Volume 152 — Federal Reporter

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, entered May 21, 190G, on a verdict of “guilty” found by a jury after trial upon an indictment for a misdemeanor, under section IS of the Immigration Act of 1903 which provides (Act March 3, 1903, c. 1012, 32 Stat. 1217 [U. S. Comp.

Walker river is a stream flowing from within the state of California easterly into the state of Nevada. Toward its source it divides into two branches, known as the East and West Forks. The junction is in the state of Nevada. The appellant and the appellee are each incorporated, the former having its residence in the state of California, and the latter in the state of Nevada.

<p>Appeal from the Circuit Court of the United States for the District of Nevada.</p> <p>The facts of this case differ from those upon which the case of Rickey Land & Cattle Company v. Miller & Lux (just decided) 152 Fed. 11, proceeded, only in that, in the original suit of Miller & Lux v. Rickey et al., the present appellees, being codefendants with Rickey in that suit, filed cross-bills therein, whereby they claimed to be entitled to certain appropriations of water from Walker river for use upon their lands — the diversions being made and the lands being situated in the state of Nevada; and it was alleged that Rickey had been and was then diverting the water from the stream above, which deprived the cross-complainants of the amount to which they were entitled under their appropriations. Such cross-bills were filed December 20, 1904, and writs of subpoena were issued thereon, and served upon Rickey the same day. And it is further shown that the summonses issued in the causes instituted in the superior court of Mono county, Cal., were served upon appellees December 26, 1904. The appellees obtained, after notice and hearing, an order of court temporarily, restraining the appellant from making any diversions of water from Walker river to their detriment, from which order this appeal is prosecuted.</p>

<p>1. Attobney General — Outside Counsel — Employment—United States — Actions BY.</p> <p>The question of employing the attorney for a private party to assist in the prosecution of a suit by the United States in the public interest is one addressed to the judgment and discretion of the Attorney General, and such employment should not influence the action of the court if the object of the private party and that of the United States are one and the same.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 5, Attorney General, §§ ¾ 5.]</p> <p>2. Public Lands — Suit fob Cancellation of Patent — Limitation.</p> <p>Under Act March 3, 1891, c. 559, 26 Stat. 1093 [U. S. Comp. St. 19Ó1, p. 1521], which provides that “suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act,” possession by the grantee is not necessary to the running of the limitation; and, while the limitation would not apply to patents for lands which were not public lands subject to disposition by the United States, it will protect a patent for public lands reserved from sale for a temporary purpo§g which was accomplished long prior to the issuance of the patent, although technically the reservation had not been withdrawn.</p> <p>8. Same — Validity of Patent — Sufficiency of Survey.</p> <p>Where the boundaries of a camp ground reserved to Indians by a treaty were fixed by a government survey of the adjoining lands and shown by the plat returned, the tract containing less than 40 aeres, such survey was sufficient for the purpose of a subsequent conveyance of the land by the land department after the reservation had been relinquished, by the Indians.</p> <p>4. Basie — Reservation from Sale — Construction.</p> <p>In creating the Lake Superior land district' in 1847, Cbngress reserved from the lands opened for sale certain lands for school purposes, and also such reservations as the President should deem necessary for public purposes. Pursuant to the authority so given, the President, in order to have time to ascertain what lands were necessary for public purposes, reserved a number of tracts temporarily, one of which, consisting of half a township, included Fort Brady on St. Mary’s river, together with the reservation on which it stood, and also a small tract previously reserved to the-Indians by treaty for a camp, together with other lands. By a subsequent executive order in 1852 the reservations were more narrowly defined, and all the remaining lands so temporarily reserved, “except the-military reservation at Fort Brady,” were released from reservation. The Indian right was extinguished by treaty in 1855. He,Id, (1) that neither the reservation in the act of Congress nor in the executive orders had any reference to the Indian reservation, over which the government had no power of disposition; and (2) that the exception in the order of release of the'-‘military reservation at Fort Brady” included only the original reservation as defined prior to 1847, and not the entire temporary reservation of that year, which was the contemporaneous construction of the order by the department, so that in any event the Indian reservation became public lands subject to disposition by the government after the-treaty of 1855, and a patent subsequently issued therefor is valid.</p> <p>5. Navigable Waters — Riparian Rights — Title to Islands in St. Mart’s-River.</p> <p>The United States has no title to islands lying in the St. Mary’s river between the Michigan shore and the thread of the stream, which were not surveyed nor claimed at the time of its general survey; but such title, like that to the submerged land, remained in the state, and under the law of Michigan is surrendered to and vests in the owner of the adjoining shore land.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 253-255.]</p>

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

<p>1. Gifts — Gins Inter Vivos — Delivery—Necessity.</p> <p>It is essential to a completed gift that the donee should have such control, and such control only, of the subject-matter of the gift, as is consistent with the ownership purported to be transferred to him.</p> <p>[Ed. Note. — For cases in point, seo Cent. Dig. vol. 24, Gifts, §§ 31, 34.]</p> <p>2. Same.</p> <p>Where delivery of property as a gift has once been made, and possession transferred, the gift is irrevocable, and is not affected by the fact that the donor immediately thereafter comes into physical possession and control of the property without any retransfer of the ownership by the donee.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gifts, § 20.]</p> <p>3. Same — Conditions.</p> <p>A donor may attach a condition to a gift in presentí, if that condition be not inconsistent with possession or control by the donee of the thing given.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gifts, § 68.]</p> <p>4. Same — Joint Access to Property by Donor and Donee.</p> <p>If a donor, with the dearly expressed intention of making a gift, make an actual delivery into the hands of the donee, the fact that the donor has lawful access to the depository of the thing given does not invalidate the gift, if the donee has also the same access to said depository, and has such control over the thing given that he may remove it at any time he chooses to do so. '</p> <p>5. Same.</p> <p>The owner of 50 bonds rented a box of a safety deposit company in the name of himself and his two brothers, whom he took to the company, introduced them, and had them sign the contract of renting, and then retired with them to a room, taking the box and the bonds. He then handed one-half the bonds to each brother, stating that they were a gift, but that he desired the brothers to give him the coupons therefrom which should mature during his lifetime. After some conversation, they cut off some of the coupons next maturing, and gave them to him. They then placed the bonds and the coupons in the box, which was put in the vault; he taking one key, and giving them the other. Held, that the fact that he retained a key, and that he afterward visited the vault and took coupons from the box was not such a retention of control over the bonds as to invalidate the gift.</p> <p>6. Trial — Instructions—Credibility of Testimony.</p> <p>An instruction held erroneous, in that it intimated to the jury that the testimony of a witness which was uncontradicted was inherently improbable, and was discredited by the cross-examination, which inferences were not warranted.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 46, Trial, §§ 414-419.]</p>

<p>1. Bankruptcy — Manufacturing Corporation — Builder op Concrete Arches and Bridges is.</p> <p>A corporation which is principally engaged in building concrete arches and bridges and dressing stone is a manufacturing corporation, and may be adjudged a bankrupt under section 4b of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423] as amended by Act Feb. 5, 1903, c. 487, § 3, 32 Stat. 798 [U. S. Comp. St. Supp. 1905, p. 683]).</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Same — Pleading—Defective Petition Good in Substance, Impregnable After Judgment.</p> <p>After verdict or judgment, an objection that the petition fails to state facts sufficient to constitute a cause of action is tenable only when the pleading fails to allege the substance or foundation of a cause of action, and it is impregnable to attack because it is otherwise defective, informal, indefinite or incomplete, and was demurrable before answer or judgment.</p> <p>The averment that the alleged bankrupt was a corporation “engaged in the business of manufacturing concrete arches and bridges, manufacturing and dressing stone and selling the same, and railroad and ditch contracting,” was demurrable, and amendable before, and invulnerable after, adjudication.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1431, 1459.]</p> <p>3. Same — Jurisdictional Facts — Wiiat abe — Wiiat are Not — Those of Rat ter Class Concluded by Judgment — Occupation of Corporation of This Class.</p> <p>Jurisdictional facts are those which condition the power of the court to decide some of the issues in the case, like the nature of the subject-matter and the service of process. Other facts, which condition the character of the decree or the nature of the relief that should be granted or denied, are not jurisdictional, and final adjudications of issues relating to them conclusively estop the parties to the proceedings from again litigating them.</p> <p>The issue whether or not a corporation is subject to adjudication as a bankrupt is not jurisdictional, and is concluded by the adjudication.</p> <p>i. Judgment — Federal Courts — Judgments of Federal Courts Conclusive —Absence of Appearance of Jurisdictional Facts on Their Records Immaterial.</p> <p>While the jurisdiction of the national courts is limited, they are not inferior courts, and their judgments possess every atfribute of finality and estoppel appertaining to those of courts of general jurisdiction. The absence from their records of all appearance of jurisdictional facts is immaterial.</p> <p>5. Same — Motion to Vacate Adjudication — Abuse of Discretion.</p> <p>There ivas no abuse of discretion in a denial by a bankruptcy court of a motion by creditors to vacate the adjudication of the bankruptcy of a corporation and to permit them to answer and litigate the (juestion wheiher or not the corporation was principally engaged in such a pursuit that it was subject to be adjudged a bankrupt, where the motion was first made 7 weeks after the petition was filed and receivers were appointed, and 5 weeks after the adjudication, when the creditors were aware of the filing of the petition within 48 hours thereafter, and the administration of the estate had proceeded without objection meanwhile.</p> <p>(Syllabus by the Court.)</p>

The defendant in error brought an action against the plaintiffs in error charging the unlawful cutting and removal of 2,218,974 feet of timber from the public lands of the United States, and converting the same into saw logs, which were of the value of $8 per thousand feet, and of the total value of $17,751.79. The case was tried before a jury,' and a verdict was returned in favor of the defendant in error in the sum of $6,102.18.

The appellants, as complainants, filed a bill in equity against the appellees alleging that the appellants were the owners of.the Hawk Eye lode mining claim, the Black Hawk lode mining claim, the Black Hawk Fraction lode mining claim and the Alvy lode mining claim, by patents from the United States.

<p>1. Vendor and Purchaser — Contracts—Execution—Evidence.</p> <p>Defendant, having agreed to purchase an interest in certain mining claims, at a meeting of ail the parties stated to plaintiff that he would sign the contract on its receipt from his agent, L. Defendant proceeded under the contract as though it had been signed by all the parties, made payments UDder it, went into possession of the property, participated in its development as though the contract had been executed, and on the trial refused to produce the original on notice. Held to warrant an inference, in the absence of evidence to the contrary, that defendant in fact signed the contract.</p> <p>2. Frauds, Statute oe — Right to Urge — Estoppel.</p> <p>Where defendant led plaintiff to believe that he had signed a written contract for an interest in certain mining claims, and induced plaintiff to purchase, claims on which he had options, and to otherwise expend money and timé to carry out the provisions of the agreement, defendant could not assert that the contract was void under the Idaho statute-of frauds because he did not in fact sign the same, under Rev. St. Idaho 1887, § 3225, declaring that, where a contract which is • required by law to be in writing is prevented from being put in writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts on such belief to his prejudice, may enforce it against the fraudulent party.</p> <p>3. Same — Part Performance.</p> <p>Where a contract for the purchase of an interest in certain mining claims was wholly performed by the vendor, and almost completely per- . formed by the purchaser, prior to the latter’s repudiation thereof, such performance was effective to take it out of the statute of frauds.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 293, 294.]</p> <p>4. Vendor and Purchaser — Vendor’s Lien — Foreclosure—Deficiency Judgment.</p> <p>Where a seller of an interest in certain mining claims retained title to the buyer’s interest to secure payment of the price, the vendor was entitled to foreclose the lien so retained on the purchaser’s default, as provided by Rev. St. Idaho 1887, §§ 3440, 4520, and 4521, and to recover a a deficiency judgment against the purchaser on the failure of his interest to sell for enough to satisfy the debt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 822, 823.]</p>

<p>1. Appeal — Admission op Evidence — Prejudice.</p> <p>Wheré in an action for injuries to a servant the jury were correctly charged as to the acts and omissions of defendant on which fault might be predicated, the failure to post rules not being among them, defendant was not prejudiced by evidence that witness had never seen or read any rules providing for the inspection or repair of tools in the tool shop, objected to because there was no charge in the complaint covering such question.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4178-4184.]</p> <p>2. Master and Servant — Injuries to Servant — Contributory Negligence.</p> <p>Plaintiff, an ignorant laborer in a railroad shop, had been employed by defendant for nine years to do low-grade work. He had not been employed for flange work to any great extent, but was ordered by his foreman to hammer the head of a defective fuller in making a flange on a sheet of hot iron, the fuller being held by the foreman. Plaintiff saw nothing dangerous about the fuller, and proceeded to strike the same, when a piece of steel flew from the head thereof into plaintiff’s eye, causing its loss. Helé, that plaintiff was not guilty of contributory negligence as a matter of law.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1098-1105.]</p> <p>3. Same — Fellow Servant.</p> <p>Plaintiff’s foreman had been informed prior to the accident that a fuller head by which plaintiff was injured was defective and dangerous, but with knowledge of such defect held the head against a hot iron plate arid directed plaintiff to strike the same for the purpose of making a flange, resulting in plaintiff’s injury by a piece of steel flying from the head. It also appeared that defendant’s system for repair of tools was too cumbersome for practical operation, the servant being required to get an order therefor and have the same visaed by at least two different foremen before they could be repaired. Helé, that the negligence of plaintiff’s foreman acting as his fellow servant in using such dangerous tool was not the sole cause of the accident, and was therefore not sufficient to prevent a recovery.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 515-534.]</p>

<p>Removal or Causes — Time im Removal.</p> <p>A federal court cannot acquire jurisdiction of a cause by removal, on a petition filed several months after the removing defendant had voluntarily appeared in the state court both by demurrer and answer, and after the cause had been set for trial by that court without objection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 135, 136, 141.]</p>

The plaintiff in error (defendant below) was indicted for having knowingly, willfully, and falsely devised a scheme and artifice to defraud, which scheme and artifice was to be effected through and by means of the post office establishment of the United States, contrary to section 5480 of the Revised Statutes [U. S. Comp.

