Volume 150 — Federal Reporter

<p>1. Basks and Banking — Offenses by Officers of National Banks — Indictment foe Misapplication of Funds.</p> <p>In an indictment under Rey. St. § 5209 [U. S. Comp. St. 1901, p. 3197], charging an officer of a national bank with a willful misapplication of its funds with intent to injure and defraud the association, it is not necessary to aver that the acts set out were done without authority from the directors.</p> <p>I Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 973.]</p> <p>2. Same — Acts Constituting Offense.</p> <p>The discounting by the president of a national bank with the funds of the bank of commercial paper known by him to be worthless or fictitious, for the benefit of an insolvent corporation of which he is an officer, and with intent to injure and defraud the bank, is a willful misapplication of its funds, constituting a criminal offense under Rev. St. § 5209 [U. S. Comp. St 1901, p. 3497.]</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 964.]</p> <p>3. Ckiminal Law — Veedict—Repugnancy—Several Counts.</p> <p>Where an indictment under Rev. St. § 5209 riJ. S. Comp. St. 1901, p. 8197], charging an officer of a national bank with willful misapplication of its funds, contains counts each based on the discounting of a separate instrument, and another count based on the discounting of all of such instruments, a verdict is not repugnant and inconsistent because it finds the defendant guilty on the latter count and not guilty on the former.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2100, 2101.3</p>

The American Bonding Company of Baltimore, a corporation, was a surety upon a bond of R. O. Miller and H. G. Raime, lessees, which was conditioned that they would perform the obligations by them assumed under the lease. They made default and a judgment was rendered against the surety, upon a directed verdict in the court below, for the sum of $10,000, the penalty of the bond. This writ of error was sued out to reverse that judgment. The lease was dated March 9, 1903.

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

<p>1. Cbiminal Law — Evidence—Declarations.</p> <p>Where defendants on trial were jointly Indicted with others charged with carrying on the business of rectifiers in the names of certain companies organized by them with intent to defraud the United States of the internal revenue on their rectified spirits, a typewritten letter purporting to have been dictated by one of the defendants and signed in his name by a rubber stamp or stencil, no part of which was in his handwriting, was inadmissible as against him, in the absence of other evidence sufficient to connect him with the offense charged.</p> <p>2. Same — Erroneous Admission of Evidence — Prejudice.</p> <p>The erroneous admission of evidence against accused in a federal court will be presumed to have been prejudicial unless it is made to appear beyond a doubt that it was,harmless.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vól. 15, Criminal Law, J 3094.]</p> <p>8. Same — Admissibility of Typewritten Letter Signed with Stencil.</p> <p>A letter written wholly on a typewriter, with the signature of the accused thereto appended with a stencil, held incompetent as evidence against such accused as a communication purporting to have come from him, unless shown to have been acknowledged by him as his letter, or acquiesced in or acted upon by him.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. yol. 14, Criminal Law. |§ 1022. 1027.]</p> <p>Pritchard, Circuit Judge, dissenting.</p>

In the decision below the Circuit Court, without opinion, affirmed a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Boston, on the authority of a former decision (G. A. 6,353; T. D. 27,317). The pertinent portion of section 19 of the customs administrative act of June, 1890, which is referred to in the opinion following, reads as follows: Sec. 19.

, This is an appeal from an order of dismissal of a petition for the adjudication of Charles W. Stevens, a bankrupt. On March 10, 1905, Martha Stevens filed her .original petition-for the adjudication, but the questions to be considered here arise upon the amended petition and other proceedings.

<p>1. Appeal — Review—Directed Verdict — Motion bt Both Parties.</p> <p>Where both parties moved for a directed verdict, the finding cannot be disturbed, if there is any substantial evidence to support the several issues on which it depended. •</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4024.]</p> <p>2. Insurance — Burglar Insurance — Damaged Safe — Right to Replace.</p> <p>Insurer agreed to indemnify a bank against loss of money stolen from its safe, damage done to the safe, damage done to the premises, and for loss of money violently taken from the bank in the daytime, in the aggregate sum of $3,000. The policy reserved the right to the insurance company to repair any damage to property or to replace any damaged article with one of like quality and value, “instead of paying for the same in money.” The bank safe was blown open by burglars and money taken from the safe largely exceeding in value the sum of $3,000. Held that, the bank having made no claim for damages to the safe, but only for the loss of the money stolen therefrom, the insurer was not entitled to replace the damaged safe as part payment of its liability.</p> <p>3. Same — Representations—Thickness of Safe.</p> <p>In an action '.on a burglar’s insurance policy, evidence held insufficient to show the falsity of a representation that the door of insured’s safe was five inches thick.</p>

The plaintiff in error was convicted in the court a quo on the third count of an indictment charging as follows: “And the grand jurors aforesaid, upon their oaths aforesaid, do further present into open court that heretofore, to wit, on the tenth day of May, A. D. 1905, one Cleve McNiel was duly and lawfully adjudged a bankrupt, within the meaning and purview of the acts of the Congress of the United States of America, by W. B. Paddock, referee in bankruptcy for the Ft.

On the 24th day of April, 3903, the appellants presented a bill in equity against the appellees, to which the court sustained a demurrer.

<p>1. Bankruptcy — Claim—Liquidation—Litigation—Statutes—Construction.</p> <p>Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444], provides that claims shall not be proved against a bankrupt’s estate subsequent to one year after the adjudication; or, if they are liquidated hy litigation and final judgment therein is rendered within 30 days before or after the expiration of such time, then within 60 days after the rendition of such judgment. Held, that such section should be construed to mean that, if a, final judgment be entered within 30 days before the expiration of the time specified or at any time thereafter, the claim might be proved within 60 days after the rendition of the judgment.</p> <p>2. Same — “Liquidation by Litigation.”</p> <p>Where a claim secured by a mortgage on a bankrupt’s stock in trade was attacked by the trustee as a preference, whereupon the creditor sued in a state court to establish the validity of the mortgage, in which action the mortgage was held to be invalid as a preference, the creditor’s claim was thereby “liquidated hy litigation,” and provable as an unsecured claim within 60 days after the rendition of the judgment in the state court, as provided bv Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 561 TU. S. Comp. St. 1901, p. 3444],</p>

<p>Insurance — Action on Accident Policy — Question fob Jury.</p> <p>In an action on an accident policy to recover for the death of the Insured, who was a railroad employé, the evidence showed that the application was filled out by defendant’s agent after talking for an hour with the applicant as to the duties of his occupation, in which defendant’s manual giving classification of risks was referred to, and that his occupation was put down as "Superintendent Inspection.” There was no position in the service of the railroad company having that name, nor was there any class by that name given in defendant’s manual, but there was one covering inspectors of ties and timber in which the policy was limited to a smaller ¡unount than that in suit. It was further shown that the duties of the insured consisted in making inspection of ties and timbers and in superintending inspections made by others, and defendant’s agent testified that insured stated at the tu\ie of the application that he had both oilice and traveling duties, but did not personally make inspections. Mold, that it could not he said as matter of law from such evidence that the occupation of the insured was not substantially that described in the application, but that such question was one for the jury.</p>

The case is stated in the bill of exceptions found in the transcript as follows: In the District Court of the United States for the Northern District of Texas! The United States of America v. John D. Zarafonitis et al. No. 147, Sci. Fa.

<p>1. Appeal — Decebe in Execution of Mandate Which Adjudges Subse-I qüent Issues, Appealable.</p> <p>. No right of appeal exists from a decree entered in an inferior court in -exact accordance with the mandate of the appellate court; but a decree which adjudges subsequent issues that were not determined by the earlier decree, which was the basis of the mandate, is subject to review by appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 813, 814.]</p> <p>2. Same — Appeal Matter of Right.</p> <p>An appeal is a matter of right, and its allowance does not rest in the discretion of court or judge. It may be denied only in cases in which no appeal whatever is permitted by the law.</p> <p>3.. Supersedeas — Matter of Right and Not of Discretion of Judge.</p> <p>, ‘ A supersedeas is a matter of right, and its allowance does not rest ,! " in the discretion of court or judge. It is the effect, as a matter of ■ í' law,' of a compliance by the appellant with the provisions of the acts ■of Congress. The only function of the judge is to determine whether ■ itbe security proffered for “damages and costs” is good and sufficient. '' 'Sections, 1000, 1007, 1012, Rev. St. [U. S. Comp. St. 1901, pp. 712, 714, II 71G].</p> <p>4. Same — Taking Secubitf for “Damages and Costs” Supersedes En- ■ ■ tire Decree Where it is Single.</p> <p>■. The taking of security for “damages and costs” on an appeal from a second decree, which reforms the grant of relief, and determines issues not adjudicated by the former decree, upon which a mandate of affirmance issued, supersedes the later decree, and deprives the inferior court of the power during the pendency of the appeal to execute a part of.it, which in its opinion is but a repetition of the former adjudication.</p> <p>(Syllabus by the Court.)</p>

1, Appeal fróm the District Court of the United States for the District Of Indiana. '■'The' appeal is from an order disallowing the claim of appellant against.the individual estate of Alfred McCoy, bankrupt, “subject only to such fight as appellant might have in said estate as a creditor of the estate of A- McCoy & Co., bankrupt, after the payment of the individual creditors of the estate of Alfred McCoy, bankrupt.” '' The facts are stated in the opinion.

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

On July 2, 1904, James Paxton was working as a grater on one of the re-verberatory furnaces of the defendant, the Utah Consolidated Mining Company, a corporation, at its Highland Boy smelter. His duty was to open up the grates and do whatever the furnaceman directed him to perform. Thax-ton was the furnaceman under whose direction ho was employed. The smelter was a large building 300 feet long and 50 feet wide.

<p>WATERS AND WATER COURSES — CONTRACT BETWEEN ClTY AND WATER COSI-X’ast- Construction.</p> <p>A contract between a city and a water company, by which the latter is granted a franchise to lay mains and pipes in the streets and is to furnish water to the city and its inhabitants for a term of years, but which contains no provision that tiie grant shall be exclusive, or that the city will not construct waterworks of its own, does not by implication bind the city not to do so, and is not violated by the city by the construction of a competing plant.</p>

Petition for Review of Proceedings of the District Court of the United States for the-Southern District of New York, in Bankruptcy. The following is the opinion of HOLT, District Judge: I am unable to concur with the claim of counsel for Wa & J. Sloane, that section 3e of the bankruptcy act (Act July 1, 1898; c. 541, 30 Stat. 547 [U. S. Comp.

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

<p>1. Patents — Infringement—Patent fob Pbocess and Product.</p> <p>Where a patent includes claims for a process and also for the product of such process defined by reference thereto, the latter are to be com strued.in connection with, and are limited, in scope by, the former, and are not infringed unless the process claims are also infringed.</p> <p>2. Same — Insulation of Electrical Conductors.</p> <p>The Downes patent, No. 534,785, for a process for applying asbestos in- . sulation to .electrical conductors and the resulting product, the essential features 'of the process being the carding or brushing of the asbestos yam or strand after it has been wound on the wires, in order to raise a nap and lay the fibers in one direction, construed, and held, not infringed.</p> <p>8. Same.</p> <p>, The-Downes patent, No. 709,001, for an improvement in the process of ■ applying asbestos insulation to electrical conductors, which consists essentially in subjecting the insulation after its application to pressure alternately applied and released, in order to avoid its injury, in view of the prior art, must be- limited to the means described for applying such pressure, .which is by swaging, and is not infringed by a process in which the pressure is alternately applied and released by the use of rollers or dies.</p>

This cause comes here upon appeal from a decree of the circuit court, Southern District of New York'finding infringement of two patents for improvements in the frames of motors or generators. The first patent is to James Burke, August 22, 1899, No. 031,518, upon an application filed December 27, 1898; the first and third claims only being relied upon.

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

<p>1. Patents — Infringement—Stove Likings.</p> <p>The Condit patent, No. 358,545, for a lining for stoves or furnaces, is limited by the prior art to a lining having vertical air cells therein, open at the bottom below the grate and closed at the top, and having narrow slit openings from such cells into the fire chamber. As so limited, helé not infringed.</p> <p>2. Same — Aggregation of Old Elements — Indefintteness.</p> <p>The Germer patent, No. 587,366, for improvements In fire pots and grates for stoves, claim 1, which is for a Are pot having vertical air passages In the walls thereof and vertical slits connecting the same with the Inside of the fire pot in combination with a substantially closed grate, is void as not disclosing a true corisb biatlon, but a mere aggregation of old elements, each performing Its old function Independently of the other._ Claim 2, which is for the same fire pot in combination with a supporting ring at the top and a grate having the openings therein' so constructed as to admit “but a small portion” of the air necessary for combustion therethrough, is void for indefiniteness of description as to the third element.</p> <p>& Trade-Marks and Trade-Names — Ri&ht to Protection in Use of Name-.Unpair Competition.</p> <p>The words “XX Century Fire Pot,” used to designate a patented fire pot both by complainant and another concern, each of which made and sold furnaces or stoves containing such. fire pot, cannot be protected as a trade-name of complainants, even if such words were capable of being so monopolized and used to indicate the origin of the article; nor, where such words were not placed upon the stoves of complainant, but merely used in its advertisements, the stoves having another name, can a defendant be charged with unfair competition in selling a stove under the name “Twentieth Century Laurel,” with its name as- maker plainly shown thereon.</p>

<p>Patents — -Conthiisutoky Instungeiíent — ■■Violation oe Injunction.</p> <p>Tlse sale, by a defendant wliic-li has been enjoined from ini ringing a patent for a sound-producing apparatus of a talking machine, of records which are capable of use with the other elements of the patented apparatus, and which are intended to be and are so used b'y purchasers of such apparatus from complainant, constitutes a contributory infringement and a violation of the injunction.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 400-402.</p> <p>Contributory infringement of patent, see note to Edison Electric L. Co. v. Peninsular Light, P. & H. Co., 43 C. C. A. 485.]</p>

<p>1. Injunction — Laboe Strike — Right op Picketing.</p> <p>To interfere by violence by threats or by intimidation with others who are pursuing their natural and constitutional right to labor when and where they please is always unlawful, but peaceable persuasion used by workmen either singly or in combination to induce others to quit or refuse employment is lawful, and may lawfully be conducted by striking workmen by means of pickets, provided the pickets are so limited in numbers that their presence does not itself amount to intimidation, and so conduct themselves as to leave the persons solicited feeling that they are not being subjected to compulsion, but are at liberty to comply or hot, as they please; and picketing so conducted will not be enjoined.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 27, Injunction, § 175.]</p> <p>2. Same — Scope—Dismissal as to Innocent Parties.</p> <p>In a suit for an injunction to restrain striking workmen from unlawfully interfering with complainant’s business and employes, in which a large number of persons are made defendants in their individual capacity, ah injunction will be granted only against- those who are shown to have participated in unlawful acts; but the other defendants are chargeable with knowledge of"the injunction and its terms, and will be bound thereby.</p>

