Volume 148 — Federal Reporter

The plaintiff in error White River Savings Bank was the plaintiff below in a suit to recover of the city of Superior upon 22 bonds of $500 each, and interest coupons attached. The issues were submitted to the court, on waiver of a jury trial, .and resulted in findings and judgment in favor of the city of Superior. Upon this writ of error the conclusions of law only are challenged.

This writ of error is brought by the city of Superior (defendant below), to reverse a judgment against the city and in favor of Marble Savings Bank (plaintiff below) upon 10 “Sewer Improvement Bonds,” of $500 each, and annexed coupons. The facts are undisputed and error is assigned only upon the conclusion of law that the bonds were valid general obligations of the city.

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

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

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

<p>Patents — Novelty—Sprayer.</p> <p>The Smith patent, No. 651,938, for a sprayer, is void for lack of novelty.</p>

<p>1. Patents — Action eoh Inebingement — Issue as to Invention.</p> <p>In an action at law for infringement of a patent, the question of invention is ordinarily for the jury, subject to the direction of the court concerning the construction to be put on the patent; but, if the patent appears to the court to be plainly invalid for want of invention, a verdict for the defendant should be directed as in other cases where the evidence is not sufficient to justify a verdict for plaintiff.</p> <p>[Kd. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, § 434.]</p> <p>2. Same — Invention—Transom Lietek.</p> <p>The Ormsby reissued patent. No. 11,639 (original No. 466,081), for a transom lifter, is void for lack of invention.</p>

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

<p>Appeals from the Circuit Qourt of.the United States.for the District of Massachusetts.</p> <p>The following are the opinions of LOWELL, Circuit Judge, in the court below:</p> <p>This \yas a bill in equity to restrain the infringement of letters patent No. 474,536, issued May 10, 1892, to Staples. Claims 1 and 3 are in suit, viz.:</p> <p>“(1) The combination, with the seat-frame, of spring-supports formed of wire, with horizontal portions of approximately the measurement of the opening-of .the seat-frame and having bends in the wire to receive the springs, and end portions extending upward and laterally to rest upon the upper surface of the seat-frame and adapted to be bent to fit various sizes of frames, and means for permanently attaching the ends of such spring-supports to the upper surfaces of the seat-frame, substantially as set forth.”</p> <p>“(3) The combination, with the seat-frame, of spring-supports formed of wire, with horizontal- portions of approximately the measurement of the opening of the seat-frame and having bends in the wire to receive the springs, and end portions extending upward and laterally to rest upon the upper surface of the seat-frame ánd adapted to be bent to fit various sizes of frames, and! downwardly-projecting ends to enter holes in, the seat-frame, substantially as set forth.” • .</p> <p>The' complainant introduced evidence to show that before his invention the springs of carriage cushions, chair seats, lounges, and other upholstered furniture were supported upon webbing, an inconvenient, .dirty, and weak arrangement; that webbing was the only support in practical use; that his. patented wire supports came into use slowly, but are now generally employed throughout this country, as well as in Germany. The defendant Contended that the patented arrangement was anticipated by metal straps or strips employed as spring supports. Several patents were introduced in evidence showing this arrangement, and it was old in the art; but it was not in commercial use and, as compared with the patent, its disadvantages are obvious. The defendant’s argument referred also to wire fastenings which hold bed-springs in place. Ordinarily these fastenings merely connect the springs, and do not form a complete base upon which the springs rest. The whole structure, including the springs, in- most instances rests upon slats, though in some cases the connecting wires are moré extended, and support, or could support, a part of the weight.</p> <p>With some doubt, I am of opinion that invention was needed to develop the patented device from the prior art. For years hod-springs had been connected by wires, yet wires had not been used as spring supports in upholstered furniture. Though the patented device did not come into immediate general nse, yet in a few years its use had become almost universal and, in the language of some of ¡.lie largest manufacturers, had practically caused a revolution ii: the method of adjusting springs. The wires of the patent are easily adjusted and can easily be bent into shajie, so as to fit seat-frames of slightly varying sizes. The patented device is useful also in that the spring supports may be sharpened at the end and driven into the frame of the seat. For transportation, the spring supports may.be packed in very small compass as pieces of wire of moderate length, the parts being assembled at the upholsterer's with little trouble. Upon the whole, 1 think that both the claims in suit are valid, and should have a reasonably broad construction. If this be true, the defendant has infringed. His manufacture is under a. patent; whose validity need not be considered here. It describes a particular method of attaching the springs to the wires, which may be a patentable improvement; but the later patent cannot protect one who makes use of the general method of supporting wire springs, which is claimed in the patent in suit.</p> <p>Decree to be entered for complainant for an injunction and account.</p> <p>The complainant filed a bill in equity to restrain the infringement of letters patent No. 474,536. The first and third claims, which were in suit, are as follows:</p> <p>“(1) The combination, with the seat-frame, of spring-supports formed of wire, with horizontal portions of approximately the measurement of the opening of the seat-frame, and having bends in the wire to receive the springs, and end portions extending upward and laterally to rest upon the upper surface of the seat-frame, and adapted to be bent to fit various sizes of frames, and means for permanently attaching the ends of such spring-supports to the upper surfaces of the seat-frame, substantially as set forth.”</p> <p>“(3) The combination, with the seat-frame, of spring-supports formed of wire, with horizontal portions of approximately the measurement of the opening of the seat-frame and having bends in the wire to receive the springs, and end portions extending upward and laterally to rest upon the upper surface of the seat-frame, and adapted to be bent to fit various sizes of frames, and downwardly-projecting ends to enter holes in the seat-frame, substantially as set forth.”</p> <p>After final hearing, a perpetual injunction was issued, though no final decree has yet been entered. Thereafter the complainant filed in the same proceeding a petition asking that the defendant be restrained from using and selling a device not precisely identical with that complained of in the original bill. The question of infringement raised by this petition has been heard nnon affidavits. The defendant contends that it cannot be disposed of except after a full hearing- of witnesses, with opportunity for cross-examination, and 1hat. if the complainant wishes to proceed more summarily, he should do so by contempt proceedings in this case, or by a new bill. The question of practice need not be decided at the present time, as the court is convinced that the defendant must prevail on the merits. In the claims above quoted, the defendant lias stated, as an element of his invention, that his “spring-supports formed of wire” have “bends in the wire to receive the springs.” The defendant’s wires have no bends, and the springs are attached to his straight wires by separate wire fastenings. That the patentee deemed the “bends in the wire to receive the springs” to be an essential part of his invention appears from the claims above quoted from the specifications (page 1, lines 41-40, page 2, lines 53-56), and from the proceedings in the Patent Office, as disclosed by the file wrapper of the patent in suit. ’The defendant wrote the Commissioner of Patents as follows: “The spring-support is bent so as to bold the spring itself from slipping upon the wire.”- See defendant’s record In original proceedings, page 65. And “the bends in the wires, in the form of eyes or corrugations, hold these springs so that they do not slip upon the spring-supports.” Pdge 66. Under these circumstances, the difference between the patent in suit and the defendant’s device alleged to infringe, has been made material by the patentee, and the court cannot disregard his action. The difference between the defendant’s spring support and the patent is considerable. While the defendant may have reverted to this clumsy and complicated device merely in order to avoid the complainant’s patent, yet he may have .the right to do this very thing. Those who prefer to buy the defendant’s spring supports, with their separate and superfluous wire fastenings, instead of the neater and simpler patented device, cannot be hindered from doing so. That the patentee could have obtained broadly a patent for his spring supports, irrespective of their adaptation to reteive the springs, is not so plain as to warrant an injunction upon this petition.</p>

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

The following is the decree in the Second Circuit: And now, to wit, on this 13th day of July, 1905, this cause haying been brought on for hearing on motion on behalf of complainant for a preliminary injunction to enjoin and restrain the defendants from infringement upon United States letters patent in suit, No. 474,536, dated May 10, 1892, to John A. Staples, as to claims 1 and 3 thereof, and upon complainant’s exclusive rights thereunder, said motion being based upon bill…

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

<p>1. PATENTS-IjKNSTH OF TERM-PRIOR FOREIGN PATENT.</p> <p>Formal identity of claims is not necessary to constitute identity of a United States and a foreign patent, within the purview of Rev. St. §.1887 [U. S. Comp. St. 1901, p. 3382], but substantial identity of the invention as covered by the claims is sufficient.</p> <p>(Ed. Note. — For eases in point, see vol. 38, Cent. Dig. Patents, '§§ 18814-191.]</p> <p>2. Same — Effect of Tbeaty.</p> <p>Article 4 bis, inserted in tbe international convention for the protection of industrial property of March 20, 1888, by the additional act proclaimed by the President, August 25, 1902- (32 Stat. 1930, 1939), did not have the effect of changing the term of a patent granted by the United States to a citizen thereof, as that term is fixed by statute; and such a patent, granted prior to January 1, 1898, and which is limited by the provisions of Rev. St. §4887 [U. S. Comp. St. 1901, p. 3382], to the term of a prior-foreign patent for the same invention, is not extended by such additional act.</p> <p>3. Same — Expiration—Sole Sewing Machines.</p> <p>The French and Meyer patent, No. 412,704, for a sole sewing machine, expired September 17, 1902, with the expiration of the term of the prior British patent, No. 13,366, of 1888, granted to the same patentees for substantially the same invention.</p>

<p>In Bankruptcy.</p>

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

<p>1. RAILROADS — FORECLOSURE SALE — CLAIMS ENTITLED TO PRIORITY OVER MORTGAGE.</p> <p>A railroad mortgage provided that in case of default the trustee at the request of 50 per cent, of the bondholders should take possession-of the road and all the mortgaged property and operate or sell the same as the bondholders might direct. The company became insolvent and was earning insufficient income to pay expenses when a committee was appointed representing practically all of the bondholders and stockholders. and they deposited tlieir bonds and stock. The committee took full charge and management of the property and operated the same until a-sale was negotiated, having full authority to vote the stock deposited and to pledge the bonds or stock to secure money for operating expenses, and, in fact exercised all of the powers which the trustee was given by the mortgage in case of default, which default occurred shortly after its appointment. A sale was negotiated by Hie committee for the benefit of Hie bondholders and stockholders, who transferred their bonds and stock 1o the-purchasers to be used in payment, receiving bonds and stock of the new company therefor. Such sale was consummated through a friendly foreclosure suit, and the decree confirming the same required the purchasers, they having knowledge of all the facts, to pay any claims which should be adjudged prior in equity to the mortgage. Tield, that the management of the road by such committee was virtually that of the bondholders, and that indebtedness incurred by it for expenses and supplies in operating the road after the bondholders might have taken possession by the trustee was superior in equity to the mortgage debt and entitled to priority of payment from the proceeds of the corpus of the property and therefore to be .paid by the purchasers.</p> <p>2. Same — Operating Expenses — Advertising.</p> <p>Bills for advertising the road, its trains, etc., contracted by the committee while in the management, were for legitimate operating expenses-'anü are entitled to priority as sucb, equally as though they had been contracted by the trustee in possession.</p>

<p>INTERNAL REVENUE — LEGACY TAXES — INTERESTS VESTED IN POSSESSION.</p> <p>Where the children and legatees of a testator were to receive only the Income from tlieir respective shares in the estate until they reached stated ages, which did not occur in any case until after July 1, 1902, when the repeal of section 29 of the war revenue act of June 13, 1898. c. 448, 30 Stat. 464 fU. S. Comp. St. 1901, p. 23071 took effect, under Act June 27, 1902, c. 1160, § 3, 32 Stat. 406 [U. S. Com]). St. Supp. 1905. p. 450] which provides that no tax shall he assessed under said section 29 in respect of any contingent beneficial interest which shall not become absolutely vested in possession or enjoyment prior io July 1, 1902, and that any such tax previously collected shall be refunded, the1 interest of such legatees for the purpose of taxation was the value of the income received by each respectively from the estate prior to said July 1, 1902, which was subject to the tax only in case it amounted to $10,000, and in compul ing such amount allowances made by the probate court for their support pending settlement of the estate cannot be included.</p>

<p>Habeas Corpus.</p>

<p>1. Bankruptcy — Objections to Discharge- Estopped op Bankrupt to Deny STANDING OF CREDITOR.</p> <p>While Banlcr. Act July 1, .1808, c. 541, 80 Stat. 541 [IT. S. Comp. St. 10O1. ]i. 0418] does not give a bankrupt the right to object to the proof of claims, but vests such rigid: in the trustee after his appointment, the bankrupt has an equitable right to insist that objection shall bo made to illegal claims, and his failure to exercise such right by requesting the trustee to make such objection estops him to deny the standing of a creditor, whose claim is allowed without objection, to file objections to his discharge.</p> <p>2. Sa.uk — -Prior Yoi.u-Vtary Composition — Accord and Satisfaction'.</p> <p>A voluntary composition between a debtor and his creditors, after proceedings in involuntary bankruptcy had been instituted, by which the creditors agreed to accept 40 per cent, of their claims in full satisfaction, one-half to be paid in easli and the remainder to he evidenced by the notes of tile bankrupt, does not operate as an accord and satisfaction until full payment has been made, and where the debtor is subsequently adjudged a bankrupt on his own petition, not having paid the notes, the creditors joining in the agreement are entitled to prove their original debts, giving credit Cor the cash payments received.</p> <p>3. Same — Objections to Discharge — Pat.se Statements to Obtain credit.</p> <p>Tudor Bailin’. Act July 1, 1898, c. 541, § 14b (3), 00 Stat. 550 (TI. S. Comp. St. 1001, p. 34271 as amended by Act Fell. 5, 1903, e. 487, 32 Stat. 797 [U. S. Comí). St. Supp. 1905, p. G84J, which provides that a bankrupt shall be denied a discharge if he has obtained property on credit h.v means of a materially false statement in writing made for the purpose, it is the act of making such statement and the fraudulent intent which constitute the ground for refusing (he discharge, and the right; to make the objection is not confined to the person defrauded, but it may bo, made by any “party in interest.”</p>

<p>On Writ of Habeas Corpus Obtained by Charles C. Browne.</p>

<p>1. Removal of Causes — Sebabable CoNthoveesy — Joxist Actiois fob Tout.</p> <p>An action to recover damages for the negligent injury of a person •while a passenger on a street ear is one ex delicto, and not on the contract of carriage, and the plaintiff may join as defendants the street railroad company and an employe, where their joint negligence is alleged to have been the cause of the injury; and in such ease the cause of action is not separable for the purpose of removal.</p> <p>[Ed. Note.- — For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 97.</p> <p>Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Meeke v. Valleytown Mineral Co., 35 O. C. A. 155.]</p> <p>2. Same — Feaudueeist JoiNdmb.</p> <p>Where a joint cause of action against a resident and a nonresident" defendant for a tort is stated in the complaint, the joinder of the defendants is within the plaintiff’s right, and the cause is not removable on the ground that such joinder was for the fraudulent purpose of preventing; a removal, unless such actual purpose is alleged and proved.</p> <p>[Ed. Note. — For eases in point, see vol. 42, Cent. Dig. Removal of Causes, § 79.]</p> <p>3. Pasties — Joindeb.</p> <p>Where plaintiffs have a joint cause of action against a resident and « nonresident defendant, their motive in joining them is not a proper subject of inquiry.</p>

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

Appellant filed his petition alleging that he was the owner and entitled to the possession of a certain steam shovel, which prior to the adjudication had been in the possession of the bankrupt and was since held by the trustee, and praying that the trustee be ordered to surren ■ der possession. The findings of the special master, adverse to petitioner, were approved by the court.

<p>On Motion to Settle Interlocutory Decree.</p>

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

<p>Bankruptcy — Election op Trustee — Right to Vote Claims.</p> <p>The giving out of a list of creditors by a bankrupt to attorneys, before the filing of his schedule, is a practice to be severely condemned, and no-attorney should be permitted to vote any claim in the election of a trustee which has come to him through the instrumentality of the bankrupt; but the fact that he so received claims is not sufficient ground for excluding his vote on claims which came to him unsolicited.</p>

<p>Collision — Schooners Crossing at Sea — Negligent Lookout.</p> <p>A collision at sea in tlie night between the schooners Reiehe and Wallace, which approached each nearly head on but on slightly crossing courses, held, on conflicting evidence, due solely to the fault of the Reiehe, which was sailing free, and therefore hound to keep out of the way, and held the burden of proof, on the ground that she failed to see the lights of the Wallace until just before the collision, when the vessels were not more than a cable’s length apart and then starboarded her helm, although the Wallace was showing her red light, when, the night being clear and the sea smooth, she should have seen the lights some 20 minutes before and observed them from-that time. The Wallace held not in fault for not showing a flare-up, as permitted but not required, by article 12 of the international navigation rules (Act Aug. 19, 1890, c. 802, 26 Stat. 320 et seq. [U. S. Comp. St. 1901, p. 2867]), but showing a lantern instead, having the right to suppose that her lights were seen until almost the last minute, nor because of a change of course immediately before the collision.</p>

<p>1. Couponations — Ghabtjeh Powebs — Cbeatiox or New Cokpobation.</p> <p>Where the G. Company, a corporation, was organized with power to manufacture goods made of gold and silver or other metallic substances, for the transaction of other business connected therewith, and with power to invest in the shares of other corporations, such power to invest did not. prima facie confer on the G. Company, power to change another corporation having a present capital of $100,000, the majority of which was held by tile G. Company, into a holding corporation with a capital of $10,-000,000 for the purpose of acquiring stocks in other companies to the extent of nearly «$7,000,000 which was nearly $5,000,000 in excess of the authorized capital of the G. Company.</p> <p>2. Same — iisr.j uxctiojnt.</p> <p>A minority stockholder was entitled to a preliminary injunction to restrain the carrying out of such scheme pendente lite.</p>

<p>1. United States — Criminal Responsibility op Oeeicebs — Receiving Compensation pob Services .to Person.</p> <p>The provision of Rev. St. § 1782 [U. S. Comp. St. 1901, p. 1212], making it unlawful for any officer in tlie employ of the government to “receive or agree to receive any compensation whatever, directly or indirectly, for any services rendered or to be rendered to any person either by himself or another in relation to any proceeding * * * or other matter or thing in which the United States is a party or directly or indirectly interested before any department, court-martial, bureau, officer or any civil, military or naval commission whatever,” applies to a receiver of a land office in respect to matters before his own office or which may come before it for his action thereon either judicial, executive, or merely clerical, and without regard to the question whether the service rendered or to be rendered is proper or improper, and a receiver commits an offense under said section by receiving compensation for giving advance information to the person paying the same of the restoration of lands to the public domain through the action of the Band Department, which lands thereby become subject to entry by means of scrip or otherwise in his district.</p> <p>2. Same — Matter in Which United States is Interested — Public Lands.</p> <p>The United States has a direct interest, within the meaning of Rev. St. § 1782 [U. S. Comp. St. 1901, p. 1212], in all its public lands and in the right of entry or purchase thereof through proceedings to be had at any of its land offices.</p>

