Volume 149 — Federal Reporter

<p>1. Pleading — Matters of Fact ok Conclusions — Allegations of Authority of Agent.</p> <p>In an action^ against a corporation for fraud arising out of transactions between plaintiffs and an individual, allegations in the declaration that all of such person’s negotiations, contracts, transactions and acts complained of were carried on, executed, performed, and done by him in pursuance of authority conferred on him by defendant, • as its agent, and with its' knowledge and consent in furtherance of a fraudulent scheme of defendant, are sufficient on demurrer to charge defendants with responsibility for • such acts, without setting out evidence of such person’s authority or agency.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, § 26.]</p> <p>2. Fraud — Pleading—Allegations of Damage.</p> <p>The declaration in an action for fraud and deceit alleged that plaintiffs held options for the, purchase of phosphate lands and phosphate deposits which were worth S150,000, and that defendant, in pursuance of a fraudulent scheme to prevent plaintiffs from selling the options to others, and to the end that they might expire and enable it to purchase the property from the owners, by means of false and fraudulent representations of its desire and intention to purchase the options, induced plaintiffs to enter into a contract giving it the exclusive right to do so for a stated time, whereby plaintiffs were prevented from selling the options to others, by which sale they would have received a profit of $1507000, and were deprived of their rights thereunder, to their damage in the sum of $150,000. Reld, that such declaration was sufficient on demurrer to show that plaintiffs were damaged by the alleged fraud, and that it was unnecessary to allege that they could and would have sold the options to others and derived a profit therefrom.</p> <p>S. Same — Grounds of Action — False Representation as to Intent.</p> <p>There is a prima facie presumption of fairness and honesty in the dealings of mankind, and where one man makes a promise to another as an inducement for a change of position on the part of the latter he impliedly, if not expressly, avers that he has’an existing intent to fulfill his promise, and such implied averment of an existing intent is of matter b'f fact, and, if false and fraudulent, is a fraudulent representation, which' may, It acted on, furnish the basis for an action ex delicto in the nature" of deceit.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 23, Fraud, § 14.]</p> <p>4. Same.</p> <p>The declaration in an action for fraud and deceit construed on demurrer, and held to state a cause of action.</p>

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

This is a bill to compel specific performance of a contract for the" sale and purchase of the Edgewater Distillery Plant, located in Harrison county, Ky., and certain personal property connected with its operation and business. Preliminary negotiations resulted in a contract bearing date of April 6, 1899.

Writ of error to the Circuit Court of the United States for the District of Vermont to review a judgment entered on the verdict of a jury in favor of the plaintiff for $3,350.

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

<p>1. Bankruptcy — Liens—Chattel Mortgage.</p> <p>Under the law of Ohio relating to chattel mortgages, which governs as to their validity and the rights of the mortgagee in bankruptcy proceedings in that state, a duly recorded mortgage given by a manufacturing corporation to secure bonds, which covers its stock in trade and provides that it may retain possession and sell any of the property in the usual course of its business and use the proceeds until default, is valid as between the parties, and when the mortgagee takes possession, either, with the mortgagor’s consent or under authority contained in the mortgage, his-title becomes complete as agaiqst general creditors of the mortgagor; and where such a mortgage was given more than four months prior to the bankruptcy of the mortgagor the taking of possession by the mortgagee within such four months with the consent of the mortgagor and as authorized by the terms of the mortgage, although with knowledge of the mortgagor’s insolvency, does not constitute a transfer or preference under Bankr. Act 1S98, § 60a, c. 541, 30 Stat. 5G2 [U. S. Gomp. St. 1901, p. 3445], as amended in 1903 (32 Stat. 799, c. 487 [U. S. Comp. St. Supp. 1905, p. G89]), since the lien so perfected by the taking of possession relates back to the date of the mortgage.</p> <p>2. Same — Mortgage on After-Acquired Property.</p> <p>A duly recorded chattel mortgage on after-acquired property under the law of Ohio is valid as between the parties, and becomes a valid lien as of its date as against the mortgagor’s general creditors when the property is taken into possession by the mortgagee. Hence such taking possession within four months prior to the mortgagor’s bankruptcy does not create a lien nor operate as a preferential transfer within Bankr. Act 1898, § 60a, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended in 1903 (32 Stat. 799, c. 487 [U. S. Comp. St. Supp. 1905, p. 689]).</p>

<p>1. Vendor and Purchaser — Payment of Purchase Money — Deduction fob Breach of Covenant.</p> <p>The rule that, where land subject to an incumbrance is sold in parcels successively to different purchasers, the parcels are chargeable in the inverse order of alienation, is applicable in a case where the owner of 'separate tracts of land devised them together, charged with the payment of annuities, and the devisee sold and conveyed them successively by warranty deeds to different purchasers, and the last grantee who has expended money to obtain a release of t)ie annuities cannot enforce eontribution from the prior purchasers, but is entitled under his covenant of warranty to deduct the entire amount so necessarily expended from a deferred payment of purchase money due the grantor.</p> <p>2. Same — Tendee Subject to Condition.</p> <p>A note given for the purchase price of land conveyed with covenants of warranty and against incumbrances, where there are existing incumbrances, is due at maturity only on condition that such incumbrances aré removed, and a tender of payment subject to such condition is good and stops the running of interest.</p> <p>[Ed. Note. — Dor cases In point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 344, 345.]</p> <p>Hook, Circuit Judge, dissenting.</p>

<p>Appeal from the United States Court of Appeals in the Indian Territory.</p>

<p>1. Territories — Territory Acquired by Cession Law Governing Property Rights.</p> <p>In a territory acquired by conquest or cession the laws affecting personal property rights and domestic relations as they existed between the people under the government from which the territory was acquired remain in full force until altered by the government of the United States or by the territorial government under1 its authority.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Territories, §§ 5, 6: vol. 29, International Law, § 9.]</p> <p>2. Bankruptcy — Priority of Debts — Community Property.</p> <p>By the civil law which is in force in New Mexico, except as changed by statute, community property acquired by either husband or wife during the marriage, whether by purchase or their individual or joint labor; is held by them as partners, being primarily a fund for the payment of community debts, and on the bankruptcy of a husband having only a community estate, the claims of an antenuptial creditor must be postponed until those of community creditors are satisfied in full.</p> <p>3. Statutes — Repeal op Existing Law-Hfto.</p> <p>Acts New Mexico March 20, 1901 (Sess. Laws 1901, p. 112), conceding that its purpose was to abolish the rule of community property can haye no retroactive effect to disestablish rights which had already attached to community property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 346.1</p>

<p>1. Railroads — Licensees—Death—Negligence—Evidence.</p> <p>In an action for Hie déath of a pedestrian while crossing defendant’s railroad track, the engineer and fireman of the engine that struck deceased, and two others who stood near by, and in front of the engine, testified that the bell was constantly ringing as the engine was being backed toward the place of the accident. Held that evidence of witnesses, who were not paying attention to the engine at the time, and were not necessarily in a position to have heard any bell ring or whistle sound before the accident, that they heard neither bell nor whistle, was insufficient to constitute a substantial conflict and warrant a finding that defendant was negligent in failing to ring the bell or sound the whistle.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 135S-1359; vol. 20, Evidence, §§ 2432-2435.]</p> <p>2. Same — Signal Lights.</p> <p>Where a witness testified that when he came up to defendant’s railroad track where decedent was hurt, he noticed there was no light on the tender of the engine that struck decedent, such evidence was sufficient to charge defendant with negligence in failing to carry a light on the rear of the tender of the engine to warn pedestrians of its approach.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 1358.]</p> <p>3.' Same — Licensees—Contributory Negligence.</p> <p>That defendant railroad company permitted the public, including decedent, to use its yards as a common passageway, and thereby obligated itself to observe ordinary care to avoid injuring them, did not relieve decedent from the obligation to use ordinary care for his own safety.</p> <p>[Ed. Note. — Eor cases ih point, see Cent. Dig. yol. 41, Railroads, §§' 891-897, 12&6.]</p> <p>1. Death — Presumptions—Self-Preservation.</p> <p>In an action for wrongful death, the presumption that decedent was in the exercise of due care based on the instinct of self-preservation is inai>plieable wherel the surrounding facts and- circumstances conclusively establish his contributory negligence.</p> <p>5. Railroads — Persons on Track — Licensees—Death—Contributory Negligence.</p> <p>Decedent, a man 39 years old, possessed of unimpaired senses of sight and hearing, undertook for his own purposes to cross defendant’s railroad tracks in a yard on a dark night when he knew engines and cars were liable to he constantly moving on them. On reaching one of the tracks on which a large road engine and tender was backing at the rate of six miles an hour, he stepped on the track and was run over and killed before he could escape. The engine was necessarily making much noise, and the bell was being constantly rung, though there was no light on the tender. Held; that the physical facts conclusively established that he was guilty of contributory negligence as a matter of law.</p> <p>[Ed. Noté. — Por cases in point, see Cent. Dig. vol. 41, Railroads, § 1294.]</p>

On Petition for W'rit of Prohibition. The following are the petition and exhibits referred to in the opinion: “The supplemental petition of Frank D. Zell respectfully shows unto the Court: “(1) That since the filing of his original petition for a writ of prohibition and the granting by this honorable court of the rule to show cause why a writ of prohibition should not issue (which said rule was granted at or about 3 o'clock on November 9, 1906), the Honorable Edmund…

.... ••'Writ of error, from the United-States Circuit Court for the District ofConnecticut, which sustained plaintiff’s demurrer to defendant’s, plea in abatement, overruled its demurrers and motions in arrest of judgment and for judgment notwithstanding -verdict, and rendered judgment .on .verdict in- favor 'of plaintiff. .. The opinions-of-the court-below are reported in 138-Fed. 1004. See 140 Fed. 800.

This cause comes here upon appeal from a decree of the District Court, Southern District of New York, which held both vessels in fault for a collision between the schooner Pavia and the S. S. Kaiserin Maria Theresa. The collision took place about 4:30 a. m., January 4. 1901, on the Atlantic Ocean, about two days’ journey from the port of New York, both vessels were westward bound, the steamer overtaking the schooner.

<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 Tennessee.-</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western Division of the Western District of Missouri, in Bankruptcy.</p>

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

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

<p>1. Criminal Law — Trial—Right to be Confronted by Witnesses.</p> <p>The accused, in a criminal case in the federal courts, has a right to be confronted by the witnesses, and through and by his counsel given an opportunity to be informed and advised of all the evidence that is submitted against him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1538.]</p> <p>2. Witnesses — Examination—Memoranda—Refreshing Memory.</p> <p>It was error, in a criminal case, to permit the district attorney to show certain documents, after they had been identified, to witnesses, for the purpose of refreshing their memory, without first submitting them to defendant’s attorney, on his demand for an inspection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 891.J</p>

. ... Writ of error by the plaintiff in the court below to review a judgment for the defendant entered upon a verdict directed by the court.

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

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

<p>In Brror to the Circuit Court of the United States for the District of Kansas.</p> <p>On December 14, 1903, one McNicol, of Wichita, Kan., made an application to defendant company for a policy of $5,000 on his life, payable at his death to his son, William D. McNicol, the plaintiff in this action. The applicant was bom May 8, 1863, and his age on December 14, 1903, for insurance purposes as determined by his nearest birthday, was 41 years; but, to get a reduction in premium corresponding to a year’s less age, he requested informally in his application that his policy be dated back to November 7th, which, if done, would secure for him the benefit of. a premium based on the age of 40, instead of 41, years. At the time of making the application he paid the local agent of defendant company at Wichita, in a manner satisfactory to him, the premium for the first year, taking a receipt therefor, with a proviso that, if the policy 'should not be issued by the company on his application, the amount of the payment should be returned to him by the agent. Pursuant to the usual practice, and as contemplated by him, his application was forwarded to the home office of the company in New York for its approval and acceptance. In due time the company determined that it would not accept the application or issue a policy on it, unless the applicant would make a certain amendment to it, formally requesting that the insurance should take effect as of November 7, 1903, instead of December 14, 1903, the date of the application, and agreeing that the accumulation period and the loan and nonforfeiting provisions of the policy should all relate back to November 7th. The company, finding the medical examination accompanying the application satisfactory, caused a policy of $5,000 to be prepared and executed in general conformity to the application, but attached to it a formal amendment of the application, conforming to its requirement as just stated, and returned them both to its local agent with instructions not to deliver the policy to the applicant until the amendment should be signed by the applicant and until he should pay the sum of $1.10 additional premium; the same being interest at the rate of 5 per cent, per annum on the amount' of the first annual premium from November 7th, when the policy was to become effective and when the premium was due, to December'14th, when the application was made for the policy and when the premium was actually paid. The local agent received the executed policy and the proposed amendment on January 7, .1904, and on that date wrote McNicoI, who lived some distance away, that the policy had arrived “straight as a string” and that he hoped to place it in his hands the following Sunday. When McNicoI received this letter on Friday, January 8th, he was sick, and, without any change in the facts of the case from those already stated, he died on the morning of Saturday, January 9th, without having received the policy or paid the additional premium or signed the amendment to his application. The beneficiary instituted suit on the policy in the Circuit Court. The court made a special finding of facts, in substance as just stated, and rendered a judgment in favor of the defendant. We are asked to reverse that judgment on this writ of error.</p>

<p>1. Bankruptcy — Petition for Review.</p> <p>On petition to the Circuit Court of Appeals to review orders of the District Court in bankruptcy proceedings, only questions of law arising out ol' the facts found or conceded can be considered.</p> <p>[Ed. Note. — Appeal and review in bankruptcy proceedings, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Real Estate — Leasing—Acts of Trustees..</p> <p>At the time of a bankrupt’s adjudication, certain of her real estate had been advertised for sale under an order of the state court, and was purchased at the sheriff’s sale by F., who immediately leased the farm for $1,200 for the succeeding year. The sheriff’s sale was not confirmed, and the land was finally sold by the bankrupt’s trustees. On the appointment of the trustees F. turned over to them the tenant’s note for the year’s rent, and they ratified, the lease, after which the tenant paid the note and raised a crop on the land of the value of $8,000. Held, that the trustees, after obtaining control of the land, properly ratified such lease as against the rights of the bankrupt</p> <p>3. Same — Interest in Land — State Courts — Judgment.</p> <p>Where, prior to the institution of proceedings in bankruptcy, the highest court of the state in which certain land belonging to the bankrupt was located, had held that W. had acquired title to an undivided one-fifth interest therein on foreclosure of a lien, for attorney’s fees, and the court in such action had jurisdiction both of the parties and subject-matter, such adjudication could not be collaterally attacked in the bankruptcy proceedings, and the trustees in bankruptcy therefore properly recognized W.'s interest in the land.</p> <p>4. Same — Sales—Price—Adequacy.</p> <p>Where land in which a bankrupt owned an undivided four-fifths interest was appraised at $6,000, and the bankrupt’s interest was sold for $1,600, the price was not so inadequate as to entitle the bankrupt to have the sale set aside.</p> <p>5. Same — Duty of Trustees — Continuance of Suit.</p> <p>Prior to a-bankrupt’s adjudication, she had contracted to exchange certain land freo from incumbrances for 40 city lots. When the bankruptcy adjudication was made, the bankrupt’s land was incumbered by a mortgage for $12,000 and a judgment lien for the services of an attorney. The owner of the lots refused to make the exchange, and the bankrupt had sued him to compel specific performance, in which lie had answered that he owned more than the 40 lots in question, and that the contract did not specify which 40 he was to convey. Held that, a demurrer to such defense having been overruled, the trustees properly refused to prosecute the suit further.</p> <p>6. Same — Sai.es—Acceptance of Bid.</p> <p>When certain of the bankrupt’s real estate was offered for sale, she offered to bid $10,500, but, being unable to deposit $1,000 earnest money or pay the amount of her bid, the auctioneer did not receive or cry her bid, and finally sold the property to another for $10,354. Held, that such sale was properly confirmed nearly a month thereafter; the bankrupt having taken no steps in the meantime to make good her bid.</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Illinois.</p> <p>The appellee, organized under the laws of Kentucky, and lessee of a railroad corporation organized under the laws of Illinois, had constructed and operated, long before the time of the controversy in question, its railway tracks across Seventh Street, in the City of East St- Louis, at the point in dispute.</p> <p>The appellant is a corporation organized under the laws of Illinois, authorizing the organization of street railroads, and is operating its street railway In the city of East St Louis, for the carriage of passengers and their hand baggage; 'never having done, and never having been authorized by its charter to do, a general railroad business.</p> <p>October 24th, 1904, the city council of East St. Eouis authorized appellant to construct and operate its street railroad upon Seventh Street, across the tracks of appellee; expressly providing that such crossing be at grade, and specifying the manner of construction and operation, including gates and such other safety precautions as were deemed necessary by the council.</p> <p>This crossing of its tracks at grade by the street railway, was resisted by the appellee — a petition invoking the jurisdiction of the Railroad and Warehouse Commission of the State of Illinois, to prevent such crossing, being filed October 22nd, 1904; to which petition appellant filed its answer, denying that the Commission had jurisdiction of the subject matter of the crossing. Notwithstanding this challenge of its jurisdiction, the Commission, December 16th, 1904, entered an order that denied the motion to dismiss, and forbade the construction and operation of the street railway as authorized in the ordinance granted by the city council, unless such crossing ,wa.s effected by an over head bridge.</p> <p>Certain correspondence ensued between the vice-president of appellant, and the general manager of the appellee — a correspondence that appellee construed as a threat that the appellee would, notwithstanding the order of the Commission complete its crossing at grade — whereupon a bill was filed, upon which, at final hearing, the decree appealed from was entered, restraining appellant from entering upon the right of way and railroad tracks of appellee at the point in dispute, or any point immediately adjacent thereto, except for the sole purpose of constructing and maintaining an over head bridge as prescribed by the Railroad and Warehouse Commission.</p> <p>The further facts are stated in the opinion.</p>

<p>1. Statutes — Construction—Title.</p> <p>The title of a legislative acfl cannot he so read into the body of it as to supply the absence of a substantive provision essential to the conferring of power and authority.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 44, Statutes, § 288.]</p> <p>2. Criminal Law — Offenses on Hot Springs Reservation — Jurisdiction of Commissioner. '</p> <p>Act April 20, 1904, 33 Stat. 187 [U. S. Comp. St. Supp. 1905, p. 365] entitled “An act conferring jurisdiction upon United States Commissioners over offenses committed in a portion of the permanent Hot Springs Mountain reservation, Ark.,” clearly contemplates the creation of a new office of commissioner clothed with special jurisdiction over offenses committed on the reservation, prescribing the fees, that rules of procedure and practice for “said commissioner” shall be prescribed by the District Court, for appeals to such court, etc., hut in the absence of any provision therein for the appointment of such commissioner is ineffective and the jurisdiction so conferred to try offenses cannot he exercised by any United .States Commissioner within the district or elsewhere.</p> <p>3. Same — Jurisdiction of District Court — .Appeal Erom Judgment Void for ■ Want of Jurisdiction.</p> <p>A United States District Court although having original jurisdiction of a criminal offense and also jurisdiction on appeal from the judgment of a commissioner cannot render a valid judgment of conviction on an appeal where the commissioner before whom the case was tried below on a complaint filed by a private individual was without jurisdiction •of the subject-matter of the offense even though the defendant took the appeal and appeared and submitted, to trial.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2573.]</p>

On appeal and cross-appeal from a decree of the District. Court for the Southern District of New York dismissing the libel and cross-libels and deciding that the collision between barge No. 19, in tow of the tug Gypsum King, and the steamship Jumna, and the subsequent collision of said barge and the schooner Gypsum Emperor with the New Haven Railroad’s pier No. 38, East river, was the result of inevitable accident.

<p>Banks and Banking — National Banks — Pkosecution of Offices fob Misapplication of Funds.</p> <p>Evidence that the cashier of a national bank overdrew his account, by means of cheeks which were not charged to his account, but carried in the drawer as eash and afterwards taken up by his note, all without the knowledge or consent of the board, is sufficient to warrant his conviction by a jury of misapplication of the bank’s funds, in violation of Rev. St. § 5209 Lü. S. Comp. St. 1901, p. 3497].</p>

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from an order of the District Court for the Southern District of New York confirming the report of a referee in bankruptcy, sitting as special master, which recommended that the bankrupt’s discharge be denied for the reason that the creditor who opposed his discharge had established the truth of the second specification filed by him, which is as follows: “Second, that (the bankrupt) as a partner and a member of the firm of T. W. Brown & Co., of Port Huron, Michigan, with fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy failed to keep any books of account, records or papers from which his true financial condition or interest in said business might be ascertained.” The petition in bankruptcy was filed and the petitioner was adjudged a bankrupt August 12, 1904. The order appealed from confirming the second specification, and refusing a discharge was entered December 1, 1905.</p>

<p>Removal of Causes — Want of Jurisdiction of Federal Court — Duty to Remand.</p> <p>Tbe removal by one of |two joint defendants of a cause wbich was not removable because of the absence of a separable controversy does not give the federal court jurisdiction, and the cause should be remanded at any stage, at the instance of any party or on the court’s own motion,' whenever such fact appears. '</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 218, 219.]</p>

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

<p>1. Principal and Agent — Compensation—Actions—Value of Services — Ev- • ■ IDENCE.</p> <p>Where, in an action for services under an alleged express contract to pay 10 per cent, of the price of certain sales of machinery made by plain-' tiff, defendant denied the contract as alleged, and averred that the agreement-provided- for a much smaller compensation, evidence as to the rea*sonable value of plaintiff’s services was admissible as'be'aribg on the question as to which agreement was made.</p> <p>2. Same — Payment—Time.</p> <p>Where, in an action for agents’ commissions on sales of machinery, the oral contract sued on did not provide as to the time when the amounts claimed should be payable, evidence as to the time usually fixed for the payment of similar commissions was admissible.</p> <p>3. Same — Question for Jury.</p> <p>Where, in an action for agents’ services in the sale of certain machinery, plaintiffs claimed for additional services rendered to defendants in the performance of certain contracts outside their general oral contract of agency, whether such extra services were incident to such contract or whether they were independent thereof was for the jury.</p>

<p>Bankruptcy — Appeal—Referee’s Findings — Review.</p> <p>Where an application for a bankrupt’s discharge was heard on briefs and the report of a referee overruling the specifications of objection, and the referee’s findings, so far as they were disputed, were amply supported by the testimony, an order denying the application will be reversed on appeal.</p> <p>rEd. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Illinois.-</p> <p>The plaintiff in error was the defendant below in suit of Thomas R. Davis to recover for personal injuries, and this writ is prosecuted from a judgment in favor of the latter. The parties are hereinafter referred to as plaintiff and defendant respectively, in such suit below. Jurisdiction is challenged for want of declaration or proof of diversity of citizenship. All other assignments of error rest upon the plaintiff’s version of facts, refusal of the court thereupon to direct a verdict in favor of the defendant and instructions which were given; but each question for review is free from complication.</p> <p>The plaintiff was a brakeman, in tbe service of tbe defendant railway company, and was injured while coupling freight cars, in making up a train in the railroad yards at Flora, 111., where the defendant inspected and repaired its cars. The work was under his direction, to, signal the gngineer for moving the cars, with the cars standing on a “coach track,” extending north and south, in four partings or “cuts,” before daylight in the morning— the train having been made up tbe previous day, with opportunity for inspection and repair. The plaintiff had taken the ear numbers, in readiness for coupling, and tbe engine was at the south end of the south “cut,” which embraced five or six cars, with the north one a refrigerator car; this was equipped with automatic couplers, having a lift lever which extended out on the east side of the car. An ordinary freight car similarly equipped, was next north of it, and they were not coupled, as the plaintiff discovered on attempting to couple the air hose; so upon his signals the engine pulled up the first cut a few feet and then backed to make tbe coupling. When the return movement commenced, the plaintiff stepped in between the cars to open the knuckle of the coupler on ’the refrigerator car, which was liable to he closed by movement of the car and does not open automatically. These couplers are provided with a lug pin to hold them in place when coupled, and a chain connects the lug pin to the lever, so that movement of the lever raises the lug pin; until raised the knuckle is locked by the pin and will not couple. To make the coupling, when the equipment is in order, the lever to raise the pin can he operated with one hand from the side of the car, but it is necessary to enter between the cars to open the knuckle by hand, if closed. ■ For this ' purpose, the plaintiff took hold of the levpr on the refrigerator car with his left hand to raise the pin, and reached with his right hand to open the knuckle; but then discovered that the chain was -broken so that the pin must-he raised by hand instead of lever, to release the knuckle. In his position, this required instantaneous change of hands, to remove the pin with the right and open the knuckle with the left hand; he attéiupted this, but the cars came together before he could accomplish both operations and his left hand was crushed. The defect, opportunity for inspection by tbe car inspector; aiid neglect therein chargeable ito flic defendant, are undisputed facts; and it is undisxmted that the plaintiff was not chargeable with duty as inspector, nor with notice of the defect. Upon submission of the several issues to a jury the verdict was for the plaintiff and judgment was recovered accordingly. -</p>