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

<p>1. Injunction — Strikes— Interference with Employee’s Business — Concerted Action by Strikers — Labor Union.</p> <p>Indirect interference by a labor union with the employer’s business during a strike by preventing him from obtaining workmen by means which do not amount to coercion is not unlawful, so long as the purpose of the combina ti on is merely to secure the, legitimate advantage and economic advancement of the members, and not to injure the employer, although harm may incidentally result to him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 172, 174, 175: vol. 10, Conspiracy, §§ 7-11, 55, 56; vol. 35, Monopolies, § 10; vol. 34, Master and Servant, § 1283 ; vol. 45, Torts, §§ 4, 13; vol. 46, Trade Unions, §§ 5, 6.]</p> <p>2. Same — Violation op Injunction.</p> <p>A labor organization, or its oiiieers, or a committee which selects members to act as pickets during a strike, may become responsible for the unlawful acts of such pickets or their violation of an injunction, although they were insiructed in good faith to observe the injunction, and do' no unlawful act where with knowledge that the instructions have been disobeyed by particular persons they are still kept in the "service.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 27, Injunction, §§ 493, 485.]</p> <p>3. Conspiracy — Purpose—Lawful Act.</p> <p>A conspiracy to do an act may he unlawful, although the act, if done by a single person, would bo lawful.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 2.]</p> <p>4. Injunction — Violation by Strikers — Picketing-.</p> <p>The action of pickets established by strikers may amount to coercion and intimidation of workmen of an employer, and a violation of an injunction against the use of such means although no act is done which would he unlawful if done by a single individual where the mere number of pickets acting together and their persistent following of the workmen to and from their work day after day for months is in itself a constant threat producing fear and alarm among the workmen.</p> <p>5. Same — Intimidation of Workmen.</p> <p>A simple request to do or not to do a thing, made by one or more of a body of strikers under circumstances calculated to convey a threatening intimidation, with a design to hinder or obstruct workmen, is unlawful intimidation, in violation of an injunction against the use of such means, and not less obnoxious than the use of physical force for the same purpose.</p> <p>■6. Same — Interference with Employer’s Business by Strikers — Picketing.</p> <p>The constant maintenance of pickets by strikers after repeated acts Of violence, the use of abusive epithets, and the ’creation of an unfriendly atmosphere surrounding workmen by such pickets, constitutes a conspiracy for the purpose of willfully or maliciously injuring the business of the employer, within the meaning of Rev. St. Wis. 1898, § 4466a, which makes such a conspiracy a criminal offense, and is a violation of an injunction against such conspiracy.</p> <p>7. Same — Contempt Proceedings for Violation — Unincorporated Trade Union.</p> <p>A trade union in Wisconsin, which is merely an assemblage of persons not given the right by statute to sue or be sued in its common name, cannot, as such, be fined for contempt for violation of an injunction, although it was made a party to the suit by name, and a general appearance was entered for' it.</p>

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

<p>In Admiralty. Suit for collision.</p> <p>On the morning of the 11th of August, 1903, about 8:40 o’clock, the government steam launch No. 22, known as the “Daisy,” about 61 feet long, used in the transportation of employés and other persons between the Navy Yard, at Portsmouth, and the city of Norfolk, while en route from the former place to the government landing in Norfolk, came into collision with the Poeomoke, a steam vessel engaged in the Ashing trade, about 115 feet long, 139 tons gross, as the latter was proceeding up the Elizabeth river and the launch was about to enter her landing, and some 50 to 75 yards out in the stream. The government landing at Norfolk is immediately east of the ferryboat slip, or wharf used by the ferryboats plying between Norfolk and Portsmouth and Berkeley: the slip for the Berkeley boat being immediately west of the government landing, and the Portsmouth slip immediately west of that. The government’s case, briefly, is that its launch, under the rules of the road, had the right of way over the Pocomoke; that she was properly equipped and manned, with proper and efficient officers and lookout; that the Pocomoke, without notice or warning, negligently, recklessly, and carelessly ran upon and over the launch, and sunk the same. The Pocomoke assigns various acts of negligence against the launch, chiefly that she was proceeding at a high rate of speed; that she failed to keep her course and speed, but, on the contrary, stopped and reversed, when too late to avoid the collision, without giving notice thereof; and for failure to have and maintain a proper lookout.</p>

<p>1. Taxation — Legacy Taxes — Feopebty Subject.</p> <p>Tlie war revenue act (Act Cong. June 13, 1898, c. 448, 30 Stat. 448 [U. S. Comp. St. 1901, p. 2286)) provides that any person having in charge or trust, as administrators, executors, or trustees, any legacies or distributive shares arising from personal property exceeding $10,000 in actual value passing after passage of the act, either by will or tbe intestate laws of any state or territory, or any personal property transferred by “deed-, grant, bargain, sale or gift,” made to taire effect in possession or enjoyment after tbe death of the grantor or bargainer, etc., shall be subject to a tax. Held, that the words, “by deed, grant, bargain, sale or gift,” as used in such act, referred to transfers without consideration only operative by way of gift.</p> <p>2. Same —Transfer ■ of Property — Partnership Articles — Construction . —Vested Rights. <</p> <p>Testator, his son, and several others formed a partnership to engage in the banking business for a period of -10 years. The articles provided that the death of one or more of the partners, so long as three members of the firm survived, should not work a dissolution, and that in consideration of mutual stipulations and valuable considerations received by testator from the other parties to the contract, on testator’s death, his share in the capital and profits of the firm should become absolutely vested in his son as his property, etc. Held, that, the son acquired a vested interest in .his father’s interest in the partnership property under the partnership ■agreement by a grant based on a sufficient consideration which was de-feasible only on the survivorship of the testator beyond the partnership period, and hence such interest, having vested in possession independent of testator’s will, was not subject to taxation under the war revenue act (Act June.13, 1898, e. 448, 30 Stat. 448 [U. S. Comp. St. 1901, p. 2286]).</p>

<p>1. Conspiracy — Iwdictment.</p> <p>An indictment charging that defendants conspired together to defraud the government of the title to a portion of the public domain, to wit, etc., and in pursuance of the conspiracy performed the overt acts of obtaining and using before the register and receiver of the local land office false and bogus affidavits represented by defendants to be genuine in making proof of a timber culture entry theretofore regularly made on the land by H., since deceased, under an agreement with his widow that they were to succeed by conveyance from her to all the rights of the government secured by virtue of a patent issued by the government based on such proofs, was not defective for uncertainty.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 79-87, 97.]</p> <p>2. Same — Defrauding Government — Public Bands — Timber Culture Entry —Proof—Delay.</p> <p>Act Cong. June 14, 1878, § 2, 20 Stat. 118, c. 191, provides that no final certificate, shall be given or patents issued for land entered under a timber culture claim until eight years after the date of the entry, and if at the expiration of such time, or at any time within five years thereafter, the entryman or his heirs or legal representatives shall prove the planting and cultivation of the necessary quantity of trees, etc., they shall receive a patent to the land. Land Department rules 32 and 33 provide for the determination of suspended claims based on homestead and timber culture entries where there has been’ a substantial compliance with the law in good faith, but there had been a failure to make final proof within the time fixed therefor, resulting from ignorance of the law, mistake, sickness, or other uncontrollable obstacle. Held that, where a timber culture entry was not forfeited by the Land Department for the entryman’s failure to make final proof within five years next succeeding the expiration of eight years after the entry, it did not become absolutely void, but was merely suspended, and was therefore sufficient to sustain a prosecution for conspiracy for combining to obtain title to the land by false and fraudulent proof.</p> <p>3. Statutes — Construction—Effect of Decisions of Land Office.</p> <p>While the Land Decisions of the Interior Department are not binding on the federal courts, yet, when the construction of a doubtful or obscure statute by the department has been uniform, the court will accept such interpretation as the proper one.</p> <p>[Ed. Note., — For cases in point, 'See Cent. Dig. vol. 44, Statutes, §§ 296, 297.]</p> <p>4. Conspiracy — Indictment—Overt Acts.</p> <p>In a prosecution for conspiracy, it is not necessary to charge all the overt acts done or necessary to be done to render the object of the conspiracy effective, or to charge that the unlawful conspiracy proceeded to a successful determination as designed; it being sufficient that the conspiracy, unless interrupted, might have accomplished its unlawful purpose.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 10, Conspiracy, §§ 79, 85-89.]</p>

<p>On Motion in Arrest of Judgment and for a New Trial.</p>

<p>1. ADMIRALTY — JURISDICTION—Damages—Death.</p> <p>There is no admiralty jurisdiction under the general maritime law authorizing the maintenance of a proceeding in rem against a vessel for the death of a person injured as the result of negligence.</p> <p>[Ed. Note. — Dor cases in point, see Cent. Dig. vol. 1, Admiralty, §§ 285, 218, 219.</p> <p>Admiralty jurisdiction of torts, see notes to Campbell v. Hackñeld & Co., 02 O. C. A. 279.]</p> <p>2. Is.nii\CTiou — Action in State Court — Shipping—Limiting Liability.</p> <p>Itev. St. § 4283 [TI. S. Comp. St. 1901, p. 2943], provides that the liability of the owner of any vessel for injury by collision, or for any other act, damage, or forfeiture done, etc., without the privity or knowledge of such owner, shall not exceed the value of his interest in the vessel and the freight then ponding; and section 4284 declares that, if the value of tiie vessel and freight is not sufficient, the claimants shall receive pro rata compensation only, etc. TTeld, that where there was only a single claimant against a vessel for death alleged to have resulted from negligence, and an action therefor was brought against the owner in the state court, he was entitled to set up his limited liability as a defense in such court; and the fact that 1he extent of his liability had been determined in an ex parte proceeding in a federal court did not authorize ail injunction restraining the claimant from the prosecution of his action in the state court to recover the amount of such limited liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 72; vol. 33, Courts, § 1418.</p> <p>Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grant-ham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p> <p>3. Shipping — Touts—Death—Liability—Limitation—Admibalty — Jurisdiction.</p> <p>Whether an action against the owner of a vessel in a state court for wrongful death is one of limited liability, under Itev. St. §§ 4283, 4284, et seq. [U. S. Comp. St. 1901, p. 2943], is a question of admiralty and maritime jurisdiction, which must he determined by the federal courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 64(5.]</p>

<p>At Law. On motion for judgment for defendant non obstante veredicto.</p>

<p>Bankruptcy — Action foe Conversion by Trustee — Pleading' Title.</p> <p>A trustee in bankruptcy may sue in trover for a conversion of goods occurring either before or after bankruptcy, and in the declaration may join a count upon the bankrupt’s title and a count upon the trustee’s title, being vested by Bankr. Act July 1, 1898, c. ír'X, § 70a, subd. 6, SO Stat. 565 [U. S. Comp. St. 1903, p. 34511, with the buy.A"si»t’s rights ot action; and, having such right, where the declaration contains but a single count upon the trustee's title, but the case is tried anti submitted without objection as though both such counts were in the declaration, a claim oí variance, in that the evidence showed the title to boi in the bankrupt at the timo oí conversion, will not bo entertained as ⅛ ground for granting a new trial, especially when under the state practice the declaration might have been amended ii the objection had been made on the trial.</p>

<p>1. Raiujoads — -Statute Requieikg Automatic Couplers — Impereect ob Incomplete Couplers.</p> <p>A railroad company is subject to the penalty provided for violation of Act March 2, 1893, c. 396, § 2, 27 Stat. 531 [U. S. Comp: St. 390J, jp. 33741, by using a car in moving interstate traffic not equipped with automatic couplers, where, although the car is so equipped, the coupler is so defective or out of repair as not to be efficient to prevent the necessity of men going between the ends of the cars to make couplings: and the same liability follows if the parts of a coupler, although in perfect condition, are not connected.</p> <p>2. SAsriS — Evidence.</p> <p>A car used in moving interstate traffic had the equipment required by the safety appliance acts, but the chain provided for connecting the lock pin (<> the uncoupling lever was not attached. By attaching the chain the appliance would have been made available. Held, first, that, if the working parts had been connected by means of the chain, which had afterwards become detached, the equipment was out of repair; second, that, if the parts never had been connected by means of the chain, the equipment never had been completed as required by law, and in the absence of any showing it must he presumed, since the working parts were in perfect order, that the apparatus had only been partially completed, and, until completed, the provisions of the statutes had not been complied with.</p> <p>3. Same.</p> <p>A common carrier cannot excuse itself from compliance with the statutory requirements by showing that a particular equipment is out of repair ; for to permit it to do so would enable it to require brakemen to enter between cars for the purpose of coupling or uncoupling them, thereby defeating the purpose of the law altogether. Employes can only be protected from danger by the safety appliances being kept in repair.'</p> <p>4. Same.</p> <p>The purposes of the safety appliance acts fall within the rule applicable to statutes to prevent fraud upon the revenue and for the collection of customs, where intent does not inhere in their violation.</p>

<p>ADMIRALTY — ATTACHMENT—ABUSE OP PROCESS.</p> <p>Where a libelant, in a suit in personam, waited for more than a year after filing the libel before issuing process thereon, although the respondent might readily have been found within the district during that time, the case is not one for security before judgment, and an attachment then made under admiralty rule 9 will be vacated.</p>

<p>On Petition for Rehearing on Application for Substitution of Solicitor.</p>

<p>At L,aw. On demurrer to second count of declaration.</p>

<p>Principal and Surety — Pledge to Secure Debt op Another — Surrender op Other Security by Creditor.</p> <p>A creditor, - who held as collateral security property of his debtor and also property pledged by another, by his surrender of his debtor’s property without the consent of the other pledgor, forfeited his right to retain the property pledged by the latter.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Surety, § 244.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below (G. A. 108, T. D. 10,417) affirmed the assessment of duty by the collector of customs at the port of New York on an importation by Oscar Schmidt.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 5,904 (T. D. 26,003), in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. The question at issue is whether the merchandise in controversy was properly held dutiable as unenumerated manufactured articles under section 6, Tariff Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693], or should have been classified as “joss stick,” under section 2, Free Fist, par. 587, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1684].</p>

<p>REFERENCE — REPORT OF REFEREE — REVIEW.</p> <p>Tbe court will not review the findings or conclusions of a referee, to whom a cause has been referred to pass upon all questions both, of fact and law, unless to correct a manifest clerical error.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 42, Reference, §§ 207.)</p>

<p>, In Error to the Circuit Court of the United States for the Western ■District of Virginia, at' Abingdon.</p>

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

<p>1. Bankruptcy — Priority op Debts — Law Governing.</p> <p>Whether a claimant is entitled to priority of payment from a fund which passes into the hands of a bankrupt’s trustee on the ground that the claimant’s money was held in trust by the bankrupt and passed into such fund is not a question to be determined by the priorities allowed under the insolvency laws of the state, which are superseded by the bankruptcy act. Act July 1, 1898, e. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418].</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 539.]</p> <p>2. Trusts — Suit to Recover Trust Fund — Wrongful Mingling op Funds.</p> <p>The burden of showing that his property has been wrongfully mingled in the mass of the property of the wrongdoer is upon the owner who seeks to follow .the same, but, when this is done, the burden shifts to the wrongdoer to show that the owner’s money or property has passed out of his hands, and in that respect his trustee in bankruptcy stands in the same position. . ■ ■</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 47, Trusts, §§ 523, 602.]</p> <p>3. Bankruptcy — Debt Entitled to Priority op Payment — Trust Fund.</p> <p>Claimant gave a check to a bank for the purpose of paying a note which she supposed the bank held with authority to collect. The bank, which had made the loan for the payee, claimed to. have such authority, and accepted and collected the check, placed the proceeds to-the credit of the payee, and promised to obtain and surrender the note; the owner being then absent with it. The bank, in fact, had no authority to collect' and was insolvent, and became bankrupt shortly thereafter, not having obtained the note nor paid over the money to the payee. From the time the money was received until the bankruptcy the bank had at all times more money on hand than the amount so received and a larger amount passed into the hands of its trustee. ■ Held, that claimant’s money was presumably a part of .such fund, and that she was entitled to recover the same from the trustee.</p> <p>[Ed, Note. — For eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 539; ' vol. 6, Banks and Banking, §§ 157, 189-191, 1116.]</p>

<p>Petition for Superintending and Revising of Proceedings from the District Court of the United States for the Western District of Texas.</p>