<p>1. Appeal and Ekeok — Liability on Supebsedeas Bond — Defenses.</p> <p>A claim that certain property was not that covered by a mortgage, as it was adjudged to be by a decree of foreclosure, cannot be set np in defense to an action on a bond given to supersede said decree pending an appeal therefrom, that question having been concluded by the decree.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4792-4704.]</p> <p>2. Equity — Masters in Chancery — Liability for Acts--Mortgage Foreclosure — 'Wrongful Seizure of Property.</p> <p>In case property not embraced in a decree foreclosing a mortgage is seized for sale by the master appointed to sell, such officer is liable to the owner in trespass, or the owner may pursue any other appropriate remedy in any proper court, subject to the limitation that while the property is in the actual or constructive possession of the court under whose i>rocess it was taken it cannot be interfered with by any other court</p> <p>3. Appeal and Error — Supersedeas Bond — Nature—Breach—Liability.</p> <p>After the rendition of a decree foreclosing a mortgage certain property was seized thereunder for sale. No application was made to the court for the release of the property as not embraced in the mortgage and decree, but a defendant obtained possession of it by taking an appeal from the decree and giving a supersedeas bond conditioned that he would hold the property “subject to the proper order and decree that may be entered Anally in said cause.” The decree was affirmed, but pending the appeal the property was destroyed by Are. Held, that such bond was a forthcoming bond, and the obligors were liable thereon for the value of the property as therein stated.</p> <p>4. Same— Summary Entry of Judgment.</p> <p>The court has power to enter a, summary judgment on a supersedeas bond given on appeal from a decree foreclosing a mortgage on personal property for the value of such property, where, after affirmance of the decree, it is' not produced.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 3, Appeal and Error, § 4778.]</p>

<p>■ 1. Master' and Servant-Injuries to Servant — Negligence—Evidence.</p> <p>Roofers were using a derrick and bucket to hoist cement from the ground and unload it on the roof. No one but these workmen had been at work or moving about on the roof for several days. The brick walls had not reached the top of the building. The plaintiff was the superintendent of the brickwork. They were all employes of the defendant. The roofers swung the boom and bucket in over the north wall by means of a rope attached to the end of the boom, and sent it back by a push. Just as they pushed it back on one of its trips the plaintiff came up on to a plank just beyond the north wall, stepped into the path of the bucket, and stood there looking north to direct the construction of a scaffold, and the bucket knocked him off and injured him.</p> <p>Helé, the defendant was not guilty of negligence because it failed to establish, a code of signals for the roofers to enable them to warn other employes of the approach of the bucket, nor because the derrick ivas not provided with a lever nor the boom with a guy rope on its north side to steady and control its movements.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 954-977.]</p> <p>2. Negligence — Injury not Probable Result of, Not Actionable, Not Proximate Cause. ‘ v</p> <p>An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of an act of negligence is not actionable, because it is not the proximate cause, but either the remote cause or no cause whatever of the damage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 09-82.]</p> <p>3. Master and Servant — Where Work Necessarily Changes Character as to Safety, Duty of Care for Safety the Servant’s and Not the Master’s.</p> <p>The duty of caring for the safety of a place or of machinery in eases in which the work which the servants are employed to do necessarily changes the character of the place or of the machinery as to safety, as the work progresses, is the duty of the servants to whom the work is intrusted, and it is not the duty of the master.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 171, 266.]</p> <p>4. Samis — Duty to Trotkct mom Dangers oe Negligent Operation Servant's and Not Master’s.</p> <p>The duty of construction and provision is the master’s. The duty of operation and of protection from negligent use is the servant’s.</p> <p>The duty of so using a reasonably safe place, and of so operating a. reasonably safe machine, that neither the place nor the machine shall become dangerous by their negligent use or operation, is the duty of the servants to whom the use or operation is intrusted, and it is not any part of the positive duty of the master.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 267.]</p> <p>(Syllabus by'the Court.)</p>

<p>1. Bankruptcy — Trustee’s Title That of Bankrupt in Absence of Attaching or Judgment Creditors or Fraud.</p> <p>A trustee in bankruptcy stands in the shoes of the bankrupt, and has no better title than he, in the absence of fraud, or of attaching or judgment creditors at the time of the filing of the petition.</p> <p>2. Same — Unfiled Contkact op Conditional Sale Retaining Title in Vendor Valid Against Trustee in Nebraska.</p> <p>A contract of conditional sale whereby the parties agree that the title shall remain in the vendor until the purchase price is fully paid is voidable, under the statutes of Nebraska, by purchasers, attaching creditors, and judgment creditors only, if not filed in the office of the county clerk.</p> <p>It is valid against all other creditors though untiled, and hence against a trustee in bankruptcy who represents no attaching or judgment creditors.</p> <p>3. Same — Distribution—Shares op Proceeds op Mixed Property Propor- , tioned to Avalúes op Respective Owners op Property Sold.</p> <p>One who acquiesces in a sale under an order of the court of his property and the property of the estate of the bankrupt in one lot, and thereafter prays for a preference in payment out of the proceeds of the sale, is estopped from receiving a larger proportion of the proceeds than the value of his property bore to the value of the lot Sold at the time of the sale. ,</p> <p>4. Same — Voidable Preference — Contract Prior to Pour Months will Not Protect.</p> <p>A mortgage or transfer of his property by an insolvent debtor within four months of the filing of a petition in bankruptcy against him, which otherwise constitutes a voidable preference, is not deprived of that character or validated by the fact that it was executed in the performance of a contract to do so made more than four months before the filing of the petition.</p> <p>(Syllabus by the Court.)</p>

<p>1. Trial — Instructions—Applicability to Issues.</p> <p>A request to charge that defendant was answerable only for negligence occurring prior to the accident, and not afterwards, was properly refused as not within the issues.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 587-595.]</p> <p>2. Master and Servant — Injuries to Servant — Actions—Instructions—Issues.</p> <p>Where, in an action for injuries to a servant, the jury were to determine whether or not defendant had failed either to furnish proper materials for the construction of a walkway, or to provide a competent foreman, to the injury of plaintiff, a request to charge that if the jury were satisfied that the accident happened either from the ineompetency of the foreman or from defendant’s failure to provide proper materials with which to construct the walkway, and were unable to decide from which cause the accident happened, then they should find for defendant, was properly refused as restricting the jury too narrowly in its determination, of the issues of fact.</p> <p>3. SAME— Concurring Causes.</p> <p>Where a servant’s injury resulted both from the neglect of the master to provide proper materials and also from negligence of the foreman acting as a fellow servant, so that the two causes were commingled, the servant was still entitled to recover.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §| 515-534.</p> <p>Concurrent negligence of master and fellow servant, see note to Maupin v. Texas & P. Ry. Co., 40 C. C. A. 236.]</p>

States for the Southern District of Alabama. The plaintiff in error, and plaintiff below, brought her action in the circuit court of- Conecuh county, Ala., against the Louisville & Nashville Railroad Company for the homicide of her husband on a public crossing over the track of the defendant railroad at Sparta, in Conecuh county, Ala. On motion of defendant the cause was removed to the Circuit Court of the United States for the Southern District of Alabama.

<p>1. Gaming — YVagertng Transactions — Saxes eoh Future Bewvery.</p> <p>A transaction by which property is bought and sold for future delivery, and which is legitimate on its face, cannot be held void as a wagering contract because one of the parties understood and meant it to be so, but the proof must go further and show that such understanding was mutual.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gaming, § 22.]</p> <p>2. Same — 1Transactions with Bucket Shop — Understanding oe Parties.</p> <p>The probability that an intelligent and experienced business man who enters upon a course of speculative dealings with a bucket shop does so with the understanding that the purchases or sales are to he merely color-able is so strong as to amount to a presumption of fact, which is no,t overcome by his testimony to the contrary given in his own ■ interest, nor by a recital in confirmation slips given on receipt of the orders that actual delivery was in all eases understood, which in itself indicated that it was inserted for some ulterior purpose.</p>

<p>Peincipal and Agent — Evidence to Establish Relation — Tbansactions Between Bucket Shops.</p> <p>The transactions between two concerns engaged in business as brokers or bucket shops, one located in New York and the other in Atlanta, Ga., held, not such as to create the relation of principal and agent between them, hut merely that of correspondents.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 41.]</p>

This causé comes here upon appeal from a decision of the Circuit Court, Southern District of New York (142 Fed. 202), affirming a. decision of the Board of General Appraisers (G. A. 6,111 [T. D. 26,-608]), which reversed the action of the Collector of the Port of New York in assessing certain imported merchandise under the Tariff Act of 1897. Act July 24, 1897, c. 11, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626].

This is an action to recover damages for the death of one Charles J. Smith, under section 27 of the Code of Alabama of 1896, which provides an action for wrongful act, omission, or negligence causing death. The plaintiff below presented his cause of action in five several counts, each setting forth a different theory.

<p>Masteb and Servant — Injury to Servant — Negligence—Evidence.</p> <p>Evidence, in an action for injury to an employe engaged in erecting a gas tank, caused by tbe scaffold on which he was at work being tipped by the raising of the tank, which could have been done only by the expansion of the gas from the heat of the sun, or by the pumping of compressed air into the tank, held sufficient to go to the jury on the questions whether it was raised by the pumping of compressed air, and, if so, whether it was negligence to do so without warning.</p>

<p>1. Bankruptcy — Jurisdictional Fact — Pursuit in Whioh Corporation is Engaged is Not.</p> <p>Neither the allegation nor the fact that a corporation is engaged principally in manufacturing; trading, printing, publishing, mining or, mercantile pursuits is jurisdictional in a proceeding in bankruptcy.</p> <p>2. Same — Amended Petition — Defaulting Creditor Not Entitled to Answer.</p> <p>A creditor, who fails to appear or answer a petition in bankruptcy within the time limited therefor by the bankruptcy law, thereby waives all objections to subsequent amendments thereof which do not change the substance of the cause of action there stated nor the extent of the relief there sought, and renounces his right to contest the cause of action of which the original petition gives fair notice.</p> <p>(Syllabus by the Court.)</p>

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

<p>In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling.</p>

<p>Master and Servant — -Negligence—Evidence op Change After Accident Inadmissible to Prove. ,</p> <p>Evidence that after the accident the master repaired his machinery or building, or adopted a different method of conducting his business, is inadmissible .to prove his negligence at the time of the accident.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 918.]</p> <p>'(Syllabus by the Court.)</p>

This cause conies here upon appeal from a decision of the Circuit Court, Southern District of New York, 142 Fed. 303, affirming a decision of the Board of General Appraisers, G. A. 5,849, T. D. 25,768, which sustained the collector of the port of New York, in assessing duty on an automobile of foreign manufacture under the tariff act of 1897.

-Appeal from the Circuit Court'of the United States for the Southern District of New York. For decision below, see 143 Fed. 915, reversing a decision of the Board of United States General Appraisers, G. A. 5,352 (T. D. 24,494), which had affirmed the assessment of duty by the collector of customs at the port of New York. The merchandise consists of pineapples in tin cans.

For decision below, see 143 Fed. 930, which affirmed a decision of the Board of United States General Appi-aisers, which had overruled a protest against the assessment of duty by the collector of customs at the port of New York.

This cause comes here upon appeal from a judgment of the Circuit Court, in favor of defendant in error who was plaintiff below. The action is to recover damages for personal injuries, and the jury brought in a verdict for the plaintiff.

<p>Removal of Causes — Jurisdiction op Federal Court — Nonresidence op Parties.</p> <p>A federal court cannot acquire jurisdiction by removal of a suit in which such jurisdiction is dependent on diversity of citizenship, where neither of the parties is a resident of the district, and the plaintiff does not consent to such jurisdiction or waive his rights.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 32, 33.]</p>

<p>Bankruptcy — Jurisdiction—Indian Territory — Jurisdiction to Revise Orders.</p> <p>The United States Circuit Court of Appeals of the Eighth Circuit has no jurisdiction to revise in matter of law, under section 24b of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 553 [3 U. S. Comp. St. 1901, p. 3432]), the orders of the courts of original jurisdiction of the Indian Territory sitting in bankruptcy.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Shipping — Nonfulfillment op Charter — Damag-es.</p> <p>Tbe question of the damages to a shipowner arising from a loss of earnings under a charter which was abandoned by the charterer depends upon contingencies of navigation more or less speculative and incapable of being precisely ascertained, and in such case approximate accuracy is all that can be reasonably expected.</p> <p>[Ed. Note. — For cases in point see Cent Dig. vol. 44, Shipping, § 213.]</p> <p>2. Same — Measure op Damages.</p> <p>Defendant chartered libelant’s vessel to carry a full cargo of cotton from Savannah to Bremen, agreeing to pay a specified sum per ton for the vessel’s registered net tonnage. Subsequently he refused to fulfill the charter, and after some days of negotiation a new charter was made to take a cargo of cotton from Galveston to Bremen, but without waiver of libelant’s right to recover damages for breach of the first charter. Helé, that in estimating such damages the court was justified in assuming that the time taken in loading and discharging would have been the same under the first charter as was actually taken under the second, and in taking as the measure of damages the average daily earnings made under the second charter as compared with the average which would have been made each day under the first if the voyage had been made in the time estimated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, I 2131</p>

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

<p>1. Patents — Joint Suit for Infringement — Profits Recoverable.</p> <p>In a suit by joint owners of a patent for its infringement, profits cannot be recovered which accrued from infringements prior to the date of the joint ownership, and when the patent was the sole property of one of the complainants.</p> <p>2. Same — Accounting for Profits — Deduction for Losses.</p> <p>On an accounting for profits for infringement of a patent, the infringer is not entitled to deduct from the profits made during a certain period of time a loss subsequently incurred in a separate transaction. On such an accounting only losses occurring concurrently with the making of profits and directly resulting from the particular transactions on which the profits are allowed may be considered in diminution of profits.</p> <p>[Ed. Note". — For cases in point, see Cent. Dig. vol. 38, Patents, § 576.]</p> <p>3. Same.</p> <p>Where infringement of one claim only of a patent is adjudged, the in-fringer cannot be held to account for profits arising from the sale of a part of the device which was not an element of such claim, although it may have been an element of other claims.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3S, Patents, § 572.]</p> <p>4. Same — Separation of Profits.</p> <p>It is the settled rule that, where the infringed device was a portion only of defendant’s machine, which embraced inventions covered by other patents, it is incumbent on complainant to show how much of the profit made was due to such other patented parts, and how much to those of his own invention; but, before such rule is applicable, the burden rests upon the defendant to show the existence of such extraneous elements and the probability that they affected the price of the machine, and this is not done by showing that elements of the combination of complainant’s patent and of the infringing machine were also elements of prior patented combinations where they were not separately patented, and were therefore open to use by complainant as parts of his own combination and invention.</p>

<p>1. PAOT3XTS- — TNEBmGEMENT—LOCKING DEVICE FOB TABLES.</p> <p>The Tyden patent, No. 675,577, for a locking device for pedestal tables, claim 1, is void as too broad and substantially for a function. The remaining claims, while disclosing invention and valid as improvement claims, are of narrow scope and limited to the specific device shown. As so construed, held, not infringed.</p> <p>2. Same.</p> <p>The Wilhelm patent, No. 736,327, for a locking device for pedestal tables. held not infringed.</p>

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

In Equity. Bill demanding specific performance of certain portions of a contract, and, that having been granted, for further relief.

