Volume 147 — Federal Reporter

The Omaha Water Company, a corporation of the state of Maine, exhibited its bill against the city of Omaha, the water board of that city, and the individual members of that hoard, all citizens of the state of Nebraska, to restrain them from enforcing an order of the water board made on May 1, 1905, which reduced some of the meter rates fixed by an ordinance of the city passed on July 11, 1880, under which the complainant was furnishing water under a contract with the city,…

This cause comes here on appeal from a decree of the United States Circuit Court for the Southern District of New York, dismissing bill .alleging infringement of copyright.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>These causes come here upon appeals from decrees dismissing bills alleging infringement of copyright.</p>

<p>1. Courts — Federal "Courts — Jurisdiction—Parties—United States. ‘</p> <p>Act Cong. August 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523], requires contractors for public buildings to execute a bond to the United States to pay for all labor and materials and authorizes persons ' supplying labor or materials to sue in the name of the United States for their use on such bond without expense, however, to the United States. Held that, in an action on a bond given after such act, the United States was a mere nominal or formal party whose presence was insufficient to confer federal jurisdiction.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 843.]</p> <p>2. Same — Diverse Citizenship.</p> <p>Where an action in the name of the United States on a public contractor’s bond was brought by a banking corporation having its banking house in the state of Washington, and the contractor sued was a resident of California, and his surety a corporation organized under the laws of Connecticut, and the amount involved exceeded the sum of $2,000, the federal jurisdiction existed because of diverse citizenship.</p> <p>' [Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 857.]</p> <p>3. Arbitration and Award — Judgments—Entry—Federal Court.</p> <p>Where, in an action in the federal court, the parties agreed to a trial before arbitrators, the court had jurisdiction to enter judgment on the award.</p> <p>[Ed. Note. — For cases in point, see vol.' 4, Cent. Dig. Arbitration and ' Award, §§ 466-470.]</p> <p>4. Same — Errors—Omission of Evidence.</p> <p>Where an arbitration agreement provided that proof should be taken before the arbitrators in the same manner as in the trial of cases in court, and that the judgment entered on the award should be unappealable, objections made to the introduction of evidence could not be urged against a judgment entered on the award.</p> <p>[Ed. Note. — For cases in point, see vol. 4, Cent. Dig. Arbitration and Award, §§ 450, 466-470.]</p> <p>5. Evidence — Competency—Rebuttal of Evidence fob Adverse Party.</p> <p>Where, on an issue as to the sufficiency of certain mill work, defendant proved that the mill company’s superintendent was incompetent because of drunkenness to perform his duties in a good and workmanlike manner, the mill company was entitled to show in rebuttal that other work of like character done contemporaneously for other parties under the management of the same- foreman was good and acceptable.</p> <p>[Ed. Note. — For eases in point, see vol, 20, Cent. Dig. Evidence, §§ 445-454; vol. 46, Cent. Dig. Trial, §*§ 146-152.]</p>

<p>3. Apit.ai, and Error — Case Tried to Court — General Finding — Matters Reviewable.</p> <p>When, upon a trial without a jury in a federal court, the findings of fact and of law by the court are general, exceptions to a ruling denying a motion for judgment for the defendant present for the consideration of an appellate court the question whether upon the whole evidence, with all the inferences which a jury could justifiably draw from it, the plaintiff was entitled to recover; the general finding is to be accepted as equivalent to the verdict of a jury on all matters of fact, and the appellate court cannot review the weight of the evidence.</p> <p>2. Judameni>-Matters Concluded — Second Action on Different Demand.</p> <p>When a judgment is offered in evidence in a subsequent action between the same parties upon a different demand, it operates as an estoppel only „ upon the matter actually at issue and determined in the original action, and such matter, when not disclosed by the pleadings, must be shown by extrinsic evidence; but every matter necessary to the disposition of the case as made by the pleadings Is included in the conclusive effect of the judgment.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Gent. Dig. Judgment, §§ 1248-1258.]</p> <p>3. Same.</p> <p>An action to recover a sum of money alleged to be due from defendant to plaintiff under a contract, and a subsequent action for wrongful termination of the contract by defendant, although based upon the same contract, are upon different demands, and where the only defense pleaded in' the first action was a breach of the contract by plaintiff, a judgment in Ms favor therein is conclusive only upon that question in the second action, unless it is shown that other matters were actually litigated and decided.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1248-1258.]</p> <p>4. Railroads — Contract to Secure Traffic — Validity—Monopolies—Carriers — Undue Preference.</p> <p>Defendant .railroad company entered into a contract with plaintiff for a term of years to build up, develop, and conduct the business of the transportation of milk on its lines of road. Plaintiff was to have full charge of such business and was to receive as compensation a percentage of the freights earned therein. It was provided that he should charge rates not in excels of those charged by competitive roads, and should be granted the exclusive privilege of transporting milk over defendant’s lines “so far as it was permitted to do so by law.” In the execution of the contract all rates were made by defendant, and plaintiff was not given a monopoly of the milk traffic. Held, that such contract was not ultra vires nor void as contrary to public policy, especially as practically construed by the parties in its execution; nor was it in violation of the antitrust act of July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200] or of section 3 of the interstate commerce act of Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155] as giving an undue and unreasonable preference to plaintiff.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, § 434; vol. 9, Cent. Dig. Carriers, §§ 83-85; vol. 35, Cent. Dig. Monopolies, §§ 10, 12.]</p> <p>5. Contracts — Rules of Construction — Legality.</p> <p>The fundamental rule is that a contract will be construed, if possible, as having been made for a legal, rather than for an illegal, purpose and it should not be relaxed when .a vicious construction is sought for by the party who made- the contract.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, § 734.]</p>

Iii Error to the Circuit Court oí the United' States for the Southern District of New York. Writ of error by defendant in the court below to review judgment for plaintiff entered upon the verdict of a jury in the United States Circuit Court for the Southern District of New York.

<p>Appeal from the Circuit Court of the United States for the District of Connecticut.</p> <p>Appeal from a decree dismissing upon final hearing bill for injunction. The opinion of the court below is reported in 145 Fed. 47.</p>

•In Error to the Circuit Court of the United States for the Eastern Division of the Eastern District of Washington. The plaintiff In error brought an action in the superior court of the state •of Washington for Spokane county against the defendant in error and Peter McDonald to recover damages for personal injury.

<p>Indians — Indian Lands — Sale—Deposit of Proceeds.</p> <p>Act Cong. May 27, 1902, c. 888, § 7, 32 Stat. 275, authorizes the adult heirs of any deceased Indian to whom allotted lands have been patented to sell inherited lands subject to the approval of the Secretary of the Interior, and provides that when so approved full title shall pass to the purchaser, tlie same as if a final patent without restriction on the alienation liad been issued to tlie allottee. Held, that where lands were allotted to an Indian citizen under Allotment Act 1877, restraining alienation for 25 years, the act of 1902 did not vacate the trust of such lands held by tlie United States, but, on tlie sale of the lands with tlie consent of the Secretary of tlie Interior by the heirs of the deceased allottee, the trust attached to tlie proceeds, which was only payable to such heirs . under rales prescribed by the Interior Department.</p>

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

The defendant in error filed a complaint against the plaintiff -in error and the Universal Automobile Company, a corporation, in which it alleged: That on June 30, 1903, a contract was made between the Universal Automobile Company, the defendant in error, and A. II.

This cause comes here upon writ of error to review a judgment entered upon a verdict in favor of defendant in error, who was plaintiff below. The action was to recover damages for persona! injuries sustained in consequence of a collision between two trains; the plaintiff being at the time a passenger upon one of them.

46 for demurrage, interest, and costs, growing out of the detention by respondents of libelant’s schooners Douglass and Bronson at Pensacola, Fla., on their second charter trip from that place to Tampico, Hex.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York; in favor of libelant for personal injuries sustained while on a voyage from New York to the West Indies and return in July, 1904. The opinion of the District Judge is reported in 137 Fed. 952.

The cause comes here upon appeal from a decree holding the steamtug Lyndhurst responsible for damages done to her tow, the canal boat Philip Rafferty, which on March 13, 1897, was in collision with a car float lying at the pier foot of Gansevoort street, North river. The opinion in the District Court will be found in 129 Fed. 843.

<p>1. Internal Revenue — Legacy Taxes — Passing of Legacy.</p> <p>Sections 29, 30, War Revenue Act June 13, 1898, c. 448, 30 Stat. 464, 465 [U. S. Comp. St. 1901, pp. 2307, 2308], did not impose a tax on legacies of personal estate on the ground that they were technically vested, but only upon such legacies when they came into actual possession and enjoyment, and the turning over of such a legacy to the beneficiary, and the payment of the tax were intended to be contemporaneous.</p> <p>2. Same — Annuity Charged on Income of Estate.</p> <p>The personal estate of a testator is not subject to the payment of a legacy tax under sections 29, 30, War Revenue Act June 13, 1898, c. 448, 30 Stat. 464, 465 [U. S. Comp. St. 1901, pp. 2307, 2308], as a legacy of an entirety for life merely because a fixed income for life is to be paid to a beneficiary out of the whole income of the real and personal estate in the hands of trustees, and is primarily chargeable under the state law upon- the personalty but in such case the specific payments only are taxable as the same from time to time become due and payable to the legatee.</p>

<p>1. Appeal — Review—Findings of Fact.</p> <p>While the findings of the trial judge will not be disturbed by an appellate court upon mere questions of fact depending upon the credibility of witnesses who testified before him, unless there is found to be a decided preponderance of evidence to the contrary, a finding based solely on the preponderance of the testimony is open to review and consideration de novo by the Appellate Court.</p> <p>2. Navigable Waters — Obstruction by Wreck — Maintenance of Lights.</p> <p>The rule that positive evidence is ordinarily to prevail over strictly negative evidence applied to an issue as to whether or not lights were burning over a sunken dredge at the time she was run into by a tug in the night, and the testimony of the master of the dredge that he placed the lights on the night in question, and of himself and another witness that they wore burning a very few minutes before the accident held to prevail over the testimony of four witnesses, three of whom were from the tug and. including the lookout who was the only one charged with the duty of looking, that they did not see any lights.</p>

The full title of this cause is United States v. Seventy-Five Bales of Tobacco (amended to Forty-Nine Bales), etc., Selgas, Suarez & Co. claimants.

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

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

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York in Bankruptcy. On petition to review order denying motion for order to enjoin directors of the bankrupt corporation from passing a resolution authorizing the Register of the Province of Puerto Principe, in the island of Cuba, to receive a certain mortgage made by the bankrupt corporation prior to its adjudication as a bankrupt.

<p>1. Master and Servant — Action for Injury of Servant — Evidence of Relation Between Parties.</p> <p>Where defendant corporation, desiring in the conduct of its business to use a bridge which had broken down, rebuilt such bridge at once under an agreement with the town by which they shared the cost, the question whether it did the work merely as agent for I he town or as a principal, so as to render it responsible as master to an employe on the work, held properly submitted to the jury in an action by such employe to recover for a personal injury.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 3004, 3276.]</p> <p>2. Same — Act of Fellow Servant — Negligence in Employing Incompetent Servant.</p> <p>A master is liable for an injury to a servant through an act of a fellow servant which was due lo his incompetency and unfitness to direct dangerous work of which he was put in charge, and where the master failed to exercise reasonable and proper care hi his employment.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 334-351.]</p> <p>3. Same — Action for Injury of Servant — Questions for Jury.</p> <p>The question of a plaintiff's contributory negligence held properly submitted to the jury under the evidence, in an action by a servant to recover for a personal injury.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1132.]</p> <p>4. Same — Instructions.</p> <p>The refusal of requested instructions on the subject of assumed risk, in an action by a servant against the master to recover for a personal injury, held proper, in view of the charge given.</p>

This cause comes here upon writ of error to review a judgment, entered upon a verdict directed by the court, in favor of defendant in error who was plaintiff below. The action was brought upon a bond executed by John J. O’Brien and John C. Sheehan, copartners in business under the firm name of O’Brien & Sheehan, as principals, and the Oily Trust, etc., Company, as surety, under Act Cong. Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp.

TTpon an involuntary petition filed against her and a number of others, alleged to he copartners under the firm name of “Vicksburg Exchange Bank, Neasmith, Bair, Page & Co..” Mrs. Era A. Neasmith was adjudged a bankrupt. From this adjudication she has appealed and assigned error.

<p>1. Negligence — Defective Premises — Persons Liable — Corporations—Organization.</p> <p>Defendant contracted to construct a dam, canal, and power house for a traction company and then immediately organized a construction corporation without capital to which defendant sublet the contract, the construction company agreeing to furnish all the material, provide for the safety of empioyés and rent the machinery, apparatus, tools, and appliances from defendant at a nominal rental, and to receive as compensation the actual cost of the work and materials and one-half of 1 per cent, in addition. The officers of defendant and of the construction company were the same and one of defendant’s officers testified that the construction company was organized for the sole purpose of avoiding attachments, etc. Held, in an action against defendant for injuries to a third person by the negligent placing of a derrick guy rope,, that it was not error to charge that if the organization of the construction' company and the subletting of the contract to the construction company were not in good faith, but fictitious to relieve defendant of the consequences of the caireless prosecution of the work, defendant was responsible for plaintiff’s injuries.</p> <p>2. Same — Notice of Defects.</p> <p>Where defendant, after obtaining a construction contract, organized a corporation without capital to which the contract was sublet, the latter agreeing to furnish all the materials and perform the work, but such contract was not complied with, and defendants, in fact, purchased the materials, and caused them to be delivered on a siding under the control of its superintendent who was also the superintendent of the subcontracting corporation, defendant was liable for the latter’s negligence in erecting a derrick guy rope over the siding, though the contract with the construction company was not fictitious.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>On motion for rehearing upon jurisdiction of the Circuit Court.</p>

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

On appeal by the American Woolen Company from an order of the District Court for the Northern District of New York affirming an order of the referee disallowing a claim, filed by the Woolen Company for $28,614.15.

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

<p>1. Grand Juey — Objections—Waivf.r.</p> <p>The objection that the grand jury which returned an indictment was not selected as required by statute, can be availed of only by a motion to quash, or by a plea, and is waived by going to trial on the merits. In any (-rent, if matter of record and ground of error, the right to make the objection is lost by the failure to assign it on the prosecution, of a writ of error.</p> <p>[Ed. Note. — For cases in point, see vol. 25, Cent. Dig. Grand Jury, §s 53-55.J</p> <p>2. Criminal Law — Motion in Arrest — Time for Application.</p> <p>A motion In arrest of judgment cannot be entertained after sentence, and after the term at which it was entered has expired.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2471.]</p>

In Brror to the District Court of the United States for the Territory of Hawaii. This action was brought in the name of the United States against the defendants in error to recover upon a promissory note.

<p>Master and Servant — Action for Injury to Brakeman — Questions for Jury.</p> <p>Conflicting evidence considered, in an action by a brakeman against a railroad company to recover for a personal injury resulting from plaintiff falling under the cars in the night after dropping from an engine to open a switch, and held to require the submission to the jury of the question of defendant’s negligence in failing to keep its right of way in the vicinity of the switch in a reasonably safe condition, and also the question of plaintiff’s contributory negligence.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 102], 1022, 1089-1132.]</p>

<p>1. Trade-Marks and Trade-Names — Infringement—Persons Liable — Officers of v Corporation.</p> <p>Where the executive officers of a corporation held a full power of attorney authorizing them to act in all matters pertaining to the company, and the directors were practically nonentities, the corporation's entire activities being within the control of such officers, they could he personally charged with infringement of trade-marks and unfair compel ition in the transaction of the corporation’s business.</p> <p>2. Same — Injunction—Equitable Jurisdiction.</p> <p>Where defendants, as executive officers of a corporation, had personally directed the infringement of complainant’s trade-marks, and in March, 1901, filedan answer averring that complainant had, long prior to the commencement of the suit, lost all exclusive right to its, label its well as to the name and shape of its hottle, complainant was justified in alleging In a bill to restrain defendants personally from continuing such infringement, that defendants intended to continue the same.</p> <p>3. Injunction — Corporations—Officers Individually — Effect.</p> <p>That a corporation, and through it, its officers, agents and servants, had been enjoined from further infringing complainant’s trade-marks, and from conducting a business campaign of unfair competition, did not preclude complainant from obtaining an injunction restraining certain of the officers in their individual capacity from performing such unwarranted acts.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, § 7.]</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The following is the opinion of HOLT, District Judge, in the court below:</p> <p>I was very favorably impressed with the evidence of Mr. Bacon. I think it is natural that he should think that the Merritt & Chapman Company intruded itself in this matter after it knew that it ought not to do so. No salvage should be allowed to a vessel that goes, against the deliberate wishes of the owner or master, and insists on rendering service against the will of those in command of the vessel. On the other hand, it is important that genuine salvage services should be liberally recognized. The practice should be encouraged of any vessels in the neighborhood starting immediately to rescue another vessel without awaiting detailed instructions. I think the existence of this system of the Merritt & Chapman Wrecking Company having vessels at various points, and having arrangements for quick communication of any disaster, is itself a thing which should be encouraged.</p> <p>The evidence shows in this case, in my opinion, that the Merritt & Chapman Company had sent orders for their vessel to go, before they knew what the stranded steamer was, and that the Coley had gone. Then, after learning what vessel it was that had stranded, they applied to Mr. Bacon. The evidence is somewhat conflicting as to whether they offered to send their vessel or said they had sent it. As to that I do not think it is very important. Mr. Bacon wanted to know if they would make a fixed charge, instead of leaving it a matter of salvage computation. They declined to do that, and he then said he did not want the tug. But the tug had started, and it is claimed that word should have been sent or some effort made to stop it. In the first place, it is rather doubtful if they could have stopped it, and I think their explanation is quite plausible that they felt it wouldn't be of any use t° ®ut r am not sure that, under tlie circumstances, they were bound to do that. As the afternoon wore on tlie situation down there, was a good deal worse. The tug had started out. I do not see any objection to its going up and offering assistance, and if the captain of the Banes "thought he needed it, particularly if the circumstances had changed, it seems to me he ought to have power to retain their services, notwithstanding the original declination of the owner, unless he could get into communication promptly with Hie owner, without any danger in the meantime to tlie vessel. At all events tlie tug went there, and the captain of the Banes supposed that that was tlie one that had been sent by the owner to gel; them off. Tlie Coley got out its anchors and got ready to work at high tide, but had not done any more than to get ready. Mr. Bacon got down there about 8 o’clock. I do not understand that the Merritt tug had done anything up to that time except to get ready to work. Mr. Bacon got there at 8 o’clock, and I think tlie evidence is jiretty striking that in the course of that afternoon and up to that time the condi-, lion of tilings bad changed. It was pretty serious. The entries in tlie log show that the vessel was pounding and was listing to starboard, and the evidence is that the wind was fresh and rising. It was blowing pretty stiff, and there was a heavy roll of the sea in there. Under these circumstances, from the fact that when Mr. Bacon got there, having supposed up to that time, as I understand it, that no Merritt boat had gone there, he made no demand that they leave the steamer and allow him, to do the salving, it seems to me that the natural inference to be drawn is that he found tilings out there -worse than lie thought they would be when he was in New York, and he concluded, upon the whole, in view of all the circumstances of the case, that he had better let the Merritt boat undertake to do the work, rather than to dismiss it and undertake to do it himself. Undoubtedly, he says, and the captain says, that they thought it would not be of any use to order them away. But I think he should have said, “I gave notice to your owners that; I didn’t want you, and I demand that you leave and I will save my ship.” He was right there, and no such notice was given. He, through the captain of the tug, talked with the captain Of the Merritt tug a while about various things, and finally left and went back to New York. I think lie decided then that he would leave the salving of that ship to the Merritt Company. I think, under those circumstances, that he in legal effect ratified the consent of his captain to accept the aid of tlie Merritt tug.</p> <p>The question is, how much "should be allowed. I do not think a very large allowance should be made. There was no danger hero to the men or the vessel that was engaged in the work of rescue. They had practically no distance to go. The ship itself, as it turned out, was not in much danger and the men on it were in no danger. But as the afternoon wore on, down to 8 or 9 o'clock, and even down to the time she was got off, it was pretty squally and looked as though it might get worse. The steamer was lying on that part of tlie keel which was right under the engines. If she pounded much there was danger of a leak there, and of a displacement of some part of her boilers or machinery. But after all, as it turned out, she was not in much danger, and I think ilia I: not more than about 5 per cent, should bo allowed in this case, or say $2,000. I think the valuation of the steamer should lie $30,000 and of the cargo $0,000. As to tlie point Mr. Kiieeland has raised of the action brought by Mr. Benedict, I think that Mr. Benedict is quite free from any criticism. I think, however, that the Merritt & Chapman people ought; to have taken into consideration before seizing the property that it was a peculiar cargo of a perishable kind, and to have sent around" to make some inquiry to see if the insurance companies would not give a guarantee to avoid the necessity of a seizure and a stoppage of this auction sale. I do not wish to be understood as censuring them very severely. I think they wore a little piqued undoubtedly. If this had been a general cargo consigned to a great lot of consignees that would have been quite a different tiling, but I think, if they had made a little inquiry or investigation, they would have found out that this cargo was represented by the insurance companies and that they would have obtained a guaranty without an attachment, and saved the owners of the cargo considerable loss.</p> <p>' I think, in view of that fact, there should, he some diminution of the amount allowed. I think it should be reduced to say $1,600, to be divided in the proportion of $36,000 to $6,000 between the steamship company and the owners of the cargo.</p>

<p>Shipping — Steamboat Causing Dangerous Swell — Liability' eor Injury to Barge in Tow.</p> <p>A large steamboat navigating New York Bay at a high rate of speed held in fault for creating a dangerous swell, and liable for an injury caused thereby to a barge in tow, which was knocked against other boats and her planking broken, but not liable for the loss of the barge and her cargo through sinking some hours afterward, which could have ¡been prevented by proper care on the part of her master, and was proximately due to his failure to keep her pumped out or to notify the master of the towing tug of her condition.</p> <p>[Ed. Note. — Eor cases in point, see vol. 44, Cent. Dig. Shipping, §§ 344, 345.]</p>

<p>Appeal and Error — Failure to File Brief.</p> <p>Where an appellant fails to file a brief, as required by the rules of the Circuit Court of Appeals, the appellee is entitled to have the appeal dismissed or the judgment affirmed, unless the court of its own motion determines to consider the case on the merits, which it will not do unless the assignment of errors clearly presents the questions in issue without the necessity of going through the record, as to ascertain the issues would, in this case, require the court to go through the record, it was ordered that the appellant must file a brief under penalty of the appeal being dismissed, with costs.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3104-3108.]</p>

<p>1. Secured Debt — Rene war of Lease by Creditor.</p> <p>A creditor holding as security a lease running to his debtor, who on its expiration obtained its renewal to himself without the debtor’s knowledge, holds the renewal merely as security, the same as the original lease.</p> <p>2. Same — JURisniCTrojs of Court — Judgment Against Creditor for Excess of Security.</p> <p>A court of bankruptcy, on rejection of proof of a claim on the ground that the creditor held security therefor, is without jurisdiction to value the security and enter a decree against the creditor over his objection for its excess value over the debt, although he claimed the security as his own property. ,</p>

<p>1. Customs Duties — -Classification- -Bossed Pulp Wood — “Unmanufac-TUHED TrirSEB” — “INCLUDING.”</p> <p>In construing the provision in paragraph 699, Tariff Act July 24, 1897, c. 11. § 2, Free List. 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689) for “round unmanufactured timber including pulp-woods,” held that pulp wood subjected to the rossing process whereby the bark, skin, and rough places are removed, is not manufactured in any true sense; also that it Is not necessary that the “pulp woods” should be “round unmanufactured timber,” “including” being used as equivalent to “also.”</p> <p>2. Same --Bossed Pulp Wood.</p> <p>The term “pulp woods” In paragraph 699. Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689], has no commercial signification differing from its ordinary meaning, and is employed as a short, comprehensive expression intended to cover pulp wood in all Its forms, including such as has been subjected to the rossing process.</p>

For decision below, see 141 Fed. 488, which reversed a decision of the Board of United States General Appraisers, G. A. 5,889, T. D. 25,942, which had affirmed. the assessment of duty by the collector of customs at the port of New York. Following is an extract from the majority opinion of the board, together with the dissenting opinion: WAITE, General Appraiser.

