre, on which price a considerable advance was to be paid by the plaintiffs. In order to get title and complete the sale, with the acquiescence of all parties, the original owners were paid the portion coming to them, upon executing the proper conveyance to the plaintiffs, and the defendants were paid the rest. Helds that it was no objection to ordering a rescission on the ground, as contended, that the status quo could not be restored, that the defendants would be compelled to take back the lands in place of the options which they had originally held, which imposed no personal obligation, and also pay over, not only the money which they themselves got, but also that which had gone to the original owners.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 205, 208, 209.]</p> <p>10. Hines and Minerals — Rescission of Sale — Compensation to be Ordered on Reconveyance.</p> <p>In a suit to rescind a purchase of coal land for fraud, which is sustained, the plaintiffs upon a reconveyance are entitled to have restored them the purchase money paid, with interest, the expenses incurred in having the titles searched and deeds made and recorded, and the taxes; but they are not entitled to expenditures for having the property examined and tested by experts, nor for the making of surveys, looking to the construction of a coke plant and the building of a branch railroad, nor for the organization of a corporation under which to operate, nor the issuing of bonds to finance the transaction; neither of these being of direct benefit to the property.</p>

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

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

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

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

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

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

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