<p>1. Appeal — Mandate—Construction.</p> <p>Where the mandate on a former appeal provided that appellants veré liable for a sum sufficient to “pay all debts of every class which had or might be proved against the bankrupt, and the expenses of the trustee, his fee, and costs,” provided the aggregate did not exceed, the amount of the preference received by appellants’ testator, appellants were properly charged with a reasonable counsel fee to the trustee’s attorney.</p> <p>2. Bankruptcy — Preferential Payments — Expenses of Administration-Counsel Fees.</p> <p>The reasonable fee of counsel employed by a bankrupt’s trustee to recover a voidable or fraudulent preference made by the bankrupt constitutes a part of the trustee’s expenses, and, as such, a part of the costs and expenses of administration, entitled to preferential payment.</p> <p>3. Same — Excessive Allowance.</p> <p>Executors were held liable to repay to a bankrupt’s trustee, of an alleged preference, a sum sufficient to pay all debts of every class proved .against the bankrupt, and the expenses of the trustee, his fee, and costs. A fee of $15,000 was allowed to the trustee’s attorney, but the executors’ total liability was more than $7,000 less than the aggregate of the debts and expenses,- Including the allowance to counsel. Held, that such allowance was not excessive, In so far as such executors were concerned.</p>

<p>Collision — Tug with Tow and Anchored Dredge — Mutual Faults.</p> <p>A tug coming down the Hudson river at night with a long tow held in fault for a collision between her tow and a dredge anchored at the side of the- channel in a position known to the tug, and the dredge also held in fault for remaining at night in a place where by reason of a bend in the river it was difficult for vessels with long tows to pass her in safety.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10,- Collision, § 79.]</p>

<p>On Petition for Rehearing.</p>

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

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

<p>Injunction — Receiver of National Bank — Direction to Retain Funds • • Pending Suit.</p> <p>It is a proper exercise of discretion on the part of a’ Circuit Court to enjoin a receiver of a national, bank from transmitting a fund in his hands .to the treasurer of the United States pending the determination by the court of a preferential claim thereto.</p> <p>- [Ed. Note. — For cases in point* see Cent. Dig. vol. 27, Injunction, §§ '.86-90.):</p> <p>Townsend, Circuit Judge, dissenting.</p>

<p>CONTKACTi} — BBEAOIl—IMPLIED CONDITION.</p> <p>A contract by which one party was constituted the sole manufacturer1 and the sole sales agent for a machine under a patent owned by the' other, and required to manufacture and have ready for delivery at least 50 machines each year, provided there was sale for such number, placed upon such agent by implication the duty of - exercising reasonable’ diligence In endeavoring to market the machines, and rendered it liable for a breach of the contract if by reason of its failure to do so the required1 50 machines were not manufactured and sold each year. . '</p>

<p>.On Motion for Stay and for .Rehearing.</p>

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

<p>1. Patents — Suit fob Infringement — Defense of Anticipation.</p> <p>The defense of anticipation will not be considered in a suit for infringement of a patent where it is supported by tho introduction of a number of prior patents for complicated machinery without any explanatory testimony.</p> <p>, 2. Same — Infringement—Knitted Fabric.</p> <p>The Bell patent, No. 599,438, for a knitted fabric, if conceded patentable novelty, is of very narrow scope, and is not infringed by a fabric which has neither the groups of short and long loops of plush thread of the specification, nor the short and long loops of the claim.</p>

Appeal irpmithe Circuit Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, holding defendants guilty of infringement of claims 3 and 15 of United States letters patent No. 435,613, dated September 2, 1890, to Reynolds and Jacobs for book-sewing machines, and ordering injunction and accounting.

This cause comes here upon appeal from, a decree of the Circuit Court, Southern District of- New Xork, dismissing a bill for infringeiüeñt of United States letters patent No. 688,690, December 10, 1901,- to eóníplá-inants as assignees of George F. Read.

The appellant was the complainant below, in a bill for infringement of letters patent No. 622,403 issued to him, April 4, 1899. for “cell-case machine.” As stated in the patent, the “invention relates to the manufacture of cell-cases or ‘fillers’ for crates used in the transportation of fruit, eggs, etc.; one of its objects being to "provide simple and efficient mechanism to automatically produce from flat paper webs a continuous fabric comprising rectangular cells.”…

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

■ Appeal from the Circuit Court of the United States for the Southern District of New York. ^Defendant’s appeal from interlocutory decree of the United States Circuit Court for the Southern District of New York sustaining the validity of complainant’s patent, No. 676,084, and granting an injunction and accounting. The opinion of the court below is reported in. 145 Fed. 529.

_On appeal froth a decree of the Circuit Court for the Southern District of New York, holding valid and infringed claim 1 of letters patent, No: 580,000, granted April 6,1897, to Eugene Pringle, for an improvement in separable buttons. The opinion of the Circuit Court is reported in 143 Fed. 523.

Suit in equity to restrain alleged infringement of United States letters patent No. 565,276, dated August 4, 1896, to Fleazer Kempshall, assignor, to Theopolus King, trustee, for “button,” and for an accounting.

<p>On Petition for Order to Punish for Contempt.</p>

<p>1. Trusts — Mingling op Funds by Trustee — Right oe Beneeicjiary to Follow Proceeds.</p> <p>When n trust fund is mingled with other funds of the trustee, and the whole is invested in assets which come into the hands of a receiver, a trust will be declared in favor of the beneficiary, and a preference given in such assets.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 47, Trusts, §§ 520-525.]</p> <p>2. Same.</p> <p>The cashier of a national bank in Ohio, at the tune it went into, the hands of a receiver in insolvency, was a deputy county treasurer, and for about three months previously had been collecting taxes at the bank; the money so collected being mingled with the funds of the bank, and the amounts credited to an account kept in the name of the county treasurer. Neither of such officers had power under the state law to deposit money so collected or to part with title thereto. Of the funds of the bank with which such taxes were mingled, a portion remained during all of such time in the bank and came into the hands of the receiver, and the remainder was used in its general business, being invested in loans and securities, a part of which came into the hands of the receiver and were collected by him. Held, that the county was entitled to recover .from the receiver, as a trust fund, an amount of the cash taken possession of by him equal to the lowest cash balance remaining in tho hank at any time during the time the collections were being made, which was presumably a part of the trust fund not used, and also the proceeds of all loans collected by the receiver and made during'such time from funds with which the taxes collected had been mingled.</p>

<p>Collision — Tow and Anchored Dredge — Unnecessarily Obstructing Channel.</p> <p>A tug, with a tow of 23 boats in tiers, the whole 1,000 feet long and 100 feet wide, with helping tugs on the sides, passing through the Arthur Kill in the night, held not in fault for a collision between one of the rear boats in the tow and a dredge engaged in dredging the channel, which had been breasted off toward the Staten Island shore for the night, a distánce of about 50 feet from the side of the dredged channel; it appearing that it could have safely moved 60 feet further toward the shore, and therefore needlessly obstructed the passage of vessels and left insufficient room for such a tow to pass, in view of the reverse tide in the Kill.</p>

<p>Collision — -Tow and Anchored Deedge.</p> <p>A (lrodge, engaged, in government work in dredging a new channel in the Arthur Kill, at the close of work in the afternoon- was breasted off toward the Staten Island shore. During the night a collision' occurred between the dredge and one of the starboard scows in a tow of 22 arranged in tiers of 4 boats each, except the last tier. A preponderance of the evidence showed that the dredge was 100 feet or more south of the south line of the new channel and as near the shore as she could safely get, and that the tow had an available space of 500 feet in which pass. Held, that the collision must be attributed solely to the fault of the tug in failing to keep the tow at a safe distance.</p>

<p>1. Contempt — Proceedings fob Punishment — Joint Proceedings.</p> <p>A person charged with contempt not being entitled to a jury trial, the rules regarding indictments are not applicable to such proceedings, and two persons may be jointly proceeded against for contempt, although it consists in allege.d false sw.earing before the court.</p> <p>2. Same — Answer as Evidence.</p> <p>In a proceeding for contempt in a court of equity or bankruptcy, the answer of the respondent, though under oath, is not conclusive, and his denial of the contempt does not entitle him to a discharge.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 10, Contempt, § 172. j</p> <p>3. Bankruptcy — False Swearing — Punishment by Contempt Proceedings.</p> <p>False swearing in bankruptcy proceedings, although a criminal offense, is also a contempt of the court and punishable as such in summary proceedings.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Bankruptcy, I 385.]</p> <p>4. Same — Defeating Purpose of Examination.</p> <p>The duty imposed on bankrupts by Bankr. Act July 1, 1898, c. 541, § 7 (9), 30 Stat. 548 [U. S. Comp. St. 1901, p. 34-25], when present at the first meeting of their creditors to submit to an examination concerning the conduct of their business, their dealings with their creditors, etc., and under section 21a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3430], to be examined on order of the court concerning their acts, conduct, or property, involves the duty of answering truthfully and as intelligently and connectedly and fully as their mental equipment will permit, and their failure to do so is a contempt of court.</p> <p>5. Same.</p> <p>Bankrupts held guilty of contempt of the power of the court in failing to file schedules as required by the act and of the authority of the court in defeating or attempting to defeat justice by refusing to surrender their books of account, or to give any reasonable excuse for their disappearance, by swearing falsely on their examinations, and by persisting in giving vague, contradictory, and evasive answers to material inquiries.</p>

<p>CoPYBTGTrr — Suit fob Infringement — District of Suit.</p> <p>The provision of section 1 of the federal judiciary act of March 3, 1887 (24 Stat. 552, e. 373 [U. S. Comp. St. 1901, p. 5081), that no suit shall be brought in any other district than that whereof the defendant is an inhabitant, does not apply to suits arising under the copyright laws, as to • which section 11 of the judiciary act of September 24, 1789 (1 Stat. 78, c. 20), is still in force, and such a suit may be brought in any district in which the defendant can be found and served with process.</p>

<p>Lotteries — Nature oe Scheme — Distribution op Tickets Through Interstate Commerce.</p> <p>A scheme by which a prize is given to the person who obtains seven complete paper animals, the parts of one of which, to be put together, are contained in each package of a food product sold, but without anything on the outside of the package to indicate what animal is contained therein, has an element of chance in the purchase of the packages, and is a lottery scheme; and the conveying of a ticket or instrument purporting to represent a share or interest therein from one state into another constitutes a criminal offense, under Act March 2, 1895; c. 191, § 1, 28 Stat. 963 [U. S. Comp. St. 1901, p. 3178].</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Lotteries, §§ 21, 22.]</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers. . .</p> <p>For decision below, see ’G. A. 4,883 (T. D. 22,872), relating to importations at the port of New York.</p> <p>The character of the issues involved appears from the opinion of the- Board of General Appraisers, which reads as follows:</p> <p>FISCHER, General Appraiser. The merchandise in question consists of an article called “bone-size substitute.” It was returned by the local appraiser as a “preparation of starch,” and duty was assessed thereon at the rate of 1Vz cents per pound, under the provisions of paragraph 285, Schedule G, § 1, Tariff Act July 24, 1897, 30 Stat. 173, c. 11 [U. S. Comp. St. 1901, p. 1053]. It is claimed to be dutiable under the provisions of section 6 of said act-(30 Stat. 205 [U. S. Comp. St. 1901, p. 1093]),- at the rate of 20 per cent, ad valorem as an unenumerated manufactured article, or under the provisions of paragraph 3, Schedule A, § 1, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1027], as a chemical compound, at the rate of 25 per cent, ad valorem.</p> <p>Following the ruling laid down by the Supreme Court of the United States in the case of Chew Hing Lung v. Wise, 176 TJ. S. 150, 20 Sup. Ct. 320, 44 L. Ed. 412, we hold that this article is not dutiable as a preparation fit for use as starch. This article is used for stiffening the backs of corduroys and plushes, a use similar to that to which the tapioca flour, passed upon in the case above cited, was applied, and which the court held was not starching. The .tapioca flour was a starch chemically, but not commercially; and the article before us consists of chemical starch, dextrin, magnesium chloride,- and silica; but it is not a preparation fit for use as starch, nor is it a starch,either chemically or commercially. It appears also by the testimony that this article contains no. glue. It is therefore not the class of merchandise passed upon in G. A. 349, which was called bone-size and was therein held to be dutiable as an article similar to glue. ■</p> <p>We find that the merchandise in question is a chemical compound dutiable at the rate of 25 per cent, ad valorem under the provisions of paragraph 3, and sustain the protests to this extent, -and reverse the decision of the collector.- Proper reliquidation will follow.</p>

<p>1. Bankruptcy — Contracts with Bankrupt — Conditional Sales — Failure to Record.</p> <p>A contract between claimant and the bankrupt’s predecessor in business, which was continued by .the bankrupt, provided for the sale of vehicles to be shipped by claimant to the bankrupt, who assumed the risk thereof from the time they were loaded on the cars at the point of shipment. The bankrupt agreed to pay the freight, insurance, and taxes, and house the vehicles when received, and, to assume any loss by fire, flood, mobs, or any other cause, with or without his fault. The contract called the consignee the shipper’s factor, but contained no provisions for accounting, and, instead of providing for the return of unsold goods, provided that the consignee agreed to purchase and pay for such goods at net cash prices, at the option of the consignor, or, if defendant so''elected, the goods might remain in the consignee’s possession, under" the agreement, subject to future settlements. Held, that such agreement was a contract of conditional sale, and not a contract of agency, and was therefore void, as against the bankrupt’s trustee and creditors, for failure to record the same, as required by Rev. St. Mo. 1899, § 3412.</p> <p>2. Same — Regoed—!Time.</p> <p>The record of such contract, after the filing of a petition In bankruptcy against the buyer andNvhen the property was In the actual jwssession of the court’s receiver, but before adjudication in bankruptcy, was insufficient to save the seller’s rights to possession of-the property;</p>

<p>1. Divorce — Rights of Wife — Land.</p> <p>Where a trust patent for land previously allotted to Indians was Issued to the male allottee after his marriage to the female allottee, the right of the wife to an equitable share of the property on her being divorced solely on account of her husband’s fault, was within the exclusive jurisdiction of the court granting the divorce, and a suit by the divorced wife to secure an interest in such land will not lie.</p> <p>■•[Ed. Note. — For cases in-point, see Cent. Dig. vol. 17, Divorce, §§ 587, 589.]</p> <p>2. Indians — Lands—Allotment—Rights op Allottees.</p> <p>Act Cong. March 2, 1889, c. 405, 25 Stat. 892, provided that to each member of the Ponca Tribe of Indians who was the head of a family, there should be allotted 320 acres of the Great Sioux Reserve, to every single person over IS years of age, a one-fourth of a section, etc. The act also declared that on the approval of the allotment by the Secretary of the Interior he should cause trust patents to issue under which the United States should hold the land in trust for the allottee and his heirs for 25 years, etc. Complainant, a female member of the tribe more than 18 years old, was allotted ICO acres of land after th'e President’s proclamation that the act was in full, force, as was also another Indian whom complainant subsequently married. The selections were approved, anci more than four months after the President’s proclamation for the purpose of extinguishing the Indian tribes, the parties were married, after which each of them made other separate applications in lieu of their previous applications, in order to get adjoining land, but the trust patent was by mistake made out in the name of complainant’s husband for the entire land, as the head of the family. Sold, that the- fact that complainant and her husband married before actual allotment and the issuance of a trust patent did not deprive complainant of the right to the land for which she applied, which became vested in her on the President’s last proclamation, and that she was entitled to one-half the land patented to her husband.</p> <p>On Demurrer to the Bill.</p> <p>The bill alleges: That by the provisions of the act of Congress approved March 2, 1889, it was. among other things, provided “that each member of the Ponca tribe of Ihdians then occupying a part of the Old Ponca reservation, within the limits of the Great Sioux reserve, shaT be entitled to an allotment upon the said Old Ponca reservation, as follows: To each head of a family 320 'acres; to each single person over eighteen years of age one-fourth of a section; to each orphan child under eighteen years of age one-fourth of a section; and to each other perso'n under eighteen years of age then living one-eighth of a section.” 25 Stat. 892, c. 405. Another section of the act provided that, “upon the approval of the allotments by the Secretary of the Interior,, he shall cause patents to issue therefor in the names of the allottees, which patents should be of legal effect and declare that the United States does and will hold the lands thus allotted for the period of twenty-five years in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs, according to the laws of the state or territory where such land is located, and at the expiration of said period the United States will convey the same, by patent, to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever.” 25 Stat. 891, c. 405. That at the time-of the passage of said act, the complainant was a member of the Ponca tribe of Indians, who occupied the reservation in the state of Nebraska, and for a long time prior thereto, and for several years thereafter, she has always maintained her tribal relations with the said Ponca tribe of Indians. That she was born on the 26th day of July, 1870, and was, on the 2d day of March, 1889, living upon said Old Ponca reservation, within the limits of the Great Sioux reserve, in the said state of Nebraska, and was at the time an unmarried person more than 18 years of age. That shortly after the passage of said act of Congress of March 2, 1889, the United States, through its duly authorized officers, apprised and informed the Ponca Indians of the terms and pro visions of. the said act of Congress, to secure the consent of the tribe to the provisions of said act. That within six months after the passage of the act, the said Ponca tribe of Indians accepted the terms and provisions thereof. That about the month of July, 1889/ the complainant, in conformity with the provisions of said act of Congress, duly selected a tract of 1G0 acres of land within the said Ponca reservation, and duly notified the proper allotting agent of the United States of her said selection of said tract of land, and duly demanded of him that the same he allotted to her in severalty, according to the provisions of the said act of Congress of March 2, 18S9, and the said selection so made hy complainant was by the allotting agent of the United States duly approved.</p> <p>The bill further charges: That the defendant, David Sherman, is also a member of said Ponca tribe of Indians, living at the time of the passage of the act, and long prior thereto, upon said reservaüon, and maintaining his tribal relations with the said Ponca tribe of Indians, and therefore entitled, under the provisions of said ad: of Congress, to an allotment in severally of 160 acres of land, to be selected by him in said reservation. That some time in the summer of 1889 the said David Sherman did inalce such selection, which was approved by the allotting agent. That on the 13th day of June, 1890, the complainant and the said David Sherman were duly married in the state of Nebraska, and until 1lie month of November, 1897, continued to be husband and wife. That Immediately after their marriage they went to live at the home of the parents of Sherman, and while there living they agreed and decided between themselves that, as the allotments respectively selected by them were situated several miles apart, and for this reason too remote from each other to be used advantageously by each of them, they would try to select others. That thereupon the complainant, of her own volition, made the request to the proper allotting agent of the United States that. In lieu of land heretofore selected by her. she be allotted a different tract of 160 acres of land lying in said Ponca reservation, and described as follows: the south half of the northeast quarter and the north half of the southeast quarter of section 24, township 32 N., range 7 W.. and the lots numbered 2 and 3 in section IS), township 32 N.. range 6 W., said tract of land being at that time subject to selection and allotment to the members of said Ponca tribe, under the act of Congress. That this request of complainant was granted and approved by the allotting agent. That at the same time the said David Sherman agreed and declared that, in lieu of the 100-acre tract of land previously selected by him as aforesaid, he would select and take the remaining 106.31 acres of laud within the metes and bounds aforesaid, and in addition thereto, in order to make up the 160 acres to which he was entitled, a tract of land more particularly described as follows: Lot 1 in section 2, township 32 N., range 9 W., being a part of the land previously selected by him. That thereafter said original selections were, in consideration of said new selections, canceled; and in the fall of the year 1890 the complainant and said David Sherman moved upon and took possession of the tract of land described as the sont-h y2 of the northeast % and the north % of the southeast % of section 24, township 32 N., range 7 W., and the lots numbered 2 and 3 in section 19, township 32 N.. range 6 W., and continued to make their home at that place until the year 1897. That after the cancellation of said original selections by the allotting agent, as above set forth, on the 14th day of October, 1890, the schedule of allottments of the lands as provided for in the act of Congress was finally eompleied, and. on the 22d day of October, 1890, by the acting Commissioner of Indian Affairs, deposited in the General Land Office of the United States, and approved by the Secretary of the Interior, and upon said schedule of allotments It was wrongfully made to apjmar that the said David Sherman, as the head of the family consisting of himself and complainant, had been allotted the lands last-above described, together with lot numbered 1 in section 2, township 32 N., range 9 W., but of which fact, complainant alleges she had no knowledge. That on the 26tli day of May, 1891, a trust patent was by the United States issued, conveying said tracts of lands to David Sherman, which she says was erroneous, as they were each entitled to patents for 160 acres in severalty. That the trust patent was delivered to complainant and David Sherman together, and, with the consent of the said David Sherman, complainant took the same into her own possession, and it was understood and agreed between them that, In consideration of the premises, one-half of the land mentioned in said trust patent should belong to complainant and one-half to the said David Sherman, and that at the end of the 25-year period mentioned therein one-half thereof should belong absolutely to complainant and one-half to David Sherman. That neither complainant nor the said David Sherman made any effort or took any steps to have the said trust patent corrected, so as to include both names therein as grantees because of said complete and mutual understanding, and for the-iuttker reason that they understood from what had been said by the duly authorized agent of the United States that the said trust patent was a mere preliminary paper, and that ultimately, at the end of the 25-year period, they each of them would receive ICO acres of land. That complainant and David Sherman jointly controlled and retained possession of said lands, and that David Sherman at all times conceded and admitted the right of complainant to one-half thereof. That in 1897 complainant, on account of divers cruelties of the said David Sherman towards her, and on account of the habitual drunkenness of the said Sherman, was duly awarded a decree of divorce from the bonds of matrimony by a court of competent jurisdiction of the state of Nebraska, and was by said decree of divorce awarded the care and custody of the three minor children of the complainant and the said David Sherman; but that since the granting of said divorce, said David Sherman has excluded complainant from the possession, occupation, and control of the said tracts of land, and within the last few years has denied the right of complainant to any of said lands or the profits or proceeds therefrom. That since then the defendant David Sherman has intermarried with the defendant Dora Sherman, and one child has been bom of said marriage, who is now living. That she has répeatedly applied to the Department of the Interior of the United States to have the said trust patent corrected so as to include the name of complainant and David Sherman as grantees, and has repeatedly applied to-the said Department of the Interior to compel the said Sherman to permit her to participate in the control, possession, and rents, profits and proceeds of said land with the said David Sherman, and the said Department of the Interior has refused to accord to her any relief whatever.</p> <p>The prayer of the bill is for a decree adjudging her to be entitled to one-half of the lands described in said trust patent issued to- David Sherman on the 26th day of May, 1891, and that as to one-half of the rights and benefits conveyed by the said trust patent, David Sherman be decreed to have received the same in trust merely for the complainant, and that said trust patent be corrected so as to include the names of complainant and David Sherman as grantees therein, and a decree for mesne profits and all proper relief.</p> <p>The defendants demur to this bill.</p>

<p>In Fquity. On plea to the jurisdiction of the court.</p>

<p>1. Bankruptcy — Assets of Bankrupt — Interest in Real Estate — Evidence.</p> <p>Evidence held insufficient to justify a finding that a bankrupt had an interest in a farm, the title of which was in his father, which could be subjected to the payment of the bankrupt’s debts.</p> <p>2. Same — Preferences—Persons Benefited — Sureties.</p> <p>Bankr. Act 1898, c. 54, § 60, subd. B, 30 Stat. 562 |U. S. Comp. St. 1901, p. 3445.1, declares that if a bankrupt shall have given a preference, and the person receiving it, or “to be benefited thereby,” shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property, or its value, from such person. A bankrupt borrowed funds from certain foreign lenders, his father becoming surety on the notes given to' secure the same, and later the bankrupt, while insolvent to the knowledge of his father and under his advice, used the proceeds of the bankrupt’s business to pay such notes within four months before the bankruptcy proceedings were instituted. Hold, that the bankrupt’s father was a person “benefited” by such transaction within such section, and was therefore liable for the return of the money so paid.</p>

At Law. Motion to set aside verdict and for a new trial, on the ground the bond sued upon was not valid, because taken by a United States commissioner, who, it 'is alleged, was without authority to take a bail bond after the conviction of the accused, the principal in the bond, Charles C. Browne, on appeal to the Circuit Court of Appeals, and on the further ground that, assuming the bond to be valid, there was no proof the condition had been broken, and also that no interest…

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

On Inquiry as to Sanity of Prisoner. Alexander II. Chisolm, paying teller of the First National Bank of Birmingham, was indicted for embezzlement of its funds, and, on being arraigned, pleaded not guilty.