<p>Customs Duties — Classification—Ftkeprooj?bd Lumber.</p> <p>Lumber which 'has ben subjected to a fireproofing process that largely increases its value, but which can still be applied to the ordinary uses of sawed lumber, is not dutiable as manufactures of wood, not specially provided for, under paragraph 208, Tariff Act July 24, 1897, c. 11, § 1, Schedule D, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1646], but as “sawed lumber,’’ under paragraph 195, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1646J.</p>

<p>1. Courts — Territorial Courts — Practice and Modes of Proceeding in Criminal Prosecutions by United States.</p> <p>In criminal prosecutions by the United States in the territorial district courts of Oklahoma those courts are required to conform to the practice and modes of proceeding prescribed by the territorial laws, and not those prescribed for the courts of the United States, unless it be otherwise specially provided by some law of Congress.</p> <p>2. Criminal Law — Separate Trials — Peremptory Challenges.</p> <p>On the trial in a territorial district court of Oklahoma of an indictment charging an offense against the laws of the United States questions relating to the right of the defendants to be tried separately and to challenge jurors peremptorily are to be determined by the laws of the territory.</p> <p>(Syllabus by the Court.)</p>

<p>1. Trusts — Constructive Trust — Payment of Money — Mistake of Pact —Recovery.</p> <p>Petitioners under a mistaken belief that they were indebted to B. & Co., on November 25th paid them $1,500, which they did not owe, in response to a demand from B. & Co. for money on certain stock transactions. On the 26th, B. & Co. made a general assignment for the benefit of their creditors, and on the 28th a petition in bankruptcy was filed against them. The money so paid was deposited to the credit of B. & Co.’s bank account which from that timo contained a balance largely in excess of such amount which was finally paid to B. & Co.’s trustee in bankruptcy. ITeld that, the money having been paid under mistake of fact, was recoverable on petition against tile trustee. '</p> <p>2. Trusts — Co-sstkyctive Trysts — Payment of Money.</p> <p>Where bankrupts deposited money which they had received from petitioners under a mistake of fact to the credit of their general bank account, and though subsequent to such deposit and prior to the intervention of bankruptcy, withdrawals were made from the account, the balance was never below the amount which they received through mistake, it would be presumed that the amounts withdrawn were not those impressed with the trust, and that so long as the bankrupt’s account equalled or exceeded the amount erroneously received that such amount constituted the trust fund.</p>

<p>1. Libel — Actionable Words — Special Damage.</p> <p>By the law of libel defamatory language is actionable without special damage when it contains an imputation upon one as an individual, or in respect of his office, profession, or trade, but is not actionable when it is merely in disparagement of one’s property, or of the quality of the articles which he manufactures or sells, unless it occasions special damage^</p> <p>.2. Same.</p> <p>The plaintiff is engaged in the manufacture and sale of what are commonly designated as “Victor Safes.” The defendant, who is engaged in selling other safes, wrote to a third person a letter containing the following language: “We have heard that you had placed order for a Victor Screw Door. We are somewhat surprised at this and feel that you have been misled. The Victor plate safe is very cheaply constructed and can be easily burglarized. The Victor, so-called, “manganese steel safe” is weaker still, and can be opened inside of a vault or anywhere else in a few moments time.” Held, that this language must be regarded as merely in disparagement of the. plaintiff’s safes and therefore as not actionable in the absence of special damage, and that, there being no allegation of such damage in the petition, it is demurrable.</p> <p>(Syllabus by Court.)</p>

<p>1. Bankruptcy — Corporations Subject to Act — Construction of Statute.</p> <p>The provisions of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], enumerating the classes of corporations subject to the act, is to be strictly construed, and includes only such corporations as are clearly within the enumeration.</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Same — Ice Company.</p> <p>A corporation organized to buy, gather, store, and preserve ice, to ship and vend the same, and which carried on its business by renting small bodies of water from which it cut the ice which it stored, shipped, and sold, only two or three times in a number of years buying small quantities of ice when its own supply ran short, is not engaged principally in manufacturing, trading, or commercial pursuits, within the meaning of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], and is not subject to involuntary proceedings in bankruptcy.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 17.]</p>

<p>Collision — Steamship and Drifting Lighter- — Mutual Fault.</p> <p>A towing tug which cast adrift two lighters, having neither motive power nor means of signaling, near the middle of the Hudson river opposite New York City, on a somewhat foggy day, while delivering a third boat, held, in fault for a collision between one of such lighters and a steamship passing out to sea which did not make out the lighters until within less than 1000 feet of them, and the steamship also held chargeable with contributory fault, either in failing to sooner see the lighters or, in case excusable in that because of the thickness of the fog, in going at such rate'of speed that she was unable to avoid them after they were seen.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, §§ 79, 152, 170, 175.]</p>

<p>Brokers — Sale of Bonds — Right to Comxíissiow.</p> <p>It is sufficient to entitle a broker to liis commission on a sale of bonds that the sale was effected through his agency as its procuring cause, and when his communications with the purchaser were the means of bringing the purchaser and his principal together, and a sale results as a consequence thereof, his right to his commission is not defeated because the principal assumes exclusive charge of the subsequent negotiations, dispensing with his services, nor because the sale is finally made on substituted terms resulting from such final negotiations.</p> <p>[Ed. Note. — For cases in point, see vol. 8, Cent. Dig. Brokers, § 74.]</p>

<p>1. Trial — Direction of Verdict — Conflicting Evidence.</p> <p>Where there is a direct conflict of evidence on an issue the court is not justified in taking such issue from the jury, who are the judges of the credibility of the witnesses, because the testimony on one side largely preponderates.</p> <p>[Ed. Note; — For cases in point, see vol. 46, Cent. Dig. Trial, §§ 342, 334, 338.]</p> <p>2. Railroads — Inourt to Person at Crossing — Violation of Speed Ordinance.</p> <p>The violation by a railroad company of an ordinance regulating the speed of trains is not conclusive evidence of negligence, but in an action for an injury at a crossing is to be submitted to the jury as a circumstance from which negligence may be inferred.</p> <p>[Ed. Note. — For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1009, 1164½.]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error to review a judgment in favor of defendant in error, who was plaintiff below. The action was for libel in publishing of plaintiff, the captain of L’Aquitaine, one of the steamers of the French Line, that he passed by a waterlogged bark in mid-ocean, leaving her crew of 14 men to their fate, although she signaled: “Send us help. We are sinking.” The jury gave plaintiff a verdict of $5,000.</p>

The Circuit Court directed a verdict in favor of the defendants in error, against George R. Bidwell, collector of customs at the port, of Xew York. The controversy related to merchandise from Porto Rico, which was imported and entered Cor warehouse after that island had become a part of the United States but before the passage of the so called Foraker Act of April 12, 1900. c. 191, 31 Stat. 77, imposing a duty on merchandise imported from Porto Rico.

Appeals from the Circuit Court of the United States for the Southern District of New York. These causes come here upon appeal from a decree of the United States Circuit Court for the Southern District of New York, dismissing bill alleging infringement of copyright. The facts are stated in the opinion of the court below. 139 Fed. 437.

<p>Witnesses — Accused as Witness — Privilege—Aliens—Proceeding fob Deportation of Chinese Person — Nature of Action.</p> <p>A proceeding for the deportation of a Chinese person as being unlawfully within the United States is civil and not criminal in its nature, and the defendant may be sworn and examined as a witness for the government.</p> <p>[Ed. Note. — For coses in point, see vol. 50, Cent. Dig. Witnesses, § 1042½; vol. 2, Cent. Dig. Aliens. § 94.</p> <p>Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]</p>

<p>Appeal and Ebrob — Judgment at Law — Mode op Review.</p> <p>A judgment in an action at law in a.federal court is not reviewable by appeal, and an attempted appeal in such case does not give the appellate court jurisdiction.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 10-14.]</p>

<p>Appeal from the Circuit Court of the United States ior the Eastern Division of the Northern District of Illinois.</p> <p>The appellant, Gustav Schock, was the complainant below and sued the appellees for infringement of two patents for barrel washers, and this appeal is from a decree on final hearing, dismissing his bill for want of equity.</p> <p>The first patent is No. 400,316, issued to E. Klamt, March 26, 1889, and assigned to the complainant December 6, 1897, containing seven claims, of which the first three are involved in the alleged infringement, namely:</p> <p>“(1) The improved automatic barrel-washing machine herein described, combining a lank adapted for filling the barrels with water, top and end brushes operated by levers for washing and scrubbing said barrels, a tank adapied tor cleansing and rinsing the barrels after being washed and scrubbed, rollers to cause the barrel to revolve, and an arm for automatically transferring the barrel to the rinsing-tank, as and for the purposes set forth.</p> <p>“(2) An automatic barrel-washer combining a plurality of washing tanks, a carrier for conveying or transferring the lceg or barrel from one tank to the next, and a' scrubber or washer for removing the adhering dirt in the transfer, as set forth.</p> <p>“(3) In a barrel-washing machine, a water-tank, a revolving shaft provided with arms for receiving, holding, and automatically discharging the barrel from the tank, pawl-and-ratehet wheel for regulating the motion of the shaft, crank, levers, and rods connecting said shaft with the main driving-shaft of the machine, substantially as described, and for the purposes set forth.”</p> <p>The structure of this patent is illustrated as follows:</p> <p> </p> <p>The other patent is No. 605,138, issued to Gustav Schock, June 7, 1898, on application filed May 14, 1897, and infringement is alleged of claims 1, 2, 3, 4, 5, 7, and 8, reading as follows:</p> <p>“(1) In a barrel-washing apparatus, the combination of a barrel-feed tank, an inclined run in said tank adapted to support a plurality of barrels and to enable them to move thereon in one direction, and revolving hooks and means for revolving them in the opposite direction so that they will mechanically pick the first of said barrels off of the inclined run in the feed-tank, substantially as described.</p> <p>“(2) In an apparatus for soaking, scrubbing and washing barrels at one continuous operation, the combination of a scrubbing device, a feed-tank, mechanism for transferring the barrels from the feed-tank to the scrubber and gravity-runs within the feed-tank for automatically feeding barrels in one direction to the transferring mechanism moving in the opposite direction.</p> <p>“(3) In a barrel-washing apparatus, the combination of a barrel-feed tank, gravity-runs therein in pivotal connection with the tank, and means for adjusting the said runs so as to give the keg the desired quantity of water so that large and small packages can be supplied with water to the desired extent, substantially as described.</p> <p>“(4) In a barrel-washing apparatus, the combination of a barrel-feed tank, movable gravity-runs therein, means for raising and lowering one end of the runs whereby to supply the barrels on the runs with the desired quantity of water, and means for lifting the barrels off of said runs.</p> <p>“(5) In a barrel-washing apparatus, the combination of a barrel-feed tank, gravity-runs therein, arms for picking up barrels from the gravity-runs and delivering the same from the tank, and gear for operating the arms in a direction opposite to the motion of the barrels on the gravity-runs.</p> <p>“(6) In an apparatus for soaking, scrubbing and washing barrels by one continuous operation, the combination of a barrel-feed tank, inclined runs therein, means for adjusting the runs to various inclinations, means for lifting the barrels from the barrel-feed tank, and a barrel-scrubber to which the barrels are delivered by the lifting mechanism, the barrel in the scrubber being automatically discharged and replaced by the next succeeding barrel delivered from the lifting means.</p> <p>“(7) In an apparatus for soaking, scrubbing and washing barrels by one continuous operation, the combination of a barrel-feed tank adapted to contain a plurality of barrels, inclined gravity-runs within said tank along which runs the barrels are free to move from end to end. a barrel-scrubber, revolving hooks moving in a direction opposite to that of the feed of the barrels, said hooks being adapted to lift the first barrel of the series off the runs and deliver it from above to the scrubber, the barrel in the scrubber being automatically replaced by the next succeeding barrel delivered from the revolving hooks.”</p> <p>And the following drawing exhibits the structure in side elevation:</p> <p> </p> <p>The alleged infringement device of the appellees is illustrated as follows:</p> <p> </p>

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

This cause comes here upon appeal by complainant from a decree dismissing on demurrer bill for infringement of reissue patent No. 12,085, granted to Ahnon E. Norris, assignor to complainant, February 24, 1903, for clutch mechanism. The opinion of the court below is reported in 140 Fed. 716.

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decree (139 Fed. 393) dismissing bill alleging infringement of complainant’s patent No. 503,870, granted to George W. McCaslin, August 22, 1893, for an endless chain conveyor.</p>

<p>Appeal — Decisions Reviewable — Interlocutory Decbee — Patents—Suit fob Infringement.</p> <p>The rule of Marden v. Campbell Printing Press Co., 67 Fed. 809, 15 C. C. A. 26, applied, to the effect that an interlocutory decree, adjudging certain claims of a patent valid and infringed, and directing an accounting. and other claims invalid or not infringed, is not final as to the latter, and an appeal does not lie therefrom by complainant.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 329-332, 336.]</p>

<p>Patents — Infringement—Lock Rod fob Cards.</p> <p>The Hunter patent, No. 628,886, for a lock rod for cards, while disclosing invention, is merely for a new mechanical arrangement of old elements, constituting an improvement on the prior art, and the invention is not so far an original one as to entitle the claims to a broad construction or application of the doctrine of equivalents. As so limited, held not infringed by the device of the Weidner patent, No. 760,404.</p>

This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, finding validity and infringement of a patent and decreeing injunction and accounting. The patent is No. 499,769, granted June 20, 1893, to George H. Whittingham for “Improvements in Automatic Switches,” title to which was in complainant prior to and at the commencement of the suit.

<p>Patents — Intention—Acetylene Gas Burners.</p> <p>The Shaffer patents, Nos. 617,942 and 634,838, for acetylene gas burners, are void for lack of invention.</p>

<p>1. Patents — Infbingement—Fubnace fob Reheating Glasswabe.</p> <p>In the Schulze-Berge patent No. 411,131, for a furnace for reheating or fire-finishing glassware, claim 1, which covers a furnace “provided with a ‘glory hole’ or ‘glory holes,’ accessible from below, for the introduction and withdrawal of glass articles substantially as and for the purposes described,” must be limited to a furnace which is capable of being combined and operated with the mechanism specified and covered by the other claims comprising the whole invention. As 'so limited held not infringed.</p> <p>2. Same.</p> <p>The Caldwell patent No. 442,855 for a furnace for reheating and finishing glassware is not pf a pioneer character, and the claims, which describe specific mechanism, must be limited to such mechanism or its equivalent. Claims 3, 5, and 7, which describe as an element of the combination therein claimed a horizontally revolving table supporting vertical rods for carrying the articles to he heated, and which, by its revolution, carries them through the furnace in the arc of a circle, are not infringed by a mechanism in which the carrier is an endless chain moving through the furnace in a straight line, and mounted on a movable frame so that the whole may be withdrawn from the furnace.</p>

In Equity. This is a final hearing in equity. Complainants by their original bill allege exclusive ownership of two certain' letters patent of the United States, Nos. 418,678 and 368,804, for former, known as the “Blades Patent,” being for an electric starting box or rheostat, and the latter, known as the “Baker Patent,” being for an electric resistance coil, which two devices are capable of conjoint use in the same structure, and complainant avers that it employs and…

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

<p>In Bankruptcy. On involuntary petition.</p> <p>The respondent corporation was incorporated for the purpose, among other things, of “manufacturing building stone, ornamental stone, paving stone, monuments, and other forms of manufactured stone from granite and other kinds of stone, and for that purpose, quarrying, cuiiing, dressing, carving, and otherwise fashioning granite and other kinds of stone; and selling, exporting, or otherwise disposing of all forms of granite and other kinds of stone.”</p>

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

At Law. This action is brought by Josephine Fourier and Peter Richard, citizens of South Dakota, against William S. MclCinzie and Nelson Story, Jr., citizens of Montana, to recover certain moneys claimed to be due the complainants on account of certain judgments obtained against the government of the United States, part of which judgments were paid to the defendant MclCinzie.

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

<p>Towage — Injury to Tow by Striking Jetty — Negligent Navigation by Tijg.</p> <p>A tug in charge of an experience!! master held in fault for an injury to a barge in tow by collision with a stone jetty at the mouth of a creek which the tug and tow were entering across a strong flood tide, because of the failure of the master to make sufficient allowance for the effect, of the tide which swung the tow against the jetty, although there was a clear channel of 150 feet at the entrance.</p> <p>[Ed. Note. — Por cases In point, see vol. 45, Cent. Dig. Towage, §§ 11-23.1</p>

<p>1. Equity — Bill—Multieariousness.</p> <p>In a suit for the appointment of a receiver of a bankrupt prior to adjudication for the purpose of taking possession of property alleged to have been fraudulently conveyed to various relatives of the bankrupt, the bill was not multifarious because many claimants were joined who were the various alleged fraudulent transferees of the property.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, §§ 371, 372.]</p> <p>2. Bankruptcy — Fraudulent Conveyances — Remedies of Creditors — Appointment oe Receiver — Jurisdiction.</p> <p>Bankr. Act July .1, 1898, c. 041, § 23, subd. b, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431], as amended by Act Cong. Feb. 5, 3903, c. 487, § 8, 32 Stat. 798 [II. S. Comp. St. Supp. 1905, p. 680], provides that suits by a trustee in bankruptcy shall only be brought or prosecuted in the courts where the bankrupt’s estate is being administered by such trustee or might have been brought or prosecuted if proceedings in bankruptcy had not been instituted, unless by the consent of the proposed defendant, except suits for the recovery of property under section 60, subd. b, and section 67, subd. e, 30 Stat. 562, 564 [U. S. Comp. St. 3901, pp. 3445, 3449], which relate to preferences given by the bankrupt and conveyances made by him within four months prior to the filing of a petition -with intent to defraud creditors, which -are declared void; such sections being amended so as to provide that for the purpose of setting aside such preferences or conveyances any court of ' bankruptcy and any state court having jurisdiction shall have concurrent jurisdiction. Held, that a court of bankruptcy, after the filing of a petition and before adjudication, has jurisdiction of a bill by creditors for the appointment of a receiver and to vacate alleged fraudulent conveyances of the bankrupt property made within four months prior to the filing of the petition.</p> <p>3. Fraudulent Conveyances — Transfer to Relatives.</p> <p>Where certain bankrupts made transfers of their property to various of their relatives, leaving themselves without sufficient means to satisfy their creditors, the transfers were prima facie fraudulent, and the burden was on the grantees to furnish strong proof that the transfers were made in good faith.</p> <p>I Ed. Note. — For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, §§ 138, 344, 801, 810.]</p> <p>4. Bankruptcy — Receiver—Appointment-—Injunction.</p> <p>Where, after the filing of a bankruptcy petition, but before adjudication, certain creditors filed a bill to set aside alleged fraudulent transfers of the bankrupt’s property to their relatives, charging that by far the largest part of the property so transferred consisted of two stocks of merchandise easily dissipated, and that the transferees were actively engaged in secreting and carrying the same away, the bill warranted the appointment of a receiver and the issuance of an injunction restraining the transferees from disposing of any of the property so transferred and requiring them to deliver the same to the receiver.</p>

<p>In Admiralty. Suit in rem for personal injury. See 147 Fed.-.</p>

<p>In Admiralty. Suit to recover for nondelivery of cargo.</p>

<p>Bankruptcy — Coepobation—-Liable to Adjudication.</p> <p>Where a corporation was organized to carry on a general stock, bond, grain, and brokerage business and was authorized to trade on its own behalf in stocks, bonds, grain, etc., and lease and dispose of real and personal property, it was subject to adjudication as a bankrupt corporation engaged in “trading in mercantile business.”</p> <p>FEd. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 17.</p> <p>Persons subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat Bank, 42 C. C. A. 4.]</p>

Iii Bankruptcy. On motion to confirm commissioners’ report recommending a discharge and application of sundry creditors to delay the same.

<p>1. Siiiuping — Contract—Services oe Wrecking Steamer — Construction.</p> <p>Where plaintiff contracted on behalf of a wrecking company to pull a schooner lodged in the launching with a powerful steamer to MAs satisfaction, the contract required that the pulling should be of such a character as should satisfy a reasonably prudent man in the light of the circumstances surrounding the transaction.</p> <p>2. Same.</p> <p>Where, after a wrecking company had pulled a stranded schooner sufficiently to comply with a contract to pull the same to M.’s satisfaction, the schooner was not floated, and the services of the company’s steamer were necessary in the subsequent endeavors which finally dislodged the schooner, the wrecking company was entitled to recover for such subsequent services on a quantum meruit.</p>

<p>1. Evidence — Simula» Facts — Conspiracy to Defraud.</p> <p>Where, In an action to recover money alleged to have been obtained from plaintiff by means of a confidence game, it was charged that there was a conspiracy between the defendants to deprive persons of their money by fraud and deceit, evidence as to other eases of a similar character to that in which plaintiff was defrauded, in which defendants acted in concert for the same purpose, was admissible.</p> <p>[Ed. Note. — For cases in point, see vol. 20, Cent. Dig. Evidence, § 405.]</p> <p>2. Corporations — Torts of Officers — Liability.</p> <p>Where a banking corporation, knowing that defendant B. and his associates were engaged in a confidence game, assisted in the furtherance of the scheme, both by representing to the victims as they were brought in that B. was a man of standing, entitled to credit, and by lending B. banking facilities, with which alone he was enabled to conduct his scheme and collect drafts, etc., drawn by the victims before payment could be stopped, and. the officers of the bank themselves, with knowledge that ihe victims were to he defrauded, drew drafts for such victims, and telegraphed to other banks to ascertain the victims’ responsibility, the hank as a corporation was liable as a party to the scheme.</p> <p>3. Action — Grounds — Fraudulent Transaction — Recovery of Money —Paettceps Orimtnis — In Pari Delicto.</p> <p>B. and Ms associates, who were confidence men engaged in enticing others to their city and swindling them out of their money by means of pretended foot races, induced the plaintiff to come and while there to wager money represented as belonging to B. upon the result of such a race upon promise of a percentage of the expected winnings. It was falsely represented to plaintiff that the foot race bad been fixed so that B. would certainly win. It was also represented that the men with whom the wagers were made were wealthy miners, whereas in fact they were not miners, but were secretly associated with B., and were members of his band of swindlers, as were also the foot racers. B. pretended to act as stakeholder, and to secretly withdraw moneys from the stakes from time to time, and to pass them to plaintiff to be again wagered. Plaintiff was a’so induced to wager his own money upon the pretended foot race. Plaintiff did not win, and it was never intended by the swindlers that he should win. All of the acts and pretenses of B. and ills associates were false _ and fraudulent, and were part of a prearranged and frequently practiced scheme to defraud. Held that, although the plaintiff thought that he was participating in a sellóme to defraud others, that he was doing so existed not in fact, but only in his own mind, and all that he did operated solely to defraud himself; that he was not particeps criminis in any unlawful proceeding, and was not in pari delicto with the swindlers who defrauded him, and was not deprived of his right to recover his money.</p> <p>4. Same.</p> <p>Plaintiff haying made no attempt to enforce the contract or recover the fruits thereof, but having repudiated the same and sued to recover tile money of which lie was defrauded, he was not deprived of such remedy by the maxim ex dolo malo non oritur actio.</p>