<p>In Bankruptcy. Oir petition for review of referee’s decision.</p>

<p>1. SuippiNG — Action for Ereigiit — Quantity of Dumber Cargo.</p> <p>An estimate of the quantity of lumber in a cargo, based on the carrying capacity of the vessel, should not be accepted in an action for the freight as against what appears to have been a reasonably accurate tally, made when the lumoer was loaded; but such tally may be corrected by evidence that the shipper received a greater quantity from the vessel at the place of delivery.</p> <p>2. Same — Delay in Receiving Cargo — Liability for Expenses of Skipper.</p> <p>Where libelant, after agreeing to furnish a vessel to transport a cargo of lumber in the harbor of New York, but without any definite contract as to time, was delayed in procuring a vessel, but respondent, having failed to secure one elsewhere, accepted libelant’s when tendered, libel-ant cannot be held liable for expenses incurred by respondent in consequence of the delay.</p> <p>3. Sam e — -Dei i obeacie.</p> <p>The claim of a boat owner for demurrage on account oí delay in discharging disallowed, where it appeared that he could have secured quick discharge by moving to a different location in the same yard.</p> <p>[Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Shipping, §§ 576-581.</p> <p>Demurrage, see notes to Harrison v. Smith, 34 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerntan v. Norton, 46 C. C. A. 4.]</p> <p>4. Same,</p> <p>A' boat owner is not entitled to demurrage for the time during which he refused to continue unloading because of the pendency of negotiations for security for the freight, where he might have discharged, and preserved his lien on the cargo by refusing to deliver.</p> <p>I Ed. Note. — For cases in point, see vol. 44, Cent. Dig. Ship]dug, §§ 587, 588.1</p>

<p>1. Customs Duties — CuassificatioN-—Sake—Similitude.</p> <p>“Sake” does not have a substantial resemblance to either wine or boor, so as to be dutiable as such by similitude under the provisions of Tariff Act July 24, 1897, e. 11, § 7, 30 Stat. 205 [IT. S. Comp. St. 1901, p. 10931, but is dutiable as an nnenumerated manufactured article, under section 0, c. 11, 30 Stat. 205 [IT. S. Comp. St. 1901, p. 1093].</p> <p>2. Same — Simujtude—Textube.</p> <p>In the provision in Tariff Act July 24, 1897, c. 11, § 7, 30 Stat. 205 [IX. S. Comp. St. 1901, p. 1693]. that unenumerated articles shall be-dutiable at the rate applicable to enumerated articles which they resemble in “texture,” etc., “texture” does not relate to liquids, but only to the structure of woven fabrics.</p>

<p>1. DISCOVERY-INTERROGATORIES-ANSWER UNDER OATH-WAIVER.</p> <p>Where, in a bill for discovery in aid of an action for damages for conspiracy, complainant attached interrogatories to the bill, but waived answer thereto under oath, defendants were entitled to decline to answer.</p> <p>'[Ed. Note. — For cases in Doint, see vol. 16, Cent. Dig. Discovery, § 16 vol. 19, Cent. Dig. Equity, § 702.1</p> <p>2. Same — Answer.</p> <p>Where defendants undertook to answer a bill for discovery, they were required to state whether they had knowledge or information respecting the matter alleged in the bill, and, if they had no knowledge or information sufficient to form a belief, they were not required to state tlieir belief.</p> <p>[Ed. Note. — For cases in point, see vol. 16, Cent. Dig. Discovery, § 29; vol. 19, Cent. Dig. Equity, § 427.)</p> <p>3. Equity — Sheading—Information and Belief — Denial.</p> <p>An answer that defendants did not know and could not set forth as to their belief or otherwise whether, etc., was insufficient, since, though it denied knowledge, it did not deny information.</p> <p>[Ed. Note. — For cases in point, see vol. 19, Cent. Dig. Equity, § 427.]</p>

<p>Corporations — Insolvency—Liability of Receiver for State Franchise Tax.</p> <p>Tho annual franchise tax imposed on corporations hy the New Jersey statute, which provides that such tax shall be a preferred debt in caso of insolvency, is a valid preferred charge against tho assets of an insolvent corporation being administered hy a receiver of a court of equity within the state, whether state or federal, so long as the corporation remains undissolved.</p>

<p>1. Admiralty— Set-Off — Mattebs Arising out of Other Transactions.</p> <p>Matters arising out of independent transactions not connected with the one on which a suit is brought cannot be pleaded as a set-off in admiralty.</p> <p>[Ed. Note. — For cases in point, see vol. 1, Cent. Dig. Admiralty, §§ 327-333.]</p> <p>2. Same — Jurisdiction.</p> <p>Where a contract sued on is not maritime, a court of admiralty is without jurisdiction of the subject-matter, which cannot be conferred by consent, and the objection may be taken at any time.</p> <p>[Ed. Note. — For cases in point, see yol. 1, Cent. Dig. Admiralty, §§ 1-14, 131-135.</p> <p>jurisdiction as to matters of contract, see notes to the Richard Wins-low, 18 C. C. A. 347; Boutin v. Rudd, 27 C. C. A. 530.]</p> <p>3. Same — ¡suit foe Breach of Cuartee — Proceeding in Rem.</p> <p>Libelant chartered a vessel and made advances for her disbursements to the master, pursuant to the terms of the charter party, which provided that such advances should be deducted in all cases from the freight and should be so receipted for by the master on the bills of lading. They were so receipted for, but in settling the freight at the end of the voyage, through oversight or mistake, a part of such advances were not deducted, and the owner of the vessel refused to repay the same. Held, that a suit to recover the same was one for breach of the charter, of which a court of admiralty had jurisdiction, and that it might be brought in rem against the vessel, which was bound for the performance of the contract.</p>

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

<p>Shipping — I-njuey to Vessel — Negligent Moving op Barge.</p> <p>Evidence considered, and held to establish the claim of a libelant that an injury to his coal barge was due to the fault of respondent in moving her while discharging in Harlem river at a time when the tide was too strong, in consequence of which she broke the lines and drifted against a bridge pier.</p>

<p>Collision — Steamtugs Near Jersey City Docks — Negligent Lookout.</p> <p>A collision between two tugs oft Jersey City, near tbe ends of tbe piers, held due solely to tbe fault of one, wbicb bad just left a slip and taken a circling course, in not maintaining a proper lookout and keeping out of tbe way of tbe other, wbicb was on a course straight up the river to a nearby wharf, and necessarily near the end of the piers, and which was unable to determine the course of the first, but gave her two signals, which were not heard.</p> <p>[Ed. Note. — Eor eases in point, see vol. 10, Cent. Dig. Collision, § 208.]</p>

<p>In Admiralty. On exceptions to clerk’s taxation of costs.</p>

<p>1. Customs Duties — Reciprocity Agreements — Right to Reduced Duty.</p> <p>In order to be entitled to the benefits of the reciprocal commercial agreements negotiated with foreign countries, under Tariff Act July 24, 1897, c. 11, § 3, 30 Stat. 203 [U. S. Comp. St. 1901, p. 1690], importers must furnish satisfactory evidence that their importations were both produced in and exported from the country with which the agreement was made.</p> <p>2. Same — Evidence oe Origin oe Goods — Essentials.</p> <p>AVith respect to merchandise alleged to be within the reciprocal com-inercia! agreement with France (30 Stat. 1774), as having been both produced in and exported from that country, held, that evidence of those facts should be furnished by a witness who knows them, or from his position may be presumed to know them, and that a deposition by an importer to the effect that he had ordered the goods through a New York agency and that they were consigned to him direct by the exporting establishment in France, but which did not show that he had any further personal knowledge, was incompetent.</p>

<p>In Bankruptcy. On motion for a rule for contempt.</p>

<p>1, Estoppel — Equitable Estoppel — Acts and Conduct op Party.</p> <p>Where plaintiff, for whom defendant had contracted to build a pleasure boat, to have a draft when completed not to exceed 23 inches, was present in person during a considerable part of the time while the boat was being built, and had a representative present during all of the time, If .during such time he obtained knowledge that the boat when completed would exceed such draft, and about the amount of the excess, whether it was due to changes made by his request or to fault in the original plans, and thereafter, without announcing to defendant his intention to reject the boat on that ground, continued to make suggestions as to the construction and equipment, and of changes therein, which were carried out by defendant, which made substantial expenditures, in the reasonable belief that plaintiff intended to accept the boat, plaintiff thereby waived the objection of excessive draft, and' was estopped to reject the boat on that ground; but such estoppel would not extend to matters of which he had at the time no knowledge, as to a guaranty of speed, which could only be determined after the boat was completed, unless he knew or should have known that the changes made at his request would affect the speed.</p> <p>2. Same — Enforcement at Law.</p> <p>The principies of equitable estoppel are now applied and enforced as liberally in courts of law as in courts of equity, and where equitable estoppel is available as a defense In equity it Is equally available at law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Estoppel, § 291.]</p> <p>8. Same — Elements.</p> <p>It is not necessary that acts or declarations should be made to mislead in order to work an estoppel, but it is sufficient if they were calculated! to and did in fact mislead.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 19, Estoppel, | 126.]</p> <p>4L Contracts — Action fob Breach — Instructions.</p> <p>Instructions given and refused considered, in an action against the builder of a boat for breach of contract and to recover payments made thereunder.</p>

The writ of error No. 1,257 is prosecuted by Schaeffer Piano Manufacturing Company, as the defendant below, in an action of assumpsit, brought by National Fire Extinguisher Company, as plaintiff, upon express contract, to recover the value of its property destroyed by fire, while engaged in equipping the defendant’s plant with a fire extinguishing apparatus.

<p>1. Ju»gmhxts~Res Judicata — Jtidgmext ok the Mekits.</p> <p>A judgment of dismissal by a state court of Montana, entered on the sustaining of a statutory objection to the admission of any evidence under the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, is equivalent to one upon general demurrer, and is a judgment on the merits which is a conclusive bar to further litigation of" the subject-matter of the action between the parties or their privies in another jurisdiction.</p> <p>2. Sake.</p> <p>In an action on a contract in a state court, the court sustained a statutory objection to the introduction of any evidence under the complaint, on the ground that it did not state facts constituting a cause of action, and entered a judgment of dismissal. On appeal the Supreme Court of the state affirmed such judgment in an opinion which construed the contract and held that the facts alleged in the complaint did not show a performance which entitled the plaintiff to recover. Reid, that the judgment was on the merits, and was a bar to a second action on the contract between the parties or their privies.</p> <p>3. Same — Pkivity op Parties — Administratoes.</p> <p>Where an ancillary administrator brings an action on a chose in action properly deemed assets of the estate in his jurisdiction, and a judgment is rendered against him on the merits, such judgment is conclusive in favor of-the defendants everywhere, and a second suit cannot be maintained against them on the same cause of action by an ancillary administrator of the estate in another jurisdiction.</p>

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

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

<p>1. Master and Servant — Action jtor Injury on Railroad Empi.oyé — Ohio Statute.</p> <p>Under section 2 ol' Ohio act of April 2, 1890 (8T Ohio Laws, p. 149), which provides that in an action against a railroad company to recover for an injury to an employe resulting from any defect In a car or locomotive or machinery, or attachments thereto belonging, proof of the defect shall be prima facie evidence of defendant’s negligence, the prima facie case so made does not shift the burden of proof so as to compel the company to satisfy the jury by a preponderance of evidence that it was not negligent, but all that is required is a degree of proof that will counterbalance the presumí)tion; the burden of establishing negligence still resting upon the plaintiff.</p> <p>2. Same — Detective Oar — Duty ot Inspection.</p> <p>A railroad company is not chargeable with negligence which will render it liable for an injury to an employe caused by the breaking of a defective brake rod, where the defect was latent and in a place where it was not discoverable by such an inspection as is customarily made by well-regulated and prudently conducted railroads, which inspection was made and was the only kind which was practicable, or which could be made without seriously interfering with the operation of trains.</p> <p>LEd. Note. — Dor cases in point, see Cent. Dig. vol. 34, Master and Servant, § 233.J</p>

<p>Courts — Supreme Court and Circuit Court of Appeals — Jurisdiction.</p> <p>Where a demurrer to a bill in a circuit court assigned as grounds want of jurisdiction in the court as a federal court, because neither diversity of citizenship nor any federal question was disclosed, and also want of “jurisdiction” as a court of equity for lack of equity in the bill, a decree sustaining the demurrer and dismissing the bill “for want of jurisdiction” must be construed to refer to the real jurisdictional grounds, and an appeal therefrom lies to the Supreme Court, and not' to the Circuit Court of Appeals, under sections 5 and 6 of Act March 3, 1891, c. 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549].</p> <p>[Ed. Note. — Jurisdiction of Circuit Court of Appeals in general, see notes to Rau Ow Bew v. United States, .1 C. C. A. 6, and United States Freehold Land & Immigration Co. v. Gallegos, 32 C. C. A. 475.]</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>This action, to recover damages on account of the death of Jacob Offner through the negligence of the railroad companies, was begun in the Circuit Court of Cook County, III. On petición of the Chicago & Erie, it was removed into the court below. There the plaintiff was defeated on the merits. In this court assignments of alleged errors of law occurring at the trial were presented, but during the argument the legality of the removal was questioned.</p> <p>The declaration charged that the defendants owned, controlled, and used a certain railroad yard in Chicago; that Offner was employed by the Chicago & Erie as a car inspector; that while he was properly at work, repairing a ear in said yard, the Chicago & Erie, with knowledge of his dangerous position and -without warning him, negligently permitted: a Western Indiana engine to be lain with great violence against the car under which he was at work, and the Western Indiana, with like knowledge of his danger and without warning, negligently ran its engine against the car; that Offner was free from fault; and that the negligent acts of the defendants concurred in causing his death.</p> <p>Plaintiff was a citizen of Illinois, the Western Indiana a corporation of Illinois, and the Chicago & Erie of Indiana. Separable controversy was the ground of removal. The petition, verified by an attorney, averred that the Western Indiana “was not a party to the alleged negligence,” and “was fraudulently joined as a party defendant solely for the purpose of defeating your petitioner’s right to remove this cause.”</p> <p>In the Circuit Court no motion to remand was presented.</p>

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

<p>Principal and Surety — Bond ojt Building Contractor — Condition Precedent to Liability oe Surety.</p> <p>A provision in a bond given by a contractor for the construction of a building that no liability shall attach to the surety, unless it shall receive notice from the owner of any default on the part of the contractor promptly on knowledge thereof by the owner, and, in any event, not later than 30 days after any such default, and giving the surety in such case the right to assume and complete the contract and to receive any sums then, or which shall become, due thereunder, creates a valid and enforceable condition precedent to the liability of the surety, and it is discharged from any liability by the failure of the owner to notify it of the noncom-pletion of the building by the date required by the contract within 30 days after such default.</p> <p>[Ed. Note. — For eases in point, see Gent. Dig. vol. 40, Principal and Surety, §§ 304-311.]</p>

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>In this suit for infringement of claims 2 to 8. inclusive, of patent No. 650,-771, issued on May 29, 1900, to appellants as assignees of George 0. Avery, claims 2 to 6, inclusive, were held to be invalid, and claims 7 and 8 valid, hut not infringed.</p> <p>So far as the claims in suit are concerned, the specification describes the invention as follows: “It consists in a plow having a suitable sháre and mold-hoard. a standard carrying the same, an adjustable shoe or depth-runner, comprising divided runners pivoted at their forward ends to the lower end of the standard, and adjustably connected at the rear ends to the moldboard, and a rudder or knife pivotally mounted between the portions of the depth-runner, and means for adjusting the said knife or rudder to different depths with respect to the runner in order to hold the plow steady in its movements. * * * My invention'is designed 1o provide a middle-burster or double moldboard plow of superior quality, and one which shall be provided with a depth-runner and a guiding-rudder, both of which are adjustable. * * * Important features of my inventions are the adjustable depth-runner or shoe and the adjustable knife or rudder mounted thereon. The depth-runner, 10, is composed of two pieces arranged side by side, and of the same shape and applied together, so as to inclose the knife, 33, between them. The forward end of each portion of the runner, 10. is curved upwardly and reduced in thickness, so as to project upon either side of the standard, 2. These forward ends of the shoe-sections are pivoted to the said standard by means of a bolt or pin, as 12, which is pireferably held in position by means of a cotter-pin, so that if may easily be removed, if desired. The rear ends of the runner-sections are provided with vertical elongated slots, 34, through which a bolt may be passed, securing the said rear ends to rigid brace-rods, as 13, 13. The other ends of the said brace-rods are securely bolted to the moldboard, 5. The slots, 34, in the shoe-sections permit of the shoe being adjusted upon its pivot-pin to different depths. The upper portions of the runner-sections are preferably made thin, while the lower edges are widened out and slightly rounded upon the lower surface, to form a broad bearing surface for engaging the ground. This broad surface is secured by forming lateral extending flanges, 10a, 30a, upon each side of rlie runner — one on each section thereof. Pivotally mounted between the sections of the shoe, 10, is the knife or rudder, 11. which is a broad plate curved at iis forward end, and pivoted at the said forward end between the shoe-sections upon a bolt, 15. The rear end of the rudder is clamped between the shoe-sections, when the same is bolted to the brace-rods, 18. Tims the knife or rudder is pivoted to the shoe, and the shoe is pivoted to the standard, and one clamping-bolt holds both the knife or rudder and the shoe or depth-runner in their adjusted positions.”</p> <p>The claims read:</p> <p>“(2) In a plow, the combination with the standard, share, and moldboard of a depth-ruuner pivoted at its forward end to the standard, a knife or rudder pivoted at its forward end to the depth-runner, and means for independently adjusting the rear ends of the depth-runner and rudder, substantially as described.</p> <p>“(3) In a plow, the combination with a slandard, share, and moldboard of a depth-runner pivoted at its forward end to the standard, a knife or rudder pivoted at its forward end to the depth-runner, and means for adjusting the height of the depth-runner, and clamping the rear end of the rudder thereto, substantially as described.</p> <p>“(4) In a plow, the combination with a standard, share, and moldboard of a depth-runner, comprising two sections pivoted at their forward ends upon opposite sides of the standard, means for adjusting the height of their rear ends, and a knife or rudder pivoted at its forward end between the sections of the depth-runner, substantially as described.</p> <p>“(5) In a plow, the combination with a standard, share, and moldboard of a depth-runner, comprising two sections pivoted, at their forward ends upon opposite sides of the standard, means for adjusting the height of their rear ends, a knife or rudden piVoted at its forward end between the sections of the depth-runner, and means, for adjusting the height of its rear end independently of the adjustment of the depth-runner, substantially as described.</p> <p>“(6) In a plow, the combination with a standard, share, and moldboard of a depth-runner, comprising two sections pivoted at their forward ends on opposite sides of the standard, a knife or rudder pivoted at its forward end between the sections of the depth-runner, and means for adjusting the height of the rear ends of the depth-runner and clamping the knife or rudder between its sections, substantially as described.</p> <p>“(7) In a plow, the combination with a suitable standard, moldboard, and share of a depth-runner, comprising two sections of similar shape, applied side by side, and pivoted at their forward ends to each side of the plow-standard, the said sections having vertical slots at tlieir rear ends, brace-rods rigidly secured to the moldboard, and extending toward the runner, a bolt passing through eyes in the said rods and through the slots in the runner, and a knife or rudder pivoted between the said depth-runner sections, whereby the said runner may be clamped in different adjusted positions between the runner-sections, substantially as described.</p> <p>“(8) Á double moldboard plow, comprising a standard, a double frog, a double -share secured thereto, and a double moldboard secured to the same, a depth-runner arranged beneath the moldboard and formed of two sections, having their forward ends curved forwardly and pivotally attached on each side of the plow-standard, the said runner-sections being provided with vertical, elongated slots at their rear ends, laterally-extending flanges formed upon the iower edges of the said sections to provide a broad bearing surface, a knife-plate or rudder pivoted between the sections of the runner, the said rudder being curved at its forward end and piVoted between the forward ends of the runner-sections, rigid brace-rods extending from the moldboard to each side of tire runner, a clamping-bolt passing through eyes upon the said brace-rods and through the elongated slots in the runner-sections, so as to clamp the runner in different adjusted positions, the knife or rudder being thereby clamped between the said sections in its different adjusted positions, substantially as described.”</p> <p>In the application as originally filed the claims which now appear as 7_ and 8 were numbered 8 and 4, and were allowed,without objection; and claim 2 read as follows: “In a plow, the combination with a suitable standard, share, and moldboard of a depth-runner, comprising two sections pivoted at their forward ends upon each side of the plow-standard, and provided at their rear ends with adjustable slots, brace-rods rigidly secured! to the moldboard, and extending toward the depth-runner from each side, a bolt passing through the adjusting slots for adjustably securing the depth-runner to the said brace-rods, substantially as described.” This claim was rejected on reference to Ward, 604,814. Applicant’s attorneys thereupon canceled the claim, and substituted therefor claims 2 to 6, inclusive, as they now appear in the patent. The examiner rejected these substituted claims on reference to Billups, 123,808, and Sylvester, 410,218. The attorneys asked for a reconsideration, saying: “While the patents to Billups and Sylvester cited in answer to claims 2 to 6 seem at a glance to meet the constructions set forth in said claims, a close comparison of the claims with these patents will disclose the fact that in every claim the combination with a plow of a pivoted depth-runner and rudder pivoted to said runner is the essential feature, and that the depth-runners or shoes in the patents are not pivoted. This difference in construction permits of a double adjustment, which is impossible in the construction shown, in the references,” and the application was then allowed.</p> <p>Tfie state of the art was shown to the court by certain plows which were in public use for more than two years prior to the application, and by the following patents: Burke, 22,013; Billups, 123,858; Brantly, 248,509; Lawrie, 261,001; Laughlin, 297,815; Roberson, 326,591; Moore, 366,597; Landauer, ■388,982; Sylvester, 410,218: Holsclaw, 459,204; Montgomery, 459,410; McMillan, 555,327; Dean, 563,752; Ward, 604,814; Ankarstolpe, 607,207.</p>