<p>1. Removal of Causes — Equity Suit — Diversity of Citizenship.</p> <p>In order to deprive a defendant of its right to remove a bill in equity filed in a state court to the Circuit Court of the United States on the ground of diversity of citizenship, the complainant must show that he has no remedy in equity in the federal court, that he has a remedy in equity in the state court, and that the existence of his remedy in the state court is based on a state statute, and not on a view of the ordinary jurisdiction of a court of equity different from that entertained by the federal court.</p> <p>2. Courts — Federal Courts — Equity Jurisdiction.</p> <p>A Circuit Court of the United States sitting In equity has no jurisdiction of a bill by insured under a tontine policy against the insurance company for an accounting.</p> <p>8. Same — State Courts — Equity Jurisdiction — Statutes.</p> <p>St. Mass. 1857, p. 548, c. 214, conferred on the Supreme Court “full equity jurisdiction according to the usage and practice of courts of chancery, in all cases where there Is not a full, adequate and complete remedy at law,” and Rev. Laws, c. 159, § 3, cl. 6, declares that the Supreme Judicial Court and the superior court shall have original and concurrent jurisdiction in equity of suits on accounts, the nature of which is such that they cannot be conveniently and properly adjusted and settled in an action at law. Held, that the latter section gave to the Massachusetts state courts equitable jurisdiction in an action by insured against the insuranee company for an accounting of profits on a tontine policy, -which was beyond the jurisdiction of the Circuit Court sitting in equity in such state.</p> <p>4. Removal of Causes — Adequate Remedy at Law — Repleading.</p> <p>Where a state court had jurisdiction in equity of a suit by a tontine policy holder against the insurer for an accounting which was not possessed by a federal court sitting in equity in such state, and complainant could not obtain adequate relief in a suit at law in the federal court, he would not he ordered to replead on the removal of the cause l'or diversity of citizenship, but the cause would be remanded to the state court</p>

<p>Libel in personam to recover wages and traveling expenses under a written contract by which the libelant was hired as chief engineer of a steamer on the Yukon river for the season of 1905, with wages at the .rate of $250 per month, and traveling expenses for return from the Yukon river to Seattle. Decree for libelant.</p>

<p>1. Shipping — Transportation of Immigrants — Regulation—Power of Congress.</p> <p>Congress bad power to pass Act Aug. 2,1882, c. 374 [U. S. Comp. St. 1901,; p.„2031], making it an offense for the master of a foreign vessel to omit to provide tables and seats at regular meals for immigrants or passengers, other than cabin passengers, bound to the United States and actually, brought to a port of landing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 2,. 527, 533.1</p> <p>2. Indictment — Certainty—Bill of Particulars — New Bill.</p> <p>An indictment against the master of a vessel transporting immigrants to a port of discharge within the United States, charging that there were no sufficient tables and seats provided for the use of such passengers, in violation of Act Cong. Ang. 2, 1882, c. 374 [U. S. Comp. St. 1901, p. 29311, though objectionable for failure to allege in what respects the insufficiency consisted, was not fatally defective, but the charge should be made more definite and certain by a bill of particulars or by a new indictment.'</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment arid Information, §§ 266-268.]</p>

In Equity. Creditors’ bill founded upon a judgment against E. J. Eeidlei, and return nulla bona, of a writ of execution. Heard on the merits, the issues raised by the pleadings being whether the judgment debtor and E. E. Eeidler, who died in Alaska, were copartners, and whether money which through probate court proceedings in Alaska had come into the hands of the widow of the deceased belonged to the alleged firm. Decree for complainant.

<p>Indictment for a Crime Committed on the High Seas. Founded upon Act Cong. February 9, 1889, c. 120, 25 Stat. 658 [U. S- Comp. St.. 1901, p. 3630]. Heard on special plea and objection to the jurisdiction on the ground that the defendant was first arrested in Alaska. Plea overruled.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For-decision below, see G. A. 4,864 (T. D. 22,804), which affirmed the i assessment of duty by the collector of customs at the port of New York. The article in controversy was assessed with duty, under the provision for rendered oil in paragraph 3, Schedule A, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 151 L'U- S..Comp.

<p>1. Grand Jury — Selection—Federal Courts — “Judicial District.”</p> <p>Act Cong. May 11, 1858, c. 31 (II Stat. 285), created the state of Minnesota into one federal judicial district, and Act March 3, 1859, e. 76 (11 Stat 402 LU. S. Comp. St. .1901, pp. 316, 446]), provided for the holding of terms of court in three different cities. Act April 26, 1890. c. 167, ’8 1, 26 Stat. 72 [U. S. Comp. St. 1901, p. 374], declared that, for the purpose of holding terms of court, the district of Minnesota was divided into six divisions, and section 6 that grand and petit juries should be summoned for each of the terms of such court, and the petit jury should be competent to sit and act as such jury in either the Circuit or District Court at such terms. Act Cong. July 12, 1894, c. 132 (28 Stat. 102 [U. S. Comp. St. 1901, p. 376]), provided that all criminal proceedings instituted for the trial of offenses against the laws of the United States arising in the district of Minnesota shall be brought, had, and prosecuted in the division of the district in which the offenses were committed. Held, that a federal grand jury was not required to be drawn from the division of the district in which the offense to be investigated was committed, but might be properly summoned from any portion of the state constituting “the district,” -regardless of the place where the prosecution was triable.</p> <p>2. Jury — Petit Jury — Selection—Federal Courts.</p> <p>Act Cong. April 26, 1890, e. 167, § 1, 26 Stat. 72 [U. S. Comp. St. 1901, p. 874], divides the judicial district of Minnesota into six divisions, and section 6 provides that the grand and petit juries shall be summoned for each of the terms of Circuit or District Court, and that the petit jury shall be competent to sit and act as such jury in either of such courts. Act July 12, 1S94, c. 132, 28 Stat. 102 [U. S. Comp. St. 1901, p. 376], requires all criminal proceedings instituted for the trial of offenses against the United States arising in the district of Minnesota to be brought, had, and prosecuted in the division of the district in which the offenses were committed. Rev. St. § 563 LU. S. Comp. St. 1901, p. 455], confers on District -Courts of the United States jurisdiction of all crimes and offenses cognizable under the authority of the United States committed within their districts, and Const. Amend. 6, declares that in all criminal proceedings the accused shall enjoy the right to a trial by a jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. JJeld, that a petit jury for the trial of federal offenses arising in Minnesota might be properly summoned from any portion of the state, and that accused was not entitled to a jury exclusively summoned from the division of the district in which he was triable.</p> <p>3. Criminal Law — Appeal—Continuance—Discretion—Review.</p> <p>The denial of an application by accused for a continuance will not be reviewed on a writ Of error, in the absence of a showing that the trial court’s discretion was abused.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3045-3049.]</p> <p>4. Same — Continuance—Infirmity op Accused — Discretion.</p> <p>Accused, an aged bank president, was arrested February 6, 1905, charged with violating the national banking law, and was indicted on June 9th. In the meantime he was in his usual state of health, but was quarantined because of a contagious disease in his family. After an unavailing demurrer to the indictment and the entry of a plea of not guilty, he applied for a continuance on physicians' affidavits that he was in such a feeble and weak condition that he was unable to endure the strain attendant on a protracted trial, and his own affidavit that he was so infirm as to be unable to máke the" requlslté preparation for trial.</p> <p>A counter affidavit alleged that the government’s witnesses were all aged and infirm, and for that reason their attendance at the next term of court was uncertain. The court denied the continuance, reciting in its order that the trial could be conducted in short sessions, and set the case for trial on June 21st. On that day a similar motion was unsuccessfully made before another judge, and after the government had closed its ease on June 30th the hearing was adjourned to July 5th. Held, that the denial of the continuance was not an abuse of discretion.</p> <p>5. Same — Indictment—Demurrer—Prejudice.</p> <p>Accused was indicted for violating the national banking act under an indictment containing 27, counts. He demurred unsuccessfully to 10 counts, and was found guilty on 24, and sentenced to a term of 8 years in the penitentiary on each count, with a provision that time should run on all concurrently. Held that, as the sentence did not exceed that which might rightfully have been imposed on any one count, defendant was not prejudiced by the overruling of his demurrer to 10 counts of the in- , dictment.</p> <p>6. Same — Motion in Arrest — Time.</p> <p>While accused may raise the question of the sufficiency of the Indictment to charge a public offense by motion in arrest of judgment, it is better practice to raise the question by demurrer.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 15, Criminal Law,</p> <p>§ 2454.]</p> <p>7. Indictment — Sufficiency—Statutes.</p> <p>Under Rev. St. § 1025 [U. S. Comp. St. 1001. p. 702], providing that, so far as possible, consistent with assuring accused a fair and impartial trial, the court shall disregard form, imperfection of statement, and unimportant defects which do not reasonably tend to prejudice accused, an indictment is sufficiently certain if it alleges facts sufficient to enable accused to make his defense, and to plead the judgment in bar of any further prosecution for the same offense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 177-179.J</p> <p>8. Same — Construction of.</p> <p>Technical accuracy must yield to the fair and obvious meatiing of the language employed, when tested by the ordinary rules of construction, and regard must be had to the necessity of punishing the guilty, as well as acquitting the innocent.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 27, Indictment and Information, § 174.]</p> <p>9. Banks and Banking — National Banking Act — Violation—Indictment.</p> <p>A count in an indictment for violating the national banking act alleged that accused, as' president of the bank, made an entry in tiie bank’s daily journal of the words and figures following: “Other Real Estate, A. Barton Farm, $3,350.00;” that the entry indicated that the south half of a specified quarter section of land was a certain SO-acre tract known as the “Barton Farm,” and was an asset of the bank in the sum of $3,-350.00; that the entry so made was false, in that the same described land was not then and there an asset of the bank of the value of $3,-350.00, or of any sum whatsoever. Held, that such count was not defective as failing to charge that the A. Barton farm was known or described .in accordance with the description recited, or was identified therewith, or because it was not charged that the A. Barton farm was not an asset of the bank.</p> <p>JO. Same — False Reports.</p> <p>Rev. St. § 5209 TU. S. Comp. St. 1901, p. 3497], provides that every president of a.national bank who makes any false entry in any book or report of the association, with Intent to injure or defraud It or any other person, company, or body politic or corporate, shall be guilty of a misdemeanor, etc. Held, that an indictment under such section, alleging that accused, while acting as president of a national bank, made a false entry In a report to the Comptroller of Currency, that the- lawful money reserve in the bank, consisting of gold coin, was $23,955, when in fact the bank only had $21.955 in gold coin as lawful money reserve, was not objectionable for want of an allegation that the lawful reserve exceeded the amount the hank actually had on hand; the gist of the offense being the making of false entries in the report.</p> <p>11. Same — Intent to Deceive.</p> <p>Rev. St § 5209 ITT. S. Comp. St. 1901. p. 34971, provides that, If any president of a national hank makes any false statement concerning the association with intent to injure or defraud the association or any other company, body politic, or any individual person, or to deceive any officer of the association, or any agent selected to examine the affairs! of any such association, he shall be guilty of a misdemeanor. Held that, where the president of a national bank made a false report to the Comptroller of the Currency with intent to deceive an examiner who might be appointed to make,an examination of the bank, as provided by section 5240 LU. S. Comp. St. 1901, p. 3510], such act constituted an offense, irrespective of the existence of any other incidents disjunctively mentioned in section 5209.</p> <p>12. Same — Evidence.</p> <p>In a prosecution of the president of a national bank, evidence held sufficient to justify a conviction for willfully misapplying the bank’s, funds, and converting the same to the use of himself or others,- in violation of Rev. St. § 5209 [U. S. Comp. St. 1901, pp. 3491, 3497].</p> <p>13. Same — Evidence—Certificate of Comptroller of Currency.</p> <p>Where a certificate of the Comptroller of the Currency recited that a certain bank had complied with all the provisions of the act of Congress of July 12, 1882, authorizing an extension of the corporate existence of such banks, and declared that the bank was authorized to have succession until November 21, 1908, such certificate was conclusive evidence, in a prosecution of the president of the bank for violating the national bank act, of a compliance by the bank with all necessary conditions precedent to the extension of its charter.</p> <p>14. Same-National Bank Charter — Extension—Acceptance.</p> <p>Where a national bank continued its existence and performed the functions of such an association after the expiration of its original corporate existence for a long period of time, it would be presumed to have accepted the benefit of a certificate executed by the Comptroller of Currency extending its corporate existence.</p>

Circuit Court of the United States for the Northern District of Texas.

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

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

<p>1. Bankruptcy — Involuntary Bankrupt — Natural Person Not Engaged in Manufacturing or Trading May Be.</p> <p>A natural person may be adjudged an involuntary bankrupt, although he is not “engaged principally in manufacturing, trading, printing, publishing or mercantile pursuits.” The quoted clause qualifies “any corporation” only. TJ. S. Comp. St. 1901, p.'3423, § 4b, 30 Stat. 547, c. 541, § 4b.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 40.</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Gaming — Wagers—Contracts for Future Delivery Valid — Intention of-Parties to Settle Between Themselves on Differences Makes Wagers and Void.</p> <p>Contracts for the purchase and sale for future delivery of grain or other personal property are lawful and valid. But the intention of the parties to such a contract to discharge their obligations under it by the payment by one of the parties to the other of the difference between the contract price and the market price of the commodity sold, and never to make or accept, any delivery, renders the agreement a wager and makes it void.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gaming, §§ 22, 25.]</p> <p>8. Same — Intention to Sell Contract Before Time of Performance Does Not Avoid.</p> <p>A sale of a contract for future delivery, or of rights under it, before the time of delivery, is not unlawful. An intention by tbe parties to such a contract to sell it, or to sell their rights under it before the day of delivery, so that they will not deliver or receive any of the contracted commodity does not make the contract a wager nor avoid it. Ponder v. Jerome Hill Cotton Co., 40 C. C. A. 416, 420, 100 Fed. 373, 377.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gaming, § 22.]</p> <p>4. Same — Intention to Settle by Set-Off and Ringing Off Does Not Make-Contract Wager nor Avoid It.</p> <p>'The settlement of the obligations of such contracts by set-off and by ringing off and by paying the differences according to the rules and practice of the Board of Trade of Chicago is not unlawful. The intention of the parties to such contracts to discharge their obligations under them as far as possible by set-off and by ringing off in this way, and to receive or to deliver only that portion of the contracted commodities for which they may be unable to settle in that way, is not illegal, and does not render the contracts or transactions wagers or void. Board of Trade v. Christie Grain & Stock Co., 25 Sup. Ct. 637, 198 TJ. S. 236, 248, 249, 49 L. Ed. 1031.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 24, Gaming, § -22.]</p> <p>5. Evidence — Proof of Wrong to Avoid Contracts Must Be Clear — Facts —Conclusion.</p> <p>The legal presumption is that parties to contracts valid on their faces intend in good faith to perform them. One who would avoid his contracts and escape their obligations by his own wrong should establish it by clear proof. A speculator dealt in about 14,000,000 bushels of grain, and less than-2 per cent, of it was delivered. He made contracts valid on their faces for the purchase of grain for future delivery through brokers who were members, respectively, of the Board of Trade of Chicago or of the Merchants’ Exchange of St. Louis and became indebted to them for balances of account. He testified that he did not intend to deliver or to receive any grain under his contracts unless forced to do so in order to prevent his contracts from being closed out under the rules of the board or the exchange. Held, this evidence did not establish an illegal intention, because it did not disclose a purpose to settle the obligations of his contracts by paying to, or receiving from, the other parties thereto the differences between the contract prices and the market prices at the times of delivery, but it was consonant with an intention to settle the obligations of his contracts as far as possible by set-off and by ringing off and by the payment of differences in accordance with the rules of the board and to deliver and receive that portion of the contracted grain for which he could not thus settle, and this was not an unlawful intention, and did not render the transactions wagers or void.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 20, Evidence, § 84]</p> <p>(5. Insolvency — Evidence—Sufficiency.</p> <p>Proof that one had.property of the value of only about $50 and that he owed more than $25,000 in July, and that he paid no part of this indebtedness during tlie succeeding four months, is sufficient evidence that he was insolvent in the following October and December. A condition of insolvency is presumed to continue as long as such conditions usually continue under similar circumstances.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal and Error — Requested Judgment oe Nonsuit Not Reviewable.</p> <p>No writ of error will lie at the suit of a plaintiff to review a judgment of nonsuit or dismissal rendered in a national court at his request or with his consent. Such a judgment, however, rendered on the motion of the defendant and against the objection and the protest of the plaintiff is reviewable. at the latter’s instance.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 717-723, 883.]</p> <p>2. Same — Calling an Invited Nonsuit “Involuntary” is Futile — Facts— Conclusion.</p> <p>At the close of a trial the defendant moved the court to instruct the jury to return a verdict in its favor, and its motion was granted. But before the instruction was given the plaintiff asked, and was granted, leave by the court to take an involuntary nonsuit, and a judgment was rendered accordingly. Held, the nonsuit was entered with the consent and at the request of the plaintiff, and no writ of error could be maintained at his suit to review it. Describing it by a false epithet did not change its character.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 883.]</p> <p>3. Courts — Appeal and Error — Act op Conformity (Rev. St. § 914) Inapplicable to Appellate Courts and Proceedings eor Review.</p> <p>The act of conformity (section 914, Rev. St [U. S. Comp. St 1901, p. 684]) has no application to the practice or proceedings of appellate courts or to matters relating to bills of exceptions, motions for new trials, or any other means adopted to secure a review of the judgments or decrees of the Circuit or District Courts. Its effect is limited to the practice and proceedings jn the trial courts to secure their judgments.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 914.]</p> <p>4. Same — Power and Practice op National Appellate Courts Unaffected by Statutes of States or Practice of Their Courts.</p> <p>The power and practice of the federal appellate courts are derived exclusively from the Constitution, the acts of Congress, the common law, rhe ancient English statutes, and the rules and practice of the courts of the United States, and they are neither controlled nor affected by the statutes of the states or the practice of their courts.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, | 937.]</p> <p>(Syllabus by the Court)</p>

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

<p>In Error to ¿the Circuit Court of the United States for the Southern District of Mississippi.</p> <p>The defendant in error is the editor and publisher of a newspaper m Vicksburg, Miss., .called the “Vicksburg Evening Post.” On October 31, 1901, he published in said paper a special telegram from Jackson, Miss., as follows:</p> <p>“Jackson, Miss., Oct. 31. — Word reaches here from Oxford that Miss Lucy Leeton, the woman who filed' a sensational breach of promise suit against former United States Senator W. V. Sullivan several months ago, will leave. Washington in a few days to prosecute case, and that she will he represented In the proceedings by one of the ablest attorneys in the National Capita!.</p> <p>“Miss Leeton .has been spending the' last several weeks in the town of Oxford, Ex-Senator Sullivan’s home, and an exciting affair occurred in the justices courtroom at that place Saturday, in which both of the participants in the breach of promise suit were parties.</p> <p>“A civil proceeding against Miss Leeton was being tried, and,, somewhat in contrast to his former attitude toward the woman, Ex-Senator was in the role of an attorney prosecuting the claim of a local drygoods firm for debt. Miss Leeton was represented by Hon. O. L. Sivley. The main point at issue was whether she was a nonresident, and therefore liable for attachment. During the proceedings, one of the witnesses questioned the chastity of Miss Leeton, provoking some sulphurous language from her lips, and' the witness drew a gun and threatened to kill her. Miss Leeton attempted to borrow a gun, .evidently with the purpose of shooting her traducer, who had in the meantime been taken in charge by friends, and there was great excitement in the courtroom for several minutes, effectually breaking up the proceedings. Miss Leeton declared that the gun pointed at her by the witness belonged"'to Ex-Senator- Sullivan, and of this she was positive, having kept the weapon for him three years.”</p> <p>On the 2d day of November, 1901. Ex-Senator W. V. Sullivan, of Oxford, Miss., handed in to the office of the Western Union Telegraph Company at Oxford, .to be forwarded over the company’s lines to Vicksburg, Miss., the following written message:</p> <p>... ‘-‘Vicksburg Evening Post: Your article in issue of Thursday is a dirty lie as you know. ■ Who is responsible? ■ You nasty dog. Answer.</p> <p>“W. V. Sullivan.”</p> <p>At the time this message was handed in to the office, there was no agent of .the company present, but there was present one Scott Nichols, a boy, -who assisted.the agent in other lines of business. Nichols received the message and forwarded. it by sound over the wire of the company to Memphis, Tenn. At Memphis the message was received by sound, there written out and placed on the transmission hook from which it was taken by an agent of the company and forwarded to the agent at Vicksburg. In Vicksburg it was written out by the agent who received it, and handed to a messenger hoy, who took a letter-press copy of the same, and inclosed it in a sealed envelope and thus delivered it to the defendant'in error, who two days afterwards exploited the message as one from Sullivan, and gave his reply thereto in his evening paper.</p> <p>This suit is one brought by Cashman, editor and publisher, against the telegraph .company. .1;o recover. damages to his fame, business,-. reputation, mental suffering, etc. The declaration, as amended, contains two counts, in the first of which it is charged that “the telegraph company did wickedly and maliciously write and publish and cause to be written and published of and concerning the plaintiff a false, scandalous, malicious, and defamatory libeland in the second count the same charge is made with the same indefiniteness, but added thereto is the following: “Plaintiff says that the said false, scandalous, malicious, and defamatory libel was published by defendant contrary to the statute of the state of Mississippi with a view to insult the plaintiff, and to lead him to commit violence and a breach of the peace.” The bill of exceptions contains all the evidence submitted on the trial of the case, showing substantially as above set forth.</p> <p>After the evidence was all in, before the jury retired, plaintiff in error, through his counsel, requested the court to give to the jury, among other charges, the following special instructions: “(1) The court instructs the jury to find a verdict for the defendant. (2) The court instructs the jury for the defendant, that in fixing the amount of damage to be awarded to the plaintiff, by reason of contents of message complained of being made known to the employes of defendant, as hereinbefore stated, they should also take into consideration the fact that under section 1301 of the Annotated Code of Mississippi it is a misdemeanor for a clerk, operator, or messenger, or other employ? of a telegraph company to use, or suffer to be used, or willfully to divulge to any one but the person for whom it was intended, the contents of a telegraphic message intrusted to him for transmission or delivery, or the nature thereof, punishable by a fine of not more than S200, or by imprisonment in the comity jail not exceeding three months, or both; and, further, tlmt the evidence fails to disclose that the contents of the message complained of was ever disclosed l>y any clerk, operator, or messenger or any other employe of the defendant. (3) The law presumes that every one acts rigid fully and in accordance with law, and there is no evidence in this case to. show that any one knew of the contents of the message in question, except four employes of the company, who, under section 1301 of the Annotated Code of Mississippi, could not disclose the contents of said message without being guilty of a misdemeanor, and upon conviction could be fined not more than $200, or by imprisonment in the county jail not exceeding three months, or both, and that there is no evidence in this case that said employes ever disclosed the contents of this message to any one, and the jury should take that fact into consideration in assessing damages, if any were suffered by it.”</p> <p>The court refused to give these instructions, and exceptions to such refusal were seasonably taken. There was a verdict and judgment for the plaintiff for $5,000 damages, and the defendant sued out a writ of error.</p>