In Equity. Suit to restrain alleged infringement of United States letters patent to Lewis H. Redfield, assignor of one-half thereof to John R. Clancy, No. 4-80,515, dated August 9, 1892, for “hose clamp,” and for an accounting.

<p>Insurance — Action on Dies Policy — Evidence oe Delivery.</p> <p>After a man’s death, a policy of insurance on his life, payable to his wife, was found among his papers. There were no canceied internal revenue stamps thereon as required by law at the time of its date, but attached thereto was an envelope containing the requisite stamps, and on the envelope were printed directions that such stamps were “to be attached to the second page of policy No. - when put in force,” and also that, when affixed, they must be canceled, by the agent by writing the initials of the company and the date thereon, and that, if the policy should be returned to the company before delivery, the uncanceled stamps must accompany it. After the’policy was found by the beneficiary, she procured the stamps to be affixed thereto and canceled by the collector of internal revenue, and brought suit thereon. It was not shown that the deceased ever disclosed his possession of the policy to any one, or claimed to have insurance in the company. Held, that such facts did not create such a conflict of evidence, as to the essential fact of the delivery of the policy as a completed contract of insurance, as to entitle the plaintiff to the submission of the case to the jury, as against the otherwise uncontradicted evidence on behalf of defendant that it was merely delivered for examination and comparison with others, and that no premium was ever paid thereon.</p>

In Equity. Hearing on bill, answer, and agreed statement of facts. The material facts stipulated by the parties are as follows: The plaintiff is trustee in bankruptcy of the partners and partnership of M. Sampter, Sons & Co. The defendant, Elvira Sampter is a niece of the individual bankrupts, who are joined with her as defendants.

<p>1. Courts — Jurisdiction of Federal Courts — Nature and Source.</p> <p>The courts of the United States inferior to the Supreme Court, being statutory courts created by Congress, possess only those powers which are expressly granted to them by statute, and until Congress confers upon them jurisdiction of a matter authorized by the Constitution of the United States they cannot exercise it.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, §§ 792, 793.]</p> <p>2. Same — Jurisdiction op State Courts — Nature and Source.</p> <p>State courts of general jurisdiction, until divested by an act of Congress of jurisdiction in causes which, under the national Constitution, may be conferred upon the courts of the United States exclusively, may, so far as the Constitution and laws of the United States are concerned, exercise jurisdiction over them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 1326.]</p> <p>3. Same — Concurrent Jurisdiction — State and Federal Courts.</p> <p>Subdivision 4 of section 629, Rev. St. [U. S. Comp. St. 1901, p. 503], does not confer exclusive jurisdiction on the courts of the United States In controversies arising under the postal laws of the United States, but only concurrent with the courts of the states, and for this reason state courts may take cognizance of such causes.</p> <p>. 4. IlKMovAi, of Causes — Subject of Conteovebsy — Postal Laws.</p> <p>Although Congress has not authorized by special act the removal of causes arising under the postal laws of the United States, if the bill on its face shows that the controversy is one arising under the postal laws of the United States, and the value of the matter in controversy exceeds 82,000, exclusive of interest and costs, such cause is removable from the state to a national court, under section 2 of the act of March 3, 1887, c. 373, 24 Stat. 553, as corrected by the act of August 13, 1888, c. 806, 25 Stat. 434 [ü. S. Comp. St. 1901,- p. 509].</p> <p>(Syllabus by the Court.)</p>

At Law.. Action to recover damages for a' personal injury alleged to have been caused by negligence of the defendant in the operation of, its, railroad, the plaintiff being at the time "of the injury in the service of the defendant as a brakeman. Heard on defendant’s petition fora new trial, after a verdict in favor of the plaintiff for $5,000.

<p>1. COMMEHCE — POWEK TO REGULATE — POWEB OK CONGEESS — EMPLOYEES’ LIABILITY Aot.</p> <p>The act of Congress of June 11, 1906, 34 Stat. 232, c. 3073, commonly called the “Federal Employers’ Liability Act,” is a regulation of commerce between the states or with foreign nations, within the meaning of" the commerce clause of the Constitution, and hence within the power of Congress.</p> <p>2. Same — Natuee ok Poweb.</p> <p>Decisions defining the meaning and scope of the commerce clause of the Constitution considered and discussed, the trend of all of them being to the effect that the commercial power conferred by tbe Constitution authorizes legislation with respect to all the subjects of foreign and inter-' state commerce, tbe persons engaged in it, and tbe instruments by which it is carried on, and as to such suujeets is without limitation.</p> <p>31 Same.</p> <p>Decisions concerning the validity of state statutes, upon the questions involved here, considered and discussed, and from them the following general rules deduced: ,(1) That the liability of common carriers for injuries to their employes growing out of their negligence or the negligence of their other employes is a proper subject for governmental regulation, and Congress has- the power, whenever it chooses .to exercise: it, to make’ reguhitions on that subject within its field of, control, namely, interstate and foreign commerce, similar to those the state Legislatures, may make in their field. (2) That such statutes are not, in themselves, regulations of interstate commerce, although they control,, in some degree,-the,'eon-duct and the liability o£ those engaged in such commerce, and a state may therefore, so long as Congress has not legislated upon the particular subject, enact them, in the rightful exercise of its police power to regulate the relative rights and duties of all persons and corporations within its limits, without invading the exclusive power of Congress. But Congress may also, under the power conferred by the commerce clause of the Constitution, enact such legislation as a regulation of interstate or foreign commerce. (3) That, while as a general rule the police power belongs to the states, yet Congress may, in the exercise of its power to regulate interstate commerce, impose upon such commerce regulations which are in their essential nature police regulations.</p> <p>4. Same.</p> <p>If Congress, having for its object the protection of the lives and limbs' of railroad employes, can make a specific regulation such as that embodied in the “Safety Appliance Act,” as to which it would seem there can be no doubt (Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 15S, 49 L. Ed. 368), it can, with the same object in view, make a general regulation such as that embodied in this act. The object of the statute is plain upon its face. It is apparent that Congress had in contemplation much more than the mere creation and imposition of the liability mentioned'. It had in contemplation the protection of the lives and persons of the employes of common carriers engaged in interstate or foreign commerce whose employment has any relation to such commerce. With that object in view, it enacted the statute, and by its provisions changed certain common-law rules determining liability in order to promote that object by securing, so far as the statute -could compel it, a more careful selection of employes, a closer and more careful supervision of them, and a more rigid enforcement of their duties.</p> <p>5. Same.</p> <p>It is the carrier engaged in interstate commerce that this act seeks to regulate in relation to its duties to its employes, and the power of Congress extends to, and the act was intended to cover, all the employes whose employment relates to such commerce; and if such common carrier is also at the samé time engaged in intrastate commerce, using the same means and agencies for both, the power of Congress extends to, and the act was intended to cover, all the employes whose employment relates to such means and agencies.</p> <p>6. Same.</p> <p>The fact that a common carrier engaged in interstate commerce may also be engaged in intrastate commerce, using therein in whole or in part the same means and agencies, cannot defeat the power of Congress to regulate such carrier. The regulation of intrastate commerce, which may result in such a case (if, indeed, in such ease there could be said to be any regulation of intrastate commerce by such an act as this), is incidental1, and due to the manner or method in which the carrier conducts its business, and to the fact that it thus combines or commingles its interstate with its intrastate commerce.</p> <p>7. Constitutional Law — Statutes—Construction in Favob oe Validity.</p> <p>But this act is remedial and not penal, and would therefore not only permit, but, if necessary to sustain its validity, require a liberal construction. If, therefore, it were necessary to sustain its validity, there is ample authority for so construing it ‘as to confine its operation to those whose injuries occur at a time when they are actually engaged upon interstate traffic; the facts and circumstances of each particular case determining whether or not the act is applicable. The Trade-Mark Cases and the McKendree Case distinguished.</p> <p>8. Master . and Servant — Injuries to Servant — Fellow Servants — Contributory Negligence.</p> <p>The reasoning of the cases in which the fellow-servant rule has been laid down by the courts has, in view .of modern methods and conditions, lost much, and in some cases all, of its force. The contributory negligence rule as applied by the courts, in view of modern conditions surrounding those engaged in certain occupations, is harsh, cruel, and unjust, and ought long since in the furtherance of justice and in the interest of humanity to have been greatly modified. And there are substantial reasons why an employer engaged in certain occupations should not be permitted to relieve himself by contract with his employes from liability for injuries caused by his negligence or the negligence of his other employes.</p> <p>0. CONSTITUTIONAL LAW — llQUAL PROTECTION OF LAWS.</p> <p>The contention that the act violates the fifth, seventh, tenth, and fourteenth amendments of the Constitution is without merit.</p> <p>10. Masher and Servant — Injuries to Servant--Statutory Provisions.</p> <p>It appears that defendant is a railroad company engaged in interstate ■commerce; that plaintiff at the time of his injury, which was subsequent to the passage of the act, to wit, on, the 1st day of November, 1906, was an employe of defendant, engaged in repairing its railroad track on which such commerce is carried on; and that plaintiff rested his complaint upon the provisions of the federal employers’ liability act. Held, upon demurrer raising the point, that such act is constitutional and valid, and that the demurrer should be overruled.</p> <p>(Syllabus by the Court.)</p>

<p>1. Limitation of Actions — Pleading Bar — Equity.</p> <p>Not merely the defense of laches, but the bar of the statute against a suit for an accounting by an administratrix for money which went into the hands of intestate, R., is sufficiently pleaded by an answer alleging that if there had ever been any claim against R. in his lifetime by reason of the alleged transactions, which is denied, said claim is barred by the lapse of time and the neglect of plaintiff to have a settlement of the same in the lifetime of decedent, and defendant therefore pleads that any such claim is barred, as plaintiff allowed the claim to sleep till after the death of deceased; the same strictness of pleading the statute not being required in equity as at law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 683-686.]</p> <p>2. Courts — Federal Courts — Procedure in State Courts — Witnesses—Competency — Transactions with Decedents.</p> <p>Notwithstanding that under the state statute persons interested in the event of the suit, though not parties thereto, are incompetent to testify to transactions or communications with defendant’s intestate, they may do so in a suit in a federal court, under Rev. St. U. S. § 858 [U. S. Comp. St. 1901, p. 659], providing that in the courts of the United States no witness shall'be excluded because he is a party to or interested in the issue tried; provided, that in actions by or against administrators neither party shall be allowed to testify against the other, as to transactions with, or statements by, deceased, unless called to testify thereto by the opposite party, or required to testify thereto by the court.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 13, Courts, § 925.]</p> <p>3. Trusts — Trustee De Son Tort.</p> <p>Where a company executed a paper whereby it assigned accounts and sold goods to a bank, providing that the bank should collect the one and sell the other and apply the proceeds to payment of the company’s notes to the bank, and the president of the bank concealed from the bank such fact, and without authority of his co-directors took possession of. the property and used the proceeds for other debts of the company, of which he was a stockholder, he constituted himself a trustee de son tort for the bank.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 153-1&5.]</p> <p>1. Limitation oe Actions — Running op Statute — Obstructing Prosecution oe Rigiit.</p> <p>Where a company assigned accounts and sold goods to a bank to apply the proceeds on the company’s notes to. the bank, and the bank’s president concealed such facts from it, and took possession of the property and applied the proceeds to other debts of the company, of which he was a stockholder, the statute did not, during such concealment, run against the bank’s right of action for an accounting, under Code 1906, § 3511, providing that where a debtor obstructs the prosecution of a right the time of such obstruction shall not be computed in the limitation period.</p> <p>5. Samp — Enforcement oe Trust — Laches.</p> <p>Where a bank’s president concealed from it the facts giving it right to have him account as a trustee de son tort, but a year after his death and the discovery of the facts it commenced suit, the defense of laches is not available.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 568-573.]</p>

<p>1. Removai, of Causes — Condemnation Proceedings.</p> <p>A proceeding by a municipality to condemn private property to its public use partakes of the character of a suit at law so far as to render it removable from the state to the proper federal court, whore the conditions exist authorizing a removal as prescribed by the removal acts.</p> <p>(Ed. Note. — Proceedings under power of eminent domain as civil suits under laws relating to removal of causes to federal courts, see note to South Dakota & C. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 73 O. C. A. 183.]</p> <p>2. Same — Separable Controversy.</p> <p>Since a proceeding to condemn land by Kansas City under its city charter as construed by the Supreme Court of the state presents a case of an indivisible unit, to be tried to one and the same jury, unless a jury trial is waived, and the whple finding as against all the defendants must be embraced in one judgment, so that if reversed on appeal the entire case must be tried de novo, such a proceeding as against both residents and nonresidents did not present a separable controversy as between the city and the nonresidents whose property was sought to be condemned, and was therefore not removable to the federal courts.</p> <p>[Ed. Note. — See separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, IS C. C. A. 86; Mecke v. Valley town Mineral Co., 35 C. C. A. 155.]</p>

Habeas Corpus. This is a petition for a writ of habeas corpus filed by George W. Kirkman, late captain Twenty-Fifth United States Infantry, against R. W. MeClaughry, the warden of the United States penitentiary at Ft. Leavenworth, in which penal institution petitioner is confined by authority of sentences imposed by general courts-martial duly and regularly entered against him and properly approved in compliance with the articles of war.