The appellant, Hunt, Helm, Ferris & Co.., was the complainant below, and appeals from a decree upon final hearing, dismissing its bill filed for alleged, infringment of a patent.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Patent No. 474,158, for an air-brush, was issued on May 3, 1892, to appellee Burdick, and he gave an exclusive license to appellees Thayer & Chandler, who since 1893 have been making and selling air-brushes. Appellant Wold from 1893 to 1903 had charge of manufacturing air-brushes for Thayer & Chandler. While so employed Wold made some improvements in the Burdick air-brush, for which patent No. 555,669, March 3, 1896, was issued to him, and was by him assigned to Thayer & Chandler. Since leaving Thayer & Chandler’s employment. Wold has set up a business in air-brushes; and the court below found, that he was infringing certain claims of each patent.</p> <p>Burdick patent:</p> <p>“1. The combination, in air-brushes, of an open receptacle for ink or paint conical at one end and perforated for delivery of the said ink or paint, a valve to close the said perforation and adapted to be operated by hand, a cap covering the conical end of the body and forming an air-space between and perforated in line of said delivery, and means for connecting the said airspace with a source of supply for compressed air, substantially as described.</p> <p>“2. The combination, in air-brushes, of a receptacle for ink or paint, perforated for delivery thereof, and open to atmospheric pressure from the rear, a finger-valve for the said perforation, and a suction-nozzle forward of the perforation, substantially as described.</p> <p>“S. The combination, in air-brushes, of a paint-receptacle perforated for delivery, a valve for the perforation, a suction-nozzle forward of the delivery, a connect Iou between the nozzle and compressed-air source, a valve for the said connection, and a finger-lever hung for two movements, substantially as described. whereby the operator's finger may make one movement to control the air-supply and another movement to control the paint-delivery.</p> <p>“9. The combination, in air-brushes, of a receptacle for paint haviug a delivery-aperture, a suction-nozzle in front thereof, an air-tube connecting with the nozzle, valves for the delivery-aperture and air-tube, and an operating-lever fitted to play both longitudinally and transversely to the body and connected with the valves, substantially as described.”</p> <p>Wold patent:</p> <p>“6. In an air-brush, the combination with a needle, of a tube surrounding the same, an annular opening for the paint being formed between the needle and the tube, a second tube surrounding the first, an annular opening for the air being formed between the two tubes, the end of said first-mentioned tube being extended beyond the end of the second-mentioned tube whereby the annular opening for the paint occupies a position in advance of the annular opening for the air; substantially as described.</p> <p>“8. In an air-brush, the combination with a needle, of a tube surrounding the needle, means for adjusting the needle to cause the same to project from the tip a greater or less distance, and a cap extending beyond the extreme adjustable position of the needle to prevent the point of the needle from coming in contact with the surface to be painted; substantially as described.”</p> <p>The contentions are that the Burdick patent is void because the device is inoperative, that both patents are void because they were anticipated and were wanting in invention, and that neither patent was infringed.</p> <p>The record exhibits the following prior patents: 248,579, Curtis; 256,852, Peeler; 285,325, Walkup; 298,138, Walkup; 310.754, Walkup; 311,631, Armstrong ; 324,005, Burrell; 345,659, Beichardt; 402,898, Burdick; 426,040, Moore; 434,105, Burdick; 474,157, Burdick; 488,646, Avery; 528,686, Overman & Woolston.</p>

<p>Patents — Infringement—Receptacle por Incandescent Lamps.</p> <p>Tke Fielding patent, No. 714,290, for improvements in receptacles for incandescent lamps covers a combination of old with two new elements, and, while it must be conceded patentable invention, taking into consideration the immediate acceptance of the device by the public, it must be strictly construed and limited to the precise combination shown in view of the prior art. As so construed and limited, held not infringed.</p>

<p>Patents — Suit fob Ineeingement — Title of Complainant.</p> <p>A contract between a patentee and. complainant’s assignors construed in the light of the correspondence between the parties, and held not to operate as an assignment of the legal title to patents, because of conditions therein which were precedent to the becoming absolute of the assignment, and which were neither performed by the assignee nor waived, so that complainant was without title to support a suit for infringement against subsequent licensees of the patentee.</p>

<p>1. Patents — Anticipation.</p> <p>A patent is not anticipated by prior patents for devices which might by slight modifications have been made to perform the functions of that of the later patent, where it does not appear that the patentees had in mind their use or adaption to accomplish such result.</p> <p>fEd. Note. — For cases in point, see vol. 38, Cent. Dig. Patents, | 81.]</p> <p>2. Same — Infringement—Caed Recoeds.</p> <p>The Gunn patent, No. 583,227, for a system of card records, claims 1, 2 and 3, were not anticipated, and cover a meritorious improvement over prior systems which involved invention. Also held infringed.</p>

In Equity. The plaintiff’s bill claims the exclusive right, by continuous usage from 1890 until the present time, to the use of the trade-name “White House Coffee” and the trade-mark of a picture of the White House at Washington upon the carton of the package in which its coffee is sold. Affidavits were filed with the bill in support of a motion for a preliminary injunction.

<p>Shipping — Liability on Bills op Lading — Goods Not Actually Received.</p> <p>A steamship carrier cannot be held liable for nondelivery of goods not actually received for shipment, although it issued bills of lading therefor upon receipts purporting to have been signed by its shipping clerks at the wharf, but which were in fact forged.</p>

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

<p>1. Principal and Agent — Contract op Employment — Ratification.</p> <p>The Chinese imperial government contracted with defendant for the construction and equipment of a railroad in China, and for the purpose of effecting the scheme a commission was organized, consisting of two Chinese and three Americans, to supervise the construction and Operation of the line. The commission employed plaintiff, one of its number, for a period of five years, to act as secretary to the commission and to the general manager and engineer in chief, at a yearly salary. Plaintiff’s employment was recognized by defendant’s president in a letter, in which, however, he repudiated the commission’s authority to make a five-year contract, but stated that his position would hold as long as that of his chief. Defendant also accepted plaintiff’s services ' for a year and 10 months, paid his salary, and later directed his discharge before the expiration of the contract period, for the purpose of reducing expense?. Held, that defendant ratified plaintiff’s contract, and was bound by its terms.</p> <p>2. Judgment — Estoppel.</p> <p>Where a contract of employment was broken by plaintiff’s discharge during the month of June, 1904, a judgment recovered by plaintiff for his salary for that month did not estop him from' thereafter suing defendant for damages for breach of contract.</p> <p>[Ed. Note. — For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1092-1095, 1100.]</p> <p>3. Master and Servant — Contract op Employment — Breach —' Prospective Damages.</p> <p>In an action by a servant for breach of a contract of employment caused by his discharge before the expiration of the term for which he was employed, he was entitled to recover prospective damages, consisting of the contract price unpaid, in the absence of proof by defendant that plaintiff might have obtained other employment.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 47, 54-56.]</p>

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

<p>In Admiralty. On report of commissioner awarding damages for collision.</p>

<p>In Admiralty. Action to recover hire of dredge.</p>

<p>In Bankruptcy. Proceeding for contempt.</p>

In Bankruptcy. Motion to quash the writ of subpcena issued herein and to dismiss the proceeding, upon the ground that no proper service of the subpcena herein has been made.

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

<p>On Motion to Remand to State Court and Motions by Certain Defendants to Vacate an Attachment and to Dismiss.</p>

<p>Trade-Marks and Trade-Names — Unfaie Trade-Repairs fob Unpatented Machine.</p> <p>Complainant manufactured and sold an unpatented meat chopper called the “Enterprise,” which name was registered as a trade-mark, and also parts for replacing those that became worn which wore marked with complainant’s name. Defendants also made such replacing parts, selling them in packages marked to show for what machine they were made and by whom, but the parts themselves were not identified by any mark. Held, that defendants, while having the right to make and sell the parts, were not entitled to do so without clearly marking the same to prevent their being mistaken by retail purchasers for those made by complainant for its own machines.</p> <p>[Ed. Note. — For eases in point, see vol. 46, Cent. Dig. Trade-Marks and Trade-Names, § 86.</p> <p>Unfair competition, see note to Scheuer v. Muller, 20 C. Cl A. 165; Lare v. Harper & Bros., 30 C. a A. 376.]</p>

At Daw. On demurrer to complaint. The plaintiff alleged in his complaint that on October 1, 1902, he entered Into a contract with defendant by which he agreed and undertook to write for the defendant a legal article of not more than 1,000 printed pages, on the subject “Evidence,” for publication in the Cyclopedia of Law and Procedure, to be completed by January 1, 1904, and for which plaintiff was to receive the sum of $3,000; that plaintiff was at the time a practicing…

<p>Bax kieuptoy- — Suit by Tkustee to Recover Reopeety — Equities.</p> <p>A bankrupt and another, some time prior to the bankruptcy, bought two lots in common and also entered into a verbal partnership to conduct a business as building contractors. The business was continued for a short time only, and was unsuccessful, resulting in debts to an unknown amount, which were not paid. During and after the partnership the parties built two houses of equal value on the common lots, one of which with half the ground was subsequently deeded to the wife of the bankrupt and the other to defendant, who was the wife of the other partner. The houses were not built in partnership, but an unknown portion of the money used therein belonged to tbe partnership and an unknown portion was furnished by each partner. No settlement of the partnership business was ever had, and there were no books or records from which such settlement could be made. Held, that the cross-deeds, whether valid as conveyances or not, operated as a fair partition of the property, and that the bankrupt’s trus ■ tee had no equitable claim against the portion conveyed to defendant which entitled him to have the conveyance to her set aside, whatever might be the rights of partnership creditors.</p>

<p>Judgments — Res Judicata — Mattebs Concluded.</p> <p>Plaintiff’s testator filed a claim with defendant for overcharges on shipments of stone made by defendant’s connecting carrier, and on notice of the claim, defendant intervened in a cause in which receivers were appointed for such connecting carrier, claiming against the receivers the amount of overcharges which plaintiff’s testator claimed of defendant, which amount defendant admitted had been overcharged, and prayed that the purchaser of the connecting carrier’s line from the receivers be ordered to pay plaintiff the amount claimed. The master’s report directing such payment was confirmed, and the amount paid. Held, that the only issue adjudicated in such proceeding was the amount of overcharges which the purchaser of the connecting carrier’s line must pay as purchaser from the receivers which could only include the overcharges which came into the receiver’s hands before sale; and hence the judgment in such proceeding was not res judicata of plaintiff’s claim against defendant.</p>

<p>Equity — Taking Proofs — Right of Witness to Refuse to Answer.</p> <p>In general, a witness whose testimony is being taken orally before an examiner, under equity rule 67, cannot refuse to answer a question on the ground that the evidence called for is immaterial or irrelevant, although there -may be cases where the evidence is so clearly outside the issues that he will be entitled to the protection of the court.</p>

<p>1. BANKRUPTCY— COMPOSITION — 1’OWEB TO SET ASIDE.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 13, 30 Stat. 550 [U. S. Comp. St 1901, p. 3427], a court has no power to set aside a composition after the lapse of six months from the date of its confirmation.</p> <p>2. Same — Failure to Fulfill Agreement.</p> <p>The fact that a bankrupt lias failed to fulfill a composition agreement affords no ground for setting aside the composition, whatever its effect may be on the operation of the composition as a discharge.</p>

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

In Admiralty. In the matter of limitation of liability. On application of respondent to exempt certain property from lien and attachment.

<p>Customs Duties — Needleoases—Coverings.</p> <p>So-called, furnished needlecases, consisting of books or cases for holding needles during transportation aod while the needles in them are being used, are not usual coverings, being used otherwise than in bona fide transportation of the needles, within the meaning of Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U: S. Comp. St. 1901, p. 1924], relating to coverings consisting of “any unusual article or form designed for use otherwise than in the bona fide transportation” of merchandise to the United States.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below see G. A. 5,787 (T. D. 25,577), affirming’ the assessment of duty by the collector of customs at the port of New .York.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collect- or of customs at the port of New York on the authority of a previous decision. G. A. 5,977 (T. D. 26,186).

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below related to merchandise imported at the port of New York by William H. Fleet. It was classified under Tariff Act March 3, 1883, c. 121, § 6, Schedule N, 22 Stat. 512, relating to “furs, articles made of,” and was claimed by the importer tO' be dutiable under the provision in the same schedule, 22 Stat. 513, for “dressed furs on the skin.”

On Application for Review of a Decision of the Board of United States General Appraisers. On the authority of a former decision, G. A. 1,557 (T. D. 13,052), the board overruled the protests of the importers against the assessment of duty by the collector of customs at the port of New York.

<p>1. Process — Validity op Service — 'Territorial Jurisdiction op Court.</p> <p>In the absence of express statutory authority, there is no power in a court to order personal service of process upon a defendant beyond its territorial jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Process, § 70.J</p> <p>2. Courts — Jurisdiction op Federal Courts — Local Suits.</p> <p>Section 8 of the federal judiciary act of 1875 (Act March 3, 1875, c. .137, 18 Stat. 472 fU. S. Comp. St. 1901, p. 513j), prescribing Uio practice for bringing in nonresident defendants in local suits for the enforcement of lions, etc., must be strictly followed, and the provisions that the court may make an order “directing such absent defendant or defendants to appear, plead, answer or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable wherever found,” and that on proof of such service “it shall be lawful for the court to entertain jurisdiction,” are not met by an order merely directing the service of process on a defendant by the marshal of another district, and such service of a subpoena in the usual form does not confer jurisdiction.</p> <p>S. Appeal — Eight op Appeal — Prepayment op Costs.</p> <p>Tlie clerk of a circuit court is not authorized by law to require an appellant to pay the costs which accrued to him and the marshal prior to the appeal as a condition to his transmission of the record to the appellate court, where the appellant has given a supersedeas bond in conformity to rule 13 of the Circuit Court of Appeals.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1998.]</p>

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

<p>1. Mortgages — Effect op Foreclosure, Sale on Lien — Illinois Statutes.</p> <p>Under the statutes of Illinois relating to foreclosure sales and redemption therefrom, as construed by the state Supreme Court, which establish a rule of property in the state binding on the federal courts, a sale under a decree foreclosing a mortgage exhausts and extinguishes the lien of the mortgage, and the same is not revived by a redemption from the sale.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, § 1682. J</p> <p>2. Same — Redemption from Sale — Lien oe Deficiency Judgment.</p> <p>Real estate in Illinois was sold under foreclosure decree in a federal court, and was purchased by the mortgagee for less than the mortgage debt, and a deficiency judgment entered by the court against the mortgagors, as provided by the state statute. Hurd’s Rev. St. Ill. 1905, c. 77, § 1, provides that, unless execution is issued on a judgment within one year from its rendition, it shall cease to be a lien on real estate. Within the year allowed for redemption from the foreclosure sale the mortgagors sold and conveyed the property by warranty deed to a third party, who took possession, recorded the deed, and made the statutory redemption from the foreclosure sale by paying into court the amount of the bid. with interest. Subsequently, and more than a year after the entry of the deficiency judgment, an execution was issued thereon and levied on the property. Held, that the same in the hands of the grantee was not subject to such execution, having been freed from the lien of the mortgage by the foreclosure sale, under the law of the state, and from the lien of the judgment, if any ever existed, by the failure to issue execution thereon within a year.</p>

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

<p>1. Insurance.-A crroN on Fidelity Bond — Evidence.</p> <p>In an action on a fidelity bond insuring a corporation against loss through the fraud or dishonesty of an officer to recover a loss resulting from his acts, the testimony characterizing such acts necessarily takes a wide range, and evidence of his general course of conduct in plaintiff’s affairs, though not directly relating to the transactions in issue, is properly admissible to show the spirit and intent which moved him.</p> <p>2. Same — Fidelity Bonds — Construction.</p> <p>Liability on a fidelity bond insuring an employer against loss through the “fraud or dishonesty” of an employé is not limited to such losses as result from his criminal acts, such as embezzlement or larceny, but such words have a broader meaning, and include any acts which show a want ot integrity or a breach of trust.</p> <p>3. Same — Action on Bond — Pleading.</p> <p>The petition in an action on a fidelity bond insuring a corporation against loss through the fraud or dishonesty of its treasurer states a cause of action where it alleges that such treasurer falsely credited himself on the company’s hooks with a disbursement which he did not make, making him short in his accounts, and that, having authority to execute notes and accept drafts for the company representing its valid indebtedness and not otherwise, he accepted drafts for large amounts which It did not owe, and used its funds in paying the same, resulting in loss to it through the insolvency of the drawer, all of which acts he concealed from its directors.</p> <p>4. Same — Application as Evidence — Iowa Statute.</p> <p>A writing executed by a corporation for the purpose of procuring a fidelity bond insuring it against loss through the fraud or dishonesty of an officer, which contains questions and answers and representations which are made warranties, and a breach of which by the terms of the bond thereafter issued will render the same void, is an application for insurance within the meaning of Iowa Codo 1897, § 1741, which requires insurance companies to attach a copy of the application to each policy of insurance, and provides that the omission to do so shall preclude the company from pleading or proving any part of such application or the falsity of any representations made therein in an action on the policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 216.]</p> <p>5. Same — Scope or Statute.</p> <p>Iowa Code 1897, § 1741, requiring insurance companies to attach a copy of the application to each policy of insurance issued by them, applies to all forms of insurance, including fidelity bonds.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 28, Insurance, § 216.]</p>