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

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

<p>1. Sales — Contract—Time for Delivery — Anticipatory Breach.</p> <p>Plaintiff contracted to deliver 1,000 bales of cotton, of specified grades and at specified prices, on or before October 15, 1905, to a carrier, according to shipping directions to bo furnished by defendants; plaintiff to pay cost and freight to Eiverpool. About October 3d the point of delivery was changed; plaintiff agreeing to deliver at its warehouses in Birmingham and Decatur, Ala. On October 4th defendants sent an agent to Birmingham to receive cotton to be tendered there, and he, after accepting .100 bales, refused to examine or accept more, because the cotton tendered was not equal in staple to the contract quality. The agent was requested to go to Decatur and examine cotton to be tendered there, but refused, and on October 7th defendants, claiming a violation of tlie contract, gave notice of cancellation and thereafter refused to accept any further tenders. Held, that plaintiff liad until October 15th in which to tender cotton complying with the contract, and that defendants’ refusal to inspect and accept was premature, and entitled plaintiff to recover damage as for a breach of contract.</p> <p>fFd. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, §§ 222, 223, 302.]</p> <p>2. Same.</p> <p>The rules applicable to an anticipatory breach of a contract apply as well to one party as to the other. The general rule applicable,to a contract for sale and future delivery of articles not specifically designated is that a buyer cannot reject a. dejivery conformable to tbe contract, wlien made in time, merely because there bad been, a prior tender of goods not conformable and rejected on that ground.</p> <p>3. Corporations — Foreign Corporations — Doing Business WIithin State.</p> <p>Plaintiff, an Alabama corporation, with no warehouse, office, or domicile in Tennessee, contracted through a broker in Tennessee to sell cotton to defendants, ta be delivered to a carrier in Alabama for- foreign transportation and delivery. Held, 'that such transaction constituted interstate, and not local, commerce, and that plaintiff was not, ‘ therefore, doing business in Tennessee, within a statute of that state regulating foreign corporations.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 12, Corporations, §§ 2520-2527.</p> <p>Foreign corporations “doing business” in state, see Wagner v. J. & G. Meakin, 33 O. C. A. 585; Ammons v. Brunswick-Blalce-Collender Co., 72 O. C. A. 622.]</p>

<p>Master and Servant — Injuries to Servant — Defective Machinery — Negligence — Question for Jury.</p> <p>In an action for injuries.to plaintiff while in the employ of defendant railroad company, caused by the blowing out of a plug which had been placed in the crown sheet of a locomotive on the inside of the fire bos, evidence livid to require submission of the question of defendant’s negligence in inserting the plug, etc., to the jury.</p>

<p>1. Trial — Direction of Verdict.</p> <p>A question of law arises at the close of the evidence whether there Is any substantial evidence on which a verdict can be sustained in favor oí the party producing the evidence, and, if there is no such evidence, it is the duty of the court to direct the jury to return a verdict against them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 339, 376-380.]</p> <p>2. Mines and Minerals — Locations—Assessment Work — Performance-Evidence.</p> <p>In a suit to quiet title to a mining claim, evidence held insufficient to establish that the persons under whom defendants claimed title to the ground under a prior location had performed the assessment work required by Rev. St. 1878, § 2324 [TJ. S. Comp. St. 1901, p. 1426], so as to hold the ground against plaintiff’s subsequent loeation-</p>

<p>1. Railroads — Injuries to Licensees — Negligence—Question fob Jury.</p> <p>In an action against a railroad company for killing the superintendent of a milling company by crushing him between certain ears and a wooden spout or chute through which grain was loaded from the mill into the cars, evidence held to require submission to the jury of the question of defendant’s negligence in backing the cars onto the switch without notice to decedent.</p> <p>2. Trial — Instructions—Credibility of Witnesses.</p> <p>An instruction that a witness might be' contradicted, not simply by a witness swearing to the opposite, but by the improbability of his story, and by anything, either in the testimony as given or in the circumstances of the'case presented, which in the judgment of the jury tended to discredit the witness’ statements, the jury being required to ascertain the truth by the exercise of common sense, etc., was proper.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 531-533.]</p> <p>3. Death — Actions—Parties—Beneficiaries.</p> <p>Under the Ohio wrongful death act, providing that the recovery shall be for the exclusive benefit of the wife or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused, the recovery to be apportioned among the beneficiaries with reference to their age and condition and the laws of descent and distribution of personal estates left by persons dying intestate, where decedent died leaving a father and rnother and brothers and sisters, the action was properly brought for their joint benefit, and not for the ben'efit of decedent’s next of kin, excluding his parents, though on decedent’s death his personal estate would have passed to his brothers and sisters, and not to his father and mother; as provided by Ohio Rev. St. 1906, §§ '4153, 4159. / <. '</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, §§ 47, 48.]</p>

This cause comes, here upon cross-appeals from a decree of the District Court, Southern District of New York, holding the respondent, who was operating the S. S. Vimeira under a time charter, liable for one-half the damages sustained by libelant by reason of the sinking and total loss of his barge James F. Ogden and her cargo.

<p>1. CABECEES — INJURIES TO PASSENGEBS — BUEDEN OF PKOOF.</p> <p>In an action against a carrier for injuries to' a passenger, the burden of proof of negligence is on the plaintiff, and cannot be shifted to the defendant without showing that the injury in question was caused by some person or thing connected with the carrier’s railroad or business of transportation.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 9, Carriers, §§ 1283-1294.]</p> <p>2. Same — Evidence.</p> <p>In an action for injuries to a passenger by a missile coming through an open ear window, plaintiff’s evidence was that the missile entered through an open window on the side next to a passing freight train, that it was a bolt with a nut on the end of it," and that such bolts were largely used in constructing ordinary freight cars, while, on the other hand, there was evidence that the missile was thrown through an open window on the opposite side of the car by one of several boys who were pelting the train as it went by them. H'eld, that the evidence as to whether the missile came from a source for which the carrier was responsible was insufficient to justify a verdict against it, and that a verdict should, therefore, have been directed in its favor.</p>

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

<p>1. Bankruptcy — Court op Bankruptcy — Power to Amend Furor. Orders.</p> <p>A court of bankruptcy has power to amend an order of discharge at any time before the proceedings in the case have been closed provided such amendment will not affect vested rights.</p> <p>2. Same — Discharge —Faiitnebsiup Debts.</p> <p>Partnership creditors may prove their claims against the estate of a bankrupt partner, although entitled to share only in the surplus of his estate after his individual creditors have been paid, and where their debts have been scheduled, and they have had due notice of the proceedings, the bankrupt is entitled to a discharge from such debts as well as his individual debts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 778.]</p>

<p>Injunction — Grounds—Inducing Breach of Contracts.</p> <p>An order granting a preliminary injunction restraining defendants from inducing complainant’s customers to violate tbeir contracts by selling a proprietary medicine manufactured by complainant to defendants, contrary to tbe terms of their said contracts, considered, and affirmed.</p> <p>Wallace, Circuit Judge, dissenting.</p>

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

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

<p>1, Patents — Contributory Ineringe ment — Induoinq Purchaser to Violate License Restriction.</p> <p>Complainant manufactured, a patented duplicating machine known as the “rotary mimeograph,” and sold the same subject to a license restriction that it might be used only with paper and ink and other supplies made by complainant. Defendants made a special ink designed for use on such machine and similar ones and with knowledge of such restriction sold the same to the owner of one of complainant’s machines for use thereon, advising that it be placed in one of complainant’s cans. Held, that defendants were chargeable with contributory infringement of the patent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 401.</p> <p>Contributory infringement of patents, see note to Edison Electric L. Co. V. Peninsular Light, P. & H. Cov 43 C. C. A. 485.]</p> <p>2. 'Same — Suit fob Infringement — Equity Jurisdiction.</p> <p>The fact that a complainant which made and sold a patented machine subject to a license restriction that it should be used only with ink made by complainant, requested a purchaser of one of its machines to give defendants an opportunity to sell her ink for use thereon does not relieve defendants from the charge of contributory infringement where they made such sale with full knowledge of the license restriction, and for the purpose of inducing and procuring its violation by the purchaser, nor does the fact that complainant suffered no damages preclude it from maintaining a suit in equity to enjoin such infringement.</p>

<p>Patents — Infringement—Mechanical'Movement.</p> <p>The Schroeder patent, No. 535,465, claim 1, for means for operating washing machines as construed in prior adjudications, and limited by the ■ prior art, held not infringed, on a motion for a preliminary injunction.</p>

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

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

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

<p>Costs — Patent Suits — Expense of Feinting Exhibits.</p> <p>The expense of printing exhibits in a patent case is not a taxable disbursement, in the absence of a rule of court making it so.</p> <p>LKd. Note. — For cases in point, see Cent. Dig. vol. 13, Costs, § 660.]</p>

<p>1. UOEPOKAITONS — STOCKHOUHiBS’ ACTIONS — PAI5TIES—JOINDER.</p> <p>In a suit by a stockholder of a corporation to obtain an accounting as to certain corporate transactions, the reissue of smaller stock certificates, ratification of an issue of stock dividends by tbe corporation, and other relief, there was no such- community of interest between the corporation and its president and secretary as authorized their joinder, in the absence of fraud, as parties to tbe suit</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §' 719.]</p> <p>2. Pleading — Facts ok Conclusions — Fraud. ,</p> <p>In a suit against a corporation and its president and secretary, it is insufficient, that the bill charge that the acts complained of were fraudulent without the allegation of facts showing fraud.</p> <p>[Ed. Note.- — -For cases in point, see Cent. Dig. vol. 12, Corporations, § 721: vol. 39, Cent. Dig. Pleading, § 28Vz; vol. 23, Cent. Dig. Fraud, § 37.]</p> <p>3. Same — Acts of Officers.</p> <p>[The fact that an officer of a corporation insisted that there was a lien against complainant’s stock, or that his stock was worth less than par, and that the- surplus of the corporation was less than it really was, could not subject the corporation to a charge of fraud or conspiracy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1685-1092.] ,</p> <p>4. Equity — Bill—Multifariousness.</p> <p>A bill by a stockholder against a corporation and its president and secretary charged certain alleged misconduct of such officers, and prayed for an accounting, the reissue of smaller stock certificates, ratification of an issue of stock dividends by tbe corporation, the issue of another stock dividend from the surplus, an accounting of damages incurred, that complainant’s stock be declared free from any lien, that defendants be enjoined from selling additional stock, and that a receiver be appointed for tbe corporation. Held, that the bill was multifarious* both as to parties and subject-matter.</p> <p>TEd. Note.- — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 340-307, 371.]</p> <p>5. Corporations — Stock Dividends — Declaration—Directors—Discretion.</p> <p>The declaration of a stock dividend from the surplus of a corporation is within the discretionary powers of the directors, and will not be controlled by the court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 12, Corporations, § '585..1</p> <p>C. Same — Issuance of Stock — Manner and Form.</p> <p>■ A demand of a stockholder of a corporation to have 25 shares of his stock issued in 25 certificates calling for one share each was unreasonable, and it was not therefore improper for the corporation to refuse to comply.</p>

<p>On Motion for Open Commission.</p>

<p>t. Conspiracy — Definition.</p> <p>Under the act of Congress providing that if two or more persons conspire either to commit any offense against the United States or to defraud the United States in any , manner or for any purpose, and one or more do any act to" effect the object of the conspiracy, all shall be liable to a penalty, the gist of the offense is conspiracy, combination, or agreement to effect an unlawful end, which offense is completed only on some one or more of the parties doing an act to effect the object of the conspiracy, termed an “overt act.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 38, 39, 60.]</p> <p>2. Same — Overt Act.</p> <p>An overt act, required to constitute conspiracy, must be a subsequent independent act, following the complete agreement or conspiracy, and done to carry into effect the object of the original combination.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 38.]</p> <p>3. Perjury — Definition.</p> <p>To constitute perjury, the party charged must take an oath before some competent tribunal or officer that he will testify, declare, depose, or certify truly that his written testimony, declaration, or certificate by him subscribed was true, when in fact some material matter so testified, declared, or certified by him was false and untrue, and known by him at the time of taking such oath to have been false and untrue.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 39, Perjury, §§ 1-3.]</p> <p>4. Public Lands — Homestead.</p> <p>It is not a compliance with the homestead law for a man to file on a tract of land with no intention of making it his home, with no purpose to live there, and with no intention of cultivating any part of it and acquiring it fc>r a place of residence; but there must be a combination of act and intent to make the property entered his actual place of abode.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, §74.]</p> <p>5. Same — Agreement to Sell.</p> <p>An agreement to sell land entered by a homesteader, made prior to his acquisition of the patent, in violation of the homestead law, need not be in writing, nor of sufficient form or of a nature to be enforced in a court of law-; but it is sufficient that the minds of the applicant and some other person have met definitely and understandingly, so that there was a mutual consent that, when the applicant acquired title to the land from the United States, it should inure to the benefit of the other for a consideration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, §§ 371, 373.]</p> <p>6. Same — Disposition.</p> <p>An entryman may acquire a valid title under the homestead law, though his entry was, made with a view of disposing of the land after he had completed his purchase, provided that at the time and before the completion thereof he had not entered into any agreement whereby such other should receive any of the benefit of such purchase.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 41, Public Lands, §§ 371-373.] ‘ ,</p> <p>7. Criminal Law — Evidence—Indictment.</p> <p>A finding of an indictment by a grand jury against a party is no evidence of the defendant’s guilt.</p> <p>8. Conspiracy — Overt Act — Consideration.</p> <p>In a prosecution for conspiracy, the overt act may be considered, with other evidence, as one of the circumstances in determining whether or not there was a conspiracy or agreement charged.</p> <p>[Ed. Note. — For eases' in point, see Cent Dig. vol. 10, Conspiracy, §§</p> <p>. 104, 107.]</p> <p>9. Criminal Law — Evidence—Declarations of Conspirators.</p> <p>In a prosecution for conspiracy, the acts and declarations of the persons accused -may be considered, though made in the absence of some 6f the defendants, where the conspiracy has been fully established by independent evidence, and it has been shown that the defendant against whom it is offered was a party thereto.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 984,1012.]</p> <p>10. Conspiracy — Homestead Entries — Fraud. ,</p> <p>In a prosecution for conspiracy to defraud the United -States of certain public land under homestead entries, the fact that defendants advanced money to the entryman to pay his entry fee and to make improvements on the land was not in itself unlawful, and could only be considered in determining whether or not there was a conspiracy or unlawful agreement with the entryman, of which such advancement formed a part.</p> <p>11. Criminal Law — Evidence—Accomplices—Weight.</p> <p>Though evidence of accomplices is admissible in a criminal case, the jury should scrutinize the same with great care.</p> <p>[Ed. Note.. — For cases in point, see Gent. Dig. vol. 14, Criminal Law, §§ 1099, 1111.]</p> <p>12. Same — Presumption of Innocence — Reasonable Doubt.</p> <p>The presumption of innocence continues with accused throughout the trial, and stands as sufficient evidence to justify an acquittal, until on the whole evidence the jury is satisfied beyond a reasonable doubt of his guilt.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 7.19, 731.1</p> <p>13. Same — Reasonable Doubt — Definition.</p> <p>A reasonable doubt is sufficient to acquit a person of an offense, and is an actual, substantial doubt, arising and resting in the mind as testimony is heard and considered, which results after the exercise of judgment and reason, when fairly and candidly applied to an investigation of the evidence.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1267, 1906.]</p> <p>14. Conspiracy — Circumstantial Evidence.</p> <p>Though the offense of conspiracy may he established by circumstantial evidence, the circumstances mqst be of such a character as to exclude every reasonable hypothesis but that of defendant’s guilt of the offense charged.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 106; vol. 14, Criminal Law, § 1261.]</p> <p>15. Same — Indictment—Counts—Issues and Proof.</p> <p>Where an indictment for conspiracy contains several counts, it is sufficient, to warrant a conviction on counts charging two or more overt acts, that the evidence establishes the commission of one of them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 105-107.]</p> <p>16. Criminal Law — Venue—Proof.</p> <p>In a prosecution in a federal District Court sitting in Nebraska, the evidence, in order to warrant a conviction, must show that the offense charged was committed within that state; the limits of the district of Nebraska being coextensive with the boundaries of the state. •</p> <p>17. Public Lands — Homestead—Entry by Soldier — View.</p> <p>A soldier of the United States may enter a homestead claim selected by an agent without ever viewing it.</p> <p>18. Same — Fraud.</p> <p>Fraud in the making of homestead entries may not be inferred from the fact that a large number of entries may have been solicited and located by one person, if the entries themselves are legal.</p> <p>19. Same — Lease.</p> <p>That defendants desired and did lease homestead lands from entry-men for grazing purposes could not make them responsible for any failure of the entrymen to comply with the law relating to settlement or residence on the land.</p> <p>20. Same — Agreement to Sell.</p> <p>A homestead entryman may agree with any person at any time that when he has proved up on his land, if he desires to sell, he will give that person the first option to buy; such option in itself not being a violation of the law.</p>

<p>1. Specific Pekfohmance--Principles Governing.</p> <p>Tlie specific performance of a contract is not a matter of absolute right, but rests in the judicial discretion of the court, to be exercised in accordance wí ¡ h the principles of equity, and a specific performance will not bo decreed where it would be inequitable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 17, 18.]</p> <p>2. 'Same — Contract fob Purchase of Lands — Breach of Trust by Purchaser.</p> <p>Complainant, who was a resident of Massachusetts, purchased certain notes secured by vendor’s liens on lands lying in Arkansas and Texas near the line between them, and defendant, who was a lawyer, residing near the lands, became the owner of the legal title subject to such liens. Prior to maturity of the notes, the parties entered into a written contract, by which defendant agreed to look after the lands, free them from liens, and do whatever was necessary to render them marketable, and to sell the same in his discretion: complainant agreeing to release his lien on any - part so sold. The proceeds of any such sales, after deducting expenses incurred by defendant, were to be applied on the liens until they were extinguished: and the contract provided that any land remaining should belong to the parties equally. During a number of years defendant looked after the lands and made some sales, but complainant realized nothing therefrom. After a time defendant commenced negotiations for the purchase of complainant’s interest, making offers which he increased from time to time until he finally telegraphed an acceptance of an offer which had been made to him by one acting in complainant’s behalf. Prior to such acceptance he had entered into a contract with his codefendants for the sale to them of one-half in value of the lands in eonsideraation of their furnishing the money to buy complainant's interest, but such contract was not disclosed to complainant. Held, that the contract between the parties constituted defendant both attorney and trustee for complainant with respect to the lands and imposed on him the duty of fully disclosing ail the facts relating thereto before he could make a valid contract for 'their purchase, and that, conceding that a contract otherwise valid was made by his telegram, it was in violation of his trust, and would not be specifically enforced.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 44, Specific Performance, § 173.] ■</p> <p>3. Courts — Federal Courts — Prober District for Suit — Cancellation of Instruments — Nature of .Suit.</p> <p>A suit for the cancellation of a contract for the sale of land is one in personam, and may be brought in a district other than that in which the land is situated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 809.]</p> <p>4. Cancellation of Instruments — Persons against Whom Suit will Lie-Contract in Breach of Trust.</p> <p>A contract for the purchase of land made with the holder of the legal title, in violation of his duty as trustee, for the owner of an equitable interest therein, will be canceled at suit of the latter, where the purchasers had knowledge of his interest.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, § 47.]</p> <p>5. Courts — Jurisdiction of Federal Courts — Suit Affecting Lands i-N Another State.</p> <p>A federal court Is without jurisdiction to decree the foreclosure of a - lien upon, and to order a sale of, land which is situated in another state.</p> <p>[Ed. Note. — For cases in-point, see Cent. Dig. vol. 13, Courts, § 80S.] ■</p> <p>6. Vendor and Purchaser — Vendor’s Lien — Right to Enforce — Violation of Trust Agreement by Defendant.</p> <p>Complainant, who was the owner of notes secured by a vendor’s lien upon lands entered Into a contract with defendant who had purchased the legal title by which defendant was to take charge of and sell sufficient of the lands to pay the lien notes, the remainder, if any, to be owned by the parties equally. No time of performance was fixed nor for the duration of the contract. After several years, defendant attempted to purchase complainant’s interest without disclosing material facts, and did other acts in 'violation of his trust and in fraud of complainant’s rights. Held, that complainant was entitled to a foreclosure of his lien.</p>

Prosecution for Refusal to Testify before Court-Martial. Held: and that the fees of such witness, and his mileage at the rates provided for witnesses in the- United States district court for said state, territory or .district shall be duly paid or tendered said witness, such amounts to be paid by the pay department of the army out of the appropriation for compensation of witnesses: Provided,…

<p>1. Commerce — Interstate Commerce.</p> <p>All commerce in the United States Is under control of either a state or of the nation, and It cannot be justly claimed that any of such commerce' falls within the power of neither; and when merchandise is carried from pne state into another, no system or scheme can be devised to make it intrastate traffic.</p> <p>2. Railroads — Statutory Regulation — Equipment of Trains — Safety Appliances. •</p> <p>The .undoubted purpose of Congress In enacting the safety appliance laws was humanitarian, and such statute should not be frittered away by ju-. dicial construction.</p> <p>8. Same.</p> <p>Two of the purposes for which the safety appliance act of 1S93 (Act March 2, 1893, c. 196, % 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) was amended by the act of 1903 (Act March 2, 1903, c. 976, § 1, 32 Stat. 943 [U. S. Comp. St. Supp. 1905, p. 603]) were: (1) To include certain vehicles omitted by the former statute; and (2) to inelude cars “used” by an Interstate carrier on any part of its' line. The original statute was broadened, and not restricted, by substitution of the word "use” for the words “haul and use.” ............</p> <p>4. Same.</p> <p>■Where an. interstate carrier hauls cars considerably damaged by derailment, so that the coupling devices are gone, 379 miles past three or more places where repairing is done, in order to make the repairs at larger and better equipped shops, it violates the. safety appliance law.</p> <p>6. Same — Defective Coupling.</p> <p>Where a coupler couples by impact, but cannot be uncoupled, unless the brakeman or switchman goes between, or oyer, or under the cars, or around the end of the train, in order to reach the appliance on the connecting ear, such a coupling is defective, and prohibited by law.</p> <p>6. Commerce — Interstate Commeece.</p> <p>A carrier operating its own construction train, which hauls its own rails and products from a point in one state to a point in another state, is engaged in interstate commerce.</p> <p>7. Railroads — Statutory Regulation — Equipment or Trains — Safety Appliances.</p> <p>If an interstate carrier receives and hauls a defectively equipped foreign ear, which it cannot be required to do, it violates the federal safety appliance acts.</p> <p>(Syllabus by the Court.)</p>

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

<p>3. Cakiuers — Suit to Enjoin Enforcement of Eates — Demurrer.</p> <p>A suit to enjoin tbe enforcement of railroad rates established by a state commission is of such general importance, and so far independent on tbe particular facts which may be develo] >ed by the proofs, that it will not be disposed of on demurrer, unless the bill is clearly insufficient.</p> <p>2. Same.</p> <p>In a suit by a railroad company to enjoin the enforcement or rates established by a state commission as unreasonable and unjust, allegations in the bill respecting tbe amount of stock anú bonds of complainant outstanding are pertinent.</p> <p>8. Same. '</p> <p>A schedule of railroad rates established by state authority is not unreasonably low as to a particular road because it will not enable tbe company to accumulate from its net earnings a sinking fund for the payment of its indebtedness.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, § 19.]</p> <p>4. Same — State Regulation or Rates — Constitutionality.</p> <p>The railroad commission of Texas, under authority from the Legislature, has power to fix railroad passenger rates not exceeding a maximum rate of three cents per mile, and may fix different rates for different carriers, subject to the constitutional restriction that it cannot deny to one carrier the equal protection of the laws by prescribing for it an unreasonably low and confiscatory rate, while other carriers similarly situated are permitted to charge a higher rate.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 9, Carriers, § 19.]</p> <p>5. Same.</p> <p>A schedule of passenger rates prescribed for a railroad by a state commission cannot be declared invalid on an allegation that its enforcement will result in a reduction in rates by other roads, having the right to charge higher rates, at competitive points, which will work a discrimination between different localities.</p> <p>6. Constitutional Law — Obligation of Contracts — Contract with State— Texas Statute.</p> <p>The provision of the Texas act of 1853 which empowers the Legislature to prescribe rates to be charged by railroad companies, subject to the ¡imitation that no reductions shall be made in the rates of a company, unless it shall have made a net profit of 12 per cent, per annum during the previous 10 years, does not create a contract between the state and railroad companies subsequently chartered thereby, which deprives the state of the right to change such law or exempts the companies from the operation of future legislation respecting rates.</p> <p>7. Carriers — Regulation of Rates.</p> <p>Various grounds of demurrer considered in suits by railroad companies to enjoin the enforcement of schedules of rates prescribed by the railroad commission of Texas.</p>

At Law. On demurrer to answer of defendant, National Surety Company. This was an action on bonds given by a contractor for the paving of certain streets in Kansas City, Kan., to recover about $7,000 for brick furnished by plaintiff and used in the work.