<p>1. Criminal Law — Vubdtot-—Construction.</p> <p>In a prosecution tor violating the national bank act (Act June 3, 1864, c. 106, 13 Stat. 101 [U. S. Com)). St. 1901, p. 3486]) the indictment contained .150 counts covering 50 transactions with reference to each of which embezzlement, abstraction, and willful misapplication were severally charged. The court directed an acquittal as to the charges of embezzlement and charged that the first three counts involving a $10,000 note transaction might be first considered, and, if that money was abstracted or willfully misapplied, the jury should convict defendant, and need not go further into the case. The jury on returning announced that they had found defendant guilty as indicted in the third count; but the verdict, as recorded, was that the defendant was guilty in manner and form as charged in the third count in the indictment, and not guilty as to the remaining counts. Held, that such verdict was not tantamount to an express finding that the facts requisite to a conviction on any of the other counts had not been shown to exist, and that there was therefore no evidence on which a finding of their existence with reference to the third count could be sustained.</p> <p>2. Banks and Banking — National Banks — Abstraction and Misapplication op Funds.</p> <p>In a prosecution of the president of a national bank for violating the national bank act (Act June 3. 1864. c. 106, 13 Stat. 101 [U. S. Comp. St. 1001, p. 3486]), evidence held sufficient to require submission to the jury of the question whether he willfully abstracted and misapplied to his own use funds of the bank to the extent of $10.000, without the authority of the bank’s board of directors.</p>

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

<p>L Vendor and Purchaser — Option Contract — Consideration—Construction.</p> <p>Defendants agreed in consideration of $500 to sell to plaintiff an option for 30 days to purchase certain land aggregating about 11,000 acres for $76,180, or at the rate of $6.75 per acre for the land conveyed, “for said consideration and price of $76,180, more or less, being with the said $500 at the rate of $6.75 per acre, payable one-third in cash in 30 days from the date of the contract; the balance to be secured by mortgage on the land. Within 30 days plaintiff notified defendant’s agent of his acceptance, and directed him to pay the $500 to defendants “as part of the purchase price,” after which defendants received and retained such sum without intimating that they held it as a forfeit for plaintiff’s failure to pay the one-third of the price within thirty days, because of defendants’ failure to furnish abstracts for all the lands described. Held, that the $500 paid was not a mere consideration for the option, but that after notice of plaintiff’s acceptance it was held by defendants as a part of the purchase price of the land.</p> <p>2, Same — Expiration op Contract.</p> <p>A contract for the sale of a large tract of land required payment of one-third in cash in 30 days from the date of the contract, balance to be secured by mortgage ou the lands. The contract also bound the vendors within 30 days from the date of the contract to convey the lands to plaintiff and to deliver to him complete abstracts of title which he was to have 10 days to examine, and that if it was found that the title was defective as to any of the lands they should be excepted and the price reduced at the rate of $0.75 per acre. Plaintiff notified defendants of his acceptance of the offer, and they received the initial guaranty payment as a part of the purchase price, but failed to tender the abstracts within the 30 days thereafter, treating the contract as in existence, and during the succeeding period of nine months furnished abstracts showing title to about 8,000 acres of land. Held, that plaintiff’s failure to tender one-third of the purchase price within 30 days from the execution of the' contract, as provided thereby, did not operate to terminate it.</p> <p>3. Same — Objections—Waiver.</p> <p>Where a contract for the sale of land required the vendors to deliver to the vendee complete abstracts of title, the vendee to have 10 days therefrom in which to examine the same, and that within 30 days from the date of the contract the land should be conveyed and the vendee should pay one-third of the price," but abstracts were not delivered, and the vendors were not in position to make title within 30 days and after a period of nine months, during which title was cleared to a portion of the land, the parties met to convey such portion, and the only reason for the vendors’ refusál to proceed was their insistence that the vendee should pay back interest on the purchase price, they thereby waived the right to claim that the contract was terminated by the ven- . dee’s failure to tender one-third of the price within 30 days from the execution of the contract.</p> <p>4. Same — Interest.</p> <p>A contract for the sale of land executed November 21, 1901, provided for payment of the price; one-third cash in 30 days from the date of the contract, and the balance in three notes dated December 21, 1901, due December 21, 1902, 1903, 1904, with interest, etc., secured by mortgage on the land. The vendors for a period of nine months after the execution of the contract were unable to make title when the parties met September 12, 1902, for the purpose of closing up the transaction and conveying so much of the land as to which the vendors had title. Held,, that the vendors were not entitled to interest on the purchase money from December 21, 1901, and that the tender of notes for the unpaid portion of the price bearing interest from September 1, 1902, constituted a full compliance with the vendees’ obligation.</p> <p>5. Same — Contract—Rescission—Breach—Notice.</p> <p>The vendee, being unable to obtain title to lands purchased as agreed, wrote the vendors: “You are hereby notified that I rescind said contract and declare the same to be no longer in force.” This language was however followed by a statement that the vendee demanded return of the guaranty payment made on the contract, and notified the vendors that he would hold them responsible for all damages sustained on account of their refusal to carry out and perform the contract. Held, that such letter was a mere notice that the vendee intended to treat the contract as broken for the purpose of further dealings. between the defendants, and did not amount to a rescission.</p> <p>6. Same — Tender.</p> <p>Where pending performance of a contract for the sale of land, the vendee notified the vendors of a variance in the description of the tract between the abstracts furnished and the contract, but the vendors made no reply to such objection, the vendee was entitled to accept the abstracts as correct, and hence the vendors were not entitled to object to a tender in conformity with tlie abstracts because it included lands different from those described in the contract.</p> <p>7. Same.</p> <p>Where, after tender of performance of a contract for the sale of lands by the vendee, the vendors notified him that if; on a certain day, he carried out the terms of the purchase required of him, they would convoy In the manner specified in the contract the lands described or referred to in the vendee’s tender, the vendors thereby conceded that the tender made was as to the Lands properly described therein.</p>

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

<p>1. Insurance — Exemptions—Cyclone.</p> <p>Where a policy insuring against loss from the accidental discharge or leakage from an automatic sprinkler system, exempted insurer from liability for loss caused by earthquakes or cyclones, or by blasting or explosions of any kind, or by the fall or collapse of any building or buildings or part thereof, the term “cyclone"’ should be construed in its popular sense as referring to any character of a wind storm distinguished by its concentrated force and violence, so resistless' as to make it especially destructive to buildings in its narrow pathway, and was not limited to a storm proved to have been characterized by high winds rotating about a center of low atmospheric pressure, which center moved with greater or less velocity.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. 'Insurance, § 1127.],</p> <p>2. Same — Contracts oe Insurance.</p> <p>Where ambigious words or terms are employed, they are to be construed strongly against the insurer; but such contracts, like other contracts, are to be construed and applied according to the ordinary meaning of the terms employed, in cousonance with their popular sense.</p> <p>[Ed. Note. — For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 292, 295.]</p> <p>3. Same — “Cyclone.”</p> <p>Accordingly, in construing the word “cyclone” in said policy, in order to ascertain the sense in which it was employed, the rule of “noscitur a sociis” may be applied. So, where the policy excepts from liability injury “resulting from or caused by earthquakes, or cyclones, or blasting, or explosives of any kind,” etc., held, that from its associates the conclusion is warranted that it was not the purpose to apply the insurance policy to a violent windstorm, which, like an earthquake, blasting, or explosive, from without, was calculated to so jar or topple the building as to dislodge the automatic sprinkler, whereby the house was flooded and the injury done.</p> <p>[Ed. Note. — Eor cases in point, see vol. 28, Cent. Dig. Insurance, § 1127.]</p> <p>4. Trial — Instructions.</p> <p>In giving instructions to a jury, the court should avoid the employment of terms and definitions of a purely technical, scientific character, calculated to confuse the minds of the triors of the facts, where the questions to be submitted are well susceptible of presentation in plain, practical terms, easy of comprehension and application.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, § 512.]</p>

This is an action by the legal representative of James F.. Clarkson to recover damages for tiis accidental death alleged to have been caused by the negligence of the plaintiff in error (hereinafter for convenience designated as the defendant). The accident occurred at a street crossing in the city of Cedar Rapids, Iowa, on the evening of October 24, 1902. The plaintiff below recovered judgment in the sum of $2,000.

<p>1. Trial — Instructions—Refusal.</p> <p>Where, in an action for breach of a contract of sale, the court charged that if the defendants were not guilty of a breach of the contract and acted in good faith, were ready to take the lumber contracted for, and the only reason they did not take it was because plaintiff was unable to fill their orders, then plaintiff could not recover, but that if defendants, and not plaintiff, were guilty of a breach of the contract, plaintiff was entitled to recover, it was not error to refuse to charge that plaintiff could not recover unless it had previously complied with the conditions imposed on it by the contract, it being substantially covered by the charge given.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, § 652.]</p> <p>2. Sales — Place of Delivery.</p> <p>In the absence of any contrary provision in a contract of sale, the place of delivery is the place where the goods are located when sold.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 215.]</p> <p>3. Same — Contract—Construction.</p> <p>A contract provided for the purchase of 4,000,000 feet of different grades of dimension lumber at an agreed price on a certain freight rate, and 1,000,000 more feet to be delivered on another freight rate, “to be shipped at the rate of from 40 to 50 cars per month,” in accordance with shipping directions to be given by the buyers from time to time. Held, that such contract bound the buyers to give shipping instructions within a reasonable time, and required the seller, within a like reasonable time, to make shipments according to the instructions.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, §§ 222, 223.1</p> <p>4. Same — Uncertainty.</p> <p>Tilo clause of tlie contract requiring shipments to be made according to shipping instructions to be given from time to time by tlie buyers did not render the contract void for uncertainty or unenforceable except at the option of the buyers.</p> <p>[Ed. Note. — For cases In point, see vol. 43, Cent. Dig. Sales, § 54.]</p> <p>5. Same.</p> <p>A contraed by correspondence for the sale of lumber provided for shipment in accordance with the buyers’ directions, and contained a clause that the buyers understood that the seller would be able to ship from 40 to 50 cars per month in accordance with shipping directions. Held, that such clause should be treated as a limitation imposed in favor of the seller to safeguard it against excessive orders at any one time, and did not impose on the buyers the obligation to order that much lumber monthly.</p> <p>[Ed. Note. — For cases In point, see vol. 43, Cent. Dig. Sales, §§ 222, 223.]</p> <p>8. Same — -Measure of Damages.</p> <p>If, in an action by the seller for breach of a contract for the sale of lumber, it appears that the lumber purchased had a market value at the mill from which it was to be shipped, tlie measure of plaintiff’s damages is the difference between tlie contract price and market value at the time or times when delivery was required by the contract.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, §§ 222, 223.]</p> <p>7. Same — Measure of Damages.</p> <p>If, in a like action, it appears that the lumber purchased had no market value at the time and place of delivery, the measure of plaintiff's damages is the difference between tlie contract price and the market value at the nearest available market where the lumber could have been sold, less freight and other expenses attending the transportation to that market.</p> <p>[Ed. Note. — For cases in point, see vol. 43, Cent. Dig. Sales, § 1099.]</p>

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

<p>1. Witnesses — Criminal Law — Misconduct of Court — Cross-Examination.</p> <p>Where, in a prosecution for robbery, a witness had testified positively in support of defendant’s alibi as to the place where he saw defendant on or about the time of the alleged robbery, it was improper for the court to catechise the witness at length as to whether he was absolutely sure that the defendent was at the place stated, and to tell the witness that if he was mistaken he could correct his statement, and to ask him to think and see whether or not he was not mistaken, and to correct his testimony if there was any doubt in his mind concerning his testimony.</p> <p>[Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 852, 911.]</p> <p>2. Same — Impeachment of Character of Witness — Accusation of Crime.</p> <p>•In a prosecution for robbery, it was improper for the prosecuting attorney, after certain witnesses had answered that they had been arrested for offenses in instances in which they had not even been prosecuted, and in others where they had been acquitted, to ask them whether they had not been arrested or accused several times, the mere accusation or indictment of a witness for a criminal offense, without conviction, being inadmissible for the purpose of impeachment.</p> <p>[Ed. Note. — For cases in point, see voi. 50, Cent. Dig. Witnesses, §§ 1126-1128.]</p> <p>3. Criminal Law — Alibi—Burden of Proof.</p> <p>Where, in a prosecution for robbery, the indictment contained a charge that defendant did “then and there’’ commit an’ assault, the burden of proof that defendant was present at the time and place alleged was on the prosecution, and never shifted, and it was therefore error to charge that the defense of alibi, to be entitled to consideration, must be such as to show that at the very time of commission of the offense charged the accused was at another place so far away and under such circumstances that he could not have participated in the commission of the offense, and that the burden of proof that the defendant was at another place, etc., must be sustained by a preponderance of the evidence.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 751.]</p> <p>4. Same-^Curing Error.</p> <p>Such instruction was not cured by a further _ instruction that if the jury had any reasonable doubt as to whether defendant was at some other place when the crime was committed, they should give defendant the benefit of that doubt.</p>

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

<p>1. Bankruptcy — Petition by Adverse Claimant of Property — Nature of Proceeding.</p> <p>A receiver in bankruptcy, by order of the court, took possession of a stock of goods which the bankrupt had transferred to a third person, and, by stipulation between the petitioning creditors, the trustee, and the transferee, the latter filed an intervening petition in the court of bankruptcy setting up his claim to the goods as a bona fide purchaser. Held, that! the proceeding on such petition was essentially one in equity relating to property in the custody of the court, and triable by the court without the intervention of a jury.</p> <p>2. Same — Fraudulent Transfer of Property — Purchaser of Stock of Insolvent Merchant.</p> <p>A purchaser of the entire stock of an insolvent retail merchant, within four months prior to his bankruptcy, is presumptively a purchaser with knowledge of the insolvency, and the burden rests upon him to show by satisfactory evidence that his purchase was in good faith for a present fair consideration, and that he did not know or have reason to believe, after making all reasonable inquiry, that the seller was insolvent.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 285.]</p> <p>3. Same — Evidence Considered.</p> <p>A bankrupt, within a few days prior to his bankruptcy, and when insolvent, sold to petitioner two stocks of goods for less than half their actual value. The goods were bought and paid for in the evening after a short negotiation, without invoice or examination of the goods or the bankrupt’s books, or any inquiry as to his financial condition. Petitioner borrowed the greater part of the money from a banker who was present when the sale was made, and who had reason to know of the seller’s insolvency. Held, that petitioner had no standing in equity as a purchaser in good faith, but that the sale was fraudulent and void as against the bankrupt’s creditors.</p>

<p>1. Criminal Law — Consolidation of Indictments.</p> <p>Indictments charging offenses of the same nature and degree and based on the same statute may be consolidated for trial under Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720].</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1376.]</p> <p>2. Same— Separate Trial of Godefendants — Discretion of Court.</p> <p>The request of defendants charged In the same indictment for separate trials is addressed to the discretion of the court, and its action in refusing the same will not be reviewed in the absence of clear indications that serious prejudice resulted therefrom to one or more of the defendants.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1380; vol. 15, Cent. Dig. Criminal Law, § 3050.]</p> <p>3. Same — Writ of Error — Review—Presumptions—Sentence—Good and Bad Counts.</p> <p>Where defendants were acquitted on certain counts of an indictment and convicted on others, and the judgment imposes a punishment within the limits permissible under any one of such counts, if any of them are good it is sufficient to support the judgment.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3035.]</p> <p>4. Public Lands — Unlawful Inolosure — Indictment—Sufficiency.</p> <p>Indictments under Act Feb. 25, 1885, c. 149, § 1, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524], for inclosing and asserting a right to the exclusive use and occupancy of public lands without claim, or color of title thereto-acquired in good faith under the land laws, considered, and held good.</p> <p>5. Criminal Law — Review on Error — Sufficiency of Evidence.</p> <p>Where the bill of exceptions in a criminal case does not profess to contain all the evidence, the appellate court must assume that there was sufficient to support the verdict.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3031.]</p> <p>6. Jury — Peremptory Challenges in Criminal Case — Consolidation of Indictments.</p> <p>Semble, that when a number of indictments against the same defendants charge similar offenses of the same degree, based on the same statute, and which might have been charged in separate counts of the same indictment, their consolidation for trial places them in the same category as if they were separate counts of one indictment, and the defendants are entitled to only the same number of peremptory challenges.</p> <p>7. Criminal Law — Writ of Error — Review—Harmless Error — Peremptory Chat/lenges — Failure to Exhaust.</p> <p>A defendant who does not exhaust the peremptory challenges allowed him cannot assign as error the refusal of the court to allow a greater number.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Daw, § 3115.]</p> <p>8. Public Lands Illegal Inclosure — Prosecution—Evidence.</p> <p>On the trial of an indictment for inclosing and assorting an exclusive right to public land without claim or color of title, in violation of Act Feb. 25, 1885, c. 149, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524], acts, conduct, and statements of defendants tending to show the assertion of a right to exclude the general public or others from the lands described are competent evidence.</p> <p>9. Criminal Law — Error in Admission of Evidence — Correction by Instruction.</p> <p>The misconduct of a prosecuting attorney in securing the admission of incompetent testimony, prejudicial to defendants upon Ms statement that its materiality would later be shown, was rendered harmless, aud the admission of such evidence is not assignable as reversible error where the court subsequently clearly stated to the jury that they should disregard it.</p> <p>[Ed. Note. — For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 2122.]</p> <p>10. Same — Joinder of Defendants in Writ of Error — Decision of Appellate Court.</p> <p>Where two defendants tried together after conviction sued out a joint writ of error and joined in the assignment of errors and argument, the appellate court cannot consider their cases separately, but must affirm or reverse.as to both.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3215.]</p>

<p>1. Building and Loan Associations — Witiidbawals — Effect of Insolvency.</p> <p>A building and loan association was organized under the statutes of Michigan (Comp. Laws 1897, c. 206), which provide that “any stockholders wishing to withdraw from the said corporation shall have the power to do ho by giving thirty days’ notice in writing at a stated meeting of his or her intention to withdraw, * * * hut payments of the stock so withdrawn shall only he due- when the funds applicable to Hie demands of withdrawing stockholders are sufficient to . meet and liquidate the same.” The association became in fact insolvent, but 'continued to do business in that condition, although regular meetings of the directors were not held, and the officers, except the secretary, -ceased to perform their duties, devolving upon him practically the entire management of its business and control of its funds. While in such condition a stockholder effected a withdrawal through the secretary, and received payment of his slock without any notice having been given at a stated meeting and when the association had no funds lawfully applicable to withdrawals. Hold, that such withdrawal was without authority and ineffective, and could not be validated, by a subsequent ratification by the directors, the conditions on which a withdrawal could be made not then existing, and that the amount so received was recoverable for the benefit of all of the stockholders.</p> <p>[Ed. Note. — For cases in point, see vol. 8, Cent. Dig. Building and Loan Associations, § 16.]</p> <p>2. Samis — Aotion by Receives.</p> <p>A receiver appointed for an insolvent building and loan association. ■ when authorized by the court, may maintain an action against a stockholder to recover a fund unlawfully withdrawn by him, and which rightfully belongs to the association for distribution among all of its stockholders.</p>

This was an action by the cattle company and others to recover from the railway company damages alleged to have been sustained by a wrongful deviation and the negligence of the defendant in respect of a shipment of 778 head of cattle over its lines, resulting in the death of part of them and injury to the others.

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

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

<p>1. Towage — Negligence of Tug — Liability.</p> <p>A steamer which engages to tow a vessel to a port undertakes to exercise reasonable skill and care in everything relating to the work, including the entrance to the port, and the lack of either charges her with liability for the damage caused thereby.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Towage, §§ 11-23.]</p> <p>2. Same.</p> <p>The entrance to the harbor at Duluth is through a canal 1,200 feet long and 300 feet wide, which extends in a general easterly and westerly direction and is bounded by heavy cement piers on each side.</p> <p>It was negligence for a laden steamer which was towing a sailing vessel light up Lake Superior to Duluth upon a line 900 feet long when the steamer approached the canal from a southerly direction into a northwesterly wind of 35 to 40 miles an hour which blew nearly athwart the line of the canal, to fail to wait for a tug or to take some other reasonably safe course, and to attempt to draw the barge, whose lights were visible, and which was drifting far to the leeward, into the canal, whereby the barge was brought into collision with the outer end of the south pier and damaged.</p> <p>8. Same — Contributory Negligence of Tow.</p> <p>The master of a barge in tow of a steamer which has drawn it up from a southerly direction in a heavy northwest wind and then squared away to enter the Duluth ship canal, who first learns when he is moving at the rate of 10 miles an hour and is within 200 feet of the south pier, that his vessel will be drawn against it, is not guilty of contributory negligence because he fails to throw off or cut his tow line before his barge strikes the pier.</p> <p>4. Same — Acts of Master In Extremis.</p> <p>The acts and failures to act of a master of a vessel after it has been put in extremis by the negligence of another, do not ordinarily constitute contributory negligence even when erroneous.</p> <p>[Ed. Note. — For cases in point, see vol. 45, Cent. Dig. Towage, §§ 24-26.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — Appeals.</p> <p>Under the express provisions of Bankr. Act July, 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], appeals may be taken in bankruptcy proceedings from the courts of bankruptcy to the Circuit Court of Appeals and to the Supreme Courts of the territories in like manner as appeals in equity are taken.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Proceedings Reviewable — Nature of Remedy.</p> <p>Under the express provisions of Bankr. Act July 1, 1898, c. 541, 30 Stat 544 [U. S. Comp. St. 1901, p. 3418], appeal is the proper remedy to review a judgment adjudging or refusing to adjudge the defendant a bankrupt, a judgment granting or denying a discharge, and a judgment allowing or rejecting a debt or claim for S500 or over.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>3. Same — Record.</p> <p>On appeals in bankruptcy, no case will be heard until a complete record has been prepared by the clerk after he has been directed by counsel to do so, and unless the record conlains in itself, and not by reference, all papers, exhibits, deposits, and other proceedings necessary to the hearing in the appellate court.</p> <p>4. Same.</p> <p>On appeals in bankruptcy, the record required to be certified and filed is the record of the case in the bankruptcy court.</p> <p>5. Same — Petition to Superintend and Revise — Scope.</p> <p>An objection to an order entered nunc pro tunc, adjudging petitioner a bankrupt, is reviewable on appeal taken at the time the order of adjudication was entered, and not on a subsequent petition to superintend and revise.</p> <p>6. Same — Record—Certification—Rui.es.</p> <p>Circuit Court of Appeals Rule 36, subd. 2, relating to petitions to superintend and revise, and providing that petitioner shall canse a certified transcript of the record and proceedings of the bankruptcy court of the matter to be reviewed to be filed in the clerk’s office of the Circuit Court of Appeals within 30 days from the date of the filing of such petition, contemplates the certification of the record and proceedings by the clerk of the bankruptcy court, and not a transcript certified by the referee.</p>