<p>1. Principal and Agent — Notice to Agent — Imputation to Principal.</p> <p>While it is the general rule that notice to an agent of any matter connected with the agency is notice to the principal, such rule has no application to a case where the agent at the time he receives such notice is acting for himself, in his own interest, adversely to the interest of his principal, and the communication of the notice to the principal would be contrary to his interest.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 689.</p> <p>Ed. Note. — Knowledge of agent as notice to principal. Effect of adverse interest, fraud, or collusion of agent, see note to Chándler v. Rutherford, 43 C. C. A. 222.]</p> <p>2. Insurance — Binding Receipt Issued by Agent oe Life Company.</p> <p>A general agent of defendant life insurance company was entitled by his contract of agency to a commission of 50 -per cent, of the first premium on policies secured by him, but such commission was to accrue only, when the premium was paid in cash to the company, and he was required to hold all sums collected by him in trust. He took an application for a policy, which was forwarded to the company, and pending its acceptance he issued to the applicant what was called a “binding receipt” for the amount of the first premium, which provided that the insurance should be in force from its date provided the application was accepted; otherwise the amount should be returned. He was authorized to issue such receipt where the premium was in fact paid, but in this case he received a note for one-half the premium, which he discounted, and agreed for purposes of his own to give the applicant credit for one-half on account of his commission. The applicant died, no policy having been delivered, and the beneficiary brought action on the receipt, alleging that the application had been accepted prior to the death. Held that, since the premium was not in fact received by the agent and held in trust, as required by his contract, the transaction by which the receipt was issued was not binding upon the company unless it had knowledge or notice of the facts, and that such notice could not be imputed to it because of the knowledge of the agent.</p>

<p>Towage — Loss or Tow — Liability of Tug fob Geouxdixg of Tow.</p> <p>Conflicting evidence, taken chiefly in the presence of the trial judge, held to support liis findings that the sinking of a bark in tow in the Satilla river, Ga„ while being towed down to sea laden with lumber, was duo solely to the fault of the tug in allowing the bark to ground upon a mound of stones to one side of the channel, which had been there for many years, and was generally known to navigators of the river, but was unknown to the master of the tug, and afterward in pulling lier off, instead of waiting for her to be floated by the rising tide; the result being such injury to her bottom that she sank at once.</p>

■plaintiff’s intestate was injured by the' fall of an elevator in the factory of the Owasso Manufacturing Company, and as a result he shortly afterwards died. The charge in the petition is that the company negligently permitted the safety brakes of the elevator to become so defective that they failed to respond, and that it did not exorcise reasonable care in inspeeding and maintaining in proper condition the elevator and its various appliances.

On May 26, 1904, the “wire chief” of plaintiff in error received word at his •office in East St. Louis that certain of the telephones served by the company’s drop lines leading to the Metropolitan Building, situate at the northwest corner of Fifth street and Missouri avenue, in that city, were out of order.

<p>Vendor and Purchaser — Breach of Contract by Vendor — Lien of Purchaser for Interest.</p> <p>Where a vendor has failed to make title as required by his contract for a sale of land, the purchaser is in equity entitled to recover interest on any advances made on the purchase money, whether with a stakeholder or paid to the vendor, and is also entitled to a lien on the land for the amount of such deposits and the interest; and these rules apply in bankruptcy proceedings.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 985.]</p>

<p>BANKRUPTCY — VOIDABLE PREFERENCE.</p> <p>A chattel mortgage given by a debtor, covering all of liis personal property, nine days before his bankruptcy, and when hopelessly insolvent, to secure a comparatively small debt, held voidable, as a preference under Bankr. Act July 1, 3898, 30 Stat. 562, c. 543, § 60b [U. S. Comp. St. 3903, p. 3445], as amended by Act Feb. 5, 1903, 32 Stat. 799, e. 487. % 13 [U. S. Comp. St. Supp. 1905, p. 689], on evidence that the creditor had practically ceased selling the bankrupt goods some time before and had been repeatedly pressing for payment of his account through his agents and the attorney who took the mortgage, and that chocks previously given him by the bankrupt had been dishonored; such facts, which were known to the attorney, and his avoidance of obvious and reliable sources of information of the bankrupt's condition, being sufficient to charge him with notice of the insolvency and to give him reasonable cause to believe that a preference was intended.</p>

<p>Tost Office— Stealing Letter fbo.u Post Office — Indictment.</p> <p>The provision of liev. St. § 516!) [U. g. Comp. St. 3901, p. 3692], which makes it a criminal offense to steal from a post office any letter, is de-signee! to preserve the sanctity of the mails, and not merely to punish the theft of another’s property, and an indictment thereunder is not governed by the rules applicable to one for larceny, but is sufficient if it charges that the defendant unlawfully stole from a designated post office a letter, described sufficiently for its identification.-and it is unnecessary to aver tiiat it contained anything of value, or whose property it was, or that it was in file post office for transmission through the mails.</p> <p>¡Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Post Office, §§ 75-77.]</p>

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

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

<p>1. Patents — Infringement—Combinations.</p> <p>A combination patent is not infringed by a device which is not only structurally different, but does not perform by reason of its combination various functions which are inherent necessities of the patented combination and have been specifically pointed out in the specification.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Patents, §§ 382-389.]</p> <p>2. Sake — Magazine Gun.</p> <p>The Russell patent No. 501,367, for a magazine gun, claims 4, 8, and 29, construed, and, as limited by the prior art, their language, and the proceedings in the patent office, held not infringed.</p>

<p>In .Equity. On accounting before a master.</p>

<p>In Equitr. On accounting before a master.</p>

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

<p>Attorney and Client — Motton foe Dischiaege of Solicltok — Breach of Contract.</p> <p>The question, whether a solicitor in a pending suit has been guilty of a breach of his contract of employment will not be determined on a motion for his summary discharge, where the facts are in dispute, but will be left for decision in a plenary action for the breach, and a substitution will be permitted only on the giving of security to protect his rights, should he prevail in such action.</p> <p>[Ed. Note. — Eor cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 113-315.]</p>

On Application for Review of a Decision of the Board of United ¡States General Appraisers. The decision below reversed the assessment of duty by the collector of customs at the port of New York, the action of the Board of General Appraisers therein being taken on the authority of a former ruling, G. A. 6,076, T. D. 26,508, which reads as follows: Sharretts, General Appraiser.

In Equity. On exceptions to report of master. May 8, 1905, the following bill in equity was filed by complainant, as administratrix of Charles Weiss, deceased: To the Judges of the Circuit Court of the United States for the District of Massachusetts: Anna L. I-I. Weiss, of Needham, in the county of Norfolk and commonwealth of Massachusetts, as. she is the administratrix of the estate of Charles Weiss, late of said Needham, deceased, intestate, the plaintiff being a citizen…

Indictment for Conspiracy to Defraud. On February 26, 1904, the grand jury found and returned into court an indictment against James L. Bradford, William H. Wright, George Baldey, and Francis Lowry, Jr. The indictment contained three counts.

<p>COMMEKCE — POWEES OUT CoNGKBSS — STATUTE ITERATING TO INTERSTATE CABBIEKS as Employees.</p> <p>Section 10 of Act Juno 1, 1898, 30 St. 428 ¡TT. S. Comp. St. 1901, p. 321OJ, entitled “An act concerning carriers engaged in interstate commerce and their employes,” which section makes it a criminal offense for any employer subject to the provisions of the act or any officer, agent, or receiver of such employer to require any employs to agree as a condition of his employment not to become or remain a member of any labor organization, or to threaten his removal, or otherwise discriminate against him because of such membership, or to attempt or conspire to prevent any employe who has been discharged or has quit from obtaining employment, is not in the constitutional sense a • regulation of commerce or of commercial intercourse among the states, inasmuch as its essential object manifestly is only to regulate certain phases of the right of an employer to choose his own servants, whether tlie duties of those servants when employed shall relate to interstate commerce or not; and its provisions being thus broad and general, without limitation to transactions relating to interstate commerce, but applicable equally to matters beyond the control of Congress, it is unconstitutional and void.</p>

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

<p>1. Eminent Domain — Delegation of Power — Property Previously Devoted to Public Use.</p> <p>General power conferred by tlie Legislature upon a local board to establish highways does not empower such board to condemn for highway purposes land which has previously been appropriated under the power of eminent domain, and is being used for a different public purpose, such as the station grounds- of a railroad company, which use would be interfered with or destroyed by such second appropriation.</p> <p>• [Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 107, 108.]</p> <p>2. Same — Action by Board in Excess op Powers — Review by Courts.</p> <p>When a local board or body attempts to exercise a power of eminent domain not conferred on it by the Legislature, its action is subject to review and control by the courts, state or federal.</p>

<p>1. Courts — Federal and State Courts — Right to Protect — Prior Jurisdiction.</p> <p>A party wbo bas appeared in a federal court, and contested an action therein through both trial and appellate courts,' the result being a final judgment against^him, will not be permitted to render such judgment ineffectual by instituting and maintaining a new suit in a state court, the purpose of which is to relitigate the questions determined by such judgment with the same adversary.</p> <p>'¿. Same — Enjoining Suit in State Court.</p> <p>Rev. St. § 720 [U. S. Comp. St. 1901, p. 580], which prohibits a federal court from granting an injunction to stay proceedings in a state court, does not prevent a federal court from enjoining a party to an action before it from prosecuting a suit in a state court when necessary to protect its own prior jurisdiction, or to make effectual its own prior judgment, determining the rights of parties before it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 1418.</p> <p>Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p>

<p>Collision — Steam Vessels Meeting — Mutual Fault.</p> <p>■ The steamship Calderon, passing out to sea. and a transfer tug with a car float on each side, meeting in New York Harbor about half way between the Battery and Governor’s Island in the early morning, both held in fault for a collision between the Calderon and the car floats— the Calderon for initiating an agreement to pass to the left and' after it was assented to attempting to pass to the right, also for excessive speed, which was probably 12 or 14 miles an hour, and for her failure to sooner stop and reverse; the Transfer for assenting to the signal to pass to the left and attempting to carry out the agreement when her heading was such that a passing to the right was apparently proper, and she was showing a red light to the Calderon, and also for not sooner stopping and backing.</p> <p>(Ed. Note.- — For cases in point, see vol. 10, Cent. Dig. Collision, § 40.]</p>

<p>Railkoads — Killing of Licensee on Tkach — Negligence oe Pekson Killed.</p> <p>Plaintiff’s intestate was employed by a contractor with other workmen in widening a deep cut on defendant’s railroad in which there wa's a sharp curve of the track. During the 10 days he had worked, a passenger train had passed each raorning within a very few minutes of the same time. This train was required by law not to sound a whistle before approaching the cut, but to ring the bell. On the morning in question deceased had gone across the track from his work and when the train, which was on time, approached, was standing on the ends of the ties dipping water from the ditch into a pail. When the train came around the curve at a speed of about 10 miles an hour, and when about 150 feet distant he was seen by the engineer who blew an alarm whistle and applied the brakes. Deceased straightened up, looked, and then picked up his pail and started back across the track. He passed from the engineer’s sight in front of tRe engine wlieu it n as 15 or 20 feet distant and making a speed of 4 to 5 miles an honr, but was struck and killed. He might have escaped by stepping across the ditch and standing next to the bank on the side of the track where he stood. The bell was being rung, but, owing to the noise made by stationary engines on the work, could not well be heard. Held, that defendant was not negligent, and also that deceased was clearly guilty of negligence which was the proximate cause of his death, both in going upon the track at the time the train was due, and by his inattention afterward.</p> <p>[Ed. Note. — For cases in point, see vol. 4.1, Cent. Dig. Railroads, §§ 1285-121X5.]</p>

<p>Bankruptcy — Property Vesting in Trustee — Noth Transferred After Filing of Petition.</p> <p>A debtor, 10 days before the filing of a petition in bankruptcy against him, through his attorney offered a note of a third party as collateral security to a bank, which held his own unmatured notes on condition that the bank would agree to extend his notes. ■> The president of the bank answered that he would consider the proposition and would make some investigation as to the value of the collateral, and the attorney left, retaining the note in his possession. A month later, and after the filing of the petition, he was notified of the acceptance of the offer and delivered the note to the bank.- Held, that until the acceptance there was no contract which passed title to the note, and that such title; being in the bankrupt at the time of the filing of the petition, could not thereafter be transferred by him, but on his adjudication vested in his trustee.</p>

■ In Equity. On accounting. The following is the stipulation: Whereas, the parties in the above-entitled action are able and ready to agree upon all the material facts which would be proved before a master if an accounting were taken in the above-entitled case; and whereas, the only disagreement between the parties relates to the materiality of certain items and to the rule for determining the profits, if any, to which the complainant is entitled; and whereas the above…

<p>1. SlOTPlNG — CHARTER PARTY — FREIGHT.</p> <p>In a dispme between a steamer owner and a charterer with respect to a deduction by the charterer of 1 per cent, from prepaid freight, held, that under the terms of the contract the owner was entitled to full freight without deduction.</p> <p>2. Same— Shoring eor Cargo — Part ob' Mxpisnsk oe Stowage.</p> <p>Where a charter party provided that the steamer should pay for the stowage and the charterer should be in no way liable for improper stowage, the vessel was liable for the cost of shoring for the cargo, which was necessary to render her seaworthy for the voyage and to enable her to obtain insurance, notwithstanding a further provision requiring the charterer to furnish the dunnage not on board.</p> <p>3. Same — Loading Cargo — Extra Expense op Night Work.</p> <p>Under a charter party requiring the vessel to furnish the use of its steam winches for loading cargo day or night, but providing that the charterer should pay the extra expense, if any, incurred by reason of night work, the vessel is entitled! to recover for extra wages paid to members of the crew for running the winches at night.</p>

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

<p>At Daw. On demurrer to the first and second counts of the declaration and demurrer to answer to third count.</p>

<p>In Equity. On motion of R. M. Fraser to quash subpoena duces tecum.</p>

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

<p>1. Towagtc — Duxiics of Tug.</p> <p>Tbe duty rests upon a towing tug to exercise at least reasonable skill and care in everything relating to tbe undertaking, having due regard to tlu> extent of tbe voyage and any special hazards incident to the seas to be traversed, ineluding, not only proper and safe navigation of tbe tug-on tbe voyage, but also to see to tbe proper make-up of tbe tow and the furnishing of safe, sound, and suitable appliances and instrumentalities for the service to be performed.</p> <p>¡Ed. Note. — For eases in point, see Cent. Dig. vol. 45, Towage, § 4.]</p> <p>2. Same — Loss oír Tow — Mtttuax Fauxts.</p> <p>A tug, which undertook the towage of two scows from Charleston to Baltimore, carried but one hawser, which parted twice in calm weather, and owing to the consequent delay the tow encountered a storm when at a dangerous part of (he coast, during which the hawser parted a third time, and the scows were lost. Hold, that the tug failed in her duty in using a hawser which was not in a suitable and sound condition, and in not being provided with an extra one for such a voyage; that the owner of the scows was also chargeable wirli fault contributing to the loss, in that they were not sufficiently seaworthy for the voyage, but leaked and were largely filled with water before the last breaking of the line, in consequence of which mutual faults the damages should he divided.</p>

<p>1. Collision — Steamships—Excessive Speed in Foe.</p> <p>A steamship navigating in a fog at such rate of speed; that when another vessel, which was practically motionless, came into view, she was unable tq stop in time to avoid collision, was in fault for excessive speed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 170.</p> <p>Collision rules as to speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p> <p>.2. Same — Vessel Lting in Front op Entrance to Channel.</p> <p>A steamship, after passing out to sea from New York Bay through Ged-ney Channel, stopped to discharge her pilot some 800 to 1,000 feet outside of the entrance to the channel, which is about 1,150 feet wide. She lay to the north of the center of the channel extended, so that both she and the pilot boat which lay near were in the usual pathway of vessels approaching to enter the starboard side of the channel; her position being such that she presented an obstruction some 200 feet in width to an. approaching vessel. There was a dense fog, and another steamship approaching to enter the channel at an excessive speed came into collision with her. Held, that while it would have been a more prudent course for her to keep to the south side of the channel extended, or to go entirely outside it, yet,, being in the open ocean, her failure to do so did not constitute a fault which contributed to the collision, and that she was not liable therefor, no other fault being shown.</p> <p>:3. Same — Suit fob Collision — Log Books, as Evidence.</p> <p>The log books of a vessel are properly admissible in evidence in a collision suit, when called for by the other party on cross-examination of opposing witnesses, and their testimony is more intelligible by a reference to the books.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 264.]</p>

<p>1. Habeas Corpus — Successive Applications foe Writ.</p> <p>The doctrine oí res judicata does not apply in matters of habeas corpus, and, there being no federal statute limiting the common-law right of an applicant to petition successively every judge having authority in the premises, a federal court may entertain a petition, notwithstanding the denial of the same petition by a state court also having jurisdiction, although it is within the discretion of any court to prevent an abuse of the writ.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 23, Habeas Corpus, § 12L]</p> <p>2. Extradition — Powers of State.</p> <p>A state has no sovereign power to surrender fugitives found within its limits to another jurisdiction, and can grant extradition only under the federal Constitution and statutes.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Extradition, § 28.J</p> <p>3. Same — Return of Fuoitive to Porto Rico.</p> <p>Extradition from a state or territory of the United States to Porto Rico is not authorized by the statute relating to extradition to foreign countries (Rev. St. § 5270, as amended in 1900, c. 793, 31 Stat. 656 [U. S. Comp. St. 1901, p. 3591]), nor is Portq Rico a “territory” of the United States, within the meaning of Rev. St. § 5278 [U. S. Comp. St. 1901, p. 3597]; but said; section is extended to Porto Rico by section 14 of the organic act of April 12, .1900 (31 Stat. c. 191, p. 80), which provides that “the statuior.v laws of the United States not locally inapplicable shall have, the same force and effect in Porto Rico as in the United States”; and by virtue of such provision, and of that of section, J7, giving the Governor of Porto Rico all the powers of Governors of the territories of the United States that are not locally inapplicable, such Governor has the power to issue a requisition for the return of a fugitive criminal by a state as fully as the Governor of a territory would have.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Extradition, § 29.1</p>

<p>COLUSION — SCHOONER AND TüS AND TOW MEETING — CHANGE OE COURSE BY >Sobooner.</p> <p>Tlie testimony of disinterested witnesses held to sustain the contention of a tug that a collision between her tow ancl a meeting schooner in Long Island Sound was brought about solely by a change of course on the part of the schooner, a/Ler she had passed the tug at a safe distance, and not to the failure of the tug to allow sufficient margin for passing.</p>

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

On Application for Review; of a Decision of the Board of United States General Appraisers. This case relates to merchandise imported at the port of New York, which the collector of customs assessed with duty under the provision in jiaragrapli 434, Schedule N, § 1, Tariff Act July 24, 1897, c. 11, 30 Stat. 192 [U. S. Comp.