<p>1. Judgment — Equitable Relief — Pleading—Certainty.</p> <p>A bill by a judgment debtor against the judgment creditor and other defendants, which alleges that the creditor will hold a certain part oí the amount collected on the judgment in trust for his codefendants or one of them, and that complainant has a set-off against all and each of such codefendants, is not insufficient for uncertainty because it does not allege which one is the owner of the beneficial interest in the judgment, but that complainant has no knowledge as to such fact, and prays discovery in respect thereto.</p> <p>2. Equity — Pjjsading—Multifariousnicss.</p> <p>A hill by a judgment debtor to restrain the enforcement of a part of the judgment, on the ground that the judgment creditor holds the same in trust for his codefendants, each of whom is indebted to complainant, is not multifarious because different items of set-off are alleged, since they constitute no part of the cause of action, which is the right to enjoin the collection of the judgment to the extent that it is not beneficially owned by the judgment plaintiff.</p> <p>3. Judgments — Suit in Equity to Enjoin Enforcement — Grounds.</p> <p>A judgment debtor is not debarred from the right to maintain a suit in equity to enjoin its collection on an allegation of set-offs against the beneficial owners, which would render its enforcement inequitable by the fact that such set-offs are legal demands or unliquidated, especially where the defendants against whom they exist are nonresidents of the United States, or are insolvent.</p> <p>4. Discovery — In Equity — Jurisdiction of Federal Court.</p> <p>Where the subject-matter of a suit in a federal court is clearly within the jurisdiction of a court of equity, the complainant is entitled to discovery in respect to any matters relevant and necessary to his ease.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 16, Discovery, § 10.]</p>

<p>1. Canals — Construction of Beidges — Autiiobity of State.</p> <p>A state has complete power over navigable water courses within its' boundaries, and, may authorize and supervise the construction of bridges over public canals or other waterways, subject, however, to- the power of, the federal government to remove unnecessary obstructions to navigation.</p> <p>2. Same — Raileoad Bbidge — Obstbttction of Navigation.</p> <p>A railroad company, although having the right under- state authority to erect an abutment and pier Cor a bridge over a public canal, if it maintains the same so as to create hidden or dangerous obstructions to navigation and to cause injury to crafts rightfully using the canal, is liable for-such injury.</p> <p>3. Same — Liability fob Injuby to Vessel.</p> <p>A railroad company, which maintained a bridge over the Erie Canal, with piers resting on submerged cribs extending beyond the piers on ..the canal side, which were not protected or marked in any way to show thcii* location, held liable for the injury of a canal boat and the damage to her cargo resulting from her collision with such crib, which was not apparent to her master, who exercised ordinary skill and care in her navigation.</p> <p>4. Shipping — Carrier as Bailee — Suit to Recover for Damage to Cargo.</p> <p>A carrier by water of merchandise is a bailee, and has a special^ property therein which entitles him to maintain a suit for its loss or injury in behalf of all parties in interest, and such right is not defeated by the fact that the loss has been paid by an insurer.</p> <p>5. Same — Use of Trade-Name in Contract of Affreightment.</p> <p>The fact that the owner of a vessel is doing business under a fictitious or trade name, and that contracts of affreightment are made in such name, will not defeat his right to maintain an action in his own name to recover for damage to a cargo.</p>

<p>1. Equity — Bill of Review Against Partners — Necessary Parties.</p> <p>To a bill in equity in the nature of a bill of review to vacate á decree in favor of a partnership, where the partnership has been dissolved and one of the partners has died since the decree was entered, his administrators are substantial, but not necessary, parties, and where they cannot be brought in because out of the jurisdiction the court will not for that reason dismiss the bill, but will permit the suit to proceed against the other partners.</p> <p>2. Same — Vacation of Decree — Mistake.</p> <p>A decree in equity dismissing a bill, entered by mistake on bill and answer, when, in fact, the case had not been set down for hearing oh bill and answer, was without jurisdiction and void, and the complainant is entitled to have the same vacated on the filing of a bill in the nature of a bill of review, and to a hearing on the merits without regard to the lapse of time, where there has not been such laches on his part as to debar him from such relief.</p>

<p>In Admiralty. On libel and cross-libel.</p>

In Equity. The Morton, Trust Company, as trustee for the bondholders, who were secured by mortgage on a certain tract of land known as “Belle Isle,” situated in the parish of St. Mary, La., on which was a salt mine, filed its bill in equity setting out grounds for the appointment of a receiver to the property.

<p>1. Carriers — Sleeping Cab’ Companies — Duty to the Public.</p> <p>A sleeping car company is not a common carrier of passengers, and its liability to persons seeking’ its accommodations rests solely on breach of its implied obligation to furnish such accommodations as it holds itself out as offering to the public.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, § 1572.]</p> <p>2. Same — Action—Declaeation.</p> <p>Plaintiff alleged that, being a holder of a railroad ticket which entitled him to be carried over the P. Railroad from New York to Washington, then to Chattanooga, Tennessee, he exhibited such ticket to the agent of defendant sleeping car company at Providence, R. X., who informed him that by purchasing a local ticket from Providence to Jersey City the agent could sell him sleeping car accommodations from Providence to Washington, where the railroad authorities would countersign his ticket so as to validate it for the balance of his journey; that, relying on such information, he purchased a ticket, but was refused permission to ride by the train conductor of the !■>. Railroad Company after leaving Jersey-City, unless he paid fare, because the ticket had not been countersigned in New York; that he paid fare to the next nearest station, where he was ejected. Held, that the declaration did not state a cause of action against the sleeping car company.</p> <p>3. Same — Acts op Agents — Scope op Authority.</p> <p>The agent of a sleeping car company had no authority to inform a prospective passenger that his railroad ticket entitled him to ride without having the same countersigned and validated at an intermediate point.</p>

<p>1. Telegraphs — Messages—Delay in Delivery — Damages—Mental Anguish.</p> <p>Damages for mental anguish, unaccompanied by physical Injury, cannot be recovered against a telegraph company for its mere negligent failure to deliver a death message- to plaintiff, by reason of which he was prevented from attending his sister’s funeral.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 69, 70; vol. 15, Damages, § 100.</p> <p>Damages' for mental suffering from delay in delivering telegram, see Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C.-C. A. 571; Western Union Telegraph Co. v. Coggin, 15 C. C. A. 250; Wesórn Union Telegraph Co. v. Morris, 28 C. C.'A. 62.]</p> <p>2. Damages — Mental Suffering.</p> <p>Damages for mental suffering are ordinarily allowable only where there has been a bodily injury causing physical pain, and the mental suffering cannot be distinguished from the physical, or where there. has been a malicious, intentional, or willful invasion of plaintiff’s legal rights, when damages for mental suffering may be recovered, though there is no physical injury.</p> <p>TIM. Note. — For cases in point, see Gent. Dig. vol. 15, Damages,' §§ 100-103.]</p> <p>3. Telegraphs — Mistakes—Right oe Action.</p> <p>Iowa Code 1897, § 2163, provides that the proprietor of a telegraph line is liable for all mistakes in transmission or for any unreasonable delay in transmission or delivery, and for all damages resulting from a failure to perform any duty required by law, the provisions of any contract to the contrary notwithstanding. Held, that such section did not create a right of action in the addressee of a death message to recover damages for negligent delay in the delivery where none existed before, and hence was ineffective to sustain a recovery of damages for mental anguish by such addressee, unaccompanied by any physical injury.</p> <p>Tlid. Note. — For cases in point, see Gent. Dig. vol. 45, Telegraphs and Telephones, §§ 48-50, 69, 70.]</p>

<p>In Equity. .Ón motion to dismiss for want of jurisdiction,</p>

<p>1, Removal cot Causes — Petition—Piling—Time.</p> <p>■ ‘A rule of a state court, from which a cause was removed, provided that no agreement or consent of counsel in respect to the proceedings in a Cause, the purport of which, is disputed or denied, will be regarded, unless the! same shall have been made or assented .to in open court and entered in the, minutes, or unless the evidence thereof shall be in writing, subscribed,to By.the.patty against whom the same may be alleged or by his attorney. ' Plaintiff’s counsel stipulated in writing that defendant - might h'aVe Until October 10, 1906, within which to plead to the complaint or file or make such -motion as it might be advised. Held, that plaintiff could.not: object that such stipulation did not extend 'defendant’s time ,'to plead for., the purpose of filing a petition to remove the cause to the federal courts ,on or before the time so fixed.</p> <p>■ [Ed. Note. — Por cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 135-140 ;• vól. 44, Stipulations, §§ 2, 43.]-.</p> <p>2. Attorney and Client^-Authority-of Attorney.</p> <p>Code Civ.'. Pfoc. Cal. § 283, subd.’ 1, provides that an attorney shall have authority to bind his client in any of the steps of an action or proceeding by his agreement.filed with the clerk or entered on the minutes of the court, and hot otherwise. Held that, where an attorney assumed to bind-,his client-By a valid written stipulation extending defendant’s timé to plead, he could not thereafter,, under such section, disavow his own authority,to. éxfend the tiiüe in which defendant could file a petition for removal.</p> <p>. .[Ed. -Note.-^Por cases ip point, see Cent. Dig. yol. 5, Attorney and Cliént, Í|.155-rl61; ,Vof..44,, Stipulations, § 3.] . ;</p>

<p>1. Removal of Causes — Grounds of Removal — Statutes or Laws of the United States — Petition.</p> <p>A case not-depending on diversity of citizenship cannot be removed from the state court to the Circuit Court of the United States as one arising under the Constitution or laws of the United States, as provided by the removal acts (Act March 3, 1887, c. 373, 24 Stat 552, and Act Aug. 13, 1888, e. 866, 25 Stat. 433. [U. S. Comp. St. 1901, p. 509]), unless that fact appears by plaintiff’s own statement of his cause of action, and, if it does not so appear, the fact cannot be supplied by the petition for removal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 58, 59.] .</p> <p>2. Same.</p> <p>Where the facts stated in plaintiff’s petition disclose a right of action given or created by an act -of Congress, and also a right of action created by a state law, it would be for the court on petition to remove to determine under which statute the action was maintainable, if at all, and, if one construction of the federal statute would sustain and another defeat a recovery, the action would be one arising under a law of the United States, and therefore of federal cognizance.</p> <p>3. Commerce — Regulation of Interstate Commerce — Master and Servant —Employers’ Liability Act.</p> <p>Where a railroad company by which plaintiff was employed was an interstate carrier at the time plaintiff was injured, it was not material to plaintiff’s right to the benefit of employers' liability act (Act Cong. June 11, 1906, c. 3073, 34 Stat. 232), regulating the liability of such carriers for injuries to employes, etc.,, that the train on which plaintiff was injured was an intrastate train.</p> <p>4. Master and Servant — Injuries -to Servant — Employers’ Liability Act— Prospective Operation.</p> <p>Employers’ Liability Act (Act Cong. June 11, 1906, c. 3073, 34 Stat. 232), regulating the liability of interstate carriers for injuries to employes, etc., was prospective only in operation, and did not apply to causes of action existing at the time of its adoption.</p>

<p>1. Eminent Domain — Public! Use — Determination.</p> <p>While the. question whether a proposed use for which property 19 sought to be condemned is in fact public or not is for the determination of the'coúrts, the necessity for the taking, the instrumentalities by which it may be done, and- the mode of procedure are matters resting wholly within the province and discretion of the Legislature.</p> <p>[Ed. Note. — Eor eases in point, seé Cent. Dig. vol. 18, Eminent Domain, §§ 16N-167.]</p> <p>2. Same — Private Corporations — Rights—Interest to Public.</p> <p>To entitle a private corporation to exercise the right of eminent domain, the use for which the property is desired must be such as will subserve the public in the sense that they shall have the right to demand the service of the corporation as of right, and not merely in accordance with the latter’s ■will and pleasure.</p> <p>[Ed. Note. — -Eor cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 5.1, 54.] ■ •</p> <p>3. Same — Complaint.</p> <p>Where a complaint in a proceeding by a private corporation to condemn land for a water ditch alleged that plaintiff had acquired a franchise from the city of R. and the county of S. to serve the inhabitants of such municipality with light, heat, and power, and to generate, .transmit, and sell electricity for such purpose to the public in general, and that for this purpose it was necessary to conduct water from a certain creek, through ditches, flumes, and pipe lines, over the- property sought to be condemned, to its power house, for use in operating its machinery, etc., the complaint sufficiently showed that plaintiff was a public service corporation, and that the use of the property desired was a public use.</p>

<p>1. Habeas Cobpus — Federal Courts — Jurisdiction.</p> <p>Circuit Courts of the United States have jurisdiction in habeas corpus in the exercise of a legal discretion to discharge from custody a person restrained of his liberty in alleged violation of the Constitution of the United States or of any treaty thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 38.</p> <p>Jurisdiction of federal courts, see note to In re Huse, 25 C. C. A. 4.]</p> <p>2. Samis.</p> <p>Petitioner was extradited from Canada on a charge of perjury. He became a witness in his own behalf on the trial which resulted in a disagreement of the jury, after which he was again indicted on another charge of perjury alleged to have been committed in such trial. Of this he was convicted and appealed to the state Court of Appeals, pending which he applied to the federal Circuit Court for discharge on habeas corpus, challenging the jurisdiction of the state court to try him for any other offense than that for which he was extradited until he had been either convicted, and served his sentence, and had a reasonable time to return to Canada, or had been acquitted and had a like opportunity to depart the country. Held that, as such objection was available on petitioner’s appeal and finally on a writ of error issued from the Supreme Court of the United' States, it would not be determined by a federal Circuit Court on a writ of habeas corpus pending such appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, §§ 4, 93.]</p>

<p>1. Witnesses — Privilege—Protection.</p> <p>A proceeding for the punishment of a defendant for contempt for the violation of an Injunction will not be quashed because the petition shows that certain of the facts therein stated were obtained from testimony given by defendant as a witness in another case, even if he is protected, by Rev. St. § 860 [U. S. Coibp. St. 1901, p. 661], from having such testimony used against him in the proceeding; it not appearing that such facts may not ho proved by other testimony.</p> <p>2. Injunction — 'Violation—Punishment—Sufficiency of Petition.</p> <p>A proceeding to punish for contempt for violation of an injunction is summary in character, and technical pleadings are not required; but it is sufficient that by petition, affidavit, or other showing it is made to appear that there has been á willful violation of the court’s order.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 27, Injunction, § 503.]</p> <p>3. Same — Service of Restraining Order.</p> <p>The service of a certified copy of a restraining order is sufficient to render a defendant so served punishable for contempt for its willful violation. .</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol., 27, Injunction, §§ 445, 446.]</p> <p>4. Same — Sufficiency of Bond.</p> <p>The validity of a bond required on the entry of a restraining order is not affected by the fact that it bears a date prior to the entry of the order, where the sureties did not justify, nor was it filed, until the daté of Lhe order.</p>

<p>1. Public Lands — Suit fob Cancellation of Patent — Bight of United' States to Maintain.</p> <p>Tim United States may maintain a bill in equity for the cancellation,of a patent issued through inadvertence and mistake under the homestead, law to a tract of land which had been previously selected by the state of California under Act March 3, 1853, e. 145, 10 Stat. 244, as indemnity1 school land, subject to the approval of the Secretary of the Interior, wiiére; tbe Secretary had directed the allowance of such selection, but it had not been formaliy approved and listed so as to pass title to the state, since the stale is not in a position to mainain a suit in its own behalf to protect its equitable title, while the United States is under obligatioh. to priL tect it. ' ';</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, § 332. J</p> <p>2. Same — Effect of Patent — Necessity of Delivery.</p> <p>A patent to public land, duly Issued upon the decision of the proper offir cers and recorded in the record book kept in the Land Department of the government for that purpose, passes the title, and a delivery to the patentee is not necessary.</p> <p>[Ed. Note. — For cases in, point, see Cent. Dig. vol. 41, Public Lands, §• 311.J ' -</p> <p>3. Same — Bona Fide Purchasers — Purchasers Before Patent.</p> <p>A xmrchaser of land prior to patent from the government is not a bona fule inirchaser entitled to protection as such in equity, but he must show that in his purchase and by the conveyance to him he acquired the, legal title.</p> <p>LEd. Note. — For cases in point,- see Cent. Dig. vol. 41, Public Land's, § 368.J ' -</p> <p>4. Same — Purchaser After Patent — Constructive Notice of Biocobds.</p> <p>Tlio rule that a purchaser of public land’ is required to take notice of the records and xiroceedings in the Land Department does not apply to it purchaser after patent, who may rely on its i>resumptive validity, and is not required to go behind it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, § 368.1 ' ;</p> <p>5. Same — Suit by United States fob Cancellation of Patent — Tender of Purchase Money.</p> <p>The United States in a suit to cancel a patent to public land, in order that it may convoy the same to another party equitably and rightfully cm titled to it, is not required to tender back the purchase money paid by, the patentee. ’ . '</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands,, § 333 : bona fide purchasers of public lands, see note United States v. Detroit Timber & Lumber Co., 67 C. O. A. 13.] IÍ</p>

<p>1. Internal Revenue — Articles Subject to Tax — Bay Rum Imported From Porto Rico.</p> <p>Bay rum not being subject to internal revenue tax, and imports from Porto Rico not being subject to customs duty, but to internal revenue tax, as “like article of merchandise of domestic manufacture,” bay rum imported from Porto Rico is not as such subject to tax nor can it be theoretically resolved into its component parts for the purpose of imposing an internal revenue tax upon the distilled spirits which enter into its composition.</p> <p>2. Same — Recovery op Taxes Paid — Voluntary Payment.</p> <p>An importer of goods from Porto Rico, who formally entered the same and purchased stamps from the collector for payment of iuterual revenue tax thereon, as required by the treasury department, without protest or objection, and in the belief that such tax was lawfully due, must be regarded as having made the payment voluntarily, and cannot recover it back, although the. goods were not lawfully taxable, and it is conceded that under the rulings he could not have obtained possession of the same without making the payment</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 29, Internal Revenue, §§ 83, 84J</p>

<p>1. Bankruptcy — Proceedings—Property—Jurisdiction.</p> <p>Where a. bankruptcy petition was filed against a corporation, the court in which the petition was filed had sole jurisdiction to decide whether the corporation was or was not subject to the operations of the bankrupt law, and, pending such determination, any other federal District Court was authorized to take charge of the alleged bankrupt’s property within its own territorial jurisdiction and to appoint an ancillary receiver therefor.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 22, 165.]'</p> <p>2. Attachment — Property in Custodia Legis — Receivers.</p> <p>Where an ancillary receiver was properly appointed in bankruptcy proceedings, property in bis bands as such receiver was in custodia legis, and was not subject to attachment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 5, Attachment, § 181; vol. 42, Receivers, § 359.]</p> <p>3. Assignments for Benefit of Creditors — Foreign Assets — What Law Governs.</p> <p>Where a foreign assignee for the benefit of creditors demands the surrender of property located in New York belonging to his assignor, the assignee’s rights as against' New York creditors are governed by the law of New York, and, depend on principles of comity as between the state of New York and the state of the assignee.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 4, Assignments for Benefit of Creditors, §§ 642-657.]</p> <p>4. Same.</p> <p>An Illinois assignee for the benefit of creditors is not entitled to withdraw funds belonging to the assignor located in New York before payment of the assignor’s attaching New York creditors.</p> <p>[Ed,. Note. — For cases in point, see Cent Dig. vol. 4, Assignments for Benefit of Creditors, §§ 642-657.]</p> <p>5. Same — Wages—Peeferrred Payment.</p> <p>Where, after bankruptcy proceedings against an Illinois corporation were set aside, an assignee for the benefit of creditors, appointed in that state, sought to obtain assets belonging to the corporation in New York, which were held by an ancillary receiver appointed' in bankruptcy proceedings, the court sitting in New York had no power to give New York creditors, who had claims against the corporation for wages, a preference of payment out of the New York assets as against attaching New York creditors, though such wage earners would be preferred both under the bankrupt act and under-the insolvency statute of Illlinois.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4, Assignments for ¡Benefit of Creditors, §§ 642-657.]</p> <p>6. Receivers — Appointment—Effect.</p> <p>The effect of the appointment of a receiver is not to oust any person of his right to the possession of the property, but merely to retain it for the benefit of the party' who may ultimately appear to be entitled thereto.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 42, Receivers, § 127.]</p> <p>7. Attaciimext — Feioetty of Glaimb.</p> <p>A bankruptcy petition was filed against a corporation in Illinois, and an ancillary receiver appointed, who took cliarge oí tbe property of the corporation in New York. R., a New York creditor, having advanced information of the approaching termination of the bankruptcy proceedings, because the corporation was not engaged in a business which subjected it to the bankrupt law, instituted a suit in New York, aided by an attachment served by delivering a copy warrant to the ancillary receiver, after which other attachments were levied, some after an order had been passed terminating the bankruptcy proceedings. Ileia that, since none of the attachments which were served while the property was in the possession of the ancillary receiver were effective except as a notice of claim addressed to the court through its receiver, regardless of whether they were served before or after the dismissal of the bankruptcy proceedings, the senior at-. tacliment was entitled to priority, there being no infirmity therein except • the date of its issue.</p>

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

<p>1. Husband and Wipe — Injuries to Wife — Action—Statutes—Constbuo- - tion.</p> <p>P. L. N. J. 1906, p. 525, provides that any married woman may maintain an action in her own name, without joining her husband, for all torts committed against her or her separate property, in the same manner as she. lawfully might if a feme sole, provided that the act shall not be so construed as to interfere with or take away any right of action at law or in equity now provided for the torts above mentioned. Held, that the proviso only saves to the husband and wife their joint right of action for any tort committed against the wife previous to the enactment, and is therefore not repugnant to the preceding part of the section.</p> <p>2. Same — Pasties.</p> <p>P. L. N. J. 1906, p. 525, § 1, authorizes a married woman to maintain an action in her own name, without joining her husband, for a tort committed against her, provided that the act shall not interfere with or take away any right of action previously provided for such torts; and section 2 declares that any action brought under the act may be prosecuted by such married woman separately in her own name, and that the nonjoinder of her husband shall not be pleaded. Held that, where an action is brought' after the passage of such act for a tort committed against a married woman, her husband is an improper party thereto.</p> <p>[Ed. Note. — For cases in. point, see Cent Dig. vol. 26, Husband and Wife, §§ 739, 802-807.]</p>

<p>1. Death — Adult Children — Action by Parents.</p> <p>Where a child after becoming of age continues to live with his parents and. they have a reasonable expectation of pecuniary advantage from, ills services they are entitled, according to the interpretation put by the State Courts upon the local statute which is the basis of the action, to recover damages for his wrongful death.</p> <p>nsd. Note. — 'For cases in point, see Cent. Dig. vol. 15, Death, § 43; vol. 13, Courts, §§ 956, 957. J</p> <p>2. Same — Measure or Damages — Reasonable Expectation or Pecuniary Benefit by Parent.</p> <p>The rigid to recover however is confined' strictly to compensation and the damages must be such as are reasonably in sight. It is the reasonable expectation of pecuniary benefit — that which it can be said with reasonable certainty that tile parent in all likelihood would have enjoyed if death had not stepped in — which is the value to the parent of the child’s life and the measure of the loss.</p> <p>| Ed, Note. — For cases in point, see Cent. Dig. vol. 15, Death, §§ 112, 115, 117.]</p> <p>3. Same — -Damages—Excesstveness.</p> <p>Plaintiffs sued lor the alleged negligent killing of their son, a man about 30 years old, who was unmarried and living with plaintiffs, to whom lie had given his services for a number of years, tlie estimated value of which was from 84,000 to $7,000 a year, receiving from his parents only about 3500 a year to meet bis personal expenses, having assured bis father that he would continue so to work until the father had paid off an indebtedness under which he was laboring. Held, that the parents’ reasonable expectation of the continuance of such services could not extend more than a year or two ahead at any time, and that a verdict awarding them $17,000 was excessive.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, §§ 125-130.]</p>

<p>1. Skakciies and Setzuees — Witnesses—Subposna Duces Tecum — Peevidege.</p> <p>A subpoena duces tecum, directed to an officer of a railroad corporation, requiring bim to appear before a federal grand jury and to bring with bim certain records of tbe railroad company relating to freight claims, was not objectionable as violating federal Constitution, fourth amendment, protecting the people from unreasonable searches and seizures. v</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Searches and Seizures, § 5.]</p> <p>2. Same — Reasonableness.</p> <p>A subpoena duces tecum requiring an officer of a railroad company to produce before a federal grand jury letters, papers, memoranda, and documents relating to certain claims designated by number, and all papers, documents, books, and memoranda showing the final disposition, of tbe claims and the method by which they were paid or disposed of, etc., was not objectionable for unreasonableness.</p>

<p>Limitation of Actions — Effect of Change in Statute — Causes of Action Previously Accrued. '</p> <p>The amendment of Code Civ. Proc. Cal. § 340, which took effect May 18, 1905, places actions for injury or death caused by the wrongful act or negligence of another in the class of .actions, which must be brought “within one year,” without specifying when such period shall commence to run. The previous limitation was two years. Held, that as to the causes of action which had previously accrued, but were not barred under the old law, the new period of one year commenced to run when the amendment went into effect.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 27.]</p>

<p>Action to Recover Alleged Unreasonable Freight Charges Paid.</p>

Statutory Proceeding to Collect a Judgment by Garnishment Proceedings. Removed by the garnishee from the state court which rendered the judgment. Motion to remand denied.