<p>1. Trade-Mark — Symbol of Keystone Proper and Infringement Actionable.</p> <p>The symbol of the keystone of an arch is susceptible of exclusive appropriation as a trade-mark, and its use by another upon similar products after such adoption and registration by the owner is an infringement of his monopoly and remediable in equity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 5, 8.]</p> <p>2. Same — Use of Word “Keystone” May Constitute Unfair Competition and be Remediable.</p> <p>Conceding, but not deciding, that the word “Keystone” is a geographical term and not susceptible of monopolization as a trade-mark, yet its use by one manufacturer in his trade-name or on his products to palm them off as those of another may constitute unfair competition and entitle the latter to an injunction and damages.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 81-88.</p> <p>. Unfair competition, see Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. O. A. 378.</p> <p>Use of geographical names, see Hoyt v. J. T. Lovett Co., 17 C. C. A. 657; Illinois Watch-Case Co. v. Elgin Nat. Watch Co., 35 C. C. A. 242.]</p> <p>3. Same — Use of Geographical and Descriptive Words may Constitute</p> <p>Unfair Competition.</p> <p>The use of geographical or descriptive terms to palm off the goods of one manufacturer or vendor as those of another may constitute unfair competition and may be lawfully enjoined by a court of equity to the same extent as the uso of any other terms or symbols.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 81-8C.J</p> <p>4. Same — Facts—Conclusion.</p> <p>'A bill contained averments that the complainant made and sold oils and lubricants for 19 years under the name “Keystone Lubricating Company” until his products became known throughout the markets of the world as Keystone oils and lubricants, that after his trade had been established 17 years and his trade-name and his products were known as the Keystone Lubricating Company and the Keystone oils and lubricants, respectively, the defendants, for the purpose of deceiving purchasers and selling their goods as those of the complainant, commenced and continued to make and sell less costly and inferior oils and lubricants under the name Keystone Oil Company and have succeeded and are succeeding in this way in palming off their products as those of the complainant. Held the use of, the word “Keystone,” as alleged in the bill, constituted unfair competition and entitled the complainant to relief in equity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 81-86.]</p> <p>(Syllabus by the Court.)</p>

<p>On Petition for Review.</p> <p>Tlie statutes of Missouri imposed upon the county courts of that state the duty to let the use of the surplus moneys of the counties to the hanks or hankers who would pay the highest rates of interest for the deposits. The county court of Henry county advertised for bids for the use of its surplus funds accordingly. Salmon & Salmon, bankers, the Citizens’ Bank of Clinton, and two other banks agreed, for the purpose of preventing competition in the sale of the use of these funds, that Salmon & Salmon and the bank of Clinton only should bid for it, that the latter should submit a lower agreed bid than the former, that Salmon & Salmon should in this way secure the use of the county deposits for two years, and that they shoúld divide this use between the four banks in agreed proportions. This scheme was successfully executed. The funds of the county were deposited with Salmon & Salmon from June 1, 1903, until June 20, 1906, when that bank became insolvent and ceased business, pursuant to their bid1 under this plan. When they ceased business the Clinton bank was indebted in the sum of $16,000 in consideration of credits which had been transferred to it by Salmon & Salmon on account of the deposits of the county which Salmon & Salmon had obtained pursuant to the agreement to suppress,competition and divide the deposits. At that time Salmon & Salmon were indebted to the county in the sum of $63,976.77. They were adjudged bankrupts on January 19,1906, and the petitioner, Daniel F. Blake, was chosen trustee. This trustee claimed that the Clinton bank should pay this debt of $16,000 to him for the benefit of the general creditors of the bankrupts, and Henry county insisted that the bánk should pay this sum to the county. Thereupon the Clinton bank filed a petition in the court of bankruptcy below, wherein it set forth the foregoing facts and claims, offered to pay the $16,000 into the court, and prayed that-the county and trustee might be required to in-terplead, that the court would determine to which party the money should be paid, and that the bank might be discharged from further liability upon the payment of the $16,000 into the court. No order appears to have been made upon this petition, but Henry county and the trustee voluntarily filed answers to the petition of the bank, and each prayed for a judgment that the bank should pay the debt of $16,000 to them respectively. They then made a written stipulation of the facts which they submitted to the court and agreed therein “that the controversy now existing bétween the said county of Henry and Daniel F. Blake as such trustee, concerning the right and title to the sum of sixteen thousand dollars now held by the said Citizens’ Bank of Clinton, and standing to the credit of said Salmon & Salmon upon the books of said bank, and which is claimed by both the said county of Henry and the said Daniel F. Blake as such trustee, may be heard by the court and determined” upon the stipulation. The court heard the case upon this agreed statement of facts, found that the $16,000 should be paid to Henry county, and ordered the bank to pay it over. The trustee Blake has presented a petition for a revision of this decision.</p>

<p>1. Sales — Implied WaRbanty.</p> <p>Where an article is ordered from a manufacturer for a particular purpose, there is ordinarily an implied warranty that it will be fit for that purpose.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Sales, §§ 772, 773.]</p> <p>2. Same — Special Contract.</p> <p>A contract for the installation of a sprinkler system provided that all the materials should be first-class, that all work should be done in a thor-. ough and workmanlike manner, and in conformity with the improved risks commission standard for automatic sprinkler installation, and that no obligations other than set forth in the contract, and made a part of the proposal and acceptance, should be binding on either party. Held that, under such contract, the manufacturer was not bound by an implied warranty that the sprinkler system was suitable to the building in. which it was installed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, §§ 759, 760.]</p> <p>3. Judgments — Res Judicata.-</p> <p>Plaintiff’s assignor contracted with defendant for the installation of a sprinkler system in a building, defendant, agreeing to install a specified system in a thorough and workmanlike manner, and that all the materials should be first-class, but that no other obligations not specified in the contract should be binding on either party. After the system was installed and accepted, certain of the sprinkler heads, which were located under skylights, weré caused to fuse by the direct rays of the sun, and the building was flooded, causing injury to the tenants, who brought suit against plaintiff’s assignor therefor. Defendant was notified to defend, but failed to do so. Held, that the construction of the installation contract was not an issue in such suits, and judgments recovered against plaintiff’s assignor therein were not res judicata in a subsequent action against defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1223, 1224.]</p> <p>4. Sales — Installation of Sprinkler System — Defects—Evidence.</p> <p>Where, in an action for damages caused by alleged defects in a sprinkler system installed in the building of plaintiff’s assignor by defendant, plaintiff claimed that defendant had failed to exercise reasonable care to protect the sprinkler heads, .located under skylights, from fusing from exposure to sunshine alone, but there was also evidence that the skylights were equipped with ventilators for use in fair weather, which were closed at the time the sprinkler heads under the skylights fused, which they would probably not have done had the ventilators been open, the fact that the heads fused did not necessarily prove that the installation work was not done in a workmanlike manner.</p>

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

<p>Banksuptoy — Pboceedings on Involuntary Petcition Because or Receivership.</p> <p>A receiver was put in charge of the assets of the appellants by the superior court of the state of Massachusetts, and the appellants were after-wards adjudged bankrupts on an involuntary petition, alleging that this action of the superior court was because ol' their insolvency. The proceedings in the superior court were on a bill in equity, which alleged insolvency as a ground for a receivership and also other grounds in addition thereto. The decree in the superior court recited that the defendants there, now the appellants, appeared by counsel and consented to the appointment of a receiver. The decree appointing the receiver did not set out specifically the grounds for the action of the superior court. The superior court is a court of general equity jurisdiction, so that, if it exceeded its jurisdiction in the particular involved here, the excess was remediable only by appeal, and did not render its proceedings void. Meld that, as tbe statutes of bankruptcy are practical statutes, they were satisfied in the particulars involved here, inasmuch as the superior court did in fact appoint a receiver on a bill asking for the receivership on the ground of insolvency, and for other reasons, although it did not appear by the record that the insolvency was the sole reason which moved the state tribunal to appoint a receiver.</p> <p>LEd. Note. — For cases in point, see Gent. Dig. vol. 6, Bankruptcy, §§ 82, 84.]</p>

<p>Contracts — Construction—When Question fob Jubt.</p> <p>The construction of a written contract for dredging which was ambiguous in respect to the extent of the work to be done thereunder, rendering it necessary to resort to extrinsic evidence, was a question for the jury.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 11, Contracts, §§ 767-770.]</p>

<p>1. Chattel Mortgages — Cattle—Description.</p> <p>While certain cattle were on a range in Colorado, the manager of the corporation owning them attempted to mortgage them under a description : “125 head of three year old steers owned by and in the possession of Green Cattle Co. in section 21, Township 82, Range 40, in Crawford County, Iowa.” At the date of the mortgage the cáttle company had no cattle in its possession on the land so described, but it had in Colorado a herd of three and four year old steers, 125 of which wore afterwards shipped to Iowa to R., who subsequently became a bankrupt, and were placed on the land so described as the property of R. These steers were afterwards mortgaged by R. under a description, “125 head of three and four year dehorned steers, branded,” etc., and located on section 10, township 82, range 40. Held, that the description in the cattle company’s mortgage was insufficient to create a lien on the steers mortgaged by R.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 90-92, 96, 104.]</p> <p>2. Same.</p> <p>The lien of the, cattle company’s mortgage did not attach to the 125 head of “three and four year old dehorned steers,” which finally found their way to the land described in the first mortgage, under a provision thereof covering after-acquired or after-located property.</p> <p>3. Landlord and Tenant — Landlord’s Lien — State Statutes — Effect.</p> <p>Code Iowa, § 2992, provides that a landlord shall have a Hen for his rent on all the personal property of the tenant which has been used or kept on the rented premises during the term, not exempt from exeeation, for a period of one year after the year’s rent or the rent of a, shorter period falls due. Held, that the lien under such section commences as soon as the property intended to be kept on the premises as a" part of the business of the tenant is brought on them, and attaches to the property when so brought there as security for the payment of the rent for the entire term.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 32, Landlord and Tenant, §§ 985, 988.]</p> <p>4. Bankruptcy — Landlord’s Lien.</p> <p>Where, after the termination of a lease, the tenant, who subsequently became a bankrupt, retained possession under a contract to purchase the land, the landlord thereafter had no lien on the tenant’s personal property for subsequently accruing rent on the nonperformance of the contract of sale, which was enforceable against the bankrupt’s assets under Code Iowa, § 2992, conferring a lien on a landlord for rent accruing, etc.</p>

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

<p>Caerieiís — Action for Loss op Goods — Evidence op Delivery to Carrier.</p> <p>A former opinion reaffirmed on rehearing, affirming a judgment against defendant railroad company for a loss of cotton delivered to a compress company on its account by a connecting carrier which received1 the same under a contract for through transportation over its own and defendant’s lines, with privilege to compress the same en route, there being evidence that such delivery was in accordance with-the usual course of business between the two carriers, and that it was defendant’s custom to accept delivery to the compress company as delivery to itself, and that although it was notified of such delivery in the present case, and given the waybills and its share of the freight, it made no objection, and where it was further shown thht defendant had a contract with the compress company to receive and compress cotton and load it in defendant’s cars, and mating the compress company responsible to it for any lo§s or injury to the cotton while in its possession.</p>

<p>Anneal from the Circuit Court of the United States for the North-bTivision of the Western District of Washington.</p> <p>The appellees were the coinplaiuant~ in a bill in equity which they brought ~o recover from the appellant money which had been held in trust for them ~y Howard Joslyn, their son, but which it was alleged had~ been lost to the ~pijellant by Howard Joslyn in a course of speculation on the rise and fall of the market prices of stock, grain, and produce during the months of March and April, 1900. The money was the proceeds of the sale of certain lots in Seattle which had belonged to appellees, and which had been sold by Howard .Tnslvn under a cower to sell and remit the proceeds. The amount received was ~1O,8OO, all of which, excepting ~2QO paid as commission to a broker, 1-loward Joslyn embezzled. Howard Joslyn had no money of his own. lIe opened his account with the appellant by depositing money with it, not in his own name, but in that of N. S. Joslyn, and he testified that, when he did so, he explained to the appellaui's manager that he wished to carry the deposit In that name because of his personal embarrassment, and because he did not wish to have the money subject to attachment by his creditors. The trial court found for the appellees on all material avernients of their bill, found that the transactions between HoWar~~ Joslyil and the appellant were simply bets upon the fluctuations of the market, and that the appelleeS were entitled to recover under the pleadings the aggregate amount of their money received by the appellant during the months of March and April, 1900, amounting Ia all to $7,708. A decree was rendered in favor of appeflees for that sum, with legal interest thereon from May 1, 1900.</p>

<p>Appeal from the Circuit- Court of the United States for the District of Idaho.</p> <p>The appellees are the owners of 15 acres of land lying in a triangular shape, with the apex to the south, from which point the hypothenuse, running northeasterly, is bounded by a county road. The land is traversed by a small stream known as “Cowles’ Creek,” which flows through it into Loff’s Bay, an arm of Lake Coeur d’Alene, on which the land abuts on the north. The stream enters the land near the apex of the triangle and runs parallel with and adjacent to the county road, until it reaches a point about 40 rods from the bay. At this point the main channel turns northwesterly, but for several years the stream has followed a second; channel which leaves the main channel at the point above referred to, and runs northeasterly, parallel with and adjacent to the county road. The second channel carries nearly as much water as the main channel, and had been used for several years prior to 1904, during certain seasons of the year, for the purpose of transporting logs to the lake. The appellees’ land traversed by these channels is low marshy ground, overflowed during the flood seasons and covered with a growth of willows. It has never been cleared or improved. In December, 1903, the appellants, who owned timber which they desired to transport to market across the land of the appel-lees, began negotiations with the latter to secure a right of way for that purpose.</p> <p>The negotiations culminated in a lease made on January 9, 1904, by the ap-pellees as parties of the first part to the appellants as parties of the second part, which provides as follows: “That the said parties of the first part do by these presents lease and demise unto the said party of the second parti a right of way fifty feet wide, to be used for logging purposes either for a r.oad, flume, tram or in any manner the party of the second part may decide upon as will best meet their needs, in the transportation of their logs or forest products; the said right of way commences at a point hereinafter mentioned and is described as follows, to-wit: Commencing at a point on the north line of the county road, where said road crosses the west line of the N. W! ⅛ N. W. ⅛ of sec. 35, 01 49 N. R. 4 W. B. M., thence running in a northerly direction paralleling the south bank of the creek (which creek crosses said west line of the said N. W. ⅛ N. W. ⅜, near the point where the said road does) about 20 rods thence running in a - northeasterly direction to the north line of said county road, thence paralleling said county road to the shore of Lake Coeur d’Alene, thence easterly along the south shore of Loli’s Bay of Coeur d’Alene Lake about 30 rods to the point of rocks that extends out into said bay, to-gotlier with the right to use the water,front adjacent to said right of way for booming and landing purposes. It is expressly agreed between the parties hereto that, the rights above granted shall not conflict and may be amenable to grants or leases of like nature heretofore granted to others by the parties of the first part, with the appurtenances for the term-of years which it may take to remove all the forest products'of the party of the second part, which may be tributary to said I.off’s Bay of Coeur d’Alene Bake, at the rent or sum of two hundred dollars payable in gold coin of the United States of America, for said period in advance. And it is hereby agreed, and not to let or under-let tiie whole or any part of said premises without the written consent of the said parties of the first part, except to parties taking contracts to remove forest products belonging to the party of the second part. And at the expiration of the said term, the said party of the second part will quit and surrender the said premises in as good state and condition as reasonable use and wear thereof will permit (damage by fire or elements excepted).”</p> <p>At the time of the execution and delivery of this instrument the appellants paid to the appellees $200, the consideration therein provided for. Tn the fall of 1904 one McKenzie, who had a contract from the appellants to take out their logs, deepened and cleared out the right-hand channel of the creek, and ditched the northernmost 300 feet thereof. The appellees knew of this work at the time thereof, and made no objection thereto. On February 11, 1905, they filed their bill of complaint, alleging in substance that the appellants procured the lease by fraud and by fraudulent representation; that they represented that they were a corporation, whereas, in fact, they were a partnership ; that they represented that the rent was to be $200 per annum, whereas by their fraud in drawing the lease the rent actually reserved therein was $200 for the entire term; that they expressly promised and agreed to uso the right of way for no other purpose than for a flume, and expressly promised not to interfere with or disturb the soil; and that, in violation of these promises, they were engaged in digging a large ditch on the land of the appellees for the purpose of driving; their logs and diverting the waters of Cowles’ Creek into the ditch, which acts it was alleged would work irreparable injury to the appellees. The prayer of the bill was for the cancellation of the lease; for an injunction enjoining the appellants from asserting any right in the appellees’ land, from interfering with the actual flow of Cowles’ Creek, from continuing the construction of the ditch, and from interfering with the soil of tlio ap-pellees’ land. Issue was joined on these allegations of the bill, and on the testimony taken the trial court found that the appellants practiced no fraud in procuring the lease, but held that the lease itself conferred upon the appellants the right to use the right of way only for the purpose of a road, flume, or tram. Accordingly, the court entered a decree enjoining the appellants from using the right of way for any purpose other than for a road, flume, or tram, and enjoining them from excavating any ditch or canal thereon, and from In any wise disturbing the soil except for such purpose, and from running or floating any logs through the ditch which they had already constructed on said right of way.</p> <p>From that decree the appeal is taken.</p>