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

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

The bill in'this case- was brought by and in behalf of the heirs at law of Elias B. Barstow, who died intestate in Chatham county, Ga., in September, 1898.

<p>Judgments — Action on Judgment op Another State — Judgments Which Will Support Action.</p> <p>Under article 4, § 1, of the federal Constitution, requiring that full faith and credit shall be given to the judicial proceedings of another state, in order that a judgment or decree shall be conclusive in an action brought thereon in another state, it must not only be conclusive in the jurisdiction where rendered, but also final in character, and establish a fixed and certain liability; and a decree for alimony and costs will support an action in another state in so far as it is for a sum due at the time of its rendition, and which is absolutely awarded, but not with respect to future payments, for which it provides, but as to which it remains subject to modification at any time, in the discretion of the court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1496, 1497.]</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p>

<p>1, Waters and Wateb Courses — Rights or Appbopbiator — Protection bv Injunction,</p> <p>A complainant corporation, which has made an appropriation of water from a stream in accordance with the laws of a state to be used in the generation of power for manufacturing and electrical purposes, and which has constructed a dam at large expense sufficient in height to enable it to use beneficially the quantity of water appropriated, is entitled to protection by injunction against a later appropriator, who for the purpose of obtaining the benefit of the dam is undertaking to take out ditches or canals a short distance above it, to be carried below around the ends of the dam, also for the purpose of generating power, where the effect would be, not only by lowering tbe water to lessen tbe power and efficiency oí complainant's plant, but also to endanger its dam by tbe proximity of tbe proposed ditches.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 331, 332.]</p> <p>2. Injunction — Protection oj? Water Rights — Proof op Threatened Injury.</p> <p>Where defendants had filed an application for a permit to divert water from a stream which had been granted by the state authorities on their furnishing a plan of their proposed works, which plan if carried out would work irreparable injury to the plant of complainant, which was a prior appropriator, and defendants insisted upon their right and affirmed their intention to proceed in accordance with such iilans, such facts sufficiently show a purpose and intention to interfere with complainant’s water rights to warrant the granting of an injunction to restrain the threatened injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 9-13.]</p> <p>3. Same — tAdequate Remedy at Law.</p> <p>The fact that defendants, who claim the right to take water from a stream in accordance with plans approved by the state authorities, in carrying out such plans would be compelled to condemn right of way over the lands of complainant, who is a prior appropriator, will not debar complainant from the right to an injunction to restrain the building of such proposed works, where their construction would work irreparable injury to the plant of complainant and destroy the value of its prior water right, since its equitable rights could not be adequately protected in the condemnation proceeding.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, jj§ 15-17.]</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p>

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

These cases were argued and submitted together. The suits were brought to procure the cancellation of certain patents alleged to have been erroneously issued by the government to the Oregon & California Railroad Company under the act of Congress of July 25, 1866 (chapter 241, 14 Stat. 239).

On December 23, 18i>3, the Union Trust Company of New York, as trustee under the general mortgage before then made by the Atchison, Topeka & Santa Fe. Railroad Company filed its bill in the Circuit Court of the United States for the District of Kansas against the railroad company to foreclose the mortgage. On that day an order was made in the cause appointing receivers to take possession of, hold, and manage the railroad pending the litigation.

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

<p>Evidence — Fakol Evidence Affecting Wbimss.</p> <p>In an action at law on a written contract, an affidavit of defense setting out a contemporaneous verbal agreement adding a term to tlic contract by creating an additional obligation on the part of plaintiff, and alleging 'a breach of such agreement, does not state a defense, under the settled rule that, when a contract hag been reduced to writing, such writing cannot be contradicted, altered, added to, or varied by oral evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2030-2047.]</p>

The United States Playing Card Compan)r brought a bill in equity, based upon the alleged infringement of letters patent No. 525,941, dated September 11, 1894, and issued to Gustav A. Bisler for an improved tray for playing duplicate whist. Two trays, respective^ known as “Paine’s Whist Tray” and “Kalamazoo Ideal Whist Tray,” were sold by the defendants, and each was claimed to be an infringement.

<p>1. Patents — ANTICIPATION by Foreign Patent — Burden of Proof.</p> <p>A patent will not be invalidated for anticipation by a foreign patent of prior date, if the invention is shown to have been made by the American patentee before such date; but, where anticipation is otherwise clear, the burden rests upon him to establish such priority beyond a reasonable doubt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 61.]</p> <p>2. Same — Mach ink for Dimhnsioxing Chain-Tanks.</p> <p>The Carroll patent, No. 020,826, for a swaging device l'or regulating ill ' dimensions of chain-links, is void for anticipation by the Swiss patent to Goerke, No. 9,592, which covers a device substantially the same in all its parts and intended to accomplish the same result, but also, in addition, for use in welding the links.</p>

The bill in this ease alleges that, prior to August 20, 1889, one George Pardy was the inventor of certain new and useful improvements in riveting machines, and that after making the invention died testate at the city and county of Ban Francisco, Cal., of which place he was a resident; that, after the death of said Pardy, such proceedings were had in the superior court of that city and county; that a decree was duly entered admitting to probate the last will of the said…

<p>1. PRINCIPAL AND AGENT — POWERS 01' ATTORNEY — ÜNAUTUOP.IZED DEED BY Attorney — Rights of Grantee. • '</p> <p>A deed to property made by one bolding a power of attorney from the legal owner in plain violation of the spirit and intent of the power, which was well known to both the grantor and grantee is ineffective to convey any interest.</p> <p>[Ed. Note. — For cases in point, see yol. 40, Cent. Dig. Principal and Agent, §§ 536-563.] '</p> <p>2. Trusts — Enforcement in Equity — Property Collected for Church Purposes.</p> <p>Money or property contributed by his followers to the founder of a church, who is professedly engaged in extending- and building up such church, cannot be claimed by him as his individual property, but is impressed with a trust which binds him as trustee to use it for such purpose, and such trust may be enforced in equity.</p> <p>[Ed. Xote. — For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 43-46, 53.]</p> <p>3. Same.</p> <p>Defendant Dowie founded a church known as the “Christian Catholic Apostolic Church.” Using funds contributed by his followers and sympathizers, he purchased land in his own name, and laid out a city, which was settled chiefly by members of his church who built upon lots leased by him for the purpose. He built a tabernacle and established a baulc and various industrial enterprises conducted by unincorporated companies, stock in which was purchased by his followers at his instance. With the consent of the members, he constituted himself the general overseer of the church, and assumed entire charge of all of its affairs. On many occasions he declared both to liis congregation and publicly that all such enterprises were for the ultimate benefit of the church, and that the property was to be so held by himself and his successors. Large indebtedness having been contracted and dissensions having arisen in the church, suits were instituted for the appointment of a receiver, and to determine the right to the office of overseer, and also proceedings in bankruptcy by creditors against Dowie, which were by consent consolidated and heard together. Held, that -Dowie was not the owner of the property individually, but held the same as trustee and so conducted the business, and was not therefore subject to bankruptcy proceedings on account of the indebtedness; that a receiver, not connected with the church, would be appointed to take charge of all of the property and business, and to operate the same for the benefit of the creditors and the church; and, there being a controversy as to the office of general ovetseer of the church, that an election by the members would be ordered, to be conducted under supervision of the court, there being no regulation of the church providing for his selection.</p>

<p>1. Copyright — Construction op Statute.</p> <p>Tbe copyright act should be liberally construed, with a view to protect the just rights of authors and to encourage literature and art.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 11, Copyrights, § 1.]</p> <p>2. Same — Requisites—Magazine Aetici.e.</p> <p>The proprietor of ¡1 magazine, who Is also the owner of an article published in it, secures a valid copyright 0f such article by duly copyrighting the number of (he magazine in which it is printed.</p> <p>3. Same — Right of Dhamattzation.</p> <p>Tinder Rev. St. § 4952 [IT. S. Comp. St. 1901, p. 3406], providing that “authors or their assigns shall have exclusive right to dramatize or translate any of their works for which copyright shall have been obtained under the laws of the United States,” it is not necessary that an author should himself have taken out a copyright of his book in order to preserve the right of dramatizing it, but it is sufficient if a copyright has been secured by any one having the right to obtain it, and the author may reserve the right of dramatization while selling the right to publish the book to another, who, as proprietor, may copyright it in his own name.</p> <p>4. Same — Action fob Infringement — Pleading.</p> <p>In an action for infringement of a copyright, it is not sufficient to allege generally in the bill or complaint that all conditions and requisites required by the laws of the United States to obtain a copyright have been complied with, but the specific acts done and necessary to constitute such compliance with the law must be affirmatively alleged, and the complaint must also show that the person in whose name the copyright was obtained was the person who owned the right and was entitled to it.</p> <p>[Ed. Note. — Nor cases in point, see Cent. Dig. vol. 11, Copyrights, § 72.]</p>

<p>On Motion by Defendant for Direction of a Verdict.</p>

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

<p>Bail — Forfeiture op Recognizance — Disposition op Peoceeds.</p> <p>The proceeds of a forfeited bail bond given to the United States to secure the appearance of a person discharged from custody by a District Court on a writ of habeas corpus, pursuant to an order made by such court on the allowance of an appeal, belong to the United States; and, in the absence of any statute authorizing it, the court has no power to apply the same to the payment of the costs awarded to the adverse parties to the proceeding by the appellate court.</p> <p>[Ed. Note.- — For eases in point, see Cent. Dig. vol. 5, Bail, § 424.]</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>This case relates to merchandise imported at the port of New York consisting of so-called bleachers’ blue. It was classified under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 15, 30 Stat. 151 [U. S. Comp. St 1901,. p. 1626] for coal tar colors or dyes, and was claimed by the importers to be dutiable under the further provision in the same paragraph for coal tar products or preparations that are not colors or dyes. Following is an extract from the opinion of the Board of General Appraisers:</p> <p>FISCI-IER, General Appraiser. The testimony offered, by the importers is to the effect that the article is not used as a color or dye, but that it is solely used as a mixture with starch to bleach fabrics subjected to sizing. The importers are unable to state any facts other than these, and file with the Board an affidavit of the manufacturer thereof, sworn to before the United States consul at Manchester, England, wherein he states that the article is not made from coal tar, and is only a bleaching material, and not a dye. The manufacturer does not show the material or substance from which this blue is made, and only states that it is not from coal tar. At the request of the counsel for the importers, the sample in this case was submitted to the government chemist in charge of the laboratory at the port of New York for analysis, and said chemist reports as follows: “Sample is chiefly a coal tar dye, not made from alizarin or anthracin.” The chemist returns to this Board a skein of worsted which he subjected to an immersion in this blue, and said worsted shows a completely dyed article of bluish color.</p> <p>From the evidence and facts before us, we find that the merchandise in question is a coal tar dye, and accordingly overrule the protests, and affirm the decisions of the collector.</p>

<p>In Bankruptcy. On petition for reclamation.</p>

<p>1. BAWKRVPT('Y — CORPORATIONS—ACTS OR BANKRUPTCY.</p> <p>An insolvent corporation occupying leased premises does not commit an act of bankruptcy by permitting its property on such premises, which is subject to a mortgage given to secure its bonds, to be sold under a distress warrant lawfully issued for past due rent, which by the stale statute is made a lien on such property. The only persons concerned in such transad ion are the landlord and the mortgage bondholders, each having a lien, and file sale does not affect general conditions nor operate to give anv creditor a “preference through legal proceedings,” within Hauler. Act July 1, 1808, c. 511, § 3a(3), 30 Stat. 546 [,U. S. Comí). St. 1001, p. 3422].</p> <p>[Ed. Koto. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 82.1</p> <p>2. Same.</p> <p>There is no legal obligation on an insolvent debtor to file a voluntary petition in bankruptcy.</p> <p>3. Same — Thajvsfer of Property.</p> <p>The sale of property by an insolvent corporation, and the use of the proceeds in paying the current salary of its president, is not a transfer with intent to prefer a creditor which constitutes an act of bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 3a(2), 30 Stat. 546 [TJ. S. Comp. St 1901, p. 3422]; such salary being a legitimate current expense so long as the corporation is a going concern.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 75, 78.]</p>

On the 8th day of September, 1904, the barkentine Alfa, a vessel of 3,289 tons net, belonging to D. H. Ward, a citizen of the United States, arrived at the port of Port Townsend, Wash., in ballast from the foreign port of East London, Cape Colony, South Africa. The vessel was built in Glasgow, Scotland, and had no American register.

<p>1. Death — Action fob WRONGFUL Death — Recovery of Exemplary Damages under Missouri Statute.</p> <p>Rev. St. Mo. 1899, § 2860, which provides that in actions for wrongful death “the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just,, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default,” docs not authorize the allowance of exemplary damages in all cases, but only where, under the pleadings and evidence, the deceased would have been entitled to recover such damages, had he lived, in a suit for the injury.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 15, Death, § 98.]</p> <p>2. Same — Pleading.</p> <p>To authorize the recovery of exemplary damages under such statute, the defendant must have acted maliciously or wantonly, or have been guilty of negligence so gross as to evince a conscious disregard of tlie rights of others, and the complaint must allege such facts. A mere allegation that defendant's negligence was gross is not sufficient.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. In, Death, § 69.]</p>

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

<p>1. Fraud — Action for Deceit — Grounds.</p> <p>To sustain an action for deceit, there must have been a fraudulent intention on the part of defendant to deceive the plaintiff, and a false statement, made through carelessness, although without reasonable ground for believing it to be true, is not fraudulent if it was made in the honest belief that it was true.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Fraud, §§ 2, 4, 6.]</p> <p>2. Same — Fact% Considered.</p> <p>The fact that written statements, furnished by officers of an insurance company in negotiations for the sale of its property and business, were incorrect with respect to premiums collected and sums due from its agents, will not support an action for deceit by the purchaser, where it appears that the statements were prepared by employés for the company’s own use prior to the negotiations, and there is no evidence whatever that the officers representing the company in such negotiations knew them to be inaccurate, or of- any intention to deceive the purchaser.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Fraud, §§ 2, 4, 5.]</p>

<p>1. Specific Performance — Contracts Enforceable — Certainty.</p> <p>In a suit for specific performance of a contract, the burden of establishing the precise terms and certainty of the contract rests on the complainant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 383.]</p> <p>2. Same — Evidence Consideeed.</p> <p>Evidence considered in á suit for the specific enforcement of a contract by requiring the defendant to assign a certain patent to complainant, and held not to show with sufficient certainty that the contract covered the invention of such patent to entitle complainant to relief.</p>

<p>1. Appeal — Review—Omission to Make Finding.</p> <p>The omission to make findings will not be considered in an appellate court in tbe absence of a request therefor in the court below.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1315.] '</p> <p>2. Aliens — Deportation oe Chinese — Sufficiency of Evidence.</p> <p>Evidence held to sustain a judgment ordering the deportation of a Chinese person as being unlawfully within the United Stares.</p>

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

<p>Indians — Dands — Reservation — Appropriation op Water prom Public ■ Stream — Construction op Indian Treaty.</p> <p>The Indian treaty of May 1, 1888 (chapter 213, 25 Stat. 124) by which the Ft. Belknap Reservation in Montana was reduced in size, and “the middle of the main channel” of Milk river made its northern boundary, by implication reserved to the Indians the right to a portion of the waters of such river for irrigating purposes, which right is paramount to that of persons subsequently taking desert land claims on the public lands adjacent to the river.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Wisconsin.</p> <p>The complainant below, the Louden Machinery Company, appeals from a decree upon final hearing dismissing its bill, which alleges Infringement by the appellee of three patents owned by the appellant.</p> <p>The several patents and their claims, respectively, involved in the controversy are as follows:</p> <p>First Patent No. 490,738, issued to John H. Burkholder January 31, 1893, which is called in the record the “stop block” patent. It states the object of the invention: “To.provide a suitable stop for hay carriers, which can be easily adjusted to any point along the suspended track upon which said hay carrier travels; which does not interfere in any way with the lateral flanges of the track upon which the truck of such carrier travels, and which does not require any tapping or other mutilation of the said track, substantially as hereinafter fully described, and as illustrated in the drawings.”</p> <p>The main specification is as follows: “My invention consists of a casting having two corresponding vertical lugs, O, O, which are parallel to each other and are separated a distance corresponding to the width of the bead on the upper edge of the vertical part of track, B, so that they may rest upon the basal flanges thereof on either side of its vertical part. These lugs are connected a suitable distance above the track by a suitable web and have projecting laterally outward from their upper ends the wings or arms, D. These wings, D, are elevated such a distance above the tread of the rail that the travelers, of the hay carrier truck can easily pass under them, and the extent of their lateral projection is such that the frame work of the upper part of the hay carrier when passing thereunder will not interfere with the vertical part of said wings which extend downward to a suitable point below the frame of tlie rail where their lower edges are turned inward a suitable distance so as to arrest and stop the further progress of the hay carrier when traveling toward it. These wings constitute one of the most important features of my invention, and they may be of any shape or design desired which will permit their lower ends to get in such position that they will stop the progress of the hay carrier by reason of tlie end of the carrier striking- against said stop, or by reason of a suitable lateral projection, J, of the hay carrier striking against the end adjacent to the free extremities of tlie wings, substantially as shown in Fig. 1. It is obvious, then, that they may be made of a more open construction than that shown in the accompanying drawings and yet serve the purpose of my invention.”</p> <p>Figures 1 and 7 of the patent drawings illustrate the invention.</p> <p> </p> <p> </p> <p>There are six claims in tlie patent, hut claim 1 is relied upon, reading as follows: “(1) Tlie combination with an inverted T-sliaped track, and a hay carrier stopping device secured to and over the vertical portion of said track, and carying on both sides tlie double inclined lug, g, of a hay carrier having a vertically movable catch block, F, the upper ends of which extend above the sides of said carrier and have lateral projections, which engage with said inclines, as set forth.”</p> <p>Second. The second patent, called a “track hanger patent,” is No. 493,216, issued to William Louden March 7, 1893, for “Hay Carrier Track,” which states the invention to be “in hay carrier tracks wherein an inverted metal T-rail is used for the track, and it has for its object the arrangement of the track hangers so that they can be readily attached to any part of the smaller upper flanges of said rail without having to drill holes in the rail or cut away any part of the flanges, so that it can he properly suspended and the lower and larger flange left free for the passage of the carrier over them, all this being accomplished by the use of my improved track hangers without the employment of any extra clamps or other rigging except the means necessary to hold the hanger in position on the rail. I attain this by the mechanism illustrated in the accompanying drawings.”</p> <p>The following drawing shows the device:</p> <p> </p> <p>Claims 1, 6, 7, and 8 are involved, as follows:</p> <p>“(1) In hay. carriers, a track suspending device consisting of two separable parts having means at their lower ends to embrace the edge of a track rail, and at their other ends means to catch over an extraneous supporting device, the said parts being arranged side by side, and means for holding the two parts together, substantially as set forth.”</p> <p>“(6) A track suspending device consisting of two parts having flanges at their lower ends adapted to fit under the flanges of the rail, extensions, O, resting against said web, a suspending loop at the upper ends of the parts and means for holding the two parts together,</p> <p>“(7) In a hay carrier, the combination with an inverted T-rail, of a suspending device consisting of two separable parts having means at their upper ends to embrace the upper edge of the rail leaving the side flanges free for the passage of the carrier, a loop at their other ends, for attachment to an overhead support, and means for locking the two parts of the suspending device together, substantially as set forth,</p> <p>“(8) A track suspending device consisting of two separable parts constructed at one end to embrace .the edge of a track rail and at the other end .to form a loop, the two parts being arranged side by side, and means for holding the two parts together.”</p> <p>Third. Tiie third patent, also called a “track hanger” patent, is No. 520,839, issued to William Louden, October 2, 3891, for a "Hay Carrier Apparatus.”, The claims in suit are 3, 2, 3, and 4 (of the 15 claims in the patent), and they sufficiently describe the device, as follows:</p> <p>“(1) In hay carriers the combination of a metallic track having an upper central web, a two part clamping device to embrace tiie web and a threaded bolt and nut to hold tiie parts together, said clamping parts where the bolt passes through them being set to one side of the center line of the track, substantially as and for tiie jiurpose set forth.</p> <p>“(2) In hay carriers, the combination of a metallic track having an upper central web, a two part clamping device to embrace the web and a threaded bolt and nut to hold the parts together, one of said clamping parts being! dished into the other one where the bolt passes through them, so as to set the head of the bolt further from the center of said track than the nut of said bolt.”</p> <p>“(3) In hay carriers, the combination of a metallic track having an upper vertical web and two horizontal side flanges, a two part hanging device adapted to clamp upon the web and support the track, a carrier adapted to traverse Jtke side flanges and having an opening through its upper edge to escape tiie ¡hanger, and a threaded bolt and nut to hold the parts of the hanger together, said clamping parts, where the bolt passes through them, being set to one side of the center line of the track, substantially as, aiid for tiie purpose set forth.” 1</p> <p>“(4) In hay carriers, the combination of a metallic track having an upper vertical web, and two horizontal side flanges, a two part hanging device adapted to clasp upon the web and support the track, a carrier adapted to traverse the side flanges and having an opening through the upper edge to escape tiie hanger, and a threaded bolt and nut to hold the parts of the hanger together, one of the parts of said hanging device being dished into the other part where the holt passes through them, so as to set the head of said bolt further from the center of said track than the nut of the bolt.”</p>

