Volume 151 — Federal Reporter

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

<p>1. Customs Duties—Classification—Preserved Fruit.</p> <p>Tbe provision in . Tariff Act July 24, 1897, e. 11, § 1, Schedule G, par. 263, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], for'‘‘comfits, sweetmeats, and fruits preserved in sugar, molasses, spirits, or in their own juices,” refers to a class of goods commercially known as preserved fruits, and is intended to apply do fruits treated so as to become a preserve or comfit, and not to such as merely remain temporarily in their natural juice.</p> <p>2. Same—Prepared Cherries-</p> <p>Cherries, which have been washed, pitted, and packed in salt water to preserve them in transit, are not dutiable as “fruits preserved * * •*, in their own juices,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 263, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], but as “edible fruits * * * prepared in any manner,” under paragraph 262.</p> <p>3. Same—Fruit in Salt Water—“Brine.”</p> <p>Cherries immersed in a solution containing not more than .402 per cent.-of salt are not fruits in “brine,” within the meaning of Tariff Act July 24, 1897, e. 11, § 2, Free List, par. 559, 30 Stat. 198 [U. S. Comp, St. 1901, p. 1683].</p> <p>■4. Same—Fruits Green or Ripe.</p> <p>The first part of paragraph 262, Tariff Act July 24, 1897, c. 11, § 1, Schedule G,„30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], imposing a duty per bushel, on cherries and other fruits, “green or ripe,” applies to those fruits, ripe or unripe, when imported in their natural condition.</p> <p>5. Same—Fruits Prepared—Noscitue a Socáis.</p> <p>Under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 262, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], relating to fruits “dried, desiccated, evaporated or prepared in any manner,” the scope of the expression “prepared in any manner” is not upon the rule of noseitur a sociis to be so limited as to embrace only fruits prepared by a drying process.</p> <p>6. Same—Statutory Construction—Variation in Terms of Enumeration.</p> <p>Tariff Act July 24, Í897, c. 11, § 1, Schedule G, par. 282, 30 Stat. 171 [U- S. Comp. St. 1901, p. 1651], enumerates in the first part of tbe paragraph “apples, peaches, quinces, cherries, plums, and pears, green or ripe,” and in the latter part “apples, peaches, pears, and other edible ■ fruits, including berries, * * * prepared.” Held, that the inclusion of “cherries” in the first enumeration, and its omission from the second, should not be construed as excluding prepared cherries from the latter.</p>

<p>1. Maritime Liens—Supplies—Vessel in Possession of Contract Purchaser. For the purpose of determining the validity of a maritime lien for supplies furnished to a vessel while she is in the possession of a purchaser under a contract of conditional sale, the vessel should be considered as though in the possession pro hac vice of a charterer.</p> <p>[Ed. Note.—For cases' in point, see Cent Dig. vol. 34, Maritime Liens, §§ 4-6, 26.]</p> <p>2. Same—Home Port.</p> <p>Hoboken, N. J., is not the home port of a vessel whose owner resides in New York City, but a foreign port as relates to supplies there furnished her.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 8, 9.]</p> <p>3. Same—State Statute—Scope.</p> <p>A state statute giving the right to a lien for supplies furnished vessels is applicable only to domestic vessels of the state and a lien cannot be obtained thereunder on a foreign vessel.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 24, 25, 27.]</p> <p>4. Same—Lien under General Maritime Law—Reliance on Credit of Vessel.</p> <p>To sustain a claim for a lien under the general maritime law for supplies furnished to a vessel in a foreign port, it must be shown that the credit of the vessel was properly relied on, and no lien can be obtained where the claimant knew that the vessel was in possession of a charterer or contract purchaser who was bound to furnish and pay for all supplies, or where he was put upon inquiry as to the terms of such a contract.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 34, Maritime Liens, § 12.</p> <p>Maritime liens for supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. (579.1</p>

<p>L Maritime Liens—Statutory Liens—Supplies and Bepairs.</p> <p>Under a state statute, as well as under the general maritime law, a lien will not attach to a vessel for supplies or repairs unless it appears that credit was given to the vessel.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 12, 30.]</p> <p>2.' Same.</p> <p>A vessel 7wM subject to liens under the New Xorlc státute for work and materials furnished for repairs in her home port on orders given by one ' in charge representing the-owner and -on the credit of the vessel, although she was in possession of another under a conditional sale; libelants having no knowledge of such fact or of facts to put them on- inquiry.</p> <p>[Ed. Note.—1’or cases in point, ,see Cent. Dig. vol. 34, Maritime Liens, §§ 4-6, 26.]</p>

<p>1. Trade-Marks and Trade-Names—Names Subjects of Ownership—Descriptive Character.</p> <p>It is not necessary to the validity of a trade-mark or trade-name that it shall be utterly devoid of aptitude, but it is enough that it leaves open to every one all words that are really descriptive of quality or character.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names; §§ é-7.]</p> <p>2. Same—“Hygeia.”</p> <p>The name “Hygeia” is not used in the English language as a word of descriptive or qualifying import, but as a noun, and it may lawfully be appropriated as a trade-mark or trade-name to identify distilled water of a particular manufacturer.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Trade-Marks and Trade-Names, §§ 4-7.</p> <p>Arbitrary, descriptive or fictitious character of trade-marks and trade-names, see note to Searle & Heretli Co. v. Warner, 50 C. C. A. 823.]</p> <p>8. Same—Infringement—Locality and Scope of Business.</p> <p>It is not a defense to a suit to enjoin infringement of a trade-mark that the defendant’s business is confined to a single state, and that complainant, which is a foreign corporation as to such state, has not complied with its laws to qualify itself to do business therein.</p> <p>4. Same—Suit for Infringement—Defenses.</p> <p>It is sufficient to warrant the granting of an injunction against infringement of a trade-name that defendant has used it in a manner which is likely to produce confusion as to the origin of the article to which it is applied, and it is not material that such use was without wrongful intent.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Trade-Marks and Trade-Names, §§ 03, 64.]</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In the decision below the Circuit Court affirmed without opinion a decision of the Board of United States General Appraisers (G. A. 5,995 [T. D. 26,234]), in which a majority of the Board affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The article in controversy wps described .by the Board as being commercially lino.wn as arrowroot, consisting of a fine floury form of starch extracted from the tubers or foots of 'the arrowroot plant, and being chiefly used for infants’ food and'to some extent in making medicinal preparations. The Board further stated that it was chemically a stareh, and that, though there was no evidence that, it is-used for laundry purposes, it appeared that it might be so used. .</p> <p>. It was classified under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. • 285, 30 Stat. 173 [U. S. Comp. St. 1901, p. 1653], relating to “starch, including: all preparations, from whatever substance produced, fit for use as starch,” and was claimed by the importers to be free of duty under paragraph 478 (30 Stat. 195 [U. S. Comp. St. 1901, p. 1680]), as “arrowroot in its natural state and' not manufactured,” of to' be dutiable under section 6 (30 Stat. 203 [U. S. Comp. St. 1901, p. 1693]), as an unenumerated manufactured article.-. These contentions were overruled-by the Board;, the article being held; dutiable .¿s classified, by similitude, under section 7 of said act. On ap-. peal from.the Board the only contention ma.de was that assessment should, have been under said section 6.' In the Circuit Court the Board’s decision was1 affirmed by consent; without" argument.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York. .</p> <p>This cause comes here upon appeal from a decree awarding damages to libelant-for personal injuries due to a fall which libelant sustained March 30th, 1903, two days out from Bremen, while on the deck of the steamship Prinzess Irene. The opinion of the District Judge will he found in 139 Fed. 810.</p>

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

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

The appeal iti this case is taken from a decree of the Circuit Court, dismissing a bill brought by the appellant against the appellee for alleged infringement of letters paient No. 454,638, for an improvement in water wheel buckets, granted on .Tune 23, 1891, to W. G. Dodd, the assignor of the appellant.

<p>In Equity. Suit to restrain alleged infringement of claims 30 to 35, inclusive, and claims 37, 38, and 41, of United States letters patent No. 580,281, dated April 6, 1897, to Frederic W. Hillard, for new and useful improvements in typewriter escapements, and for an accounting.</p>

<p>Patents—Invention—Wood Pulp Digesters.</p> <p>The Russell reissue patent, No. 11,282 (original No. 445,233), for an improvement in wood pulp digesters which consists in applying to the inner surface of the metal shell of such a digester a continuous lining or coat of adhesive acid-resisting material applied in a plastic condition to protect the shell from injury by the acid solution used in such digesters is void for lack of patentable invention, in view of the prior art, which disclosed a similar cement lining employed for the same purpose in open vessels used for heating acid solutions, all that is claimed by the patentee being the discovery that it is equally effective under the increased heat and pressure to which it is subjected in pulp digesters, which discovery did not constitute invention. Claim 1, conceding its validity, held, not infringed.</p>

<p>1. Patents—Invention—Clothes Deying Machine.</p> <p>The Barnes patents, Nos. 684,776 and 684,778, for a clothes drier and a clothes drying machine, respectively—the second being for improvements on the machine of the first—cover a true combination and disclose invention; the devices used, while old, and each performing its old function, being so combined that, by their co-operative action, a greatly im-. proved result is produced. Both also held Infringed.</p> <p>2. Same-Construction of Claims.</p> <p>The fact that the specification of a patent, in describing the Invention, describes a device which is, in fact entirely useless so far as contributing to the result is concerned, does not restrict the claims to a combination including such device as an element where it is not mentioned therein.</p>

<p>1. Patents—Suit fob Infringement—Proof of Assignment.</p> <p>An assignment of a patent is sufficiently proved in a suit by the assignee for its infringement by the Testimony of one of the subscribing witnesses, unless there is some special reason for requiring more.</p> <p>2. .Same—Delivery.</p> <p>That an assignment of a patent was recorded, and is produced and put in evidence by a subsequent assignee, in a suit for infringement, is sufficient evidence of its delivery.</p> <p>3. Same—Sufficiency of Assignment.</p> <p>A conveyance by a corporation of all of its property, including its “good will, patents, trade-marks,” etc., is effective to pass title to a patent then owned by it, although not described therein.</p> <p>4. Same—Unrecorded Assignment.</p> <p>An assignment of a patent is effective to pass title as against an alleged infringer, although not recorded.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 38, Patents, § 279.]</p> <p>5. Same—Infringement—Change in Form.</p> <p>Except where form is of the essence of the invention in a patented device, it is of little weight and a variation therefrom, while retaining the principle and mode of operation of the invention will not avoid infringement.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 38, Patents, § 372.]</p> <p>6. Same.</p> <p>Where the mechanism of an alleged infringing machine is substantially the same as that of the patent, the fact that for some reason, designed or otherwise, its operative effect is made to.vary, cannot be altogether accepted as avoiding infringement, especially where the variance is 1he result of not doing all with the mechanism that might be done; its possibilities under ordinary and proper use being the test.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 38, Patents, §§ 372, 373, 380.]</p> <p>7. Same—Machine fob Making Tubing.</p> <p>The Stiefel patent, No. 551.340, for a mechanical device for making metal tubing, while only -for an improvement upon that of the prior art, covers an improvement of value, and was not anticipated and discloses invention; nor is it strictly limited to a construction in which a plane or flat surface of one of the disks by the action of which the tube is shaped is opposed to a beveled surface on the other. Also held infringed.</p>

<p>On Exceptions to Report of Master, Passing Upon the Accounts of Abram Hess and J. Lansing Mines, Receivers.</p>

<p>Bankruptcy—Examination op Bankrupt—Bowers op Court.</p> <p>An alleged bankrupt for whose properly a receiver lias been appointed in involuntary proceedings pending a hearing on the petition is a “bankrupt whose estate is in process of administration under this act,” within tile meaning of Bankr. Act .July 1, 1898. c, 541, § 21a, 30 Stat. 552 [U. S. Comp. St. 1901. p. 34301, and on application by the receiver the court may order him to appear for examination thereunder; and aside from such section tlie court has authority to make such an order under the general equity powers conferred upon it by the act</p>

At Law. The above-entitled actions came on to be heard, at Minneapolis, in said district, on the 13th day of December, 1906, on the demurrers heretofore filed by the defendants to the indictments therein.

<p>1. Waters and Water Courses—Surface Waters—Drains—Pollution—Private Nuisance.</p> <p>The discharge of acids and waste from an oil mill, and other offensive matter from outhouses used in connection therewith, into a ditch originally constructed for drainage of the land, and extending through the land of an adjoining owner, by which the latter suffers injury to his crops and from the offensive and unwholesome odors, constitutes a private nuisance, and gives the person injured a right of action for damages, under Ga. Civ. Code, 1895, § 3858.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 55-61, 135.]</p> <p>2. Nuisance—Private Nuisance—Grounds of Action—Negligence.</p> <p>The creation and maintenance of a private nuisance, by discharging waste or filthy matter upon another’s lands to his injury, is actionable, without regard to the question of negligence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 5, 7.]</p> <p>3. Waters—Surface Waters—Riparian Owners.</p> <p>The law of surface waters and rights of riparian proprietors discussed and distinguished.</p> <p>4. Same—Pleading.</p> <p>Whether or not the use made of a ditch by a landowner is reasonable is a conclusion of law, and tbe unreasonableness of such use need not be alleged in terms in an action for damages by an adjoining owner who is injured thereby, where the facts alleged taken in connection with what may naturally and proximately be deduced therefrom justify that conclusion.</p> <p>[Ed. Note.—'For cases in point, see Cent. Dig. vol. 37, Nuisance, § 113.]</p> <p>5. Same—Notice.</p> <p>Under the law of Georgia, one who creates and maintains a nuisance is liable to any one who is injured thereby, and no notice of the harmful effects resulting from the nuisance, or request to abate the saíne, is necessary as a condition precedent to the maintenance of an action therefor.</p> <p>[Ed. Note.—For cases in point, see CeDt. Dig. vol. 37, Nuisance, §§ 102, 103.]</p> <p>6. Same—Pleading—Allegation of Damage.</p> <p>In an action for a private nuisance, a general allegation of damage is sufficient to entitle plaintiff to recover all damages that are the natural and necessary consequence of the nuisance; but where special damages are-alleged, the allegations should be sufficiently specific to apprise the defendant of the items thereof.</p> <p>[Ed. Note.—For cases in point, see Gent. Dig. vol. 37, Nuisance, § 113.]</p>

<p>1. Bankruptcy—Debts Entitled to Priority—Evidence.</p> <p>While A verified petition for the allowance of a claim in bankruptcy is prima facie evidence of the validity of the claim itself, on which it may be' allowed as a general claim, allegations therein of facts to establish the right of such claim to priority are not to be taken as prima facie true, but must be proved by evidence. ,</p> <p>2. Same—State Laws Giving Priority.</p> <p>The principle controlling the construction and 'effect of Bankr. Act July 1, 1898, c. 541, § 64b (5), 30 Stat. 563 [U. S. Comp. St 1901, p. 3448], which provides for giving priority to debts owing to any person who by the laws of the state is entitled to priority, is that the creditor shall be allowed the same priority under the bankruptcy act which he would have had if such act had not superseded the state laws governing the distribution of the estates of insolvent debtors.</p> <p>3. Debts Dúe as Guardian—Michigan Statute.</p> <p>Comp. Laws Mich. § 9675, which provides that the assignee of an insolvent debtor “under this title"’ shall pay in full all debts owing by the debtor as guardian, etc., is not a law of the state of such general character as gives priority to a debt due from a bankrupt as guárdian, under, Bankr. Act July 1, 1898, c. 541, § 64b (5), 30 Stat. 563 [U. S. Comp. St. 1901, -p. 3448], being applicable only in special proceedings under that title, which by reason of their requiring the joinder of the insolvent and two-thirds of his creditors have seldom been resorted to for the distribution of estates of insolvents.</p>

At Law. Motion to set aside verdict for plaintiff and for a new trial on the grounds: (1) There is nothing libelous on the face of the published article; that is, all the statements, if capable of a libelous meaning,’ are also capable of an innocent or nonlibelous meaning, and, as there is no innuendo ascribing the libelous meaning, no cause of action is stated. '(2) It was error to submit certain parts of the alleged libelous article to the jury.