<p>PAKTNEKSirfp — Firm and Individúan Creditors — Payment from Fibm Assets. When a firm and the members thereof were insolvent one of them made a sale of his interest to the other for a nominal sum and the assumption by the purchaser of the firm debts. Thereupon the purchaser used funds so received to pay an individual creditor. Held that, the sale not being in good faith, the funds so paid could be recovered for the firm creditors.</p>

<p>1. Cabeiebs — Interstate Commebce — Rebates.</p> <p>A shipment from New York City to Buffalo, by way of Now Jersey and, Pennsylvania, is interstate commerce, and so is subject to the provisions of the Elkins law (Act Feb. 19, 1908, c. 708, 32 Stati 847 [U. S. Comp. St. Supp. 1905, i). 599]), as to rebates; the interstate commerce act (Act Feb. 4, 1887, c. 104, § 1, 2¿t Stat. 379 FU. S. Comp. St. 1901, p. 3154]), though providing that the provisions of the act shall apply to- any carrier engaged in the transportation of passengers or property from one state to any other state, having a proviso that the provisions of this act shall not apply to the transportation of property “wholly” within one state.</p> <p>2. Same — Indictment eob Giving Rebates.</p> <p>An indictment against a carrier, alleging that P. was thé duly authorized agent of the S. Company and vested by it with the sole and exclusive power and authority to determine over which line any shipment by it should be made; that defendant entered into an unlawful agreement with P. whereby it was agreed that P., as such agent, should cause S, to make large shipments over defendant’s road, and S. should pay defendant the lawful rate for such shipments, and thereafter P. should present claims to defendant for a rebate on such shipments, under the guise of Claims for services; and that such scheme was carried out, and defendant made payments to P. by way of rebate — charges a payment of rebates in violation of the Elkins law (Act Eeb. 19; 1903, c. 708, 32 Stat. 847 [TJ. S. Comp. St. Supp. 1905, p. 599]); the fact that the rebate is paid to another than the shipper being immaterial, though a payment which is but a commission for obtaining business for the carrier is not within the statute.</p> <p>3. Indictment and Infokmation — Duplicity.</p> <p>An indictment under the Elkins law (Act Feb. 19, 1903, e. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), declaring it unlawful for a carrier to offer, grant, or give a rebate, alleging that defendant offered, granted, and gave a rebate, is not duplicitous, but charges but one offense.</p> <p>4. Gaekieks — Act as to Rebates — Effect of Repeal of Pbiob Statutes.</p> <p>The provision of the Hepburn law (Act June 29, 1906, c. 3591, § 10, 34 Stat. 584), repealing laws in conflict with the act, that..“the amendments herein provided for shall not affect.causes now pending * * * but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law,” in view of Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], providing that “the repeal of any statute shall not have the effect to re? lease or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability,” applies to rebate offenses committed before, but prosecution for which was commenced after, the passage of such act; so that an indictment in such a case alleging that a carrier “unlawfully and willfully” gave rebates, which would be enough under the Elkins law (Act Eeb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), is sufficient, though under the Hepburn law it would be necessary to allege that they were given “knowingly.”</p>

<p>Shipping — Chaster Party — Optional Employment op'Vessel.</p> <p>A charter for a steamship was for a voyage to the west coast of South America and return, but gave the charterer an option to eipploy the vessel in general trade for a period of about three months, but' not exceeding five months. After, employing the vessel between ports of the United States, the West Indies, and eastern South America for between two and three months, the -charterer proposed to send her to the west coast of South America, and offered an increased hire, but the owners refused. Such voyage would have involved a considerable extension of time in excess of five months. Held, that the charterer had'Used the' vessel under the option for general trading, and was not then entitled to intake the west coast voyage under the' charter without a further agreement for the additional time.</p>

<p>1. Fines — Death op Party — Abatement.</p> <p>AVliero accused was convicted of giving rebates, in violation of the interstate commerce act and. its amendments, and sentenced to pay a fine, but died after judgment before the fine was paid, the judgment and entire proceedings abated on his death, and it was not a claim enforceable against his personal representatives.</p> <p>2. Same — Court’s Jurisdiction.</p> <p>Where decedent had been sentenced to pay a fine for giving rebates, in violation of the interstate commerce act, and judgment had been entered against him before he died, but had not been paid, the court in which the judgment was rendered had jurisdiction to abate the proceedings, on the motion of decedent’s personal representatives, on notice to the government.</p>

<p>Cor.nisi o v — Jamming or Vesskl at Pieb — Bonn Vessels in Fault.</p> <p>A steam lighter, jammed, while discharging cargo at a wharf in the Erie Basin by a car float lying alongside a steamship fastened at an adjoining wharf, through the listing of the steamship when the tide ebbed, hold in fault for going to and remaining in a dangerous position after being warned by the harbor master; and the steamship also held in fault for causing the float to be brought to her side, when she knew that she would list when the tide receded and push the float against the lighter.</p> <p>[Ed. Note. — 'For cases in point, see Cent. Dig. vol. 10, Collision, § 102.]</p>

<p>1. Salavge — Amount of Compensation — Derelicts.</p> <p>The amount to be awarded to a salvor is in all cases left to the discretion of the court, but that is not an unlimited discretion, being governed by principle and precedent. The rule that one-half should be awarded for the salvage of a derelict while not inflexible should not be departed from except under extraordinary circumstances.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 69.</p> <p>Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p> <p>2. Same.</p> <p>' The doctrine of compensation as upon a quantum meruit has little application in the maritime law of salvage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 55.]</p> <p>■3. Same.</p> <p>An Italian steamship worth with her cargo $233,000, while proceeding from Genoa via Baltimore to New Orleans, when some distance southwesterly of Cape Lookout lightship, and after a severe storm, discovered, one after the other, two schooners dismasted and abandoned. These were both taken in tow and towed to Charleston, 220 miles distant, which was the nearest port of which the master had a chart. The steamship was delayed by reason of the service something over 60 hours. The weather was good, and the towing, while requiring care and skill and constant attention day and night, owing to the disabled condition of the schooners, was not attended by any great risk except from the parting of the hawsers, by which the first mate was killed. The two vessels with their cargoes were of the value of $14,000. Held, that the usual rule in relation to the* salvage of derelicts would be followed, and the ship awarded one-half the value saved, in addition to the expenses and losses incurred in the service.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 69.]</p>

<p>On Motions to Vacate Order to Bring in Nonresident Defendants and to Quash the Service upon Them of Subpoenas.</p>

<p>Shipping — Contract por Rispaie of Vessel-Dock Trial op Boiler.</p> <p>An agreement to prepare a steam yacht for a dock trial does not mean that the repairer shall furnish a new boiler, if the dock trial develops leaks, and especially when it is subsequently shown that the boiler was 'so faulty in construction that it was necessary to replace it with one of a different type.</p>