<p>Patents — Infringement—Electric Current Regulator.</p> <p>Tlie Mailloux patent, No. 430,868, for a regulator for electric currents, was not anticipated and discloses invention in the placing of the regulating coil in the working circuit, but in view of the prior art it is limited to such feature, and is not infringed by the device of the Hubbard patent, No. 651,664, in which such coil is placed in the generating circuit</p>

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

<p>Patents — Agreement to Assign ■ FimiEic Inventions — Enforcement in Equity.</p> <p>By contracts between defendant, an inventor, and two other persons, defendant assigned to eacli of such persons a one-third «interest in inventions for which applications for patents were pending, and agreed to devote his best skill and energy to the making of improvements and further inventions in the same art, and to assign a like interest in all such inventions. Subsequently compiaiuant corporation was organized by the three, to which the patents then issued were assigned, and defendant also assigned inventions covered by certain pending applications “and any and all inventions of like nature or similar thereto which I have already completed or which may hereafter be completed by me.” Thereafter, while a stockholder in and an employé of complainant, he made other similar inventions which he assigned to complainant pursuant to such contracts, and also two similar inventions for which he subsequently obtained patents, which he assigned to his codefendant after leaving complainant’s employ. Held, that complainant was entitled to a decree as against both defendants requiring the assignment to it of such patents; it being shown that the second defendant had knowledge of the terms of the contracts at the time he took the assignments.</p>

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

<p>PATF.XTS — IXFBIXGEMEXI—WOVEN AVlBE FABRIC.</p> <p>Tbe Locklin and Fox patent, No. 055.2i>fi, for an improvement in woven wire fabrics, which consists in flattening the ends of the coils to bring the wires into a common plane, and binding the same “by a metallic strip folded longitudinally so as to inclose the flattened ends of the coiled strands of the fabric and then folded again upon itself,” discloses patentable invention, and is valid in view of its acknowledged utility, but is limited by its language to the use of a strip which is folded “again upon itself,” and is not Infringed by a construction in which the upper side of the binder as first applied is narrower than the lower side and the second fold is made upon the fabric.</p>

<p>In Equity. On demurrer to bill. This was a bill for infringement of a patent, to which a demurrer was filed; the fourth ground being' that there was no allegation that the letters patent in suit were issued in the name of the United States of America, nor under the seal of the Patent Office, nor that they were signed by the Commissioner of Patents, and the eighth, ninth, and eleventh grounds, in substance, that the bill was inequitable and unconscionable, in that it did not specify which of the 18 claims of the patent were relied on.</p>

<p>On Demurrers to Indictments.</p>

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

In Equity. Demurrer to bill seeking discovery and accounting as to certain moneys collected on certain notes given to the International Mercantile Agency, of which the complainant is receiver, and also as to certain promissory notes made payable to said mercantile agency. One of the grounds of demurrer is that the bill is without equity, and another, that the bill does not state a cause of action against the defendant.

The above-entitled causes grow out of one controversy, and are so allied that they may he considered and disposed of in one opinion. Held: disposed of, or sold upon such terms and in accordance* with the direction and authority of two-thirds in amount of the owners of said property, and that the amount of interest that each of the several owners have in said several claims shall be determined by what is shown by the records of Lake county to be the interest of such…

<p>• Appeal' from the 'District Court of the United States for the Eastern District of Pennsylvania, in Admiralty.</p>

<p>2. Indians — Treaty Ceding Lands — Construction and Effect of Amendment BT CONGRESS.</p> <p>Complainant entered into a lease with the Shoshone and Arapahoe tribes of Indians in Wyoming by which he acquired the right to mine coal for 10 years on the leased lands, which included 178,000 acres in the Wind River reservation, and said lease was approved by the Secretary of the Interior in accordance with law. During its term Congress, by Act March 3, 1905, c. 1452, 33 Stat. 1016, ratified an agreement by which the Indians ceded, to be disposed of by the government for their benefit, “all the lands embraced within the said reservation,’’ except certain described lands, which were retained as a diminished reservation, and which included a part of the leased lands. Article 2® of the agreement was amended by such act, by adding a proviso that nothing therein should impair complainant’s rights under his lease, but he should have “for thirty days from the date of the approval of the surveys of said land a preferential right to locate, following the government surveys, not to exceed 640 acres in the form of a square of mineral or coal lands in said reservation,” and to purchase the same “at the rate of ten dollars per acre, and surrender said lease and the same shall be canceled.” Held, first, that the proviso was not in conflict with the original agreement as made with the Indians; second, that the agreement as approved did not except the leased lands from those ceded, the special object of the proviso being to obtain a cancellation of the lease, to release the ceded lands therefrom, and facilitate their sale; third, that it did not require complainant to select his 640 acres within the boundaries of the original lease, but left him free to make such selection from any of the ceded lands.</p> <p>2. Tbeaties — Construction—Legislative Amendment.</p> <p>Whenever a conflict is alleged to exist between a treaty requiring ratification and a legislative act of amendment, the courts, in construing them, while endeavoring to give effect to both, if they cannot be reconciled, will give effect rather to the legislative amendment.</p> <p>8. Statutes — Rules of Construction.</p> <p>In the interpretation of legislative acts, the rule applies that the words and terms employed, both from their obvious import and context, are to be taken in their ordinary sense where certain to a common intent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 266, 267.]</p> <p>4. Same — Debates in Congress.</p> <p>While, in general, the debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body, yet where the only question of fact is whether Congress, when it adopted an act, understood that under a given proviso the right was given to a beneficiary to select 640 acres of mineral or coal land within a certain area, the statement of members in debate may be resorted to for the purpose of ascertaining the general object of the proviso.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 293.</p> <p>History and passage of statutes and contemporary circumstances as aids to construction, see note to Mosle v. Bidwell, 65 C. C. A. 535.]</p> <p>5. Courts — Jurisdiction.of Federal Courts — Suit Against United States.</p> <p>A suit to enjoin an Indian agent from obstructing the complainant in prospecting on lands of a reservation for the purpose of making a selection of mineral lands thereon, as he was authorized to do by an act of Congress,! is one to restrain an individual tort which would result in irreparable injury to complainant, and not one against the United States, and for that reason not within the jurisdiction of the court, although defendant claims to be acting in his official capacity as a representative of the government, where such action is without warrant of law.</p>

<p>1. BOUNDARIES — WATICIiS AND WATER COURSES -TITLE TO SOIL UNDER WATERS —Daw Governing.</p> <p>Tlie question whether the title to the soil under the waters of a lake or stream, whether navigable or not, passes 1o the grantee of the shore land, is determined by the law of the state in which the land lies.</p> <p>riSd. Note. — For cases in point, see Cent. Dig. vol. 8, Boundaries, § 96; rol. 37, Navigable Waters, § 181.)</p> <p>2. Same — Riparian Owners — Law op Arkansas.</p> <p>In Arkansas a riparian owner takes all accretions, whether the water course be navigable or not. His title extends to the thread of an unnavigable stream, and in the case of a navigable stream to high-water mark or the limit of the bed; the title to the bed being in the state for ■the use of the public.</p> <p>Rid. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, !§ 270-272; vol. 48, Waters and Water Courses, §§ 99-101.; vol. 8, Boundaries, §§ 3 OS -317.]</p> <p>3. Navigable Waters — Bed op Navigable Stream.</p> <p>The bed of a navigable stream Is that soil so usually covered by water that it is wrested from vegetation, and does not extend to or include that upon which grasses, shrubs, and trees grow, though covered by llie great annual rises.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, SS 180-227.1</p> <p>4. Same — Navigability.</p> <p>To meet the test of navigability as understood in the American law, a water course must have a useful capacity as a public highway of transportation. A theoretical or potential navigability, or one that is temporary. precarious, and unprofitable, is not sufficient to impress upon it a public servitude.</p> <p>’ I Mil. Note.--For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 5-35.1</p> <p>5. Same.</p> <p>It does not follow that, because a stream or body of water was once navigable, it has continued and remains so ; and whenever, from any natural or other cause its practical utility as a means of transportation has been permanently destroyed, it should cease to be classed among those waters that are charged with a public use.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 5-35.]</p> <p>6. Same — Evidence op Navigability — Government Sumió?.</p> <p>The action of the government surveyor in meandering a body of water or in surveying its bed is to be considered as evidence upon the question of its navigability or unnavigability; hut it is not conclusive.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable W'aters, SI 32-15.1</p> <p>7. Boundaries -Title op Riparian Grantees.</p> <p>If the United Stales has disposed of lands bordering upon a meandered umiavigable water course or .lake by a patent containing no reservations, and (here is nothing else Indicating an intention to withhold title to the lands within the meander lines, it has nothing left to convey, and whether the title to the bed of the waters is in the state or passes to the grantee in the patent is determined by the local law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. S, Boundaries, §§ Do-108, 111-114- vol. 37, Navigable-Waters, §§ 181, 184, 186, 201-215.]</p> <p>8. Appeal — Review—Findings op Fact.</p> <p>The finding of a chancellor upon conflicting evidence will be deemed presumptively correct by an appellate court, and will not be disturbed unless an obvious error has occurred in the application of the law or a serious mistake has been made in the consideration of the evidence.</p> <p>[Ed. Note.- — For cases in point, see Cent Dig. vol. 3, Appeal and Error, § 3974.] .</p> <p>9. Evidenoe — Judicial Notice — Navigabilitx op Waters.</p> <p>The courts take judicial notice of the navigable character of important rivers and inland lakes, but as to those of insignificant capacity and doubtful utility the question is one of fact, to be determined on evidence, and.the burden of proof rests upon the party who asserts the existence of the public servitude..</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 33; vol. 37, Navigable Waters, § 12.] “</p> <p>10. Navigable Waters — Navigability—Finding Considered.</p> <p>A finding affirmed that Big Lake, in northeastern Arkansas, is .not a part of Little river, but that the river flows along its western boundary in a defined channel, and that the lake is not a navigable body of water; also that the river, whatever it may once have been, is not now navigable in a legal sense, and that the lands of riparian owners on the eastern side of the lake extend across it to the thread of the stream.</p>

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

<p>Rankbul’toy- Compensation or Receivers.</p> <p>The compensation to he allowed a receiver appointed under Bankr. Act July 1,1898, c. 541, § 2 (3), 30 Stat. 545 LIT. S. Comp. St 1901, p. 3421], for taking charge of and preserving the estate until the appointment of a trustee, Is left to the discretion of the court as in ordinary cases in courts of equity, and is not limited by subsection 5 as amended by Act Fob. 5, 1903, e. 487, § 1, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 682], which empowers the court to authorize the business of bankrupts to be conducted for limited periods by receivers, the marshals, or trustees, and to “allow such officers additional compensation for such services, but not at a greater rate than in this act allowed trustees for similar services”; such amendment having reference only to services rendered in conducting the business of the bankrupt when so authorized.</p>

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

<p>1. Negligence — Cake Required as against Negligence of Another.</p> <p>No one will be relieved from liability for injury inflicted by him on another by reason of the fact that such other negligently exposed himself to the danger, if, when that situation was, or ought to have been, apparent to him, he omitted such reasonable precautions as would, if taken, have prevented the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, § 115.]</p> <p>2. Collision — Running Down oe Rowboat by Tug.</p> <p>The question -whether a tug was liable for the death of the occupant of a rowboat, which was run down by the tug in the Delaware river opposite Philadelphia in the daytime, held properly submitted to the jury, even conceding the negligence of the deceased in attempting to cross ahead of the tug, on evidence showing that the tug had a loaded car float on each side, projecting ahead of it, which obstructed the view from it, and that no lookout was maintained on either tow, where there was also evidence-tending to show that the boat of the deceased was caught by floating ice.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 309.]</p>

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

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

<p>1. Negligence — Evidence to Establish.</p> <p>An inference of negligence cannot be based on a presumption nor on speculation and conjecture.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig.wol. 37, Negligence, § 217.1</p> <p>2. Master and Servant — Injury to Servant---Pkooe or Negligence.</p> <p>Plaintiff’s intestate was employed as a miner in defendant’s mine, which had a 600-foot shaft having two compartments; one used as a bucket way, and the other for a, ladder. He had just come to the top in the bucket, when, while being lowered again for other miners, the bucket broke from the rope and stuck at one of the intermediate levels. In order to free it so that another bucket could bo sent down, deceased went alone down the ladder. He reached the level where the' bucket was and removed it from the shaft, and his body was afterward found at the foot of the shaft at a lower level. There was no evidence to show how or why ho fell, and the ladder was in good condition. ' Held, that no inference of negligence on the part of defendant could be drawn from tlie fact of the accident, nor could liability be based on any defect in the bucket shaft, which may have caused the failing of the bucket but had no connection with the subsequent accident to deceased, and that the court properly directed a verdict for defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 881J</p>

<p>In Error to the Supreme Court of the Territory of Oklahoma.</p> <p>The plaintiff in error was indicted in the district court of the territory of Oklahoma within and for Caddo county for the crime of manslaughter in the first degree. The case came on for trial, and resulted in his conviction and sentence to a term of eight years in the penitentiary. An appeal was prosecuted by him to the Supreme Court of the territory, where the judgment of the trial court was affirmed, and a writ of error brings the case here for a review of the proceedings resulting in that judgment.</p>

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

<p>1. Evidence -Parol Evidence — Effect of Contemporaneous Agreement.</p> <p>A ooniraet created by the indorsement and delivery of a negotiable promissory uote is a contract in writing, and is not open to contradiction or susceptible of annulment by a separate contemporaneous agreement, although also in writing, unless- at least the terms of the latter plainly disclose that the parties so intended.</p> <p>[Ed. Note. — For eases in point, see Cent Dig. vol. 30, Evidence, §§ 2030-2047.]</p> <p>2. Bills and Notes — Compromise and Settlement — Construction of Agreement — Liauilitv of Indorser of Settlement .Motes.</p> <p>A conditional agreement for the compromise and settlement of an indebtedness, in pursuance of which the debtor contemporaneously delivered to the creditor notes indorsed by a third person, who was also a party to the agreement, and wliic-h provided for the execution of a release in full on the payment of (lie notes at maturity, but that on default, in such payment the whole debt should at. once become due and payable, less any payments made pursuant fo the agreement and any collections made oil the notes, cannot be construed to discharge the Indorser from liability in case of such default by the maker, which would render the contract of indorsement wholly nugatory.</p>

<p>Admiralty — Review on Appeal — Finding op Fact.</p> <p>A finding of fact by a court of admiralty on the conflicting testimony of witnesses examined in open court will not be reversed on appeal unless clearly erroneous.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 1, Admiralty, $ 770.]</p>

<p>1 irr Error to thé Circuit Court of the United States for the District of.Kansas. . ■ _ . .</p>

<p>1. Patents — Reissue—Delay in Application.</p> <p>A patentee who is entitled to a reissue is required! to exercise his right promptly upon the discovery of the error which renders such reissue necessary, and where he continues litigation for years in various courts on his original patent, after it has once been adjudged invalid, he will be deemed to have elected to stand upon such patent as the measure of his rights, and cannot thereafter obtain a valid reissue.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 201-203.]</p> <p>2. Same — Teavelxng Contact fob Electric Railways.</p> <p>The Van Depoele reissue patent, No. 11,872 (original No. 495,443), for a traveling contact for electric railways, is void because of the delay in making application therefor, which was not until seven years after the issuance of the original, and more than three years after it had been declared invalid by a Circuit Court of Appeals, during which time the owner was prosecuting suits for infringement in other circuits.</p>

<p>1. Patents — Invention.</p> <p>It is not invention to merely extend the use of an old combination of elements, where ho new result is produced and no new method of producing •the old result.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 38, Patents, §§ 15, 41.]</p> <p>2. Same.</p> <p>The utility, public acceptance, or magnitude of sales of a patented article can only be considered on the question of invention, when such question is otherwise doubtful.</p> <p>3. Same — Eirepkooe Windows.</p> <p>The Voightmann patent, No. 600,186, for an automatically closing fireproof window, covers a combination of old elements previously used, in some instances in the same combination, for analogous purposes, and is void for lack of patentable invention.</p>