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

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

<p>Injunction—Grounds—Circulars Giving Notice of Suit fob Infringement of Tbade-Mark.</p> <p>It is within the rights of a complainant, who has commenced suit for infringement of a trade-mark and for unfair competition, to issue circulars to the trade stating such facts and its claimed rights, where such circulars are sent in good faith and the claims made are fairly within the scope of the bill, and their issuance will not be enjoined on petition of the defendant, on mere denials of the allegations of the bill, and in advance of a hearing or the taking of any evidence upon the issues of fact joined.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 170, 171.] ,</p>

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

<p>Equity — Evidence — Compelling Production of Documents by Adverse ' Party.-</p> <p>The ordinary procedure in equity to compel an adverse party to produce documents is',by bill or cross-bill for discovery, on wbicb tbe materiality of the documents .as evidence may be determined, or by a subpeena duces tecum, and the court will not order the production of documents upon motion and’ an affidavit based solely .on information and belief as to the contents of the documents desired, and especially where the moving party lias unduly delayed piaking the application and the granting of it would interfere with the closing of tbe proofs within the time fixed by order of the court, -</p>

<p>1. Courts—Jurisdiction of Federal Courts—Action by Receiver of National Bank.</p> <p>An action by a receiver of a national bank to recover assets is one by an officer of the United States suing under authority of an act of Congress, within Rev. St. § 629, cl. 3 [U. S. Comp. St. 1901, p. 503], of which a Circuit Court of the United States has jurisdiction without regard to the-amount involved or the citizenship of the parties.</p> <p>2. Costs—Amount of Recovery—Action by Receiver of National Bank.</p> <p>An action by a receiver of a national bank to recover assets is not within Rev. St. § 968 [U. S. Comp. St. 1901, p. 702], denying costs to a plaintiff who recovers less than $500.</p>

<p>Appeal from Decision of Board of General Appraisers.</p>

<p>Customs Duties—Importations from Cuba—Time of Taking Effect of " Treaty.</p> <p>Tbe treaty between Cuba and the United States, signed December 11, 1902, did not go into effect until December 27, 1903, the date proclaimed by the President, and imports from Cuba entered prior to that date were not entitled to the 20 per cent, reduction provided for therein from the duties imposed by Tariff Act July 24, 1897, c. 11, 30 Stat 151 [U. S. Comp. St. 1901, p. 1626].</p>

<p>1. Courts—Federal Courts—Jurisdiction in Administration of Estates of Deceased Persons—Facts -Decision.</p> <p>A decree oí a federal court had been allowed as the only claim against the estate of a deceased person in the county court of a state in which administration was pending. The only property of that estate consisted of certain lands and water rights appurtenant. The statutes of the state imposed the duty upon the administratrix to institute a proceeding either in the county court or in the district court of the state to sell the unexempt real property to pay debts. She claimed that the real estate was exempt, and refused to commence the proceeding.</p> <p>Held, the federal court in which the decree was rendered had jurisdiction to entertain a suit commenced by the complainant in that decree and to render a decree for the sale of 1he land notwithstanding the pendency of the administration in the county court.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, § 801.]</p> <p>2. Same—Jurisdiction to Enforce Their Judgments and Decrees Plenary.</p> <p>The jurisdiction is conferred by the Constitution and laws of the United States,' and the duty, which they may not renounce, is imposed upon tlunational courts to enforce their judgments and decrees and to decide by their own independent judgment every controversy which conditions their complete execution.</p> <p>This power may not be lawfully destroyed, limited, or diminished by the legislation of the states or the decisions of their courts.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, §§ 795, 790. 801 .J</p> <p>3. Same—Dependent Suit—Nature—Purpose—Maintainable Without Diversity of Citizenship or Federal Quest row.</p> <p>A suit in equity dependent upon a former action of which the national court liad jurisdiction may be maintained without diversity of citizenship’ or a federal question (i) to aid. enjoin, or regulate the original suit; (2> to restrain, avoid, explain, or enforce the judgment or decree therein: or (31 to enforce, or obtain an adjudication of liens upon or claims to property in the custody of the court in the original case.</p> <p>4. Same—Jurisdiction of Controversies Arising During Administration, rut Not of tise Administration of Estates as Suoii.</p> <p>The national courts have jurisdiction of controversies arising during the pendency of the administration of estates of deceased persons in the state courts which condition the enforcement of their judgments or decrees or the rights of aliens, citizens of other states, and other parties who might invoke their action and their adjudications if the controversies arose otherwise, and their decisions and decrees prevail over the statutes of the states and the decisions of their courts.</p> <p>But the federal courts have no jurisdiction of the administration of the estates of deceased persons as such.</p> <p>5. Same—Jurisdiction as Extensive as That of State Courts of General Jurisdiction.</p> <p>Bights created and remedies provided by the statutes of the states to be pursued in the state courts of general jurisdiction may be enforced and administered in the national courts either at law, in equity or in admiralty, as the nature of the rights and remedies may require. As the state statutes conferred jurisdiction on the district court, of the state to decree a sale of real estate during administration, the federal court had like jurisdiction in a proper case.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 13, Courts, §§ 972-976.]</p> <p>6. Same—County Courts—Sale of Land.</p> <p>The general rule is that the court which first acquires jurisdiction of specific property in a suit or proceeding to enforce a lien upon it or to subject it to sale wherein it may be necessary to take possession or dominion of it may retain the exclusive legal custody of it until the suit is at au end or until ample time for its termination has elapsed.</p> <p>But the legal custody and jurisdiction of this land by the county court was limited by the grant of jurisdiction to the district court and to the federal court to sell it during admiuistratiou.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, §§ 1345, 1410.]</p> <p>7. Actions — Capacity to Sue — Constituent or Cestui Que Trust Has, When Legal Representative or Trustee Refuses.</p> <p>A constituent or cestui que trust may sue and make his representative or trustee a defendant when the latter refuses, after reasonable demand, to commence a suit or take a proceeding which it is his duty to institute for the benefit of the former.’</p> <p>8. Courts — Federal Courts — Equitable Jurisdiction — Absence of Adequate Remedy at Law.</p> <p>It is an absence of an adequate remedy at law in the national courts only that conditions their jurisdiction in equity. Such a remedy in the state courts is immaterial.</p> <p>9. Equity—Laches—None When Analogous Action at Law Not Barred and No Unusual Circumstances.</p> <p>The doctrine of laches is an equitable principle which is invoked to promote, but never to defeat, justice. It has no function whore the analogous action at law is not barred and no unusual conditions invoke its application.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 19, Equity, §§ 191-196.]</p> <p>10. Statutes—Construction—Words and Phrases have Their Common Significance—No Room for Construction When Plain.</p> <p>Words and phrases should receive their common, ordinary significance unless it clearly appears that they were used in some other sense. Plain statutes raise a conclusive presumption that the legislative body intended what it expressed, and they may not be repealed or modified by construction.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 44, Statutes, §§ 266, 267.]</p> <p>11. Public Lands—Homesteads—Exemptions—“Debt Contracted” does Not Exempt from Every “Liability Incurred” for Torts.</p> <p>The exemption of lands acquired under the homestead laws and the timber culture laws (2 U. S. Comp. St. 1901, pp. 1534, 1533; Act March 4, 1896, c. 40, § 4, 20 Stat. 113, 114; 2 U. S. Comp. St. 1901, p. 139S, § 2290; Act May 20, 1862, c. 75, § 4, 12 Stat. 393) from any “debt contracted” previous to their acquisition, does not exempt them from liabilities for the torts of the entrymen previously perpetrated.</p> <p>12. Courts—Conflicting Jurisdiction—Jurisdiction of Res—Payment of Claim—Duty to Determine Adverse Claims—Subsequent Proceedings in Other Courts.</p> <p>When, in a suit in equity for the sale of property to satisfy the claim of the complainant, a court acquires jurisdiction of the property and of the parties, subsequent proceedings by any of the parties in other courts, without leave of the court which first acquired jurisdiction, are ineffectual to establish claims to the property or its proceeds adverse to those of the complainant. But the duty is imposed upon the court which first acquires such jurisdiction to hear and determine such adverse claims when seasonably presented to it.</p> <p>(Syllabus by the Court.)</p>

This is an appeal from an order of the United States Circuit Court for the District of Colorado granting a temporary injunction. The bill of complaint was filed on the 29th day of December, 1905, by Harry F. Ross-Lewin, as executor of the estate of George E. Ross-Lewin, against the Monmouth Investment Company, the State Investment Company, Henry A. McIntyre, Frederick A. Williams, and Newell W-.

<p>1. Collision — Overtaking Vessels — Rules Governing Passing in St. Mary’s River.</p> <p>Under the rules prescribed by the Secretary of the Treasury relating to the navigation of St. Mary’s river,' supplementary to the statutory rules, and which govern the right of an overtaking vessel to pass another, such vessel is not absolutely prohibited from passing because the vessel ahead fails to assent to her signal, but she may persist in passing provided the place is one where such passing is permitted, and she can safely pass without exceeding the lawful speed, but not otherwise.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Collision, §§ 197-199.</p> <p>Collision—Overtaking vessel, see note to The Rebecca, 60 C. C. A. 254.]</p> <p>2. Same—Violation of Rules by Overtaking Vessel.</p> <p>The steamer Siemens with a barge in tow on a. line from 700 to 800 feet long, each loaded with 5,000 tons of ore, was passing down. St. Mary's river, and when the tow was a half mile above the entrance to Bittie Rapids cut, the steamer North Star, also loaded, overtaking the barge signaled her intention to pass to port. The Siemens answered by a dissenting signal, and kept her course and speed which was 8 or 9 miles an hour. The North Star persisted, and, when a quarter of a mile from tiie cut again signaled, and the Siemens again dissented. A change of course to starboard was necessary to enter the cut, and, before the Sie-' mens could make the turn with her tow and straighten out in the cut, a collision occurred between her and the North Star, which also entered the cut on her port side, and, as a result a further collision occurred between the two steamers, and between the Siemens and' her tow; the cut being but 300 feet wide. By the rules, it was lawful for an overtaking vessel to pass another above the cut, but it was not lawful for a vessel to proceed at a speed greater than 9 miles an hour or to overtake and pass another in the cut. Held that the North Star was in fault, not only for violation of the positive rule as to speed, hut for a reckless persistence when it was obvious at the time her first signal was answered that she could not pass before reaching the cut; that the Siemens was not ip fault, it being her privilege under the rules to maintain her course and speed until she was overtaken, when, and not before, she was required by rule 5 of the secretary’s rules to assent to the passing, and slacken to a slow rate of speed, and the situation being such when she received the first signal as to justify her in refusing to assent or to slacken her speed because of her tow.</p> <p>3. Same—Damages—Demurrage.</p> <p>In determining whether earnings have been lost by the owner of a vessel as a result of collision, the inquiry is not whether they could possibly have been made by the use of the vessel during the period of her detention, but whether they would have been made, and, as it cannot be proved that they would certainly have been made except when the vessel had a pending engagement for her profitable use, it suffices if the fact is proved circumstantially, and with a reasonable degree of certainty as that there was an opportunity for the vessel’s employment of which the owner would probably have availed himself.</p> <p>I Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Collision, § 290.1</p> <p>4. Same.</p> <p>The disallowance by a commissioner of demurrage to vessels injured in collision, on the ground of loss of earnings, held sustained by the evidence which allowed that the vessels were a part of a fleet owned by libel-ant and employed on the Great Bakes, and that while cargoes had been offered they liad been refused owing to the nearness of the close of the season and oilier vessels of the fleet had laid up for the winter, prior to the time when tiie vessels in collision would have completed the voyage they were on.</p> <p>5. Admiralty—Findings of Fact bt Commissioner—'Weight.</p> <p>Tiie findings of a commissioner in admiralty on questions of fact depending upon conflicting testimony or the credibility of witnesses should not be disturbed by a court of revision unless clearly erroneous.</p> <p>[Ed. Note—For cases in point, see Cent. Dig. vol. 1, Admiralty, § 770.]</p>

The plaintiff in error was tried and convicted in the court below upon an indictment which contained 21 counts, alternately charging him with forging and uttering certain false affidavits.

<p>Appeal from the District Court of the United States for the District of Maryland, at Baltimore.</p>

<p>in Error to the Circuit Court of the United States for the District of Connecticut.</p> <p>Tins cause comes here upon writ of error to review a judgment of the Circuit Court, District of Connecticut, entered upon the verdict of a jury against plaintiff in error, who was defendant below.</p>

The court on final hearing sustained the master’s report; and appellant’s bill for the annulment of a gas and oil lease was dismissed for want of equity. The lease is as follows: “This agreement made and entered into this 20th day of May, A. D. 1897, by and between Julia E. Campbell and Chas.

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

This cause comes here on appeal from an interlocutory decree of the United States Circuit Court for the District of Connecticut, ordering an accounting for damages to complainant and defendants’ profits on a contract made hy them with the Boston Suburban Electric Companies, and enjoining defendants “from directly or indirectly using or attempting to use any of the patterns, drawings, sketches, or other property of the New Haven Car Register Company or the International…

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>On writ of error to the Circuit Court for the Southern District of New York to review a judgment entered on a verdict in favor of the plaintiff, amounting with interest and costs to $2,515.55.</p>

The writ of error challenges the correctness of a judgment which holds plaintiff in error guilty of contempt of court, and subjects him to fíne and imprisonment. On January 4, 1908; a petition was filed against the Johnson & Knox Lumber Company, and on March 12, 1906, the -company was ai.judged a bankrupt.

<p>Sai.es—Contract eor Saxe oe Coax—Construction.</p> <p>A contract for the sale and purchase of a large quantity of “New River”, coal, to be delivered at Chicago, which provided that it should be-approved by the shippers, and which was approved and ’ signed by the owners of certain mines in the New River district, bound the seller to-furnish coal from such mines, and the purchaser was not bound 'to accept coal from others in such district, even though it may have been the same or equally good in quality.</p>

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

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

Defendant in error, plaintiff below, recovered a judgment on account of personal injuries. The alleged negligence was defendant’s failure to comply with section 9 of the Indiana factory act (section 70871, Burns’ Ann. St. 1901), which reads as follows: “See. 9.

<p>'Shipping—Loss of Passenger’s Baggage—Limitation of Liability.</p> <p>A clause printed on the margin of a steamship ticket, headed “Notice,’’ limiting the liability of the vessel or owners to $100 for loss of the passenger’s personal effects, is not a part of the contract, and does not relieve the owners from full liability, where it was not read by or made known to the passenger.</p> <p>[Ed. Note.—Limitation of owner’s liability, see note to The Longfellow, 45 C. C. A. 387.}</p>

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

The decree of tlie Circuit Court for the Southern District of New York sustained letters patent No. 554,675, issued February 18, 1896, to Arthur W. Grant, for an improvement in rubber-tired wheels. The patent has been tlie subject of extensive and protracted litigation.

In Equity. Suit to restrain alleged infringement by defendants of certain claims of United States letters patent No. 634,423, granted to Donald Cameron and others October 3, 1899, for “Process of and apparatus for treating sewage,” and for an accounting.

<p>In Equity. Suit for infringement of design patent No. 36,895, for trimming for ladies’ underwear, granted to Thomas Kerwin and John McGinley April 26, 1904. On final hearing.</p>

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

In Admiralty. Proceeding for limitation of liability. The petition showed that the petitioner, John H. Starin, was sole owner of the barge Curry, and that an action at law' had been commenced against him in a state court by Mrs. Griffin to recover for an injury received by her while a passenger on said barge.

<p>Bill of Interpleader.</p>

<p>1. Quieting Title—Bill—Sueeiciency.</p> <p>A bill alleging that complainant was the owner of the land described, setting forth particularly the chain of title, and charging that defendant claimed an adverse interest or estate in the premises, which so affected complainant’s title as "to render a sale or other disposition of the property impossible, and disturbed complainant in its right of possession, etc., sufficiently showed that complainant was in actual possession of the premises, and stated a cause of action to quiet title under Revisal N. C. 1905, § 1589, declaring that an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claims.</p> <p>[Ed. Note.—'For cases in point, see Cent. Dig. vol. 41, Quieting Title, §§ 73, 74.]</p> <p>2. Abatement and Revival—Other Action Pending—Different Jurisdictions—State and Federal Courts.</p> <p>The pendency of a suit in a state court for the recovery of real property in controversy, in the nature of an action of ejectment, was no bar to a suit in equity in the federal courts to quiet title to such property, as authorized by Revisal N. C. 1305, § 1589, in which the positions of the parties were reversed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 87-89.] i</p> <p>3. Courts—Federal Courts—Jurisdiction—Parties—Unnecessary Parties— Dismissal.</p> <p>Where a federal court had jurisdiction of the subject-matter and the necessary parties, the bill could be dismissed as to any defendant who was not an indispensable party to the suit, whose presence would oust or restrict the jurisdiction, or the right, and be retained as to the other defendants.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 13, Courts, § 803.]</p> <p>4. Courts—Federal Courts—Jurisdiction—State Statutes.</p> <p>While the Legislature of a state cannot enlarge the equitable jurisdiction of the federal courts, it nevertheless may provide by statute for the enlargement of the equitable rights, which may be enforced by the Circuit Court of the United States by virtue of its equitable jurisdiction in the same manner as such rights are enforced by state courts.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 33, Courts, §§ 972-973.]</p> <p>5. Quieting Title—Evidence—Possession of Land—Presumptions.</p> <p>Where, in a suit to quiet title, there was evidence that possession began in 1899, and that A., complainant’s grantor, conveyed the premises in 190S, there would be a presumption that the possession thus shown continued under A. and those claiming from him.</p> <p>6. Action—Rights Accruing After Commencement—Quieting Title—Requisites—Legal Title.</p> <p>In a suit to quiet title, as authorized by Revisal N. C. 1905, § 1589, complainant’s deed, on being offered in evidence, was found to be unsealed, and therefore only to convey an equitable title; but, pending suit, the defect was cured by sealing, re-probating, and registering the deed, and by obtaining another deed from its vendor, which complainant had probated and registered and offered in evidence. Held, that though complainant was entitled to maintain the suit, on proof of his equitable title as shown by the deed first introduced, he was nevertheless entitled to cure the defect and establish his legal title pendente lito.</p> <p>[KU. Note.—For cases in point, see Cent. Dig. vol. 1, Action, § 73G.]</p> <p>7. Quieting Title—Adequate Remedy at Law.</p> <p>Where, in a suit in equity to quiet title as authorized by Revisal N. C. 1905, § 1589, complainant alleged that it was in actual possession of the premises in controversy at the time suit was instituted, and the proof established that complainant was still in possession, complainant had no adequate remedy- at law.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig.'vol. 41, Quieting Title, §§ G-9.]</p> <p>8. Courts—Federal Courts—Equitable Jurisdiction.</p> <p>A federal court will nit turn a complainant in equity over to a remedy at law in a state court, but only to the law side of the federal court</p> <p>9. Public Lands—State Grants—Registration.</p> <p>Code N. O. § 2779, provides that the Secretary, on application of claimants' for state lands, shall make out grants for all surveys returned to his office, which grants shall be authenticated by the Governor, countersigned by the Secretary, and recorded in his office; that the date of entry shall be inserted in every grant, and no grant shall issue upon any survey unless the same be signed by the county surveyor, and every person obtaining a grant of land shall, within two years after such grant shlill be perfected, cause the same to be registered in the county where the land shall lie, etc. From 18S5 to 1893 there was no statute in force permitting the registration of such grants, and by Laws 1893, p. 52, c. 40, it was declared that grants previously made which were required to be registered might be registered in the county in which the lands lay, respectively, within two years from January 1, 1894, notwithstanding the fact that such specified times had already expired, and that all grants registered after the expiration of such specified time should be treated as having been registered within the time specified, etc. Held, that a failure to register a state grant within two years from the date of the issuance thereof did not avoid the same.</p> <p>10. Same—State Lands—Priority of Grants.</p> <p>Where complainant not only held under a senior state grant, but had been in possession of the land since 1899. while defendants held under junior grants, and had never been in possession of the premises, such junior grants were void.</p> <p>11. Courts—Federal Courts—Rules op Decision.</p> <p>Where the priority of certain state grants had been settled by the Supreme Court of the state of North Carolina, the decision was binding on the federal court sitting in such state in a suit instituted therein.</p> <p>[Ed. Note.—'For cases in point, see Cent. Dig. vol. 13, Courts, §§ 950, 958, 959.]</p>