<p>In Equity. Suit for adjustment of land grant.</p> <p>Stipulation as to Evidence.</p> <p>It is stipulated and agreed by and between the parties to this case, subject to all valid objections as to competency and relevancy, as follows:</p> <p>Subdivision 1.</p> <p>Item 1. That all acts of Congress and laws of the state of California, whether of public or private, general or special, nature, and all official acts and decisions of the Commissioner of the General Land Office and Secretary of Interior relating to the Southern Pacific Railroad Company or to the Atlantic & Pacific Railroad Company, or affecting the rights of either of said companies or of the United States, and all decisions of the Supreme Court of the United States reported in the United States Reports relating to or affecting the rights of either of said companies, in so far as relevant and material to the issues and controversies in this case, shall be deemed before this court for judicial notice.</p> <p>Subdivision 2.</p> <p>Item 2. The act of Congress approved on July 27, I860, entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the State of Missouri and Arkansas to the Pacific,” is admitted in evidence, by reference to the same as printed in volume 14 of the United States Statutes at Large, pages 292 and following.</p> <p>Item 3. Within due time, the Atlantic & Pacific Railroad Company, mentioned in the act of Congress referred to in item 2 hereof, assented to, and accepted the terms and conditions of, that act.</p> <p>Item 4. The said Atlantic & Pacific Railroad Company filed maps designating its line of route with the Secretary of the Interior, which the Secretary of the Interior accepted as definitely locating the line of road, in sections and at dates as follows: From Springfield, Mo., to the west line of Missouri, on December 17, 1866; from the west line of Missouri to 'Kingfisher creek, I. T., on December 2. 1871; from Kingfisher creek to the east: rn boundary of New Mexico on February 7, 1872; from the eastern boundary of New Mexico, to the western boundary of New Mexico on March 12, 1872; from the western boundary of New Mexico, through Arizona, to the east hank of Colorado river, near Needles, on March 12, 1872; from the last-mentioned point on the Colorado rivor to township 7 north, range 7 east, San Bernardino meridian, in California, on August 15, 1872; from the last-mentioned point (township 7 north, range 7 east) to the west line of Los Angeles county, in California, on March 12, 1872; and from the last-mentioned point to the Pacific Coast, at San Bnena Ventura, on August .15, 1872. As such maps were filed, as aforesaid, the Secretary of the Interior transmitted them to the Commissioner of the General Land Office, directing that they be given proper action, except that the said two maps filed on August 15, 1872, were transmitted by the Secretary of the Interior to the .Commissioner on April 16, 1874, without express direction.</p> <p>Item 5. Under direction of the Secretary of the Interior, the Commissioner of the General Land Office, on April 22, 1872, withdrew from pre-emption or homestead entry, private sale or location, all odd-numbered sections of public land in California lying within 20 miles and 30 miles on each side of the line of route designated upon the maps referred to in item 4 hereof as.filed on March 12, 1872, which were not reserved, sold, granted, or otherwise appropriated, and were free from pre-emption, or other claims or rights, on March 12, 1872; and on November 23, 1874; the said Commissioner, under direction of the Secretary of the Interior, withdrew from sale or entry all odd-numbered sections of public laud in California lying within 20 miles and 30 miles on each, side of the line of route designated upon the maps referred to in item 4 hereof as filed on August 15, 1872. saying in his said order of withdrawal of November 23, 1874, that the rights of the Atlantic & Pacific Railroad Company must attach to the lands so withdrawn as of August 15, 1872.</p> <p>Item 6. The withdrawals referred to in the next preceding paragraph hereof were accompanied by plats showing the line of route in California designated by the maps referred to in item 4 hereof, with 20-mile limit lines and 30-mile limit lines parallel with and on each side of the said line, as such limit lines were established by the Commissioner of the General Land Office under direction of the Secretary of the Interior.</p> <p>Item 7. The Atlantic & Pacific Railroad Company did not construct any railroad in California.</p> <p>Item 8. The act of Congress approved on July 6, 1886, entitled “An act to forfeit the lands granted to the Atlantic & Pacific Railroad Company to aid in the construction of its road, and for other purposes,’’ is admitted in evidence, by reference to the same as printed in volume 24 of the United States Statutes at Large, pages 123 and following.</p> <p>Subdivision 3.</p> <p>Item 9. The Southern Pacific Railroad Company, mentioned in the act of Congress referred to in item 2 hereof, was duly incorporated and organized as such under the laws of California on December 2, 1865, and the said company was thereby authorized and empowered to construct, own, maintain, and operate a railroad from the Bay of San Francisco, thence through the counties of San Francisco, Santa Clara, Monterey, San Luis Obispo, Tulare, and Los Angeles to the town of San Diego, thence easterly through San Diego county to the Colorado river.</p> <p>Item 10. Within due time, ■ the said Southern Pacific Railroad Company duly assented to, and accepted the terms and conditions of, the act of July 27, 1866, mentioned in item 2 hereof.</p> <p>Item 11. On January 3, 1867, the said Southern Pacific Railroad Company filed with the Secretary of the Interior a map designating a line of general-route of the railroad which it claimed the right and authority to construct under the provisions of the act of Congress of July 27, 1806, referred to in item 2 hereof; which line of route as designated on ,the said map commenced in the city of San Francisco and extended thence by way of San Jose, Gilroy, Tres Pinos, Alcalde, Huron, Goshen, and Mojave, to the Colorado river, at or near Needles.</p> <p>Item 12. On January 3, 1867, the Secretary of the Interior received and filed the map referred to in item 11 hereof, and on that day delivered it to the Commissioner of the General Land Office, with directions that the said map be given appropriate official action.</p> <p>Item 13. On March 22, 1867, the Commissioner of the General Land Office, acting under direction of the Secretary of the Interior’s letter dated March 19, 1867, withdrew all odd-numbered sections of public land lying within 20 miles and 30 miles on each side of flic line of-route shown on the map set forth in item 11 hereof from sale or location, pre e — ption, or homestead entry- The Secretary of the Interior in his above-mentioned letter of March 19, 1867, after directing the withdrawal, said: “I do not think it necessary at this time to pass upon the question as to whether this railroad company have adopted the route of any other railroad. Any indemnity of grant arising out of conflict of location under the first proviso in the third section of the Act, will be reserved for future consideration.”</p> <p>Item 34. The withdrawal referred to in the next preceding paragraph hereof was accompanied by a map showing the line of general route designated on the map set forth in item 11 hereof, with 20-mile limit lines and 30-mile limit lines parallel with and on each side of the said line of route, as such limit lines were established by the Commissioner of the General Land Office under direction of the Secretary of the Interior.</p> <p>Item 15. On July 14, 1868, the Secretary of the Interior rendered a decision wherein he held that the Southern Pacific Railroad Company was not lawfully authorized to construct a railroad along the line of route designated upon the map of January 3, 1867, set forth in item 11 hereof, and ordered the withdrawals referred to in item 13 hereof set aside; on August 20, 1868, the Secretary of the Interior vacated the said order of July 14, 1868, as to all lands south of San José; on November 2, 1869, the Secretary of the Interior revoked the said order of August 20, 1868, and directed restoration of the lands withdrawn on March 22, M 867; on November 11, 1869, upon review, Secretary Cox affirmed his said order of November 2, 1869. and directed, restoration of the said lands after 60 days’ publication; on December 15, 1809, Secretary Cox suspended the said orders of restoration made on November 2, 1869, and November 11, 1869; and on July 26. 1870, the Secretary of the Interior directed that the original withdrawals of March, 1867, set forth in iiem 13 hereof, be respected.</p> <p>Item. 16. The act of Congress, approved on June 25. 1868, entitled “An act relative to filing reports of railroad companies,” is admitted in evidence, by reference to the same as printed in volume 15 of the United Slates Statutes at Large, page 79.</p> <p>Item 17. Nie act of Congress, approved on July 25, 1808, entitled “An act to extend the lime for the construction of the Southern Pacific Railroad in the state of California,” is admitted in evidence, by reference to the same as printed in volume 15 of the United States Statutes at Large, page 187.</p> <p>Item 18. Prior to the year 1809 the San Francisco & San José Railroad Company was duly incorporated and organized under the laws of California, and thereby authorized to construct a railway from San Francisco to San José.</p> <p>Item 19. During the year 1869 the said San Francisco & San José Railroad Company constructed and fully equipped a railroad from San Francisco to San José; during the same year the said Southern Pacific Railroad Company constructed and fully equipped a continuation of the said railroad from San José to Gilroy, a distance of 30.26 miles; and during the years 1869"and 1870 the said Southern Pacific Railroad Company constructed and fully equipped a further continuation of the said railroad from Gilroy to Tres Pinos, a distance of more than 20 miles. All of the said railroad from San Francisco to Tres Pinos was constructed upon, or as nearly as practicable upon, the line designated on the map of January 3, 1867, set forth in item 11 of this statement.</p> <p>Item 20. By an act approved on March 1, 1870. entitled “An act relating to certificates of incorporation,” the Legislature of California provides as follows :</p> <p>“Section 1. Any corporation now or hereafter organized under the laws of this state may amend its articles of association, or certificate of incorporation, by a majority vote of the board of directors, or trustees, and by a vote of written assent of the stockholders representing at least two-thirds of the capital stock of such corporation; and a copy of the said articles of association or certificate of incorporation as thus amended, duly certified to be correct by the president and secretary of the board of directors, or trustees of such corporation. shall be filed in the same office, or offices, where the original articles or certificate are required by law to be filed; and from the time of filing such copy of the amended articles or certificate, such corporation shall have the same powers, and it and the stockholders thereof shall be thereafter subject to the same liabilities as if such amendment had been embraced in the original articles or certificate; provided, that the time of the existence of such corporation shall not be thereby extended beyond the time fixed in the original articles or certificate; and provided; further, that such original and amended articles or certificate shall, together, contain all the matters and things required by the law under which the original articles of association or certificate of incorporation were executed and filed; and provided further, that nothing herein contained shall be construed to cure or amend any defect existing in any original certificate of incorporation heretofore filed, by reason of the failure of such certificate to set forth matters required by law to make the same valid as a certificate of incorporation at the time of the filing thereof; also provided, that unless the vote or written assent of all the stockholders has been obtained, then a notice of the intention to make such amendment shall first be advertised for sixty days, in some ’newspaper in the town or county in which the principal place of business of said company is located; and the written protest of any one of said stockholders, or his duly authorized agent or attorney, whoso assent has not been obtained, filed .with the secretary of the said company, shall, unless withdrawn, be effectual to prevent the adoption of such amendment; provided, that nothing in this act shall be construed to authorize any corporation to diminish its capital stock.</p> <p>“Sec. 2. This act shall take effect and be in force after its passage."</p> <p>Item 21. By an act approved on April 4, 1870, entitled “An act to aid in giving effect to an act of Congress relating to the Southern Pacific Railroad Company,” the Legislature of California enacted as follows:</p> <p>“Section 1. Whereas, by the provisions of a certain act of Congress of the United States of America, entitled ‘An act granting lands to aid in the construction of a railroad and telegraph line from San Francisco to the eastern line of the state of California,’ approved July twenty-seventh, eighteen hundred and sixty-six, certain grants were made to, and certain rights, privileges, powers and authorities were vested in and conferred upon the Southern Pacific Railroad Company, a corporation duly organized and existing under the laws of the state of California; therefore, to enable the said company to more fully and completely comply with and perform the requirements, provisions and conditions of the said act of Congress, and all other acts of Congress now in force or which may hereafter be exacted, the state of California hereby consents to said act; and the said company, its successors and assigns, are hereby authorized and empowered to change the line of its railroad so as to reach the eastern boundary line of the state of California by such route as the company shall determine to be the most practicable, and to file new amendatory articles of association; and the right, power and privilege is hereby granted to, conferred upon and vested in them, to construct, maintain and operate, by steam or other power, the said railroad and telegraph line mentioned in, the said acts of Congress, hereby confirming to and vesting in the said company, its successors and assigns, all the rights, privileges, franchises, power and authority conferred upon, granted to or vested in said company by the act of Congress and any act of Congress which may be hereafter enacted.</p> <p>“Sec. 2. This act shall take effect and be in force from and after its passage.” ' . ,</p> <p>Item 22. The joint resolution of Congress, approved on July 28, 1S70, entitled “Joint resolution concerning the Southern Pacific Railroad of Caliiornia,” is admitted in evidence, by reference to the same as printed in volume 16 of the United States Statutes at Large, page 382.</p> <p>Item 23. On October 11, 1870, articles of association, amalgamation, and consolidation were made and entered into, in due conformity to and compliance with the laws of California, by and between the said Southern Pacific Railroad Company and San Francisco & San José Railroad Company whereby it was provided that the last-named company was amalgamated and consolidated with the said Southern Pacific Railroad Company, under the corporate name and style of “Southern Pacific Railroad Company,” and that the said Southern Pacific Railroad Company thereby became the owner of all stock. and property of the said Sail Francisco & San José Railroad Company; and the said articles further provided that the Southern Pacific iiaiiroad Company was authorized to purchase, construct, maintain, own, and opa-aie a railroad from the city of San Francisco through the counties of San Francisco, San Mateo, Santa Clara, Monterey, Freno, Tumre, Kern, San Hernaruino, and San Diego to the Colorado river, and such branch line railroads as its board of directors might deem advantageous.</p> <p>Item 24. The said Southern Pacific Railroad Company never constructed any railroad between Tres Pinos and Alcalde, a distance of about 50 miles.</p> <p>Item 25. The said Southern Pacific Railroad Company completed the construction of, and fully equipped, a continuous line of railroad from Tres Pinos, by way of Huron, Goshen, and Mojave, to junction with the Atlantic & Pacific Railroad, on the Colorado river, at Needles, in several sections, on or about the following dates: The seventeenth section, 20.559 miles, from Tres Pinos (in N. E. ¾ of section 28, township 21 south, range 14 east, M. D. M.) to a point in the N. TV. ¾ of section II, township 20 south, range 17 east, 31. D. M., on July .16, 1888; the ninth section, 20 miles, from the last-mentioned point to the N. E. ¾ of section 2, township 19 south, range 20 east, M. D. M., on January 9, 1877; the eighth section, 20 miles, from the last-mentioned point to Goshen (in section 19, township 18 south, range 24 east, M. D. M.), on December 11, 1876; the third section, 20 miles, from Goshen to the N. W. ⅛ of section 30, township 21 south, range 25 east, M. D. M., on June 30, 1872; the fourth section, 20 miles, from the last-mentioned point to the N. W. ⅛ of section 2, in town ship 25 south, range 25 east, 31. D. 31., on June 30, 1873; the fifth section, 20 miles, from the last-mentioned point to the N. E. ¾ of section 9, township 28 south, range 26 east, M. D. M., on June 13, 1874; the sixth section, 20 miles, from the last-mentioned point to the N. E. ⅛ of section 5, township 30 south, range 29 east, M. D. 31., on June 10, 1875; the seventh section, 20 miles, from the last-mentioned point to the S. E. ¼ of section 33, township 30 south, range 31 east, M. D. M., on January 13, 1876; the tenth section, 41.66 miles, from the last-mentioned point to Mojave (in the N. E. ⅛ of section 17, township 11 north, range 12 west, S. B. 31.), on December 17, 1877; the eleventh section, twelfth section, thirteenth section, fourteenth section, fifteenth section, and sixteenth section, in all 242,507 miles, con¡necting with the tenth section at Mojave, and extending thence to the Colo-, rado river, at or near Needles, all constructed prior to April 19, 1883.</p> <p>Item 26. Commissioners, duly appointed for that purpose, examined all of die said railroad from San José to Tres Pinos, and from Alcalde to the Colorado river, at or near Needles, after construction, re^pectlveY, of each of the said several sections thereof, and duly reported to the Secretary of the Interi- or that each of said sections had been completed in a good, substantial, and workmanlike manner, as near as may be along the line indicated on the map of January 3, 1867, set forth in item 11 of this stipulation, in all respects as required by the said act of July 27, 1866, and recommended that the same be accepted and approved; each of which reports was accompanied by a map of the survey, location, and profile of the section of road as constructed and reported upon, duly verified by the proper officers of the said Southern Paciúc Railroad Company as a map and profile of such railroad as finally located and constructed and as correctly showing the location thereof, with the approval of the said commissioners indorsed upon the maps; and each of said reports and maps were accepted and approved by the Secretary of the Interi- or. Such reports were made and maps approved by the commissioners, and said reports and maps were received, filed, and approved by the Secretary of the Interior, on the following dates: First section (San José to Gilroy), report made and maps approved by the commissioners on October 29, 1870, report and map approved by the Secretary on January 20, 1871; second section (Gilroy to Tres Pinos), report made and maps approved by the commissioners on, September 12, 1871, report and map approved by the Secretary on October .13, 1871; third section, report made and map approved by the commissioners on September 14, 1872, report and map approved by the Secretary on September 28, 1872; fourth section, report made and map approved by the commissioners on July 23, 1873, report and map approved by the Secretary on August 5, 1873; fifth section, report made and map approved by the commissioners on September 19, 1S74, report and map approved by the Secretary on October 9, 1874; sixth section, report made and map approved by the commissioners on August 3, 1875, report and map approved by the Secretary on August 21, 1875; seventh section, report made and map approved by the commissioners on May 27; 1870, report and map approved by the Secretary on June 14, 1876; eighth section, report made and map approved by the commis-si odors on January 2, 1877, report and map approved by the Secretary on January 22, 1877; ninth section, report made and map approved by the commissioners on February 9, 1877, report and map approved by the Secretary on February 20, 1877; tenth section, report made and map approved by the commissioners on January 30, 1878, report and map approved by the Secretary on February 11, 1878; eleventh- section, twelfth section, thirteenth section, fourteenth section, fifteenth section, and sixteenth section, reports made and maps approved-by the commissioners on December 27,_ 18S4, reports and maps received and filed by the Secretary on January 7,' 1885, and approved by the Secretary on September —, 1897; seventeenth section, report made and map approved by the commissioners on April 2, 1S89, report and map approved by the Secretary on October 23, 1889.</p> <p>Subdivision 4.</p> <p>Item 27. The act of Congress approved on March 3, 1871, entitled “An act to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes,” is admitted in evidence by reference to the same as printed in volume 16 of the United States Statutes at Large, pages 573 and following.</p> <p>Item 28. On May 16, 1871, the board of directors of the Southern Pacific Railroad Company adopted a resolution accepting the terms, conditions, and impositions of the act of Congress mentioned in the next preceding paragraph hereof, and directing that a copy thereof, certified under the seal of said company, be,forwarded to and filed with the Secretary of the Interior; and on February 25, 1887, a copy of the said resolution, certified by the Secretary of the said company, under the corporate seal, of the said company, was filed with the Secretary of the Interior.</p> <p>Item 29. On April 3, 1871, the said Southern Pacific Railroad Company filed with the Secretary of the Interior a map designating the line of general route of the railroad which it claimed the right and authority to construct under the provisions of the said act of March 3, 1871; which map the Secretary of the Interior on that day received, filed, and delivered to the Commissioner of the General Land Office, with directions that the same be given appropriate action.</p> <p>Item 30. On April 21, 1871, the Commissioner of the General Land Office, under direction of the Secretary of the Interior, withdrew all odd-numbered sections of public land lying within 20 miles and 30 miles on each side of the line of route shown on the map referred to in item 29 hereof from sale or location, pre-emption or homestead entry.</p> <p>Item 31. The withdrawal referred to in item 30 hereof was accompanied by a plat showing the line of general route designated- on the map set forth in item 29 of this stipulation, with 20-mile limit lines and 30-mile limit lines parallel with and on each side of the said line of route, as such limit lines were established by the Commissioner of the General-Land Office under direction of the Secretary of the Interior.</p> <p>Item 32. On April 15, 1871, the said Southern • Pacific Railroad Company, duly conforming to and complying with the laws of California, amended its articles of incorporation as they then existed, so as to include therein a particular description of the line of route designated on the plat set forth in item 29 hereof.</p> <p>Item 33. The said Southern Pacific Railroad Company completed the construction of, and fully equipped, a continuous railroad from Mojave, by way of Los Angeles, to the Colorado river, at or near Yuma, in several sections, along or near the line designated on the said general route map of April 3. 1871; all prior to December 6, 1877.</p> <p>Item 34. Commissioners, duly appointed for that purpose, examined all of the said railroad after construction, respectively, of each of the several sec-lions thereof, and duly reported to the Secretary of the Interior that each of said sections had been completed in a good, substantial, and workmanlike manner, in all respects as required by the said act of March 3, 1871, and recommended that the same be accepted and approved; each of which reports was accompanied by a map of the survey, location, and profile of the section of road as constructed and reported upon, duly verified by the proper officers of the said Southern Pacific Railroad Company as a map and profile of such; railroad as finally located and constructed, and showing the correct location' thereof, with the approval of the said commissioners indorsed upon the maps. The said reports were made and maps approved by the commissioners, and the said reports and maps were filed and approved by the Secretary of the Interior, and approved, by the President of the United States, on the following dates: First section (from a point in the N. W. ¼ of section 3, township 2 north, range 15 west, S. B. M., to a point in the N. E. ¾ of section 27, township 1 south, range 0 west, S. B. M., a distance of 50 miles), report made and map approved by the commissioners on April 15, 1874, report and map filed and approved by the Secretary of the Interior on May 8, 1874, and report approved by the President of the United States on May 9, 1874; second section (from the said point in the N. E. ¾ of section 27, township 1 south, range 9 west, S. B. M., to a point in the S. W. ¾. of section 4, township 3 south, range 1 west, S. B. M., a distance of 50) miles), report made and map approved by the commissioners on October 21, 1875, report and map filed and approved by the Secretary on November 8, 1875, and report approved by the President on November 1Í, 1875; third section (from the said point in .the S. W. ½ of section 4, township 3 south, range 1 west, S. B. M., to a point in the S. W. ¼. of section 24, township 5 south, range 7 east, S. B. M., a distance of 50 miles), report made and map approved by the commissioners on June 22, 1876, report and map filed and approved by the Secretary on July 10, 1876, and report approved by the President on July 21, 1876; fourth section (from the said, point in the N. W. ¾ of section 3, township 2 north, range 15 west, S. B. M., to a point in the N. E. ⅛ of section 17, township 11 north, rahge 12 west, S. B. M., a distance of 78.59 miles), report made and map approved by the commissioners on February 17, 1877, report and map filed and approved by the Secretary on March 1, 1877, and report approved by the President on March 2, 1877; fifth section (from the said point in the S. W. ½ of section 24, township 5 south, range 7 east, S. B. M., to a point in the S. E. ¾ of section 26, township 16 south, range 22 east, on the Colorado river, a distance of 1,18.37 miles), report made and map approved by the commissioners on December 6, 1877, report and map filed and approved by the Secretary on Januaiy 19, 1878, and report approved by the President on January 23, 1878.</p> <p>_ Subdivision 5.</p> <p>Item 35. The following lands described in Exhibit B attached to plaintiff’s bill of coinplaint herein are within primary limits common to the land grants made by the said act of Congress of July 27, 1866, unto the Atlantic & Pacific Railroad Company and unto the Southern Pacific Railroad Company; for which reason the plaintiff’s bill of complaint herein is dismissed, without prejudice, as to said lands, to wit, sections 1, 3, 5, N. ½ of N. E. ¾ of section 7, N. ½ of N. E. ¼, N. ⅛ of N. W. ¼ of section 9, N. ½, and N. ⅛ of S. ½ of section 11, all in township 6 north, range 30 west, San Bernardino base and meridian.</p> <p>Item 36. All lands described in the bill of complaint herein other than the lands described in the next preceding paragraph hereof (item 35) are situated within primary limits of,the land grant made unto the Atlantic & Pacific Railroad Company by the said act of Congress of July 27, 1866, and within indemnity limits of the land grant made unto the Southern Pacific Railroad-Company by the same act.</p> <p>Ttem 37. All lands described in Exhibit A attached to the bill of complaint herein were patented to the Southern Pacific Railroad Company by patent dated June 30. 1903, pursuant to said company’s indemnity selection thereof made by list No. 94, filed on November 10, 1903.</p> <p>Item 38. Exhibit A" to the defendants’ answer hereiij contains full, true, and correct statements of all sales made by the Southern Pacific Railroad Company of lands described in Exhibit A and Exhibit B attached to the plaintiff’s bill of complaint herein, and of all material particulars thereof. Each and all of such purchase's were made for full value of the lands at times of sale, without notice or knowledge of any claims or rights of the United States in or to the lands purchased, by persons who in good faith believed they were purchasing from the said company a good and sufficient title, except in so far as the purchasers had constructive notice that the lands purchased were granted by the said act of July 27, 1800, unto the Atlantic & Pacific Railroad Company, and were not granted to and did not belong to the said Southern Pacific Railroad Company: and the title of each of such purchasers to the land so purchased was confirmed by the act of Congress approved March 2, 1800, published in volume 14, United States Statutes at Large, page 42.</p> <p>Item 39. The official “Land Office Report, 1875,” at page 409, contains the following : “Statement Exhibiting Land Concessions by Acts of Congress to States and Corporations, &c.”: Act March 3, 1871, 16 Stat. 579; Southern Pacific ■ Railroad Company, estimated quantity embraced within the 20 and 30 mile limits of the grant, 3,520,000. acres; estimated quantity which the company will receive from the grant, within the 20 and 30 mile limits thereof, 3,000,000 acres.</p> <p>Item 40. It appears from the records of the United States Land Office for the Los Angeles District of California that within the indemnity limits of the grant made to the Southern Pacific Railroad Company by tire act of Congress of March 3, .1871, there remains more than 50,000 acres of surveyed public land, vacant of record, embraced in odd-numbered sections, returned as agricultural in character, which have not been selected as indemnity by said company, not including any lands embraced within either the granted limits or indemnity limits of the grant to the Atlantic and Pacific Railroad Company made by' the act of Congress of July 27, I860, and not including any lands withdrawn for the Texas Pacific Railroad Company under the map of general route filed by said company in the year' 1871 under said act of Congress of March 3, 1871.</p> <p>Subdivision 6.</p> <p>Item 41. Either party to this suit may introduce further and additional testimony or other evidence at any time within 90 days from this date.</p> <p>Dated and signed on December 7, 1904.</p> <p>Joseph H. Call.</p> <p>Special Assistant U. S. Attorney.</p> <p>Wm. Singer, Jr.,</p> <p>Attorney for the Defendants.</p> <p>Indorsed: No. 1,114. U. S. Circuit'Court, Southern District of California, Southern Division, United States v. Southern Pacific Railroad Co. et al. Stipulation as to evidence. Filed Dec. 13, 1904. Wm. M. Van Dyke, Clerk; Chas. N. Williams, Deputy, Wm. Singer, Jr., No. 49 Second St., San Francisco, Cal., Atty. for Defendant.</p>