<p>Collision — Moving and Mooeed Vessel — Peesumption op Fault in Moving Vessel. '</p> <p>A moving vessel which comes into collision with a vessel moored is presumptively in fault, and. she cannot be exonerated from liability on the ground that she was at the time being handled by tugs which controlled her movements unless such defense is pleaded and proved.</p> <p>[Ed. No;e. — For cases in point, see Cent. Dig. vol. 10, Collision, § 103.]</p>

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

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (143 Fed. 698), sustaining a decision of the Board of General Appraisers affirming the classification of certain imported articles for duty under the Tariff Act July 24, 1897, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626],

<p>Shipping — Charter Party — Fitness or Ship.</p> <p>A covenant of fitness in a charter party does not require the vessel to remove the stanchions which support the beams to facilitate loading which could not be done with safety unless other provision was made to support the beams, especially where the charter party provides for a deck load at 'request of the master. ■</p>

<p>Marsttatjng Assets — Construction and Effect of Decree.</p> <p>Where a creditor claims priority of payment from a fund In court of notes held by him, which are also a lien on other property not in the custody of the court, it is competent for the court to direct payment of his claim on his transfer of the notes to its receiver and! a sale and transfer of the notes by the receiver, for the benefit of the fund, and such transaction does not operate as a payment of the notes or a discharge of the lien, but the purchaser takes all the rights of the original holder.</p>

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Plaintiff in error, plaintiff below, filed his declaration for damages for infringement of letters patent No. 594,28(5, issued to plaintiff on November 23, 1897, for an improvement in casting composite and other wheels.</p> <p>Defendant pleaded that the matters alleged in the declaration had been adjudicated as follows, namely: That on January 27, 1903, plaintiff filed a bill of complaint in the Circuit Court of the United States for the Northern District of Illinois, charging defendant with infringement of the same parent; that on March 25, 1903, defendant filed its answer, denying infringement “and denying generally the allegations of said bill”; that on September 11, 1903, plaintiff filed his replication; that after a full and final hearing the court on February 23, 1904, ordered, adjudged, and decreed “that the bill of complaint in said cause be, and the same is hereby, dismissed for want of equity, at complainant’s costs”; that the case was appealed to the United States Circuit Court of Appeals for the Seventh Circuit, and on January 3, .1905, the decree was affirmed; “that neither of said decisions has ever been vacated, set aside or in any way changed or modified, but that both said decisions of both said courts still remain in full force and effect, as by reference to the record of said cause in said courts will more fully and at large appear”; that at the time of the commencement of this action defendant was making, selling, and using the same form of ear and other wheels which it was making, selling, and using prior to and during the former suit and subsequently; that the cause of action set forth in the declaration consists in the charge that defendant by making, selling, and using its said wheels is infringing the patent, which is the same cause of action litigated and decided in the former suit.</p> <p>In his replication plaintiff admitted that there had been the litigation and decrees stated in the plea; but denied the identity of the cause of action, and denied that, when this action was commenced, defendant was making, selling, and using the same fbrm of car and other wheels that was involved in the former adjudication respecting infringement.</p> <p>Defendant moved for judgment on the pleadings. The sustaining of this motion resulted in the present writ.</p>

<p>PATENTS — ANTICIPATION—MANIFOLDING SALESBOOK.</p> <p>The Beck patent, No. 647,934, for a manifolding salesbook and holder, the purpose of the Improvement being to enable the user to manipulate or remove the leaves of the pad without soiling the fingers on the carbon, transfer sheet, which is accomplished by cutting away the corner of such sheet, is void, for anticipation by the prior Mooney book and the Oldfield patent, No. 517.359; the books in both cases having a notch in the carbon sheet, and being capable of use iu the manner contemplated by the patent — the first without alteration, and the second without alteration, or by a mere change in the location of the notch, and it being shown that they were in fact so used.</p>

<p>1. Patents — Implied License to Use Patented Article.</p> <p>Where a company is licensed by one patentee to make and sell a patented article, and the president of the company, owning another patent for a device used in and as a part of the same patented article, sells a large number of such articles made under and in accordance with such patents, with the statement that the company is duly licensed, there is an actual license as to the one patent and an implied license as to the other which will protect the users from the charge of infringement of either.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 301, 302.] .</p> <p>2. Sale — Suit fob Infringement — Proof of License.</p> <p>Where large numbers of an article containing a patented device are made and sold under circumstances which carry an implied license from the patentee to use the same, in a suit by a subsequent owner of the patent for infringement against a user of one of such articles which has been long in use, the defendant cannot be required to prove beyond a reasonable doubt that the article owned and used by him is one of those covered by the implied license.</p> <p>3. Same — Infringement—Repair or Reconstruction.</p> <p>The replacing by a purchaser and user of a patented article of a part which is peculiarly subject to wear or destruction, and which does not constitute a.chief element of the patented invention, is within his rights as a repair, and cannot be considered a reconstruction to subject him to liability as' an infringer.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 38, Patents, § 399.]</p> <p>4 Same — Air Lock for Caissons.</p> <p>The Moran patent, No. 500,149, for an air lock for use in work carried on under air pressure greater than that of the atmosphere, construed, and claim 2 held not infringed by a structure in which no stuffing box is attached to the rope fall which carries the load being hoisted out from the caisson through the air lock, nor any equivalent therefor. Claim 3 held void for lack of invention.</p> <p>5. Same.</p> <p>The Barr patent, No. 514,843, for an air lock for caissons, held void for lack of invention as to claims 1, 3, 4, 6, and 8.</p>

In Equity. Suit for infringement of letters patent Nos. 661,023, 661,024, and 661,025, relating to the art of making prism glass, granted October 30, 1900, to Daniel C. Ripley and Frank L. O. Wadsworth. On final hearing.

<p>1. Patents — Infringement—Cable Conveyobs.</p> <p>The North patent, No. 480,029, for a conveying apparatus, relating to cable conveyors, and the essential feature of which is a self-propelling</p> <p>s and self-distributing fall-rope carrier, was not anticipated and discloses invention. Also held, infringed.</p> <p>2. Same — Invention.</p> <p>The Dusedau patent, No. 548,973, for a cable-hoist, is void for lack of invention.</p> <p>3. Same — Infringement—Equivalent Pabts.</p> <p>Two wheels or pulleys connected together so as to revolve as one by bolts or other close fastenings, and a single wheel cast with two peripheral contacts, are mechanical equivalents, where they operate in the same manner to produce the same result, and the substitution of one for the other in’ a patented device does not avoid infringement.</p>

<p>Patents — Agreement to Assign Euture Inventions — Construction.</p> <p>An assignment by an inventor of certain patents and inventions covered by pending applications, “and any and all inventions of like nature or similar thereto which I have already completed or which may hereafter be completed by me,” does not charge a third person with notice that it was intended to cover inventions, which, though similar in character, were not then in existence or even conceived, so as to deprive him of protection as a bona fide purchaser of a patent for an invention made by the assignor afterward, and while in the employ of such third party.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 294.]</p>

<p>Patents — Invention—Chest and Neck Pbotectob.</p> <p>The Way patent, No. 593,954, for a cliest and neck protector, claim 2, winch describes a collar with a depending flap attached thereto at its upper edge for a portion of its width, all made of knitted fabric, is void for lack of invention.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,057 (T. D. 23,452), which reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by John Bernhard. The opinion filed by the Board of General Appraisers reads as follows: DW VRIES, General Appraiser.

On application for Review of a Decisioñ of the Board of United States General Appraisers. For decision below, see G. A. 5,932 (T. D. 26,066), affirming the assessment of duty by the collector of customs at the port of New York. The merchandise- in controversy was claimed by the importers to be within the following provision in Tariff Act July 24, 1897, e. 11, § 1, Schedule D, par. 205, 30 Stat. 168 [U. S. Comp.

<p>Court’s Instructions to the Jury.</p>

<p>1. Cabriebs — Common Carriers — Express Companies.</p> <p>Under Rev. Civ. Code S. D. 1903, § 1577, providing that every one who offers to carry persons, property, or messages is a common carrier of whatever he thus offers to carry, an express company offering to carry money for hire is a common carrier thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1, 4G5.]</p> <p>2. Same — State Regulations.</p> <p>Rev. Pol. Code S. D. 1903, c. 7, regulating common carriers, applies to express company doing business within the state, whether incorporated or not, and subjects them to the regulation and control/of the Btate board of railroad commissioners.</p> <p>8. Constitutional Law — State Legislature — Powees.</p> <p>The Legislature of a state does not look to the state Constitution for power to act on a particular subject, but only to determine whether the sovereign legislative will has been in any manner restricted or limited by that instrument.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 30, 48.]</p> <p>4. Commerce — REGULATION—Rights of State. '</p> <p>The right of a state to regulate the business of common carriers within its boundaries, so far as that business affects the public, is founded on the state’s right to protect its commerce.</p> <p>[Ed,. Note — For cases in point, see Cent Dig. vol. 10, Commerce, § 7.]</p> <p>5. Carriers — Regulation—State Statutes — Construction—Discrimination.</p> <p>• Pol. Code S. D. c. 7, § 437, provides that it shall be unlawful for any common carrier subject to the provisions of the article to mate or give any preference or advantage to any particular person, firm, company or corporation, or locality, or any particular description of traffic in any respect whatever, or to subject any particular description of traffic to any prejudice or disadvantage in any respect whatsoever. Held, that such section must be construed as one prohibiting the subjection of any particular person, etc., or any particular description of traffic, to an unreasonable prejudice or disadvantage.</p> <p>6. Same — Express Companies — Receipt of Monet.</p> <p>Rev. Civ. Code S. D. 1903, § 1578, provides that a common carrier, if able to do so, must accept and carry whatever is offered him at a reasonable time and place of a kind that he undertakes or is accustomed to carry; and Pol. Code 1903, c. 7, § 437, prohibits a common carrier from subjecting any particular description of traffic to any prejudice or disadvantage in any respect whatsoever. Held, that a rule of an express company, providing that shipments of money would be received only during regular office hours if tendered before the departure of the last train on which the shipment could be made, which operated to require shipments of currency by a bank to be tendered on the day of the shipment before 6:30, 7, or 7:45 a. m., was unreasonable, and that the board of railroad commissioners had power .to order the express company, so long as it held itself out as a common carrier of money, to receive same for transportation at all reasonable business hours Of the day preceding the departure of trains at the hours specified.</p> <p>7. Same — Defense—Profit.</p> <p>Where an express company held itself out as a common carrier of money, it was no defense to an order of the board of railroad commissioners, requiring the receipt of money packages for transportation during reasonable business hours of the day preceding actual shipment, that to obey such order would compel the express company to transact the business at a loss.</p> <p>8. Same — Other Means of Transportation.</p> <p>It was no defense to an express company’s obligation to comply with the railroad commissioners’ order that shippers of money could use the United States mails, and were therefore not prejudiced by the express company’s rule, requiring presentation of money packages for shipment at unreasonable hours.</p> <p>9. Same — Judgment.</p> <p>Where an express company instituted suit in a federal court to restrain the enforcement of an order of the state railroad commission, requiring it to accept money packages for transportation during reasonable hours on the day preceding actual shipment, in which action defendants filed a cross-bill, seeking to enforce such order, the federal court, on determining that the order was valid, was entitled to pass a decree for its enforcement, notwithstanding Rev. Pol. Code S. D. 1903, c. 7, providing that, on the refusal of a common carrier to obey the lawful orders of the board of railroad commissioners, it should be the duty of the commissioners, etc., to apply to the state courts for the enforcement thereof.</p>

<p>1. COLLISION — Suit for Damages — Issues—Decree.</p> <p>In a surf’for collision,-the grounds of fault relied on should be covered by, the pleadings, and cannot be put forward for the first time in argument after the ease has been tried and closed on other issues.</p> <p>• 2. Same — Steam Vessels Meeting — Failure to Carry out Passing Agreement.</p> <p>A collision in the daytime in Hell Gate, near Hallets Point, between an ocean steamer bound for New York and a car float in tow on the side of a tug bound for Oak Point, held, on conflicting testimony, due solely to the fault of the tug in failing to carry out an agreement to pass to the right made when the vessels were a quarter of a mile apart.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 16, 10, 39.]</p>

<p>1. Courts — Federal Courts — Jurisdiction.</p> <p>Judiciary Act 1887 (Act March 3, 1887, c. 373, 24 Stat. 552), as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508] gives Circuit Courts of the United States original jurisdiction of civil suits where the matter in controversy exceeds in value $2,000 and arises under the Constitution or laws of the United States. Enid, that a federal Circuit Court had jurisdiction to compel an interstate carrier to specifically perform a contract to issue free passes to complainants during their natural lives, which the carrier had refused to do because of the provisions of Act Cong. June 29, 1906, 34 Stat. 584, c. 3591, prohibiting a carrier from issuing free interstate transportation, complainants having alleged that the value to each of i.hem of the right sought! to be enforced exceeded $2,000, exclusive of interest and costs.</p> <p>[Bid. Note. — Jurisdiction of Circuit Courts as determined by the amount in controversy, see note to Auer v. Lombard, 19 C. C. A. 75; Tennent Stribling Shoo Co. v. Roper, 36 C. C. A. 459.]</p> <p>2, CARBIERS — INTERSTATE TRANSPORTATION —PASSES — OBUCíATION OP CONTRACTS.</p> <p>Act Cong. June 29, 1906, §§ 2, 6, 34 Stat. 584, c. 3501, prohibiting interstate carriers from issuing free transportation or receiving different compensation for transportation of passengers or property between points named in published tariffs than the rates, fares, and charges specified in the tariffs, etc., did not invalidate a omtraet made October 2, 1871, by which an interstate carrier, in consideration of a release of damages for injuries to complainants, contracted to issue free passes over its lines to complainants during their natural lives, nor did such act authorize the carrier to refuse longer to issue passes good beyond the boundaries of the state.</p>

<p>1. INJUNCTION — TlOMPOBAllY INJUNCTION.</p> <p>Wliere the only object of a suit in equity is a permanent injunction, a temporary injunction will not issue, if the court is of the opinion that there is no probability that the complainant will succeed on the merits.</p> <p>lEd. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, § 309.]</p> <p>2. CONSPIIIAOY — BUSINESS COMPETITION.</p> <p>The right to do business free from interference, except from lawful competition, includes the right to buy as well as to sell.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 10, Consoiraey, §§ 7-11.]</p> <p>3. Same — Combination op Retaieebs.</p> <p>An association of retail dealers could lawfully agree among themselves that they would not purchase merchandise from wholesalers and jobbers who sold to catalogue or mail order houses, and to inform each other as to what wholesalers and jobbers did sell to such houses.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 10.]</p> <p>4. Same.</p> <p>That a combination of retail dealers in merchandise interfered with complainant’s right to buy goods by persuasion or peaceable means exerted against the sellers did not constitute unfair competition, intimidation, or coercion.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 10, Conspiracy, § 10.]</p> <p>5. Injunction — Conspiracy—Freedom op Press.</p> <p>Under Const. S. D. art. 6, § 5, providing that every person may freely speak, write,' and publish on all subjects, being responsible for the abuse of the right, the publisher of a commercial newspaper was not subject to injunction to restrain him from publishing articles in support of. proceedings of a retail dealers’ association against catalogue and mail order houses; the publisher being only responsible in an action at law for damages or a criminal proceeding by indictment or information.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 172, 174.]</p>

On Application for Review of a Decision of the Board of United A TMIfCÍ 1 For decision bebw, see G. A. 6,039 (T. D. 26,368), which affirmed the assessment of duty by the collector of customs at the… Held: in Stallman & Fulton’s Oase, G. A. 4,161 (T. D. 19,122), that pieces of orange peel dried by exposure to the air after removal from the orange were free of duty under said paragraph 627; this view being concurred in by the Treasury Department in T. D. 20,457.