<p>■ Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The appeal-ds from a decree dismissing, for want of equity, appellant’s bill to restrain the infringement of letters patent No. 68S,074, issued to Peter Oehmen,. December 10, 1901, for improvements in meat trees. No question is miadé that appellant’s device is not a copy of the patented device. The claim in suit is this: »</p> <p>In' a-meat-tree, the combination of a suspendable tree body or bar, made; of uniform size throughout its princijial length, and provided at its upper end with means for- detachably engaging a support, and a plurality of cross-trees or meat-supports mounted upon said' tree-body, each comprising a cross-bar having "sliding engagement with the tree-body, and provided at its opposite' ends with supporting-bars arranged parallel with each other, a row or series of projections upon each supporting-bar, and means for securing said cross-trees, in adjusted position upon the meat-tree body, substantially as described. The patents cited! on hearing are as follows:</p> <p>No/ '62,158, Feb. 19, 1867, W. M. & R. Savage.</p> <p>No, 303,177, Aug. 5, 1884, W, H. Miller.</p> <p>No. 331,758, Dee. S, 1885, R. Barrett.</p> <p>,N6. 336,123, Feb. 16, 1886, J. W. Leggitt.</p> <p>No. 358,475, Mareh 1, 1887, J. R. Palmenberg.</p> <p>No. 361,245; April 12, 18S7, F. A. Weber.</p> <p>No. 405,257, June 18, 1880, 0. R. Harris.</p> <p>No. 436,382, Sept. 16, 1890, J. Schaut).</p> <p>No. 485,975, Nov. 8, Í892, S. Newman.</p> <p>No. 550,048, Nov. 19, 1895, W. L. Ketehum.</p> <p>No. 554,717, Feb. 18, 1896, T. F. AleGann.</p> <p>No. 628.784. July 11, 1899, ,T. ,T. Fitzgerald.</p> <p>No. 629,105, July 18. 1899, J. J. Fitzgerald.</p> <p>Further facts are staled in the opinion.</p>

<p>Patents — Double Patenting — Telephone Switchboards.</p> <p>The Scribner patent, No. 009,708, for apparatus for telephone switchboards, consisting essentially of a “visible test” system for indicating automatically whether a particular line is open or busy by means of electric lamps, discloses invention, although of narrow scope in view of the prior art, but is void for double patenting; patent No. 574,006, to the same patentee, applied for later, but granted prior to No. 669,708, although claimed to be for a “combination” of an audible and a visible test system of signals, disclosing the device of the later patent in its entirety, with neither elements nor functions modified or changed by the added feature for audible test. Also held not infringed, if conceded validity.</p>

<p>1. Judgment — Persons Concluded — Privies in Suit for Infringement of Patent. ‘ . . ■</p> <p>The rule that one not a party to a suit for the infringement of a patent may be bound as a privy by the judgment or decree therein applies only to cases where, by agreement, a joint defense is made or a principal defends his agent, or a licensor his licensee, or other like relation contractual or representative exists. One is not bound as a privy merely because he contributes to the defense, without having the right to control the proceedings or to appeal from the judgment or decree.</p> <p>TEd. Note — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1190-1194:</p> <p>Operation and effect of decision in equitable suit for infringement of patent, see Westingkouse Electric & Mfg. Co. v. Stanley Instrument Co., 68 C. C.. A. 541.]</p> <p>2. Evidence — Testimony of Deceased Witness — Mode of Proof.</p> <p>The testimony of a deceased witness given in another ease cannot be shown in a subsequent suit merely by producing a witness who testifies to the correctness of the printed transcript of such testimony as contained in the record in- the prior suit, and then putting into the record such parts of such printed testimony as counsel may deem material or important to his case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2419-2422.]</p> <p>8. Patents — Contributory Infringement.</p> <p>A defendant cannot be charged with contributory infringement of a patent for a baking powder merely because of the sale to an infringing manufacturer of an article which constitutes an element in the patented product, but which is also a common article of commerce, used for other purposes, without convincing proof that the article sold was used in the manufacture of the infringing product, and that defendant sold it knowing, or having reasonable cause to know, that it was to be so used.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 38, Patents, § 402.</p> <p>Contributory infringement of patent, see Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 4S5.]</p>

<p>In Equity. Argument on plea interposed by defendant to bill of complaint in a suit for infringement of a patent.</p>

<p>1. Patents — Validity and Infringement — Doll.</p> <p>The Steiner patent, No. 695,121, for a doll in which there is a combination of a walking mechanism and a sitting mechanism, with an apparatus making the legs rigidly perpendicular when walking and rigidly fixed at right angles to .the body when sitting, was not anticipated, and discloses patentable invention; also held, infringed.</p> <p>2. Same — Anticipation—Foreign Patent.</p> <p>The instrument known under the German law as a “Gebrauchsmuster” is not one the filing of which charges any one with notice of its contents or which has tho effect of a foreign patent as an anticipation of a subsequent United. States patent.</p>

At Law. On demurrer to complaint. The plaintiff alleges in the declaration that die is a citizen of the United States, and a citizen and resident of the slate of Colorado; that the defendants also are citizens of the Dniled States, and citizens and residents of the state of Colorado; that he “brings this action in this court against said defendants under the Constitution of the United States, and under section 1979 of the Kevised Statutes of (lie United States by reason of…

In Bankruptcy. This is a motion on order to show cause why the above alleged bankrupt, Hudson River Water Power Company, and all the persons and property occupying the position of surety or security in the premises should not be relieved from the further performance of an order of this court, made July 19, 1905, as subsequently modified by stipulation and order, and also why all cash and bonds now in the hands of the special trustee or trust company pursuant to the said…

<p>On Motion to Amend Petition for Removal, and Motion to Remand to State Court.</p>

<p>In Equity. On final hearing.</p> <p>By this suit the United States seeks a discovery, an accounting, and to recover of the defendant under Act Cong. 3!arcli 3, 1887, c. 370, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], and Act March 2, 1890, c: 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], the value of some 4,300 aeres of public lands, which are particularly described in the bill of complaint, in Dickinson, Kossuth, and Palo Alto counties, in this state, which it is alleged were prior to said act of 1887, erroneously patented by the officers of the Interior Department to the state of Iowa for the benefit of the defendant railway company, and by said state patented to defendant, as inuring to it under the act of Congress-approved 31ay 12, 1S64 (13 Stat. 72, e. 84), entitled, “An act for a grant, of-lands to -the state of Iowa in alternate sections to aid in the construction of a railroad in said state,”' and prior to the act of 3!arch 2, 1896, sold by the defendant to numerous persons who were good faith irurchasers thereof for value. By said act of 3Iay 12, 1864, it is provided that there is hereby granted to the state of Iowa, for the benefit of the 3IcGregor Western Railroad 'Company, to aid in the construction of a railroad in said state from South 3!cGregor, in a-westerly .direction.on or near the forty-third parallel, of north latitude until it shall intersect in O’Brien county, a railroad' running from Sioux City to the 3Iinnesota state line, every alternate section of land designated by odd numbers for 10 sections in width on each.side of.said1 road;>but:in.Cá.se it shall appear, when the line of said road is definitely located, that the United States have sold any section or part thereof granted as aforesaid, or that the right of pre-emption, or homestead settlement has attached to any of said land, or that any of the same has been reserved by the United States for any purpose whatever, tlien it shall he the duty of the Secretary of the Interior to canse to be selected for the purposes aforesaid from the public lauds of the United States, within specified limits, so much land in alternate sections designated by ódd uumbers as shall be equal to such land as the United States have, sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached, provided, that any and all lands heretofore reserved to the United States hy any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be and the samo are hereby reserved and excepted from tbe operation of this act. The act further provides that the lands granted shall be subject to the disposal of the Legislature of Iowa for the purpose aforesaid and no other; that, if said McGregor Western Railroad Company or assigns shall fail to construct such road, the state of Iowa may resume said grant and so dispose of the same as to secure the completion of a road on such line, upon such terms and within such timo, not exceeding 15 years from the acceptance of the grant, as it shall determine; and that’all lands which by said grant shall remain to the United States within 10 miles bn each side of said road shall when sold be sold for not less than double the minimum price of public land. It is alleged in the bill that the defendant has succeeded to the rights of the McGregor Western Railroad Company under said grant, and that at the time of the definite location of said railroad the lands described, being within 10 miles of said road on either side thereof, were covered by existing claims of record in tbe office of the Commissioner of the-General Land Office, consisting of homestead entries, pre-emption declaratory statements. warrant locations, or swamp selections which were all pending before ihe Department of the Interior for adjudication at the time of the attachment of rights under said railroad grant, and that said'lands were therefore excepted from the operation of said grant. The answer admits-that defendant has succeeded to the rights of the McGregor Western Railroad Company under said grant, and that the lands have been patented to it as such successor, but denies that said lands were covered by any such claims, or were excepted from the operation of the grant. •</p> <p>From the pleadings and stipulations of the parties it appears:</p> <p>(1) That tlie McGregor Western Railroad Company duly accepted the terms of said grant, and on August 30, 1864, filed in the, office of the Secretary ,of tiie Interior a map of definite location of the line of its railroad along, the prescribed route to a point of intersection in O’Brieli county, with said,railroad running from Sioux City to the state line of Minnesota, and completed, a part of said road, but it and its assigns failed to comply with all of the terms of said grant; that the Legislature of Iowa thereupon resumed the grant, ami hy chapter 21, p. 18, of the Acts of the 17th General Assembly of that state, approved February 27, 1878, conferred the same upon the Chicago, Milwaukee & St. Taul Railway Company, the defendant herein; that defendant accepted the grant and constructed the road to the point of intersection in O’Brien county, with said road running from Sioux City to the state line of Minnesota, within the time fixed therefor; that in 1880 the United States, by its proper officers, in recognition of the rigid of the defendant to the lauds embraced in said grant, patented the same, including the,lands described in the bill, except 200 acres thereof, to tile state of Iowa for the benefit of the defendant; and that the state of Iowa in the years 1880 and 1881, in like recognition of defendant’s right to said land, duly patented the same, except said 200 acres,’ to 1he defendant as inuring to it under said act of May .12, 1864.' ■</p> <p>(2) That about November 21. 1850, the Commissioner of the General Land Office duly instructed the United States Surveyor General for the state of Iowa 1o make out lists of all the lands granted to said Mate by the act of Congress of September 28, 1850 (!) Stat. 519, c. 84), the swamp land grant, and in his letter of instruction said: “The only reliable data in your possession from which these lists can be made are the field notes of tbe surveyors on file in your office, and. if the authorities of the state are, willing to'adopt these .as the basis of these lists, you will so regard them.’ If not, and these authorities furnish you satisfactory evidence that any lands are of the character embraced in the grant, you will report'them.” On .Tune’23, I860; the Commissioner of the General Land Office sent to said Surveyor General for Iowa, a letter as follows: “Sir: Referring to your letter of the 15th inst., asking to he advised as to your duty in reporting' swamp selections in Iowa, and in view of the act of the 12th of March last, a copy of which was furnished you in my letter of the 21st ult, I will here set forth the principles which you are to apply to. any selections now on your files and; to all others, also, which, may hereafter be reported to you by the agents of the state: (1) As the grant contemplates the inundation of extensive regions of country by such natural arteries as the Mississippi river, land evidently -intended to be granted as swamps are those only which by reason of their swampy character and liability to overflow, are worthless in their natural condition, and whereon crops cannot be raised without reclamation by levees and drains. An overflow or inundation from casual cause merely temporary in its effects does not bring the land within the grant, and cannot be said in any proper sense to render them “unfit for cultivation.” The law contemplates such long continued overflow or freshets only, as would totally destroy crops and prevent the raising of them without artificial means, by levees, etc., such as are found on the Mississippi river. (2) Bodies of land covered by shallow lakes or ponds which may become dry by evaporation or other natural causes do not come ■within the meaning of the swamp grant. (3) Testimony now, after the lapse of nine years, to be available, must be explicit, resting upon the personal and exact knowledge of the localities claimed, and must relate to each quarter, quarter section, or other equivalent legal subdivision. This testimony must be made by parties having no interest, present or prospective, direct or indirect, and must state the name of the river or water course'whereby the lands are submerged and rendered useless for arable purposes in their natural condition. (4) I inclose herewith a blank form of proof which you will require from the state authorities, and if lists of lands of this class are furnished you, accompanied with such evidence, you will report them to this office, in the manner set forth in form ‘B’ herewith, after making careful examination of said proof, and rendering your own decision thereon, as to whether the several tracts are swamp or not within the meaning of the grant. (5) You will, as soon as your report is arranged and prepared for transmission to this office, send simultaneously a copy thereof to the local offices of the proper land districts, with instructions to them to enter the tracts in the usual form in their books, and to withhold them from sale or other disposition, unless otherwise especially directed by this office.” ,The form of proof inclosed in the letter appears in the record. The Surveyor General made no further report to the Commissioner of the General Land Office as to swamp land selections in either of the said counties, and gave no directions to any of the local land offices to withhold any of said lands from sale or other disposition as required by said letter of the Commissioner.</p> <p>(3) That prior to and on August 30, 18G4, when the map of definite location of said road was filed in the office of the Secretary of the Interior, none of the lands described in the bill of complaint was covered by any homestead entry, pre-emption, declaratory statements, warrant locations, or other existing claims of record in the office of the Commissioner of the General Land Office, save and except: (a) That on August 25, 1S59, there was received and filed in that office, from the United States Surveyor General for Iowa, a certified transcript of a list of lands in Kossuth county on file in his office, including the lands described in the bill of complaint as being in that county, purporting to have been selected as swamp lands by Wm. H. Ingham and Geo. A. Lowe, acting under appointment of the county court of said county for that purpose. To the original list is attached the affidavit of said Ingham and Lowe sworn to November 11, 1858, before the county judge stating that they were surveyors appointed to select swamp lands in Kossuth county, and that the lands mentioned in said list were swamp lands, (b) That on April 3, 18G0. there was received and filed in that office from the United States Surveyor General for Iowa a like list of lands in Palo Alto county, on file in his office, including those described in the bill of complaint, except 40 acres thereof, as being in that county, purporting to have been selected as swamp lands by Andrew Hood. The Surveyor General certifies that each of the foregoing lists transmitted by him is a correct transcript of the original list of swamp selections made by the county surveyor or the state locating agent and filed in his office, (e) That the records oí said General Land Office further show that on March 23, 1872, there was on lile in said office a list of lands in Dickinson county purporting to have been selected as swamp lands by Benjamin I\ I'ar-menter, appointed by the county court of that county in 3857 to make such selections, which list is sworn to by Parmenter before the county judge of Dickinson county July 23, 18(50, and is indorsed, “Posted in tract book May 28th. 3872,” but no prior record of any kind appears in regard thereto, nor does it appear who transmitted the list to the General Land Office. That neither of said lists was ever adopted, ratified, or confirmed in any manner by the Interior or Land Department of the United States; but said counties com Unued to claim said lands as swamp and as having been selected as such by or Cor them under authority of an act of the General Assembly of Iowa approved January 33, 1853, and said McGregor Western Railroad Company and its successors in interest successively made claim to said lauds as inuring to said companies, respectively, under said act of Congress of May 12,1864. That on May 31 and October 21, 1876, the Commissioner of the General Land Office upon public hearings of the matter of such claims, after due notice to all parties interested, held and adjudged in writing that the lands described in said list were not, in fact, swamp lands, nor embraced in said act of Congress of September 2S, 1850, and that the state of Iowa and said several counties wore never entitled to said lands or any part thereof under said act That said hearings were pursuant to the act of Congress of March 5, 3872 (17 Stat. 37, c. 39), and said findings and decisions of said Commissioner wore never appealed from, reversed, or modified in any manner.</p> <p>(d) That the lands described in the bill of complaint, are of the alternate sections and parts thereof designated by odd numbers within 10 sections in width on each side of the line of the definite location of said McGregor Western Railroad, and were, except 200 acres thereof, prior to March 2, 1896, spld and duly conveyed by the defendant company to numerous persons who bought the same in good faith and for value; and on October 21, 1898, the Secretary of the Interior held in writing that the titles of all of the xmrchasers of said lands were confirmed in them, respectively, under the terms of tho act of Congress approved March 2, 3896 (29 Stat. 42, c. 39 [U. S. Comp. St. 1903, p. 1603]). Thai, due demands were made upon defendant, by direction of tho Secretary of the Interior, that it reconvey to the United States all of the lands described in tho bill of complaint, and that it pay to the United States the government price of $2.50 per acre for the said lands, and that defendant has failed to comply with either of said demands.</p> <p>(5) That the defendant railway company did not receive from the United States, either directly or through tho state of Iowa, the full quota of lands to which it was lawfully entitled under said grant of May 12, 3864, and that such deficiency is considerably more than the total acreage of all the lands in controversy in this suit.</p>

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

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

<p>1. Bankruptcy — Resale of Property — Construction of Order.</p> <p>Orders of a court of bankruptcy setting aside a private sale of a bankrupt’s real estate, and requiring the petitioner therefor to enter into a contract with the trustees to bid a stated sum at a resale, and also sufficient in addition to pay whatever sum should be awarded by the court to the former purchaser for improvements made on the property, construed, and held to require such award to be paid by the trustees whore at the resale the petitioner purchased the property at a price largely in excess of that which it was required to bid by the order.</p> <p>2. Same — Allowance to First Purchaser for Improvements Made — Costs of Taking Account.</p> <p>Where a private sale of real estate of a bankrupt was set aside by the court on an offer of a better price after the purchaser had made improvements thereon by an order which provided that he should be repaid tile amount expended in making such improvements, lie should not be charged with the costs of the proceedings for ascertaining the amount so expended, but such costs should be paid by the estate which benefited by the resale.</p> <p>3. Same — Taxes on Property Pending Administration.</p> <p>It is the duty of a trustee in bankruptcy under Banlcr. Act July †, 1898, e. 511, § 64a, 30 Slat. 563 [U. S. Comp. St. 1901, p. 3147], to pay tile taxes assessed or becoming due on the property of the bankrupt while in his hands for administration, and he is not relieved from such duty by the fact that the taxes were allowed to remain unpaid until the property was sold, by consent of the court of bankruptcy, under a decree of. foreclosure in a state court; but there is no provision of the law requiring or authorizing him to pay interest thereon.</p>