<p>1. Trusts—ilNFOj,icr.K.sNT~EQUiTY—JuRisDiOTJON.</p> <p>Every cestui que trust is entitled to the aid of a court of equity to avail himself of flu* benefit of the trust, and the forbearance of the trustee may not prejudice him.</p> <p>2. Courts—Jurisdiction op Federal Courts—Sun Against State,</p> <p>A suit against a state officer, which involves the pecuniary interest of the sli ,. ‘o restrain or direct the action of Uie officer in a matter intrusted to hif on, ¡1 discretion, is a suit against the state itself, of which the natío' ( i irts have no jurisdiction, but a suit to enjoin or direct a state office i ¡lie performance of an official act which requires the exercise of no diu-ie(ion and involves no pecuniary interest of the state, and no violat’d’ oí’ a positive statute thereof indicative of its public policy, is not a suit .(gainst a state, and any qualified citizen of another state may maintain such a suit in a federal court; and a suit of this nature may be umintaiqe.I even when its determination involves the pecuniary interest of the Strajro if the act of the officer is purely ministerial, or to restrain official •ieii.ii’, in pursuance of an unconstitutional statute, or without lawful auitiof and to recover damages for such action.</p> <p>I’flri. Note.—For cases in point, see Cent. Fig. vol. 13, Courts, § 814%.</p> <p>/ Federal jurisdiction of suits against state, see note to Tindall v. Wesley. -4Ü O. C. A. 105.]</p> <p>3. tí-í-ov..</p> <p>' Where corporations were required by a state statute to deposit, securities with the State Treasurer to insure performance Of their contracts, and the corporations have become insolvent, a suit by creditors entitled to the benefit of the securities to require the State Treasurer to turn the same over to receivers, to be disposed of for the benefit of complainants and all others entitled to share therein, is not a suit .against the state, and for that reason without the jurisdiction of a federal court</p> <p>[Ed. Note.—For cases in point, see Cent. Fig. vol. 13, Courts, § 844%.]</p> <p>4- Corporations—Insolvency of Bond Company—Remedy op Creditor Under Missouri Statute.</p> <p>Mo. April 21, 1893 (Laws 1893, p. 121), requires bond investment .companies selling bonds, certificates, or debentures on the installment or partial-payment plan to. deposit securities with the State Treasurer for the protection of investors in such bonds. Section 4 provides that, In case of the failure of any such company, a circuit court of the state, on the application of one or more bondholders, shall appoint a receiver to wind up Its affairs and liquidate its debts, using therefor the deposit with the State Treasurer, who is required to pay out the same on the order of the court. Act March 26, 1897 (Laws Mo.. 1897, p. 90), contains similar provisions for the deposit of securities by such companies, and also provides that, when domestic, they shall be under the supervision of the supervisor of building and loan associations, and, on their failure to make or maintain the deposit, they shall be proceeded against for forfeiture of their charter at' his relation by the Attorney General. It further repeals all acts and parts of acts inconsistent therewith. Held, that such act did not repeal section 4 of the act of 1893 and make the remedy by proceedings instituted by the Attorney General exclusive; hut left the remedy provided by said section 4 open and effective to bondholders in case of the insolvency of a company, without requiring that such suits should be instituted, conducted, or controlled by the Attorney General.</p> <p>5. Courts—Jurisdiction of Federal Courts—Enforcement of Trusts.</p> <p>Where a state statute required a corporation to deposit securities witli the State Treasurer for the protection of creditors, and authorized the latter on its insolvency to maintain a suit in a state court to avail themselves of such securities, such creditors who are qualified citizens of another state have the right to enforce such remedy and the trust created for their benefit in a federal court, and such court under its plenary jurisdiction as a court of equity to enforce trusts has power to take the securities into its own hands for administration at any stage of the suit when i1 deems such action for the best -interest of the beneficiaries. [Ed. Note.— For cases in point, see Cent. Dig. vol. 13, Courts, §§ 972, 973;]</p> <p>6. Same—Federal and State Courts—Priority of Jurisdiction.</p> <p>A state statute required bond companies issuing bonds on the installment or partiai-pnyment plan to deposit securities with the State Treasurer to protect their bondholders, and, in ease of the insolvency of any such company, authorized one or more of such hondholders\to institute a suit for a receiver who should wind up the affairs of tbe company, and be entitled, on an order of the court, to tbe bonds in tbe bands of the Treasurer. A single bondholder of such a company institute'*! a suit in a state court against the company and the State Treasurer to require the latter to pay the amount due him from the deposit. No receiver was prayed for nor appointed, nor was any action taken by the court, \to obtain . possession of the securities in the hands of the Treasurer. Held, thai such court did not acquire custody or control of such securities iso ns to deprive a federal court of jurisdiction to take possession of and rf.dminister tbe same through its receiver for the benefit of all bondholders in a subsequent suit by other bondholders to wind up the affairs of thl> enm pany as an insolvent in conformity to the statute. [Ed.-Note.—Forceases in point,' see Cent. Dig. vol. 13, Courts, §§ 1345-1347, 1349.] \</p> <p>t. Receivers—Appointment by Federal Courts—Property in Another District. \</p> <p>A receiver appointed by a federal court of one district has no poweif to take possession of property in another district, and his appointment for that purpose does not affect the right or power of tbe court in the district ■where the property is to take possession of the same through its own Receiver. [Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Receivers. §§ 409, 411.] |</p>

<p>At Law. On question of law reserved.</p>

<p>1. Navigable Waters—Obstruction—Injunction.</p> <p>An obstruction to navigable waters may be enjoined at suit of a private person wbo suffers-a special injury therefrom, whether such injury be different in hind from that of the public at large or only greater in degree.</p> <p>LEd. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 139%, 140.]</p> <p>2. Same—Grant of Lands—Effect on Included Waterway.</p> <p>A patent for land does not by implication convey title to the soil under a navigable stream, although such stream is embraced within the limits of the grant, so as to affect the status of the stream as a navigable waterway.</p> <p>3. -Same.</p> <p>Even a grant of the bed of a navigable stream to a private owner leaves the stream subject to the public right of navigation and the control of Congress.</p> <p>[Ed. Nqte.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 219, 220.] •</p> <p>4. Same.</p> <p>No act of or grant by an executive department of the United States can affect the right of the public to use the waters of a navigable stream for purposes of navigation, nor the power of Congress to control the same.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, § 43.]</p> <p>5. Injunction—Right to -Preliminary Injunction.</p> <p>The character of an injunction, as to whether it is mandatory or preventive, is determined by the situation at the time of the filing of the bill therefor, and the right of a riparian owner on a navigable waterway to a preliminary injunction to restrain the obstruction of such waterway by abridge, which was not standing when the bill was filed, is not affected by the. fact that it had been temporarily removed and was thereafter replané I, so that the injunction would be mandatory in effect.</p>

<p>1. Sales—Rescission by Buyer—Beeach of Warranty.</p> <p>Where the purchaser of a herd of dairy cows was a competent judge of such property, and had full opportunity and ample time for inspection before the purchase, no warranty of the fitness of the animals for dairy purposes can be implied; and where a written contract of sale was made, which contained no express warranty, the rule of caveat emptor applies, and the purchaser is not entitled to rescind the contract on account of the diseased condition of some of the cows, in the absence of fraud on the part of the seller.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, §§ 746, 767.]</p> <p>2. Same.</p> <p>The rule sometimes applied that a party to a sale may be entitled to a rescission where he was misled to his- injury by representations- made by the other party which proved to -bo untrue, although they were made in good faith, on the ground that it would be inequitable to permit him to retain the benefit of a contract so induced, cannot be applied to a sale within the rule of caveat emptor, as in case of a salo of live stock where there -was no warranty, either express or implied, and where the purchaser had full opportunity for inspection.</p> <p>[Ed. Note.—Eor cases in point, see Cent. Dig. vol. 43, Sales, § 84.]</p> <p>3. Cancellation oe Instruments—Invalidity.</p> <p>Complainant brought suit for the rescission and cancellation of a contract-by which he purchased from defendant a herd of cows to be used for dairy purposes, on the ground that they were infected with tuberculosis and were unfit for the purpose for which they were bought. There was no warranty, and the evidence did not establish any fraud or misrepresentation on tlie part of defendant, or that ho had any knowledge of such infection, il" it existed, and in fact the sale was made at the instance of complainant, who was an expert in dairying and had full opportunity to inspect the herd. It also appeared, from publications of the .Department of Agriculture introduced in evidence, that such infection exists to a greater or less extent throughout the country, and the herd in question was not shown to have been seriously affected. Complainant abandoned the property and left it in defendant’s hands without completing tlie payment therefor. Held, that under such facts he was not entitled to relief in equity.</p>

<p>1. Courts—Federal Courts—Authority of State Decisions Construing Statutes.</p> <p>A construction placed upon a state statute by the highest judicial tribunal of the state which has been adhered to without variation, and has become the settled law of the state is as binding on the federal courts as though it were written into the statute itself.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, § 957.</p> <p>State laws as rules of decision in federal courts, see note to Wilson v. Perrin, 11 C. C. A. 71, Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Death—Action for Wrongful Death—Right of Action Under Pennsylvania Statute.</p> <p>Under the settled construction placed by the Supreme Court of Pennsylvania upon the act of 1851 giving a right of action for wrongful death, as amended by Act April 26, 1855 (P. L. 309), giving such right of recovery to the next of kin of the deceased, such statute does not confer a right of action on a nonresident alien.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Death, §§ 35, 37, 47.]</p>

<p>1. Shipping—Liability of Vessel foe Personal Injury—Hatchway Covered by Tarpaulin.</p> <p>A schooner held liable for the injury of the master of a tug who was directing the movements of his own and another tug engaged to move the schooner to another pier, and who, while engaged in such duties and when on the deck of the schooner, stepped upon a hatchway covered by, a tarpaulin, which had the appearance of being drawn, over the covers, when, in fact, they were not on, nor was the tarpaulin sufficiently secured to hold libelant’s weight and he fell through into the hold, receiving serious injuries,</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vo-1. 44, Shippiug, § 335.)</p>

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

<p>1. Habeas Corpus—Federal Courts—Sufficiency of Petition.</p> <p>Under Rev. St. § 755 [U. S. Comp. St. 3901, p. 593], a federal court or judge will not issue a writ of habeas corpus If “It appears from the petition itself that the party is not entitled thereto,” and that if brought into court, and the cause of his commitment inquired- into, he would be remanded to prison.</p> <p>2. Courts—Jurisdiction to Set Aside Order—Effect of Pendency of Proceedings in Error.</p> <p>The granting by a state court of a writ of error for a review by the Supreme Court of the United States of its decision in a habeas corpus proceeding involving federal questions does not deprive the state court of jurisdiction to set aside an order made at the same time, admitting the prisoner to bail before bail has been accepted thereunder.</p>

In Bankruptcy. On review of a decision of a referee. The bankrupt at the time of his adjudication was acting as an aqent for the Union Central Life Insurance Company, under a contract which: provided, among other tilings, for the payment to him of a commission upon first year and renewal premiums received by such company on' policies of insurance produced by said agent, which commissions were-to accrue only as premiums or premium notes were paid to the company in cash. ;

<p>. Towage—Injury of Tow—Moving Steameb with Tugs Having Insufficient Poweb.</p> <p>Two tugs which undertook to move a steamer from the Erie Basin to a Brooklyn dock without assistance, although they lacked sufficient power to handle her safely under the conditions of wind and tide that existed, especially-outside of the basin, held liable for her injury by striking against the piers at the entrance.</p>

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

Appeals from the Circuit Court of the United States for the Western District of Wisconsin. The appellant in both of these appeals, Frank Billings, was the defendant below in each of two suits in equity, brought by Eugene A. Shores and Emma W. Shores, as complainants (originally in the state court, but removed to the trial court), and the decree in each case granted the relief sought in the bills, respectively.

The appellant, the Western Pacific Railway Company, a corporation created under the laws of California, engaged in the construction of a railway from Salt Lake Oily, in the state of .Utah, to San Francisco, by way of Oakland, with a barge and ferry system from the city of, Oakland across the bay to Sa,n Francisco, was, on and before January 10, 1006,’ in the possession of a certain tract of made land on the north side of and adjacent to the north jetty or training wall,…

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

The plaintiff in error was convicted of several offenses, charged under section 5209 of the Revised Statutes [U. S. Comp.

<p>Post Office—Using the Mails to Defraud—Criminal Prosecution.</p> <p>A verdict finding defendants guilty on a charge of using the mails In furtherance of a scheme to defraud held sustained by the evidence.</p> <p>[Ed. Note.—For .cases in point, see Cent. Dig. vol. 40, Post Office, §§ 84-86.].</p>

This was an action brought by George W. Modawell against the Texas & Pacific Railway Company to recover damages for an injury which he sustained by being run over by the cars of the defendant company while walking along its track in the parish of Pointe Coupee, La., near Morganza station.

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

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

<p>Appeal from the District Court of the United States for the Northern District of the Eastern Division of Illinois.</p> <p>The Pacific Surety Company, appellant, and one Samuel R. Chamberlain, were sued in admiralty by the appellee, Leatham & Smith Towing & Wrecking Company, upon a bond executed by the appellant, as surety, and Chamberlain, as principal, in favor of the appellee, conditioned upon performance by the principal of a contract for charter of the steamer Joseph L. Hurd, of even date, made between the principal and the appellee, as managing owner of the steamer. Upon the libel in personam, filed by the appellee, issue was joined, the testimony heard and recovery awarded for damages arising out of breaches of the charter party; and this appeal is from the decree accordingly: Various errors are assigned, which rest on the terms, respectively, of the bond and charter party and on the form of the decree, but the primary question is raised of want of jurisdiction of the subject-matter. No further statement, therefore, is needful beyond tbe contract terms and circumstances mentioned in the opinion.</p>

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

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

<p>1. Specific Performance—Parot. Gift.</p> <p>Equity will enforce a parol gift of land, if accompanied by possession, when valuable improvements have been made by the donee on tlie slrength of and in reliance on the gift, provided tlie evidence both as to the existence of the contract and its terms and conditions is cogent, clear, and unequivocal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 132, 133.]</p> <p>2. Same—Part Performance—Parol Gifts.</p> <p>Part performance, or the making of valuable improvements, relied on to take a parol gift of land out of the statute of frauds, must be such as to indicate an acceptance of the gift on the terms on which it is alleged to have been made and such as are clearly referable to no other arrangement or understanding.</p> <p>TEd. Note.—For cases in point, see Cent. Dig. vol. 44, Specific Performance, f§ 120, 132, 133.]</p> <p>3. Same—Evidence.</p> <p>In a suit to enforce an alleged parol gift of land, complainant testified that she moved on the land at her brother’s request aud that he told her he would give her the land for a home; that he wanted her to live there, and would execute a deed when he got .to it; and that he expected one-third’ of the crops until such time as he gave the deed, which he died without executing. The evidence was uncertain whether ho intended to convey the land in fee, or only to make complainant a tenant for life, for a term of years, or at sufferance; nor did it appear whether he intended to make a present gift or one effective in the future. Complainant lived on the land until after her brother’s death, rendering to him one-third of the crops, which she also rendered to his executor after his death, and only expended about $150 on the premises in repairing fences, papering rooms, etc. Held, that such evidence was insufficient to establish a parol gift of the land enforceable against his personal representative.</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 (hereinafter styled “plaintiff”) brings suit in assumpsit to recover moneys paid under protest upon assessments alleged to have been illegally made and collected from plaintiff by defendant in error (hereinafter styied “defendant”) upon a certain certificate of membership in defendant company. The declaration contained one special count and the common counts. To the special count, defendant interposed a general demurrer; to tlie common counts, the general issue. On hearing, the demurrer was sustained; whereupon plaintiff elected to stand by his plea, and, without further order, the cause stood until called for trial, when plaintiff dismissed the common counts. Thereupon judgment was rendered for defendant. To reverse this judgment, the writ of error herein was sued out.</p> <p>From the declaration it appears that defendant is one of the so-called “assessment life insurance companies”; that plaintiff duly became a member thereof, at the age of 51 years, on March 4, 1885. and, in consideration of tlie performance of certain conditions' set out in the certificate of membership, application, constitution, by-laws, and regulations of defendant, and the law» of the state of New York, was entitled to have the sum of $10,000 paid to the beneficiaries in said certificate named, within 90 days after his death. By the terms of the certificate, “mortuary assessments,” so-called, were made payable at the home office of defendant in the city of New York within 30 days from the first week day of February, April, June, August, October, and December of each year, or from such other periods as the board of directors might from time to time determine. The said $10,000 was to be paid “from the death fund of the association at the time of said death or from any moneys that shall be realized to said fund from the next assessment to be made as hereinafter set forth, and no claim shall be otherwise due or payable except from the reserve fund as hereinafter provided. If at such date as the board of directors of the association may from time to time fix or determine for making an assessment, the death fund is insufficient to meet existing claims by death, an assessment shall then be made upon every member whose certificate is in force at the date of the last death assessed for, and said assessment shall be made at such rates, according to the age of each member, as may be established by the board of directors, and the net amount received, from such assessment (less 25% to be set apart for the reserve fund) shall go into the death fund.” It is in express terms provided therein that the certificate or contract of membership shall be subject to all the provisions of the constitution and by-laws of defendant and the amendments thereto, and that the contract contained in the certificate and the application taken together shall be governed by, subject to, and construed only according to the constitution,- by-laws, and regulations of defendant and the laws of New York. It is further shown from a table of rates, so-called, attached to said certificate, that the basis of the assessment rate of plaintiff at the -date of said certificate was $2.25 per $1,000, and that plaintiff paid the same from that date up to February 28, 18S9 (approximately four years), when a new table of rates was adopted, whereby his assessment was raised to $3.41 per $1,000. which increased rate he paid without protest up to June 12, 1895—something more than six years; that defendant, at the time of said increase, stated that he would never be called upon to pay more than $3.41 per $1,000; that the directors of defendant did on said last-named date, illegally and in violation of defendant’s contract with him, reapportion the assessment rate of plaintiff, raising the same to the sum of $5.28 for each $1,000, which rate, in excess of- the sum of $3.41, was illegal and void; that, on notice from defendant that if the same was not paid within 30 days from date of notice his rights under said certificate would be forfeited, and because he was on account of his age and state of health unable then to procure other insurance, he thereupon, but under protest, paid at said last-named 'rate up to February 1, IS98—something less than three years. The declaration further alleges that thereafter plaintiff was in like manner compelled to and did, under protest, pav at continually increasing rates, the basis of which was illegally fixed by defendant, until the same, on July 28, 1905, amounted to $15.50 on each $1.000: that seven of the calls for assessments were in excess of the bimonthly calls, and were termed “special calls,” and were illegal for that reason. The declaration further charges that said assessments were illegal for the reason that defendant "induced many of its members to abandon the assessment policies and take level premium insurance, thereby depriving plaintiff of the benefit of his contract, and for the further reason that'thev were made by the directors and executive committee, instead of by the directors alone. The damages are* laid at the sum of $7,500.</p> <p>The assignment of .errors is limited to the supposed error of the court in sustaining the demurrer and entering judgment thereon..</p>

<p>1. Exceptions, Bill of—Time for Signing—Rule of Federal Courts.</p> <p>While as a general rule of practice in the federal courts -a bill of exceptions must be signed at the same term in which the judgment was rendered, an exception exists where extraordinary circumstances excuse the failure to sign it within such term, and the fact that the exhibits in a case were mislaid without fault or negligence on the part of the plaintiff'in error, and not found until after the expiration of the term, is sufficient to bring the case within the exception; but such facts should, if possible, be evidenced by the certificate' of the trial judge.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 21, Exceptions, Bill of, § 72%.]</p> <p>2. Writ of Error—Record—Assignments of Error.</p> <p>Assignments of error cannot be considered by an appellate court where based on exhibits and excerpts from the evidence embodied in the bill of exceptions, but which bill contains nothing to show their relation to the issues involved.</p> <p>3. Same—Bill of Exceptions.</p> <p>A transcript of what purports to be the evidence in a case cannot be considered by an appellate court unless incorporated in the bill of exceptions so as to be authenticated by the certificate of the trial judge.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 3, Appeal and Error, §§ 2433-2440.]</p> <p>4. Same—Amendment.</p> <p>Permission will not be granted' to a plaintiff in error to obtain and file a new or amended bill of exceptions after the ease has been argued in the appellate court, and especially where no good reason is shown why the original bill was not made complete.</p> <p>[Ed. Note.—For cases in point, see Cent Dig. vol. 3, Appeal and Error, §§ 2819-2822.]</p>

This is an appeal from the District Court for the Eastern District of Louisiana. The question involved arose in the bankruptcy case of John E.. Wilcombe, bankrupt. Wilcombe was adjudicated a bankrupt on the 8th day of September, 1905. On the 16th day of August preceding, he transferred to-his wife certain real estate in the parish of Tangipahoa, La., which it is unnecessary to describe. The consideration for the transfer was $3,000. Joseph-' II.