In Equity. Suit to adjust land grant. Stipulation as to Evidence. Down to subdivision 5 this stipulation is the same as subdivisions 1, 2, 3, and. 4 of the stipulation in case 1,114 (152 Fed. 303). Subdivision 5. Item 35.

<p>Bankruptcy — Petition por Order on Bankrupt — Authority to Refer.</p> <p>A court of bankruptcy has authority to refer a petition for an order requiring a bankrupt to turn over money or property to a special master for hearing and an examination of the bankrupt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 235.]</p>

<p>Customs Duties — Classification—Scrap Iron — Old Chains — Junk.</p> <p>Old iron chains are not “junk, old,” within the meaning of Tariff Act July 24, 1897, e. 11, § 2, Free List, par. 588, 30 Stat. 198 [U. St'Comp. St. 1901, p. 1684], but are dutiable as “scrap iron * * * fit only to be re-manufactured.,” under section 1, Schedule C, par. 122, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1636].</p>

We find this case stated accurately in the printed brief filed by the solicitors for the appellant, from which it appears that: This cause was commenced by a bill in chancery originally filed November 30, 1904, by Andrew W. Preston and Camors-McConnell Company against Herbert Ij.

<p>1. TRUSTS — CONSTRUCTIVE TRUSTS — BREACH OS' DUTY BY TRUSTEE.</p> <p>One who occupies a fiduciary relation to another in respect to business or property, and who by the use of the knowledge he obtains through that relation, or by tbe betrayal of the confidence reposed in him under it, acquires a title or interest in the subject-matter of the transaction antagonistic to that of his correlate, thereby charges his title or interest with a constructive trust for the benefit of the latter, which the cestui que trust may enforce or renounce at his option.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. yol. 47, Trusts, § 153.]</p> <p>2. Same.</p> <p>The test of such a trust is the fiduciary relation and a betrayal of the confidence reposed, or some breach of the duty imposed under it. One chargeable with a trust of this nature is a trustee de son’ tort, and, if he has not been guilty of wrong, he is not such trustee.</p> <p>3. Same — Exception to,Bum — Purchase at Judicial Sale.</p> <p>There is an exception to the general rule. It is that an agent or trustee may lawfully buy the property of his principal or cestui que trust at a judicial sale caused by a third party, which he has no part in procuring and over which he has no control.</p> <p>4. Same — Title op Purchaser — Estoppel.</p> <p>The title of a purchaser chargeable with a constructive trust for the benefit of his correlate by reason of their fiduciary relation is not void, I)ut voidable at the option of the cestui que trust only.</p> <p>The absence of a prompt election to avoid it is an election to afHrm.it and estops from attack. Inaction, for years after discovery of the title raises such an estoppel,</p> <p>5. Equity — Laches—Lapse op Time.</p> <p>Courts of equity act or refuse to act In analogy to the statute of limitations relating to actions at law of like character. Radical changes in the condition of the property and its speculative character induce them to apply the doctrine of laches in a shorter time than that fixed by the statute of limitations.</p> <p>Six years’ delay in commencing a suit after discovery by a principal of a tax title in its agent to its mining property, which was radically enhanced in value meanwhile by the labor, expenditures, risk, and energy of the holder of the tax title, constitutes fatal neglect, and estops the principal from maintaining the suit.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 204, 206, 207.]</p> <p>6. Trusts — Constructive Trusts — Breach op Duty — Laches.</p> <p>An agent to accept service of process, to care for mining property and its title for a corporation of which he was a stockholder, but without funds of the company to pay taxes, and without authority to advance money for it to pay them or to incur any liability on its account, notified the corporation that its taxes were due and sent it an advertisement of its approaching sale for taxes in 1891. After nearly all of the property had been sold at the tax sale to a stranger, the agent purchased the tax certificate in January, 1892, and on the next day wrote the company of the fact and notified it of the amount required to redeem. He again informed it in August, 1892, of the amount required to redeem and to pay subsequent taxes. The company paid nothing, and made no redemption. lie bought the remainder of its property at the tax sale of 1892, and paid the subsequent taxes. In 1894 and 1895 he took and recorded tax deeds. In December, 1896, and in January, 1897, he notified the corporation that he had the -tax deeds and had leased the property, and offered to convey his title for a part of the amount he had expended for the tax title and in payment of subsequent taxes, but the company did not accept. The property was unproductive and speculative, and he prospected, developed, and sold it. A lessee under his grantee expended over $20,000 in running a . tunnel into it which struck a rich body of ore in December, 1902. The company paid nothing and expended nothing during this time until after the strike, when it made a contract to give a portion of the amount that'might be recovered to those of its stockholders who would subscribe to pay the expenses of this suit, and this suit was instituted in March, 1903.</p> <p>Held, (1) The agent betrayed no confidence and violated no duty, and was not a trustee for the benefit of the company.</p> <p>(2) If he had been such a trustee the company by its silence and inaction for six years after January, 1897, when it knew he held the tax title, exercised its election to affirm it.</p> <p>(3) By its silence for six years after it knew that he held the tax deeds, and had leased the property, it was guilty of such neglect as bars its suit.</p> <p>(Syllabus by the Court.)</p>

<p>•1. Aliens — Immigration Daws — Finality of Decision of Board of Special Inquiry.</p> <p>Under the Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213 [U. S. Comp. St. Supp. 1905, p. 274], and rule 7 of the regulations established thereunder by the Secretary of Commerce and Dabor, an im- • migrant who on examination by a board of special inquiry has been denied the right to enter the United States has the right to be informed that he has a right of appeal therefrom, and the fact that he has been so informed must be entered of record in the minutes of the board’s proceedings, and the withholding of that right precludes finality in the decision of the board which may in such case be reviewed by the courts on a writ of habeas corpus.</p> <p>2. Same — Aliens Domiciled in the United States — Right to Re-enter.</p> <p>An alien, who has acquired a domicile in the United States, cannot thereafter, and while still retaining such domicile, legally be treated as an immigrant on his return to this country after a temporary absence for a specific purpose not involving change of domicile.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 2, Aliens, ⅜ 105.]</p> <p>■3. Same — Construction op Statute.</p> <p>Tile provision of section 2, Act March 3, 1903, c. 1012, 32 Stat 1211 [IT. S. Comp. St. Supp. 1903, p. 2Í61, which excludes from admission into the United States •‘aliens” who- are afflicted with a loathsome, or with a dangerous contagious, disease, cannot be construed to apply to aliens who are domiciled in this country, especially in view of the title of the act, which is “An act to regulate the immigration of aliens into the United States,” and of its other provisions and prior statutes in pari materia.</p>

This is a bill in equity brought by M. Cohen by bis next friend Henry Mauser, to redeem lots 5 and 6 in block 83 in the city of Portland, from a mortgage executed by Nathan Cohen and wife, father and mother of M. Cohen, on March 22, 1888, in favor of Joseph Hume. The original mortgage was to secure the payment of the sum of $4,000 which Nathan Cohen borrowed from Hume. Nathan Cohen died in September, 1891, leaving a widow and children.

<p>1. Witnesses — Competency—Privileged Communication — Physici a ns.</p> <p>Information which is proper and necessary to enable the physicians of a railroad company to treat an injured person, which is acquired by them from such person for that purpose while they are endeavoring to treat her professionally, although against her protest, is a privileged communication, under section 5907, Comp. St. Neb. 1901.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 768-772.]</p> <p>2. Same — Essentials—Employment by Third Person.</p> <p>The essentials of a privileged communication between physician and patient are: (1) The confidential relation of physician and patient; (2] the necessity and propriety of the information to enable the physician to treat the patient skillfully in his professional capacity; and (8) its acquisition by the physician from the patient during the existence of the relation.</p> <p>Such a communication is not deprived of its privileged character by the fact that the relation is established at the instance of a third party.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 768-772.]</p> <p>3. Same — Waiver—'Voluntary Testimony.</p> <p>A patient waives his privilege by voluntarily producing, Or introducing at the trial, evidence of the confidential communication, and thereby exempts the testimony of his, physician thereto from all objections upon that ground, because he thereby publishes it and deprives it of its Confidential character.</p> <p>But neither the commencement of an action for an injury nor testimony of the condition of the injured party has this effect.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 781, 782.]</p> <p>4. TBIAL — CORRECTION OF ERRORS.</p> <p>Errors in rulings and misstatements of facts by the court during the progress of the trial, which are clearly corrected by it before the trial closes, or in the charge of the court to the jury, are not generally fatal to the judgment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Trial, §§ 968-973.]</p> <p>5. Same — Conduct—Remarks op Judue.</p> <p>The opinion of the trial court expressed to the jury upon matters of fact which are ultimately submitted to them for their decision is not reviewable error in a national court, so long as no rule of law is incorrectly stated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 80-84.]</p> <p>6. Tbiai>-Instructions — Exceptions—Instructions Good in Part.</p> <p>A general exception, which specifies no ground to a charge or a portion of a charge to a jury, which embodies several propositions of law, is futile if any of the propositions are sound.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 694.]</p> <p>(Syllabus by the Court.)</p>

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

The ease, which was submitted without argument, involves the construction of section 22, Act June 22, 1874, c. 391, 18 Stat. 190 [TJ. S. Comp. St. 1901, p. 727], providing a three-year statute of limitations for proceedings for the recovery of “any pecuniary penalty or forfeiture of property.” The government contended that the forfeiture of the value of undervalued merchandise provided in section 9, Customs Administrative Act June 10, 1890, e. 407, 26 Stat 135 [U. S. Comp.

Petition to Review and Appeal from Order of the District Court of the United States for the District of Connecticut. This canse comes here upon pétition to review an order of the District Court, District of Connecticut, enjoining the bankrupt from making any conveyances of certain real estate in western states, standing in his name, and directing him to turn over certain drafts and cash to the trustee in bankruptcy.

This cause comes here upon appeal from two decrees of the District Court, Southern District of New York, holding the ferryboat Philadelphia solely in fault for a collision which occurred about 8 a. m. January 4, 1906, in the North river between the ferryboat and the steam lighter Islander.