<p>1. Bankruptcy — Exemption—Distribution op B'unds by Court — Proceeds op Eíxempt Property.</p> <p>A bankrupt who makes seasonable claim to his exemptions is not deprived of his right by a sale of the property by a receiver with his consent ; but, since in that case the proceeds come into the bankruptcy court for distribution, such court may consider and determine any claims to the fund by others.</p> <p>2. Same — Rent Due on Lease with Waiver — Wage Claims.</p> <p>Out of a fund so produced andi in court, the claim of a landlord for rent, upon a lease waiving exemption; and wage claims, against which there is no exemption under the state law, are to be preferred to the exemption claim of the bankrupt.</p> <p>8. Same — Attachment Execution — Custodia Legis — Money in Hands op a Receiver.</p> <p>An attachment execution, however, issuing from the common pleas and served on a receiver in bankruptcy, even though it is based on a judgment with waiver, is entitled to nothing; the receiver being an officer of the court and the money in his hands being in custodia legis, against which no attachment lies.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 238, 301.]</p>

<p>li ' Insurance — Action on Marine Policy — Demurrer to Complaint.</p> <p>The scope and effect of a marine policy of insurance, in which the “warranted free from capture, seizure and detention” clause had been stricken out, held not determinable on demurrer to a complaint thereon tp recover for a loss by capture as between the conflicting theories of the parties.</p> <p>A Same — Sufficiency of Complaint — Allegation of Plaintiffs’ Interest.</p> <p>In an action on a policy of marine insurance to recover for a loss of the vessel, the complaint should show the nature of the plaintiffs’ interest .therein, and it is insufficient to allege merely the value of such' interest.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1582, 1583.]</p>

Indictment under Rev. St. § 5431 [U. S. Comp. St. 1901, p. 3671], for passing a counterfeit $5 treasury note or greenback. On motion to direct verdict for defendant. The bill which was passed was a $5 note of the Oil City Bank, a state institution, issued in 1862. No doubt it is intrinsically worthless, but still it is genuine and not counterfeit.

<p>' Bankruptcy — Witholding Assets — Surrender—Possession.</p> <p>Where bankrupts were denied a discharge because they made false schedules and did not surrender all their estate, but there was no proof that property sought to be recovered by the trustee was in the bankrupt’s possession or under their control at the time proceedings were brought to require them to surrender the property, an order directing such surrender was not authorized.</p>

<p>On Motion to Quash Returns of Service.</p>

<p>Appeal from the Circuit Court of the United States for the District of Colorado.</p> <p>This was a bill to foreclose a mortgage executed by Arthur J. Richardson and E. Jennie H. Richardson, defendants below, to secure the payment of a note for $182,500 made by them and payable to the order of Henry B. Lowe and Tyson S. Dines, complainants below. The property mortgaged consists of a number of mining claims known as the “Topeka Group” of mines located in Gilpin county, Golo. Defendants admitted the execution of the note and mortgage, and set up as a defense that the note was given to represent part payment of the purchase price of the mines which they had bought from complainants ; that the mines were worthless and known to have been so by complainants when they made the sale; that they were induced to make the purchase by fraud, deceit, and misrepresentation practiced upon them by complainants and for these reasons the note was without consideration and void. Defendants also filed a cross-bill, setting forth tbe transaction culminating in the purchase of the mines, the false representations made by complainants concerning their values, the fraud practiced by complainants to induce them to make the purchase, payment of one-hall’ of the purchase price by them, a rescission of the contract on the discovery of the fraud and other facts which •will be sufficiently referred to later, and prayed that the note and mortgage be canceled, that complainants be decreed to restore to defendants $102,500, the cash payment made for the mines, and to retake title and'possession thereof. On these issues the case was heard by the Circuit Court and decided in favor of complainants on their bill of foreclosure and against defendants on the issues presented both by their answer and cross-bill. Defendants appeal.</p>

On January 12, 1904, the defendant, Edelstein, and his partner, Jacob Harris, were adjudicated bankrupts by tbe Histrict Court of the District of Minnesota on the petition of certain of their creditors.

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

This is a suit brought originally by James Warren against the Illinois Central Railroad Company to recover damages for personal injuries received under the following circumstances, as detailed by himself on the witness stand: “Q. Is this James Warren': “A. Yes, sir. “Q. Now, you speak to the jury over here, these gentlemen sitting in that box.

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

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

Marie F. Boutin, as administratrix of the estate of Frank Boutin, deceased, brought this action against the lumber company to recover damages for the death of ihe decedent who was her husband. The lumber company was operating a steam sawmill at Crookston, Minn.

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

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

<p>1. Libel-t-Action — Defenses.</p> <p>The publication of a statement that a person has been arrested on a criminal charge is not actionable if the statement is true, but if there is added to it by way of comment words which amount to an accusation that the charge is true, or comment which assumes the guilt of the person arrested, by headlines or otherwise, the mere fact that the person was arrested on the charge stated is no justification for the words imputing guilt.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 32, Libel and Slander, § 148.]</p> <p>2, Same — Construction of Publication — Question for Jury.</p> <p>A publication must be read and construed^ in the sense in which the readers to whom it is addressed would ordinarily understand it, and the whole, including display lines, should be read and construed together, and its meaning and signification thus determined. When so read, if it is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether it is defamatory or not; but if it is capable of two meanings, one of which would render it libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those by whom it might be read.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 357-359.]</p> <p>8. Same.</p> <p>An item published by defendant in its newspaper, under the heading “Murderer Arrested,” stated that a sheriff had arrested the plaintiff, who was wanted in another state for the murder of a man, the incentive being robbery; that rewards had been there offered for plaintiff’s arrest; that he did not deny being the man wanted, but claimed that he did not do the killing. In. an action for libel because of such publication, the declaration admitted that plaintiff was arrested as therein stated, and alleged by innuendo that the article charged plaintiff with murder, and that rewards had been offered for his arrest, which statements were false and untrue; that plaintiff had been injured thereby, etc. Held, that the question whether the article would be understood by readers to so charge, and was'therefore libelous, was one for the jury, and that the court erred in charging that it was libelous per se.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Libel and Slan- , der, §§ 357, 358.]</p>

<p>1. Appeal — Master’s Findings — Review.</p> <p>In a case brought to the Circuit Court of Appeals, on appeal from the judgment of the trial court after a hearing of the case on the merits, and not on exceptions to the findings of a master, the appellate court was entitled to review the case independent of the master’s findings.</p> <p>2. Bankruptcy — Act op Bankruptcy — Fraudulent Conveyance. .</p> <p>Decedent on March 23, 1898, executed a guaranty of payment of all her sons’ notes to' a bank and all renewals and new loans made by the - bank to them. Decedent was a woman of advanced years, without special • business -experience. The bank then extended further credit to the sons, and during the five succeeding years- they took care of their paper as .'it matured; it appearing that over §250,000 of their paper was discounted, by the bank during that period. On September 2, 1903, decedent owned no personal property, except household goods, but owned real estate of considerable value, and had no creditor, except N., to ,'whom she owed a large sum, other than her indebtedness on the guaranty, and on that day she conveyed her real estate to N. in payment of her indebtedness to him. At the time of this conveyance none of the outstanding notes discounted by the bank for her sons, had matured, and it did not'appear that she had any knowledge of her liability on the guaranty. Eeld, it was not shown that the conveyance to N. was made with intent to hinder, delay, and- defraud her creditors, or with intent to prefer N. over her other creditors, so as to constitute an act of bankruptcy.</p>

<p>1. Partnership — Trading Partnership — Authority of Partner — Borrowing Money.</p> <p>In an ordinary trading partnership, a partner has implied authority to borrow money on the credit of the firm, to draw, and accept, make, and indorse bills of exchange and notes, in the name of the firm.</p> <p>I Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 241-255,1</p> <p>2. Bills and Notes — Bona Fide Purchaser — Authority of Maker.</p> <p>Though a member of a trading partnership has no implied power to sign the firm name, as an accommodation indorser of a note, yet, if he does so, his unauthorized act constitutes no defense to the firm as against a bona fide purchaser for value in due course; the paper being sucli as to be subject to the law merchant.</p> <p>3. Same — P.ona Fide Purchaser — Requisites.</p> <p>Where the holder of negotiable paper acquired it before maturity from another, who was apparently the owner, and gave a consideration therefor, he obtained a good title, though he had knowledge of facts and circumstances that would cause him or a man. of ordinary prudence to suspect that the person from whom he obtained it hadi no interest therein or authority to use it for his own benefit, and though by ordinary diligence he could have ascertained such facts.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 869.] '</p> <p>4. Same — Notice or Suretyship.</p> <p>Where a note when presented to petitioner for discount was signed on its face by three persons, the fact'that the name of a partnership subse- ’ • quently adjudged a bankrupt appeared as the second signer was not notice to petitioner that the firm signed only as surety for the first signer.</p> <p>5. Same.</p> <p>’ Where a series of notes discounted by petitioner were all signed by three persons, a partnership which subsequently became a bankrupt being the second signer, the notes on their face did not indicate a contract of surety-ship by which the second signer on being compelled to pay the entire note did so to the extent of two-thirds thereof as surety for the others.</p> <p>61 Same — Joint and Several Liability.</p> <p>Wherfe a series of notes were signed by three persons, the second signer being a firm which subsequently became a bankrupt, the firm’s contract as principal was to pay the entire amount of the notes, and this was not changed by the fact that other signers had made the same promise.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 542.]</p>

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

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

. Libel filed by" the owner of a cargo of coal on board tbe barge McNally and by the master of the barge, to recover, respectively, for the loss of the cargo and for the personal effects of said master. The libel alleged that the tug Volunteer was negligent in towing the McNally upon the wrecis of the barge Doherty, which lay sunk in the channel at South Norwalk, Conn. It also alleged that the owners of the Doherty were at fault in not maintaining a light above said wreck.

On appeal in admiralty from a decree of the1 District Court of the United States for the Southern District of New York awarding $612.98 damages and costs against the steam tug Winnie for negligent towage of libelant’s canal boat Fermoil. The opinion of the District Court is reported in 137 Fed. 166.

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Parkersburg.</p> <p>This was a suit instituted in the Northern district of West Virginia, tho object of which is to cancel a tax deed executed on the 19th of January, 1903, by W. R. Merservie, clerk of the county court of Ritchie county of that state, to B. W. Boo for one-sixteenth interest in gas and oil and mineral on a tract of land of 69% acres and also another tract of land of 2% acres, making 72 acres in all. The court below has stated the facts upon which this controversy is based in a clear and succinct manner as follows:</p> <p>“John K. Kelley and Clara V. Kelley, on March 29, 1898, by deed which was admitted to record April 2, 1898, conveyed to plaintiff, Barnes, a citizen, of Ohio, ‘one-sixteenth part of all oil and gas and other mineral substances in and under’ two parcels of 69% and 2% acres of land, situate in Ritchie county, this state, fully described in the deed by metes and hounds, for the consideration expressed of $2,000 cash. By deed of September 21, 1898, recorded September 24, 1898, Barnes conveyed a half of this, or one thirty-second interest in all, to Mallory Bros,; but they subsequently, by deed dated March 29, 1903, rcconveyed back this interest to Barnes. The surface and remaining fifteen-sixteenths undivided interest of the ‘oil, gas, and other mineral substances’ remained vested in Mrs. Kelley. On the land books of Ritchie county, Mrs; Kelley, for the year 1898, was. assessed with these two tracts separately, as 69% acres, and 2% acres, in fee,- as situate on ‘wts. of Bonds Greek,’ N. B. 9 miles from court house, valued each at $6.50 per acre, and a total valuation of $425, for the 69% acres, instead of $451.75, the true total at that rate, and for the 2% acre tract of $15, instead of $16.25, the true valuation at that rate. She was assessed for state purposes on the 69% acres at the rate of 25 cents on the $100, the sum of $1.13, the full amount due on the true valuation, 6% cents more than due on the valuation given; 45 cents for state school purposes, at a rate of 10 cents, the correct amount on the true valuation, 2% cents too much on the valuation given-; $1.81'for county purposes, at a rate of 40 cents, the correct amount on the true valuation, 11 cents too much on the valuation given; $2.26 for road purposes and teachers’ fund, respectively, each at the rate of 50 cents, the right amount on the true valuation, 12% cents too much on each for the valuation given; and $1.36 for building fund, at a rate of 30 cents, the correct amount on the true valuation, 8% cents too much on the valuation given. The 2%-acre tract also shows that, while the valuation was fixed -at $15; instead of $16.25, the taxes were assessed upon the true valuation, and not the- valuation given. These tracts had been acquired by Mrs. Kelley by different deeds from different parties. In pencil on the assessment book just after Mrs. Kelley’s name is written, ‘1-16 oil reserve to G. W. Barnes’; but the plaintiff, although his deed bore date two days before April 1st, the assessment date fixed by law, was not assessed in any manner for that year on account of his one-sixteenth undivided interest in the ‘oil, gas, and other mineral substances, in and under’ said two parcels off land. ’ . ' '</p> <p>“Bor the year 1899 Mrs. Kelley is assessed with these same two tracts separately, as having title in fee, and the same location, bearing, and distance from the courthouse is given, as also the same valuation of $6.50 per acre each, and the same erroneous total valuations off $425 and $15, resi>eetively. This year, however, she was not assessed at the given, rates, .upon the true total valuation, as was the case in the preceding year, but upon the false total valuations given for both years. In this last year following her name, in parenthesis, are the words, ‘less one-sixteenth oil, &e.’ Bor this year 1899, wh^n by the records Mrs. Kelley was shown to be 'vested with fee-simple title in the surface of and in fifteen-sixteenths undivided interest in the ‘oil, gas, and other mineral substances in and under’ these two tracts, an one thirty-second of the latter, undivided, was in plaintiff, Barnes, and the remaining one thirty-second thereof was in Mallory Bros., the said Mallory Bros, were assessed with nothing, so far as shown, because of their interest;’ but plaintiff, Barnes, was assessed with ‘one-sixteenth oil &c., reserve’ in 72 acres, claimed now to -be the 69% and 2% acre tracts consolidated, at the rate of 50 cents per' acre, or a total valuation of $36, upon which taxes amounting to 78 cents in all, according to the fixed rates, were charged. These taxes were not paid by Barnes, by reason of which this interest was returned delinquent and sold-by the sheriff; January 13, 1902, and purchased by defendant Bee, who paid a total for taxes and expenses of $2.35, and on the 16th day of January, 1903, had a surveyor’s report made, and on January 19, 1903, received from the clerk of the county court a deed therefor, which surveyor’s report and deed was on said last day admitted to record. It is to be noted that neither the report nor deed bound the 72 acres as a Single tract, but simply copy the metes and bounds of the 69% and 2% acres, respectively, apparently from the deed of Kelley and wife to Barnes, to which.both refer.</p> <p>“Meanwhile, on the 20th day of October, 1902, Kelley and wife and Barnes made a lease, in which Mallory Bros, did not join, to Upham & Rolston, whereby they granted the lessees all the oil and gas in and' under these lands, described as 70 acres, and described generally by reference to the abutting owners, for the period of two years, upon usual terms, for the payment of one-eighth royalties and other conditions not necessary to set forth. This lease was assigned by the lessees to Sarber Bros. & Co., and on January 14, 1903, the lease and assignment were together admitted to record. A valuable 200-barrel oil well resulted, and this one-sixteenth undivided interest became of value estimated at from $5,000 to $6,000. Defendant Bee insisted upon his being'the owner, of the. jiiterest- .under his tax deed, refusing to surrender his claim; heneo this suit, brought to set aside said tax deed, a's ácloud upon his title, 'and the appointment of a receiver herein, to whom has been paid over the proceeds arising from the sale of oil due to this interest.”</p>

<p>3. Seamen- — Personal Injuries — Liability of Vessel.</p> <p>Where libelant, a fireman on a tug, was scalded while attempting to tighten tbe packing on the valve of an ash hoist, resulting from his turning a screw the wrong wa.y and the machinery was not" lilaterially defective, the tug was not liable for his injuries. •</p> <p>[Ed. Note. — For cases irt point, ‘see Cent. Dig. vol. 43, Seamen, §§ 18&, 186; vol. 34, Master and Servant, I 758.]</p> <p>2. Same — Medical Attendance.</p> <p>Where a fireman on a tug was injured in the course of his employment, the fact that the tug was engaged in comparatively short coast-wise trips did not relieve her from the usual obligation of a vessel to her crew to furnish care and maintenance to effect a cure.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Seamen, §§ 39, 187.]</p> <p>3. Same.</p> <p>, The obligation of a vessel to furnish medical, attendance, etc.,' to a seaman injured in her service does not end with the termination of the voyage, where there was not sufficient time or facilities for the vessel to have then performed its duty. ' -</p> <p>[Ed. Note. — For. cases in point,.see Cent. Dig...vol. 43, Seamen, §§ 43,187.]</p> <p>4. Same — Forfeiture 1 of-Right.</p> <p>A seaman injured in the course of his employment by his own negligence does not thereby forfeit his right to cpre and maintenance at the expense of the vessel, where the injury was not caused) by hisi gross negligence or willful neglect of orders, etc.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Seamen, § 187.]</p>

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

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

<p>Master and Servant — Action eor Injury to Servant — Assumption op Risk. A judgment on a verdict for plaintiff in an action t>y a servant against the master to recover damages for a personal injury in which the defense was the assumption of risk by plaintiff affirmed.</p>

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

These causes come here upon appeals from final decrees on cross libels, dismissing the libel of the Bush Company in the first action, and awarding damages and costs to the libelant, the Central Railroad Company, in the second action. The opinion of the court below is printed in 130 Fed. 222.

<p>1. Patents — Anticipation.</p> <p>A patent for a successful machine is not void for anticipation, because a prior machine intended for a different purpose may possibly be capable of use as an inefficient substitute for the later machine.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 66-72.]</p> <p>2? Same — Invention.</p> <p>The conversion of an abandoned machine, which was a failure, into one which is operative and successful, by the introduction of new and ingenious features, however simple, constitutes invention, which may be protected by a patent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 73.]</p> <p>S. Same — Anticipation—Sufficiency of Proof.</p> <p>A patent will not be held void for anticipation by an unpatented machine on the oral testimony of witnesses, the accuracy of which depends upon their unaided recollection of events which occurred 25 years previ? ously, unless it is exceptionally clear and convincing.</p> <p>[Ed. Note; — For cases in point, see Cent. Dig. vól. 88, Patents, § 78.]</p> <p>4; Same — Persons Entitled to Patent as Inventors. ■</p> <p>The right of'one who conceives an invention to patent the same as the sole inventor is not lost because be lacks the mechanical skill to embody his invention in a machine, and employs another to construct such machine.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 68, 118, 125.] .</p> <p>5.-Same — Infringement—Sufficiency of Proof.</p> <p>-,A decree for infringement of a patent will not be reversed on appeal, because the proof shows that the infringing machine was sold by a concern doing business under a different name and style from that of the partiiership of defendants as alleged in the bill, where it also fairly shows that the defendants were the proprietors of. sneh concern, and the fact that they made the sale was not contested in tho trial court.</p> <p>6. Samis — Invention and Iotbingement — Folding Machine.</p> <p>Tho Pine patent, No. 645,871, for a machine for folding the edges of blanks for making cuffs, collars, and like articles, w'as not anticipated in the prior art, and covers a true combination, although of old elements, which discloses invention; also held valid as against the claim that the patentee was not the inventor, and infringed, as to the first four claims.</p>

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

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

<p>1. Patents — Action foe Infringement — Demurreb.</p> <p>The question of the validity of a patent on its face may be raised by demurrer in an action at law for its infringement.</p> <p>2. Same — Novelty—Cab Truss.</p> <p>The Thomas patent, No. 570,148, for a lateral support for the sides and ends of cars, consisting of truss rods extending from the stakes on the outer sides and ends of the car to a plate beneath the car, is void on its face for lack of patentable novelty.</p>

In Equity. Suit to restrain alleged infringement of United States letters patent No. 527,961, issued October 23,1894, to Frank Furness and David H. Watts for “tile floor, wall,” etc. The application was filed March 31, 1894. The main defenses are want of patentable invention in view of the prior art; also noninfringement if complainants’ patent is valid.

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

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

<p>Patents — Infringement—Machine for Turning Cranked Axles.</p> <p>The Blamire patent, No. 663,325, for a machine for turning cranked axles, whatever the real invention, does not cover broadly the general combination of a slotted sleeve and chuck, but only the particular form of it therein described and claimed, and is not infringed by a machine which, while the general equivalent of that of the patent, doing the same work by substantially the same means and in much the same way, is yet materially different in mechanical structure.</p>

<p>On Motion to Direct Witness to Answer Certain Questions.</p>

<p>Trade-Marks and Trade-Names — Unfair Competition — Imitation of Locks.</p> <p>Complainant manufactured a padlock having a brass colored shackle and in a depressed panel on one side the word “Tale” in large letters and on the other side in another panel a trefoil symbol. Defendant, who was also a manufacturer of locks, copied the exterior form and appearance of complainant's lock for a mechanism of his own; the two being generally similar in appearance, except that defendant’s had the word “Tap” in one panel, and a keystone on the reverse side. Each contained the name of 1he maker in small letters on the shackle and the boxes in which they were sold to dealers, each containing a half dozen locks, were dissimilar in appearance. Held, that the resemblances were not such as were calculated to deceive ordinarily intelligent purchasers, and that, in the absence of proof of such actual deception, defendant was not chargeable with unfair competition.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 46, Trade-Marks and Trade-Names, § 81.</p> <p>Unfair competition, see note to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>COTJUSION — 1Tow AND DEEDGE — ÜNSKIIJM'lJr, NAVIGATION.</p> <p>A tug with a helper, towing 27 canal boats through the Arthur Kill, going eastward with the flood tide, held in fault for a collision between boats in the tow and a dredge, with her attendant scow, which were working in the channel; the evidence showing that the tow had 395 feet of clear space, which, with proper navigation, was sufficient to enable it to pass in safety. The dredge held, not in fault for having the scow on the channel side, which was shown to bo the most advantageous for the work.</p> <p>IEd. Note. — Eor cases in point, see Cent. Dig. vol. 10, Collision, §§ 68, 87, 88%.)</p>

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

<p>Post Office — Delivery of Mail— Simii-aeity of Names — Coepoeatious.</p> <p>Complainant, Central Trust Company, a corporation of another state, engaged in business in Chicago, Ill., for a number of years, but until 1903 failed to comply with the requirements of the statute to entitle foreign corporations to do business in the state. In 1902 defendant Central Trust Company of Illinois was Incorporated in that state and also engaged in business in Chicago. Confusion having arisen in respect to the delivery of mail addressed to “Central Trust Company,” complainant filed its bill to require the delivery to it of all mail so addressed. HeM, that defendant, having been the first to lawfully use the name, was prior in right, and that the bill could not be maintained.</p>

<p>In Admiralty. Suit for personal injury.</p>

<p>In Admiralty. Suit in rem for charter hire.</p>

In Admiralty. Suit by seamen for wages. Suit in rem for seamen’s wages.