<p>Customs Duties—Action fob Unpaid Duties—Defense—Jurisdiction of General Appraisers—Finality of Collector’s Decision.</p> <p>A collector of customs reliquidated tbe duty on imported merchandise at ail increased rate, and brought an action for the amount thus becoming due. ’The importers defended on the ground that the rate assessed was illegal. Held, that questions as to rate could not be raised in such proceedings ; that the Board of General Appraisers was created by Customs Administrative Act June 10, 1890, c. 407, § 14, 2(5 Stat. 137 [U. S. Comp. St. 1901, p. 1933], as n special tribunal having, subject to review by the courts, exclusive jurisdiction over controversies as to the rate of duty on importations; that the importers’ only remedy was to pay under protest the duties found due by the collector; and that unless they did this the collector’s decision was “final and conclusive” as provided in said section.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 195.)</p>

<p>Appeal from the Circuit Court of the United States for the Soutnern District of New York.</p> <p>This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York, which affirmed a decision of the Board of General Appraisers, sustaining the collector in his classification of certain importations for duty under the act of 1897.</p>

The property involved consisted of onions, dutiable under Tariff Act July 24,1897, c. 11, § 1, Schedule G, par. 249, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1650], at the rate of “forty cents per bushel.” The importers contended that the collector erred in making the assessment of duty on the basis of a weight of 57 pounds per bushel, and that the more liberal standard of 60 pounds should have been adopted.

<p>Injunction—Preliminary Injunction—Discretion of Court.</p> <p>A preliminary injunction directed in part against each of the parties to a suit to determine rights in certain land and right of way adjacent to a railroad station, designed to preserve the status of the property until final hearing, held properly granted in the exercise of the court’s discretion.</p>

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

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

<p>Patents—Infringement—Fastener for Stair Carpets.</p> <p>The Adams patent, No. 587,633, for a fastener for stair carpets, claim 1, Is void for anticipation. Claim 2 held not infringed.</p>

In Equity. Suit to restrain alleged infringement by defendant of certain United States letters patent owned by the complainant, and for an injunction.

<p>In Admiralty. Action by passenger for personal injuries.</p>

<p>'Goi/lision—Tug and Stkameb at Peek—Absence ok Lookout.</p> <p>A tug with a tow, and having no lookout, was approaching a pier, near which slie intended to leave her tow, and the master, who was at the wheel, changed her course toward the pier in order to make a turn. Immediately after he suddenly fell in a faint, and the tug, being without guidance, ran into a steamer which was lying at the pier. Held that. while the collision was the result of inevitable accident so far as related to tiie master, it was proximately due to the failure to keep the lookout required by law, since, if a competent one iiad been properly stationed and attentive to his duties, he would have noticed the trouble and prevented the collision, either by changing the tug’s course or having the engineer stop or reverse.</p> <p>[Ed. Note.—For cases in point, see Gent. Dig. vol. 10, Collision, §§ 140-151.]</p>

<p>*1. Bankruptcy—Hearing Before Special Master—Rulings.</p> <p>It is the duty of a special master to whom has been referred a bankrupt’s petition for discharge and specifications of objection thereto, to take and report ail testimony offered with his rulings as to its admissibility, and he may properly reserve such rulings if they are made in time to enable the parties to reserve exceptions.</p> <p>2. Same—Discharge—Amendment of Specifications of Objection.</p> <p>An opposing creditor may amend his specifications of objection to a bankrupt’s discharge by supplying allegations that the acts relied upon were knowingly and fraudulently committed by the bankrupt at any time before the evidence is closed.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. G, Bankruptcy, § 71G.1</p> <p>3. Same—Right to Disctiaegf,—Violation of Act.</p> <p>Findings of a special master, based on conflicting evidence, that a bankrupt had concealed property and made false oath with intent to defraud his creditors, which debarred him from the right to a discharge, affirmed.</p>

<p>Bankruptcy—Exemptions—Forfeiture by Fraud.</p> <p>In Pennsylvania a bankrupt who deliberately and willfully conceals or denies the ownership of property to prevent it from being subjected to the payment of his debts forfeits his right to any exemption under the state law.</p>

<p>In Bankruptcy. On petition of bankrupt for review of referee’s decision denying homestead exemption. /</p>

In Bankruptcy. On motion to dismiss proceedings. The copartnership firm of P. Feigenbaum & Son, composed of Philip Feigenbaum and Harry Feigenbaum, filed a petition in bankruptcy in May, 1899. In 1900, after certain proceedings had been had therein, their discharge was denied. Within, a few months thereafter, Harry Feigenbaum filed his individual petition in bankruptcy, setting forth the same debts and the same assets.

At Law. Motion to set aside verdict and for a new trial on the grounds that the verdict is contrary to and unsupported by the evidence: and that, if in any view plaintiff can maintain the action, the damages are excessive.

<p>L Construction—Presumptions.</p> <p>The presumption that statutes are constitutional will be indulged iu until the contrary is clearly shown.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 46.]</p> <p>2; Commerce—Interstate Commerce—Protection oe Employes.</p> <p>Congress has the power, under the commerce clause of the Constitution, to legislate-for the safety and protection of employes engaged in interstate commerce, whether the transportation be on water or on land.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Commerce, § 3.]</p> <p>3. Same—Personal Injuries.</p> <p>It is within the power of Congress, under the commerce clause, to regulate the liability of a common carrier to its employes for personal injuries received while engaged in interstate transportation.</p> <p>4. Same—Regulation of Commerce.</p> <p>The act of Congress of June 11, 1906, c. 3073, 34 Stat. 232, relating to the liability of common carriers engaged in commerce between the states to their employes, as stated in its title, commonly called the “Federal Employers’ Liability Act,”, is a regulation of interstate commerce, and is within the Constitutional power of Congress to regulate commerce.</p> <p>5. Statutes—Master and Servant—Federal Employers’ Liability Act—Intrastate Commerce—Partial Invalidity.</p> <p>The federal employers’ liability act is not void because, as alleged, it applies equally to intrastate and interstate commerce, as its provisions are separable, so as to be valid when invoked by an employé engaged on a train actually employed in interstate traffic. The title of the act, which is the best summary of its purpose, removes-any ambiguity that may be in the text.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 58-66.]</p> <p>6. Same—Partial Invalidity.</p> <p>The federal employers’ liability act is remedial and not penal, which fact takes it out of the rule laid down in the Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550, and other cases.</p> <p>7. Constitutional Law—Persons Entitled to Raise Constitutional Questions.</p> <p>The plaintiff in this case, who alleges that he was engaged at the time of the accident on a train engaged in interstate commerce, is within the rule of law that courts will not listen to an objection of uncoustitutionality of an act by a party whose right it does not affect in the particular case on trial.</p> <p>[Ed. Note.—For cases in point, see Cent,Dig. vol. 10, Constitutional Law, §§ 39, 40.]</p> <p>(Syllabus by the Court.)</p>

<p>In Admiralty. Suit to recover for loss of life in collision.</p>

<p>At Law. Action on bond given by an accepted bidder for carrying the mails. Tried by agreement before the court without a jury.</p>

<p>Collision—Tow and Vessel at Wharf—Fault oe Tug.</p> <p>The injury of a lighter, which was the outside vessel in. the front tier of a tow, by collision with a schooner lying at wharf, held, on the evidence, due to the fault of the tug in keeping too close to the wharf and not to a collision between the boat on the other side of the tow and a meeting tow.</p>

<p>1. IliSUEANCE—IjIEE INSUEANCE—NATURE OE CONTBACT.</p> <p>On payment of the initial premium on a life Insurance policy a contract is created for insurance for the whole of the life of the insured, and the insurer’s right to terminate such contract for nonpayment of premiums is one of forfeiture.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, § 891.]</p> <p>2. Same—Fobeeitube—Estoppel.</p> <p>, '■An insurance company may by its course of conduct estop itself'from’ setting up an otherwise good ground for forfeiture of a policy.</p> <p>■ [Ed. Note.—For cases in point, see Cent. Dig. yol. 28, Insurance, §§ 941, 1026-1085.]'</p> <p>3. Same—Fobeeitube fob Nonpayment oe Pbemium—Payment to Agent.</p> <p>. A soliciting agent for a life insurance company sold Ms mother a policy on the life of her husband and collected the first premium, which he remitted to the company. Although having no authority from the company to do so, he' also collected and remitted the second premium. When the third premium became due he again requested and received payment of. the same, but did not remit the money to the company. Held, that in an action on the policy it was a question for the jury whether the beneficiary paid the money in good faith to him as agent of the company, or as her agent to remit the same to the company, and that, upon their finding on the evidence that the payment was made to him as agent of the company and that the company’s prior conduct was such as to induce her to believe that he was an agent to collect premiums, it was estopped from claiming a forfeiture of the policy because of the nonreceipt of such premium.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 948, 957, 1057, 1062.]</p>

<p>In Bankruptcy. In re order of commitment for contempt. On certificate from referee.</p>

This action was brought by the United States against the Mexican International Railroad Company, a corporation organized under the laws of Connect icut and operating a railroad in the republic of Mexico and in the state ol Texas, to recover $3,S76.60 alleged to be due for duties on the importation of merchandise.

<p>Railroads—Injury to Person in Switchyards—Negligent Operation of Trains.</p> <p>' Evidence held to sustain the verdict of a jury awarding damages against a railroad company for the death of a brakeman employed by another company, resulting from a collision In switching yards between the train on which the deceased was working and a long train of defendant company which was backed into the yards, on the ground that such evidence warranted a finding that the defendant company was negligent in failing to prescribe proper rules and regulations for the movement of its trains, and in permitting a train of such length to be backed into the yards around a curve which obstructed the view of the engineer without sufficient lirakemen thereon to pass a signal to him when there was danger of a collision.</p>

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

Writ of error to review judgment entered on a verdict of a jury in favor of plaintiff in an action for personal injuries sustained on April 7, 1902.. The action was begun August 28, 1903, in the New York Supreme Court, and was removed by the defendant, which is a .New Jersey corporation, to the United States Circuit Court for the Southern District of New York.

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

<p>Bankruptcy—Conveyance with Intent to Defbatjd—Money Bobbowed to Give Pkefebence.</p> <p>An insolvent, eight days before filing a petition in voluntary bankruptcy, executed a mortgage for borrowed money to a brother of a large creditor, covering substantially all of his property. The loan was arranged for by another brother of the creditor, who was also his agent for collection of the debt. The amount borrowed was slightly more than the claim, and was turned over in payment of the same before the debtor left the office where he received it. Haiti,'that such facts justified a finding that the mortgagee knew, or had reasonable cause to believe, that the purpose of the transaction was to prefer his brother in violation of the bankruptcy act, notwithstanding his denial, and a decree setting aside the mortgage under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 504 [U. S. Comp. St. 1901, p. 3449], as one given with intent to hinder, delay, and defraud other creditors.</p>

This cause comes here upon appeal from a decree of the United States District Court for the Southern District of New York, dismissing the libel and petition of Leah M. Saville for limitation of liability. The opinion of the court below is reported in M2 Led. 1034.

<p>1. Appeal and Error—Review—Rulings Excluding Evidence.</p> <p>The presumption in an appellate court is that the judgment below was right, and the burden of showing to the contrary rests upon the plaintiff in error; and to show that the exclusion of testimony offered was erroneous and harmful he must show what he claimed such testimony would have been and would have proved, if admitted.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3670.]</p> <p>2. Witnesses—Cross-Examination—Questions Aeeeoting Accuracy oe Direct Testimony.</p> <p>Where, in an action to recover for a personal injury received in a railroad wreck, a physician testified on behalf of defendant that he examined plaintiff at the place and time of the wreck and to his condition, it was proper on cross-examination to require him to state the conditions then existing as to the confusion, etc., which might affect the fullness and accuracy of his observations and examination.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On appeal by the complainant from a decree of the Circuit Court for the Southern District of New York in favor of the defendant in a suit for infringement of the ninth claim of letters patent No. 450,592, granted to J. H. Schulte April 14, 1891, the application being filed July 22, 1886.</p>

<p>1. Patents—Construction of Claims—Improvement Paten'. i.</p> <p>In construing improvement claims of a patent, consideration should be given to the character of tbe improvements introduced by tbe patentee and tbe change in tbe art attributable to them. When they result in converting imperfection into completeness, and in producing the first practically and commercially successful machine, however simple the change, appears, the invention is entitled to liberal treatment by tbe courts.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 38, Patents, § 249.]</p> <p>2. Same—Primary Improvements.</p> <p>Courts look with favor upon patents for primary improvements which are novel and a manifest departure from the principles of prior structures, and which constitute the final step necessary to convert failure into success.</p> <p>3. Same.</p> <p>A strict construction of the claims of a patent should not be resorted to, if the result would be a limitation on the actual invention, unless it is required by the language of the claim.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 38, Patents, § 241.]</p> <p>4. Same—Infringement—Change op Parts.</p> <p>Infringement is not avoided by changes in a patented machine which are nonessential, as by changing tbe positions of parts or transferring a function from one part to another, without affecting the principle.or mode of operation.</p> <p>5. Same—Construction op Patent por Primary Improvements—Tabulating Attachment por Typewriters.</p> <p>The Gathright patent, No. 436,916, for án improvement in typewriters, which consists of an automatic tabulating attachment, while not for ■ a pioneer invention, covers a primary and valuable improvement - on the . tabulators of the prior art, and the first practically and- commercially successful tabulating device, and its claims are entitled to a construction, sufficiently liberal and a range of equivalents sufficiently broad to protect the actual invention. As so construed, claims 4 and 5 held infringed.</p> <p>6. Same—Infringement—Specific "Impkovement Claims.</p> <p>A patent' for a specific improvement on a prior machine is not infringed by a machine which does not contain such improvement, on the theory that an equivalent device is used.</p> <p>7. Same—Infringement.</p> <p>The Gathright patent, No. 452,208, for an improved tabulating attachment for typewriters construed, and held not infringed.</p>

<p>1. Patents—Invention—Evidence.</p> <p>Where an existing process or device discloses what appear to bo insuperable objections to practical operation, it is persuasive evidence of invention that an improver has the foresight and courage to break away from such disclosure and conceive of some new method involving a different principle; but it is also evidence of invention if one, by taking a step forward, sees that what appeared to be barriers to progress are mere obstructions to side paths and byways, and that the road to a practical invention lies straight ahead.</p> <p>[Ed. Note.—-For eases iu point, see Cent. Dig. vol. 38, Patents, §§ 16, 17.]</p> <p>2. Same.</p> <p>Whore the question of invention is still left in doubt after the application of the usual-negative tests to establish want of invention, such doubt may be resolved in favor of the patent by evidence of successful results where others had tried and failed, especially where such success is in both operative and commercial results.’</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol 38, Patents, § 40.]</p> <p>8. Same—Process foe Marino Sound Records.</p> <p>The Jones patent No. 688,739, for a method of producing sound records for use In talking machines of the gramophone type, which consists in cutting or engraving a record groove of uniform depth, by means of the lateral vibrations of a suitable stylus, upon a disk of waxlike material, coating the same witb. a conducting material, and then forming a matrix thereon by electrolysis, from which the duplicate records are made by impression, was not anticipated by anything in the prior art, and discloses patentable invention. Also held infringed.</p>

of New York. .This cause comes here on appeal by complainants from a decree on final hearing of the United States Circuit Court for the Southern District of New York, dismissing bill for infringement of patent No: 548,623, granted October 29, 1895, to Emil Berliner, for duplicating sound records. The opinion of the court below is reported in T45 Fed. 189.