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

<p>Appeal from the Supreme Court of the Territory of New Mexico.</p> <p>In Error to the Supreme Court of the Territory of New Mexico.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Illinois.</p> <p>The suit is in assumpsit brought by the General Paper Company, a Wisconsin corporation, against the Chicago Wall Paper Mills, a corporation organized •under the laws of Illinois, to recover something over $4,000 for certain wall paper sold and delivered by the plaintiff corporation to the defendant below in the year 1905. The declaration contains the common counts.</p> <p>To this declaration the defendant interposed the general issue, and also 16 pleas. These pleas set up with great elaboration a defense under the “AntiTrust Law,” so called, of Illinois. The facts set up in the pleas appear more at large in the opinion of the court. Thereafter, by leave of court, another' plea was interposed, numbered 17, which substantially reproduced the averments of the 16 pleas, and also set out certain alleged “confessions” of the plaintiff company made since the suit was brought, which are certain answers made under oath in response to interrogatories which the officers of nonresident corporations were compelled to make pursuant to an act of the General Assembly of Illinois, entitled, “An act to regulate the admission of foreign corporations for profit to do business in the state of Illinois.” Laws 1891, p. 206. The plea of the general issue was withdrawn, and the defense was rested solely upon the 17 special pleas.</p> <p>Demurrers were interposed to each of the said 17 pleas, which demurrers were sustained by the Circuit Court, and judgment nihil dicit was rendered in favor of the plaintiff and against the defendant below for the agreed price of the paper, and thereupon the case was brought to this court by writ of error.</p> <p>The sections of the statute that are material are as follows:</p> <p>“Pools, Trusts and Combines Prohibited.</p> <p>“Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: If any corporation organized under the laws of this or any other state or country, for transacting or conducting any kind of business in this state, or any partnership or individual or other association of persons whosoever, shall create, enter into, become a member, of or a party to any pool, trust, agreement, combination, confederation or understanding with any other corporation, partnership, individual, or any other person, or association of persons, to regulate or fix the price of any article of merchandise or commodity, or shall enter into, become a member of or a party to any pool, agreement, contract, combination or confederation to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this state, such corporation, partnership or individual or other association of persons shall be deemed and adjudged guilty of á conspiracy to defraud, and be subject to indictment and punishment as provided in this act.</p> <p>“Sec. 2. It shall not be lawful for any corporation to issue or to own trust certificates, or for any corporation, agent, officer or employees, or the directors or stockholders of any corporation, to enter into any combination, contract or agreement with any person or persons, corporation or corporations, or with any stockholder or director thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination or combinations, or the manufactured product thereof, in the hands of any trustee or trustees, with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or output of any such article.”</p> <p>(Section 3 imposes a fine upon the corporation, firm or association.)</p> <p>“Sec. 4. Any president, manager, director or other officer or agent or receiver of any corporation, company, firm or association, or any individual found guilty of a violation of the first section of this act, may be punished by a fine of not less than two hundred dollars ($200), nor to exceed one thousand dollars ($1,000), or be punished by confinement in the county jail not to exceed one year, or both, in the discretion of the court before which such conviction may be had.</p> <p>“Sec. 5. Any contract or agreement in violation of any provision of the preceding sections of this act shall be absolutely void.</p> <p>“Sec. 6. Any purchaser of any article or commodity from any individual, •company or corporation transacting business contrary to any provision of the preceding sections of this act shall not be liable for the price or payment of such article or commodity, and may plead this act as a defense to any suit for such price or payment.</p> <p>“Sec. 7. The fines hereinbefore provided for may be recovered in an action of debt in the name of the people of Illinois. If, upon the trial of any cause instituted under this act to recover the penalties as provided for in section 3, the jury shall find for the people, and that the defendant has been before convicted of the violations of the provisions of this act, they shall return such finding with their verdict, stating the number of times they find defendant so convicted and shall assess and return with their verdict the amount of the fine to be imposed upon the defendant in accordance with said section 3. Provided, that in all cases under this act, a preponderance of evidence in favor of the people shall be sufficient to authorize a verdict and judgment for the people.</p> <p>“Sec. 8. It shall be the duty of the prosecuting attorneys in their respective jurisdictions, and the Attorney General, to enforce the forgoing provisions of this act, and any prosecuting attorney of any county, securing a conviction under the provisions of this act, shall be entitled to such fee or salary as by law' he is allowed for such prosecution. When there is a conviction under this act, the former shall be entitled to one-fiftli of the fine recovered, vdfich shall be paid to him when the same is collected. All fines recovered under the provisions of this act shall be paid into the county treasury of the county in which the suit is tried, by the person collecting the same, in the manner now provided by law to be used for county purposes.”</p> <p>Approved June 31, 1891. Laws 1893, pp. 206-208.</p> <p>The rulings of- the court below in sustaining the demurrers to each of said 17 pleas, are assigned as errors.</p>

This was an action under a Kansas statute by Augusta Bishard, as administratrix, to recover damages of the railroad company for the death of her husband, alleged to have been caused by its negligence and that of its employés. The plaintiff had judgment in the trial court, and the railroad company prosecuted this writ of error.

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

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

<p>In Error to the District Court of the United States for the District of Massachusetts.</p> <p>On petition of John W. Trafton for leave to file a motion for a new trial in the District Court.</p>

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

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

This was an action by the First National Bank of Lincoln, Neb., and the heirs of John L. Carson against the Penn Mutual Life Insurance Company to recover the amount of a judgment they had previously obtained against the New Lincoln Hotel Company. It was charged that the insurance company had obligated itself by an oral contract with the hotel company to discharge the judgment, and that the latter had assigned its rights under the contract to the plaintiffs.

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

<p>1. Patents — Infringement.</p> <p>Upon tlie question of infringement the structure itself is to be looked to and not the results obtained, except as they may go to the question of identity, and infringement is not avoided because the patented device is not utilized to the full extent possible nor because a feature is retained which might be dispensed with to advantage and which it was one of the purposes of the patented device to render unnecessary.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 370-376.]</p> <p>2. Same — Invention—Utility as Evidence.</p> <p>The utility of a patented device is not necessarily a proof of invention.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent Dig. Patents, §§ 39, 52.</p> <p>Utility, extent of use, and commercial success as evidence of invention, see note to Doig v. Morgan Mach. Co., 59 C. C. A. 620.]</p> <p>8. Same — Patentable Invention — When Notice Taken of Without Proof.</p> <p>Even though the point is not made in the proofs that the device does not disclose patentable invention, it is not to he disregarded when It is plain.</p> <p>[Ed. Note. — For eases in point, sea vol. 38, Cent. Dig. Patents, §§ 35, 543.]</p> <p>4. Same — Invention.</p> <p>■ The Wills reissued patent No. 12,800 (original No. 742,540) for a refrigerator building, the essential feature of which is a device to prevent drafts up and down elevator shafts in such buildings, 'is void for lack of invention, the advantages being so manifest and the means used for obtaining them so obvious that only mechanical skill was required to supply them.</p>

<p>1. Patents — Suit fob Infringement — Laches.</p> <p>The owner of a patent is not barred by laches from maintaining a suit in equity for its infringement because of a delay of six years in bringing such suit after the alleged infringement commences where it appears that during such time another suit was pending for infringement by a machine substantially the same as defendant’s.</p> <p>[Ed. Note. — For cases in point, see vol.- 38, Cent. Dig. Patents, §§ 467-469.</p> <p>Laches as a defense in patent infringement suit, see notes to Taylor v. Sawyer Spindlef Co., 22 O. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p> <p>2. Same — Tmtíingemeivt—Corrugating Machipie.</p> <p>Claim 1 of the Flecker patent, No. 473,019, for a corrugating machine-discloses patentable invention in the seaming roll therein described. Also held Infringed. Claim 8 is void for lack of invention.</p> <p>3. Same — Recovery ra Part — Disclaimer.</p> <p>Where, in a suit for infringement of a patent, one claim involved is held valid and infringed, and another void for lack of invention, while under Rev. St. § 973 [U. S. Comp. St. 1901, p. 703], the complainant cannot recover costs unless a disclaimer is filed as to the claim adjudged invalid, such disclaimer will not be required as a condition precedent to the recovery of profits or damages for infringement of the valid claim.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 228.]</p>

In Equity. Suit to enjoin an alleged infringement of letters patent No. 402,140, issued to James A. Carr for a machine for shaping sheet metal pipes, and which was assigned by Carr to William J. Plecker.

<p>Customs Duties — Classification—Old Fishplates — Scrap Steel.</p> <p>Old fishplates, which are so worn as to have lost their usefulness for railway purposes and are suitable for use only as scrap steel, are not dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 130, 30 Stat. 160 !'TL S. Coni]). St. 1901. p. 16371, as “railway fishplates.” but under paragraph 122, 30 Stat. 159 [U. S. Comp. St. 1903, p. 1686], as “scrap steel * * * fit only to be remanufactured.”</p>

<p>Injunction — Breach of Contract — Preliminary Injunction — Grounds fob Denial.</p> <p>Where, in a suit to restrain the breach of an alleged contract, the proof, on an application for a preliminary injunction left the question of the existence of the contract in doubt, and it was also doubtful whether a determination of the suit on its meriis in plaintiff’s favor was reasonably probable, rlie preliminary injunction will not be granted.</p> <p>| Ed. Note. — For eases in point, see vol. 27, Cent. Dig. Injunction, § 30!).]</p>

<p>Shipping — Sinking op Small Boat — Displacement Waves of Tug.</p> <p>Evidence considered and held not to sustain tlie claim of a libelant that . a small boat which he was towing across the Delaware river, loaded with six tons of wheat, was sunk by the displacement waves of a passing tug, but to show by a preponderance that she was swamped and sunk before such waves reached her by waves caused by the wind, owing to being overloaded, and having too little freeboard.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The case relates to steel strips, which were returned by the appraiser as cold-rolled and brightened. The collector imposed the appropriate rate of duty provided in paragraph 135, Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 161 [U. S. Comp.

<p>In Bankruptcy.</p> <p>On March 2, 1900, Referee Birch, at Birmingham, certified that Mrs. J. Huff, the manager of the Home Discount Company, a money broker, stood in contempt for refusing to obey an order made by the referee on February ' 15, 1906, directing her to withdraw an assignment of the wages of one A. J. Rose, a bankrupt, adjudged on the 13th of February, 1900, which she filed the next day after hearing of the adjudication, with his employer, the Alabama Great Southern Railroad Company. The certificate stated, among-other things, “that the assignment was served on his present employer for the purpose of harassing and annoying the bankrupt, and forcing him by unlawful methods to pay an outlawed debt, with the hope that, unless said assignment was withdrawn, the bankrupt would lose his position under the rules and regulations of the railroad company by whom he was employed.” It also certifies “all pleadings and papers filed in this case,” and that a rule was issued by the referee to Mrs. Huff, who appeared, and on the hearing, her answer being adjudged insufficient, she was directed to withdraw the assignment; but neither the rule, nor the pleadings, nor the order to Mrs. I-Iuff is contained in the papers so certified. The pleadings and papers certified show that on the loth of February, 1906, the referee issued a rule to the Home Discount Company to show cause why it should not dismiss the assignment proceeding, and propound its claim in the court of bankruptcy; that it appeared specially, protecting against the jurisdiction and not waiving its objection, filed an answer, which was sworn to by Mrs. I-Inff, setting up that the bankrupt, for a present valuable consideration, had transferred the money in controversy; that the assignment was accepted in good faith, and not in fraud or in contemplation of the bankrupt act; that the property therein assigned was within the exemption limits of tiie state of Alabama, in which state the bankrupt resides, and in which the contract was to operate and take effect; “that the bankrupt, m order to obtain the money paid for the assignment, falsely represented that lie was not insolvent, and that his indebtedness amounted to nothing; that the representation was made in writing and relied on by the company, and by n\eans of it the bankrupt obtained the consideration for the wages, and is therefore not entitled to discharge. The record further shows that the bankrupt entered a general and special denial, and set up specifically that the assignment was void, under a local statute, and, further, that Mrs. Huff, the manager of the Home Discount Company, and the bankrupt, both testified on the hearing before the referee. The referee found that the assignment was void, and on February 15, 1900, made the following order: “February 14, 1906, being the day set for the hearing on the petition of above-named bankrupt, filed on the 12th day of February, 1900, and it appearing that notice has been duly given as required by the order of the court thereon, and answer of Home Discount Company having been deemed insufficient, it is ordered that the Home Discount Company do immediately cause to be withdrawn notice of the assignment and the assignment proceeding pending thereon upon the claim against the said bankrupt, and the Alabama Great Southern Railroad Company discharged, and that he propound his claim, if any he has, against said bankrupt in no other than in this court.” On March 3, 1900, the attention of the District Judge, who was then holding court in the Middle district at Montgomery, was called to the failure of Mrs. I-Iuff to obey the order directed to her, and he ordered the issue of a rule to her to show cause, etc. The matter came on further to be heard at the adjourned March term at Birmingham in June, 1906.</p> <p>Some of the original papers in the proceedings before the referee as to Mrs. Huff are missing from the files, but a copy of the order to her is set forth in her answer to the rule nisi from the District Court as Exhibit C, which shows that on the proceeding before the referee, the answer of. the Home Discount Company having been deemed insufficient, it is “ordered that Mrs. J. Huff, agent of the Home Discount Company, do immediately cause to be withdrawn notice of the assignment and the assignment proceedings pending thereon upon the claim against said bankrupt, and the Alabama Great Southern Railroad Company discharged, and that he propound his claim, if any he has, against the bankrupt in no other than this court.” Upon the coming in of Mrs. Huff’s answer to the rule from the District Court, and in view of the statements that the cause was submitted for final order on the pleadings, without oral testimony, or “any other evidencethat she was only an employe, and had no authority to withdraw notice of the assignment without instructions from the attorney of the company, who advised her not to obey until petition for review had been passed upon, the District Court, then sitting at Birmingham, ordered the issue of a rule to the Home Discount Company to show cause why it should not be punished for its disobedience to the order of the referee directed to it on the 15th of February, 1906. The company appeared specially for the-purpose of the motion, and moved to strike from the files the petition on which the rule was issued, and to discharge the rule, on the ground that the court was without jurisdiction in a summary proceeding to determine-the rights of the respondent, an adverse possessor, to the money in controversy. It insisted upon the defenses made in its answer before the referee, as to the validity of the assignment, etc., and set up a false pretense by the bankrupt in obtaining the loan, and averred that he was not entitled' to a discharge. It also alleged that within five days after the making of the referee's order it filed a petition for review with the referee; that the filing of this petition was a matter of right, and operated as a supersedeas and transfer of the matter appealed from to the District Court; that the proceeding was instituted by the bankrupt, who was not interested, and could "not assail the transfer of wages. It stated as a further defense that on the 10th of April, 1906, the bankrupt himself and counsel proposed to have the proceedings dismissed and respondent discharged, without cost or damage to it, upon the payment by the bankrupt of the actual amount obtained, together with a reasonable attorney’s fee, which the company accepted in good faith, etc., and insisted, the bankrupt being the only party complaining, that the matter ought to be treated as settled. The company also made a separate motion to dismiss the proceedings on account of the settlement, which motion was joined in by Messrs. Lamida & Watts, attorneys, who it would seem were specially employed to negotiate the settlement for the bankrupt, and did so. These gentlemen did not appear before the referee, or before the District Court; the bankrupt being represented on these occasions by his attorneys, Messrs. Truss & Howlett. It being denied, when the matter came on for hearing, that any petition for review had been filed in this case, and asserted that the settlement made by the bankrupt in April was not voluntary, the District Court had a subpoena issue to Mrs. Huff to testify in the case. The marshal reported that she-was too ill to attend court. Rose, the bankrupt, a locomotive engineer, was absent from the district on one of his runs. Other witnesses were heard, and proved that the paper in the file certified, giving the substance of the testimony of Mrs. Huff and the bankrupt before the referee, was substantially correct. Both of them testified before the referee that the assignment was taken to secure a loan for $40.00, made in December, 1905, the company taking a paper for that amount, and loaning him $36.00, and that this loan was renewed in January. The bankrupt’s testimony, on that occasion, was that the words “February and March” were not in the instrument when he signed it, and that nothing was said about them, nor was he asked how much he owed, and that the word “nothing” was not in the contract when he signed it. Mrs. Huff on the same occasion testified that the words “February and March” were put in the assignment when the loan was renewed, with the bankrupt’s consent, and that the word “nothing” was in the contract when he signed it. The body of the instrument was a printed paper. The only writing was the figures “$40.00,” the name of the railroad company to whom it was addressed and in whose service the wages were to be earned, the words “January, February, and March.” the word “nothing," the signature of the bankrupt, A. J. Rose, and the signature of the witness, Mrs. J. Huff. The assignment when filled in, read as follows:</p> <p>“$40.00</p> <p>Birmingham, Ala., Dec. 14, 1905.</p> <p>To the A. G. S. R. R. Company, Birmingham, Alabama: For value received, the receipt whereof is hereby acknowledged, I, the undersigned do hereby transfer, sell, assign and set over unto Home Discount Company, all wages, salary or money now due or to become due to me from the’said A. G. S. R. R. Company, during the months of Jan."Feb. March, 1900. In order to obtain the consideration paid for the above wages, salary or money, receipt whereof is hereinabove acknowledged, I state that I am employed, regularly, by the firm, individual or corporation to whom this instrument is addressed or directed, and that they, he, or it are, or is, indebted to me in an amount in excess of .the consideration as recited for the months set forth above, and that there are no judgments, judgment liens, garnishments, orders, attachment liens, assignments or liens or claims of any other kind or character upon or against said wages, salary or money on me in favor of any person, firm or corporation; that I am solvent; that my total indebtedness does not exceed the sum of nothing, which I have ample property to pay off and satisfy in full, outside of any exemption rights which I have under the laws of the state of Alabama. For value received, I, the said undersigned, do hereby irrevocably constitute, authorize and empower G. K. Horton, or any other agent for said Discount Company, my true and lawful attorney in fact, to execute or sign any other transfer, or assignment or different instrument necessary or proper, or which may be required or deemed necessary by him. for the purpose of collecting said money, or any part thereof, including receipts, vouchers, drafts, and pay rolls, etc., in my name, or otherwise, at his pleasure. If for any reason the said Home Discount Company should fail to collect or receive all of said wages, money or salary, set forth above, for the said consideration, I the said undersigned, do hereby further transfer, sell, assign and set over unto the Home Discount Company all other wages, salary or money which may hereafter accrue to me from the same person, firm or corporation to whom this instrument is directed, or from any other person, firm or corporation for a number of months equal to the number set forth above, to be selected by the said Home Discount Company, or any authorized agent, and I hereby constitute and appoint any agent of said Home Discount Company my true and lawful attorney in fact, in my name or otherwise, to execute such other or further instruments necessary or which he may see fit to execute for the purpose of collecting all or any part of said money, or wages, including signing checks, pay rolls, and indorsing checks in my name. I hereby agree to act as the agent of the said Home Discount Company for the collection of the said money or wages, and account to it for every cent of the same immediately upon the collection thereof, and hereby acknowledge the constitution and appointment of myself as such agent or bailee of said Discount Company for such purpose. In the event of the employment of an attorney tor any purpose in relation to this instrument or the money herein assigned, I hereby agree to be taxed with his fee, and waive the right of exemption as to any judgment recovered on account of any matter connected herewith, or growing out of same.</p> <p>“Witness: Mrs. J. Huff.</p> <p>A. J. Itose.”</p> <p>Repeated efforts were made by the bankrupt and Truss & Howlett, his attorneys, after the referee made his order, to induce the respondent to pay the money into court, or to the bankrupt, and they procured the rule nisi from the district judge in March to Mrs. Huff. Hewlett testified that Mrs. Huff, the manager of the company, told him that “her attorneys had advised her to hold onto the money, and she intended to hold it, and there is no use for you to come around here any more.” Rose was a locomotive engineer in the service of the Alabama Great Southern Railroad Company. In February and March he earned $184.65 wages, and the amount stated to bo due him for January in Rose’s petition was $72. When the assignment was filed. like assignments of wages in favor of the Southern Trust Company for $13 and W. C. McCarty for $28.70 were filed with the railroad company. It was shown that efforts were made, by the bankrupt and his attorneys, at different times, shortly after the referee’s order, to got the railroad company to hold back enough of the money involved in those several assignments to pay the claims under them, and tarn over the balance to the bankrupt. The railroad company was unwilling to do this unless the bankrupt gave bond to hold the railroad company harmless, which the bankrupt was unable to do. About that time, or shortly before, the referee had also issued a rule to the railroad, company to show cause why it should not pay the wages into court. The garnishment clerk of the railroad company testified as to this, and that he “was holding the money on the garnishment.” The bankrupt’s wages for the months of January, February, and March were held by the railroad company until April 10, 1906. An affidavit of the bankrupt was filed, which, after stating that he paid $117.25 in settlement of the claims of the Home Discount Company. W. C. McCarty, and the Southern Trust Company, which loans originally amounted to $79.75, all of which were then In the hands of W. T. Ward, who was the attorney for the Home Discount Company, stated “that lie was forced to enter Into the settlement because of the fact that the said parties had failed and refused to obey the orders of the referee made in the case of A. .1. Hose, bankrupt; that he was without the necessaries of life; that his family was in actual need; and that his supply men were cutting him off from further credit.”</p> <p>When the referee’s order was made in this case, like orders were directed to the Southern Trust Company and W. C. McCarty as to assignments by Rose in their favor of wages to be earned with the same railroad company. In those cases petitions for review were filed, and the orders of the referee were passed on the pleadings. The attorney of the Home Discount Company testified that a petition for review was filed in this case. The referee’s docket shows no such filing, and no such paper was filed in the clerk’s office. In view of these facts, and the statement in the alleged petition for review that the order was made without “the hearing of any testimony,” although it is undisputed that on the hearing before the referee Mrs. Huff did testify for the company and the bankrupt for himself, and the company was then represented by the same attorney who now represents it here, it is clear that the attorney lias confused this case with the other cases, in which he was of counsel, in which petitions were filed, and which went off on the pleadings, and in which witnesses -were not heard. The referee testified that he had never seen any such paper. The attorney for the company also testified that on the making of the settlement with the bankrupt the latter “was represented by Griffin Lamían, a schoolmate and personal friend of his; that he did not wish to make the settlement, as there were certain questions he proposed to have reviewed by the District Court; that his friend insisted on a settlement, to which ho finally consented, the bankrupt agreeing to pay the amount he obtained, with costs and a reasonable aitorney’s fee, this being $10.00 in each of the three cases, or $30.00 in all; that he did not consider this a reasonable foe, but consented to it, for the reasons already stated.” It was not claimed that the costs of the petition for review were either paid or secured, or that any application for supersedeas was made to the referee or to the judge.</p>

<p>1. Corporations— Receivers — Appointment—Authority to Sue.</p> <p>A receiver was appointed, for a corporation in the domiciliary distinct, and thereafter an ancillary appointment was made by the Circuit Court of the District of Massachusetts. The order of ancillary appointment expressly gave the receiver all powers described in the order of original appointment, which authorized him to institute actions or suits In any court for the recovery of any estate, properly, or demand existing in favor of the corporation. Hold that, though the receiver’s powers were interlocutory, and he was not constituted an assignee or trustee for the purpose of winding up the corporation, he had authority to sue in the federal courts sitting in Massachusetts, in the name of the corporation, to recover profits made by defendant, by virtue of his' control of the corporation as its trustee, for which defendant had not accounted.</p> <p>[Ed. Note. — Actions by or against receivers of federal courts, see note to J. 1. Case Plow Works v. Finks, 2(5 C. C. A. 49.]</p> <p>2. Equity — Jurisdiction—Recovery of Money.</p> <p>Where the subject-matter of a suit consisted of certain gains and profits arising out of a trust, either express or constructive, the fact that the amount claimed could be liquidated in cash, so that the purpose of the bill in the end was merely a demand for money, did not deprive the federal courts of jurisdiction thereof in equity.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Gent. Dig. Equity, §§ 151, 152; vol. 47, Gent. Dig. Trusts, § 565.]</p> <p>8. Trusts — Actions Against Trustees — Private Promts — Accounting— Parties.</p> <p>Where suit was brought to recover profits made by one of three trustees, there being no claim that defendant shared the gains and profit sought to be recovered with his co-trustees, they were not necessary parties to the bill, as provided by Rev. St. § 737 [U. S. Oomp. St. 1901, p. 587], and Equity Rules 22, 47, and 53.</p> <p>[Ed. Note. — For cases in point, see vol. 47, Gent. Dig. Trusts, §§ 367, 368.]</p> <p>4. Same — Laches.</p> <p>In a suit in equity brought by a receiver of a corporation to compel an accounting from one who held certain assets in trust for the corporation, in which case it appeared that the facts were not known until after the receiver was appointed, and that there were no peculiar circumstances beyond the delay, held, that the suit was not barred by laches.</p> <p>[Ed. Note. — For cases in point, see vol. 47, Cent. Dig. Trusts, § 362.]</p> <p>5. Same — Active Trust.</p> <p>Where a deed of trust gives in terms to a trustee the entire control and management of certain particularized assets, the trust created thereby is held to have been an active one,</p> <p>[Ed. Note. — For cases in point, see vol. 47, Cent. Dig. Trusts, § 178.]</p> <p>6. Same — Obligations of Trustee Dealing with His Own Property Simultaneously with That of a Trust.</p> <p>The complainant corporation controlled certain gaslight companies operating in the city of Boston. The defendant had acquired, and still held, controlling interests in two competing gaslight companies operating in that city and its vicinity. Under those circumstances, the complainant corporation, in order to prevent injurious competition, gave the defendant by a deed of trust practical control and management of the companies controlled, by it for a specific term named therein. While the trust still continued, the defendant caused to be executed contracts between the last-named companies and a coke company for the purchase of the gas, which was the expected product of the coke company, and was also expected to afford a sufficient supply. At the same time, the defendant caused to be made like contracts between the coke company and the two companies which he controlled in his own right, and simultaneously therewith he negotiated for and completed a sale of his interests in those two companies at a large profit to himself. The record did not show that he had expressly coupled the two transactions; neither did it show that he advised the complainant corporation in regard to the transactions, or obtained its consent thereto. Held that, under the circumstances, his relations as trustee and to his own property were such that he was'holden in equity to account to his cestui que trust for an equitable proportion of the profits derived from the sale of his own interests in excess of a fair return on the cost thereof; and also held that, in the absence of any definite rule by which an equitable apportionment of the profits could be accurately made, the apportionment should be made in moieties, according to judicium rusticum.</p>