<p>In Admiralty. Suit for charter hire. On exceptions to libel and to answer.</p>

<p>1. CoijjsioN — Damages—Delay.</p> <p>Libelant’s vessel was injured in a collision on March 10, 1904, and! was immediately laid up unrepaired. On August 8, 1904, she obtained a charter ; but no contract for her repair was made until October 17, 1004, and she was detained for 24 days thereafter while the repairs were being made. During the same period the owners had two other seaworthy vessels engaged in the same trade, which were laid up, one until August 10, 1904, the other until August 24, 1904. Hold, that libelant was not entitled to recover damages for loss of the use of the vessel while undergoing repairs.</p> <p>1 Ed. Note. — Por cases in point, see Cent. Dig. vol. 10, Collision, § 290.]</p> <p>2. Same — DEPRECIATION is Value.</p> <p>After collision libelant’s vessel was actually rfijiaired for $3,29.5, Such repairs rendered her entirely seaworthy and as staunch and strong as she was before the colli ;⅛>; The repairs were made in accordance with spsiciiications drawn for ⅞ ' iHvpose of enabling her to be restored to her original classification of • K® jil” in Lloyds’ Register, and when completed she received such Ar O ó-Hihon and at once resumed voyages in the same trade in which > lie aw. formerly engaged. The repairs did not involve the replacing <•■■ ¡ rn-h of her frames and beams as were broken by new' ones, but the eisipnp out and splicing of the broken pieces. In order to have taken inti- ;⅛" broken frames and replaced, them with now ones, it would ha\o iVi-v! necessary to remove much uninjured material and would have co f Belli, that libelant was not entitled to recover an al-</p> <p>leged n, p iot-iurun in market value of the vessel, estimated at from $15,000 to Sid.tUlrt,</p> <p>[Ed. Niufe. — For cases in point, see Cent Dig. vol. 10, Collision, § 289.]</p>

<p>1. Shipping — Charters—Construction—Docking Vessel.</p> <p>A charter provided that, as the steamer might be from time to time employed in tropical waters during the term of the charter, she should be ' docked, bottom-cleaned, and painted whenever the master should think necessary, but at least once in every six months, and that payment of hire should be suspended until she was again in proper state for service. The vessel arrived in New York, after having made a voyage to South America, on March 30, 1905, with cargo to be delivered in Boston, where she went and discharged such cargo, returning immediately to New York for docking. The time for docking under the six months’ clause expired April 13, 1905. Held, that when the steamer returned to New York it was on the charterer’s time, and that the hire continued, except for the period consumed for docking in New York.</p> <p>2. Same — Injuries to Vessel.</p> <p>A charter party provided that the owner should supply under the contract all provisions, wages, etc., and maintain the vessel in an efficient state, and that he should furnish tackle to handle ordinary cargo up to three tons, and to work the winches day and night, if required. The charterer was to furnish the coals, etc., and all other charges not otherwise specified. The charterer loaded the vessel with locomotive machinery and placed upon her a large wooden boom, with a wooden shoe, fitted with ring bolts to be used in handling the cargo. After the vessel had been docked at Havana, the ship’s employes, acting as the servants of, the ' charterer, constructed the boom and shoe, and with the same attempted to raise a package weighing about eight tons. As it was being lowered over the side of the vessel, a bolt in the shoe broke, bringing the weight of the package and broken appliances against the foremast, to which they were attached, which caused it to break and do damage to the vessel. Held, that the operation of such special machinery was at the risk of the charterer, and that the latter was, therefore, .responsible for the injuries so caused.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 220.]</p>

<p>1. Shipping — Time Charter — Liability op Owner pob Time Lost thbough Defective Winches.</p> <p>Where a time charter of a steamer required'her to be in every way fitted for the service and to have steam winches, which were to be at the charterer’s disposal, the charterer is entitled to an allowance for delay in discharging due to the defective condition of the winches or deficiency in steam power for operating them.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 44, Shipping, § 1951</p> <p>2. Same — Construction op Charter Party — Provision por Docking.</p> <p>Under a provision in a time charter party of a steamer that she should be docked and cleaned “whenever charterers and master think necea- ■ sary, but at least once in every six months,” during which time the charter hire was to be suspended, the charterer is entitled to have her so docked at the expiration of six months from the last prior docking, although that was previous to the charter, and regardless of her actual condition; it being shown that there was a general custom to interpret such provision as mailing the six months begin to run from the time of the last docking, irrespective of the time when the charter went into effect.</p>

At Daw. This action is for the recovery of §100 as a penalty for the violation of the safety appliance act, approved March 2, 1893, c. 196, § 2, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], and the amendments thereto (Act April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175], and Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp.

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

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

<p>In Admiralty. Proceeding for limitation of liability. On exceptions to petition for want of jurisdiction.</p>

<p>1. Vendor and Purchaser — Contract—Offer and Acceptance.</p> <p>Defendant, having endeavored! to purchase the interest of plaintiff’s children in certain land, concluded to withdraw his offer for their interest, and in a letter to plaintiff stated that he owned five undivided shares in the land, and, if he could get $300 apiece for them, he would be. willing to take it, requesting plaintiff to see if he could not get M. to buy: the same. Plaintiff promptly replied that he would take the five shares himself as per defendant’s offer at $300 per share, and would deposit the $1,500 in any bank defendant wished in F., defendant to mail deed to the bank for delivery to plaintiff on payment of the $1,500. Held, that, plaintiff’s answer to defendant’s letter did not constitute an acceptance of defendant’s offer, but contained terms and conditions which defendant had a right to reject, and hence was insufficient to constitute a contract of sale.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 17, 18.]</p> <p>%. Same — Tender.</p> <p>Where a vendor repudiated the alleged contract of sale before any tender could be made, no tender was necessary; it being sufficient that plaintiff ordered in his bill to enforce specific performance to bring the money into court.</p> <p>3. Specific Performance — Delay.</p> <p>A delay of three years in instituting suit for specific performance of a contract for the sale of land, unexplained, is sufficient to justify the court • in refusing such relief.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 327-331.]</p>

<p>On Motion by Defendants to Dismiss for Want of Jurisdiction.</p>

<p>1. United States — Public Works — Contracts—Assignment—Efebot.</p> <p>Where, after the members of a Ann had obtained a contract for the performance of public work for the United States, two of the members of the firm assigned their interest therein to the third, who agreed to assume all the debts of the firm and to prosecute the work at his own risk and Cor his own benefit, such assignment, while valid as between the parties, could not affect the rights of the United States, and operated only as an assumption, by the assignee of the debts of the firm in consideration of the receipt of the benefits to be derived from the execution of the agree ment.</p> <p>LEd, Note. — For cases in point, see Cent. Dig. vol. 47, United States, § 54.]</p> <p>2. Same — Contractors’ Bonds — Subcontractors—Sureties.</p> <p>An assignee of a public contract partially completed the same, so that there was §8,300 of the contract price held back by tbo United States to secure performance, when he was unable to complete the work. lie then applied to plaintiffs for assistance, who agreed to superintend the construction of the work, to reorganize the labor force, and to furnish the necessary finances for the completion of the work, for 15 per -cent, commission upon their gross outlay, whether for labor and materials or ofher expenses, and an assignment of all payments to become due from the government on the contract, and, if this should not bo sufficient, they should also have the right to use the■ 88.300 already earned. The contract also provided that the work should be completed on the terms and stipulations recited, one of which was that plaintiffs were to use the contractor’s plant and quarry free of expense, and that only the surplus of the ?8.300 fund was to be paid to- the contractor in the event the fund proved more than sufficient to repay plaintiffs for every kind of disbursement, together with a profit of 15 per cent. JTeld, that plaintiffs were not subcontractors furnishing labor and materials to complete the work, but were rather lenders of credit to the contractor, arid as such were not entitled to- recover a deficit on the contractor’s bond given to pay laborers and materialmen, as provided by Act Gong. Ang. 13, 1891 (28 Stab 278, c. 280, § 1 [U. S. Comp. St. 1901, p. 2523]).</p> <p>8. Same.</p> <p>It plaintiffs should be regarded as subcontractors, they were only such for a fixed price, to wit, the funds earned by a completion of the contract, and the use of the contractor’s plant, so that, if loss was sustained, they were not entitled to resort to the bond.</p> <p>On Rehearing.</p> <p>4. Assignments — Rights of Assignee and Surety oe Assignor — Priorities.</p> <p>Where defendant became surety for a government contractor, its right to subrogation to the right of the contractor to percentages withheld by the government from time to time, on estimates for work done prior to an equitable assignment of the contract, was superior to any claim to such percentages by the assignees.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 4, Assignments, § 183.]</p>

<p>1. ADMIRALTY — APPEAL—ISSUES REVIEW ABLE.</p> <p>In a suit for wages by the master of a vessel against the owner and insurers, the only controversy was as to the ownership of the vessel during the time libelant’s services were rendered; the owner claiming to have abandoned her to the insurers, and the insurers denying such abandonment. The court dismissed the libel as to the insurers and entered a decree in favor of libelant against the owner, who alone appealed. Held, that he was entitled to maintain such apx>eal and to a review of the decision as between himself and his co-respondents.</p> <p>2. Insurance — Marike Insurance — Evidence on Acceptance of Abandonment.</p> <p>The action of the insurers of a stranded vessel in sending an agent- to take charge, and to salve her, if possible, cannot be construed against them, on the question whether or not they accepted an abandonment, where it was expressly agreed between them and the owners that such agent should go as the representative of all parties in interest.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1216.1</p> <p>3. Same.</p> <p>The insurers of a stranded schooner, under policies which provided that no acts in recovering, saving, and preserving the property insured, in case of disaster, should be considered a waiver or an acceptance of an abandonment, sent an agent to take charge of the vessel, under an agreement with the owner that he should represent all interests. By direction of the insurers, in which the owner refused to take part, the agent contracted for the salving of the vessel, and after her release the insurers had her temporarily repaired, and she loaded a cargo and carried the same to San Francisco; her master having remained with her at request of the agent in charge. The owner refused to give any direction respecting her employment, and on her arrival in San Francisco refused to receive her or accept her freight, claiming that she had been abandoned to the insurers, which they at all times denied. They afterward had her permanently repaired, but permitted her to be sold for the cost of such repairs. This was five months or more after the stranding. Held, that their action, in retaining possession for such length of time without permanently repairing, and in finally permitting the vessel to be sold, was not authorized by such clause of the policies, and under the circumstances amounted to a constructive acceptance of the abandonment, whether or not the owner originally had the right to abandon.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 28, Insurance, § 1216.]</p> <p>4. Same — Stranding of Vessel — Liability for Subsequent Wages of Master.</p> <p>The master of a stranded vessel, who remains with her, does so as the agent of whoever may be ultimately determined to be her owner in consequence of that event, and, where an abandonment is subsequently accepted by the insurers, although it may be months afterward, it relates back to the date of the stranding, and the master is from that time their agent, for whose wages they are responsible.</p>

The following is the opinion of the District Court by Swan, District Judge: Macauley was adjudicated a bankrupt on his own petition November 23, 1904. The petitioner is his brother-in-law and resides in Connecticut The bankrupt had been engaged in business in Detroit for several years.

<p>Appe'al from the Circuit Court of the United States for the Eastern Division of the Eastern District of Washington.</p> <p>This is an appeal from an order granting an injunction pendente lite. The bill .allfeged in substance that the appellees are engaged in the manufacture and sale of buggies and wagons; that their place of manufacture is in the state of Iowa; that for many years they have been engaged in selling their buggies and wagons in other states, including the state of Washington; that they have had, during the summer season, agents and salesmen in the state of Washington who travel through the country selling buggies and wagons, especially to farmers and others residing in the rural districts; that their wagons and buggies are strong and especially adapted to the needs of farmers, and have acquired a reputation in the state of Washington as buggies and wagons of high, grade and excellent quality, purchasable at reasonable prices, and that such reputation and standing of the appellees in said community in said business is of very great value to them; that a few months prior to the filing of tlie bill, many of the dealers in hardware and farming implements in eastern Washington conspired and confederated together for the purpose of monopolizing such business in such section, and especially for the purpose of preventing manufacturers and dealers in hardware and farming implex ments residing without the limits of the state of Washington ,from selling any of such goods, wares, and merchandise in such state at retail, and to prevent the appellees from selling their buggies and wagons at retail to farmers and others in the rural districts: that said local dealers formed an association under the name of the “Inland Empire Implement and Hardware' Dealers”' Associationthat some of the members are dealers in hardware, and are not engaged in the business of selling buggies and wagons or other farming implements, while others are local dealers in farming implements; that the association includes members residing in the counties of Spokane, Lincoln, Douglas, Adams, Perry and Okanagan; that the members of such association raised a fund of $10,000, and placed the same in the hands of the appellant Evenson, to be used for the purpose of preventing the appellees from selling any buggies or wagons in eastern Washington at retail; that for several weeks last past the appellees have had about 20 employes engaged in selling buggies and wagons in eastern Washington; that their method of doing business was to drive through-the rural dis1 riels hauling from two to four wagons and stopping at farmhouses and other places where customers would probably be, offering the same for sale; that before offering said buggies and wagons for sale the appellees paid the taxes thereon as provided by statute, and, in other respects, complied with the statutes of the state of Washington; that said association, through the appellants Evenson, Lucas, and Hay, unlawfully interfered with the business of the appellees, and have threatened, intimidated, harassed, and annoyed their employes, and the persons with whom they were transacting business; that they have had said employes followed day and night, so that wherever one of them went, he was dogged, sometimes by one. but generally by two of the employes of said association — some of said followers being armed with guns and rifles, some of them being unarmed; that whenever the employs of the ap-pellees undertook to converse with a farmer or other probable purchaser, such conversation would be interrupted by the said followers, and the latter would undertake to dissuade such probable purchaser from purchasing goods of the appellees, suggesting that they ought to purchase of resident dealers who resided in the community; that the said followers were not undertaking to sell any buggies or wagons, nor did tiiey claim to represent any competitor of - the appellees or any dealer in buggies or wagons; that the sole object and purpose was in all cases to prevent the appellees from making sales, to the end that they might he driven out of business in the state of Washington; that said followers undertook and have undertaken to persuade purchasers to violate their contracts, whereby they have purchased goods from the appellees; that several of such followers, at the instance of said association, have been appointed deputy sheriffs, and one of the agents of the appellees was arrested upon a false and malicious charge of peddling goods without a license by one of the said followers so appointed a deputy sheriff, all at the instance of the association, and in furtherance of said conspiracy; that said conduct on the’part of the agents of said association has been carried on for several weeks and numerous sales have been lost as a result thereof, and the employes of the ap.-pellees have become alarmed and diseburaged, and will, unless said acts oi said followers are Stopped, quit the employment of the appellees, and the appellees will be unable to further carry on their business in the state of Washington j that, in pursuance of such nefarious scheme, the association has circulated false and slanderous matter concerning the appellees and their buggies and wagons, and have falsely stated that the latter are of inferior quality, and are being sold at a price greatly in excess of prices charged by local dealers all of which is false and known to be false by the appellants, and that they have circulated stories to the effect that the appellees and their employés are perpetrating frauds on their customers in various ways, which the bill proceeded to set forth. The bill alleged “that there is no adequate remedy at law, that the value of the matter in dispute exceeds, exclusive of interest and costs, the sum of more than $25,000, and that your orators have been damaged by the said acts and conduct of said defendants in excess of the sum of $25,-■000.” After setting forth that the threatened injury would be irreparable unless stayed by the court, the bill prays for an injunction and for judgment against the appellants for $25,000 and for such further relief as shall be just and proper. With the bill affidavits wore filed. Thereafter further affidavits werfe filed when the matter came on to be heard on the application of the appellees for an injunction pendente lite upon the bill and the affidavits of the appellees and the counter affidavits of the appellants. Upon consideration of the bill and the facts set forth in the affidavits, the court enjoined the appellants pendente lite “from preceding or following in close range any employe, agent, or servant of the complainants, or the teams used by them or apy of them in such manner as to hinder, obstruct, harass, annoy, or intimidate the complainants or any of their employés in the free use of the highway, and from in any other manner occupying said highway in such a manner as to hinder, obstruct, harass, annoy, or intimidate the complainants or any of their employes in the free use thereof; also from approaching or speaking to any actual or supposed customer or customers of the complainants so long as complainants’ agents or servants are personally present and engaged in selling or negotiating the sale of any buggy or wagon, for the purpose of defeating such sale by the complainants; also from resorting to any species of intimidation, force, or fraud, or any conduct that would imply intimidation, force, coercion, or fraud, for the purpose of preventing complainants from selling buggies or wagons and carrying on said business of selling buggies or wagons.”</p>