<p>At Law. Motion by claimant to set aside the verdict of the jury, and a stipulation made after same was rendered, and for a new trial on the ground of newly discovered evidence.</p>

<p>SUBBOGATION — PRINCIPAL AND SUBETY — PAYMENT OF DÉBT BY SUBETY.</p> <p>The holder of a note on which petitioner was surety brought suit against one of the- makers and attached enough of his property to secure payment. About a year thereafter, and while the attachment suit was still pending, but before judgment, petitioner paid the note on demand of the holder; the judgment defendant having about a month before been adjudged a bankrupt. Held, that petitioner was entitled to be subrogated to the rights of the holder under its attachment lien.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Subrogation, §§ 17, 18.]</p>

<p>On Rule for Contempt.</p>

<p>1. Bankruptcy — Petition—Amendment.</p> <p>An application to amend a bankruptcy petition so as to allege facts within the knowledge of the petitioners at the time the petition was filed was fatally defective for failure to allege the reason for the omission, as required by general order No. 11 (89 Fed. vii, 32 C. C. A. xiv).</p> <p>2. Same — Determination.</p> <p>Where an application to amend a petition in bankruptcy proceedings was defective for failure to allege the cause of the omission, the applicant would be granted time to supply the omission.</p>

On Demurrer to Complaint. On October 2G, Í900, an application to purchase the east % of section 3G, township 24 S., range 24 E., of the Willamette Meridian, accompanied: by an affidavit, both purporting to have been signed by one George P. Cook, and the latter to have been verified before H. H. Turner, a notary public, was filed with the clerk of the board of commissioners for the sale of school and university lands, and for the investment of the funds arising therefrom, of…

<p>Submitted on Motion for New Trial.</p>

<p>1. Usury — Burden of Proof.</p> <p>The burden of proof of usury always rests on the party pleading it</p> <p>[Ed. Note. — Eor cases in point see Cent. Dig. vol. 47, Usury, § 308.]</p> <p>2. Same — Evidence—Weight.</p> <p>It is insufficient to establish usury that the circumstances proved render it highly probable that a corrupt bargain was made, but such bargain must be proved beyond a reasonable doubt by the decided preponderance of the evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Usury, §§ 328-339.]</p> <p>3. Bills and Notes — Bona Fide Purchaser — Usury.</p> <p>Where W. became the holder of a note alleged to have been given as a bonus for a loan pursuant to a usurious contract, for full value before maturity and without, notice of any illegality or infirmity connected therewith, the defense of usury was not available as against him or his executors.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 982-984.]</p> <p>4. Usury — Pleading.</p> <p>Where a plea of usury failed to set forth the facts and circumstances of the alleged usurious contract with, any degree of precision, and contained no direct averment of a corrupt intent, and did not precisely state the terms and nature of the usurious agreement or transaction with all the facts and circumstances relating thereto, it was fatally defective.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Usury, §§ 272, 279-281, 285, 286, 294, 295.]</p>

<p>1. Monopolies — Combinations in Restraint op Interstate Commerce — Indictment.</p> <p>An indictment under section 1 or 2 of the anti-trust law of July 2, 1890 (chapter 617, 26 Stat 209 [U. S. Comp. St. 1901, p. 3200]), for engaging in a combination in restraint of interstate commerce, or for attempting to monopolize a portion of the same, sufficiently sets out the time of the combination or attempted monopoly when it alleges the time when the several act relied on to establish the offense were done, and it is not essential to set out the precise time when the purpose was formed or the plan of the combination or attempted monopoly was first devised.</p> <p>% Same — Combination and Conspiracy.' '</p> <p>Such an indictmént for engaging in a combination and also for a con- ' spira.cy.in restraint of interstate .commerce considered, and líela, ta suffi- . ciently describe the combination and conspiracy.</p> <p>3. Indictment — Duplicity. • -</p> <p>An indictment under the anti-trust law of July 2, 1890 (chapter 647, 26 -Stat. 209 [U. S. Comp. St. 1901, p. 3200]), charging in separate counts •a combination and a conspiracy in restraint'of interstate trade and an attempt to monopolize a portion of such trade, all based in the same transf actions, is not bad for duplicity as to either count, on the theory that each alleged overt act set out to support the charge of conspiracy is charged as a separate offense.</p> <p>LEd. Note. — For eases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 337-349.] ■</p> <p>4. Monopolies — Combinations tn Restraint of Interstate Commerce — Indictment' — Joinder of Defendants — Corporations and Officers.</p> <p>In an indictment' under the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901. p. 3200])’, the offenses thereunder being made misdemeanors, all who aid in their commission may be charged as principals, and a corporation and its officers, who personally participate in committing the same, may be joined as defendants, although their acts .may have been separate and not done at the same time.</p> <p>5. Same — Nature of Sciiemes Prohibited — Effect'on Interstate Commerce.</p> <p>Whether any given business scheme falls within the prohibition of the anti-trust law of July 2, 1890 (chapter 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), as a combination or conspiracy in restraint of interstate commerce, or an attempt at monopoly of a portion thereof, is to he determined by its effect on interstate commerce, which need not be a total suppression of trade nor a complete monopoly, but it is sufficient if its necessary operation tends to restrain interstate commerce, and to deprive the public of tlie advantages flowing from free competition.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig: vol. 35, Monopolies, §§ .10-14.] . . • • . . ■</p> <p>6. Same.</p> <p>A secret arrangement between- two corporations, which together produced about 85 per cent,, of.all the licorice paste consumed in the’United States and sold to consumers throughout .the country, by which they ceased ' competition, fixed from time to time the prices- at which each should sell, and. apportioned the customers between'them, and also by concerted action secured contracts with, their chief, if not only competitors, which enabled them to control eitíiér the output of sucli competitors or the prices at which and the persons to whom they should sell, and in pursuance of which scheme they were enabled to and did advance the price of the artide to all purchasers nearly 50 per cent, within a few months, was one directly affecting interstate commerce, and constitutes a comhi-nation and conspiracy' in restraint of such commerce, and an attempt to monopolize a portion,of-the same,, within, the prohibition of the anti-trust law of July 2, 1890 (chapter 647, 20 Stat. 209 '[U: S. Oomp. St. 1901, p. 3200]).</p> <p>[Ed.-Noté: — For cases ip point, see Cent. Dig. vol. 35, Monopolies, §. 13,3</p> <p>7. Same — Joinder of Defendants in Indictment.</p> <p>. . In- an indictment against such .corporations under the statute, their presidents, who are alleged to have personally made the arrangement and participated in carrying it out, may he joined as defendants, and cannot claim immunity on the ground that they were not. personally engaged in interstate commerce. . ...</p> <p>8. Corporations — Criminal Responsibility — Conspiracy.</p> <p>A corporation may be liable criminálly for tlie crime of conspiracy.'</p> <p>9. Monopolies — Indictment under Anti-Trust Law — Joinder of Defendants. ' ’</p> <p>A number of defendants may be 'Charged jointly, under section 2 of the ¡lull-trust law of July 2, J 890 (chapter 647, 26 Stat. 209 [TJ. S. Comp. SI. 1901, p. 3200]), with the crime of attempting to monopolize a part of interstate commerce. ■ \ ,</p>

<p>On Defendants’:..Motion in .Arrest of Judgment and to Set Aside ' the Verdict. ■ '.....•</p>

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

<p>1. Aliens — Chinese—Exclusion—Registration—Judgment.</p> <p>A judgment in habeas corpus proceedings, remanding a Chinese person to the custody of the master of a vessel in which he immigrated, for deportation, was vacated by the subsequent passage of Act Cong. May 5, 1892, c. 60, 27 Stat. 25, as amended by Act Nov. 3, 1S93, c. 14, 28 Stat. 7 [U. S. Comp. St. 1901, p. 1320], providing for the registration of Chinamen entitled to remain in the country and the registration of petitioner thereunder.</p> <p>2. Same — Registration—Effect—Collateral Attack.</p> <p>Act Cong. Nov. 3, 1893, c. 14, § 6, 28 Stat. 7 [U. S. Comp. St. 1901, p. 1321], requires Chinese laborers entitled to remain in the United States before the passage of the Chinese exclusion act to apply to the collector of internal revenue of their respective districts within six months for certificates of residence, and that any Chinese laborer refusing so to register should be deemed and adjudged unlawfully within the United States, and might be arrested, etc. Held that, where a Chinese person was duly registered under such act as a native-born citizen, such registration was not subject • to collateral attack in a proceeding to enforce a judgment of deportation rendered against him before the registration law took effect.</p>

In Admiralty. 'Suit in rem by passengers to recover damages for failure of the carrier to furnish suitable accommodations and food on a voyage at sea, and also to recover penalties under section 4465, Rev. St. Ú. S. [U. S. Comp. St. 1901, p. 3046], for the carrying of an excessive number of passengers. Hearing on the merits. Libel dismissed.

<p>In Equity. On bill to quiet title.</p>

<p>1. Collision — Steam Vessels Passing — Delay in Acting on agreement.</p> <p>The large freight steamer Lake Shore was swinging out from her dock in Buffalo river to start on her trip up the Lakes as a steam barge was entering the river 1,000 feet distant. The barge, seeing that the steamer was moving, gave her a signal of one whistle to pass port and port, which, not being answered, was repeated. The Lake Shore about that time sounded two whistles, but the barge, which was going to starboard immediately. blew an alarm, and repeated her one blast, which was then acceded to bv the steamer. At this time the barge was 100 feet distant, with her helm hard aport and her engine stopped. The steamer, however, continued her swing to port, and struck the barge on her port bow. Held, on the evidence, that the Lake Shore was solely in fault for failing to maintain an efficient lookout or to promptly stop her swing after assenting to the signal of the barge, as she might have done, and that the barge was not in fault, having stopped her engine and being as close to the south pier as she could safeiy go.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 203.]</p> <p>2. Same — Vessel Under Way.</p> <p>Where a steamer had left her berth, her propeller was moving and she exchanged passing signáis with another vessel, she cannot escape liability for alleged negligent navigation on the ground that she was not under way.</p>

<p>1. Copyrights — Name of Book — Expiration of Copyright — Effect.</p> <p>Where defendants procured a copyright on a dictionary in 1847, which was published under the name “Webster’s Unabridged Dictionary,” on the expiration of the copyright both the work and the generic" name “Webster” became public property.</p> <p>2. Trade-Marks and Trade-Names — Copyrighted Books — Expiration of Copyright — Use of Name.</p> <p>Where the name “Webster,” ás applied to dictionaries, referred to a publication copyrighted in 1847 under the name “Webster’s Unabridged Dictionary,” and also acquired a secondary meaning, indicating to the public a particular book published and sold by defendant, who owned the copyright, on the expiration of the copyright complainant, though, entitled to use the word “Webster” as applied to a reprint of the dictionary published by him, must so use it as to unmistakably inform the public that his book is not that published by defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. rol. 46, Trade-Marks and Trade-Names, § 86.]</p> <p>3. Same — Evidence.</p> <p>On the expiration of the copyright on Webster’s Unabridged Dictionary, complainant started to publish a dictionary which was a reprint of and founded on the original, and which he called “Webster’s Dictionary” or “Webster’s Imperial Dictionary.” On the back or cover of complainant’s book was printed complainant’s name "George W. Ogilvie,” and upon the title page was printed “George W. Ogilvie, Publisher.” Held that, as there was no trade-mark in the ordinary form and size of the book, complainant had done all that the law required to distinguish his book from dictionaries published by defendants under the name “Webster’s International Dictionary.”</p> <p>4. Same — Unlawful Competition — Advertising.</p> <p>Where, after the expiration of a copyright on Webster’s Unabridged Dictionary, complainant published a dictionary called “Webster’s Dictionary” or “Webster’s Imperial Dictionary,” which he advertised by misleading circulars, intending to convey the impression that complainant’s book was a new edition of the dictionary published by defendant company, and was the successor of a later dictionary published by defendants known as “Webster’s International Dictionary,” complainant having taken portions of the printed matter in the circulars and advertisements of the International Dictionary and inserted them in his circulars and advertisements, he was guilty of unfair competition.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 46, Trade-Marks and Trade-Names, § 86.</p> <p>Unfair competition, see Scheuer v. Muller, 20 G. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>In Bankruptcy. Motion to confirm report of special master to whom this matter was referred and for an order thereon adjudging Mary E. Johnson a bankrupt.</p>

<p>1. Perjury — Public Lands — Entry— Oath — Authority to Administer.</p> <p>Act Cong. June 3, 1878, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p." 1545], providing for the sale of public lands, restricts the quantity to 160 acres to any one person, and section 2 requires the applicant to file with the register a written statement under oath that he does not apply to purchase the land on speculation, but in good, faith to appropriate it to his exclusive use, and that he has not made any agreement or contract to convey the same. Section 3, 20 Stat. 90 [U. S. Comp. St. 1901, p. 1545], provides that ií no adverso claim shall be filed after publication of notice of .the application, the applicant, on furnishing the register of the land office satisfactory evidence of the publication of the notice, that the land is unoccupied, and apparently contains no deposits of gold, etc., and on paying the purchase money and fees, shall be entitled to a patent. The act also authorizes the Commissioner' of the General Land Office to make regulations for the carrying of its provisions into effect, and one of the regulations so made requires the register of the land office to examine, the applicant under oath with reference to the good faith of his application. Held, that section 3 did not preclude the land officers from requiring proof of the good faith of the application as a part of the applicant’s final proof, and that the register of the land office had express power to administer an oath to the applicant on such examination, as provided by Rev. St. § 2240 [ü. S. Comp. St. 1901, p. 1371], the falsity of'which could he the basis of a prosecution for perjury.</p> <p>2. Public Lands — Timber Lands — Sale—Application—Truth of Pacts.</p> <p>Act Cong. June 3, 187S, c. 151, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545], provides for the sale of public timber lands on an application under oath, stating, among other things, that the application'is made for the sole benefit of the applicant, and not for the purposes of speculation or sale, and that on subsequent proof of the publication of notice and certain other facts, and payment of the purchase price and fees, a patent shall issue to the applicant. Held, that the facts stated in an application, including the fact that the application is not made for the purpose of sale, must not only be true when made, hut must also he true when the land' is paid for and the applicant receives his certificate of purchase or receiver’s receipt.</p> <p>3. Perjury — Subornation of Perjury — Public Land — Affidavit.</p> <p>Rev. St. §§ 5392, 5393 [TJ. S. Comp. St. 1901, pp. 3053, 3654], declares that every person who, having taken an oath before a competent officer, in any case in which a law of the United States authorizes an oath to be administered, that he will testify truly, willfully and contrary to the oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and every person who procures another to commit any perjury is guilty of subornation of perjury. Held that, where an indictment charged that defendant induced C. to make application for the purchase of timber lands, as authorized by Act Cong. June 3, 1878, c. 15Í, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545], and in the furtherance of such application to make a false oath at the time of final entry with reference to the good faith of the application, which the register of the land office was authorized to administer by Rev. St. § 2246 [U. S. Comp. St. 1901, p. 1371], and by the regulations of the land department, it sufficiently charged the offense of subornation of perjury.</p>

<p>1. Conspiracy — Indictment—Construction.</p> <p>An indictment alleging that defendants during all the times between , May 25, 1902, and the commission of the last overt act therein set forth continued to conspire together to defraud the United States of the title to Its public lands in the manner ail'd by tlie means agreed on between them on May 25, 1902, was no-t equivalent to a charge that defendants subsequent to that date entered into a new conspiracy to accomplish 1heir unlawful design, but was merely an allegation that the conspiracy formed on that day was never abandoned, but was in continuous operation thereafter until tlie date of the last overt act charged.</p> <p>2. Same — Statutes—Construction.</p> <p>Rev. St. § 5440 [U. S. Comp. St. 1901. p. 3070], provides 1hat, if two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner, and one or more of them do any act to effect the object of tlie conspiracy, all shall be liable to a penalty, etc. Held, that tlie offense defined by such section was a continuing one so long as it was in process of execution, as manifested by overt acts in pursuance thereof.</p> <p>3. Cixtminat, Law — Limitations.</p> <p>The crime denounced by such section consists in putting a corrupt agreement into active operation, and hence limitations run from the date of the last overt act committed for the purpose of completing the object of the conspiracy.</p> <p>[Kd. Koto. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 275.]</p> <p>4. Conspiracy — Several Prosecutions.</p> <p>There can be but one prosecution for conspiracy in violation of Rev. St. § 5440 [U. S. Comp. St. 1901, p. 8676], regardless of tlie number of overt acts committed in pursuance thereof.</p>

<p>1. Shipping — Charter Party — Construction.</p> <p>Respondent chartered a yacht for a specified sum for a portion of the year 1905, the charter providing for a deduction from the consideration in case the yacht from any accident arising from any defect therein should be disabled for a period of more than 48 hours. The charter also provided that the owner agreed to let, and the hirer agreed to hire, the yacht for the time specified; that the owner should fit out the yacht, and hand her over to the hirer tiglit, staunch, strong, and in every way fitted for service, and provide an efficient crew, clothe them, and pay their wages; that the owner should assume the responsibility of fire and marine risks, and. the hirer should be responsible for any injury amounting to less than $100, should pay the running'expenses of the yacht other than the wages of the crew, and should have control of the captain and engineer, with authority to discharge them. Held-, that such contract was a letting of the vessel, and not a mere contract of service, so that the charterer became the owner for the voyage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 149-155.]</p> <p>2. Same — Evidence.</p> <p>In an action to recover the balance due on a charter party, evidence held, insufficient to show that an injury to the yacht was caused by a defect •in her outfit, within a provision in the charter party that, iu case she should become unfit for use for a period of more than 48 hours because of any defect in her outfit, there should be a pro rata return of the charter money to the hirer.</p> <p>3. Same — Injuries to Vessel.</p> <p>Where a charter party required the hirer to recleliver the yacht to her owner in the same condition in which he received her, and when she was delivered the bladefe of both her propellers were bent, her owner was entitled to recover the expense incident to the repair thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 219-221.]</p>

<p>1. Master and Servant — Death op Servant — Negligence—Fellow Servants — Servants op Separate Masters.</p> <p>The C. Railroad, by which decedent was emploj'ed as engineer, used the tracks of defendant company for a certain distance entering Philadelphia, and decedent, on approaching the junction with a fast freight, found the tower signal turned against him. He waited six minutes, when a white light was displayed from the tower, signaling his train to proceed, which signal indicated that decedent had the right of way, and) that the track to the south was unobstructed. When decedent’s train arrived at a point somewhat south of the signal station, it struck the engine and tender of a local freight train belonging to defendant company, which was crossing from the south to the north-bound track, and the engineer of such freight testified that, in violation of the rules, he had been on the south-bound track after cars, without having a man out either ahead or behind his train to guard against accidents. Held, that neither the operatives of defendant’s train nor the signalman in the tower, all of whom were employed and paid by defendant company, could be regarded ns decedent’s fellow servants.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 484.]</p> <p>2. Railroads — Injury to Operatives — Accident to Trains — State Statutes —Application.</p> <p>Pub. Laws Pa. 186S, p. 58, provides that when any person shall sustain personal injury or loss of life while engaged or employed on or about the roads, works, depots, and premises of a railroad company, or on or about any train or car therein or thereupon, of which company such person is an employs, the right of action and recovery in all such cases against the company shall be only such as would exist if such person were an employs, etc. Held, that such act had no application to an action for the death of an employs of one railroad company while rightfully using the tracks of another, caused by the negligence of the employés of the latter.</p> <p>3. Same — Contributory Negligence.</p> <p>Decedent, a railroad engineer, on approaching a junction with the tracks of another company which decedent was entitled to use, found the signals turned against him, and thereupon waited until he was signaled by the towerman of the company owning the tracks to proceed, which he did, and immediately collided with a train belonging to the latter company negligently on the track. Held, that decedent was not negligent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 941.]</p> <p>4 Death — Burden op Proof. ■</p> <p>In an action for death of a railroad engineer, the burden is on the defendant to show that deceased was- negligent, and that his negligence contributed to the injury resulting in his death; it being presumed, in the absence of evidence to the contrary, that decedent exercised proper care in order to protect his own life.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, §§ 75, 76]</p> <p>5. Same — Damages—Excessiveness.</p> <p>Decedent, a railroad engineer, 25 years of a go, in good health, industrious, and of good habits, was killed through defendant’s negligence. Decedent was earning from $100 to $130 a month, most of which he gave to plaintiff, his mother, who was about 54 years of age. There was also evidence that decedent was thrifty and careful in matters of expenditure. Hold, that a verdict awarding plaintiff $7,500 was not excessive.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, § 125.']</p>

<p>Shipping — Contract Giving Lien on Cargo por Demurrage — 'Validity.</p> <p>Certain railroad materials were shipped on a chartered vessel from Seattle to Nome, Alaska, consigned to the charterer. Owing to his inability to obtain lighters to discharge such cargo, the ship remained at Nome until a claim for demurrage accrued under the charter, and was finally compelled by the close of the season to bring such cargo back to Seattle. By agreement between the master and the charterer it was. there discharged to remain subject to the vessel’s lien for demurrage. In a suit brought to enforce such lien, a corporation, of which the charterer was president and general manager, appeared as claimant and set up title to the property, and that it had paid the freight in advance to iho charterer, but. the bill of lading on which the shipment was made did not disclose such ownership, nor was it known to the owners or 'master of the vessel; claiinant’s vendors being named as the consignors. Held, that the lien was valid, having been given by the owner of the legal title, and also valid if he be regarded as the general agent of claimant, and claimant as the owner, since it w.as through his default as such agent that the demurrage arose.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol, 44, Shipping, § 597.]</p>

Action to Quiet Title. The plaintiffs bring this suit to quiet the title to 54y2 acres of land situate in Multnomah county, Or., being a portion of the south half of the William Blackistone Donation Land Claim.