<p>In Equity. On certificate of examiner and exception to cross-interrogatories.</p>

<p>Receivers—Direction by Coubt>-Dismissal op Suit.</p> <p>A court will not direct its receiver to dismiss an ejectment suit brought by him to recover property alleged to have been purchased with money of tlie estate, on petition of the defendant therein who holds the legal title, except on clear proof that the property was not so purchased</p>

<p>Action for damages under Act of Congress, approved June 11, 1906.</p>

<p>1. Receivers—Remedies—Summary Proceeding.</p> <p>A receiver may proceed summarily by petition for a rule to show cause in the court by which he was appointed to require one not a party to the suit to pay over money belonging to the receivership which has come into possession of the respondent since the appointment of the receiver, and which is retained in defiance of the court’s order sequestering the property and funds of the defendant, although the respondent claims a right to or lien upon the fund; his remedy in such case being by a petition in intervention setting up his claim. The rule would be otherwise, however, with respect to funds in the hands of respondent at the time the receiver was appointed, and which he claims adversely, which could only be recovered by the receiver by a plenary suit.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 42, Receivers, § 129.]</p> <p>2. Courts—Jurisdiction of Federal Courts—District of Suit.</p> <p>Where a defendant corporation, sued in a federal court in a district of which neither complainant nor any defendant is an inhabitant, waives any objection to the place of suit by appearing and joining in complainant’s prayer for a receiver, such waiver is conclusive upon third persons not parties, who cannot claim that t; appointment of the receiver was without jurisdiction; there being the requisite diversity of citizenship to confer constitutional jurisdiction on the court.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, § 815.</p> <p>Waiver of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. O. A. 192.]</p> <p>3. Same—Suit of Local Nature—Scope of Receivership.</p> <p>A suit by a creditor of a railroad company to have its property, situated in different federal districts of the same state, administered for the' benefit of all creditors, is one of a local nature which, under Rev. St. f 742 [U. S. Comp..St. 1901, p. 588], may be brought In either oí such districts, and the appointment of a receiver therein is an equitable attachment of all property of the defendant within the state.</p> <p>[Ed. Note.—.For cases in point, see Cent. Dig. vol. 13, Courts, § 809.]</p> <p>4. Receivers—Title to Property—Date of Attachment.</p> <p>The qualified title of a receiver to the property he is directed to take and hold dates from the time of his appointment, and actual seizure by him is not necessary to prevent the attachment of rights or liens thereafter ; and. if the order of appointment requires him to give bond, his title when so qualified relates hack to the date of appointment, and cuts off all intermediate rights.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Receivers, § 120.]</p> <p>5. Creditors’ Suit—Qualification of Creditoe to Being—Waiver of Objection.</p> <p>The objection that a creditor’s hill was filed by a single unsecured creditor who had no judgment, and claimed no lien, is waived and stands as though it never existed where the defendant voluntarily appears, confesses the debt, admits its insolvency and joins in the prayer for a receiver, and such objection cannot be thereafter raised by other creditors who were not parties to the suit as brought, hut are subsequently brought in or are permitted to intervene.</p> <p>6. Receivers—Time of Appointment—Order Made at Chambers.</p> <p>An order appointing a receiver signed by a circuit judge at chambers in another district on presentation to him of bill and answer which have not been filed, to take effect when the pleadings and order are filed with the clerk becomes effective on such filing, any delay in transcribing the order upon the records or in the qualification of the receiver being immaterial.</p> <p>7. Same—Power to Appoint—Judge at Chambers.</p> <p>A federal judge, in the exercise of his general equity powers as a chancellor, and those prescribed by Kcv. St. § 638 [U. S. Comp. St. 1901, p. 519], and equity rule 3, has authority at chambers to make an order appointing a receiver in a pending cause, „or on a bill and an answer by the defendant joining in the prayer for such appointment.</p> <p>[Ed. Note.-—For cases in point, see Cent. Dig. vol. 42, Receivers, § 38; vol. 29, Judges, § 126.]</p> <p>8. Judges—Circuit Judges—Chambers—Territorial Limtt of Jurisdiction.</p> <p>A circuit judge of the United States may do chambers business at any place within his circuit without regard to the particular district in which the cause is pending.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 29, Judges, §§ 109, 110.]</p> <p>9. Receivers—Effect of Appointment—Lien of Bank on Deposits Received After Receivership.</p> <p>A railroad oompauy kept a general account, subject to check, in a bank, which also held notes of the company payable on demand. From time to time the treasurer and agents of the company remitted money to the bank for deposit in such account, and certain of such remittances were received by the bank after the appointment of a receiver for the property of the company in insolvency proceedings. Held, that such sums were property of the receiver, and the bank acquired no lien thereon which entitled it to apply them on its notes.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Receivers, § 117.]</p>

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

On Demurrerr to Indictment. The defendant, Robert Rowell, was jointly indicted with one Riggins, under sections 5508 and 5509 of the Revised Statutes [U. S. Comp. St. 1901, p. 3712], for conspiracy “to injure, threaten, oppress and intimidate” one Horace Maples, a negro citizen of the United States, in the enjoyment of certain rights and privileges claimed to be secured by the Constitution or laws, under the thirteenth and fourteenth amendments.

In Equity. Demurrer to amended bill of complaint on grounds, first, that complainant has a full, complete, and adequate remedy at law, and, second, that complainant’s alleged cause of action is not cognizable in equity.

<p>1. Insurance—Avoidance op Policy for Breach op Condition—Title op Insured.</p> <p>A man built an ice plant with his own money on a part of a block of ground the title to which was in his deceased wife and of which he was the owner by inheritance of a one-third interest. He was an ignorant man who had originally bought the property and honestly supposed it was his own and had always so considered and treated it. On his verbal application to an agent insurance policies were issued to him covering the building and its contents. No written applications were made or required, nor any representations as to the nature or extent of his interest. Under the law of the state a co-tenant who made improvements in the belief that lie was the sole owner was entitled to have allotted to him the improved part without taking into consideration the value of his improvements, or in case of sale was entitled to the increased value due to his improvements. HcW. that the policies were not avoided by reason of a condition therein that they should be void “if the interest of the assured be oilier than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by tlie assured in fee simple.”</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 603, 605, 607.]</p> <p>2. Same--Fraud—Overvaluation op Property by Insured.</p> <p>Policies of insurance on tlie machinery of an ice plant are not void for fraud and overvaluation of the property insured, where there was no intentional deception by the insured, who had no knowledge of the value except from its cost, which ivas approximately the value given, and the estimate was made by the engineer who installed the machinery, and it was also examined by the agents of the insurers before writing the policies.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 597, 598, 984.]</p> <p>3. Same—Forfeiture por Breach op Condition Subsequent—Estoppel.</p> <p>Insurance companies are estopped to claim a forfeiture of policies on a manufacturing establishment under a provision therein that they should he void if the plant should cease to be operated for more than 10 consecutive days unless otherwise provided by agreement indorsed thereon or added thereto, where the property insured was an ice plant, supplying only a local demand and not operated during a portion of the year, and It was shown that when it was temporarily shut down some time before the fire notice was given by the insured to the agents of the insurers who took no action thereon.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 759, 1037, 1038.]</p> <p>4. Same—Proofs op Loss—'Waiver.</p> <p>Where proofs of loss under insurance policies were furnished by the attorneys for the insured, with a request to be notified of any insufficiency or if anything further was required, hut 110 suOli notice was given or objection made, and in subsequent actions on the policies the insurers denied all liability thereon, any defects in the proofs are immaterial and cannot be taken advantage of to defeat a recovery.</p> <p>[lid. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1391, 1393.]</p> <p>5. Same—Action on Policies—Defenses.</p> <p>Evidence held insufficient to sustain a claim of insurance companies that insured property was intentionally burned or that the insured testified falsely in swearing'that he had no knowledge of the origin of the fire.</p>

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

<p>1. Constitutional Law—Statutes—Determination of Constitutionality-Duty op Trial Court.</p> <p>A court of first instance may properly decline to hold an act of Congress unconstitutional, unless in a clear ease, and leave the question to an appellate court.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 42.]</p> <p>2. Carriers—Interstate Commerce Act—Scope.</p> <p>The provisions of Interstate Commerce Act Feb. 4, 1887, c. 104, §§ 1, 3, 24 Stat. 379, 380 [U. S. Comp. St. 1901, pp. 3154, 3155], requiring rates, for the transportation and for the “receiving, delivering, storage or handling” of property by an interstate carrier to be reasonable, and prohibiting discrimination, are sufficiently broad to cover demurrage charges.</p> <p>3. Same—Demurrage-tReasonableness op. Charge.</p> <p>A demurrage charge of $1 per day for the time a car loaded with hay remains standing on the tracks of a railroad company before being unloaded, after the first 96 hours, deducting holidays, Sundays, and rainy days, held not unreasonable.</p> <p>4. Same—Discrimination.</p> <p>A demurrage or “car service” charge, made by an interstate railroad company for the time during which cars loaded with hay are left standing on its tracks at a suburban station in Boston after the expiration of the time given for unloading, is not discriminative within the meaning .of Interstate Commerce Act Feb. 4, 3887, c. 304, § 3, 24 Stat. 380 [U. S. Comp. St. 3901, p. 3155], because at South Boston, which is the terminal of the road in the city, a hay shed is provided into which hay is unloaded at the request of a consignee to the extent of its capacity, and where it is stored at a somewhat less rate, the charge being the same dt the two places where hay is left in the car.</p>

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

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

<p>In Admiralty. Suit in rem for nondelivery of cargo.</p>

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

<p>Criminal Law—Felonies and Misdemeanors—Massachusetts Statute.</p> <p>Rev. Laws Mass. c. 215, § 1, provides that any crime punishable by death or by imprisonment in' the State Prison is a felony, and that all other crimes are misdemeanors. When such statute was enacted the state had but one state prison, in which both men and women were confined, but subsequently it established a women’s prison, and provided by statute that women convicted of offenses for which they would previously have been sent to the state prison should thereafter be sentenced to the women’s prison, and also that women convicted of lesser offenses punishable by imprisonment in a jail or house of correction might be sentenced to such women’s prison. Held, that the latter class of offenses were not thereby made felonies, but that so far as relates to women, the grade of the offense was no longer determined by the place of imprisonment to which they might be sentenced, but rather by the place in which a man guilty of the same offense would be confined.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 29-31.]</p>

<p>Bankruptcy—Tbansfeb op Property by Bankbupt—Unpaid Check.</p> <p>Under Gen. St. 1902, § 4359, which provides that “a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the hank is not liable to the holder, unless and until it accepts or certifies the check,” the payee of a check drawn against a sufficient deposit and presented two days before tlie filing of a petition in bankruptcy by tbe drawer, but which was not paid nor accepted by the bank because of rumors that such proceedings were contemplated, acquired no claim against the bank nor lien upon the fund, nor did a statement by the bank that it would take advice and pay the check if it could amount to an acceptance, where it subsequently refused to accept or pay it</p>

<p>At Law. On motion by defendant for judgment notwithstanding the verdict.</p>

<p>Aliens—Chinese Exclusion—Evidence oe Nativity.</p> <p>Evidence considered in a proceeding for the deportation of a Chinese person, and held not sufficient to sustain his claim that he was born in the United States.</p> <p>[Ed. Note.'—For cases in point, see Cent. Dig. vol. 2, Aliens, § 84.]</p>

<p>Bankruptcy—Compromise op Suit by Trustee.</p> <p>A trustee in bankruptcy will not be authorized to compromise and settle a suit brought by the bankrupt in a state court without the consent, of the bankrupt’s attorney in such suit who has a lien on any judgment recovered for his services.</p>

<p>1. Corporations—Liability of Stockholders—Repeal of Statute.</p> <p>The repeal of Comp. Laws Kan. 1885, e. 23, art. 5, § 44, which gave creditors of a corporation a right of action against stockholders to recover their debts, by Acts 1898, p. 36, e. 10, § 17, did not affect the right of action, against stockholders which accrued prior to the repeal.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, § 10Í3.]</p> <p>2. Limitation of Actions—Effect of Bar—Bar of Debt as Affecting Security—Corporations—Stockholders’ Liability.</p> <p>Where the right of a creditor of a foreign corporation to enforce a statutory liability of stockholders was fixed on the dissolution of the corporation, such liability, was not affected by the subsequent extinction of the creditor’s remedy against the corporation.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 651; vol. 12, Corporations, § 1097.]</p> <p>3. Same—What Law Governs.</p> <p>Where an action was brought in a federal court of Massachusetts to enforce a statutory liability of stockholders in a Kansas corporation under the laws of that state, the statute of limitations of Massachusetts, and not that of Kansas, was applicable.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 4-8, 655.]</p> <p>4. Same.</p> <p>An action in the federal courts of Massachusetts to enforce a stockholder’s statutory liability for debts of a Kansas corporation is barred in six years by Pub. St. Mass. c. 197, § 1, and is not affected by Rev. Laws, Mass. c. 202, § 1, authorizing the maintenance of certain actions within 20 years.'</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 33, Limitation of Actions, § 155; vol. 12, Corporations, § 1084.]</p> <p>5. Courts—Federal Courts—Rules' of Decision.</p> <p>Where the Supreme Court of Kansas held that a stockholder’s statutory liability for debts arose at the time of the dissolutiori of the corporation, and that the date of the maturity of the obligation was immaterial, such decision would be followed in a federal court sitting in another state in a suit to enforce similar liability under the Kansas statute.</p> <p>[Ed. Note.—For cases in' point, see Cent. Dig. vol. 13, Courts, §§ 950, 955-957, 983.]</p>

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

<p>Joint Adventures—Quasi Contracts—Repayment op Money.</p> <p>Defendants associated themselves for the purpose of obtaining a fran.chise to furnish a municipality with gas for light and heat, and also with refrigeration, and ,for this purpose organized a corporation contemplating the issuance of full-paid and nonassessable stock, together with certain bonds. In order to obtain a franchise it was necessary for the promoters to pay $10,000 in eash to the city, which they promised to do, and for this purpose authorized C., one of the associates, who was cashier of a bank, to obtain the amount. It was also necessary to purchase certain land as a plant site at a cost of $5,600, and C., in order to raise the money, borrowed the same from his bank on certain notes signed by certain of the associates, which he wrongfully used without their authority. The scheme was finally abandoned after the associates had agreed that all money which had been advanced by the parties to the agreement or by other parties should be refunded out of the first moneys realized from the sale of bonds of the corporation. Sold, that C., in obtaining the money, from the bank, acted solely as the agent of the associates, and that they were therefore under a quasi contractual obligation to the bank’s receiver to repay the same.</p>

Petition to Review Order of the District Court of the United States for the Southern District of New York. This cause comes here upon petition to review an order of the District Court which provided: (1) That the bank and Mrs. Kinney (petitioners) be stayed from further prosecution of an action instituted against the bankrupt corporation in the circuit court of Arkansas.

<p>In Error to the Circuit Court of the United States for the District of South Carolina, at Greenville.</p> <p>This is an action at law instituted in the court of common pleas for York county, S. O., and subsequently removed to the federal court of that state, to recover of' the defendants, the Southern Railway Company and D. G. McAllister, one of its locomotive engineers, damages arising from an injury sustained by the plaintiff, he having been struck by one of the company’s trains in charge of the defendant McAllister, at its depot in the town of Rock 1-Iill, S. C., on the 29th day of June, 1903. The facts are briefly that the plaintiff was, and had been for about three years, a shipping clerk of the Rock Hill Buggy Company, whose place of business was located on the western side of the tracks of the defendant company at Rock Hill; that the defendant company’s freight dejjot was on the same side of its tracks, and its passenger, express, and telegraph offices on the eastern side of said tracks; that about 11 o’clock on the morning of the 29th of June, 1903, the plaintiff, having occasion in the line of his employment to consult the defendant company’s depot agent relative to securing cars, went first to the freight depot to see him, and, failing to find him there, proceeded in the usual manner of travel across the tracks over to the passenger station to look for him in the ticket office and baggage’ and express room, and, failing to find the agent, he started back to hjs place of employment, and while proceeding across the tracks he was struck by the defendant company’s - train, receiving the serious injuries for which this suit is brought to recover damages.</p> <p>The defendant company’s passenger depot sat back a few feet from the tracks, and had two flights of steps leading from the depot platform to the ground, fronting the tracks, referred to in the evidence as the “southern steps” and the “northern steps,” the southern end of .the platform being wider than that of the rear portion. The northern steps were something longer than the southern, containing some seven or eight steps, and the bottoms of the two sets of steps each reached within six or eight feet from the tracks, leaving an open space between the depot and the tracks, and between the steps and the tracks, which, like the spaces between the tracks in front of said depot, were nicely graveled and ballasted, and along, upon, and over which the public habitually traveled, with the full knowledge, if not with the entire acquiescence, of the defendant company, in going from its passenger depot to the said freight depot on the opposite side, in a diagonal direction, or diagonally from the passenger depot to White street, to proceed thereon in a westerly direction. From either the northern or southern steps of the depot, or the space and walk way in front thereof, there was an unobstructed view of the tracks northward for some 250 to 800 yards. On the morning in question the passenger train from the north by which the plaintiff was injured was behind time. The testimony of the plaintiff is that upon leaving the express office to return to his place of business, and as he started down the northern steps, he looked for the delayed train due from the north; that he saw nothing of the same, and proceeded down the steps, and after getting down, and before going on the track, he again looked for the train, looking up the track where he could see some 300 yards, and, not seeing it, started across and down the track, and having proceeded a short distance, possibly some 30 feet, and after having made about two steps on the main line, “there was a flash as though the sun had gone under a cloud,” which was the first indication he had of the approaching train, and he wheeled on his left foot and started to move his right, when he was struck by a portion of the engine across the small of his back, and thrown on the pavement. Plaintiff further testified that after looking for the approach of the in-coming train, and as he proceeded across and down the tracks of the defendant company, his at tention was devoted to a shifting engine on the tracks on the opposite side, and in front of which he had to pass, and that he did not, after getting on the tracks, further look out for the incoming train.</p> <p>Plaintiff insisted that he sustained the injury sued for by reason of the negligence of the defendant company in running its delayed train in front of said depot, where plaintiff and others might be expected to be, at a reckless and dangerous rate of speed, without giving any warning or signal of its approach, and because, also, the said train was being operated in violation of the ordinance limiting the speed to 10 miles an hour prescribed by the town of Rock Hill, and in violation of the statute of the state of South Carolina, in that it failed to properly sound its whistle at a distance of 500 yards from where said railroad crossed White street, or said traveled place, and likewise failed, in violation of said statute, to keep its bell ringing until such street and traveled place had been crossed.</p> <p>The defendants on the other hand claimed that the plaintiff was not entitled to recover, because he carelessly and negligently placed himself suddenly in a position of imminent danger by stepping upon the tracks of the defendant company in front of one of its moving trains at a time it was impossible for the servants and agents of the company to avoid the injury, and that he therefore sustained his injuries by loitering upon the premises of the defendant company, and stepping in front of its moving train without taking proper care and caution for his own protection.</p> <p>Upon the issues thus joined, a jury was impaneled, and a large number of witnesses examined, some 15 for the plaintiff and 6 for the defendant, at the conclusion of which the lower court, on motion of the defendants, instructed the jury to .return a verdict in their ’favor, which was done, and judgment rendered in favor of said defendants, from which action of the court this writ of error was sued out.</p>

In. Error to the Circuit Court of the United States for the Eastern District of Texas.