<p>1. Customs Duties — Merchant Appraisers — Presumption of Due Selection.</p> <p>In order to overcome the presumption that a collector of customs in selecting a merchant appraiser of imported merchandise, under section 2930, Rev. St, made a proper appointment, it is not enough to create a mere uncertainty. It must be clearly shown that the appointee did not meet the statutory requirement of being “familiar with the character and value of the goods in question.”</p> <p>2. Evidence — Public Officers — Presumption of Due Pebfohmance of Dutt.</p> <p>Where it is the official duty of a collector of customs to appoint an officer possessing qualifications prescribed by statute, it is to be assumed that in making the appointment he performed his duty in that regard.</p>

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

<p>1. Shipping — Visitors on Board Vessel, — Duty to Afford Opportunity to Land.</p> <p>It is the duty of the owners or master of a vessel, by whose permission, or at whose implied invitation, a visitor has come on board at a port, to exercise reasonable care to avoid injury to such visitor, and to give him a reasonable opportunity to go on shore before the vessel departs; the measure of such duty being affected by the magnitude of the injury which will otherwise result to the visitor.</p> <p>2. Same — Cabrying Visitor Away — Liability of Vessel.</p> <p>Respondent's steamship, on a voyage from Alaska to Seattle, in October, stopped »it an Alaskan port in the night, and libelant, who was a minister residing there with his family, without objection on the part of the officers, went on board to see a passenger. The signal for starting was given, but, before libelant reached the gang plank, it had been taken in, and the master, when appealed to, refused to put libelant ashore, and carried him to Seattle, which was reached several days later. Hold that, under the circumstances, and1 in view of the serious inconvenience and loss which would necessarily result to libelant from taking him such distance without preparation or the knowledge of his family, it was the duty of the master t.o afford him an opportunity to go ashore, even il', as claimed, the vessel had already swung from the wharf before the master had0knowl-edge of the situation, and a relanding would have been necessary; and that the vessel was liable in damages.</p>

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

<p>Bankruptcy — Void Preference — Unrecorded Conveyance.</p> <p>The failure to record a deed or mortgage given as security until after the bankruptcy of the grantor does not constitute the same an unlawful preference, within Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, p. 689], under Civ. Code Cal. § 1217, which provides that an unrecorded instrument is valid between the parties thereto and those who have notice thereof, nor can such instrument be set aside as fraudulent at suit of the grantor's trustee, in the absence of any allegation that it was witheld from record by agreement or for a fraudulent purpose, or that the grantee fraudulently concealed its existence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 275, 276.]</p>

<p>1,, Indians — Action on Bond op Indian Agent — Defense.</p> <p>Section 8 of Act July 4, 1884, c. 180, 23 Stat. 97, which provides that the jjresentation by an Indian agent of vouchers, accounts, and claims, ■ containing material misrepresentations df fact in regard to the amounts due and paid shall not constitute an accounting, and making it the duty of the accounting officers of the government to reject such vouchers, does not impose a penalty, nor render an action to recover the indebtedness, resulting from the rejection of such accounts one for the recovery of a penalty, but merely prescribes a statutory rule of accounting which becomes a part of the contract of a surety for an Indian agent, to which his obligation is subject, and it is no defense to such an action on an agent’s bond that vouchers so rejected contained correct and true items of expenditure; the agent having the right on their rejection to furnish true vouchers for all items for which he was entitled to credit.</p> <p>2. Same — 'Validity op Bond — Conditions.</p> <p>That the bond required from and given by an Indian agent contained provisions not required by any statutory provision does not affect its validity, where its conditions were not in violation of law, and it was entered into voluntarily by both principal and surety, the President and Secretary of the Interior being authorized by statute (Rev. St. § 465 [U. S. Comp. St. 1901, p. 264], and section 2057) to prescribe the .character of such a bond, both as to its penalty and the nature and conditions of its obligation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indians, § 10.]</p> <p>3. Judgment — Res Judicata — Bab op Subsequent Action — Peiob Cbiminal Peosecution.</p> <p>The conviction and imprisonment of an Indian agent for malfeasance in office is not a bar to a subsequent suit by the United-States, on his bond to recover the amount of public money misappropriated or unaccounted for by him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1077.]</p>

<p>1. Trial — Direction of Verdict — Effect of Motion.</p> <p>On a motion for direction of a verdict, the court must take that view of the evidence most favorable to the party against whom the instruction is asked.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 402.]</p> <p>2. Same — Questions foe Jury — Conflict of Evidence.</p> <p>Where there was positive testimony that signals were given by a railroad train at a crossing, and also testimony by other witnesses who were where they should have heard such signals if given, that they did not hear them, the question was one for the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 342, 343.]</p> <p>3. Evidence — Opinion of Witness — Matters Directly in Issue.</p> <p>On the trial of an action to recover damages for the death of a man who was struck and killed by a switching train while driving over' a rail; road crossing with which he was familiar, and which he crossed often in his daily work as a teamster, it was error to allow another teamster as a witness to state his opinion that there would have been no “unusual danger” in driving upon the track as the deceased did if the train had been going at the usual rate of speed, such statement being in effect an opim-ion as to the negligence of the deceased, which was an issue before the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§’2189' 2248, 2250.] '</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of. New York.</p> <p>.■ -.The decision below affirmed a decision of the Board of United States General Appraisers (G. A. 6,010; T. D. 26,266),.which had overruled protests of the importers against the assessment of duty by the collector of customs at the port of New York.</p> <p>The opinion filed in the Circuit Court reads as follows:</p> <p>“HAZEL, District Judge. I have read the evidence, including the testimony before the Board, which was taken in another ease, and have examined the ease of Douglass & Berry v. D. S. (0. C.) 123 Fed. 993, and cases there cited, to which my attention was directed on the hearing. I am of, opinion that the findings of the Board upon the facts should not be distrubed by me, inasmuch as they are fairly supported by the- evidence. The decision of the Board of General Appraisers is affirmed.”</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here .upon appeal from a decision of the Circuit Court, Southern District-of New York (142 Fed. 199), affirming a decision of the Board of General Appraisers, G. A. 6,035, T. D. 26,354, which sustained a protest of the importer against the assessment and advancement of the value of certain merchandise by a local appraiser ' at the port of New York.</p>

<p>Dismissal — Agreement Made Out of Court — Pleading.</p> <p>An agreement to dismiss a pending suit made out of court, and not presented to nor acted on by the court, cannot affect its jurisdiction to proceed with the suit, and, if relied on by the defendant, must be pleaded in abatement, and is waived by answering an amended bill filed thereafter on the merits.</p>

<p>Adverse Possession — Nature and Requisites-Title or Claim.</p> <p>The taking possession and occupancy of vacant land by a mere squatter does not work a disseisin of the true owner, nor will such possession ripen into iitle; but, to constitute adverse possession, it must originate under claim or color of title having reference to some distinct source from which it is claimed to have been deraigned.</p> <p>[Eel. Note. — For eases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 387-393.]</p>

<p>Bankeuptcy — Seizure op Peopekty — Allowance op Costs and Damages on Dismissal.</p> <p>Under the provision of Bankr. Act 1898, § 3e, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], providing that on the dismissal of a petition against an alleged bankrupt whose property has been seized, he shall be allowed “all costs, counsel fees, expenses, and damages occasioned by such seizure,” he is entitled to but a single allowance, which must include all of such items claimed by him, and where he makes no claim for damages, he cannot thereafter make a further claim therefor against the petitioners and their bondsmen under section 69a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450].</p>

<p>Appeal from the Circuit Court of the United States for the Western District of the Northern Division of Washington.</p> <p>The appellee brought a suit against the appellant to cancel a contract under which the latter as agent had been engaged in selling safes manufactured by and consigned to it by the appellee, and to obtain an accounting. In the bill it was alleged that the appellant had collected large sums on sales of safes, and had refused to remit the same to the appellee; that on March 28, 1906, the appellant acknowledged in writing to the appellee that it had received and collected, and still retained and had converted to its own use out of the proceeds of sales of safes, the sum of §33,027.50; and that it had failed to pay the same. After the appellant had answered, the appellee moved the court that the appellant be required to pay into the registry of the court §33,027.50. The motion was based upon the bill and answer and the affidavits on file. In the affidavits it was shown, and this was not denied, that on March 28, 1906, the appellant wrote as follows to the appellee: “Gentlemen: We have placed to the credit of your account on our books the amount of thirty-three thousand twenty-seven and so/ioo covering the following safes which we have sold.” Then followed a list of the safes. The motion of the appellee was allowed, and it was ordered that the appellant pay into the registry of the court the sum of $33,027.50. This order was made under rule 31 of the Circuit Court, which provides as follows: “Whenever it is admitted by the pleading of any party to an action at law or suit in equity or is admitted by such party upon his examination that he has in his possession or under his control any money or other thing capable of delivery, which being the subject of litigation is held by him as trustee for another party to the cause, or which belongs or is due to another party to the canse, the court may, in its discretion upon motion made after due notice, order the same to be deposited in court pending the litigation, or to he 'delivered to the party to whom it belongs or is due (subject to the further order of the court), upon such conditions as may be just, including the release of the party who has it in possession from all further liability with respect to it.” From the order so made, the present appeal is taken.</p>

The bill was to take an accounting of the value of one hundred and twent}'--five shares of the New Alban}»- Eight, Heat and Power Com-pan}»-, said to belong to appellant, and to have been included in defendants’ sale of the stock pf that company to the United Gas and Electric Eight Company, of Jeffersonville, Indiana — the decree appealed from, having dismissed the bill for want of equity. The facts are stated in the opinion;

<p>Removal oe Causes — Citizenship oe Pabties — Suit Between Nonresidents.</p> <p>A suit in a state court, in which neither of the p¿rties is a citizen or resident of the state, and which could not, therefore, have been originally brought in a federal court, is not removable.</p> <p>[Ed. Note. — For cpses in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 30, 31.]</p>

The following is the opinion of the Circuit Court by Lanning, District Judge: This cause comes before the court on bill and affidavits. One of the two-complainants, the Dececo Company, is the owner of the Frame and Neff Patent, No. 425,416, dated April 15, 1890, for an improvement in water-closets. The patent was sustained by the Circuit Court of Appeals of the First Circuit in Dececo Company v. George E. Gilchrist Company, 125 Fed. 293, 60 C. C. A. 207.

<p>Patents — Invention—Incandescent Bubnebs.</p> <p>The Campbell patent, No. 447,757, for an improvement in incandescent burners and method of using the same, claim 2, which covers the com; bination in a portable lamp of a Bunsen burner, a Welsbach mantle, and a gasoline vapor generator, the entire device above the orifice of the generator being that of Welsbach, is void for lack of invention; the gas generator itself being old, and it having been open to the inventor of the Welsbach device to use any known form of gas generator, stationary or portable, to feed his Bunsen burner. If conceded invention, the patent is void for anticipation by the British patent to Siemang, No. 8097, of 1886.</p>

<p>PATENTS — Validity out , Reissue — Laches.</p> <p>The Van Depoele reissued patent No. 31,872 (original No. 495,443), for a traveling contact for electric railways, is void because of the delay in making application therefor, which was not until seven years after the issuance of the original, and more than three years after it had been declared invalid by a Circuit Court of Appeals, during which time the owner was prosecuting suits for infringement in other circuits, which also terminated adversely before the application was made.</p> <p>[Ed. 'Note. — For cases in point, see Cent. Dig. vol. 88, Patents, §§ 201-. 203.]</p>

<p>Patents — Infringement—Hook and Eye Package.</p> <p>The Richardson patent, No. 676,824, for a hook and eye package, In view of the limitation placed thereon by the Patent Office and acquiesced in by the patentee, is of narrow scope, and restricted to the precise method shown of securing to a card carrier, in combination with a row of hooks and eyes secured to said card by two rows of thread stitching, a series of invisible eyes by one of said rows of thread stitching; the operation of securing the same being one with that of securing the hooks and loop eyes. As so construed, held not infringed.1</p>

<p>Bankruptcy— Exemption to Partnership — South Dakota Statute.</p> <p>The provision of Code Civ.' Proc. S. D. 1903, § 363. that, “except those inade absolute, the exemptions herein provided for must not be construed to apply to the following persons, namely: * * * (5) A partnership firm can claim but one exemption of $750 in value * * * out of the partnership property, and not a several exemption for each partner” — has no force of itself to create an exemption in favor of a partnership; and, since the “exemptions herein provided for” and specified in section 346 are expressly limited to a debtor who is the head of a family and a single person who is not the head of a family, said subdivision 5 is wholly inoperative and void, being merely a re-enactment of an old statute originally enacted when the right of exemption was given to all debtors, and under said Code a bankrupt partnership is not entitled to claim an exemption.</p>

On Application for Review of a Decision of the Board of United States General Appraisers.

<p>Equity — Dismissal Without Pbejudice — Right of Complainant.</p> <p>A complainant in a suit in equity has an absolute right to dismiss the suit without prejudice at any time before the hearing on payment of costs and without terms, where the dismissal will deprive the defendant of no substantial right accrued since the suit was commenced, and he is not entitled to and has not prayed for any affirmative relief.</p> <p>[Ed. Note. — 'For cases in point, see Cent. Dig. vol. 19, Equity, §§ 749-756.]</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. 6,176 (T. D. 36,799), relating to importations at the port of New York.</p> <p>Tbe material in question was classified under the provision in Tariff Act July 24, 1897, e. 11, § 1, Schedule N, par. 450, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678], for “manufactures” of motber-of-pearl. Tbe character of tbe merchandise and tbe Board’s findings thereon appear from tbe following excerpt from tbe Board^s opinion:</p> <p>“SHARRETTS, General Appraiser. These protests relate to motber-of-pearl made into slabs by cutting or grinding, designed for use in tbe manufacture of bandies for knives, button hooks, and similar articles. * * * Tbe representative of tbe importers testified that tbe merchandise bad been subjected to the process of grinding for tbe purpose of removing tbe superfluous material that bad no merchantable value, after wbicb it was further cut and ground to bring it to tbe condition in wbicb imported. These processes of manufacture have enhanced the value of tbe mother-of-pearl, uncut, from wbicb tbe slabs have been formed; tbe latter having a new name and a specific purpose of use.”</p> <p>On tbe authority of a former decision (G. A. 1,473; T. D. 12,922), which was affirmed in Re Russell Cutlery Co. (C. C.) 56 Fed. 221, tbe Board held that tbe articles were “manufactures” of motber-of-pearl and had been properly classified as such. Tbe importers’ contention, as stated in their application for review of tbe Board’s decision, was that the slabs in question should; have been held dutiable under section 6 of said act (30 Stat. 205 [U. S. Comp. St 1901, p. 1693]), either as unenumerated unmanufactured articles or as un-enumerated articles partially manufactured.</p>

<p>Aliens — Proceedings for Deportation of Chinese — Right to Take Depositions.</p> <p>Proceedings brought under the Chinese exclusion act for the deportation of a Chinese person are civil, and not criminal, and a defendant claiming to be a native of the United States may avail himself of the right given by Rev. St. § 863 [U. S. Comp. St. 1901, p. 661], to take and use depositions de bene esse.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>In the decision below the Board of General Appraisers, on the authority of Thomas v. Schwarz, 140 Red. 989, 71 C. C. A. 401, sustained the importers’ protests against the assessment "of duty by the collector of customs at the port of New York, holding that the merchandise in dispute, which consisted of pyroxylin smokers’ articles, was more specifically enumerated as “all smokers’ articles whatsoever, not specially provided for, under Tariff Act, July 24, 1897, c. 11, § 1, Schedule N, par. 459, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678], than under the provision in Schedule A, par. 17, 30 Stat. 154 [U. S. Comp. St. 1901, p. 1628], for “all compounds of pyroxylin, * * * if in finished or partly finished articles.”</p>

<p>Customs Duties — Classification—Bottles with Mountings — Plain Bottles.</p> <p>Tlie provision in Tariff Act July 24, 1897, c. 11,' § 1, Schedule B, par. 99, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], for “plain”, glass bottles, held not to include fancy bottles with metal mountings.</p>

<p>Insurance — Avoidance foe Breach of Condition — Incumbrance on Property.</p> <p>A policy of fire insurance, which contains a provision that it shall be void “if the subject of insurance be personal property and be or become incumbered by a chattel mortgage,” is avoided in its entirety, where it covers personal property which was incumbered by . chattel mortgages at the time it was issued, which fact was not disclosed to the insurer, and this although the policy also covers real property belonging to the same owner.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 636-646.]</p>

In Equity. Motion to compel complainants to attach exhibit to bills, and right of answering defendants to plead, answer, or demur by reason of joining of John B. Parsons by amendment.