<p>In Admiralty. Proceeding for limitation of liability.</p>

<p>In Admiralty. Action for breach of charter party.</p>

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

<p>1. Seamen — Personal Injuries — Liability op Vessel.</p> <p>Where a seaman was injured by the breaking of a runner passing through the eye Of the rope by which the mizzen topgallant yard was hauled up, the fact that a storm had subjected the runner to a very unusual strain did not constitute, a defense to the ship’s liability for the seaman’s injuries, in the absence of a showing that there had been an adequate inspection to determine the sufficiency of the runner thereafter.</p> <p>[Ed, Note. — Eor cases in point see Cent. Dig. vol. 43, Seamen, § 188; vol. 34, Master ánd Servant, § 211.]</p> <p>% Same — Contributory Negligence.'</p> <p>Where á sailor was injured by the breaking of a runner, while or Imm'ediately after he bad-ridden down the halyards, which was forbidden because it tended to put unnecessary strain on the runner, the seaman was guilty of negligence which contributed to his injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Seamen, § 189; vol. 34, Master and Servant, § 775.]</p>

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

<p>Collision — Schooner and Meeting Tow.</p> <p>A tug- with, two loaded mud scows in tow held solely in fault for a collision between the scows and a meeting schooner in the Swash Channel at night; it appearing by a preponderance of the evidence that she crossed the bow of the schooner immediately before the collision.</p>

<p>Copyright — Shit for Infringement — Preliminary Injunction.</p> <p>Tlie showing on a motion for a preliminary injunction to restrain alleged infringement of complainant’s copyrighted directory held not to warrant the granting of such injunction, but sufficient to make it proper to require defendant to give a bond for the payment of any damages complainant might recover.</p> <p>„ [Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Copyrights, § 78.]</p>

<p>Bankruptcy — Insolvency—Liability oj Bankrupt tor Debts op Business Conducted in His Nahe.</p> <p>One Sehloss, an alleged bankrupt, was the manager and apparent head of a store conducted under the name of the “Sehloss Department Store,” and goods wore ordered for and came shipped to it in that name. Ho had printed and used billheads with that name upon them, kept the bank account of the business in his own name, and on one occasion made a statement showing his financial condition when, ordering goods for the store. Held, that .he could not avoid liability for the debts contracted in the business on the ground that another was the real party in interest, and he was merely an employé, where such fact was not stated to nor known by the «’editors, nor defeat bankruptcy proceedings on the claim of solvency where the concern was insolvent.</p>

<p>1. Bankruptcy — Discharge—Evasiveness—False Testimony.</p> <p>That the testimony of a bankrupt was probably subject to criticism for evasiveness, and may have been false in some particulars, was insufficient to justify the denial of a discharge.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 732.]</p> <p>2. Same — Composition—False Oath — Willeullness.</p> <p>Where acceptance of a bankrupt’s offer of composition was recommended by the trustees, the fact that the referee reported that the bankrupt had made a false oath in the proceeding in which he denied making a financial statement in August, 1906, was Insufficient to justify the court in rejecting the compromise on the objection of an unsecured creditor, the proof being insufficient to show that the offense was committed “fraudulently” or “knowingly.”</p>

<p>1. Malicious Pkoseoution — Action—Elements.</p> <p>In order to establish a cause of action for malicious prosecution, plaintiff must allege and prove that the prosecution was without probable cause, and also that it ended in plaintiff’s favor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, §§ 18, 21, 70, 72.]</p> <p>2. Same — Acquittal.</p> <p>Defendant’s want of probable cause in an action for malicious prosecution does not excuse plaintiff from showing that his prosecution ended in his acquittal or its equivalent.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 33, Malicious Prosecution, §§ 72, 110.]</p>

<p>Collision — Fault—Evidence.</p> <p>In a libel for collision between a tug and a steamship, evidence held to require a finding that both vessels were at fault; the tug for navigating too'near to the shore, and the steamer for throwing her stern into the stream without a lookout astern to determine whether the lateral motion of the stern to port would interfere with the navigation of another vessel.</p>

<p>’On Demurrer to’ Statement.</p>

<p>Trade-Marks, ax'd-Trade;-Nambs — Unfair Competition — Simulation of Cigar Bands.</p> <p>. A preliminary injunction granted restraining defendant from using upon individual cigars of panatella shape bands simulating those of complainant in shape add colors.</p> <p>'.'j.'ftf [Ed. Note. — For.eases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names,, § 108.]</p>

<p>1. Injunction — Motion foe Preliminary Injunction — Amendment of Bilí..</p> <p>An amendment to a bill offered by a complainant on tho hearing of a motion for a preliminary injunction, where no answer has been filed and complainant has the right to amend as of course, will bo accepted and considered as a part of the application for injunction; especially where it relates to a formal matter not affecting the merits.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 27, Injunction, § 316.]</p> <p>2. Courts — Jurisdiction of Federal Court — Amount in Dispute.</p> <p>A bill in a federal court for an injunction to restrain defendants from interfering with complainant’s business, which alleges that the value of the matter in dispute exceeds, exclusive of interest and costs, the sum of $25,000, and that complainant has been damaged by the acts of defendants in more than such sum, is sufficient, in the absence of any denial of such averments, to sustain the jurisdiction of the court.</p> <p>3. Parties — Voluntary Associations — Parties by Representation.</p> <p>Where a voluntary association, with many members, is represented by a committee or regularly ^ constituted officers, a suit may be maintained against such officers or members- of the committee in their representative capacity, and in such case the association will be deemed before the court without bringing in all of the members.</p> <p>4. Associations-Liability of Members — Acts of Subsidiary Association.</p> <p>Whore a voluntary association creates a subsidiary or branch association as an instrumentality through which to accomplish certain purposes, it is liable for the acts of such subsidiary association to the same extent as though such acts had been done by the entire membership. ,</p> <p>!5. Injunction — Grounds—Unlawful Interference With Complainant’s Business.</p> <p>Defendant, which was a voluntary association, • composed of numerous firms and corporations doing business throughout eastern Washington, some of whom were dealers in crockery, some in vehicles, some in stoves and ranges, and others in hardware, organized a subsidiary association. known as the “Peddlers’ Association,” and contributed funds to be used for tho purpose of “competing with the peddlers.” It was made tho duty of every resident agent, upon learning of a peddler of ranges or vehicles offering to sell in his community, to immediately “offer him competition” by taking goods of like kind and quality, or catalogues of such goods, "together with teams and sufficient men to do so successfully, and accompany tho peddlers on tlielr rounds,” and to explain to farmers and others who might buy that they could do better with local dealers; giving them the privilege of buying from any dealer in the community. Complainant was a manufacturer of wagons and buggies in another state, some of which were shipped to Washington, and there sold by agents, who took a number of vehicles, and drove through the country, selling them to farmers, and had thus built up a profitable business. Defendant, in pursuance of its said scheme, through its officers and committee, employed two men to follow each of complainant’s agents. They stopped at the same hotels and stables, started out when he started, followed him to every prospective customer, and interfered with the conversation. Some carried guns and revolvers. Held, that such acts were not competition, nor intended as such, but to suppress competition by destroying complainant’s lawful business;' that they were done pursuant to an unlawful conspiracy between persons, some of whom were not even competitors, to interfere with cornplainant’s lawful right to carry on its business, and their continuance would be enjoined.</p> <p>[Ed. Note. — Eor cases in point, see Gent. Dig. voi. 27, Injunction, §§ 108, 170, 172.]</p>

<p>', In Admiralty. On motion to substitute claimants and for leave to bring in new parties.</p>

<p>In Admiralty. Suit to recover charter hire, and cross-libel for breach of charter.</p>

At Law. This action for treble damages, under section 7 of the Sherman act (Act July 2, 1880, c. 647, 26 Stat. 210 |"U. S. Comp. St. 1901, p 3202]), came on for' trial before Hough, District Judge, and a jury.

<p>1. Landlord and Tenant — Construction of Lease — Deposit to Secure "Rent.</p> <p>To secure performance of the conditions of a lease by the lessee, it deposited $5,000 with the lessor, to be held by him and, in case the lessee performed the full covenants of the lease through the term, to be applied on the rent for the last six months. On this deposit the lessor agreed to pay interest. Held, that such agreement created the-relation of debtor and creditor only between the parties with respect to the $5,000, and that the bankruptcy of the lessor and the threatened foreclosure of a mortgage on the property antedating the lease did not entitle the lessee to cease paying rent so long as it continued to occupy the property.</p> <p>2. Mortgages — Right of Mortgagee to Rents — Effect of Assignment in Mortgage.</p> <p>A provision in a mortgage, following the usual one giving the mortgagee a right to a receiver of rents and profits in case of default, that “the said rents and profits are hereby, in the event of any default or defaults in the payment of said principal or interest, assigned to the holder of this mortgage,” operates merely as a pledge of the rents, to which‘ the pledgee does not become entitled until he asserts his right in some legal form, as by an application for a receiver and a demand by such receiver.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 515, 516.]</p>

<p>1. Removal of Causes — Amendment of Retition.</p> <p>Where a cause lias been removed on the ground of diversity of citizenship on a motion to remand on the ground that plaintiff sues as assignee of a chose in action, and that the petition for removal does not show the citizenship of the assignors, the court has power to permit its amendment to show, according to the fact, that their citizenship was such as to give jurisdiction.</p> <p>[Ed. Note. — For. cases in point, see Gent. Dig. vol. 42, Removal of Causes, § 178.]</p> <p>,2. Courts — Jurisdiction of Federal Courts — Suit bt Assignee.</p> <p>In an action against two railroad companies, the complaint alleged the delivery of goods to one which it accepted as a common carrier, and agreed and undertook to carry and safely deliver to the second; that it failed to take proper care of such goods, whereby they became damaged and injured in transit; that it delivered the same to the second company, which accepted them as a common carrier, and agreed and undertook to carry them and safely deliver them to a third company, but, in violation of its agreement and duty, diverted and unreasonably delayed the shipment; and that the goods were finally sold by' both defendants without notice to plaintiff. Held, that the action was one for breach of duty as a carrier, arising by operation of law or by express contract, and in either case was in tort, and not to recover on a chose in action within the meaning of section 1 of the federal judiciary act of March 8, 1875 (18 Stat. 470, c. 137 [U. S. Comp. St. 1901, p. 508]), and might, therefore, be brought in a federal court by an assignee without reference to the citizenshin of his assignor.</p>

<p>1. Contracts — Action fob Breach — Defenses.</p> <p>Defendants, who were contracting engineers, entered into a provisional agreement with plaintiffs to investigate a project for the construction of a pipe line in California to supply water to a city and for irrigating purposes as set forth in a prospectus furnished by plaintiffs, and if found satisfactory to enter into a contract to construct the line and reservoir for a certain sum and a share of the stock of a corporation to be organized and to which the property was to be conveyed. One of defendants spent a month in personally investigating the proposed line, water supply, etc., with full opportunity to learn all of the facts as fully as they were known to plaintiffs. Afterward they entered into a final contract, the property and rights of way which had been secured by plaintiffs were conveyed to them, and they entered upon the preliminary work, but soon abandoned it and refused to proceed further. Held, that they could not defend against liability on the contract on the ground that it was induced by fraudulent representations.</p> <p>[Ed. Note. — For cases in point, see vol. 11, Cent. Dig. Contracts, §§ 424-427.]</p> <p>2. Damages — Breach of Contract — Anticipated Profits.</p> <p>Plaintiffs and defendants entered into a contract which contemplated the construction of a pipe line to supply water to a city and for irrigating purposes. Defendants were to construct the line and reservoir and were to receive in payment $110,000 from plaintiffs and one-lialf the stock of a corporation to be formed, and to which the property was to be conveyed ; plaintiffs to retain the remainder. Preliminary surveys and measurements developed the fact that the cost of the line would be largely in excess of the estimates, and that the water supply was far less, and defendants abandoned the contract, and the project was never carried out. Held that, in an action for the breach, plaintiffs were not entitled to recover for anticipated, profits which under the evidence were too uncertain, speculative, and doubtful, nor for expenditures made by them in connection with the project prior to the contract; but that the measure of damages was the amount expended by them in reliance upon the contract after it was made and before its final abandonment.</p> <p>[Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Damages, §§ 74-76.]</p>

<p>In Error to the Circuit Court of the United States, for the V/estern District of Virginia, at Lynchburg.</p> <p>On the 18th day of April, 1902, Fitzhugh Stanley, an employs of the Lynchburg Cotton Mill Company, was injured in the course of his employment; and on the 21st of April, 1903, he recovered a judgment for damages on account thereof, in. the circuit court of Campbell county, against the cotton mill company for $5,000 and costs, which judgment was subsequently affirmed by the Supreme Court of Appeals of Virginia in March, 1904. At the time of the accident to Stanley, the plaintiff in error had an employer’s liability policy issued by the defendant in error for an amount not to exceed $2,500 for injury to any one person; and ih said policy the insurance company undertook to defend at its own expense, and in the name and on behalf of the assured, any suits for damages covered by its policy. The present suit was instituted by the plaintiff in error herein, in the corporation court of the city of Lynchburg, to recover from the defendant in error herein the sum of $2,782.93, being the amount claimed under the accident policy aforesaid as their liability on the judgment recovered by said Stanley. The case was by appropriate proceedings removed from the corporation court of Lynch-burg to the United States Circuit Court for the’ Western District of Virginia. Upon the docketing of the same in the latter court the defendant pleaded nonassumpsit, and issue was joined thereon, and subsequently filed its special plea in writing setting up in bar of tlio plaintiff’s right of recovery the 30 days’ limitation within which suit should be brought, as prescribed by clause 14 of the policy sued on. To this special plea the plaintiff replied, setting forth certain correspondence had by and between it and the defendant company and its representatives, looking to an adjustment of the controversy, and whereby, as claimed by "the plaintiff, the benefits of clause 14 of the policy were waived, and that in any event such compromise was not abandoned by the defendant until the ltitli day of September, 1904, a period of less than. 30 days before the institution of this suit. To this replication the defendant filed its rejoinder, likewise setting forth a letter from defendant’s counsel to the plaintiff, dated the 10th of August, 1904. whereby the defendant insisted that the negotiations looldng to a compromise ended on the date of said letter of the 10th of August, and that the failure of the plaintiff to institute its action within 30 days from that date, said suit not having been commenced until the 10th day of October, 1904, barred a recovery, and the said defendant, on account thereof, craved judgment against the plaintiff. Upon the issues 11ms joined a jury was impaneled, and after the conclusion of all the evidence the court, on motion of the defendant, instructed a verdict in, its favor, 1o which action of the court, as well as to sundry rulings made pending the trial, upon the admission and exclusion of evidence, exceptions were duly taken by the plaintiff, and this writ of error sued out to this court. A preliminary motion was submitted to this court involving the technical question of the sufficiency of the bill of exceptions certifying the evidence in the case, and that motion at a previous term of the court was in an oral opinion decided in favor of the defendant, the two circuit judges concurring therein, and the writer dissenting. The evidence, therefore, so far as contained in said bill of exceptions, is eliminated, and the case is now before the court solely upon the propriety of the rulings of the lower court upon the questions raised by the pleadings, and upon the admission and rejection of evidence pending the trial, and the entry of judgment for the defendant.</p>

On July 12, 1904, one W. M. Morgan, who resides and does business in Corsicana, Navarro county, Tex., made his application to the Linstroth Wagon Company, the appellant, at its place of business, in St. Louis, Mo., to buy a lot of its wagons on a credit of four, six, and eight months.

Appeal and Cross-Appeal from the Circuit Court of the United States for the Southern District of Georgia. This is a suit in equity by Jennie L. Graves, Minnie C. Graves, and Ida Graves, citizens of New York, against H. T. Crawford, William McMullin, John BÍcMullin, W. W. Ashburn, and John W. Hightower, citizens of Georgia.

• In Error to‘the Circuit Court of the United States for the Western District of Wisconsin. To review the judgment of the Circuit Court in an action brought by plaintiff in error to recover $45, claimed to have been illegally exacted by defendant in error as a charge for icing service rendered in connection with the transportation of a car load of peaches, this writ was prosecuted.

<p>Petition to Review, in Matter of Law, a Decision of the District Court of the United States for the Northern District of West Virginia, at Clarksburg.</p>

Appeal by the trustee in bankruptcy of the Hansen Mercantile Company from an order allowing the claim of Johnson. In February, 1901, Johnson sold to Hansen his interest in a mercantile business previously owned in partnership, and in part payment took Hansen’s personal notes for $9,000. Hansen continued the business in his own name for nearly two years. He removed the goods to another town and reduced the principal of the notes to $7,500.

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

<p>Bankruptcy — Acts op Bankruptcy — Mortgages.</p> <p>Within four months preceding the filing of a bankruptcy petition H. & Co. purchased a stock of goods for $3,UO0. paying $100 in cash and giving notes for the remainder. At the same time they gave a chattel mortgage on the goods so purchased to secure the payment of the notes, which mortgage covered all additions to the stock and all stocks that might thereafter be consolidated with it. Immediately after the purchase and execution of the mortgage H. & Co. consolidated such stock, which was worth the price agreed to be paid for it, with that which they had previously owned, acting in good faith and in accordance with the previous intention to unite the two stocks, so tha't the mortgage should cover both. Reid, that the execution of such mortgage did not constitute an act of bankruptcy.</p>

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Tills was an action by Alphonzo Benjamin Bowers against tbe Lake Superior Contracting & Dredging Company to recover royalties alleged to be due under a license for tbe use of certain patented inventions connected with hydraulic dredges. At the conclusion of the evidence the trial court directed a verdict for the defendant, and the plaintiff prosecutes this proceeding in error.</p> <p>Bowers was the owner of a number of patents on dredging machines, and one Barker was the owner of a hydraulic dredge known-as the “West Superior,” which contained some of the patented features and which he had been operating without the consent of Bowers in the performance of a contract with the United States to do certain dredging work in the harbors of Duluth and Superior at the western end of Lake Superior. In May, .1899, Bowers and Barker entered into a contract embracing a settlement for past violations, and granting to Barker a license to use the patented inventions on Lake Superior and tributary waters for tbe remainder of the terms of the patents. The license ran to Barker alone, and not to his heirs and assigns. It was therefore not assignable. The agreed royalty was one cent per cubic yard of material excavated under tbe government contract, and 2y2 cents per cubic yard of material .excavated under other contracts. Barker operated under the license during the season of 1899. In the autumn of that year he requested by letter certain changes in the contract of license, and on November 9, 1899, Bowers replied, granting his request only in part, and authorizing the interpolation in the written contract of certain words, among which, were “heirs, representatives and assigns,” for the purpose of making the license assignable. Bowers’ consent to this, however, was conditional. After saying that he expected interest at the rate of 7 per cent, upon the several amounts of royalty then past due and unpaid, he concluded his letters as follows: “Please send me drafts for these sums with said interest The aforesaid changes in the license are to be made and become effective only on receipt of said draft by me.” One of the important questions in the case is whether this modification ever became effectual.</p> <p>June IS, 1900, Bowers made a written proposition whigh was accepted by Barker, the licensee, that after that mouth he would allow a rebate of a half cent per yard- on the government work provided the latter promptly made his monthly payments of royalty, and also had at the commencement of the season of 1901 a second dredge of specified capacity ready for work, the reduced rate to apply to the government work done by both dredges. During the remainder of the season of 1900 Barker operated the West Superior dredge and paid royalty at the balf-cent rate. Before the next season opened Barker bought a dredge known as the “Northwestern,” which had been built some years before under license from Bowers and emancipated from further payment of royalty by tbe payment of a Tump sum. Barker then died, leaving a will wherein his wife was named executrix. Mrs. Barker, having qualified, operated both dredges during the entire season of 1901, the West Superior on. government work and the Northwestern an private- contracts. She made monthly reports to Bowers of the work done by the, former, and made payments of royalty down to November at the reduced rate, but made no reports or payments in respect of the work of the Northwestern.</p> <p>In the latter part of November, 1901, a controversy arose between Bowers and Mrs. Barker as to whether the dredge Northwestern came under the supplemental contract of .Tune 18, 1900, and its operation, therefore, became the subject of royalty, and, if not, then whether the estate should pay royalty of one cent per yard of the work done by the Superior, which was the rate prior io the reduction agreed upon in view of the employment of a second dredge. This controversy was settled by the payment of a lump sum materially in excess of the royalty due for the work of the West Superior on the half-cent basiis, but tbe settlement receipt did not show which theory was adopted.</p> <p>In April, 1002, Mrs. Barker sold to the defendant dredging company the entire dredging business and property, including Hie dredges West Superior and Northwestern. The bill of sale contained this clause: “This instrument is intended to include and convey all patent rights and all licenses to practice or enjoy patents and patented inventions appertaining to Iho dredging business owned or controlled by first party.” The first party in this bill of sale was Mrs. Barker, the executrix. At the consummation of the sale there were turned over to the defendant dredging company the original Bowers license covering the Northwestern and also the license to Barker covering the West Superior. 'Thereafter the defendant operated the latter on the government contract and on private work, and also operated ihe Northwestern exclusively on private work, but it made no reports of work done and no payments of royalty. Bowers’ action was brought to recover royalty claimed to be due on account of the work done by both dredges.</p>

<p>1. Patents — Assignments—Acknowledgment.</p> <p>The acknowledgment of an assignment of a patent relates to the date of the assignment.</p> <p>2. Same — Infringement—Feeders for Cotton Gin.</p> <p>The Murray patent, No. 472,607, for an improvement in apparatus for elevating, distributing, and feeding seed cotton to gins by pneumatic action, the principal feature of which is an automatic valve produced by the cotton itself whenever it becomes choked in a chute, which shuts off the suction and the delivery of cotton to that particular chute until the stoppage is overcome, was not anticipated, and, while the elements of the machine are old, discloses a new and patentable combination which produces new and decidedly useful result. Also held infringed as to claims 1, 2, 9, and 12.</p> <p>3. Same.</p> <p>The Murray patent, No. 644,532, for improvements in cotton elevators and gin feeders, is void for anticipation.</p>

. Appeal from the Circuit Court of the United States for the ÍMstrict of Indiana. The bill is to restrain infringement of letters patent No. 642,869, issued Feb. 6th, • 1900, to Homer N. Motsinger, for a new and useful Controlling Means for Spark Generators.

. Appellant,- grantee" of 'letters patent No. 513,603, dated, January 30, 1894, •for a flexible, ventilated eye-guard, failed in bis suit against appellees. Held: being riveted, sewed or by other suitable means held in position.

The decree appealed from enjoins appellants not to infringe a patent belonging to appellee and not to compete unfairly in trade.

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

<p>In Admiralty. Suit against tug to recover damage to cargo resulting from stranding of tow.</p>

<p>Bankkuptoy — Involuntary Petition — Acts of Bankruptcy.</p> <p>The giving of a mortgage by an insolvent corporation in order to constitute an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3a (1) or (2), 30 Stat. 540 [U. S. Comp. St. 1901, p. 3422.], must have been to secure an antecedent debt, or for a grossly inadequate consideration and with intent either to hinder, delay, or defraud its creditors or to prefer the mortgagee over other creditors, and a petition in involuntary bankruptcy which fails to allege such facts and intent or facts from which such intent would be inferred as matter of law, or even-to allege that there were other creditors at the time, is insufficient.</p>

<p>Attorney íju. Client — Disbarment of Attorney — Grounds.</p> <p>Thu action of the Circuit Court of Appeals of another circuit in suspendí ¡J4 attorneys indefinitely from practice before that court for filing a itr’.'f therein containing scandalous and insulting matter is not alone sufficient ground for their disbarment by a Circuit Court.</p>

<p>Internal Revenue — Playing Cards — Stamp Tax.</p> <p>The statute imposing an internal revenue tax on playing cards requires ■ that each pack of cards shall show a stamp denoting the payment of the tax, so that a dealer may not reassemble cards from packs that have paid the tax and offer the reassembled paclis for sale in new wrappings without restamping. •</p>

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

<p>1. New Trial — Order—Revocation—Verdict—Reinstatement.</p> <p>Plaintiff sued two defendants for conspiracy, alleging that the injury was caused by defendants’ joint deception. The verdict was rendered against one of the defendants alone, whereupon J., the other defendant, caused judgment to be entered in his favor. Thereafter a new trial Was granted as against both defendants, and the judgment in favor of- J. stricken, on the ground that1 the court erred in authorizing a verdict against one of the defendants alone, after which J. appealed and succeeded in reversing the order granting a new trial as to him; the Circuit Court of Appeals holding that damages could be recovered against one, notwithstanding the statement alleged an injury by defendants’ joint deception. Held, that plaintiff was thereupon entitled to have the order granting a new trial as to the defendant charged stricken from the record, and the verdict reinstated.</p> <p>2. Same — Jurisdiction.</p> <p>The court has a right to reinstate a verdict on a motion to reconsider an order awarding a new trial, and to set aside such order, after the cause has been set down for trial at several subsequent terms.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, New Trial, § 334.]</p>

<p>Appeal from the Circuit Court of the. United State for the Southern District, of New York. For decision below, see (C. C.) 43 Fed 691, affirming a decision of the Board of United States General Appraisals (G. A. 5,944; T. D. 26,091).</p>

<p>Appeal from the Circuit Court of- the .United States for the Southern District of New York. For decision below, see (C. O.) 142 Fed. 786, affirming a decision of the Board of United States General Appraisers (G. A. 5,952; T. D. 26,099).</p>

<p>Appeal frcpi the Circuit Court of the United States for the Southern District of New York. For decision below, see (C. C.) 144 Fed. 702,’ affirming a decision of the Board of United' States General Appraisers (G. A. 6,026; T. D, 26,334).</p>

<p>Appeal from the</p> <p>Circuit Court of the United States for the Southern District of New York. For decision below, see (C. C.) 142 Fed. ,849, affirming a decision of the Board of United,States General Appraisers (G. A. 4,542; T. D. 21,569).</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below,-see (C. C.) '143 Fed.' 692,'affirming ¿ decision of the’Board of United States General-Appraisers ,(G; A. 6-,045;' T. D. 20,374);</p>

<p>Appea.1 from' the Circuit Court of the United States for the Southern District c ? ‘ New Yo-k, For decision below, see (C. C.) 143 Fed. 702, affirming a decision' <* the Board of United States General Appraisers (G. A. 5,854; T. D. 2517!. 9).</p>

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

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