<p>Appeal—Findings op Trial Court—Review.</p> <p>The findings of a trial judge, on an issue of fact raised on specifications to a bankrupt’s discharge, will not be disturbed on appeal, where an unprejudiced mind could reasonably have reached the conclusions arrived at by consideration of the entire evidence.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3979-3982.]</p>

<p>1. Maritime Liens—Jurisdiction to Enforce—Liens Given by State Statute.</p> <p>The admiralty courts of the United States have exclusive jurisdiction to enforce a maritime lien, whether created by the general maritime law or by a state statute.</p> <p>[Ed. Note.—For cases in point, see Gent. Dig. vol. 34, Maritime Liens, § 98.</p> <p>Maritime liens created by state laws, see note to The Electron, 21 G. C. A. 21.]</p> <p>2. Same—Statutory Liens—Repairs and Supplies.</p> <p>Whether a lien for repairs or supplies furnished to a domestic vessel exists by virtue of a state statute is to be determined solely by the provisions of such statute without reference to the limitations and conditions respecting liens on foreign vessels given by the general maritime law.</p> <p>3. Same—Pennsylvania Statute.</p> <p>Under Act Pa. June 24, 1895 (P. L. 251), which gives a lien on vessels for supplies or materials furnished for their building or repair under contract with the builders, masters, owners, agents, or consignees thereof, there is a presumption that supplies furnished to a domestic vessel, although on order of the owner, are so furnished on the credit of the vessel, and the lien exists unless it is affirmatively shown to have been waived.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Maritime Liens, § 103.]</p> <p>4. Same—Supplies Furnished to Foreign Vessel.</p> <p>Tile fact that coal to be supplied to a vessel in a foreign port was ordered by the owner when in her home port does not prevent the attachment of a lien therefor under the general maritime law, if such was the-intention of the parties.</p> <p>[Ed. Note.—For cases in point, seo Cent. Dig. vol. 34, Maritime Liens, § 46.]</p> <p>5. Same—Lien Given by State Statute—Jurisdiction of Court.</p> <p>A valid maritime lien created by a state statute for supplies furnished to a domestic vessel may be enforced by court of admiralty of any district which obtains possession of the vessel.</p>

<p>1. Post Office—Violation of Postal Laws—Indictment.</p> <p>An indictment, under Rev. St. § 3893, as amended by Act Sept. 26,. 1888, c. 1039, § 2, 25 Stat. 496 [U. S. Comp. St. 1901, p. 2658], lor depositing an obscene, lewd and lascivious letter in the mails, is not bad because it alleges that the offense was committed “on or about” a given date, where it shows that but a short time elapsed between the writing of the letter and the finding of the indictment; the defect being one of form only, by which the defendant was not prejudiced,- and to be disregarded under Rev. St. § 1025 [U. S. Comp. St. 1901, p. 720].</p> <p>[Ed. Note.—Nonmailable obscene matter, see note to Timmons v. United. States, 30 C. O. A. 79.]</p> <p>2. Same—Description of Offense.</p> <p>An indictment, under Rev. St. § 3893, as amended by Act Sept. 26, 1888, c. 1039, § 2, 25 Stat. 496 [U. S. Comp. St 1901, p. 2658], held to sufficiently charge that defendant deposited an obscene letter in a post office “for mailing or delivery,” although not in such language, where the plain and reasonable moaning of the language used is that such was the purpose with which the letter was deposited in the post office.</p> <p>3. Same.</p> <p>In Roy. St. § 3893. as amended by Act Sept. 26, 1888, c. 3039, § 2, 25 Stat. 496 [U. S. Comp. St. 1901. p. 2658], which declares unmailable “every obscene, lewd, or lascivious book, pamphlet * * or other publication of an indecent character,” the words “indecent character” qualify only the words “other publication,” and, in an indictment for its violation by mailing of a letter, it is not essential that the letter be described as of an indecent character, in addition to describing it as obscene, lewd, and lascivious.</p> <p>4. Same.</p> <p>An indictment, under Rev. St § 3893, as amended by Act Sept. 26, 1888, c. 1039, § 2, 25 Stat. 496 [U. S. Comp. St. 1903, p. 2658], for depositing in a post office an obscene, lewd, and lascivious letter, sufficiently describes the loiter, where it sets out sufficient thereof to- identify it, and alleges that the contents are so obscene, lewd, and lascivious as to be improper to spread on the records of the court, and, if the defendant desires more specific information as to such contents, he may apply for a bill of particulars.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 40, Tost Office, § 70.]</p> <p>5. Criminal Law—Punishment—Cruel and Unusual Punishment.</p> <p>Rev. St. § 3893, as amended by Act Sept. 26, 1888, e. 1039, § 2, 25 Stat. 496 [U. S. Comp. St. 1901. p. 2658], which fixes the punishment for depositing obscene, lewd, or lascivious matter in the mails at a fine of not more than $5,000. or imprisonment at hard labor for not more than five years, or both, is not in violation of the eighth constitutional amendment, as imposing or authorizing an excessive fine or a cruel and unusual punishment.</p> <p>6. Same—Evidence—Opinion Testimony as to Handwriting.</p> <p>Witnesses who testify that they have seen a defendant write, and believe they know his writing, although having only a limited acquaintance therewith, may properly be permitted to give an opinion as to whether a certain letter was written by him.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1055.]</p> <p>7. Same.</p> <p>It is competent for an expert in handwriting to give an opinion from an inspection of a writing whether it is in a genuine or a disguised handwriting.</p> <p>8. Same—Appeal—Review—Discretion of Triad Court—Mailing Obscene Letter—Evidence.</p> <p>Whether or not a writing charged to have-been deposited in a post office in violation of law is too obscene, lewd, and lascivious to be spread upon the records is a question which it is within the discretion of. the court to determine, and its action thereon cannot be assigned as error.</p>

I'n Error to the Circuit Court of the United States for the Eastern District of New York.

<p>Banks and Banking—Right to Appropriate Deposit—Effect of Receivership.</p> <p>The right given to a bank by a contract with a depositing and borrowing corporation to declare any indebtedness of the corporation due and payable at once in case of its insolvency and to apply tbereon any money, credits, or other property of the corporation then in the bands of the bank does not create a lien on any such funds or credits, but merely gives the bank an oiition which cannot be exercised after a receiver has been appointed for the corporation in insolvency proceedings.</p> <p>Buffington, Circuit Judge, dissenting.</p>

District of New York. This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, dismissing a bill in equity for infringement of a patent. The patent is reissue No. 12,037, dated September 30, 1902, original No. 589,168 (August 31, 1897), to Thomas A. Edison for a kinetoscope. The opinion below will be found in 144 Fed. 121.

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

<p>In Equity. Suit for infringement of patents. On motion for preliminary injunction.</p>

<p>Patents—Suit fob Infringement—Bond to Secure Recoveby.</p> <p>In fixing the amount of a bond required of defendant in a suit for infringement of patents as a condition to the refusing of a jneliminary injunction, the amount of the profits made by him from the alleged infringement affords the only approximate basis for computation.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 38, Patents, § 500.1</p>

<p>In Bankruptcy.</p>

<p>At Daw. On demurrer to plea in abatement.</p>

<p>Admiralty—Practice—Finding op Commissioner.</p> <p>A finding of facts by a commissioner in admiralty, based on conflicting testimony of witnesses wbo testified before bim, will not be disturbed, except for clear mistake or error.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Admiralty, § 770.]</p>

In Equity. . Suit by A. K. Godfrey, a citizen of Minnesota, on behalf of himself and all other stockholders in the defendant Sunrise Mining… Held: except one about July, 1899, and one held on April 13, 1900, at which the matters complained of were discussed, but no action was taken, and that ever since the board has refused to call a meeting, or to consider the wrongs done to the company; that complainant about March 28, 1900, addressed a letter to the members of the board,…

Action in equity for the cancellation of a bond written by the Fidelity & Deposit Company, a corporation of the state of Maryland, for said defendants Carrie H. Moshier and James C. Moshier, as administrators of the estate of Charles Moshier, deceased, on the ground of fraudulent representations made and of thd fraudulent concealment of alleged material facts at the time said bond was written and delivered, and which, it is alleged, induced the writing and delivery of said…

<p>1. Tkade-Mabks and Tbade-Names—Suit fob Uníais Competition—Defenses.</p> <p>The claim that a conveyance by one manufacturing corporation to another of all its property, including its trade-marks, trade-names, brands, and labels, contains a provision, in violation of the anti-trust law of the United States, is not available as a defense by another manufacturer when sued for infringement or unfair competition in respect to a trademark, brand,' or label, where it is shown that the same has been con tinuously used by the grantee as its own, since a time prior to tbe commencement of the alleged infringement or unfair imitation.</p> <p>LEct. Note.—Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare et al. v. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Same—'Unfair Competition—Simulation op Dkess.</p> <p>Complainant and its predecessors in business from about 1880 made .and sold a brand of plug tobacco known as ‘•Schnapps,” and in 1894 commenced placing upon the plugs tin tags of rhomboid shape, and having a dark background with the word “Schnaxjps” thereon in red letters slanting backward, which tag, as shown by the evidence, was novel and distinctive. During the following 12 years nearly 800,000,000 of such tags were used, and also several millions of advertisements, hangers, etc., were sent out having' thereon pictures of such tag which came to be-known throughout the Southern states as the distinctive mark of the Sehnapps brand. Many of the retail customers were unable to read, but identified complainant’s tobacco entirely by the tag, and the size and shape of the plug. Later defendant put upon the market a cheaper grade of tobacco in plugs of the same size and shape, and with tags thereon of the same size, shape, style, and colors; the only difference being in the name which was “Traveller” instead of “Schnapps,” which difference could not be distinguished at a short distance. The evidence showed that the simulation was intended to, and did in fact, deceive customers who intended to buy complainant’s product. Held, that such simulation constituted unfair competition and entitled complainant to an injunction.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 81.1</p>

<p>1. Commerce—Regulation by Congress—Interstate Commerce Defined.</p> <p>“Interstate commerce” comprehends intercourse for the purposes of trade in any and all of its forms, including transportation, purchase, sale, and exchange of commodities between the citizens of different states; and if any commercial transaction reaches an entirety in two or more states, and if the parties dealing with reference to that transaction deal from different states, then the whole transaction is a part of the interstate commerce of the United States, and subject to regulation by Congress under the Constitution.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Commerce, §§ 1-5.]</p> <p>2. Monopolies—Combinations in Restraint of Interstate Commerce.</p> <p>The essentials of a contract or combination or conspiracy in restraint of trade or commerce among the several states or to monopolize any part, of such trade or commerce, inhibited - by the Sherman Anti-Trust Daw of July 2, 1890, c. 047, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], discussed in a charge to a grand jury.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 35, Monopolies, §§ 8-14.]</p>

<p>1. Internal Revenue—Recovery op Tax Paid—Action—Parties—JoinderInterest.</p> <p>Rev. St. Mo. 1899, § 542 [Ann. St. 1906, pp. 581, 583, 745], provides tfcat all parties having an interest in the object of an action may be joined as plaintiff. Section 544 declares that both as to actions at law and in equity-parties united in interest must join, and if one refuses he may be made a defendant; and section 707 provides that judgment may be given for or against any one or more plaintiffs or defendants, and the judgment will determine the respective rights of the parties. Held that, where an internal revenue tax was wrongfully assessed against three cestuis que trust under a will and was jointly paid under -protest by' the trustees, such trustees and beneficiaries were entitled to join in a single suit against the internal revenue collector to recover the same.</p> <p>2. Same—Nature op Obligation.</p> <p>Where an internal revenue tax was erroneously assessed and collected by the government on an inheritance and was paid by the trustees under protest, the collection thereof by the internal revenue officers did not constitute a tort on the part of the government, which was under a quasi contractual obligation to repay the amount so collected under Const. Amend. 5, providing that private property should not be taken for public use without just compensation.</p> <p>3. Same—Persons Liable.</p> <p>Act Cong. June 13, 1898, imposing an internal revenue tax on certain legacies, required the executor to sign a statement to the collector and to pay the tax to him, and section 30 gave the Commissioner of Internal Revenue control of the assessment. Rev. St. §§ 3182, 3183 [U. S. Comp. St. 1901, pp. 2071, 2072], required the collector to pay the tax into the treasury, and declared that on the death of the collector all lists should be transferred to his successor; and Act Cong. Eeb. 8, 1899 [U. S. Comp. St. 1901, p. 097], declared that an action against such collector should not abate by his death, but his successor should be substituted as defendant. Held that, where the collector wrongfully received an inheritance tax on bequests which were not taxable, on his death the liability to refund was enforceable against his successor in office, it being the duty of the Commissioner to pav any judgment rendered against the collector aw provided by Rev. St. § 3220 [U. S. Comp. St. 1901, p. 2086].</p>

<p>1. Courts—Jurisdiction of Federal Courts—Federal Question.</p> <p>A suit by a street railway company claiming in good faith to have a contract with a city giving it a perpetual right to operate its cars in the streets of the city to enjoin the city from impairing such contract by enforcing an enactment of its council treating the company as a trespasser and requiring the removal of its tracks from the streets is a suit arising under the Constitution of the United States of which a federal court has jurisdiction regardless of the citizenship of the parties.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 13, Courts, §§ 820-824.</p> <p>Jurisdiction of federal courts in actions involving federal • question, see notes to 11 C. C. A. 308, 35 C.' C. A. 7.]</p> <p>2. Constitutional Law—Impairment of Contracts—Law of State.</p> <p>A resolution of a city council directing the removal from the streets of the tracks of a street railway company is a law of the state, within the meaning of the contract clause of the federal Constitution, where under the state law the resolution is as effective for the intended purpose as an ordinance would be.</p> <p>3. Courts—Jurisdiction of Federal Court—Federal Question.</p> <p>That a state Constitution contains a provision prohibiting the passage of any law impairing the obligation of contracts does not deprive a litigant of the right to invoke the similar provision of the federal Constitution in a suit which involves the question of its violation.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Courts, § 821.]</p> <p>4. Street Railroads—Grant of Franchise—Construction of . Ordinance.</p> <p>In 1866 the city of Des Moines passed an ordinance granting to a street railway coinpany and its successors and assigns the right to lay tracks in any of the streets of the city, and to “operate thereon cars in the manner and for the time and upon the conditions hereinafter mentioned and prescribed.” A subsequent section provided that the right granted “shall be exclusive for the term of 30 years,” and that the city should not, “until after the expiration of said term, grant to or confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company.”’ At that time there was no statute of the state of Ioiva specifically conferring on cities the power to grant franchises to street ■ railroad companies, but such grants were afterward legalized by the Legislature, and there is no statute limiting the term for which such grants may be made. At all times until the year 1905 the city in ihany ways recognized the franchise as in force, and after the expiration of the 30-year term required complainant, which had succeeded to the property and franchise of the original company, to pave streets, and construct new lines at large expense. In 1900 the city council passed a resolution treating complainant as a trespasser, and ordering all of its 70 miles of tracks removed from the streets. Held, that the ordinance granted a franchise in perpetuity, its exclusive character only being terminated at the end of the 30 years, and created a contract which th'e city could not impair; that complainant was entitled to an injunction restraining the enforcement of the resolution on that ground, and also on the further ground that the city was estopped by its acts from insisting upon a different construction of the contract.</p>

<p>1. Public Lands—Forest Reserves—Regulations.</p> <p>Article 4, § 3, of the federal Constitution, which provides that “Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” conferred ample authority on Congress to enact the legislation authorizing the establishing of forest reserves on the public lands and the making of rules and regulations by the Secretary of the Interior “to insure the objects of such reservations” and the rules and regulations so made as contained in the compilation of October 3, 1903, relating to the grazing of stock on such reserves are within the authority so conferred, and reasonable and valid.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Public Lands, § 135.]</p> <p>2. Same—Validity of Regulations—State Policy or Laws.</p> <p>The United States government has always maintained its right to the exclusive possession of the public lands, although such right has not always been exercised, and the policy of a state to permit live stock to run at large and graze on all open lands, or its laws enacted to carry such policy into effect, cannot affect the right of the general government to require stockowners to restrain tlieir stock from grazing on tlie national forest reserves except under prescribed regulations.</p> <p>[Ed. Note.-—-For cases in point, see Cent. Dig. vol. 41, Public Lands, § 23.]</p> <p>3. Same.</p> <p>Ordinance No. 1, Const. Mont., providing tbat “the people inhabiting the said proposed state of Montana do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof,” which was adopted pursuant to the requirement of the enabling act, under which the state was organized, was a clear recognition of the exclusive authority of the general government over the public lands within the state. • •</p> <p>[Ed. Note.—For casés in point, see Cent. Dig. vol. 41, Public Lands, § 7.]</p>

<p>1. Corporations—Foreign Corporations—Riam to Maintain Suit.</p> <p>Laws N. Y. 1892, p. 1805, c. 687, § 15, provides that no foreign corporation shall do business in the state without first complying with its requirements and procuring a certificate from the Secretary of State, and that no foreign corporation doing business without such certificate shall maintain any action in the state upon any contract made by it in the state until it shall have procured such certificate. Laws N. Y. 1896, p. 856, c. 908, § 181, requires every foreign corporation to pay a license fee for doing business in the state, and provides that no action shall be maintained in any of the courts in the state by such a corporation without a receipt fol such license fee. Held, in the absence of any decision by the state Court of Appeals so construing them, that neither of such statutes made a contract by a foreign corporation which had not complied therewith void, and that the corporation could maintain an action thereon in a federal court</p> <p>2. Pleading—Sufficiency of Allegations.</p> <p>Mere recitals contained in a pleading, especially those by way of argument or legal conclusion, are not sufficient allegations of fact.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 38.]</p> <p>3. Same—Oountebclaim.</p> <p>An answer alleging that plaintiff agreed to pay all of its debts and liabilities with all due speed, and that it did not do so, “but allowed certain of said debts and liabilities to remain outstanding and unpaid whereby the defendant was damaged” in a sum stated, states no facts which constitute or show a valid counterclaim for such sum.</p> <p>4. Same.</p> <p>A counterclaim must state facts showing a cause of action in favor of the defendant, and against the plaintiff, and, where a number are set up in the same pleading, while it is not necessary to repeat in each all of the facts necessary to make it complete, such facts must be contained in the pleading and be intelligibly referred to.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 39, Pleading, §§ 29A-296.]</p>

<p>1. Municipal Corporations—Validity op Ordinance.</p> <p>Where the Legislature has conferred upon a municipal corporation in express terms the power to do a specific thing, an ordinance passed pursuant thereto cannot be impeached in the courts, because it would have been unreasonable if passed in the exorcise of a general or incidental power, there being no question of fraud or oppression raised.</p> <p>2. Same—Power to Regulate Oemkteiuk»—Pennsylvania Borough Act.</p> <p>The power conferred on boroughs by the Pennsylvania borough act of 1851 (P. L. 322. § 2, els. 10, 17) “to prohibit within the borough the burial or interment of deceased persons, or wiihin such partial limits within the same as they may from time to time prescribe,” and “to malte such other regulations as may be necessary for the health and cleanliness of the borough,” may properly be exercised by the passage of an ordinance by the borough council, and such an ordinance prohibiting the establishment of any new cemetery within the borough or any burials except within the limits of existing cemeteries is within such-power and valid.</p> <p>3. Cemeteries—Lands Constituting Cemetery.</p> <p>Certain persons obtained an option for the purchase of a tract of land of 90 acres. Three acres were to be purchased separately and the remainder by a latex date stated. The three acres were purchased and paid for and devoted to cemetery purposes, tlie bodies from an existing cemetery being moved and reburied thereon. After this the borough passed an ordinance x>rohibiting the establishment of any new cemetery therein, or “the enlargement of the existing cemeteries or burying grounds within the borough, by adding thereto or using for the purposes of interment ground not nowr owned by the owners of such cemeteries or burying grounds.” Prior to this the purchasers of the three acres had organized a cemetery association to which such land was afterward transferred, and which still later completed the purchase of the remaining 87 acres largely on credit and by payment in its stock. The greater part of the stock was issued to the promoters, and the association being unable to sell its treasury stock was without funds. The 87 acres was not subdivided into lots nor prextared for cemetery purposes, nor were any burials made therein, and at the end of three or four years the land was sold in foreclosure proceedings to an individual purchaser. Held, that such land was not an established cemetery at the time of the ordinance, within the meaning of such ordinance, and that the purchaser was not entitled thereunder to use it for cemetery purposes.</p>