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

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The Victor Chemical Works, plaintiff in error, was the defendant below in an action brought by Hill Clutch Company to recover the balance unpaid upon account of machinery delivered under an express contract. From tile judgment entered upon verdict in favor of the latter this writ is prosecuted; and the parties are hereinafter referred to as plaintiff and defendant, respectively, in conformity with their arrangement in the suit below.</p> <p>The contract was for machinery to be furnished by the plaintiff for equipment of a manufacturing plant, which was in course of erection by the defendant; and was in the form of a written proposal by the plaintiff, with subsequent modifications, acceptance by the defendant, and correspondence on the part of both. No question of fact is presented for review in respect of the terms, time of deliveries, character of the machinery, or other issues. The original proposal was dated April 21, 1902, and states, among other matters, that delivery is to be made “on or about the fourth day of July, .1902 (unless delayed by unavoidable accidents or labor strikes, but named for prompt and immediate acceptance only).” Subsequently the time for “complete delivery” was fixed at July 1st. Delivery was not completed until several months after that date, but the defendant received and put into its plant all the machinery so furnished. The proposal as accepted distinctly states: “The acceptance of this machinery, when delivered, is understood to constitute a waiver of all claims for damages, by reason of any delay.” Error is assigned for rulings upon the meaning and force of this clause.</p> <p>The defendant averred and offered to prove damages resulting from such delay — in the estimated rental value of the plant ($21,000), of which it was deprived of use pending complete delivery — and the court sustained an objection to this tender of proof under the plea of set-off. Verdict was directed in favor of the plaintiff for the unpaid balance of the contract price, but the bill of exceptions has not preserved all the evidence, so that no reviewable question arises, except it be in the rejection of the above-mentioned offer.</p> <p>Other assignments of error and facts bearing upon the controversy are stated in the opinion.</p>

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

<p>Trial — Province or Jury — Determining Weight, Preponderance, and Effect of Evidence.</p> <p>In an action at law tried before a jury in a federal court, where an issue of fact is involved the determination of which depends upon the weight, preponderance, and effect of conflicting evidence, such issue must be determined by the jury, and it is error for the court to direct a verdict.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 332, 342.]</p>

<p>Shipping — Liability por Loss op Cargo — Errors in Navigation an» Management op Vessel.</p> <p>The navigation and management of a vess'-.'i within the meaning of section 3 of the Harter Act, Act Feb. 13, 1F\>. o. WA, 27 Stat. 445 [U. S. Comp. St. 1901, P’. 2946J, includes the det< rmiindimi of the time and manner of leaving port, which is the pr.¡rogativo of the master; and under said section, where a vessel was rea* oríiiy and. in all respects properly manned, equipped; and supplied, the. owiio.a; are not liable" for a loss or damage to cargo due to n pW'i of tin Reas, even though the exposure to such peril was throu'it fir’ FutH of ¡he master in failing to ascertain or heed the wani”:a. of! ¡lie vrehiher bureau before starting on the voyage.</p>

Writ of error by the plaintiff to review action of the Circuit Court for the Southern District of New York in directing a verdict in favor of plaintiff for $100.

The plaintiff in error was plaintiff in the court below in an action of ejectment; the complaint alleging, among other things, that on and prior to February 29, 1904, the plaintiff and his then wife, Mary Tennessee Kellogg, were the owners as community property, seised in fee and in possession, and entitled to the possession as community property, of the lots of land in controversy, to wit, lots numbered 15 and 16, in block numbered 35, of Railroad addition in Oentralia,…

<p>1. Appeal — Reversal—Decree—Entry in Trial Court — Further Appeal.</p> <p>Where a decree was reversed, and the cause remanded, with directions to the trial court to dismiss the bill, whereupon a decree conforming to the mandate was entered in the trial court, such decree was not reviewable on a further appeal; the only relief being by petition for rehearing in the appellate court filed within the term at which the judgment was en-’ tered, unless by special leave granted during the term, as authorized by Court of Appeals, Rule 29 (31 C. C. A. clxvii, 90 Fed. lix).</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 2, Appeal and Error, § 814.]</p> <p>2. Same — Decree por Costs.</p> <p>No appeal lies from a decree respecting costs and expenses.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 823.]</p>

.Appeal from the District Court of the Unitec! States for the Western District of Washington. The appellant is the assignee of certain insurance companies which had insured the City of Kingston, an American vessel, against all risks, under separate policies, in eacli of which the vessel was valued at $75,000.

<p>In Error to the Circuit Court of the United States for the District of Colorado.</p> <p>On motion to dismiss writ of error.</p>

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

<p>Post Office — Usikg Mails to Defbaud — Indictment.</p> <p>The provision of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], relating to the use of the mails to defraud, that an indictment may. charge offenses to the number of three when committed within the same six calendar months, but the court thereupon shall give a single sentence, does not render an indictment bad because offenses not committed within the same six calendar months are joined therein, but the offenses in such ease are separate and distinct, and punishable as such.</p> <p>[Ed. Note. — Nonmailable matter relating to frauds and counterfeiting, see note to Timmons v. United States, 30 C. C. A. 86.]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy.

<p>: .• Appeal from the District Court of the United States for the Eastern Division of the Northern’ District of Illinois.</p> <p>This appeal is from an order of the District Court, in admiralty, which denies a motion on behalf of the appellants, “to set aside or satisfy” a decree theretofore entered in such court, in favor of James Davidson, as libelant, against the steamer Gordon Campbell and “William P. Carroll, the claimant of the said vessel, as principal, and Jeanie A. Carroll, as surety,” under a bond for release of the vessel upon libel'thereof. The motion was founded upon notice to the libelant’s proctor and an affidavit of William F. Carroll that one John It. Lindgren was sued for the same claim, for which liability was adjudicated in the libel referred to, and judgment therefor was recovered and fully paid. In opposition to the motion the libelant introduced an affidavit of Lind-gren, setting up assignment to him of the decree under the libel and these facts and equities: That for advances to the appellants for the purchase by them of the steamer title thereof was at their instance placed in the affiant, by way of securing payment by the appellants, of such advances, and for no other purpose and with no other interest; that the suit referred to was brought upon the ground that the legal title was so vested in him; that the appellants undertook the defense of such suit, but judgment was recovered therein against the affiant, and he was compelled to pay and did pay to Davidson the amount of such liability; and that he claims to be subrogated to the rights of Davidson in the libel decree.</p>

<p>Appeal and Error — Record—Insueeicienct.</p> <p>• It is the duty of a party appealing to see that there is sufficient in the transcript of the record brought to the appellate court to intelligibly present the questions sought to be reviewed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2624, 2627.] '</p>

<p>Post Office — Delivery oi' Mail — Similarity of Names of Corporations.</p> <p>A decree aflirmed which denied an injunction to a corporation to restrain the delivery of mail to defendant having a similar name, when so addressed that it might have been intended for either party; there being no claim of an intentional refusal to deliver to complainant mail so addressed to its business rooms or otherwise as to leave no doubt as to the identity of the addressee.</p>

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

The cause comes here by appeal from interlocutory decree of the United States Circuit Court for the Southern District of New York, sustaining validity of complainant’s patent, No. 583,227, for improvements in card records, granted to complainant Gunn May 25, 1897, and adjudging infringement by defendant and ordering an injunction and an accounting.

This cause comes here on appeal from an interlocutory decree of the United' States Circuit Court for the Northern District of New York, adjudging validity, and infringement by defendant, of claims 5 and 7 of complainant’s patent, No. 489,682, granted January 10, 1893, to Amandus Metzger, for a lamp socket. The opinion of the court below is reported in 146 Fed. 539.

In Equity. Suit to enjoin alleged infringement of claim 1 of United States letters patent No. 5⅞4,102, to John Dey, of Syracuse, N. Y., dated August 7, 1894, application filed November 11, 1898, and now owned by complainant.

In Equity. Suit for alleged infringement of claims 2, 3, 4, 5, 10, and 11 of United States letters patent for car seat to Aze and Gil-fillan, No. 491,761, dated February 14, 1893, on application filed November 24, 1891." The defendant is a user of the alleged infringing seat.

In Equity. Final hearing of bill upon Tesla patents, Nos. 38.1,-968, 381,969, 38.3,280, and 382,281, issued of like date, May 1, 1888. The alleged infringing device is a synchronous motor and alternating current polyphase generator, thus distinguishable from the nonsynchro-nous motors involved in prior adjudications under the broad patents, Nos. 381,968 and 382,280.

<p>In Admiralty. On rule to show cause why execution should not issue.</p>

In Equity. This is a suit for the cancellation of a patent issued by the general government to the defendant railroad company July 12, 1871, so far as it purports to grant to said company lots 5 and 6. section 3, township 7 south, range 3 west of the Willamette meridian, or, in the event that the land lias been conveyed to an innocent purchaser for value, then it is prayed that plaintiff may have a decree for the value thereof.

<p>1. Insurance — Marine Insurance — Collision.</p> <p>The word “collision,” as used in marine insurance, is no longer strictly limited to that fortuitous injurious contact of navigating vessels which is its obvious and natural signification.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 28, Insurance, § 1101.]</p> <p>2. Same — Running-Down Clause — What Constitutes Collision.</p> <p>Where two vessels are under the same physical control, as in case of a tug with a tow alongside, so that an impulse given to the tug must necessarily be communicated to the tow, and negligence in the tug’s navigation causes an injurious contact between the tow and a third vessel, for which the tug is held liable, she should be regarded as having been in collision within the meaning of the ordinary collision or running-down clause of a marine policy of insurance; but, if the control is only intellectually exercised, or if there is no control at all of one vessel over another, there can be no collision within the meaning of such clause without an actual injurious contact between the vessel insured and some other object.</p> <p>8. Same — Facts Considered.</p> <p>The running-down clause of a marine policy provided that, “if the ship hereby insured shall come into collision with any other ship or vessel or raft and the assured shall in consequence thereof become liable to pay and shall pay by way of damages to any other person or persons any sum, * * * we, the insurers, will pay.” While running alongside of another vessel, having no connection with her, through the negligent navigation of both, the suction created by the insured vessel caused the , other to sheer and come into collision with a third, and both were held liable in damages. Held, that the insured vessel was not in collision within the meaning of the policy, and not entitled to recover the damages so paid from the insurer.</p>

<p>Tbusts — Tbaoihg Trust Property — Sufficiency of Identification.</p> <p>Where defendants receive $5,000 on a trust in favor of O'., and mingle it with tlieir own funds in one bank account, and deplete the, account only by certified checks in effect in favor of and retained by them, and before the money represented thereby is transferred to another they replenish their deposit, so that, excluding certified checks retained by them, there always remains in the account at least $5,000, the trust may be enforced as a charge on the fund in preference to the claims of defendants’ general creditors.</p>

<p>Master and Servant — Liability fob Servant’s Negligence — Deviation by Servant from Instructions.</p> <p>Defendant owned an automobile, which broke down on the way from Atlantic City to Philadelphia, and which he then left in charge of his driver, with directions to repair it and bring it on to Philadelphia. After the driver had reached the Delaware river, and while waiting for the ferry, he consented to take a third person in the machine to a place about a mile back on the road, and while making such trip, through his negligence In running too fast, he came into collision with a horse and buggy on the highway, by which plaintiffs were injured. Ueld, that under such facts defendant was not liable for the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1223, 1224, 1229.]</p>

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

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York on goods imported by L. J. Kreshower; the Board of General Appraisers following a former decision reported as G. A. 5,800 (T. D. 25,630).

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see. G. A. 6,307 (T. D. 27,180), in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The opinion filed by the board reads as follow:</p> <p>WAITE, General Appraiser. The merchandise in question was imported from Beirut, Syria, and is an oily substance with a melting point of 75 degrees Fahrenheit, produced from the milk of sheep. It is invoiced as “salted butter,” and is described by the importer in his testimony as "ghee.” The testimony also shows that “ghee” may be produced from either goats’ or cows’ milk as well. The collector assessed duty upon the article at 6 cents per pound under Tariff Act July 24, 1897, e. 11, § 1, Schedule G, par. 236, 30 Stat 170 [U. S. Qomp. St. 1901, p. 1649], providing for “butter, and substitutes therefor.” It is claimed to be dutiable as “tallow,” at-three-fourths of 1 cent per pound, unde'r paragraph 279; at 2 cents per pound as “lard,” under paragraph 277; under paragraph 3, covering chemical compounds, etc., or under section 6 as an unenumerated manufactured article.</p> <p>“Butter” is thus described in the Encyclopedia Británnica (9th Ed.) vol. IY, p. 590: “Butter is the fatty portion of the milk of mammalian animals. The milk of all mammals contains such fatty constituents; and butter from the milk of goats, sheep, and other animals has been, and may bo used; but that yielded by cows’ milk is the most savory, and it alone really constitutes the butter of commerce.” “Ghee” is defined by the Standard Dictionary as follows: “Butter clarified by boiling or heating and skimming or straining until it becomes a liquid or semisolid oil, capable of being kept for many years; largely used in India, in cookery and medicines, and' in religious rites.”</p> <p>We do'not think the article can be said to be tallow, winch is usually composed of harder and less fusible animal fats, nor lard, which is made from hogs’ fat. That it is not a chemical compound within the meaning of paragraph 3 is too clear for argument. If it be assumed that the article is neither the butter, tallow, nor lard of commerco, we think it must be found that it resembles butter more closely, and in more particulars than eilher of tho other substances, and that this resemblance in material, quality and use is sufficiently substantial to make operative the provisions of the similitude clause contained in section 7 of the act. The testimony, it is true, shows that the article is used for cooking, as is lard and some other vegetable and animal oils or fats. But in this regard it also resembles butter, in so far as butter is so used. An analysis of the commodity shows, however, that it resembles butter .most closely in its component elements or material; and this is corroborated by the description given in the testimony of its origin and process of manufacture. It appears to be composed of the fatty portion of the sheep’s milk, and it would seem that it might be described with &ptness as sheep’s-milk butter. \Ye are of the opinion that it is dutiable by similitude, if not directly, at the rate prescribed by paragraph 236.</p>

On Application for Review of a Decision of the Board of United States General' Appraisers. For decision below, see G. A. 6,157 (T. D. 26,731), reversing .the ■assessment of duty by the collector of customs at the port of New York.

<p>1. BANKRUPTCY — DISCHARGE—HEARING BEFORE SPECIAL MASTER.</p> <p>A special master, on the hearing of objections to a bankrupt’s discharge, must be governed solely and entirely by such legal evidence as may be admissible under the specifications.</p> <p>2. Same — Burden of Proof.</p> <p>On the hearing of an application for the discharge of a bankrupt, the burden of proof to sustain the specifications of objection is upon the creditors who filed the same, and that burden never shifts.</p> <p>3. Same — Evidence.</p> <p>A referee, acting as special master in hearing objections to a bankrupt’s discharge, has no legal right to consider any evidence which has been previously offered before him as referee, or to refuse to recommend a discharge upon the ground that, at some former hearing before him as referee, he, as such referee, may have formed some opinion upon some fact which would' be sufficient to bar a discharge, unless such fact is legally established by proper evidence under the specifications.</p>

<p>Bankeuptcy — Application fop. Discharge — Reference.</p> <p>Under rule 41 in the Eastern district of New York, it is the duty of objecting creditors to see that the objections to a bankrupt’s application for discharge are referred to a referee as special master and to arrange for the hearing thereon.</p>

<p>In Bankruptcy. On motion for new trial.</p>

<p>In Bankruptcy. On petition to amend.</p>

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

In Equity. This is a suit to remove clouds from title to certain real property, situate in Coos county, Or. The complainant alleges ownership and title in himself, and _ that the property is clouded by certain proceedings, culminating in sheriff’s deeds conveying the same, in pursuance of orders of court, to the defendant Werley. The complainant derives title from the defendant the Coos Bay Land Company through deed executed some time in the year 1905.