<p>1. Internal Revenue — Inheritance Tax — Payment—Protest—Voluntary Payment-Recovery.</p> <p>Whore, at the time certain executors paid an internal revenue inheritance tax on a life estate under protest, they hatl no knowledge that the life tenant had died and that the life estate had therefore terminated, the payment was not voluntary so as to preclude a recovery thereof.</p> <p>2. Evidence — Life Estates — Value—Use of Life Tables.</p> <p>Where, at the time certain internal revenue inheritance taxes were assessed on the value of a life estate, such estafe had been already terminated by the death of the life tenant, it was improper to use life tables to determine the value of such life estate.</p> <p>3. Internal Revenue — Inheritance Tax — Payment—Recovery.</p> <p>Where an internal revenue inheritance tax was assessed and paid on the supposed value of a life estate, as determined by life tables at a time when the life estate had terminated by the death of the' life tenant, but such fact was not known either to the executors or the internal revenue officers, the executors were entitled to recover the excess of the amount .properly taxable under the facts as they actually existed as money paid under mistake of fact.</p>

<p>In Admiralty. Heard on exceptions of Seraph Semonin, Farmers’ National Bank of Uniontown, Ky., and Levi Englebright and Elizabeth Jenkins, to the supplemental and amended libels, and the several supplemental and amended intervening libels.</p>

<p>1. Aliens — Importation of Women for Purposes of Prostitution — Elements of Offense.</p> <p>To warrant the conviction of a defendant charged with a violation of Act March 3, 1903, c. 1012, 32 Stat. 1214 [U. S. Comp. St. Supp. 1905, p. 276], which provides that “the importation into the United States of any woman or girl for the purposes of prostitution is hereby forbidden, and whoever shall import or attempt to import any woman or girl into the United States, for the purposes of prostitution, or shall hold or attempt to hold, any woman or girl for such purposes in pursuance of such illegal importation, shall be deemed guilty of a felony,” where the charge is that of holding a woman so imported by defendant and another for the purposes of prostitution, it must be shown that defendant, either alone or in connection with such other, knowingly and willfully imported, or caused to be imported, such woman for the purposes of prostitution, and thereafter, to effect the object of such illegal importation, knowingly and willfully held such woman for such purposes. It is not necessary that defendant should have detained such woman by physical force, but it is sufficient to constitute a holding within the meaning of the statute if such woman was detained for the purpose of prostitution by physical means applied to her either directly or indirectly by defendant, or by threats, express or implied, directly or indirectly made to her by defendant, or by commands made to her directly or indirectly by defendant and calculated and operating to restrain her freedom of action and will. To warrant a conviction for attempting to hold the same proof is required, except that it is not necessary that the means used should have been successful.</p> <p>2. Cum in it. Law- — Evidence—Effect of Testimony of Accomplice.</p> <p>While the degree of credit to be given to the testimony of an accomplice in a criminal case is a matter within the exclusive province of the jury, who may as matter of law convict on such testimony alone, yet to warrant a conviction such testimony should usually be corroborated in some material part, although the corroboration need not extend to all matters testified to by the accomplice, and the jury should also consider whether he has been successfully contradicted with respect to any material portion of his testimony.</p> <p>I Ed. Note. — For cases In point, see vol. 14, Cent. Dig. Criminal Law, §§ 1124, 1128. J</p>

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

On Pleas to the Jurisdiction and Motions to Remand. Held: upon notice given in manner and form as required by law and the by-laws of the several parties, and said proposition has been approved by votes, had at said several meetings, of majorities, consisting of the holders of over three-fourths in amount of the capital stock of each of said parties: Therefore the said parties of the first,…

<p>1. Copyright — Books—Restricted Publication — Notice.</p> <p>Where the owner and • publisher of a copyrighted book sold copies thereof containing a notice restricting the purchaser’s title, and requiring that the same should not be sold prior to August 1, 1907, such notice did not, without communication to the purchaser, become a part of the contract of sale so as to bind the purchaser with its provisions.</p> <p>2. Principal and Agent — Secret Instructions — Sales Agent.</p> <p>Where the owner of a copyrighted book placed copies thereof in the hands of an agent for sale, he thereby clothed the agent with apparent authority to give complete title to the copies sold, so that buyers were not bound by secret instructions to such agent, restricting the title he was authorized to pass, which were uncommunicated.</p> <p>[Ed. Note. — For cases in point, see Vol. 40, Cent. Dig. Principal and Agent, §§ 377, 377%.]</p> <p>8. Contracts — Restraint on Alienation — Public Policy.</p> <p>A provision in a contract for the sale of a copyrighted book that it should not be resold prior to August 1, l'JU7, or offered or advertised for resale, was not contrary to public policy.</p> <p>4. Injunction — Preliminary Injunction — Issuance.</p> <p>Complainant issued and sold a copyrighted book only through authorized agents, who were permitted to sell only at retail at 50 cents per copy on the express condition that the books should not be resold prior to August 1, 1907, etc. Each of the books also contained n “notice to-purchaser” reciting such restrictions. Defendant, with knowledge of complainant’s plan of sale and the restrictions placed thereon, instigated the purchase of 55 copies of the book, which it proceeded to sell in violation of the restrictions, at a probable loss, for 49 cents. Held, that complainant was entitled to a preliminary injunction restraining such sale pendente lite.</p>

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

At Law. On demurrer to the petition. Action by A. N. Bort, as an individual, against the estate of E. H. McCutchen, deceased, and the sureties of said McCutchen upon a bond in writing made by them to the plaintiff as head banker of the Modern Woodmen of America, a corporation, and to said Modern Woodmen of America.

<p>In Equity. On demurrer to bill.</p> <p>This is an action in equity in the nature of a creditors’ bill in behalf of the complainant and any other creditor similarly situated who may come in and join in the proceeding. In substance it is charged that one Nyback, assignor of complainant, after a protracted litigation recovered certain judgments against the Champagne Lumber Company, a Wisconsin corporation, in the Circuit Court of the United States for the Western District of Wisconsin, for personal injury, amounting, with costs, to something over $2,500. Pending such litigation it is alleged that the Champagne Lumber Company was wound up, and all its property and assets were fraudulently distributed among the stockholders who were the individual defendants herein. So that when the fi. fa. was issued on such judgments, the same was returned nulla bona; that the defendants Stewart and Alexander were the stockholders of said corporation at the time of its disintegration, and fraudulently divided among themselves all such property and assets, which were alleged to he of greater value than the amount of such judgment; and that such proceedings were taken by the officers and stockholders of said corporation for the purpose of defeating any recovery upon such judgments at law; that after verdict and before judgment in such proceedings at law, the cause of action therein was assigned and transferred,to the complainant by an instrument in writing and under seal “for sufficient and valuable consideration.” Annexed to the bill is a copy of such assignment, wherein the consideration for the transfer is stated as follows: “That in consideration of the sum of fifteen dollars this day paid by the party of the second part to said party of the first part, the receipt whereof is hereby acknowledged and confessed, and for other sufficient and valuable consideration heretofore received by said party of the first part from the said party of the second part,” etc. It was further averred that the individual defendants originally subscribed for a large amount of the capital stock of said corporation, and that they had only paid in 50 per cent, of the amount of such subscription, and that 50 per cent, thereof was still due and owing from the said defendants to said corporation at the time it .was wound up. The relief sought by the bill was a discovery and accounting of all the assets and property of said corporation which had been thus distributed and divided among the stockholders, also an accounting as to the amount due to the complainant and to any other creditors similarly situated who might join in the action; that, if such assets and property so misapplied by the stockholders should prove insufficient to pay the judgments of the complainant and to satisfy the claims of such other creditors as may come in and join in the action, then there be an accounting as to the amount due by the individual defendants, as stockholders, to the Champagne Lumber Company; and that said defendants be required to pay into court the amount so due upon said subscription to capital stock. There was also a general prayer for relief. To this bill the defendants interposed a general and several demurrer stating several grounds, but only two propositions were relied upon at the argument. First. It was objected that the bill is multifarious. Second. That it appears upon the face of the bill that the consideration for the assignment of the verdict and cause of action in such suit at law from Nyback, the original plaintiff, to the complainant, was so slight and inadequate that equity ought not to entertain this suit, or lend its aid to consummate what appears to be a mere speculative venture.</p>

<p>At Law. Action to recover duties.</p> <p>These proceedings were brought by Philo L. Mills and others, constituting the firm of Mills & Gibb, against William I-I. Robertson, collector of customs at the port of New York, to recover alleged excessive duties exacted by the collector. The pertinent portions of the law from which the question at issue arose are “cotton laces” and “all manufactures of cotton, not specially enumerated or provided for.” Tariff Act March 3, 1883, c. 121, § 1, Schedule I, 22 Stat. 506. The goods in controversy consisted of various lace articles in a completed form, such as aprons, collars, collarettes, cuffs, handkerchiefs, fichus, and sets. They were assessed for duty under the former provision and were claimed by the importers to be properly dutiable under the latter. Evidence introduced in behalf of the importers showed that they were not made up from lace in the running yard, but were produced originally as lace only in their completed condition as imported. The importers also sought to show that the term “cotton laces,” as used in the law, had a commercial meaning which-did not include such articles. Evidence to that end was admitted over the objection of the government, and at the conclusion. o£ the evidence counsel for the United States moved the court to direct a verdict in favor of the government on the ground that “the term ‘cotton laces,’ as used in the tariff act of 1883, was a descriptive term, and, consequently, the trade meanings or understandings, if any connected therewith, are immaterial.” The court overruled this motion, observing: “I tliinlc this case presents a question of fact for the jury.”</p>

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

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

<p>1. Trial — Direction of .Verdict.</p> <p>A motion for the direction of a verdict for defendant should be sustained unless there is evidence favoring such of the ultimate or constitutive facts of plaintiff’s case as have been put in issue to a substantial degree, and in determining this question all inferences reasonably to bo drawn therefrom most favorable to plaintiff must be taken.</p> <p>[Ed. Note. — For cases in point, see vol. 40, Cent. Dig. Trial, §§ 832, 842, 402.]</p> <p>2. Same.</p> <p>A motion for a directed verdict in favor of defendant should be overruled if there is substantial evidence favoring such ultimate facts of the plaintiff’s case as have been put in issue to a substantial degree, though also there is evidence opposing and conflicting therewith, no matter how strong such opposing evidence may be.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, § 342.]</p> <p>3. Contracts — Execution—Reduction to Writing.</p> <p>Though parties to a verbal agreement contemplate that it is to be reduced to writing and signed, yet if the understanding is that this is to be done simply as a memorial of the agreement, the contract is binding, notwithstanding it is never put to writing.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, § 139.]</p> <p>4. Sales — Contract's—Execution—Question for Jury.</p> <p>In an action for breach of an alleged contract for the sale of cement, evidence held to require submission of the question whether the contract was in fact made to the jury.</p> <p>[Ed. Note.- — For cases in point, see vol. 43, Cent. Dig. Sales, § 145.]</p> <p>5. Principal and Agent — Authority of Agent.</p> <p>Defendant employed M. as his chief salesman, and during the years 1901, 1902, and 1903, M. made diverse sales of cement on defendant's behalf, ranging from 2,000 to 7,500 barrels. In February and March of 3002 plaintiff wrote defendant for prices on' from 5,000 to 10,000 barrels of cement delivered at Chicago, and 5.500 barrels delivered at other places. In each Instance defendant answered through M„ offering to sell the quantity wanied at specified prices, after which defendant, through M., made a contract to sell plaintiff 85.000 barrels of cement at a specified price. Hold, that, in the absence of evidence that there was any limitation on M.’s authority to sell, as to the amount sold, and that plaintiff was chargeable with notice thereof, such facts were sufficient to show that"M. had authority to make the contract.</p> <p>6. Sales — Contract—What Law Governs.</p> <p>Where an alleged contract for the sale of cement was made in Illinois, it was governed by the law of that state.</p> <p>[Ed. Note. — For cases in point, see vol. 48, Coni.. Dig. Sales, § 2.]</p> <p>7. Frauds, Statute of — Contract for the Sale of Goods.</p> <p>A contract for the sale of 35.000 barrels of cement at a specified price per barrel, to be delivered during six months in quantities oí' 6,000 barrels per month, or in such quantities as should be ordered by plaintiff from month to month, was not within the Illinois statute of frauds.</p>

<p>In Error to the District Court of the United States for the Southern District of New York.</p> <p>On writ of error 1o the Circuit Court for the Southern District of New York so review a judgment entered upon a verdict directed in favor of the defendants.</p> <p>Tlie action was brought by Henry Arnold Richardson, as trustee in bankruptcy of J. Francis Brown, to recover preferences received by tlie defendants in alleged violation of the provisions of the Bankruptcy Act.</p> <p>Brown, the bankrupt, was a stock broker engaged in doing business at Boston. Mass.</p> <p>In February, 1903, the defendants, who were copartners doing business as bankers and brokers in the city of New York, opened a speculative account witli Brown for the purchase and sale of stocks on margin and deposited with him 8500 for that purpose. The account: was closed June 26, 1903, and during rhe live months of its continuance the defendants, from time to time, paid other moneys and transferred various securities, in lieu of money, as margins. Tlie business was conducted in the usual manner, the. broker buying and selling various stocks for his customers, charging them with the cost and crediting them with the proceeds of sales, the customers maintaining a margin of ten per cent, or more.</p> <p>Upon the accounts rendered by Brown to the defendants was tlie following:</p> <p>“It is understood and agreed that all securities carried in this account or deposited to secure the same may be carried in our general loans and may be sold or bought at public or private sale, without notice, when such sale or purchase is deemed necessary by us for our protection.”</p> <p>In pursuance of this agreement Brown pledged on his general loans all the ■securities deposited with him on the defendants’ account and they, through their agent, were informed of. the fact. When the account was closed, on June 25th, all of these securities had been pledged by Brown who for two months prior thereto had been insolvent.</p> <p>The defendants’ Boston agent, who had' obtained knowledge of Brown’s precarious financial condition, demanded and received payment of $5,000 on the 24th of June. On the following day he insisted on a final settlement and an account was made up showing the amount of securities to the credit of ■the defendants to be $45,583.75, charges to the credit of Brown to be $34,919.02.' The balance was $10,664.13.</p> <p>This transaction is described in the- complaint as follows:</p> <p>“That on or about the 26th day of June, 1903, there was an accounting between the said defendants and said Brown of various dealings between them in Which it was found that said defendants owed the said Brown the sum of thirty-four thousand nine hundred and nineteen dollars and sixty-two cents ($34,919.62) upon the payment of which said Brown was obligated to deliver to them certain securities or in default thereof to pay to them the amount ■of their then market value, to wit, the sum as they ascertained upon said accounting of forty-five thousand five hundred and eighty-three dollars and -seventy-five cents ($45,583.75), and thereupon said defendants paid to said Brown said sum of thirty-four thousand nine hundred and nineteen dollars' and sixty-two cents ($34,919.62), and said Brown then delivered to said defendants said securities, and the effect of such transfer will be to enable the said defendants as such creditors to obtain a greater percentage of their debt than any other creditors of said Brown of the same class.”</p> <p>The trial court decided that the defendants were not creditors and were ■entitled to their securities on paying the amount loaned thereon. The court 'held that the fundamental feature of the relation between the parties was' that Brown, the broker, had advanced or loaned money or credit and therefore was a creditor of the defendants, holding security for the amount which they owed him and that on paying this amount the defendants were entitled 'to the security or their equity therein.</p>

<p>1. Wills — Actions to Construís — Laches.</p> <p>Mere delay will not debar an heir from maintaining a suit to determine the validity of a legacy where such legacy has remained in the hands of trustees in accordance with the terms of the will.</p> <p>[Ed. Note. — For cases in point, see vol. 49, Cent. Dig. Wills, § 1077.]</p> <p>2. Perpetuities — Gift to Charitable Use — Remoteness.</p> <p>A bequest of all the testator’s residuary estate to trustees to accumulate until it' reaches a certain amount, a part of the principal and the future income from the remainder to be then devoted to a certain charity, vests for the use of the charity at once, and is not void, as in violation of the rule against perpetuities, nor for remoteness.</p> <p>[Ed. Note. — For eases in point, see vol. 3, Cent. Dig. Perpetuities, §§ 57-07.]</p> <p>3. Charities — 'Validity of Educational Bequest — Certainty as to Beneficiar ies.</p> <p>A bequest in trust to create a fund to be used to establish and maintain a school “for the purpose of educating boys who reside in the slate of Illinois between the ages of 12 and 18 years, and who are unable to educate themselves.” is not void for want of a class of boys to which the charity may apply, because of the existence in the state of a system of public free schools open io all hoys of such age without charge, nor because of uncertainty as to, the individual beneficiaries; such uncertainty being in fact an essential element of a valid charity.</p> <p>[Ed. Note. — For cases in point, see vol. 9, Cent. Dig. Charities, §§ 36, 48.]</p> <p>4. Same — Administration—Selection of Beneficiaries.</p> <p>Where a will appointed trustees to manage the estate, and “for the purpose of carrying out the full terms’’ of the will, and contained a bequest to them in trust to found and maintain a school for the education of boys “who reside in the state of Illinois between the ages of 12 and 18 years, and who are unable to educate themselves,” 1 lie trustees have power to select the individual beneficiaries, and, in any event, if necessary, a court of chancery of the state may appoint a trustee for that purpose.</p> <p>[Bd. Note. — For cases in point, see vol. 9, Cent. Dig. Charities, §§ 42, 75, 70.]</p> <p>5. Same — Construction and Execution of Trust — Doctrine of Cy Pees.</p> <p>A testator devised and bequeathed his residuary estate in trust, directing the trustees to manage the property, and when a fund of a stated amount had been accumulated to cause a building; to be erected, to cost not exceeding a certain sum “for Hie purpose of educating boys who reside in the state of Illinois, between the ages of 12 and 18 years, and who are unable to educate themselves,” and directing that the remainder of the fund should be kept at interest, and the net income used “for the purpose of paying teachers employed in said school.” Held, that education was the dominant purpose of the charity, as disclosed by the will, and that the courts should not defeat it by a literal construction which would restrict the use of the income to the payment of teachers, and prevent the use of any part of it to equip and maintain the building and to pa; other necessary expenses of conducting the school, but should construe the will and carry out the testator's general purpose in accordance with the equitable doctrine of cy pres.</p> <p>0. Wills — Suit to Determine Validity of Bequest — Fees and Costs.</p> <p>■ The sole heir at law of a testator, who brings an unsuccessful suit to have a bequest in trust for a charitable purpose declared void, solely in his own interest, is not entitled to have his costs and attorney’s fees charged against the trust estate.</p> <p>[Ed. Note. — For cases in point, see voi. 40, Cent. Dig. Wills, §§ 1084-1086.]</p>

<p>1. Bankruptcy — Courts—Jurisdiction—Property—Titee of Trustees — ^Determination.</p> <p>Where a lease of a building to a bankrupt passed to his trustee, and the lessors claimed that the lease was not assignable without their consent, the court of bankruptcy had jurisdiction of a proceeding by the trustee, in the nature of a bill to remove a cloud on his title, to determine his rights in such leasehold prior to a sale thereof.</p> <p>2. Landlord and Tenant — Leases—Assignment—Forfeiture — Construc- • TION.</p> <p>A lease provided thát if the lessee assigned or sublet, or if the lessee’s interest should be sold under execution or other legal process without the written consent of the lessors, their heirs or assigns, first had, or if the lessee or assigns should fail to keep any of the other covenants of the lease to he kept by the lessee, it should be lawful for the lessors to re-enter and declare a forfeiture. The leasehold was thereafter sold to B., subject to the terms, covenants, and conditions in the lease, under a decree in a suit brought by the lessors to foreclose their lien on the leasehold for nonpayment of rent, and, on B. becoming a bankrupt, his trustee claimed the leasehold as a part of the estate. Held, that the transmission of the leasehold from B. to his trustee in bankruptcy was neither a voluntary assignment of the lease nor a transfer under execution or other legal process, and did not, therefore authorize a forfeiture under the terms of the lease.</p>

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

<p>Mines and Minerals — Protection op Coal Mine Shafts — Illinois Statute.</p> <p>The provision of Act Ill. April 18, 1899 (Laws 1899, p. 303), relating to coal mines, which requires that “the upper and lower landings at the top of the shaft shall be securely fenced * * * so as to prevent either men or materials from falling into the shaft,” and gives a right of action for any injury occasioned by a willful failure to comply With its provisions, to which the defense of contributory negligence or assumption of risk cannot be pleaded, is intended to guard against the accidental falling of men or materials into a shaft, and has no application to a case where a man voluntarily thrust his head and shoulders through a fence into a shaft, and was struck and killed by, a cage.</p>

<p>Appeal and Error — Grounds for Dismissal — Waiver or Kelease op Errors.</p> <p>After an action at law had proceeded to a verdict for plaintiff, a motion for new trial had been overruled, and nothing remained but to enter judgment, the defendant filed a bill in equity in the same court and obtained an injunction staying farther proceedings, on condition, however, exacted by the court arid accepted by him, that he give a bond for the payment with interest of the amount of the verdict, should the injunction finally be dissolved and judgment be entered thereon. Held, that the giving of such bond was a waiver and release by defendant of any errors in the law action up to the granting of the injunction, and that on its dissolution he could not prosecute a writ oí error from the judgment entered on the verdict for alleged errors occurring at the trial.</p> <p>[Ed. Note. — For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1005.]</p>

<p>1. Bankbuptcz — Appeal—Matters Presented for Decision.</p> <p>Where a referee passed upon only one of a number of objections filed to the discharge of a bankrupt which he sustained, and bis report was confirmed by the District Court, au appeal from the order denying a discharge brings such objection only before the appellate court for consideration.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Discharge—Concealment of Assets.</p> <p>A bankrupt was president of a corporation engaged in a mail order business, and, as such president prepared a list of names and addresses for use in the business, and at the same time made a duplicate thereof which "he kept at his house, as claimed, to guard against its loss by fire. Both he and the corporation became bankrupt and the original list was scheduled and sold as an asset of the corporation. . IT rid, that the duplicate list was also the property of the corporation, and that the bankrupt’s failure to schedule it as an asset of his own did not constitute a concealment of assets which debarred him from the right to a discharge.</p> <p>3. Same.</p> <p>While intent is a material inquiry on an issue as to the concealment of assets by a bankrupt, a fraudulent intent alone does not justify a refusal of a discharge unless assets belonging to Ms estate were actually concealed or withheld.</p>

<p>1. Aliens — Proceedings fob Deportation of Chinese — Claim of Citizenship.</p> <p>A resident of tlie United States claiming to be a native born citizen, although of tlie Chinese race, may not be deported or banished until the right of tlie government to deport or banish has been judicially determined in accordance with the usual and ordinary rules of evidence.</p> <p>2. Same — Evidence Considered.</p> <p>In proceedings for the deportation of a Chinese person charged with being unlawfully in this country, which were resisted on the ground that defendant was a native born citizen of the United States where his testimony was consistent and explicit, givingJhis place of birth, residence at different times, place of attending school, and the occupation and places of business of his father and uncle, and was corroborated by the testimony of his uncle and cousin, and wholly uncontradicted, his deportation was not warranted by a finding that he liad not established his right to remain in tlie United States “by affirmative proof to the satisfaction of tlie commissioner,” as required by section 6, Act May 5, 1892, c. 60, 27 Stat. 25 [U. S. Comp. St. 1901, p. 1320.]</p>

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

<p>1. Patents — Invention—Stone Ckusiiees.</p> <p>The I-Ioyt patent, No. 625,419, for an improvement in gyratory stone-crushers, which consists only in making the hopper in two annular sections anfl so supporting the. outer section that the inner one may he-lifted out independently of the other to facilitate the making of repairs in- the interior of the crusher, instead of making it in a single piece or in radial sections as previously done, is void for lack of e invention; only mechanical skill and experience being required to devise such improvement.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 16, 17.]</p> <p>2. Same.</p> <p>The Gates and Capon patent, No. 616,659, for an improvement in gyratory stone crushers, covers only a mere detail of construction, within the domain of mechanical skill, and is void for lack of invention.</p>

<p>Patents — Invention—Coat Pad.</p> <p>The Schweichler patent No. 815,560 for a coat pad is void for lack of invention, the only feature of the device which the patentee is entitled to claim as original, in view of his acquiescence in the rejection of prior claims by the patent office, being a shoulder extension integral with the pad which does not involve patentable invention in itself" nor constitute a true combination in connection with the old part but merely its enlargement or the uniting in one of two parts which had previously been sewed together.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 27-29.]</p>

The bill in the Circuit Court was to restrain infringement of letters patent No. 422,746 issued March 4th, 1890, to Michael Von Doliyo Pobrowolsky, for a new and useful improvement in electrical induction apparatus for transformers ; resulting in a decree sustaining the validity of ihe patent, and finding the appellant guilty of infringement of the same; and ordering an accounting, and a perpetual injunction.