<p>In Admiralty. Libel in rem and in personam lor demurrage.</p>

<p>In Equity. Suit for injunction.</p>

<p>1. Bankruptcy—Powers of Court—Compelling Return of Property.</p> <p>A court of bankruptcy has jurisdiction by a summary order to compel the return of property forcibly taken from the possession of its receiver or a trustee.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 447.] _ _</p> <p>2. Same—Recovery of Property—Contract'for Sale or Return.</p> <p>Where a pair of horses were delivered to a bankrupt a few days prior to his bankruptcy under an agreement for their sale to him at a stated price, but subject to his right to return, them if not satisfactory after trial, and he, In fact, never tried them, hut iaey remained in his possession and passed to his receiver in haidcrupicy, the transaction svas one of sale or return by which, under the American rule, the title passed to the bankrupt subject to be divested if the option to return should be exercised, and the seller could not reclaim the property.</p>

<p>1. Carriers—Injuries to Passengers—Sleeping Cars—Equipment.</p> <p>Plaintiff, a passenger in a sleeping car on defendant’s railroad, was thrown down while in the ladies’ dressing room, by the swing of the car as the train passed around a curve going at its ordinary speed. The car was constructed according to pattern uniformly used by the makers, which was considered the best, but the ladies’ dressing room was not-equipped with handholds affixed to the walls, nor with any seat or chair. Cars of the type in question had been operated for years with safety, and plaintiff’s injury was the first of its kind that the sleeping car company had ever known. Held, that the failure to equip the dressing room with seats and handholds did not constitute negligence per se.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1177-1179.]</p> <p>2. Same—Care Required.</p> <p>While a carrier of passengers is required to use.the utmost diligence and -care in providing reasonably safe oars, such carrier is not an insurer of the absolute safety of its passengers, but has discharged its duty in respect to its ears and trains when it has supplied the best instrumentalities that a highly prudent person would have supplied in the same business in the then known condition of the art and business.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 9, Carriers, §§ 1085, 1168.]</p> <p>3. Same—Dressing Rooms in Sleeping Cars.</p> <p>While a carrier as between itself and the passenger cannot transfer or shift its duty to a sleeping car company whose ears it hauls, yet the carrier’s duties relate to safe transportation, and do not include the duty to provide dressing rooms for passengers.</p> <p>4. Trial—Direction of Verdict—Federal Courts.</p> <p>As the scintilla of evidence rule does not apply in the federal courts, a case tried in such court should not be taken from the jury, unless when, the testimony is considered most favorably to plaintiff, and when the plaintiff has also received the full benefit of every reasonable and fair inference to be drawn therefrom, the court would still feel bound to set aside a verdict returned in plaintiff’s behalf.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 320, 338, 360, 379, 383.]</p>

<p>In Bankruptcy. Certificate from referee concerning claim of William Kline.</p>

<p>Í. Death—Persons Liable—Statutory Provisions—Employé of Carrier.</p> <p>Rev. St. 1899 § 2864. as amended by Laws 1905, pp. 135-137 [Ann. St 1906, p. 16371, providing that whenever any person, including an employé of the corporation or individual hereinafter referred to, whose death is caused by the negligence of a eo-employé thereof, shall die from an injury resulting from or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or empioyé, whilst running, conducting, or managing any locomotive, car. or train of cars, or any street car. or of any master, pilot, engineer, agent, or employé-whilst running, conducting, or'managing any steamboat, or of any driver of any stage, automobile, or other public conveyance, whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from any defect or insufficiency in any railroad, or in any locomotive, ear, street car, steamboat, stage, automobile, or other public conveyance, the corporation, of individual in whose employ any such officer, agent, servant, master, pilot, engineer, or driver shall be when such injury is committed, or who owns, operates, or conducts any such railroad, locomotive, car, street car, automobile, coach, or other public conveyance when any injury is received resulting from or occasioned by any defect or insufficiency, unskillfulness, negligence, or criminal intent above declared, shall forfeit and pay as a penalty for every such person, employe, or passenger so dying not less than $2,000, nor more than $10,000, in the discretion of the jury, which may be sued for and recovered by persons bearing specified relations to deceased—gives no right of action against an employe of the carrier, but only against the carrier.</p> <p>2. Removal • ov Causes—Diverse Citizenship—Separable Controversies— Allegations in Pleadings.</p> <p>Where the petition against a railroad company and an individual for death of an employe of the company and the petition of the company for removal of the cause show that the individual defendant, a resident of the state, is a mere employe of the company, against whom no recovery can be had under the statute on which the action is based, so that there is no joint liability, the mere subsequent allegation in plaintiff’s petition that “defendants” negligently did certain things, is ineffective to prevent the company, a nonresident, from removing the cause to the federal court.</p> <p>8. Same—State Court Proceedings—Injunction.</p> <p>Where the cause is properly removed to the federal court, and plaintiff In the suit undertakes to ignore the removal, and to proceed with the prosecution of the case in the state court, the federal court will restrain plaintiff from such threatened prosecution.</p> <p>[Ed. Note.,—Dor cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 209.]</p>

<p>In' Bankruptcy.</p> <p>The following is the opinion of the referee:</p> <p>This matter comes before me upon the petition of Rebecca E. Crenshaw, trustee for Marian Crenshaw, filed October 23, 1906, and the answer of the. trustee in bankruptcy thereto, filed October 24, 1906. From the testimony taken before me and the record offered in evidence, I find the following facts:</p> <p>The Arkonia Fabric; Manufacturing Company is a corporation incorporated-under the laws oí tiie state of Michigan on January 26, 1905, by J. F. Su.livan, Joseph 0. Sullivan, John N. Annut, Albert Crenshaw, and Rebecca E. Crenshaw. By its articles of incorporation its capital stock is fixed at $23,000; the shares being divided into 2-30 of tbe par value of $100 each. In Feoruary, 1903, the corporation issued 190 shares, 119 of which were owned by the Crenshaw family, thus giving them a substantial majority of the snares issued. In February, .1900, an additional 25 shares were issued to John Y. Hoag, making the total number of shares issued 215, of which 119 shares held by the Crenshaw family still remained the majority. Albert Crensnaw and Rebecca E. Crenshaw, his wife, were members of the board of directors of the corporation; Albert Crenshaw being also the president thereof. David II. Calhoun, lather of Rebecca E. Crenshaw and pwner of 28 shares of stock of the corporation, died August 12, 1905, and by his will, probated at Philadelphia, he devised certain real estate to his said daughter in trust for his granddaughter Marian, giving to his said daughter, trustee as aforesaid, power to sell the said real estate and to reinvest the proceeds “in some other security.” In pursuance of this power Mrs. Crenshaw sold the real estate about January 1, 1800, realizing therefrom the sum of $8,521.20. At üie time of the sale of this real estate the Arkonia Fabric Manufacturing Company was in need of money, and oil January 8, 1900, the moneys received by Mrs. Crenshaw from the sale of the real estates were paid into the treasury of the Arkonia Fabric Manufacturing Company. The difficulty that presented itself to Mrs. Crenshaw, as trustee for her daughter under the will of David H. Calhoun, was obvious. She was about to invest these trust funds in a security not authorized by the law. Her attorney, Arthur Colville, Esq., since deceased, advised her that she could not legally invest these funds in the business of the corporation or make a loan to it. In her testimony Mrs. Crenshaw adds that her attorney then advised her to make this loan, provided the corporation would give her a bill of sale of its machinery. In view of other testimony in ¡the case, I do not believe that this advice was then given to Mrs. Crenshaw; but if it was given it was not acted on, and not agreed to by the corporation.</p> <p>The question as to whether an actual agreement was entered into between Mrs. Crenshaw and the corporation on January 8, 1806, when the money was paid over to the corporation, is of great importance in this proceeding. Much light is thrown upon it by the documentary evidence in the case, and 1 find as a fact that no agreement was made at that time. The money was needed and paid over and the proper method for securing Airs. Crenshaw as trustee for her daughter was left to the future. The fact that Mr. and Mrs. Crenshaw practically owned or controlled a majority of the stock of the corpora^ lion seems to have' been their justification for paying this money into the treasury without fixing the terms upon which the payment was made. This seems to have been a matter of considerable discussion between the Crenshaws and the other directors of the corporation. On January SO, 1906, Joseph C. Sullivan, the then treasurer of the corporation, wrote a letter to Mr. Crenshaw in which he states that it was at first agreed that Mrs. Crenshaw’s money should he put into the business and that she should take stock for the same: but this being found illegal, Sullivan called on Mr. Colville, the attorney in Philadelphia, for further information as to the legal status of the matter, and thereupon Sullivan suggested that as she could not legally invest the money in the corporation, or make a loan to the corporation direct, that she make a loan of this money to the officers of the corporation, and secure it by the treasury stock as colla íeral. ’Filis plan does not at first seem to have met with Mr. Crenshaw’s approval, but was afterward practically acted upon and carried ont.</p> <p>On April 2, 1906, the first annual meeting of (he stockholders of the company was held at Detroit. R. E. Crenshaw and Albert Crenshaw were represented at this meeting by proxy, and it was resolved “that this corporation issue to J. O. Sullivan and Albert Crenshaw certificates of stock for 1 l\i¡ shares -—being in all 85 shares of this corporation—in lieu of a hill of sale made by them transferring to the Arkonia Fabric Manufacturing Company 22 broad looms, and all beaming supplies thereto annexed now in the possession of the Arkonia Fabric Manufacturing Company in tbeir plant at Philadelphia.” By this resolution the attempt was apparently made to meet the difficulty arising by reason of the fact that the funds invested by Mrs. Crenshaw were trust funds. The 22 broad looms referred to in this resolution were already in the possession of the company; title to them appears, according to this resolution, to have been in J. C. Sullivan and Albert Crenshaw. Whether title was actually in them, or whether this was a mere fiction agreed to by the directors of the corporation for the purposes of their resolution does not appear from the testimony. By this resolution, whatever may have been the fact, the corporation recognized the title of J. C. Sullivan and Albert Crenshaw, and agreed to accept their bill of sale for these looms, and to issue to them 35 shares of stock ins lieu thereof. On the same date, to wit, April 2, 1906, Mr. John N. Anhut, a member of the Detroit bar and a director of this corporation, wrote to Mr. Albert Crenshaw, then living at West Millbury, Mass.; his letter, taken in connection with the resolution of the corporation, explains the situation. The purchase price of the machinery which was installed in the Philadelphia plant was $3,500. This was about the amount paid by Mrs. Crenshaw to the corporation. The two certificates of stock of 17% shares each, issued to Mr. Sullivan and Mr. Crenshaw, represent an interest of $3,500 in the corporation. These certificates, after having been signed by Mr. Sullivan as treasurer, were forwarded to Mr. Crenshaw, with the request that he sign them and likewise sign a promissory note to the order of Mrs. R. E. Crenshaw, trustee for Marian Crenshaw, for $3,000, and then indorse the same individually as Mr. Sullivan had done, then, also, to indorse the certificate for 17% shares, whereby Mrs. Crenshaw would have as collateral security for her $3,000, $3,500 worth of stock of the company, the company’s note, and- Mr. Sullivan and Mr. Crenshaw as personal sureties. According to this letter, Mrs. Crenshaw’s payment to the company was not $3,521.20, but $3,000. This may be due to the fact that a portion of the $3,521.20 paid in by her was afterward paid out by the corporation on her account, leaving the net balance due to her of $3,000. ‘</p> <p>It is admitted that the letter of April 2, 1906, was received by Mr. Crenshaw. Although he signed page 37 of the minute book of the corporation, which is part of the record beginning on page 35, he denies ever having seen page 35 of this record. In the face of the statement appearing in the letter of Mr. Anhut, admittedly received by Mr. Crenshaw, and dated on the same day that the meeting of the corporation took place, Mr. Crenshaw’s denial of knowledge of the contents of the record book as of that date'is of no avail. Mrs. Crenshaw testified that after the receipt of the two certificates of Í7% shares each, she promptly sent them back. Mr. Crenshaw does not appear to remember whether she returned the certificates or not, nor does Mrs. Crenshaw remember whether she returned them with or without a letter to Mr. Sullivan. It is a fact, however, that the promissory note was signed by Mr. Crenshaw as president, and indorsed by him individually and kept by' him. It furthermore is a fact that the certificates of stock were signed by Mr. Crenshaw as president and that one of them, to wit, certificate No. 17. was transferred by him in blank. Both of these certificates appear in the stock certificate book, pasted to their respective stubs, and marked in pencil “Canceled Anhut Sec’y.” It thus appears that at some time'after April 2, 1906. these certificates were returned, and came into the possession of Mr. Anhut, and were marked by him “canceled.” Mrs.. Crenshaw alleges that she did this because she had all the while refused to accept stock in the corporation, insisting upon a bill of sale of the machinery. This may be true, but it does not establish the fundamental fact upon which her right, as alleged in her petition of October 23, 1906, is founded, that “it was agreed by and between the said Arkonia Fabric Manufacturing Company and your petitioner, trustee as aforesaid” that the loan should be made, and that, as security for the repayment of the loan, the corporation would execute and deliver a bill of sale of its looms, machinery, office fixtures, and personal property. It is quite obvious that no such agreement was made at thát time.</p> <p>On April 10, 1906, Mr. Crenshaw wrote to Mr. Sullivan, giving, among other things, his understanding of the list of shares outstanding of the corporation and among these he states: “J. C. Sullivan and A. Crenshaw 35 shares.” It thus appears that although these certificates had been received a day or two after April 2d, they had not been repudiated on April 10th. On April 11th a letter was written by Mr. Sullivan to Mr. Crenshaw, _ wherein these shares ai’e referred to as follows:' “J. C. S. and A. C. machinery account has secured for R. E. Crenshaw 35 shares.” It thus appears that between April 2d and April 10th all parties, were in agreement as to the propriety of the action with regard to the transfer of the.. 35 shares of stock tí) secure Mrs. Crenshaw. It seems to me from the aboye facts, and from other facts in this case, to be referred to hereafter, that the return of the certificates of stock to Mr. Anhut was an afterthought.</p> <p>If it be assumed as, in my opinion, it must be, that the payment by Mrs. Crenshaw, although intended for the benefit of the corporation, was made in a round-about way. and that the matter was consummated by the resolution of April 2, 1906, it will explain an erasure appearing in the cash book of the -corporation, on page 29 thereof, as of the date of January 8, 1906. This entry as it now appears is as follows:</p> <p>Loan to R. E. Crenshaw........................ $ 2,000 00</p> <p>Arkonia “ “ ........................ 1,521 20</p> <p>I am unable to say what the original entry was, but it was probably an entry conforming to the facts, and, when finally it was determined to execute a bill of sale for the benefit of Mrs. Crenshaw, this entry was altered to conform thereto.</p> <p>In April, 1906, the finances of the corporation were not in good condition. This is shown by a resolution as of the date of April 2, 1906, whereby the president and treasurer authorized the corporation to assign its book accounts as collateral for money advanced thereon by the Philadelphia Commercial Company of Philadelphia. It appears from the testimony that the company thus designated was, in fact, the Commercial Trust Company of Philadelphia. The testimony shows that the book accounts of the corporation were hypothecated as rapidly as goods were sold. Difficulty was experienced in getting the plant in Philadelphia in proper operation, and it appeared necessary to make changes in the personnel of the board of directors, to give up the office in New York and in Millbury, Mass., and to concentrate the business of the company in Philadelphia. Some time before May 15, 1906, at a meeting held in New York, it was made clear that the business of the corporation was not in good condition. 'On or about May 24, 1906, Mr. and Mrs. Crenshaw left their home at West Millbury and came to Philadelphia. Creditors began pressing for payment, Mr. Crenshaw contemplated leaving the company and taking another position, the company contemplated changing its name and in fact, according to the testimony of its then secretary, Mr. Hoag, it did adopt the name of Dunblane Mills, and conducted some correspondence under that name, and there was every indication to those who had control of the business of the corporation that it was approaching a condition of insolvency. The condition of the cash book is a significant feature in this connection; no entries appear in it subsequent to April 19, 1906. The schedules in bankruptcy, which were subsequently filed by the corporation, show that on September 7, 1906, the date of the filing of the petition in bankruptcy, the assets consisted of $-100 worth of stock in trade, $220 of hook accounts and $16 in cash, making a total of $636, with liabilities of $623.43 entitled to priority and $11,470 upon unsecured claims. This condition of hopeless insolvency existed on August 29, 1906, the date when, under proceedings commenced in the court of common pleas, the sheriff went into possession of the premises occupied by the bankrupt, and, according to the testimony, was the same condition that existed on July 24, 1906; this date having been selected for comparison, because it was the date upon which a certain bill of sale was executed by the corporation to Mrs. Crenshaw. Mr. Crenshaw, the president, and Mr. Hoag, the secretary of the corporation, testified that on July 24, 1906, the corporation was solvent, hut their cross-examination establishes the fact that there was no change in the value of the assets of the corporation between July 24th and August 29th, except such as might be accounted for by depreciation on account of loss of good will. Mr. Crenshaw testified that excluding the machinery held on lease and excluding the machinery claimed by Mrs. Crenshaw the corporation’s assets on July 24th were worth $15,000 as against liabilities of $14,000. There is no foundation, in tact, for this statement, and all of the testimony points to a contrary conclusion, and 1 therefore find that on July 24, 1906, the corporation was insolvent and that Albert Crenshaw, its president, and John Y. Hoag, its secretary, knew that it was insolvent at that time. ‘</p> <p>When ’the hopelessness of the situation was clear to the parties interested an attempt was made' to save a portion of the assets from the impending catastrophe. The money which had been left by Mr. Calhoun to his daiighter, in trust for his granddaughter, had been sunk in the business of this corporation, and as the corporation was in practical control of the- parents of the cestui que trust, they toolo such action as they thought best adapted to save some of th'is property for their daughter; and on July 24. 1906, the corporation, acting by Albert Crenshaw', president, and John X. Hoag, secretary, executed and delivered a bill of sale to It. 15. Crenshaw, trustee for Marian Crenshaw, for the looms, machinery, office fixtures, and all personal property of every kipd and description situated on the third floor of 1015 Diamond street, Philadelphia, and made a formal technical delivery of the said assets by marking the same with a small paper tag containing the name of R. E. Crenshaw, trustee. And thereupon, on the same date, Mrs. Crenshaw', as such trustee, demised and leased the same property to the company at a monthly rental of $50; the entire transaction having been concluded without any actual change of possession of the machinery, etc., in question. I have nó doubt that this action was taken because of the known condition of insolvency of the company, and the testimony satisfies me, and I find as a fact that both Albert Crenshaw and Rebecca E. Crenshaw had reasonable cause to believe that the corporation was insolvent on that date. They knew that the liabilities w'ere about $14,000, and that, with the exception of the property held by the corporation on lease, and the property sought to be taken hv Mrs. Crenshaw, there was practically nothing with which to pav these liabilities. It is true that Mrs. Crenshaw disclaims such knowledge, but notwithstanding her disclaimer, I am forced to the conclusion that her position as a director of the corporation, the fact that her husband was president, her active mind and intelligence, her knowledge that the business of the corporation was bad at the'time of the New York meeting, held before May 15th, and her discussions with her husband and Mr. Hoag must necessarily have given her such information*and knowledge of the condition of the company as to lead her to the conclusion that it was insolvent, or at least to give her such reasonable notice of its condition as to amount by inference to knowledge of its insolvency. On August 29, 1906, the sheriff took possession of the premises of the Arkonia Fabric Manufacturing ComiJany, and on September 7th a petition in bankruptcy was filed against it. A receiver was appointed with whom the petitioners entered into an agreement that the machinery, etc., claimed by the petitioner should be sold at public sale by the receiver, and the fund held as a special fund to await the determination of the title to the property claimed. The adjudication in bankruptcy was entered October 5, 1906.</p> <p>I have reached my conclusions as to the facts in this case with some regret. A fund intended for the benefit of a minor child has been lost in what was practically 'the business of the parents. An attempt is here made to retake from the bankrupt estate a portion of the moneys thus invested in it, but, unfortunately, 'the rights of creditors have intervened and the equities of the cestui que trust are met by the equities of the creditors.</p> <p>In view' of the foregoing findings of fact, an elaborate discussion of the questions of law' submitted to me by counsel is unnecessary. It is contended by counsel for the petitioner that the bill of sale given on July 21, 1906, was not a sale but an assignment of the property described therein as collateral security for the loan made on January 8, 1906, and that the hill of sale waa made in pursuance of an agreement made between the petitioner and the corporation on January 8, 1906. If the facts were as alleged, such an agreement might have been enforced under the ruling of the court in Sabin v. Camp (C. C.) 3 Am. Bankr. Rep. 578, 98 Fed. 974, hut the facts as found by me bring the ease' fairly within the provisions of sections 67c and 67e of the bankruptcy law [TJ. S. Comp. St. 1901, p. 3449]. The corporation has made a transfer of its property within four months prior to the filing of the petition, at a time when the corporation was insolvent, and when the transferee had reasonable cause to believe that the corporation was insolvent. There was no present consideration for the transfer; the same having been made for the purpose of satisfying a claim of the transferee, which had existed since upwards of six months theretofore. The transfer was made for the purpose of preferring the transferee, and was in fraud of the provisions of the bankruptcy law. The transferee, who is the petitioner in these proceedings, took no title under the bill of sale of July 24, 1906, and therefore has no claim other than as an unsecured creditor against the proceeds of the same.</p>

On Motion to Vacate Restraining Order. On the 7th day of July, 1905, Chas. J. Devlin, a citizen and resident of this state, on his voluntary petition was adjudged a bankrupt, and the conrplaining trustees were appointed and qualified as receivers of his estate and took possession of all the property of said estate.