In Equity. On demurrer to bill. On January 15, 1002, Ann R. Miller, a citizen of Baltimore, Md., filed her bill in this court against George H. Ahrens, James B. Ross, and Henry O'Dell, citizens of New York.

At Law. The facts in this case, as found by the court, sitting as a jury, are these: A. & J. Grier is a firm of retail grocery merchants, doing business at Ft. Smith, Ark. Andrew Grier died about three years ago, and more than a year before the matters occurred out of which this suit grew. The business, since Andrew’s death, has been conducted by James Grier, as surviving partner, under the original firm name of A. & J. Grier.

<p>On motion of defendant after removal of the cause to vacate a default judgment in the state court and to set aside the service of summons on said'defendant.</p>

<p>1. Conteacts — Building Contracts — Nonperformance—Evidence.</p> <p>In an action on a subcontractor's bond for an alleged nonperformance of a building contract, evidence held to require a finding tfiat the negligent construction of tbe rear wall of the building and the inexcusable delay in completing the building by the principal in thé bond was the indirect cause of the building’s collapse.</p> <p>2. Guaranty — Building Contractor’s Bond — Special Contract.</p> <p>Where a building contractor’s bond contained no words of limitation indicating that the surety depended on the faithfulness of the obligee or reposed any trust in him, but expressly • recited that the principal and the obligee had entered into a written contract by which the former agreed to construct the building in question for plaintiff, the bond did not import a special guaranty.</p> <p>3. Same — Assignment.</p> <p>Where a bond given by a sub building contractor to the contractor imported a general guaranty to indemnify the obligee from loss sustained under the contract, it was immaterial that the obligee assigned the same to enable the owner to recover damages for the subcontractor’s breach of his contract.</p> <p>4. Principal and Surety — Building Contract — Extension oe Time — Novation — Discharge oe Surety.</p> <p>A continuance of the work on a building beyond the time ■ specified in the contract does not constitute such a novation of the contract as would discharge the contractor’s surety from liability.</p> <p>5. Same — New Contract.</p> <p>Where a subcontractor’s surety had received notice of the termination of the contract both from the architects and from the contractor, who was liable under his contract to the owner to complete the work the subcontractor was about to abandon, the fact that a new contract was made between the contractor and the subcontractor without notice to the surety, which did not constitute a departure from the conditions of the original contract, did not release the surety from liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. <10, Principal and Surety, §§ 162-177.]</p> <p>6. Assignments — Subcontractor’s Bond — Eeeect.</p> <p>Where, notwithstanding an assignment of a subcontractor’s bond to the owner, the contractor commenced an action in another jurisdiction to recover damages sustained by him, the assignment to the owner, though absolute on its face, should be regarded merely as collateral.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 4, Assignments, §§ 135, 136.]</p> <p>7. Damages — Contracts—Building Contracts — Delay—Rental Value.</p> <p>Where a building contract did not specify any penalty for nonperformance within the time prescribed, and time was not of the essence of the contract, but there was no extension of time or waiver, the owner’s damages for nonperformance within the time were the rental value of the premises.</p> <p>, [Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 312, 313.] . '</p>

<p>1. Contracts — Construction—Rights Acquired by Third Persons.</p> <p>A provision of a mortgage given by a manufacturing company to secure bonds, requiring the trustee on request to release portions of a tract of. land in case lots should be sold from the same, the proceeds.of such sales to be paid to and held by the trustee, and at the election of the company • applied on the mortgage debt or paid over to it, to be used in the erection of buildings on the mortgaged property, affords no basis for a claim by a third party that a mechanic’s lien filed by him for work or materials subsequently furnished in the erection of buildings on tbe mortgaged property is entitled to priority over the mortgage, to which it is subject under the law of the state, where it does not appear that any lots were ever sold and the proceeds devoted to the erection of buildings, or that, anything whatever was ever done under said provision.</p> <p>2. Mortgages — CONSTRUCTION—“Plant” of Manufacturing Company.</p> <p>A provision of a mortgage given to secure bonds by a corporation engaged in operating a beet sugar factory, and covering its plant and surrounding lands, that it should also include “all other machinery, plant, tools and equipment which the company may hereafter acquire for the aforesaid purposes,” cannot be construed to bring under the mortgage as a part of the mortgagor’s “plant” a large tract of land afterward acquired by it, lying 200 miles distant from its factory, although it was its purpose' to raise beets thereon for use in such factory.</p>

<p>1. RAILROADS — MORTGAGES—FORECLOSURE—CONDITIONS PRECEDENT TO SUIT.</p> <p>. The rule that a provision of a railroad mortgage requiring a request to the trustee by the holders of a majority in amount of the bonds secured and the tender of indemnity against liability for costs and expenses as a condition precedent to a suit for foreclosure must ordinarily be strictly complied with before a bondholder can maintain a suit to foreclose is not applicable where it appears from the bill filed by a bondholder that such compliance is impossible, and that the trustee is antagonistic to the foreclosure by reason of its interest in a second mortgage; and in such case the demand is unnecessary.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 608.]'</p> <p>2. Courts — Jurisdiction of Federal Courts — Allegations of Citizenship.</p> <p>The failure of an amended bill filed in a federal court to allege the citizenship of the parties at the time the suit was commenced, as well .as at the time the amended bill was filed, is fatal to the jurisdiction of the court where that is dependent on diversity of citizenship.</p> <p>/[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 876-881:</p> <p>Diverse citizenship as a ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

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

<p>On Petition for Stay of Execution.</p>

<p>⅜. Customs Duties — Classification—Cotton-Wool Ct.otii.</p> <p>Goods composed in part of wool, but in chief value of cotton, are more specifically enumerated in Tariff Act Oct. 1, 1890, c. 1244, § 3, Schedule I, par. 355, 26 Stat. 593, as “manufactures of cotton” than in the provision in Schedule K, par. 392, 26 Stat. 596, for “manufactures of every description ⅞ ⅝ * in part of wool.”</p> <p>2. Same — Provisions Equally Applicable.</p> <p>A provision for “all manufactures of col ton” and one for “all manufactures of every description * ⅞ * in part of wool” are not equally applicable to cloth composed in part of wool but in chief value of cotton; the latter being less specific than the former. Therefore ihey are not controlled by the provision in Tariff Act Oct. 1, 1890, c. 1234, § 5, 26 Stat. 63.3, that, “if two or more rates of duty shall be applicable to any imported article, it shall pay duty at the highest of such rates.”</p> <p>3. Same — “Manufactures of Cotton.”</p> <p>The provision for “manufactures of cotton.” in Tariff Act Oct. 1, 3890, c. 1244, § 1, Schedule T, par. 355, 30 Stat. 593, hold to include materials composed in chief value of cotton and in part of another substance.</p>

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

<p>1. Bankruptcy— Sale or Asskts — Aeeiemance by Trustee.</p> <p>Where, after an alleged unauthorized sale of a bankrupt’s assets, the trustee applied for an order directing that the proceeds be delivered to him, which was duly entered by the court, such act constituted an affirmance of the sale.</p> <p>2. Same — Bankruptcy Court — Jurisdiction.</p> <p>Aside from the power of the federal District Court with regard to the assets of bankrupts, which is especially given it by statute, it has all the authority which any court exereisng equitable jurisdiction has to protect its receivers and enforce contracts made by them.</p> <p>3. Same— Sale oe Assets — Completion oe Conteact — Courts—Jurisdiction.</p> <p>Whenever a receiver of a bankrupt, by direction of the court appointing him, makes a sale of assets in his possession, the parties concerned are bound to recognize him as an officer of the court, and hence such court, not only has power to enforce in a summary manner the completion of the contract of sale, but the parties involved are deemed to have consented to such proceeding.</p> <p>4. Same — Coubts—Jurisdiction.</p> <p>A federal District Court in which a bankruptcy proceeding was pending had jurisdiction to compel payment of the proceeds of a sale of the bankrupt’s assets to the trustee by virtue of Bankr. Act July 1, 1898, c. 541, § 2 (7), 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420], authorizing such court to cause the assets of bankrupts to be collected, reduced to money, and distributed, and to determine controversies in relation thereto.</p> <p>5. Same — Appeal—Mode oe Review.</p> <p>Where proceedings were instituted by a bankrupt’s trustee to compel payment to him of the proceeds of a sale of the bankrupt’s assets, such proceeding involved a controversy arising in' bankruptcy proceedings, and was therefore reviewable on appeal, as provided by Banlcr. Act July 1, 1898, c. 541, § 24a, 30 Stat. 553 [Ü. S. Comp. St. 1901, p. 3431], and not by petition to review.</p> <p>6. ATTORNEY AND CLIENT — AUTHORITY OF ATTORNEY — SALE OF PROPERTY.</p> <p>The general employment of an attorney at law as counsel and attorney by the receiver of a bankrupt does not authorize the attorney to make a sale of the bankrupt’s assets, nor take the proceeds thereof.</p> <p>7. Joint Agents to Sell Property — Joint Liability of Both.</p> <p>When the owner of personal property gave an attorney at law, who was under the ordinary employment by him as attorney and counsel, and another person, .ioint authority to sell the property and receive the proceeds, payment by the other person to the attorney of the amount received on the sale, without special authority from the principal, did not relieve either from the usual joint liability to account to the principal therefor and to pay the same to him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 150.]</p> <p>8. Same — Interest.</p> <p>Defendant having paid over the money in good faith, and the trustee having delayed for a period of two years in taking steps to recover the money, defendant should not be charged with interest.</p>

<p>1. Bankruptcy — Specification of Objections to Discharge.</p> <p>Specifications of objfection to a bankrupt’s discharge, grounded on tbe alleged making of false oaths by him in the course of his examination before the referee, should be specific and of such character that their sufficiency may be tested by demurrer or by exceptions analogous to those ■allowed in equity.</p> <p>2. Same — Objections to Discharge — Measure of Proof.</p> <p>On the hearing of objection to a bankrupt’s discharge on the ground that he has committed an offense punishable by imprisonment, while the opposing creditor is not required to establish such offense beyond a reasonable doubt, tbe evidence must be sufficient to overcome the opposing presumptions as well as the opposing evidence.</p> <p>' 3. Same — Issues—Making False Oath.</p> <p>On the determination of an issue made by specifications of objection to the discharge of a bankrupt, based on the alleged making by him of false oaths during his examination before the referee, it is not a question of his general truthfulness, but a question as to some specific matter which can be framed into an issue material to the bankruptcy proceedings.</p> <p>. 4. Same — Evidence Considered.</p> <p>Evidence considered, and held insufficient to sustain objections to a bankrupt’s discharge on tbe ground that he committed offenses punishable by imprisonment by concealing assets and making false oaths in the course of his examination.</p>

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York, in favor of defendant in error, who was plaintiff below. The judgment was entered upon t|ie verdict of a jury for $7,612.

The decree of the Circuit Court for the Southern District of New York dismissed a bill to review and set aside a judgment entered on the verdict of a jury in favor of defendant. The original opinion of the court below is reported in 132 Fed. 531.

<p>Appeal from the District 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 Northern District of New York. '</p> <p>This cause comes here by appeal from a decree of the United States Circuit Court for the Northern District of New York, dismissing bill alleging infringement by defendant of complainant’s patents, No. 668,960, granted February 26, 1901, and No. 688,111, granted December 3, 1901, to Charles Piez and Robert H. Beaumont, and assigned to complainant, for improvements in storage apparatus. The opinion of the court below is reported in 139 Fed. 976.</p>

<p>1. Patents — Infringement-Paper Bag- Machine.</p> <p>The Liddell patent, No. 558.969, for a paper bag machine, held valid as . against the claim of prior invention by Claussen, who obtained patent No. 598,497 upon a later application, and also infringed by the machine of the Claussen patent 1</p> <p>2. Same — Suit for Infringement — Equity Jurisdiction. •</p> <p>The fact that the machine of a patent has never been put into commercial use does not preclude the owner of the patent from maintaining a suit in equity to enjoin its infringement. . ,</p> <p>Aldrich, District Judge, dissenting.</p>