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

In Equity. Motion to amend decree by giving to complainant two-thirds costs; also for order directing defendant to pay $150 costs awarded in satisfaction of the expense incurred by complainant in submitting certain witnesses for cross-examination pursuant to an order of the court made September 26, 1905.

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

<p>Patents — Anticipation—Prouess eob Mercerizing Fabrics.</p> <p>The Thomas & Prevost patents, Nos. 600,826 and 600,827, for processes of mercerizing vegetable fibers and fabrics, are void for anticipation by the Lowe English patent, No. 4,452, of 1890.</p>

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

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

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

<p>Patents — Invention—Rubber Tired Wheel.</p> <p>The Grant patent, No. 554,675, for a rubber tired wheel, discloses invention and is valid; the rocking or tilting of the tire when compressed on either side being an inherent function, when the tire is made in accordance with the directions of the patent. Also, held infringed.</p>

<p>In Equity. Suit for infringement of letters patent No. 434,905, for a weather strip, granted to Abert Clinton Sims April 1, 1890. On final hearing.</p>

<p>1. Patents — Infbin gement — Bill—Parties.</p> <p>Where, in a suit to restrain the infringement of a patent, the facts alleged and admitted showed that defendant L. used the L. Co. merely as a name or cloak under which to commit acts of infringement, that L. was bound by a decree in favor of plaintiff in another suit for infringement, and that the L. Co. was really the same thing, as L. himself, the company was bound by such decree, and both were therefore proper parties to the bill.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 470-472.]</p> <p>2. Same.</p> <p>In a suit to restrain the infringement of a patent, a party who was alleged to be encouraging the manufacture and sale by the other defendants of the infringing device and was closely connected with the transactions complained of was a proper party to the bill.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, §§ 470-472.]</p>

<p>Patents — Infringement—Injunction—Laches.</p> <p>A bill to restrain the infringement of a patent was verified June 27, 1906, and was accompanied by a motion for a preliminary injunction returnable July 12th. The bill was filed June 28, 1906, and the subpoena ■ served July 29th following. The patent was dated July 9, 1889, and expired July 9, 1906. The bill did not fix the date of the alleged infringe- ' ment, beyond the allegation that it occurred within six years prior to the filing of the bill, complainant knowing at the time the bill was filed that it could not be brought to the attention of the court in time to obtain injunctive relief; and the only proffered excuse for complainant’s laches was that there was no appointed sitting of the court at which complainant could be heard until three days after the patent expired. Held that, the sole practical purpose of the bill being to collect damages, it would be dismissed for laches.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 468.]</p>

<p>Customs Duties--Proceedings for Forfeiture of Property — Certificate of Reasonable Cache.</p> <p>On judgment for claimant of property seized by officers of the customs service for forfeiture, on the ground that it was fraudulently imported, a certificate of reasonable cause should be entered by the court as provided by Rev. St § 970 [U. S. Comp. St. 1901, p. 702], although the verdict of the jury was clearly right, under tile evidence, whore it is affirmatively shown that the officers who instituted the proceedings acted in good faith and on reasonable ground of suspicion.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Customs Duties, § 154.]</p>

<p>Appeal from the Judgment of Deportation made by Benjamin L. Wells, United States Commissioner in and for the Northern District of New York, March 9, 1906.</p>

In Bankruptcy. On review of order of referee. The following are the facts as certified by the referee: On December 1, 1905, J. W. Floyd presented to the referee for allowance against the bankrupt estate a claim in the sum of $559.02.

On Application for Review of a Decision of the Board of United States General Appraisers. These goods were classified as etamines under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 fü. S. Comp. St. 1901, p. 1602]. Among the contentions made by the importer were (1) that the goods were dutiable as manufactures of cotton not specially provided for, under Schedule I, par. 322, 30 Stat. 179 [U. S. Comp.

<p>Negtjcencic — Acts or Omissions Constituting Negligence — Manner of Packing Goods foe Shipment.</p> <p>A shipper of goods packed in bales and tied with ropes is under no duty to the carrier or its servants to see that the ropes are strong enough to withstand a pull sniiicient to move the bale, nor is a bale not tied with ropes having such strength such an inherently dangerous tiling as to render the shipper liable for an injury to a teamster who threw his weight upon the rope in moving the bale while on his wagon with such force that when the rope broke he fell to the ground.</p> <p>[Ed. Note. — For eases in point, see voi. 37, Cent. Dig. Negligence, § 27.J</p>

<p>Customs Duties — Ci-afsiitoation—’Wafkks—Biscuits—Cosífeotioneby.</p> <p>Sweet crackers, known as “wafers and biscuits,’’ in which the proportion of the sweetened centers to the pastry envelopes, is large, but in which flour is used to a substantial extent, are not: dutiable either directly or by similitude as “confectionery,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule E, par. 212, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647].</p>

<p>1. Customs Duties — Classification—Bromofluorescic Acid.</p> <p>Bromofluoroscic acid is dutiable as a coal tar color or dyé under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 15, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1627],</p> <p>2. Same — Color or Dye.</p> <p>An article' which contains all the essential elements and determining characteristics of a color or dye, needing only to have its coloring properties rendered accessible by dropping it into water containing an alkali, is a color or dye within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 15, 30 Stat. 152 [U. S. Comp. St. 190], p. 1627],</p> <p>3. Same — Construction—Congressional Intbn'l-Customs Practice.</p> <p>Where customs authorities have for many years consistently classified an article under the same provision found in successive tariff acts, it may be assumed that Congress, by constantly repeating such provision, understood what the practice had been and gave some weight to it.</p>

<p>1. Customs Duties — Classification—Comfits—Marrons.</p> <p>The term “comfits” in paragraph 263, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], is practically synonymous with “confections,” and includes boiled marrons (chestnuts) preserved in syrup.</p> <p>2. Same — Mabróns—Nuts—Similitude.</p> <p>Marrons (chestnuts) preserved in syrup are not dutiable as “nuts” under paragraph 272, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [U. S. Comp. St. 3901, p. 1652]; nor do they resemble nuts sufficiently to be dutiable at the same rate by 'virtue of the similitude clause in section 7 of said act, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].</p>

<p>Bankruptcy — Fraudulent Sale of Property by Bankrupt.</p> <p>A sale of a stock of goods by au insolvent shortly before his bankruptcy held void, as made with intent to defraud bis creditors, it being-shown that it was made during an adjournment of an action against him by a creditor, for less than half the value of the property, and that no part of the proceeds was paid to bis commercial creditors, and no evidence being offered by the purchaser to show his good faith or to corroborate bis own testimony as to tlie payment of the price.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 264.]</p>

<p>Copyrights — Suit for Infrtngxviext--Prkliminaky Injunotton.</p> <p>A preliminary injunction against the alleged infringement of a copyright, the effect. o£ which will he to interfere with defendant's business, will not lie granted where complainant's right is doubtful on the showing made; but defendant may bo required to give a bond for complainant's protection in cane he is successful on a full hearing.</p> <p>[Ed. Note. — For cases in point, see vol, 11, Cent. Dig. Copyrights, § 78.]</p>

On Application for Review of Decisions of the Board of United States General Appraisers. One of the decisions below is reported as (I. A. 5,814 (T. I). 25,676). Held: them to liave been properly classified as lithographic prints, under paragraph 400, Tariff Act July 24, 1897. c. 11. § 1, Schedule M, 30 Stat. 188 [U. S. Comp. St. 1901, p. 1672], and overruled the'importer's contention that they were dutiable under paragraph 398. § 1, Schedule M, 30 Stat 188 |U. S. Comp.

On Application for Review oí a Decision of the Board of United States General Appraisers. The decision in question related to goods imported at the port of New York, which consisted of the floral waters orange-flower water and rose water, assesses with duty under the provision for medicinal preparations in paragraph 68, Tariff Act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1631].

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

<p>On Rule to Show Cause Why Service of Summons should Not be Vacated.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought in the name of Charles F. Gallenkamp, .surveyor of customs at the port of St. Louis, and relate to a decision (G. A. 5,92:2 [T. D. 26,034]) which reversed The surveyor’s assessment of duty on merchandise imported by William Rachmati.

<p>On Information for Forfeiture.</p>

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

On Application for Review of Decisions of the Board of United States General Appraisers. The General Appraisers affirmed the assessment of duty by the collector of customs at the port óf New York on importations by E. E. McAllister. One of the Board’s decisions is reported as G. A. 3,141 (T. D. 16,312).

<p>Customs Duties — Classification—Crocheted Goods — Lace—Trimmings.</p> <p>So-called “crochet yokes.” made by knitting or crocheting, and used in the yoke of women’s vests, are not trimmings or lace within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662].</p>

<p>1. Release — Pi.eading in Avoidance of Defense.</p> <p>A reply in avoidance of a "release set up in the answer must confess the execution of such release, and that directly and not hypothetically, and a reply alleging that “if” the release was given it was obtained by fraud, etc., is bad.</p> <p>[Ed. Note. — 'For cases in point, see vol. 42, Cent. Dig. Release, §§ 90-92.]</p> <p>2. Same — Avoidance—Return of Consideration as Condition Precedent.</p> <p>As a condition precedent to the right to avoid a release pleaded as a defense, and admittedly based on a consideration paid, the plaintiff: must return or oiler to return such consideration.</p> <p>[Ed. Note. — -For cases in point, sec vol. 42, Cent. Dig. Release, J$ 38, 45.]</p> <p>3. Same — Negligent Failure to Read.</p> <p>A plaintiff, who, on receipt of a sum of money from defendant, signed a written release of a cause of action for a personal injury, without reading the same, is chargeable with negligence which precludes the avoidance of such release on the ground that its contents were misrepresented by defendant’s agent without a- showing in excuse of the failure to read the same or to have it read before signing.</p> <p>[Ed. Note. — For cases in point, see vol. 42, Cent. Dig. Release, § 32.]</p> <p>4. Same — 'Validity—False Representations.</p> <p>The fact that a plaintiff was induced to sign a release by false' or fraudulent representation as to its contents or purport will not render it void or avoid its effect as a defense in an action at law, whore it was signed knowingly and intentionally, and upon a consideration paid, although it may afford ground for cancellation in equity.</p> <p>[Ed. Note. — For cases in point, see vol. 32, Cent. Dig. Release, § 32.]</p>

In Admiralty. Libel for freight. The following are the facts agreed upon: The claimant, Avelino Montes S. en C., was, at the time of the filing of the libel in this cause and at the time of the shipment of the goods, the owner of the 150 bales of sisal grass, which were arrested under the process in this cause: these bales being a part of a cargo of sisal grass shipped from Progresso, Mexico, upon the steamship Atlas, whereof the libelant ivas and is master, which shipment…

<p>Bankruptcy — Stock Broker — Title to Stocks Purchased for Customer.</p> <p>A stockbroker who purchases and carries stocks on account of a customer on margins furnished by such customer, holds the same as pledgee, and on his bankruptcy the customer is entitled to the stock on payment of the amount due thereon, or to the surplus realized from its sale by the trustee, to the exclusion of the bankrupt’s creditors.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 207.]</p>

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

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

<p>1. Bankruptcy — Dlsoiiarge—Concealment of Property.</p> <p>A fraudulent concealment of property by a bankrupt from his trustee to justify the refusal of his discharge, under Bankr. Act July 1, 1898, c. .ill. §§ 14b (1) and 29b (1), BO Stat. 550, 554 [U. S. Comp. St 1901, pp. 3427, 31331, cannot be predicated of acts committed prior to the passage of the bankruptcy act, or even prior to the adjudication; but, if a concealment of goods or money then initiated with Intent to defraud creditors is continued after the bankruptcy, it is a concealment from the trustee within tlio statute.</p> <p>[Ed. Note.- — For cases in point, see vol. G, Cent. Dig. Bankruptcy, § 735.]</p> <p>2. Same.</p> <p>Where the stock of goods of a firm of retail merchants, a few months prior to their bankruptcy, together with the goods afterward bought, exceeded in value the goods and accounts as inventoried by the trustee by more than 815,000, while the amount paid to creditors during the same time was less than 8Í.500, and the remaining value is wholly unaccounted for, it is a fair inference that the bankrupts converted the goods into money and fraudulently and knowingly concealed and continued to conceal the same, and the facts justify a refusal of their discharge* under Bankr. Act July 1, 3898. c. 541, § 14b (1), 30 Stat. 550 [U. S. Comp. St 1901, p. 3427!.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. .Dig. Bankruptcy, § 735.]</p>

At L,aw. This was an action brought by the United States, on the 30th day of April, 1898, against the defendants as sureties upon the bond executed by Eugene Beebe to the United States, in 1891, to account for the rents and profits of certain real estate.

At Law. On demurrer to complaint. This is an action to recover tlie possession of real property described as the N. W. Li of section 22. township 17 g., range 44 E. of the Willamette meridian, in Malheur comity, Or.