<p>Indictment for Violation of Act Cong;. Aug. 2, 1886, c. 840, § 13, 24 Stat. 211 [U. S. Comp. St. 1901, p. 2232],</p>

<p>1. Admiralty—Procedure—.Tuby Trial.</p> <p>Under Rev. St. § 566 [U. S. Comp. St. 1901, p. 461], which provides that, in admiralty or maritime causes relating to contracts or torts arising on the Great Lakes, “the trial of issues of fact shall be by jury when either party requires it,” the verdict of the jury is merely advisory.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 1, Admiralty, § 595.]</p> <p>2. Shipping—Injury or Passenger—Liability of Vessel.</p> <p>It is the duty of a vessel to protect a passenger from harm or injury through the ads of emplcwés or other passengers, and a failure to do so renders it liable for the resulting damages.</p> <p>[Ed. Note.—For cases in point,-see Cent. Dig. vol. 44, Shipping, §§ 541, 542.</p> <p>Duty of carrier to protect passenger from injury by fellow passenger, see note to Meyer v. St. Louis, I. M. & S. Ry. Co., 4 C. C. A. 231.]</p> <p>3. Same—Aggravation of Damages—Disrespectful Treatment by Officers.</p> <p>It is tlie duty of a vessel to accord to a passenger respectful treatment by its officers and servants, and disrespectful treatment by a master of a woman passenger, on her making complaint that she had been assaulted and robbed in her stateroom, may properly be considered in aggravation of the damages.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 44, Shipping, §§ 541. 542.]</p> <p>4. Damages—Personal Injury—Excessive Award.</p> <p>An award by a jury of $15,000 damages against a vessel for an assault made on a woman passenger in her stateroom by an unknown assailant, and subsequent acts of aggravation by the officers, held excessive under the evidence, and the amount reduced to $5,000.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 357, 367.]</p>

<p>Railroads — Injury to Pullman Conductor — Liability Under Pennsylvania Statute.</p> <p>Act Pa. April 4, 1808 (P. L. 58), which provide^ that, “when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about tlie roads, works, depots, and premises of railroad property, or in or about any train or car therein or thereon, of which company such person is not an employ!), the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employe, provided, that this section shall not apply to passengers,” is applicable to the case of a conductor in the employ of a sleeping car company in charge of a car of such company forming part of a train of a railroad company, and who is injured or killed in a collision, and there can be no recovery therefor against the railroad company, where the collision was the result of the negligence of the defendant’s servants engaged in the operation of its trains.</p>

<p>In Bankruptcy.</p>

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

<p>Removal of Causes—Jurisdiction of Federal Court—Nonresidence of Parties.</p> <p>The objection to the jurisdiction of a federal court of a cause brought into such court by removal, on the ground that neither party is a resident of the district, is waived where, after removal, the plaintiff enters a general appearance in the federal court. <</p>

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

<p>In Bankruptcy. • On certificate from referee in re claim against bankrupt.</p>

<p>In Equity. On motion for leave to amend bill.</p>

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

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On application for discharge.</p>

<p>1. Bankruptcy—Title of Trustee—Liens.</p> <p>A trustee in bankruptcy takes the property subject to all the equities imposed upon it in the hands of the bankrupt which are not invalid as to creditors.</p> <p>2 Same—Mortgage on Aeter-Acquired Property—Validity.</p> <p>A chattel mortgage on property to be subsequently purchased by the mortgagor, given to secure the mortgagee as guarantor of the purchase price of such property, was based on a present consideration, and is valid as against the mortgagor’s trustee in bankruptcy.</p>

<p>In Bankruptcy. On report of special master</p>

On Application for Review of a Decision of the Board of United States General Appraisers. This case involves the construction of the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 454, 30 Stat. 194 [U. S. Comp.

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

<p>Customs Duties—Classification—Fukxtsiied Needlecases—Abticles Composed Chiefly of Needles.</p> <p>Needlecases in wkicii steel needles constitute the element of chief value should be considered as manufactures in chief value of needles, rather than as articles composed in part of steel under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 193, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]; and as needles are on the free list, and there is no tariff provision for manufactures of needles, such articles are dutiable as imenumerated manufactured articles under section 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].</p>

<p>Costs—Fees and Mileage oe Witnesses—Testimony Taken on Commission.</p> <p>Where the prevailing party, in. an action at law in a federal court, has taken testimony in a foreign country under a dedimus potestatem pursuant to Rev. St. § 806 [U. S. Comp. St. 1901, p. 663], he is entitled to tax as a disbursement the .fees and mileage of the witnesses at the same rate as though they had attended upon the trial.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Costs, § 731.1</p>

<p>In Bankruptcy.</p>

<p>Pleading—Affidavit of Defense.</p> <p>An affidavit of defense, setting up a claim for expense incurred by defendant for extra work, made necessary by imperfections in materials supplied by plaintiff, is insufficient where it is not itemized, but merely a lump sum is claimed.</p>

<p>1. Insurance—Conditions oe Fjbe Policy—Keeping op Explosives.</p> <p>A provision of a fire insurance policy, making it void, if, without permission indorsed thereon, there should be kept or allowed on the insured premises “benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naptha, nitroglycerine or other explosives, phosphorous or petroleum or any of its products of greater inflammability than kerosene oil of the United. States standard,” must he construed to include blasting powder by the words “other explosives,” in the absence of evidence showing that it is of less explosive force than any one of the substances enumerated, and therefore not in the same class.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 782,' 784.]</p> <p>2. Same—Action on Policy—Evidence.</p> <p>A fire insurance policy provided that it should be void if, without written permission indorsed thereon, there should be allowed or kept on the insured premises any one of certain enumerated substances, “or other explosives” ; also, that no officer or agent of the insurer should have power to waive such i>rovision, except in writing indorsed thereon or attached thereto. No indorsement was made on the policy. Blasting powder, which was not one of the explosives enumerated, was kept on the premises by tenants, and from an explosion of such powder the building took fire and burned. Held, that in an action on the policy it was error to admit parol evidence to show that the agent who placed the insurance knew that the building was to be occupied by miners as tenants, and that they customarily kept blasting powder in their dwellings, and that he charged more than the usual premium on that account; the tendency of such evidence being to establish a waiver contrary to the terms of the policy.</p> <p>[Ed. Note.—For cases in point, see Cent. Dig. vol. 28, Insurance, §.? 952, 955, 985, 1687.]</p> <p>Holland, District Judge, dissenting.</p>

This is a bill to reopen a settlement of a partnership for the construction and operation of a small steamboat upon one of the rivers of Mexico, and to have an- accounting between the parties of the expenditures and receipts in the construction and operation of same. After completing and running the boat for a few months she snagged and sank while complainant was, by the agreement, in sole charge and management.

<p>1. Railroads—Consolidation—Indiana Statute.</p> <p>Burns’ Ann. St. Ind. 1894, § 5257, which provides that “any railroad company * * * shall have the power to intersect, join and unite its railroad with any other railroad * * * and such railroad companies are unauthorized to merge and consolidate the stock of the respective companies'’ under certain conditions, does not limit the right of consolidation to two companies, nor is it essential when more than two consolidate that the line of each shall intersect the lino of every other.</p> <p>2. Same—Rights oe Stockholder.</p> <p>A stockholder in a railroad company which is authorized by the law of the state to consolidate with other companies, holds his stock subject to the right of the majority of the stockholders to exercise such power.</p> <p>[Ed. Note.—For eases in point, see Cent. Dig. vol. 41, Railroads, § 451.]</p> <p>3. Equity—Dismissal of Bill.</p> <p>Where, after the filing of a bill by a stockholder against a railroad company to enjoin it from entering into a consolidation with other companies, a preliminary injunction was denied, and thereafter the consolidation was lawfully effected under the laws of the state, the bill c'annot be preserved for the granting of other relief, even if it states grounds therefor, unless other parties rendered necessary by the consolidation are brought in.</p>

Plaintiff in error was convicted in the court below of violation of section 5480, Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3696] and sentenced to imprisonment in the penitentiary for the term of two years, together with a fine of two hundred dollars.

This is an action at law by the Peden Iron & Steel Company to recover indemnity under a policy of credit insurance issued to it by the defendant, the Ocean Accident & Guarantee Coloration, Limited, bearing date June 28, 1904. The answer was by general demurrer and general denial. The trial judge gave a peremptory direction to the jury, under whicli jilaintifi’s recovery was limited to’$507.15, with interest. The plaintiff sued out writ of error.

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

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

<p>Trusts—Fraudulent Foreclosure Sale—Questions eor Jurt.</p> <p>Where property of a testator, sold under a decree of foreclosure by an officer of the court at public auction, after due advertisement, was purchased by the wife of one of the trustees under the will, and the sale cut off life interests of the mother and brother of the purchaser in the property, and also the interests of her own minor children as remaindermen, but there was no evidence that the foreclosure proceedings were collusive, and no further evidence tending to impeach the validity of the sale, except the fact that the purchaser shortly afterward conveyed the property for an expressed consideration four times as great as the sum she paid for it, the question whether the sale was void for fraud was properly submitted to the jury, in an action brought by the remaindermen to recover the property.</p>

The action below was by an administratrix, to recover for the death of her husband, a switchman of the defendant railroad. On the conclusion of plaintiff’s evidence—consisting of the testimony of one witness who was iiresent at the time of the accident—the court instructed the jury to find a verdict for the defendant; and on this instruction'the error complained of is predicated.

<p>In Error to the Circuit Court of the United States for the Northern District of New York. -</p> <p>_ The following is the opinion of Ray, District Judge, in the court below:</p> <p>On a careful reading of the evidence and charge I am satisfied that a question of fact for the determination of the jury was presented by the evidence, and that no substantial error was committed on the trial in the reception or rejection of evidence or in the charge. In the nature of things, considering the fact that all the passengers, except one, were in their berths, and probably asleep, and that this one was a stranger, and left the ear, and is unknown, it was impossible for plaintiff to bring a witness to corroborate his statement as to what occurred in the car. Plaintiff testified that the porter in charge of the car was notified the evening before of his crippled condition, and that on the morning in question, because thereof, being unable to sleep or remain in his berth, he was sitting on the edge thereof in such a manner as not unnecessarily to obstruct the aisle of the car or expose himself to injury; that some one, whom he identifies on the trial as the porter of the other sleeper, came in and passed him; that, as he did so, plaintiff cautioned him “not to step on my leg.” He says this person either bowed or answered, and went to the further end of the car, and did something to the cord, and came back. He says: “And he started to come back; and I sat 'back in the curtains, and I heard' him coming and leaned out.. When he got in about six feet of me he looked over his shoulder—over the shoulder towards me; and he wandered then to one side, and he brought his right leg forward and hit my leg and tripped; and he lifted one foot and put it down squarely' on my ankle. He said, ‘Beg your imrdon,’ or, ‘Did it hurt?’ I don’t know just what he did say and he left the car immediately.” He says he lay down, relapsed into unconsciousness, and remained in this condition until the train reached Richland, some 50 miles further on. Here the porter came to him and rather insisted on his having some breakfast, but he declined. Plaintiff did not call for the porter, conductor, or any trainman, and entered no complaint, except to the person who stepped on his ankle at the.very time of the occurrence, and as to this he says: “Q. What did you say the porter said? A. I cannot tell you. I think he asked me if it hurt. Q. And what did you say? A. I told him, ‘Pretty damned hard.’ Q. Did you make a complaint to him? A. I did, and in good shape.” At Watertown plaintiff was assisted from the •train, he says, by two porters, but made no complaint. When he got to the house where he was going, and some time after, it was discovered his limb (previously broken and not fully recovered) was re-broken. In reply to defendant’s attorney, he says he told his sister-in-law of the injury on his way from the train.</p> <p>If this occurred in this way, or if it occurred by the act of some stranger coming into the car, it being open, can negligence be imputed to the defendant, who was operating this sleeper? If this person, a porter, was moving in this manner carelessly or heedlessly, and so ran upon plaintiff and injured him (the train was at a standstill), it seems to me the jury were justified in- finding that it was a negligent act. I*do not think porters of sleeping cars may unnecessarily and carelessly stumble upon and injure passengers occupying same without making the company liable. If it was a stranger to the train, an intruder thereon, then it was for the jury to say whether or not the company had exercised due care to exclude such persons. If it had not, it was chargeable with negligeqce in permitting the intrusion. Lewis v. N. Y. Sleeping Car Co., 143 Mass. 273, 9 N. E. 615, 58 Am. Rep. 135. True, this was the case of a theft; but I think the person of the passenger entitled to as much proteetion as his property. Both porters were called as witnesses, and in effeei denied that plaintiff was on the car to their knowledge. These porters deny that any such thing occurred at Utica as was described by plaintiff, with widen they had any connection. They may speak the truth, and yet plaintiff may have been injured, as he says he was, by some trainman or some person going into and through the car in this manner when it was open. I take it defendant owed a duty to the plaintiff to keep out intruders. If any one was necessarily in the car (no,t a passenger), the defendant is liable if that person negligently ran upon and injured plaintiff. It cannot be that when a train is at a station the sleepers may be reft open unnecessarily and third persons allowed to enter. If this is done, and injury results from the negligent conduct 01 such persons, the corporation running or operating the car ought to be liable, not for the negligence of such third person, but for its own negligence in not proper1 guarding the car and excluding third persons.</p> <p>In this case there is no evidence the car was necessarily open, except one person, a passenger, left it; but, if necessarily open, then still defendant owed a duty to guard against intruders and keep them out. There is no pretense the porter was doing this. He was not in sight, and when called as a witness did not claim he was exercising any care in this resiiect. In Lewis v. N. Y. Sleexiing Oar Co., supra, the court said: “A sleeping car company holds itself out to the world as furnishing safe and comfortable ears, and, when it sells a ticket, it impliedly stipulates to do so. It invites passengers to pay for, and make use of, its cars for sleeping; all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping car, hut by the necessity of the case is dependent upon the owners and officers of the car to guard him and the property he has with him from danger from thieves or otherwise. The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier or as an innholder, yet it is its duty to use reasonable care to guard the passengers from theft, and if, through want of such care, the personal effects of a passenger such as he might reasonably carry with him are stolen, the company is liable for it. Such a rule is required by public policy, and by the true interests of both the ímssenger ana the company ; and the decided weight of authority supports it. Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102: Pullman Car Co. v. Gardner, 3 Penny (Pa.) 78; Pullman Palace Car Co. v. Gaylord, 23 Am. Law Reg. (N. S.) 788.”</p> <p>I do not think it was error to submit the question whether it was not a stranger to the train who entered the car and stumbled on plaintiff, if such an occurrence took place. The fact that no complaint was entered to the conductor or on leaving the train goes to the credibility of the plaintiff.</p> <p>The porters who gave testimony on this subject were interested as employes. As to persons in the employ of the railroad company, the court charged: “Mr. Purcell: And we ask your honor to charge that if the jury finds that the acts occurred as stated by the plaintiff, and it grew out of and related to the operation of trains and the transportation of the plaintiff, and not out of any matters within the scope of the proper employment of the Pullman porter, outside of or inside of his car, there can be no recovery. The Court: I so charge.” If the injury liad occurred in that way, then undoubtedly the railroad company, and not the Pullman Company,'would have been the one to respond in damages. The jury was cautioned and attention called to the various claims bearing on the credibility of the witnesses, and they were also cautioned on the subject of damages. The damages were not excessive, if plaintiff’s condition is attributable to an injury received in the car as claimed.</p>

This is a bill to enjoin infringement of patent No. 681,234, issued August 27, 1901, to C. H. and H. C. Krause, for an improvement in ore crushers. The late Judge Wanty sustained the validity of the patent, found infringement, and ordered usual accounting. From this interlocutory decree this appeal has been taken. The' single issue is as to the validity of the Krause patent, and this depends entirely upon the novelty of the combination described in claim t of the patent.

<p>In Bankruptcy.</p>

Action to recover damages for injuries suffered by plaintiff while working in defendant’s carshops, at Tacoma, in the month of August, 1906. The complaint charges negligence on the part of the defendant in its business as a common carrier of interstate and foreign commerce by operating an unguarded saw in its carshops, and that said saw by reason of its defective condition caused a piece of timber to be hurled violently, causing the injury.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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