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

<p>In Admiralty.</p> <p>This is a libel against the schooner Frolic, her boats, tackle, apparel, and-furniture,' based upon provisions of the Chinese exclusion acts. Condemnation is sought “for the causes following, to wit, for that,, to wit, on said 11th day of October, 1906,- one Edward H. Junkins, was then and there .the master of said schooner, and, then and there being such master, did bring and aid in bringing and land by and' from said schooner Frolic within the United States of America, to wit, at the port of Providence, within said district of Rhode Island * * * forty Chinese persons, to wit, Chinese laborers, the same then and there not being entitled to enter the United States, and contrary to the statutes, in such case made and provided.”</p> <p>The United. States relies on the following provision of the statutes:</p> <p>“Sec. 10. That every vessel whose master shall knowingly violate any of the provisions of this act shall be deemed forfeited to the United States, and shall be liable to seizure and condemnation in any district of the United States into which such vessel may enter or in which she may be found.’’ Act May 6, 1882, c. 126, 22 Stat 61; Act July 5, 1884, c. 220, 23 Stat. 117; Act Sept. 13, 1888, c. 1015, 25 Stat. 476'; - Act May 5, 1892, c. 60. 27 Stat. 25; Act April 29, 1902, c. 641, 32 Stat. 176. See U. S. Comp, St. 1901, pp. 1309, 1312, 1319, and U. S. Comp. St. Supp. 1905. p. 295.</p> <p>Herbert H. White, of Brookline, Mass., appears as claimant of the Frolic, and denies that on said 11th day of October, 1906, one Edward H. Junkins was then and there the master of said schooner. White alleges that he was the owner of said'schooner, and had. never appointed said Edward I-I. Junkins as master, and denies that said Junkins had' ever been lawfully appointed master by any one having authority to so appoint him. The claim of White was heard upon an agreed statement of facts, supplemented by certain documentary evidence and by the oral testimony of said White. The agreed statement of facts is as follows:</p> <p>“First. In this’case it is agreed that Herbert IT. White, of Brookline, Mass., is the owner of said schooner, subject to such rights as one Herbert F, Colby, of Boston, has under and by virtue of an agreement made between said White and-sai-d Colby, dated the 12th da^- of December, 1902.</p> <p>“Second. It is agreed that said Herbert F. Colby has had possession of said schooner since said 12th day of December, 1902, under and by virtue of said agreement, a copy of which is made a part of this agreement.</p> <p>“Third. A certified copy of the certificate of enrollment of said schooner Frolic, marked ‘No. 146’ and' issued at Boston, with the indorsements of the 'change of master thereon, is made a part-of this agreement.</p> <p>“Fourth. It is agreed that on or about the 11th da,y of October said schooner, with one E. A„ Junkins acting as master, entered the port of Providence in this district, and the crew, aided and abetted by said Junkins, unlawfully, knowingly, and in violation of the Chinese exclusion acts of Congress, landed certain Chinese persons, to wit, about 42 such persons, at the port of Providence. .</p> <p>“Fifth. That said schooner, with said E. A. Junkins acting as master, made a voyage to the island of Newfoundland, within the Dominion of Canada, for the purpose of unlawfully bringing into and landing said Chinese persons within the United States of America.</p> <p>“Sixth. It is agreed that said: schooner made said voyage and committed the unlawful acts hereinbefore set forth without the knowledge or consent of the said Herbert H. White, and in violation of the terms of said agreement between said White and said Colby hereinbefore referred to.</p> <p>“Seventh. A certified copy of a license to said schooner, dated at Boston July 24, 1906, is made a part of this agreement.”</p> <p>The agreement between said White and said Colby, above referred to, is as follows:</p> <p>“Memorandum of an Agreement by and between Herbert H. White, of Brook-line, Massachusetts, and Herbert F. Colby, of Boston, Massachusetts.</p> <p>“Witnesseth, that said White, in consideration of one dollar and the following agreement on the part of said Colby, to be done and performed as hereinafter set forth, agrees to allow said Colby to use the schooner yacht Frolic, and to sell said Frolic to said Colby upon the terms and conditions hereinafter set forth. And in consideration of one dollar and the following agreement, said Colby agrees to purchase said Frolic, as follows: That in the spring of 1903 said Colby will put said schooner yacht Frolic in commission and in condition satisfactory to said White, to use said Frolic as a party boat during the term of this contract, and said Colby shall pay for such use, or towards the purchase price of said Frolic, if said Colby shall fully perform the, provisions' of this contract, as follows: The sum of $1,500 (fifteen hundred dollars), with interest at six per cent. (6%) per annum upon all deferred payments, payable $60 (sixty dollars) on or before July 9, 1903, $60 (sixty dollars) on or before August 9, 1903, $60 (sixty dollars) on or before September 9, 1903, and $60 (sixty dollars) on or before October 1, 1903, and as much. more during, the season of 1903 as the earnings of said yacht Frolic will warrant1; and like sums shall be paid on the same dates during the years 1904, 1905,' 1906,' and so on, until said Colby shall have paid said White in full said purchase price of fifteen hundred dollars and interest.</p> <p>“Said Colby also agrees to pay to said White in each of the years during the life of this contract a sum not to exceed $60 (sixty dollars) for the premium on insurance of said yacht Frolic, for the benefit of said White and payable to said White in ease of loss. Said Colby moreover agrees to pay for such damages as the insurance policy does not cover.</p> <p>.. “Said Colby also agrees to have personal charge of said yacht Frolic, an4 to • keep her at all times in a condition satisfactory to said White, arid shall not let said Frolic to rough or disorderly parties, and shall allow said White to use said Frolic whenever such use will not conflict with the renting of said ’Frolic to third parties, and shall keep full and accurate account of all expenses occasioned by the operation of said yacht as aforesaid, which accounts shall be open at all times to the inspection of said White, and shall be subject to1 his approval or disapproval. Said Colby is to be allowed $2 (two dollars) for each day that ho shall be obliged to absent himself from his employment at the W. G. Bell Company, of Boston, in order to operate said Frolic as aforesaid, and said Colby shall allow said White to retain towards the sum aforesaid all money derived from parties which said White shall obtain.</p> <p>“In case said Colby shall fail to perform any part of his agreement as herein set forth, said White can then take immediate possession of said yacht Frolic, and said Colby shall immediately return her to such place as said White may designate, and shall put her out of commission, properly covering her, and shall surrender to said White all such new fittings and furnishings, including any new tender, that he may purchase; and said Colby shall recompense said White for all such damages as may be occasioned by his act or neglect, reasonable use, wear and tear, and unavoidable casualty excepted, and to forfeit all such payments as he, the said Colby, shall have made previously. 1</p> <p>"It is understood and agreed that said Colby, his heirs or assigns, shall -have the right and option at any time to demand from said White, his heirs of assigns, a full ancl complete title to said yacht Frolic upon tlie payment of any balance of said purchase price, with interest, which may at that time remain due to said White.</p> <p>“It is agreed that, in the event of the loss of said yacht Frolic before the completion of this contract, said White, his heirs or assigns, shall pay to said Colby, his heirs or assigns, from the money received from the insurance, the full amount of money, with interest at six per cent. (6%) from the date of payment thereof, which said Colby shall have paid said White on account of the purchase price of said yacht Frolic;'provided, however, that if for any reason the insurance should be void or should have lapsed, or should in any way be less than a sum sufficient to pay said White the balance of the purchase price, with interest, due him, said White and said Colby, their heirs or assigns, shall share the money received from insurance in proportion as their interests may appear.</p> <p>“In witness whereof, we have hereunto and to an instrument of like tenor and-, date set our hands and seals this twelfth day of December, A. D. 1902.</p> <p>“Herbert H. White.</p> <p>“Herbert F. Colby.</p> <p>“In presence of Warren A. Chase.”</p> <p>TIpon the certificate of enrollment appear the following '“Indorsements of Change of Master”:</p> <p>“District of Boston & Charlestown, Port of Boston,</p> <p>“July 18th, 1905.</p> <p>“Herbert F. Colby, having taken the oath required by law, is at present master of the within-named vessel, in lieu of Herbert H. White, late master.</p> <p>“J. E. I-Iesseltine, Deputy Collector of Customs.”</p> <p>“District of Boston & Charlestown, Port of Boston,</p> <p>“July 21st, 1905.</p> <p>“Byron A. Miller, having taken the oath required by law, is at present master of the within-named vessel, in lieu of Herbert F. Colby, late master.</p> <p>..“Win. F. Jones, Deputy Collector of Customs.”</p> <p>“District of Boston & Charlestown, Port of Boston.</p> <p>“August 22d, 1905.</p> <p>“E. A. Junkins, having taken the oath required by law, is at present master of the within-named vessel, in lieu of Byron A. Miller, late master.</p> <p>“Wm. F. Jones, Deputy Collector of Customs.”</p> <p>In the license dated July 24, 1906, Herbert I-I. White appears as sole owner, and E. A. Junkins as master. White testified that, subsequent to the written agreement with Colby, he appointed Colby master, and had not since that time visited, the custom house, and had no knowledge that any person other than Colby had been appointed master; also that but $387 had been paid Colby, against whom there were some countér charges.</p>

<p>In Admiralty. In re claim of William Bond & Son.</p>

<p>Monopolies — Combination in Restraint of Interstate Commerce — Boycott ' —Trade Unions. /</p> <p>The action of the members of a labor union in attempting to compel a bat manufacturer to unionize his factory by leaving his employment and preventing others from taking employment therein, and also, with the assistance of the members of affiliated organizations, by declaring a boycott upon his goods in other states into which such goods have been shipped for sale at retail, does not have such relation to interstate commerce as to constitute a combination or conspiracy in restraint of such commerce in violation of the Sherman anti-trust act (Act July 2, 1890, c. 647, 26 Stat. 209 LU. S. Comp. St. 1901, p. 3200]).</p>

<p>On Habeas Corpus.</p>

<p>In Bankruptcy. On reargument.</p>

<p>1. Husband and Wtfe — Gift from Husband to Wife — Massachusetts Statute.</p> <p>Under Rev. Laws Mass. 1902, c. 153, §§ 1, 3, relating to transfers between husband and wife and the decisions of the Supreme Judicial Court of the state thereunder, a transfer of corporate stocks by a husband to his wife as a gift by surrendering certificates held by him to the corporation which by his direction issues new certificates to the wife is a transfer through a third person, and constitutes a perfect gift, good as against the husband and his subsequent creditors, in the absence of an actual intention to defraud.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 26, Husband and Wife, §§ 250-252.]</p> <p>2. Bankruptcy — Loan by Wife — Property Received from Husband as Gift.</p> <p>A member of a partnership, while solvent, transferred certain corporate stocks to his wife by way of gift, and she subsequently lent such stocks to his partner, who assigned her as security for their return a seat in an exchange which was in his name. Her husband witnessed the formal instrument executed by his wife and his partner covering the transaction, and in other ways indicated Ms assent to the loan of tile securities by his wife, which loan was throughout in such form as to indicate that they were her absolute property. The stocks were used by the firm, which afterward became bankrupt, and the seat was sold by the trustee. IleM that, even if the gift had not been originally perfect, it was rendered so by the transfer of the stocks to the partner and the substitution therefor of his obligation and security directly to the wife, under the circumstances described.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 286, 291, 295,]</p>

This is-an action to recover a balance of 857,762.10, duo on account for wall paper sold and delivered to defendants. The case turned upon the sufficiency of the third defense submitted by the answer to the petition of the plaintiff. To this defense the plaintiff demurred. This demurrer was overruled. The plaintiff declined to plead further, whereupon judgment was rendered for the defendants, dismissing the petition, and taxing the plaintiff with costs.

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

<p>In Rrror to the Circuit Court of the United States for the District of Nebraska.</p> <p>This writ of error challenges a judgment obtained by Tressa Wolf against the railroad company for damages to her property caused by the construction and operation of railroad tracks in tlie vicinity thereof.</p>

<p>1. Cabbtebs — Railroads Engaged in Interstate Coimeros — Schedule of Rates.</p> <p>Semble, that a railroad company engaged in interstate commerce in its schedules of rates and classifications filed with the Interstate Commerce Commission pursuant to Act Feb. 4, 1887, c. 104, § 0, 24 Stat. 380 [U. S. Comp. St. 1901, p. Sinoj, may state- separately its rate for the carriage of ordinary commodities of a particular class and its charge for icing cars-when commodities of the same class are of a character requiring to ha shipped under refrigeration, and that its collection of both charges when1, refrigeration is used is lawful, provided they are each reasonable and dte--not cover double condensation for the same service.</p> <p>2. Sam 10 — Action fob Damages iiy Siiipme — Gbounds of Recovery.</p> <p>To support an action by a shipper against, a carrier under section 8 of the interstate commerce act (Act Feb. 4, 1887, c. 304, 24 Stat. 382 |U. S. Comp. St. 3901, p. 3359]), he must show either that Hiere has been some unreasonable or excessive charge imposed or some unlawful discrimination practiced against him by which he has been pecuniarily damaged, and he cannot recover, on a merely technical construction of the law, because, in addition 1o the ordinary scheduled rate, an extra charge for icing service, also shown by the schedules, but separately, has been collected from him, where such charge is not shown to he unreasonable and has not been so held by the Interstate Commerce Commission.</p>

<p>1. Bankiíuptoy-Pbeeeeenoes— Dei,at in Recording Chatted Mortgage.</p> <p>A state statute which requires a conveyance or transfer to he recorded in order to be effectual against any class or classes of persons is a law by which such recording is •‘required,” within the meaning of Bankr. Act July 1, 18ÜS. c. 511, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 31151 as amended by Act Deb. 5, 1903, e. 487, § 33, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, p. 689], which defines preferences given by a debtor within four months prior to his bankruptcy and provides that “where the preference consists in a transfer such period of four months shall not expire until four months niter the date of the recording or registering of the transfer, if by law such recording or registering is required.”</p> <p>2. Same — Ohio Statute.</p> <p>A chattel mortgage given in Ohio to secure an antecedent debt, which by the law of the state is required to be recorded to render it valid as against lien creditors of the mortgagor or subsequent purchasers or incumbrances in good faith, and which, while given previously, was not recorded until within lour months prior to the mortgagor’s bankruptcy, constitutes a preference under Bankr. Act July 1, 1898, c. 543, § 00a, 30 Stat. 562 |U. S. Com}». St. 1903, p. 3415] as amended by Act Feb. 5,1903, e. 4S7. § 13, 32 Stat. 799 ril. S. Conq).. St. Supp. 1905, p. 6891, and where at the lime it was given the mortgagee knew or liad reasonable cause to believe the mortgagor to be insolvent the preference is voidable by the trustee in bankruptcy.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 262.]</p>

<p>BAXKROrXOY — CORPORATION — BtFlOOT OI’ INSOLVENCY PROCEEDINGS UNDER State Law.</p> <p>X’roeoedings tmder Pa. Act, April 7, 1870 (F. L. 58), by which the franchise and property o£ an insolvent corporation are sold under a special' writ of fieri facias for distribution among its creditors, do not work a dissolution of the corporation so. as to defeat the jurisdiction of a court of bankruptcy to adjudge it a bankrupt, or disenable its directors to admit its insolvency and willingness to be adjudged a bankrupt which eonstitmes an act of bankruptcy under Hauler. Act July 1, 1898, e. 54.1, § 3a (5b 50 Stat. 546 LIT. ¡3. Comp. St. 1901, p. 5422],</p> <p>|Kd. Note. — For cases in point, see Cent. Ilig. vol. 6, Bankruptcy, § 23.]</p>

<p>1. Patents — Infringement—Bag-Filling Machine-</p> <p>The Cummings patent, No. 539,171, for a bag-filling machine, Reid valid and infringed as to claims 14, 53, 54, 30, 24, 53, 61, 41, 11, 12, 16, 17, 19, 23, 34, 35, and 20, but not infringed! as to claims 1, 2, 6, 13, 8, 9, 18, 29, and 75, which each contain as an element a flexible bag opener not found in defendant’s machine.</p> <p>2. Same.</p> <p>The Brown patent No. 578,133 for an improved folding mechanism for use with the bag-filling machine of the Cummings patent No. 539,171 held valid and infringed.</p>

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

<p>1. Commerce — Regulation of Interstate Commerce — Powers of Congress-Liability of Common Carrier to Its Employés.</p> <p>Tlie liability of a common carrier to its employés for personal injuries is not commerce, and the regulation of such liability with respect to carriers engaged in interstate commerce is not within the power of Congress under the interstate commerce clause of the Constitution.,</p> <p>2. Same — Federal Employers’ Liability Act — Constitutionality.</p> <p>Act June 11, 1906, 34 Stat. 232, c. 3073, “relating to the liability of common carriers * * * engaged in commerce between the states ♦ * * to their employés,” as stated' in its title, and which makes every such carrier liable to any employe or his personal representative for all damages which may result from the negligence of any of its officers, agents, or employés, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, ways, or works, is not a regulation of interstate commerce, but declares a new rule of liability for torts applicable to a single class of employers, and is void as not'within the constitutional power, of Congress to regulate such commerce.</p> <p>3. Same.</p> <p>Act June 11, 1906, 34 Stat. 232, c. 3073, which makes every common carrier engaged in interstate commerce liable to any employé or his personal representative for all damages which may result from the negligence of any of its officers, agents, or employés, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, ways, or works if it can he held a regulation of interstate commerce is still void for want of constitutional authority in Congress to enact it, inasmuch as it is so framed that its provisions are applicable alike to all commerce, including that between citizens of the same state, and cannot be confined to that which is subject to the control of Congress.</p>

<p>Towage — Loss or Tow — Uxseawobthiness.</p> <p>Conflicting evidence considered, and held not to sustain the allegations o£ a libel, that the sinking of a barge while being towed with four others tandem behind it from Baltimore to Norfolk, and when passing into Hampton Roads through the channel to the west of Thimble Light, was due to the negligence of the tug, either in proceeding when the weather was so stormy as to render it imprudent, or in navigation, but to show that the sinking was due to the unseaworthiness of the barge which was old and unable to stand the strain put upon it as first of the tow.</p>

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

<p>Shippirg — Loss op Caego — Sinking op Lightee at Pieb.</p> <p>Evidence considered1, in an action against the owner of a lighter to recover for loss of her cargo through her sinking at a pier during the night, and held not to show that her sinking was due to unseaworthiness, but that it was caused by a blow received from some unknown vessel in collision with her, or from swells causing her to collide with a vessel or wharf alongside.</p>

<p>Admiralty — Pbaciice—Extension op Rule 59.</p> <p>A vessel sued for nondelivery of cargo, all of which was received and loaded by the charterer, and for which bills of lading were signed by the master without prejudice under the terms of the charter, upon an allegation of delivery of all cargo received on board, is entitled by analogy to admiralty rule 59 to bring in the charterer, in order to determine in one action all the matters arising out of the loss.</p>

<p>In Admiralty. Action by charterer for breach of charter and cross-action for demurrage.</p>

<p>In Admiralty, On appeal from taxation of costs.</p>

<p>Appeal from the Circuit Court oí the United States for the Southern District of Nfcw Torio,</p>

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

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina. O. E. Mason, A. Burwell, and Edwin T. Cansler, for plaintiff in error.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District, of New York. On appeal from an order of the Circuit Court for the Southern District of New York, dated October 2. 1903, granting an injunction pendente lite.</p>

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

The opinion of the Circuit Court sustaining the demurrer to the original bill is reported in 136 Fed. 915. The court held upon the hearing of the demurrer to the amended bill that there was no substantial difference between it and the original bill, and followed the former decision. Pinal decree was thereupon entered, and the complainant appeals.

Court of the United States for the Southern District of New York. On appeal from a decree of the Circuit Court for the Southern District of New York adjudging invalid the complainant’s patent, No. 500,371, for an improvement in music boxes,

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

<p>Appeal from the Circuit Court of the United States, Southern District of Georgia.</p>

<p>No. 1,563.</p> <p>In Error to the District Court of the United States for the Northern District of Ohio.</p>

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

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

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

<p>In Equity. On rehearing.</p>