<p>In Bankruptcy. On review of order of referee.</p> <p>The following is the statement and opinion of Charles A. Hawley, Referee:</p> <p>Statement.</p> <p>The bankrupt had made and issued corporate bonds secured by mortgages which purported to cover after-acquired property. ’Two-fifths of the property was conceded to be subject to the lion of the mortgages; as to the three-fifths of the property which was after acquired, the lien of the mortgages was disputed. An order for the sale of the property was made, which, among other things, provided “that immediately after said sale the said two-fifths of the entire proceeds thereof shall be distributed by this court in pro rata payments to the holders of the bonds of the said bankrupt which are secured by the said mortgages and which shall be established before this court as valid obligations of said bankrupt.” The order then provided for the retention of I he other three-fifths of the proceeds by the First National Bank of Waterloo, trustee for the bondholders under said mortgages, upon interest at 3 per cent, for full months ponding the controversy as to tlie title thereto. As to said throe-fifths, the trustee In bankruptcy brought suit against the bank (trustee under the mortgages) in the Supreme Court of the state of N^w York, succeeded at the trial and at the Appellate Division, and the case is now pending on appeal to the Court of Appeals.</p> <p>After the sale opportunity was given to the bondholders to establish their bonds before me. The bondholders filed proofs of their bonds as secured debts in the ordinary form, tlie security being said mortgages, and all of the bonds, of which proofs were so filed, were proved and allowed, except 2 of §500 each, presented by Francis Bacon, and 21 of $500 each, presented by the First National Bank of Waterloo. The 2 bonds presented by Mr. Bacon and the 21 by the Bank were objected to by tlie trustee in bankruptcy ami hearings were had thereon. On November 7, 1903, the referee filed decisions allowing the claims of Mr. Bacon and the bank upon said disputed bonds. Petitions for review were filed and allowed, and the decisions were affirmed by the District Court. Thereupon, the cases were taken by the trustee in bankruptcy to the Circuit Court of Appeals where the order of the District Court as to the 21 bonds held by the bank was affirmed, and that as to the 2 bonds held by Francis Bacon was reversed. In re Waterloo Organ Co., 13 Am. Bankr. Rep. 477, 134 Fed. 345, 67 C. C. A. 327; Id., 13 Am. Bankr. Rep. 466, 134 Fed. 341, 67 C. C. A. 255. The decision of the Circuit Court of Appeals as to Bacon’s 2 bonds was made the decision of the District Court by a final decree after appeal, dated April 20, and filed with me April 23, 1906. The decision of the Circuit Court of Appeals in the case of the 21 bonds held by the bauk was made -the judgment of the District Court by an order made June 9, 1906, and filed with me June 12, 1900. Thereupon, the trustee in bankruptcy filed his petition, reciting the proceedings, and asking, among other things, that the owners of said bonds should show cause why a decree should not be made, fixing and determining their respective pro rata shares of the said two-fifths of the proceeds of the sale of said property. Thereupon, an order to show cause was granted. The First National Bank filed an answer to such petition, and also filed a petition for an adjustment of its compensation for services and reimbursement of its expenses, as trustee in said mortgages; and the trustee in bankruptcy also filed a claim for services and disbursements. A hearing was had thereon, and the matter is now before me for decision.</p> <p>Opinion.</p> <p>Five questions are presented for determination:</p> <p>1. Counsel for the bank as trustee contends that the trustee in bankruptcy has no standing to prosecute the present litigation.</p> <p>That contention, I think, must be overruled. The bonds which are here involved were proved against the bankrupt’s estate as secured debts; the security being the mortgaged property out of the sale of which the fund arose. It is quite evident, then, that the larger the fund realized here for the bondholders the. smaller will be their claim over against the general estate of the bankrupt for the balance remaining unpaid upon their bonds; and so the trustee is interested. But the question is not important, for Messrs. O’Brien & Short appear for a bondholder, and raise the same questions raised by the trustee in bankruptcy. The trustee in bankruptcy also claims that as matter of fact he' represents at least 6 of the 13 bondholders.</p> <p>2. Whether the bank, as trustee for the bondholders, shall be charged with interest upon the two-fifths of the proceeds, and, if so, at what rate.</p> <p>By the order of sale it was apparently in contemplation that the bank, as trustee for the bondholders, would become the purchaser .of the property, and the order evidently contemplated a retention of three-fifths of the proceeds awaiting the determination of the controversy in respect thereto, and the immediate distribution of the two-fifths; the controversy over the bonds held by Mr. Bacon, and those held by the bank not being at that time indicated. The bank, as trustee, did buy the property for the sum- of $25,800. Thereupon the proof of the bonds was taken up, and the controversy developed. The bank held the property from the date of the sale, which sale was confirmed December 2, 1902, until about June. 1903, when it sold the property to the Vough Piano Company, a corporation then recently formed, for the same price it bid upon the' sale; the piano company to take the property as it then stood, and assume any liability which the bank had incurred in the meantime. I do not understand it td be claimed that up to the time of the sale to the Vough Piano Company that the bank, as trustee, is liable for interest. It appears that on the sale to the Vough Piano Company the bank, as trustee, deeded the entire property, received nothing in payment therefor, and no written obligation of any kind to secure the payment.</p> <p>About three months after the sale, the Vough Piano Company made a $40,000 mortgage upon the property which it purchased of the bank, and upon.about $25,000 worth of other property, and deposited the whole, $40,000, in bonds secured by said mortgage with the First National Bank of Waterloo; and the inference is .perhaps permitted from the testimony that they were held at first as security for the purchase price, and, later, as security for the purchase price and as collateral for what the piano company might owe the bank, v ith which the piano company has an ad ive account. At the time of these transactions, the Vough Piano Company was composed of William C. Vough, Ohauncey L. Becker, and John Becker. Charles IX Becker was its secretary, Charles IX P.ecker and John Becker were stockholders, and Charles I). Becker, a director in the First National Bank of Waterloo, and Herbert It. Becker (now deceased) was the cashier of the bank. While upon the purchase of the properly the Vough Plano Company made no bond, or note, or any written promise to pay the purchase price, the understanding was that it was to be paid whenever the bank called for it. The bank did not call for it until on or about January 20, 1906. Thereupon, the money was paid and deposited in the Exchange National Bank of Seneca Falls; remained there about two months and earned Sol interest: and was Then deposited in some bank or savings institution in Rochester at A per cent, interest, where it now remains. Under these circumstances, the trustee in bankruptcy and counsel for bondholders claim that during, the period intermediate the sale to the Vough Piano Company and the collection and deposit of the money upon interest, the trustee should be charged with legal interest, and one of the counsel contends that this should be computed with quarterly rests. To this contention, counsel for the bank as trustee, replies, that the bank was nor the kind of a trustee whose duty it is to make investments; that it was not expected to make investments, but to make immediate payment, and that it was its duty to keep the funds under its immediate control, so that whenever the litigation terminated it would be ready ‘'immediately” to distribute the fund in compliance with the order under which it obtained it. That there was no means by which it could tell when the litigation would be terminated, and that an effort was made l:o carry the litigation over the 21 bonds held by the bank to the Supreme Court of the United States, which refused to entertain it. I think that the truth lies between these two extremes. The bank, as trustee under the mortgage, was not of that class of trustees whose duty it was to make investments for the purpose of earning income to pay over for the support of the beneficiaries of the trust. Indeed, if it had made permanent investments, such, for example, as executors and trustees for infants are authorized to make, and so have tied up the fund, it would have been guilty of a breach of duty.</p> <p>Nevertheless, while it was not its duty, as trustee, to seek a permanent investment of the fund at a large rate of interest, it was its duty, as I think it is the duty of every trustee, to exercise such provident care over the fund as would, within the line of its duty, result most largely to the benefit of the bondholders. This is not a case where the trustee has mingled the trust fund with his own, or has gained any advantage from the course of conduct which has been pursued, ft is simply a case, I think, where there was a want of diligence and provident care on the part of the trustee. Nor can I escape the conclusion that if, at the time the District Court made its order of sale, the long litigation over the bonds had been presented to the court even in prospecta that the bank would have been directed to hold this fund during the pendency of the litigation at the same rate of interest as was prescribed for the three-fifths of the proceeds of the sale. It is therefore my opinion that justice demands that the trustee should be charged with interest upon the fund at the rate of 3 per cent, per annum for two years intermediate the sale of the property to the piano company and the deposit of the fund with the Exchange National Bank of Seneca Falls; and that to this interest should be added the interest it received from the Exchange National Bank and that which shall be received from the Rochester institution where-it is now deposited.</p> <p>My attention has been called by the briefs on behalf of the bondholders to several cases which it is strenuously Insisted require that the bank should be charged with 6 per cent, interest. It does not seem to me that those cases support the contention based upon them; but that they tend rather to support a different conclusion, or are plainly distinguishable from the case at bar. Thus, Price v. Holman, 135 N. Y. 124, 32 N. E. 124. was an executor’s case where there was a delay in payment arising from the pendency of litigation over a disputed claim. There -was a claim for interest upon interest; and it was held that it did not appear that the executor had used the money for his own purposes, or made any profit out of it, and that, in the absence of bad faith, the fact that he appealed from' a judgment, and delayed the payment, did not render the executor chargeable. A trustee is not chargeable with interest solely because he deposits the trust funds with his own, or uses them in his business (which was not done here). There must be in addition a breach of trust, a neglect or refusal to invest in the time or the manner the trust agreement or the law points out. Citing with approval upon that question Rapalje v. Hall, 1 Sandf. Ch. 399. Indeed, Price v. Holman causes some hesitation in my mind as to whether the pendency of the litigation was not a sufficient answer to the claim that interest should be charged. If the bank; as trustee, bad itself received the money, kept it without using it in its own possession ready to be paid, the principal underlying Price v. Holman would perhaps have called for a different conclusion from that which I have reached.,</p> <p>• In re Barnes, 140 N. Y. 468, 35 N. E. 653, is substantially to the same effect. In that case an assignee for the benefit of creditors deposited funds to his individual account, but his account always had a credit in excess of the balance of the trust funds in his hands. The action was brought to set aside the assignment, which was pending for three years. Upon settlement the assignee was charged with 6 per cent, interest. It was held to be error; that the law neither authorizes nor permits the assignee to make any investments. It was his duty to convert the assets into money, keep the( moneys, and distribute them at the time and in the manner required by law. And that while it might be. if he perceived the moneys must lie idle for a long time because of the suit pending, and there were solvent institutions known to him in the place where he might have, deposited them, subject to withdrawal on demand, and with an allowance for interest, he should be charged with the interest which might thus be earned, he could not be charged beyond that. And the court said (page 473 of 140 N. Y., page 654 of 35 N. E.): “Upon the facts in this case there was no conversion by the trustee to his own private use, and it is not just that he should be charged with any greater amount than the possible loss to the fund by his omission to deposit where some rate of interest might have been allowed. Citing In re Cornell. 110 N. Y. 357, 18 N. E. 142; Beard v. Beard, 140 N. Y. 200/35 N. E. 488; In re Nesmith, 140 N. Y. 609, 35 N. E. 942; and In re Myers, 131 N. Y. 409, 30 N E. 135, are, neither of them, I think, in point upon the question here being considered.</p> <p>3. The claim for compensation to the bank for its services, as trustee, and for its reimbursement on account of expenses in the litigation over the title to the bonds, and in the litigation in the state court over the title to the three-fifths of after-acquired property claimed to he subject to the lien of the mortgages.</p> <p>(a) As to the services of the bank as trustee, counsel for the bank claims that a trustee under a corporate mortgage is entitled to the same commissions as are allowed by law to an executor or administrator.</p> <p>I do not think so. Counsel contends, and I have agreed with his contention, that the bank, as trustee, is not of the class of trustees whose duty it is to make investments of funds. I think, also, that the bank is not of that class of trustees who are entitled to the commissions allowed executors. I have examined the various authorities to which he has called my attention'. It is necessary only to refer to Meacham v. Sternes, 9 Paige (N. Y.) 398, which contains a practical summary of all the cases and a statement of the principle of law which governs here.</p> <p>In the first place, it is to be observed that that case was one of an assignment in trust for the payment of debts, not the case of a trusteee for bondholders under a corporate mortgage. The court held (page 403) that it may be considered a settled rule that in all cases of trust of this description, and all other express trusts of a similar nature where nothing is said in the deed or instrument (realms tlie trust, on the subject of compensation to the trustee for his personal sen ices in tin execution of a trust, and where there is not an agreement on tlie subject for a different allowance, that the trustee, upon the settlement of his accounts, will be allowed tlie same fixed compensation as an executor or administrator. This, upon the theory that the court, will consider the statute allowance to executors as tacitly understood and agreed on by the parties to all trusts of a similar nature, where nothing appears to show a different agreement or understanding. But the court goes on to say that where tlie instrument creating the trust fixes a different compensation, that, of course, must prevail. Where such an instrument contains an express provision that the trustee shall receive a compensation for his service's in addition by his expenses and disbursements, leaving the amount of tlie allowance to be settled upon the principle of quantum meruit, the amount of compensation must necessarily depend to a certain extent upon the peculiar circumstances of each case, and must be adjusted with reference to what is usually paid by the agreement of parties for similar services.</p> <p>So, too, upon page 401, in the discussion of previous cases, the court said it was not aware “of any case in which the court had, by an express decision, applied the same rule of compensation to an ordinary trustee created by deed or will where no provision was made in the instrument creating the trust to compensate the trustee for his services. For in such instruments express provision is usually made for a fixed compensation to the trustee. Or, at least, to allow him to retain a reasonable sum for his care and trouble in the execution of the trust. So, too, upon page 402. discussing the case of Denniston v. Bleecker & Others, the chancellor says that lie suggested in that case that the equity of the statute allowing a fixed compensation to executors and guardians for their services by way of commission might probably bo extended’ to the case of other trustees performing similar services, so as to allow them the same compensation where the instrument creating the trust was silent on the subject. That case, however, was finally disposed of upon the ground that the trust deed evinced an intention on the part of the person creating the trust to allow the trustees to charge a reasonable compensation for their services.</p> <p>But it is understood that the trust deed or mortgage in this case is not silent upon the subject of the compensation of tlie trustee. But that it provides, as such corporate mortgages usually do provide, that, the trustee shall receive a “just compensation” for its services. It follows therefore, not only that the duties of this trustee are not similar to those of an executor, ad ministra tor, or a guardian, but that the case falls precisely within the class where, according to Meaeliam v. Stemes, “just compensation” excludes the idea that commissions are necessarily to be computed at the statutory rate, nut are to be determined upon a quantum meruit, and may be less, or equal to, or even more than the statutory rate, depending upon tlie circumstance's of the case. I know of no instance where a trustee under a corporate mortgage has been permitted to recover percentage computed under the statute applicable to executors and administrators; and think that it is, at least, a matter of common knowledge that their compensation is ordinarily much less than that.</p> <p>It appears from tlie testimony here that the ordinary charge is from % to % or 1 per cent.; but that testimony seems to lie limited to the ordinary payment of bonds and coupons which are duly paid at maturity, and, in tlie due course of business, without default or litigation. It appears that when the bank, as trustee, bought the mortgaged property it put a manager in charge of it, and that an allowance was made for his services in the judgment rendered in the state court in the litigation over the title to the three-fifths of the property. The testimony, however, permits, and, I think, requires, tlie inference That the bank, as trustee, has had to exercise some care and attention in the litigations in which it has been involved, both here and in the state court, and it would seem is equitably entitled to some compensation therefor. It is a matter of regret that the testimony is quite indefinite upon this subject, but from my knowledge of the course of the litigations, tlie testimony and the briefs, which have been submitted to me upon this hearing in regard to the litigation over the bonds, I am persuaded that I shall do no injustice if I allow the bank % of 1 per cent, for the payment of coupons amounting to $8,134.42. The bank is yet to withdraw from its present place of deposit the two-fifths now under consideration, to pay therefrom such expenses as shall be hereinafter allowed, to distribute the net balance among the bondholders, secure their formal receipts therefor, and deliver the same to the trustee in bankruptcy. I think it will be no more than just and equitable, if for the services it has heretofore rendered, and for those hereafter to be rendered, that it shall be entitled to 2 per cent, upon the total amount of the funds, including interest which it will have on hand to divide for the payment of expenses and payment to the bondholders, when the order to be made herein shall be complied with.</p> <p>(b) As to the reimbursement of the bank, as trustee, for its expenses in the litigation over the bonds and the litigation in the state court as to the title to three-fifths of the mortgaged property.</p> <p>The bank has filed with me a bill for its expenses for its attorney’s services and disbursements amounting to $906.05. The items of this bill and the reasonableness of the charges are conceded. $270.05 of the bill are for expenses for the trustee in the District Court, and no objection is made to their allowance. But it is claimed by the trustee in bankruptcy that the balance of the bill, $635.40, being for attorney’s services and expenses in the action in the state court, are not chargeable against the fund now here to be distributed. The argument made is that the bank, as trustee, should be turned over to the fruits of its litigation as to the three-fifths of the property for reinibursement for its expenses. This contention appears to be neither sound nor equitable. It is conceded that the litigation in the state court was not a frivolous, but a substantial, litigation. The trustee in bankruptcy sued the bank as trustee under the mortgage. The action was to determine the title to the after-acquired property, to which both the bank and the trustee in bankruptcy claimed title. Three-fifths of the property (which was nearly the entire estate in bankruptcy) was involved. I think it was the plain duty of the bank, as trustee, to defend that action; and that, if it had not defended it, it, perhaps, would have . made itself liable to the bondholders for neglect of duty. Nor do I think that it was an improvident expenditure of time or money to appeal from the decision of the trial court. Price v. Holman, supra; In re Barnes, supra. I do not think that the cases cited from the bankruptcy courts where there have been general assignments for creditors vacated by proceedings in bankruptcy, .and allowances to the assignees for services only permitted in so far as such services were beneficial to the bankrupt estate, are at all in point. An assignee accepts his assignment in defiance of the bankruptcy law, and knows that it is liable to be set aside by the intervention of bankruptcy proceedings. The bank was made a trustee long before there was any bankruptcy. It accepted the trust, and was bound by its obligations. It was sued, and defended itself, not unreasonably, but in good faith. It now turned over for its reimbursement, not for services, but for expenses and obligations actually .incurred, to the three-fifths, and the decision of the court of last resort shall he against the bank, as trustee, then it will be remediless. These expenditures were incurred by it reasonably, and in good faith, for the benefit of the bondholders, and they ought to be paid by the bondholders, whether the result ultimately is for the advantage of the bondholders or not. Steinway v. Steinway, 112 App. Div. 19-22, 98 N. Y. Supp. 99.</p> <p>My conclusion is that the bill should be allowed, and that the sum of $006.05, the amount thereof, should he paid by the bank, as trustee, out of the proceeds of the- two-fifths which are here for distribution.</p> <p>4. The trustee in bankruptcy presents a bill for services and attorney’s fees in the controversy over the 2 bonds claimed by Mr. Bacon, and the 21 bonds ■claimed by the First National Bank, amounting, in the aggregate, to $1,362.75, of which $500 in each case, amounting together to $1,000, are for attorney’s services of the trustee, and his counsel, Mr. Manning.</p> <p>Counsel for the bank, as trustee, and for the bondholders, concedes that the disbursements have been made and the services rendered, but does not admit the reasonableness of the charges for the services ($500 in each case), and ■contends that neither the services nor the disbursements are chargeable against the fund here for distribution. I think his contention is correct. As has already been said, the claims of the bondholders have been proved as secured claims. The efforts of the trustee in the litigation over the bonds have necessarily been, as they ought to have been, not for the benefit of the bondholders alone, but for the benefit of the general creditors of the bankrupt estate, including the bondholders. And it would be, in my opinion, unjust and inequitable to charge those services and disbursements upon the fund here to be distributed. The charge to the extent of its reasonableness should be against the bankrupt's estate. That, I think, is the trust fund, which should bear this expense of its administration. Woodruff v. N. Y. R. R., 129 N. Y. 27, 29 N. E. 251. Holding to this view, and without examining into or expressing any opinion as to the reasonableness of the charges for attorney’s services, I must decline to make either the services or the disbursements a charge against tills fund. I da not. by this decision, intend to preclude the trustee in bankruptcy from a future application for reimbursement for these services and expenses out of the fund arising from the three-fifths of the proceeds of the sale, in case he should ultimately be defeated in the litigation over the three-fifths, and the remaining estate of the bankrupt should be insufficient for his reimbursement. My view is, not that he should not in some way lie protected for his reasonable expenses and disbursements, but that it ought not at the present time to be charged upon the fund now under consideration.</p> <p>5. The trustee in bankruptcy, upon the hearing requested the referee to direct the cashier of the First National Bank to deliver to him $10,500 of the notes which the bank produced, made, or indorsed by the Waterloo Organ Company, upon the theory that the bank is required to account to the trustee in bankruptcy for the par value of the 21 bonds held by it as collateral before any dividend is paid to it upon such bonds.</p> <p>My decision as to the 21 bonds was that the bank was the lawful holder thereof, and entitled to prove the samo, and that its claim be allowed. The District Court, upon review, affirmed that order. The order of the District Court affirming my order was as follows: “It is hereby ordered and adjudged that the decision and order made by the said referee in bankruptcy approving and allowing the said bonds be, and the same hereby is, in all respects, approved and affirmed. And the said bonds are, and each of them is, adjudged to be lawfully owned and held by the said First National Bank of Waterloo, X. Y., and that the claim made thereupon is duly approved and allowed in this proceeding.” The Circuit Court of Appeals affirmed my order, and adjudged that the 21 bonds were valid and legal claims in the hands of the bank against the organ company; that ihe bank had a good and valid title thereto ; Hint the bonds were duly and legally proved before me, and the same were duly and legally allowed by me, as properly proved claims, in favor of the bank, and against the trustee in bankruptcy of the organ company.</p> <p>Thus it appears that my original order, and that of the District Court were affirmed without any modification whatever. But tile trustee in bankruptcy claims flint under the opinion delivered in the Circuit. Court, of Appeals (In re Waterloo Organ Company, 13 Am. Bankr. Rep. 477, 134 Fed. 345, 67 C. C. A. 327), the bonds are to be accounted for by the bank at par. Counsel for the bank claims that the opinion does not hear any sucli construction. The situation necessarily raises the question as to whether resort may be had to the opinion of the court which pronounces judgment, to modify or in any way qualify the judgment so pronounced. I do not think that it is proper or necessary at this time to decide this question. The bank still lias rights, based in part upon the $10,500 of notes which flic trustee in bankruptcy desires to have surrendered, upon the three-fifths of the proceeds of sale; the title to which is now being litigated in the state courts. If the title to that three-fifths should ultimately be adjudged to be in the bank as trustee for the bondholders, then the bank would be entitled to another dividend upon the $10,500 worth of notes, which I am! asked now to require it to surrender for cancellation. I cannot, at this time, interfere with or impair that possible right. In my opinion, the request of the trustee in bankruptcy, even if it may at some time be a proper request, is prematurely made at this time. Without passing upon its merits, if any it has, and without consideration of or expressing any opinion as to it, I decline to allow it, upon tlie ground that it is prematurely made.</p> <p>An order in accordance with this opinion may be entered.</p>

<p>1. Tetjsts — 'Validity—Act Pa. June 8, 1881 — Failure to Record Declaration by Grantee.</p> <p>‘Act Pa. June 8, 1881 (P. D. 84), which provides that a deed absolute on its face shall not be reduced to a mortgage except by a defeasance in writing signed, sealed, and delivered at the time and recorded within 60 days, does not render void or ineffective an unrecorded declaration of trust executed by an absolute grantee to the grantor, by which it declared that it held the property in trust for certain purposes plainly expressed therein, merely because one of such purposes was to sell lots from the property and from the proceeds to repaj’- itself certain advances; and the trustee cannot treat such instrument as a defeasance merely and assert its legal title to avoid the execution of the trust.</p> <p>[Ed. Note. — For cases in point, see vol. 47, Cent. Dig. Trusts, § 33.].</p> <p>2. Judgment — Hatters Concluded — Identity oe Issues.</p> <p>Where the issues in two suits between the same parties are different,, a determination in the first of matters in issue in the second, not necessary to the decision, is not conclusive on the parties in the second.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1203-1208.]</p> <p>3. Courts — Federal Court — Injunction—Staying Proceedings in State Court.</p> <p>Rev. St. § 720 [U. S. Comp. St. 1901, p. 581], which forbids the federal courts to grant injunctions Staying proceedings in a state court, does not prevent the granting by a federal court of an injunction restraining a party from making a wrongful or inequitable use of an execution issued on a judgment of a state court.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1418-1422.</p> <p>Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank of' Providence, 10 C. C. A. 90; Central Trust Co. of New York v. Grantham, 27 O. O. A. 575; Copeland v. Pruning, 03 C. O. A. 437.]</p>

<p>1. Bankruptcy — Title of Trustee — Liens.</p> <p>Under Banter. Act, July 3, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp.. St. 1901, p. 3451], providing that the trustee in bankruptcy shall be vested with the title of the bankrupt as of the date of the adjudication to all property which the bankrupt by any means could have transferred or which might have been levied on and sold by judicial process against him, liens on the bankrupt’s property which were valid when bankruptcy intervened remain undisturbed.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§ 280-295.]</p> <p>2. Same — Sale of Property.</p> <p>An order by the bankruptcy court directing a sale of the bankrupt’s property without mentioning liens will be construed as only authorizing a sale subject to existing liens.</p> <p>3. Same — Notice.</p> <p>An order directing a sale of a bankrupt’s property on which valid liens exist should be granted 'only on notice to lien creditors, and the record 'should affirmatively disclose that every creditor whose lien will be discharged by the sale has received such notice.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, §§ 361, 362.]</p> <p>4. Same — Waiver of Irregularity.</p> <p>Where property belonging to a bankrupt was sold free from liens, the act of a lien creditor in bringing trover against the trustee for the conversion of the property so sold constituted an affirmance of the sale.</p> <p>5. Same — Petition—Sequestration.</p> <p>The taking possession of the property of a bankrupt by the bankruptcy court does not operate as a caveat or sequestration of property owned by the bankrupt subject to valid liens, so as to make the holder of the lien a party to the proceedings.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 322.]</p> <p>6. Same — Possession—Replevin.</p> <p>Where property belonging to a bankrupt subject to valid liens has been taken possession of by the bankruptcy court, the lien creditor cannot interfere therewith or maintain replevin against the receiver or trustee.</p> <p>[Ed. Note. — For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 238.]</p> <p>7. Same — Rights of Creditor.</p> <p>Where personal property of a bankrupt was subject to a chattel mortgage, the mortgagee was entitled to petition the bankruptcy court for ■ payment of the amount of the mortgage debt, in which case the court would have jurisdiction to determine the validity of the lion.</p> <p>8. Same — .Ttt.tsdictton--State and Federal Courts — Conflict.</p> <p>Whore personal property belonging to a bankrupt and subject to a chattel mortgage was sold by the bankrupt’s trustee, the mortgagee was entitled to maintain trover in a state court against the trustee to establish the validity of the mortgage; lie never having appeared in- the bankruptcy court, or in any way consented that the latter might take jurisdiction to determine ins rights.</p>

Writ of habeas corpus accompanied by a writ of certiorari to the commissioner.

<p>1. Licenses —Intoxicating Liquors — Validity of Ordinance — Imposing License Tax.</p> <p>Unless it clearly appears upon the lace of a city ordinance imposing a license tax upon the business of selling liquor that its purpose was to exact a tax and not to regulate the business, it should be sustained as within the police power of the city.</p> <p>[Ed. Note. — For cases in point, see vol. 82, Cent. Dig. Licenses, § 6; vol. 36, Cent. Dig. Municipal Corporations, §§ 1368, 275.]</p> <p>2. Commerce — Interstate Commerce — Intoxicating Liquors — Municipal License Law — Constitutionality.</p> <p>An ordinance of the city of Mobile imposing a license tax on dealers in beer held one enacted m the exercise of the police power conferred on the. city by its charter and by virtue of the Wilson Act (Act Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177]) not invalid as in violation of the interstate commerce clause of the federal Constitution as applied to the sale of beer in the bottles in which it was brought from other states.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Commerce, § 105.</p> <p>Taxation of interstate commerce by states, see note to Board of Assessors v. Pullman’s Palace Co., 8 C. C. A. 492.]</p> <p>3. Same.</p> <p>Semble that articles of interstate commerce being subject to taxation by the state into which they are brought while there held for sale in the original packages, a city ordinance imposing a license tax on dealers in beer even if enacted under the city’s power of taxation, and not as a police regulation, is valid as to beer brought from other states and sold in the original bottles, irrespective of the Wilson Act Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St. 1901, p. 3177].</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Commerce, § 134.]</p>

<p>In Admiralty. In the matter of the claim of T. T. Tunstall, intervener, for money lent or advanced.</p>

<p>1. Shipping — Loss of Cargo from Leakage — Exception in Bill of Lading.</p> <p>A provision of a bill of lading that the shipowner shall not be liable for loss by leakage protects him as to all leakage, however great, unless caused by negligence, which must be shown to establish his liability.</p> <p>[Ed. Note. — Eor cases in point, see vol. 44, Cent. Dig. Shipping, § 493.]</p> <p>2. Same — Damage to Cargo of Wood Oil — Improper Packages.</p> <p>A loss through leakage of wood oil shipped from China to New York in ordinary barrels held not to have been due to improper stowage but to the insufficiency'of the packages, for which the carrier was not liable under the terms of the bill of lading, it being shown that such oil has a tendency to shrink the barrels and cause leakage unless they are specially prepared.</p>

<p>In Bankruptcy. On two petitions of American Wood Working Machinery Company for delivery of property to it.</p>

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

In Bankruptcy. On certificate of referee. The following is the opinion and order of the referee upon the claim of the Dillon Machine Company : The Dillon Machine Company has filed its petition-, alleging that, at the time of the bankruptcy, the bankrupt had in its possession a certain machine, known as a “No. 1 Jordan Engine,” which was delivered to the bankrupt upon trial only, and never was accepted by the bankrupt, and that the title to the same is in the petitioner.