<p>1. Judgments — Proceedings for Enforcement or Doemant Judgment — Cali - roKNTA Statute.</p> <p>A proceeding under Code Civ. Proc. Cal. § 683, which provides that a .■judgment may bo enforced or carried into execution after the lapse of five years from the elate of its entry by leave of the court upon motion, or upon judgment founded on supplemental pleadings. Is a remedy entirely independent of an action upon the judgment, which, by section 336, is required to be brought within five years; and, under the construction placed upon the statute by the Supreme Court of the state, such execution may be awarded at any time in the discretion of the court, and without notjee to the defendant.</p> <p>2. Bankruptcy- — Pbovable Or.Arsis — Doemant Judgment.</p> <p>A judgment of a state court of California on which an execution has been awarded under the provisions of Code Civ. Proc. Cal. § 685, more than five years after its entry, which execution was levied prior to bankruptcy proceedings against the defendant, is provable as a claim against his estate, notwithstanding the fact that an action thereon is barred by limitation under another section of the statute.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.</p> <p>The appellants are the defendants below in a bill filed by the appeh lees alleging infringement of United States letters patent No. 757,754, for “railway-rail stay,” issued to L,aas and Sponénburg, April 19, 1904; and this appeal is from an order of the Circuit Court granting a preliminary injunction. The in junctional order rests upon the bill, answer, and affidavits, which disclose interference proceedings in the •Patent Office between the individual defendants, carried by appeal to the Court of Appeals of the District of Columbia, and issue of the patent in suit pursuant to decision thereupon. No issue of infringement in fact is raised, and the opinion filed in the Circuit Court states the ground upon which the order was granted, as follows:</p> <p>QUARLES, District Judge. This is a motion for a preliminary injunction based upon a bill in equity charging infringement of United States letters' patent No. 757,754, praying an accounting and injunction, and is also predicated upon the affidavit of Robert H. Wiles, a mechanical expert, who swears that there is substantial identity between the devices of complainants and defendants. The defendants in reply rely upon their answer and certain-affidavits, and affidavits were submitted by complainants in rebuttal. These affidavits disclose a sharp conflict as to facts, and involve charges of perjury and mutilation of entries in books of account, etc.</p> <p>The answer admits that Scott, one of the defendants, filed an application in the Patent Office for a patent upon a device claimed in terms in the specification of letters patent No. 757,754. It admits an interference in the Patent Office as to claims 1 and 2 of complainants’ patent, that proceedings were had and testimony taken on both sides, and that such case was carried by appeal through the several tribunals of the Patent Office, and thereupon an appeal was taken from the ruling of the Commissioner of Patents to the Court of Appeals of the District of Columbia, where the issue of priority was decided in favor of the complainants. It is admitted in the answer that defendants are manufacturing and selling rail stays after the Scott device, but not in such quantities as charged in-the bill. The answer contains no reference to the prior art, and the patent of the complainants is not impeached on any other ground. It has been held that having applied for a patent, upon the identical device the defendants could not with good grace raise an issue as to patentability. Thomas v. Electric Co. (O, C.) Ill Fed. 923. The defendants again raise the same issue which was settled adversely to them by the Court of Appeals of the District of Columbia, and still insist that the defendant Scott was the original inventor, and was guilty of no laches in presenting his application to the Patent Office, and Is therefore entitled to be held and considered the original inventor of snch device. Ail the affidavits on both sides relate to the question of priority. Thus it appears that the defendants seek in this action a retrial of the identical issue that was decided adversely to them by the Court of Appeals of the District of Columbia.</p> <p>There may be good ground for contending that the determination of the Court of Appeals is a finality as to the very parties who litigated this question in that tribunal. It will be remembered that the Supreme Court of the District of Columbia had no jurisdiction over interferences, but that jurisdiction is expressly conferred upon the Court of Appeals by section 9 of chapter 74 of 27 Statutes at Large, without any qualification whatever. It is a court of general jurisdiction, and by section 8 of the act above cited an appeal lies to tire Supreme Court of the United States from every final judgment or decree thereof.</p> <p>If it were not for section 4915, Rev. St. (c. 74, 27 Stat. 43C [TI. S. Comp. St. 1901, p. 3392]), there could be no question as to the conclusiveness of this judgment between the parties thereto. But it is not necessary to decide or further consider that question for the purpose of this motion. The authorities seem to be agreed that, when one has sustained his right to priority of invention in a contested interference, he is entitled to a strong presumption in his favor. Coffin v. Ogden, 18 Wall, 120, 124, 21 L. Ed. 821; Cantrell v. Whilick, 117 IT. S. 089, 6 Sup. Ct. 970, 29 D. Ed. 1017; Morgan v. Daniels, 153 U. S. 120, 14 Sup. Ct. 772, 38 D. Ed. 657. There seems to be sufficient authority for the further proposition that the complainants who have thus maintained their contention of priority are prima facie entitled to a preliminary injunction pendente lite. 2 Robinson, § 5613; Smith v. Halkyard (C. C.) 16 Fed. 414; Palmer Tire Co. v. Newton Rubber Works (C. C.) 73 Fed. 218 ; Barr v. New York Co. (C. G.) 32 Fed. 79; Celluloid Co. v. Chrolithian Co. (G. C.) 24 Fed. 275. This conclusion is consonant with reason. Those parties figured in the interference. There is in this suit no issue raised except the question of priority. There would seem to be no necessity for requiring proof of any other adjiidication .as a condition precedent to injunctional relief. It is practically conceded that defendants are marketing a device covered by the monopoly that complainants are entitled to enjoy by virtue of their patent, and it is averred in the bill, and not specifically denied, that defendants are not financially responsible to answer for the damages, savings, and profits that may be awarded against them herein. Seidenberg v. Davidson (0. O.) 112 Fed. 431.</p> <p>The law seems to be well settled that in asserting the priority of their invention in the teeth of the decision of the Court of Appeals the defendants are assuming a burden analogous to that which devolves upon the prosecutor in a criminal case. They must satisfy the court beyond a reasonable doubt Therefore it would seem that the only question left open on this application is whether the defendants by their ex parte showing here have successfully maintained their contention beyond a reasonable doubt..</p> <p>In view of the fact that the defendants have since the argument of this motion filed a cross-bill under section 4915, Rev. St. [U. S. Comp. St. 1901, p. 3392] for a retrial in equity, and as the persons making these several affidavits will undoubtedly ho witnesses upon such hearing, it is not expedient that the court should discuss the affidavits in detail. It is perhaps sufficient to say that the showing made by the defendants does not exclude every reasonable doubt that the defendant Scott was the .first meritorious inventor of the device in question; that the strong presumption that the law raises in favor of the complainants by reason of the decision of the Court of Appeals of the District of Columbia, has not been met and overcome by the affidavits here presented, and therefore the court is constrained to hold that complainants are entitled to a preliminary injunction as prayed, and it is so ordered.</p>

The bill was to restrain the infringement of letters patent No. 641,373, issued Jan. 16th, 1900, to Frank B. Cook, for a new and useful improvement in telephpne switch boards — the defense being by way of plea that prior to any of the acts complained of in the bill, and prior to the issuance of the patent, the appellant made with appellee an oral agreement, whereby it granted to ap-pellee, and to its officers and directors, in its behalf, the exclusive right to make, use and…

<p>1. Equity — Multifariousness of Bill — Joinder of Defendants.</p> <p>A bill by a railroad company for an injunction to restrain brokers from dealing in special nontransferable tickets issued by it is not multifarious because a number of defendants are joined who liave no connection with eacb other, where all are engaged in the same business, and are alike interested in the questions at issue and the joinder will save a multiplicity of suits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 371-379 ]•</p> <p>2. Injunction — Jurisdiction of Equity — Restkainin a Brokers frosi Dealing in Nontransferable Railroad Tickets.</p> <p>A railroad company has a present property interest in the right to issue special nontransferable tickets and to have the same maintained as nontransferable, whether such tickets are already issued or are to be' issued from time to time in the future as its business or the needs of the public may require, and may maintain a suit in equity to protect such right by injunction against brokers who are engaged in the business of buying such tickets and reselling them to others, to be used in violation of their terms and to the irreparable injury of complainant; there being no adequate remedy at law.</p>

<p>1. Ratuboads — Consolidation—Distinction Between Consolidation and Merger. .</p> <p>There is a distinct difference between a consolidation and a merger of two railroad companies. In a consolidation, both go out of existence as separate corporations, and a new corporation is created, which takes their place and property; while in case of a merger one loses its identity by absorption in the other, which remains in existence, and succeeds to its property, and issues its own stock to the stockholders of the merged company.</p> <p>[Ed. Note. — For cases in point see Cent. Dig. vol. 41, Railroads, §§ 443-455.]</p> <p>2. Same — Merger.</p> <p>The Atlantic Coast Line Railroad Company, incorporated in Virginia and having its principal offices in Richmond, with power given by its charter to “consolidate with itself” other corporations, entered into an agreement of “consolidation and merger” with a company owning connecting lines, incorporated in other states, which agreement provided that the stock of the second company should be retired and canceled, and stock of the Coast Line Company issued in its place; that all the stock, property, and franchises of both should be merged, united, and consolidated, “so as to form a merged, united and consolidated company”; that “said merger, union, and consolidation shall be into the Atlantic Coast Line Railroad Company, which is to continue the name of the consolidated company”; and that its office should remain in Richmond. Under' such agreement the stock of the second company was canceled, but stock previously issued by the Coast Line Company remained outstanding, and such company took charge of and operated all lines previously owned and operated by either company, without any change in its management or control.' Held, that such agreement effected a merger, and not a consolidation, and that the Coast Line Company continued to exist as a Virginia corporation.</p> <p>8. Removal of Causes — Citizenship of Corporation — Effect of Reincorporating in Another State.</p> <p>Under Code of Laws, S. O. 1902, § 2050 et seq., which authorize either the merger or consolidation of a railroad company of the state with another company of the state or of another state when domesticated in the state, and, in case of consolidation, the issuing of a certificate or charter to the consolidated company, where a union of two such companies is by merger, instead of consolidation, by virtue of which a corporation of another state absorbs and acquires the property of the other, such corporation does not, by applying for and obtaining a certificate or charter of consolidation, become a citizen of South Carolina for the purposes of the jurisdiction of a federal court, but remains a citizen of the state in which it was originally incorporated, although the effect is to make it a domestic corporation of the state for other purposes.</p> <p>4. Same — Corporations—Allegation of Citizenship.</p> <p>Where a corporation defendant in a petition for removal alleges that It was organized under the laws of a state other than that in which it is sued, an allegation that it is not a citizen of the latter state is unnecessary.</p>

<p>On motion to remand to state court, and motion for leave to amend petition for removal.</p>

<p>1. Bankruptcy--Claims Entitled to Priority — Wages op Laborees.</p> <p>In the distribution of the assets of a bankrupt manufacturing corporation whose business has been continued by receivers under orders of the court of bankruptcy, wages due laborers for labor performed within three months prior to the bankruptcy, and also under the receivership, will be given priority over all other liens or claims, except taxes.</p> <p>2. Same — Attorney's Pees.</p> <p>Under Bankr. Act July 1, .1898, e. 541, § 64b (3), 30 Stat. 563 fU. S. Comp. St. 1901, p. 34171, fees of attorneys for the petitioning creditors in a proceeding in involuntary bankruptcy are allowable and given priority as a part of the cost of administration, and such claims rank next after the wages of laborers, taking precedence, subject to tax claims, of all other mortgage or other liens on funds in the hands of the court for distribution.</p> <p>8. Same — Claim op Mortgage not Party to Proceedings.</p> <p>A mortgagee of property of a bankrupt, who had no notice of the bankruptcy proceedings in which, at the request of the other parties interested, the business was continued at a loss and the property sold, is entitled to priority of payment from its proceeds after they have contributed rata-bly to the payment of labor claims and the costs of administration.</p> <p>4. Same — Appointment op Receivers — Receivers’ Certificates.</p> <p>Under the authority given by Bankr. Act July 1, 1898, c. 541, § 2 (5), 30 Stat. 546 [U. S. Comp. St. 1901, p. 3421], to continue the business of bankrupts by receivers, courts of bankruptcy have implied power to authorize the issuance of receivers’ certificates to provide funds necessary for operating expenses.</p> <p>5. Same — Mortgagee—Acquiescence in Receivership.</p> <p>A mortgagee of a bankrupt who has notice of and participates In the bankruptcy proceedings, and makes no objection to the appointment of receivers to continue the bankrupt’s business, but does a banking business with the receivers, is thereby precluded from insisting on the priority of his mortgage over the operating expenses or other obligations incurred by the receivers under orders of the court in carrying on the business which was intended to conserve his security.</p> <p>6. Same — Allowable Claims — Unliquidated Claim fob Damages Against Receivers.</p> <p>An unliquidated claim for damages for breach of a contract by receivers of a bankrupt is not entitled to priority as against antecedent liens against the estate.</p> <p>7. Same — Unauthorized Indebtedness Contracted by Receivers.</p> <p>Where an order appointing receivers to continue the business of a bankrupt authorized them to borrow money and incur obligations in an amount not exceeding $3,000, as might thereafter be directed by the court, and the court subsequently authorized them to issue receivers’ certificates to the amount of $3,000, such order was notice to all dealing with the receivers that they had no authority to contract further indebtedness, and persons who thereafter sold them property on credit in excess of that amount cannot have priority of their claims therefor against the estate.</p> <p>8. Same — Continuing Business.</p> <p>The power to continue business of a bankrupt corporation through a receiver or trustee implies the power to make debts, to provide for their payment, and to borrow money for urgent necessities.</p>

<p>1. Salvage — Rescue op Stiíanded Steamship — Amount of Compensation.</p> <p>The British steamship Devonian, 470 feet long, and valued with her cargo at $800,000, on a voyage from Liverpool to Boston, in February, was driven from her course by a northeast snowstorm and stranded at Seituate 1,500 feet from shore, at 1 a. m., when the tide was half flood. At high tide she made an unsuccessful effort to get off and afterward pumped out some of her water-ballast tanks, lessening her draft forward 2½ feet. The beach was fairly smooth sand, and at high tide she was not aground for more than half her length, but at low tide she rested on the bottom through her full length, and received a considerable injury from the buckling of her plates and floors,, although not sufficient to require her to dock until her return to Liverpool. The following afternoon the tug Patience, from New Jersey, worth about $55,000, left Boston for the purpose of offering, and, arriving at about high tide, offered, her services to the steamship, which were accepted, and, the Patience having made fast a hawser to the stern of the steamship by the .efforts of both vessels, she was pulled off and proceeded to Boston by her own steam, without further injury to herself or cargo. The actual time of pulling did not exceed 15 minutes, and the tug was absent from Boston live hours, and, while in some, was in no great or unusual, danger. While the sea was rough the wind changed to northwest soon after the stranding, and the steamship was not in serious danger of injury, except from resting on the bottom, and there were other vessels at hand which would undoubtedly have rescued her on the same high tide. Whether she could have released herself without assistance as she claimed was in doubt. Held, that the service rendered by the tug was clearly a salvage service and entitled to be compensated as such, and that a fair award therefor under all the facts was $4,500, of which $3,300 should go to the owner, and $1,200 to the master and crew.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, §§ 72, 73, 97.</p> <p>Salvage awards in federal courts, see note to The Lamington, 30 O. C. A. 280.]</p> <p>2. Same — Acceptance of Service Under Mistake of Fact.</p> <p>The fact that the master of a stranded vessel accepted salvage service from a tug, under the mistaken belief that it was one owned by a company whose boats his owner’s agents usually employed, does not lessen the amount of salvage award to which the tug is entitled, where she was guilty of no fraud.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vdl. 43, Salvage, § 28.]</p>

<p>1. Specific Performance — Suit by Purchaser — Parties.</p> <p>In a suit by a purchaser to enforce specific performance of a contract to convey real estate the wife of the vendor, although not a party to the contract, may be joined as a defendant where it is alleged that she has no proprietary interest in the property, and it is sought by the decree to debar her from claiming such interest.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 342, 345.1 ’</p> <p>2. Judgment — Conclusiveness of Adjudication — Judgment on Dismissal.</p> <p>A judgment of dismissal entered on motion of the plaintiff is not conclusive on the merits, and does not bar a second suit on the same cause of action.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1030.]</p> <p>,3. Specific Performance — Contracts Enfokceable — Mutuality of Obligation.</p> <p>A contract for the sale of real estate, signed by the vendor, but not by the purchaser, may be specifically enforced by the latter where based on a valuable consideration, as where a part of the purchase money is paid down which is to be forfeited to the vendor in case the purchaser fails' to complete the purchase within a stated time.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol.' 44, Specific Performance, §§ 89-99, 126.]</p> <p>4. Vendoe and Purchaser — 'Validity of Contract — Purchase by Brokers.</p> <p>A contract for a sale of real estate made between the owner, and a firm of real estate brokers with whom the owner had listed it for sale, is valid and enforceable where there was no fraud or deception practiced, and the brokers fairly stated to the owner the fact that they did not purchase for themselves, but on an order from another broker for a principal whose name they were not at liberty to disclose.</p> <p>;5. Specific Peefoemance — Persons Entitled , to Maintain Suit — Trustee.</p> <p>Complainant was appointed by a railroad company, its trustee to acquire " reál estate for its use. Through a broker, he obtained a contract for the purchase of a tract of land running to another firm of brokers, a part of the purchase price being paid down from money of the railroad company, and the contract was afterward assigned to him. Held, that he was entitled to maintain a suit in his own name for specific performance of the contract for the use of his cestui que trust.</p> <p>[3⅛ Note — For eases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 38-43.]</p> <p>6. IIlTSBASD AND WIFE — COMMUNITY PROPERTY — WASHINGTON STATUTE- ‘</p> <p>Pierce’s Code 3905, §§ 3867, 3875, 3876, 3877 [Ballinger’s Ann. Codes & St. §§ 4488, 4489], relating to the property of husband and wife, provide that “property and pecuniary rights owned by a husband before marriage * * * shall not be subject to the debts or contracts of his wife but he may manage, lease, sell, convey, incumber or devise by will such property without the wife joining * * ⅞ as fully and to the same effect as though he were unmarried.” They contain similar provisions with respect to the properly of the wife, and further provide that property not so owned, but which is acquired after marriage by either husband or wife, or both, shall be community property, and cannot be sold, conveyed, or incumbered by the husband, unless the wife joins with him in the instrument of sale or conveyance. Held, under the decisions of the Supreme Court of the state, that real estate held by a husband at the time of his marriage, under a contract of purchase on which he had paid a part of the purchase price, and to which he afterward acquired the legal title on payment of the remaining installments, in part with money of his wife, and in part with money which was community property, did not become community property. but remained the separate property of the husband, and that a contract for the sale of the same, executed by him alone, was valid and enforceable.</p>