<p>In Bankruptcy. On report of referee recommending discharge.</p> <p>The following is the report of David Werner Amram, referee in bankruptcy :</p> <p>William Tiilyer and Issue H. Tiilyer, individually, and trading as Tiilyer Bros., were adjudica red bankrupts upon their own petition on May 22, 1903, and the mailer was referred to me as referee. At the first meeting of creditors held before' me ihe bankrupts were examined, and a copy of the testimony then taken is handed up with this report. Thereafter the bankrupts filed their petition for discharge, and objections were filed thereto by Albert ,T. Tiilyer. administrator of ¡lie estate of.Charles Tiilyer, deceased. The poiiiion for discharge, and file specifications of object ion, were thereupon by order of your honorable court, made on the 28th (lay of September, 1903, referred to me to ascertain and report the facts, together with the testimony and my findings (hereon. I held several meetings at which testimony was taken on behalf of the objecting creditor, and a copy of the testimony is handed up with this report</p> <p>The specification of objection to the discharge of William Tiilyer is entirely insufficient both in form and in substance, and I therefore recommend that this specification of objection be dismissed, and the discharge of William Tiilyer granted. There were three specifications of objection to the discharge of Isaac II. Tiilyer. The first and third specifications are insufficient in form and in substance, and were not pressed by the objecting creditor. I therefore recommend rha-1 they he dismissed. Objection might have been made to the sufficiency of ihe second specification of objection. Whether or not the bankrupt's failure to object to the sufficiency of the specification, and his willingness to submit in this proceeding to ail examination on ihe merits, is a waiver of such defect; need not now be considered, inasmuch as 1 am of the opinion that, oven if i he sufficiency of the specification of objection be assumed, the objecting creditor has entirely failed to substantiate the charge of fraud mad" therein. The objection to tlic discharge was made by the administrator of the estate of the bankrupt’s father ; the only creditor that filed a proof of debt and appeared in these proceedings. The charge is based upon ihe following alleged fact: That the wife of the bankrupt holds 80 shares of stock valued at 84,000 in the Vineland Window Glass Company, of which the bankrupt is superintendent and manager, and that she purchased tills stock with money given to her by her husband, so that the ccrtificatos might be placed in her name unde] a secret trust for her husband, for the purpose of protecting them from his creditors.</p> <p>The only testimony taken was that of the bankrupt and his wife, and this testimony shows that Mrs. Tiilyer purchased the 80 shares of stock between the years 1899 and 1902, and that she paid the $4,000 for them with money derived from the following sources :</p> <p>From the sale of a piece of real estate owned by her at Frank ford avenue and Dauphin street in the city of Philadelphia............$1,200 00</p> <p>From two mortgages on a piece of real estate owned by her at 211 East avenue, Vineland. New Jersey.............................. 1,400 00</p> <p>Cash of her own saved by her from moneys received from her husband. ......................................................... 100 00</p> <p>A loan made by her for which she gave the stock in the Window Glass Company as collateral security............................ 1,300 00</p> <p>Total .....................................................$4,000 00</p> <p>The real estate in Philadelphia out of which Mrs. Tiilyer realized $1,200 formerly belonged to Charles Tiilyer, the bankrupt’s father, but, on his death, the title vested in Julia Tiilyer, his widow, and Isaac Tiilyer, Harriet Brown, William Tiilyer. and Albert Tiilyer. his children. The property was 1 hereafter sold by the sheriff under a judgment of Julia Tiilyer against her husband, and bought in by her at the sheriff’s sale. Immediately thereafter, to wit, on September 20, 1895, she conveyed her title to Kate Tiilyer, (.lie bankrupt's wife, and three years later, to wit, on November 15, 1898, Harriet Brown, Albert Tillyer (the objecting creditor) and William Tillyer joined in a deed of their interest to Kate Tillyer, and about two months later she (her husband joining her) sold the property to William Arneil, and it was out of this sale that she made the $1,200. This $1,200 was given by her to her husband, the bankrupt. He repaid it in payments made to her from time to time out of his salary as superintendent of the glassworks, and she used the money thus repaid to her by her husband to pay for a part of the stock in the glass company. The property at 211 Bast avenue, Vineland, was mortgaged by her for $1,400 more than she paid for it. According to her testimony, it appreciated in value to that extent, and enabled her to make the loan. All of these facts are uncontradicted, and show that the money paid for the stock in the glassworks was the money of Mrs. Tillyer, and not that of her husband, the bankrupt. There was other testimony, likewise uncontradicted, that the bankrupt owed his wife $2,300 for two loans which she made him in 1889 and 1892, respectively, and that the moneys which he had been paying to her out of his salary as superintendent of the glassworks was upon account of this indebtedness, as well as on account of the balance due her on th'e $1,200 loan.</p> <p>It appears that 20 years ago the bankrupt had a grocery store in Philadelphia, and owned some building association stock; that he was then perfectly solvent, and had transferred his building association stock to his wife. He was about to give up his grocery store because he contemplated removing to Winslow, N. J., when, at the suggestion of his wife, he allowed her to continue to conduct the store in Philadelphia instead of selling it. I-Ie removed to Winslow to conduct a glass business there, and she kept the store in Philadelphia. While conducting the store in Philadelphia, she appropriated the profits thereof, as she considered it to be her property by gift from her husband; and with the moneys thus saved she kept up her building association stock. Subsequently she borrowed $1,900 and $400 from the building association, and gave the money to her husband. He lost it in the glass business in Winslow. He became insolvent, and his wife was one of his creditors to the amount of $2,300, and he now alleges that from time to time he paid her, out of moneys earned by him, small sums on account of this indebtedness. It is true that business relations between husband and wife, which are made the basis of claims against a bankrupt estate, or which are used for the benefit of either of the parties thereto in bankruptcy proceedings, are to be subjected to most careful scrutiny. Such transactions are rarely free from suspicion. The testimony in this case does not warrant the referee in finding that the allegations made by the husband and wife are untrue, and, in view of the fact that theirs is the only testimony in the case, the second specification of objection has not been sustained.</p> <p>Bor the above reason, I recommend that the second specification of objection be dismissed, and that Isaac H. Tillyer be discharged.</p>

In Bankruptcy. On report of referee. The following arc the reports of Theodore M. Etting, referee, omitting the formal parts: From I he evidence above referred to, I find the facts to be as follows: J. Dobson Schofield, whose application for discharge is now under consideration, was adjudged a bankrupt upon his own petition on the 21st day of December, 3899. Some years previous thereto, the bankrupt had taken out a policy of insurance on his own life.

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

<p>In Bankruptcy. This is an application to transfer the reference of the case from the referee in the Northern district of New York, where the petition was filed and the adjudication made, to a referee in the Western district of New York, where most of the creditors of the bankrupt reside, under the provisions of section 22 of the bankrupt law.</p>

<p>1. Libel — Innuendoes.</p> <p>A complaint for libel cannot be assisted by innuendoes which do not serve to iirferpret the idea which would naturally reach the mind of an intelligent reader.</p> <p>[Ed. Note. — For cases in point, see vol. 32, Cent. Dig. Libel and Slander, §§ 205-208.]</p> <p>2. Same — Libelous Publications.</p> <p>Defendant addressed to the President a petition praying that he would direct the public printer to recall a “certain order given for certain typesetting machines and direct an investigation as to the facts surrounding l,he order, its propriety, and legality”; that “such order was made corruptly, clandestinely, and in violation of law and the unbroken custom which has governed such purchases,” and that, in violation of the printing laws, certain immediate assistants of the public printer have a stock interest in the company to which the order was given; that Hie order was bad administration, extravagant, and scandalous, etc. Hold, that such petition was a direct and exclusive attack on the public printer and his methods of administration, and was not a libel on plaintiff corporation by whom the machines were sold.</p> <p>[Ed. Note — For cases in point, see vol. 32, Gent. Dig. Libel and Slander, §103.]</p> <p>3. Same — Damages—Remoteness.</p> <p>Where, on defendant’s petition, the President appointed a commission to investigate a contract for the purchase of typesetting machines from plaintiff, and plaintiff claimed that such petition was libelous, expenses, incurred by plaintiff in defending the contract before the commission were too remote to be recovered as damages for the libel.</p> <p>[Ed. Note. — For cases in point, see voi. 32, Cent. Dig. Libel and Slander, §§ 343-346.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The facts of the case are shown by the following excerpt from the opinion of the board: “FISCHER, General Appraiser. It is satisfactorily established by the record that a sieve known commercially as No. 12 wire sieve is one which has 12 openings, squares or meshes to the inch, without regard to the thickness of the wire, and that such commercial sieves are made of different gauge wires.

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

In Bankruptcy. This is a review of an order made by Charles H. Forward, referee, in the above entitled matter, declining to compel the bankrupt, at the instance of the trustee, to turn over to said trustee for the benefit of creditors a certain house and lot claimed by the bankrupt in his schedules as exempt. The contention of the trustee was that the acquisition of the homestead under the circumstances shown in the proofs amounted to a fraud upon the creditors.

<p>1. Courts — Jurisdiction ov Federal Courts — Act Creating New Division op District.</p> <p>Act March 3. 1905, c. 1419, § 3, 33 Stat. 988 [U. S. Comp. St. Supp. 1905, p. 781, creating the Eastern division of the Northern district of Alabama, limits the territorial jurisdiction of the court therein to the enumera ted counties composing the division.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 1120.]</p> <p>2. Same — Foreign Corporations.</p> <p>A foreign corporation, which under the Constitution and statutes of the state can ho sued in the state courts only in counties in which it does business, is not suable in a federal court in the state unless it does business in some one of the counties within the territorial jurisdiction of such court.</p> <p>[Ed. Note. — For cases in point, see vol. 13, Cent. Dig. Courts, § 814.J</p>

<p>1. Collision — Damages—Findings oe Commissioner.</p> <p>The finding of a commissioner as to the value of a vessel lost in collision is entitled to great respect, and will not be set aside unless it is made to appear that his valuation is manifestly erroneous, as in conflict with the weight of the evidence, or that there was clear mistake in the process by which his conclusions were reached.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 302.]</p> <p>2. Same — Total Loss oe Vessel — Measure oe Damages.</p> <p>Where a vessel is a total loss as the result of a collision, the measure of damages recoverable is not her cost to the owners, nor her intrinsic value, but her market value at the time of her destruction, which may be determined from the opinions and estimates of competent witnesses who are qualified by their experience and knowledge of the vessel to testify • as to such value.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Collision, § 2S7; vol. 20, Cent. Dig. Evidence, §§ 2330, 2333.]</p>

<p>Equity — Pleading—Answers to Interrogatories.</p> <p>Defendants in a suit in equity cannot be required, to answer interrogatories by stating facts necessary to complainant’s case, but which are not within their knowledge and which they can only ascertain by a tedious and expensive investigation outside of their own records.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, §§ 431, 432.]</p>

<p>1. Contracts — Construction—Time.</p> <p>At the conclusion ol" negotiations for the storage of defendant's product for a term of five years, plaintiff submitted an oiler to store the same for such period at a rate much less than the lowest rate it had ever previously accepted for storage, which offer was accepted. Hold, that I he acceptance of plaintiff’s offer constituted prima facie a contract for storage for five years.</p> <p>2. Pleading — Causes of Action — Joinder—Contract—Quantum Meruit.</p> <p>It is bo objection to a complaint that it contains a cause of action on contract and on a quantum meruit in the same count, where both are based on the same transaction.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, § 114.]</p> <p>3. Corporations — Foreign Corporations — Capacity to Sue.</p> <p>A foreign corporation may sue in New York on contracts made outside the state, without complying with New York laws, so as to be entitled to do business within the state.</p> <p>[lOd. Note. — For cases in point, see vol. 12, Cent. Dig. Corporations, § 2524.]</p>

<p>1. Equity — Pleading—Hearing on Bill and Answer.</p> <p>Where a replication is withdrawn, and the case set down for hearing on bill and answer, complainant admits every positive averment of fact in the answer, and obtains no benefit from any fact alleged in the bill which the answer positively denies.</p> <p>[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Equity, § 711.]</p> <p>2. Same — Irregularities—Waiver.</p> <p>Complainant, by setting a suit down for hearing on bill and answer, waives all informalities and irregularities in the answer, which could only be reached by exceptions.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, § 665.]</p> <p>3. Same — -Dismissal.</p> <p>There being no way to attack the substance of an answer, except to bring the matter forward for hearing on the bill and answer, where a suit is set down for such hearing in good faith, and a separate defense in the answer is insufficient, ilie bill will not be dismissed, but the insufficient defense will be stricken, and complainant granted leave to file a replication on payment of one-half the costs.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent Dig. Equity, § 827.]</p>

On Application for Review of a Decision of the Board of United •States General Appraisers. The decision below related to goods imported at the port of St. Louis. Note U. S. v. Slazenger (C. C.) 113 Fed. 524. The opinion of the Board reads as follows: Runt, General Appraiser.

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought in the name of Amor Smith, Jr., surveyor of customs at the port of Cincinnati, and relate to a decision of the Board of General Appraisers which sustained a protest by the importers against the surveyor’s assessment of duty, on the authority of U. S. v. American Express Co. (C. C.) 147 Fed. 894.

<p>On Application for "Review of a Decision of the Board of United States General Appraisers.</p> <p>Wilkinson, General Appraiser. The importers testified at the hearing-of the case that the article in controversy is a concentrated cherry juice, to which they had instructed the German manufacturer to add three chemical ingredients of an antiseptic and medicinal character. They also presented an affidavit from' the manufacturer that the instructions had been duly carried out.' The appellants further testified that while the juice in its imported condition is not employed to cure or alleviate bodily disorders, is it used exclusively as an ingredient in a medicinal preparation manufactured by them in. New York, and that it is unfit for other use.</p> <p>“In the opinion of the board, an article to he entitled to classification as-a medicinal preparation must be an agent to be used for the cure or palliation of bodily disorders. There is nothing before the board to show that the cherry juice in question has either one of these characteristics.”</p>

<p>Customs Duties — Classification—-Coated Wire Articles.</p> <p>Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 137, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1639], provides a specific rate of duty on wire, with an additional duty when it is manufactured into articles, also an additional rate when it is coated. HeM, that articles made from coated wire are subject to each of these latter duties in addition to that applicable to the wire in its uncoated unmanufactured state.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision below related to an importation of fancy cloth of the openwork variety at the port of St. Louts, which was classified as imitation laces, under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662], The importers contended that the goods should have been classified under the provision for “all cotton cloth not exceeding one hundred threads to the square inch counting the warp and filling,” in Schedule J, par. 306, 30 Stat. 175 [U. S. Comp. St. 1901, p. 1656]. The Board was of opinion that, because a substantial number of the warp threads were missing in parts of the fabrics, and of the filling threads in other parts, the goods were not susceptible of count of threads by any practicable means, and on the authority of a former decision (G. A. 5,928 [T. D. 26,062]) overruled the importers’ contention.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. This case relates to an importation of sapphires designed for use as bearings in electrical instruments, classified by the collector of customs at the port of New York under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 97, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], for articles composed of mineral substances, not decorated.

On Application for Review of a Decision of the Board of United States General Appraisers. In the decision below the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. The article passed on consisted of paraldehyde. It was classified under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 67, 30 Stat. 154 [U. S. Comp.

<p>■Customs Duties — Classification—Cbeolin-Peabson—Medicinal Pbepabation.</p> <p>Creolin-Pearson is not a medicinal preparation within the meaning of Tariff Act July 24, 1897, c. 11, g 1, Schedule A, par. 68, 30 Stat 154 [U. S. Comp. St. 1901, p. 1631].</p>

<p>1. Appeal and Error — Second Review — Prior Decision As Law op Case.</p> <p>Where the Circuit Court of Appeals, on a writ of error taken by the defendant, affirmed a judgment of the Circuit Court in favor of the plaintiff, but subsequently, on a cross-writ of error sued out by the plaintiff, reversed such judgment on different questions and ordered a new trial, although the effect of the later decision was to reverse the former, the opinions tiled on the two hearings and not withdrawn constitute the law of the case, and questions therein determined will not be reconsidered on a subsequent writ of error from a second judgment.</p> <p>[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4358-4368; vol. 13, Cent. Dig. Courts, § 840.J</p> <p>2. Same — Review—Amendment of Pleadings.</p> <p>Amendments to pleadings are within the discretion of a federal court under Rev. St. § 954 [U. S. Comp. St. 1901, p. 696], and error will not lie to the granting or refusal thereof.</p> <p>3. Trial — Exceptions to Instructions — Rule of Court.</p> <p>Rule 58 of the Circuit. Court for .the District of Montana, which permits exceptions to tlio charge of the court or to the refusal of instructions requested to be taken after the jury have retired, but, if practicable, before the verdict has been returned, was intended to permit such course to ixs followed, where it would be in the interest of justice by avoiding the confusing of the jury or where further instructions were given in the absence of counsel, and not to permit exceptions generally to be taken after the close of the trial contrary to the settled rule of the federal courts ; and where the judge, after instructing the jury but before sending them out. retired to his room with counsel and there heard and allowed the exceptions, the rule does not require him to afterward entertain or allow further exceptions.</p> <p>[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, §§ 680, 681.]</p> <p>4. Writ of Error — Sufficiency of Exceptions to Charge.</p> <p>Exceptions to the charge of the court in general terms, not sufficiently specific to call the attention of the court to the particular point claimed to be erroneous, cannot be considered by an appellate court.</p> <p>5. Mines and Minerals — Trespass—Removal of Ore — Actions—Instructions.</p> <p>The charge of the court, in an action of trespass to recover the value of ore taken from a mining claim, considered as a whole and held to contain no error prejudicial to the defendant.</p>

Infringement of patent No. 669,621, dated March 12, 1901, on application filed September 4, 1900, for “improvement in pleasure wheels” granted to J. G. Conderman.

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

<p>Patents — In esinqement — Oak Replaces.</p> <p>The Alexander patent No. ">23,563 for a ear replacer, claim 3, covering a device for use in replacing the wheels of derailed cars or locomotives on the track, construed, and hold not infringed.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below overruled the importers’ protest against the assessment of duty by the collector of customs at the port of Port Townsend. Note G. A. 5,715 (T. D. 35,107).

<p>Corporations — Insolvency Proceedings.</p> <p>A federal court which is in charge of the assets of an insolvent corporation by its receivers will not interfere with an action in a state court in which a judgment has been rendered against the corporation by directing it not to appeal therefrom, where such appeal will not involve expense to the estate.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought against. Henry McCall, collector of customs at the port of New Orleans, whose assessment of duty on an importation by the petitioners was affirmed by the Board of General Appraisers, December 31, 11)03. The merchandise was classified under paragraph 330, Schedule O, § 1, Tariff Act July 24, 3897, 30 Stat. 360, c. 11 [U. S. Comp.

<p>On Rule to Set Aside Subpoena.</p>

<p>Principal and Agent — Liability of Agent to Third Persons — Contract Made for Principal.</p> <p>A firm of marine insurance agents, known to be such by one employed to render services in behalf of the insurers in releasing a stranded vessel, cannot be held personally liable to pay for such services, in the absence of an agreement expressly binding themselves.</p> <p>[Ed. Note. — Eor cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 478.]</p>

<p>1. Monopoeiiss — Agreements in Restraint op Trade.</p> <p>An agreement by the members of a publishers’ association, controlling 90 per cent of the book business of ihe country, under which all agreed not to sell to anyone who would cut; prices on copyrighted books, nor to any one who should be known to have sold to others who cut prices, etc., was an agreement relating to interstate trade or commerce, within the anti-trust act. Act July 2, 1890, c. 617, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200],</p> <p>[Ed. Note. — For cases in point, see vol. 35, Cent. Dig. Monopolies, § 13.]</p> <p>2. Same — Conspiracy—Restraint op Trade.</p> <p>Defendants became members of an association of book publishers controlling 90 per cent, of the book business of the country, which association adopted a rule that they would not sell to any one who cut prices on copyrighted books, nor to any one who should be known to have sold to others at cut prices. A black list was kept containing the names of such persons, and no one on the black list could buy anjr books of anybody in the scheme. Held, that such scheme constituted a conspiracy in restraint of interstate trade or commerce.</p> <p>[Ed. Note. — For cases in point, see vol. 35, Gent. Dig. Monopolies, § 13.]</p> <p>•3. Copybight — Effect—Extent of Rights Acquired.</p> <p>The rights acquired by publishers of copyrighted books under the copyright law did not justify them in combining and agreeing that their books should be subject to the rules laid down by the united owners, one of which was that no member of the association should sell any books to a blacklisted purchaser who was known to cut prices.</p>

<p>At Law. On demurrer to counterclaim, on the ground that it does not state facts sufficient to constitute a cause of action.</p>

<p>Trade-Marks — Suit for Infringement — Injunction.</p> <p>Evidence held not to entitle complainant to a permanent injunction against infringement of a trade-mark and unfair competition broader in its terms than a preliminary order which was entered with defendant’s consent, and complainant adjudged to pay the costs made since the entry of such order.</p>

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

<p>1. Contempt- — Direct Contempt — Acts in Immediate Vicinity of Court.</p> <p>A direct attempt by a person to bribe or persuade a witness to testify contrary to the truth in a cause pending and then on trial, or to influence the jury or any member th.ereol' to find a verdict in favor of one pariy or the other, made on the street in the immediate vicinity of the court, constitutes a direct contempt, ami the mere denial of the" charge by the accused under oath is not sufficient to exonerate him, but the matter should be heard and determined upon all the testimony produced.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Contempt, §§ 32, 36, 37, 173, 187.]</p> <p>2. Same — Measure of Proof Required.</p> <p>Accusations of contempt -where of criminal import must be supported by evidence sufficient to convince the mind of the trier beyond a reasonable doubt of the actual guilt of the accused, and to establish every element of the offense including the criminal intent.</p> <p>[Ed. Note. — For cases in point, see vol. 10, Cent. Dig. Contempt, §§ 185-187.]</p> <p>3. Same — Acts Constituting — Attempt to Influence Jury.</p> <p>A bare attempt, without success, to induce a third person to do what he could to influence jurors in a pending case in a federal court, did not obstruct the administration of justice, so as to constitute a contempt, punishable under Rev. St. § 725 [U. S. Comp. St 1901, p. 583], under the rule that, to constitute such contempt, the act done by the accused must naturally and directly tend to such obstruction.</p> <p>[Ed. Note. — For cases in point, see Vol. 10, Cent. Dig. Contempt, §§ 36-40.]</p>

<p>1. Courts — Jurisdiction of Federal Court — Burden of Proof on Issue.</p> <p>Where a bill in a federal court properly alleges the requisite juristional facts, the burden is on the defendant both to allege and prove to a legal certainty the facts relied on to defeat the jurisdiction, and, where he alleges a change of complainant’s domicile, he must show both residence in the new locality and the intention to remain there.</p> <p>2. Same — Citizenship of Complainant — Evidence.</p> <p>Where a complainant alleged in his bill In a federal court that he was a citizen of North Carolina, and it is shown without contradiction that lie is a native of that state, that his home where his wife and family reside is and has always been there, that he visits them frequently and has always voted there in national elections, the presumption of his citizenship in that state arising from such allegation and facts is not overcome by evidence that for several years he has been for a large pari; of "rhe time in Georgia, where the suit is brought, in connection with his business there in different places, that he took part in a political meeting there as member of a local committee, or that on one occasion he registered and voted there at a party primary; especially in view of the Georgia statute, which apparently requires only residence and the payment of taxes to entitle any citizen oE the United States to vote.</p> <p>Same — Manner of Kaisino Issue.</p> <p>It is the better practice to determine the question of the jurisdiction of a federal court arising upon a denial of plaintiff’s allegation of citizenship on an issue taken by plea, with opportunity to both parties to adduce evidence in the regular way, rather than on motion and ox parte affidavits.</p>

<p>In Equity. Suit for dissolution of partnership. On motion to give bond.</p>

<p>1. Commerce — Interstate—-Taxation by State.</p> <p>A corporation of one state there engaged in the manufacture of portraits and frames therefor has the right to send agents into another state to solicit orders for its work, and other agents to deliver the portraits made upon such orders and collect therefor, and, the entire transaction being one exclusively of interstate commerce, neither the state nor a municipality has power to impose license taxes upon cither class of such agents.</p> <p>[Ed. Note.- — For cases in point, see vol. 10, Cent. Dig. Commerce, §§ 103-111.</p> <p>Taxation of interstate commerce by state, see note to Board of Assessors of Parish of Orleans v. Pullman’s Palace Car Co., 8 C. C. A. 402.1</p> <p>2. Hawkers vnd Peddlers — Licenses—Persons Subject to Tax.</p> <p>An agent of a corporation of another stale engaged in making portraits by photographic enlargement, who delivers such portraits to customers who have previously ordered the same made, and collects therefor, is not a “peddler or hawker,” within the meaning of an ordinance imposing a license tax on persons engaged in such occupations, merely because, as incidental to such delivery, he sells the customer a frame for the portrait, if desired.</p> <p>[Ed. Note. — For cases in point, see vol. 2Ó, Cent. Dig. Hawkers and Peddlers, §§ 3-6.1</p>

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

<p>1. Injunction — Measure or Proof Required.</p> <p>Courts may grand temporary restraining orders for the preservation of possible rights upon testimony which is not convincing; but they will not grant a permanent injunction, except upon the clear establishment of those facts which justify it.</p> <p>[Ed. Note. — -For cases in point, see vol. 27, Cent. Dig. Injunction §§278, 322, 387.]</p> <p>2. Same — Comparative Injuries.</p> <p>A permanent injunction will not. be granted, which would necessitate the closing of mines and mills in which 10,000 to 12,000 men are employed and large capital is invested, because a comparatively small amount of damage is done by tailings therefrom discharged into a stream to lands below in times of overflow, where the mines and mills were in operation before the lands were acquired, and the owners have done all that could reasonably be done to prevent injury to others by the construction of dams and reservoirs in which the greater part of the tailings are impounded. In such case the owners of the lands will be remitted to their remedy at law by actions for damages.</p> <p>[Ed. Note. — For cases in point, see vol. 27, Cent. Dig. Injunction, §§ 22, 23.]</p>

<p>In Admiralty. On motion for leave to amend libel.</p>

<p>In Bankruptcy.</p>