<p>In Admiralty. Suit to recover charter hire.</p>

Action for Demurrage. This is an action or proceeding on petition filed by Arza 0.

<p>In Equity. On plea to the jurisdiction of the court.</p> <p>The bill alleges that John W. Barthell, of Lyon county, this state, was adjudged bankrupt by this court March 12, 1904, and that complainant is the duly appointed trustee of his estate; that on October 31. 1903, the bankrupt was the owner in fee of 180 acres of land in Allamakee county, in this state, and on that date conveyed the same to the défendant, M. J. Barthell, a resident of said Allamakee county, with intent to hinder, delay, and defraud the creditors of said bankrupt. The prayer is that the conveyance be set aside, and that complainant recover said land or its value from the defendant for the benefit of the bankrupt estate. The defendant appears specially and objects to the jurisdiction of the court, upon the grounds, in substance, that the suit is not one to recover property conveyed by the bankrupt while insolvent, as a preference or in fraud of creditors within the four months prior to the institution of the bankruptcy proceedings, but is one to avoid a transfer of property made by the bankrupt more than four months prior thereto, which any creditor of the bankrupt might have avoided; and that defendant has not consented, and does not consent, that the suit may be brought or prosecuted against him in this court, and asks that it be dismissed for want of jurisdiction.</p>

<p>In Bankruptcy.</p>

<p>1. Banks — Misapplication op Funds by National Bank Officer — Statute Construed.</p> <p>In Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], which makes it a criminal offense for any officer or agent of a national bank to embezzle, abstract, or willfully misapply “any of the moneys, funds, or credits of the association,” the word “moneys” refers to the currency or circulating medium of the country, the word “funds” refers to government, state. ’ county, municipal, or other bonds, and to other forms of obligations and securities in which investments may be made, and the word “credits” refers to notes and bills payable to the bank, and to other forms of direct promises to pay money to it.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 964.]</p> <p>’2. Same — Sufficiency op Indictment — Description op Offense.</p> <p>An indictment under Rev. St. § 5209 [U. S. Comp. St 1901, p. 3497], charging that defendant, as president of a national bank, willfully misapplied a certain sum of the'“funds and credits” of the bank by discounting the note of a person known to be insolvent, the proceeds of which were divided between such person and defendant, is insufficient in its description of the offense, where it does not use the word “moneys,” nor in any way describe the funds or credits charged to have been so misapplied.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 673.]</p> <p>3. Same — Duplicity.</p> <p>An indictment under Rev. St. § 5209 [U. S. Comp. St. 1901, p. 3497], is bad, both for duplicity and for insufficient description of the offense, where it charges the embezzlement, as well as the misapplication, of the “funds and credits” of a national hank by defendant as president, without, setting forth any particular description of either, and without any separate statement as to the amount, either of “funds” or of “credits,” so embezzled or misapplied.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 6, Banks and Banking, § 973.]</p> <p>4. Same.</p> <p>An indictment under Rev. St. § 5209 [U. S. Comp. St. 3901, p. 34971, charging an officer of a national bank with the willful misapplication of its “money, funds, and credits,” must contain a particular description of the funds and of the credits charged to have been so misapplied, and show how much there was of money and of funds and of credits separately.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 6, Banks and Banking, § 973.]</p> <p>5. Same.</p> <p>An indictment under Rev. St. § 5209 [IT. S. Comp. St. 1901, p. 3497], charging the defendant, as president and director, with having willfully misapplied certain credits of the bank, “by procuring the authority of the board of directors * * * to an acceptance of an assignment” of an interest in a partnership in satisfaction of an indebtedness due the bank, and charging the amount of such indebtedness- to the account of stocks and bonds, knowing that the assignor had in fact no interest in such partnership, does not state an offense under the statute, since what was done appears to have been by authority of the board of directors, and the facts set out do not show a misapplication of credits by defendant, nor is it averred that such misapplication was made to his own use, benefit, or gain, nor to that of any person other than the bank.</p>

<p>1. Navigable Waters — Depositing Refuse in — Liability of Vessel.</p> <p>Act March 3, 1899, c. 425, §§ 13, 16, ,30 Stat. 1152, 1153 [U. S. Comp. St. 1901, pp. 3542, 3544], prohibiting the deposit of refuse matter in any navigable water of the United States, and making any vessel used in such illegal act liable for the pecuniary penalties imposed therefor, are within the constitutional powers of Congress, and to render a vessel subject to such penalties it is not essential that some person or corporation should have previously been convicted thereunder.</p> <p>2. Same. ,</p> <p>Where the owners of a dumping scow placed a man in sole charge with power to dump her load, and he becoming unnecessarily alarmed at the roughness of the sea while being towed to the dumping grounds dumped a part of her .load into the waters of a harbor in violation of Act March 3, 1899, c. 425, § 13, 30 Stat. 1152 [U. S. Comp. St 1901, p. 3542], the scow is subject to the penalty imposed by section 16 of the act, although the action of the seowman was contrary to the orders of the owner; but the towing tug, although the property of the same owner, where the master-had no reason to anticipate the violation of the statute, cannot be said to have been “used or employed” in such violation, and is not subject to the penalty therefor.</p>

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

<p>On Rule to Strike from Trial List.</p>

<p>1, Evidence — Pboduction of Books — -Cobpobations.</p> <p>A corporation cannot refuse to produce its books in an action against it to recover damages for a violation of Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. 'St. 1901, p. 3154], on the ground the evidence therein may incriminate it. ,</p> <p>2. Same.</p> <p>Books and papers required by an order of court to be produced by a party on the trial of a cause remain subject to objections to their relevancy as evidence which must be passed upon at the trial.</p>

At Law. On motion to dismiss for want of jurisdiction, motion for new trial, and motion for judgment for American Surety Company notwithstanding the verdict.

<p>In Bankruptcy. On motion to modify restraining order.</p>

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

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

<p>Woods and Forests — Forest Reservations — Violation oe Regulations.</p> <p>The violation of the rule of the Secretary of the Interior forbidding the pasturing of live stock on a forest reservation without a permit is punishable criminally, under Act June 4, 1897, 30 Stat. 35 [U. S. Comp. St. 1901, p. 1540], which authorizes the making of such regulations and prescribes the punishment for their violation.</p>

<p>In Equity. On motion to remand to state court</p>

<p>In Equity. On motion to remand to state court.-</p>

<p>1. Customs Duties — Classification--Screw Rods.</p> <p>Construing the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, SO Stat. 159 [U. S. Comp. St. 3901, p. 1636.1, for iron rods cold, drawn, or polished in any way in addition to the process of hot rolling, held, that it does not include wire screw rods which have been cold rolled to facilitate their use in screw-making machines, and which have incidentally acquired a polish, hut that such articles are dutiable as wire screw rods under paragraph 141, SO Stat. 162 [U. S. Comp. St. 3901, p. 1640.1</p> <p>2. Same — Construction—Specific Designation- — General Provisions.</p> <p>When Congress has designated an article by a specific name, and by such name imposes a duty upon it, general terms in a subsequent act or in a later part of the same act, although sufficiently broad to comprehend such article, are not applicable.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision in question sustained the importers’ protest against the assessment of duty by the collector of customs at the port of New York.</p>

<p>1. Customs Duties — Appraisement—Converters’ Commissions.</p> <p>Merchandise was bought from so-called converters, who, after receiving the order, had the goods manufactured, dyed, and finished, and forwarded them, invoicing them at a certain price plus a commission. Held that the converters were in fact the vendors of the merchandise, and that the amount of the commission should he included in the dutiable value of the goods.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 187.]</p> <p>2. Same — Legality—Reviewability.</p> <p>A so-called converters’ commission was contended to have been improperly included by the appraising officers in the dutiable value of merchandise. jHeld that the appraisement might be re-examined, and that evidence! was admissible to show the nature of such commission.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 15, Customs Duties, § 196J</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,260 (T. D. 26,992), which reversed the assessment of duty by the collector of customs at the port of New York.

<p>Internal Revenue — Forfeiture oe Spirits — Information.</p> <p>An information for a forfeiture of distilled spirits for violation of Rev. St. §§ 3289, 3455 [U. S. Comp. St. 1901, pp. 2132, 2279], heU bad on demurrer, as not sufficiently definite to disclose to the court or claimant the precise nature of the act charged to be a violation of the statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Internal Revenue, § 133.]</p>

<p>In Bankruptcy. On motion to confirm composition.</p>

<p>1. INNKEEPEBS — LIABILITY OE GtTESTS — WKONGEUL USE OE ROOMS.</p> <p>A guest occupying rooms in a hotel with his family - cannot be held liable to the landlord for permitting a nurse in his employ to remain in such rooms and to he there delivered of an illegitimate child; any scandal arising from the affair, which may have resulted in injury to the landlord’s business, not being tbe proximate result of the delivery itself, or of the action of the guest in permitting it in his apartments.</p> <p>2. Same — Causing oe Permitting Nuisance.</p> <p>A guest of a hotel,, who knowingly permits the body of a dead infant to be concealed in the rooms occupied by him, or causes it to be concealed in any other part of the building, and in either case to remain until it becomes offensive to other guests, commits a nuisance, and may be chargeable with liability for damages resulting to the landlord’s business; but, unless he actively causes or participates in the concealment in a place not under his control, he is not chargeable with liability unless the act was done by one for whom he is responsible.</p> <p>3. Master and Servant — Employment Creating the Relation — Trained Nurse.</p> <p>A trained nurse, performing her usual duties and exercising the skill which is the result of training in that profession, does not come within the definition of a servant, but rather is one who renders personal services to an employer in the pursuit of an independent calling, and the employer is not liable as master for her acts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1210-1216.]</p>

<p>In Bankruptcy. On motion for leave to file- amended specifications of objection to discharge.</p>

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

<p>Admiralty — Jurisdiction—Action for Ikjury to Pier.</p> <p>Semble, that an action for injury to a pier by a moving vessel is not cognizable in admiralty.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 1, Admiralty, §§ 222-234.]</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 6,335, T. D. 27,277, in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York.</p>

On Application for Review of Decisions of the Board of United States General Appraisers. The decisions in question reversed the assessment of duty by the collector of customs at the port of New York on articles of two classes, consisting (1) of bamboo, sticks of the description given, in the opinion following, .and (2) of; hard wood sticks about one inch in diameter, which had been trimmed and peeled, and had the rough places removed, and the ends rounded.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 5,875 (T. D. 25,865), which reversed the assessment of duty by the collector of customs at the port of New' York, on the authority of U. S. v. American Express Co. (C. C.ty 147 Fed. ’894. Note Smith v. Computing Scale Co. (C. C.) 147 Fed. 890.</p>

This cause comes here upon appeal from a decree of the District Court, Southern District of New York holding the City of Dowell solely in fault for a collision with the ferryboat Columbia in the East river off the Wall Street ferry slip a little after 7 a. m. November 4, 1904, in an extremely dense fog. The ferryboat was bound across the river from Brooklyn; the steamer coming down to round the Battery for her pier in the North river.

Writ of error by the United States, plaintiff in the court below, to review a judgment for the defendant rendered upon a verdict by the direction of the court.

<p>1. Judgment — Action on Judgment — Form.</p> <p>The appropriate form of action at common law to recover an amount due on a judgment is an action of debt, and, although under a state practice such an action may be brought in assumpsit, the principles applicable thereto are those applicable to a common-law action of debt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1720, 1721.]</p> <p>2. Same — Judgment Which Will Support Action — Decree in Equity.</p> <p>While an action at law may be maintained on a final decree in equity to recover a sum adjudged by such decree to be due and owing, to support such an action the decree must be unconditional, and the sum adjudged to be due must be payable, in any event.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1719-1723.]</p> <p>3. Same — Conditional Decree.</p> <p>A decree in equity entered upon a petition of complainant for leave to substitute attorneys, which granted such leave on condition that he pay the attorneys originally employed certain sums for fees and disbursements, is not a final adjudication which is conclusive between the complainant and his counsel with respect to the amount due from him for their services and disbursements, and will not support an action at law to recover the sums therein conditionally required to be paid.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1719-1723.]</p>

States for the District of Indiana. The order of the District Court appealed from was the denial of the petition of the appellant asking for the return to appellant of a certain lot of wagons sold by appellant to the bankrupt, upon an alleged conditional sale, that on the adjudication of bankruptcy went into the possession of the trustee.

<p>1. Appeal — Record—Motion for New Trial — Cotjbt Rules.</p> <p>Where rulings and instructions objected to, with exceptions thereto, were particularly set out and asserted to be erroneous in the assignments of error contained in appellant’s brief, as required by Court of Appeals Rule 10, par. 3 (Ind. T. Ann. St. 1899, p. 937), and at the time the motion for a new trial was presented qnd ruled on, rule 3, declaring that exceptions shown in the record would be considered on appeal, irrespective of whether the ruling or action, of the court was specifically set out in the motion for a new trial, if it was properly set out in the assignments of error, appellant was entitled to a consideration of such rulings, notwithstanding the subsequent amendment of rule 3, requiring the objections to be specifically set out in a motion for a new trial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, . §§ 1743, 1744.]</p> <p>2. Carriers — Passengers—Ejection.</p> <p>In the absence of a regulatory statute, when a passenger refuses or fails to produce evidence of his right to transportation or pay the lawful fare after demand and being accorded a reasonable time for compliance, he for-, feits his rights as a passenger, and subjects himself to ejection from the train.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1410. 1417, 1421.]</p> <p>3. Same — Tender or Fare by Third Person.</p> <p>Tender of fare by a third person, with the • passenger’s consent, is effective, or otherwise, to prevent a rightful ejection in the same manner as if the tender had been made by the passenger himself.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 9, Carriers, § 1437.]</p> <p>1. Same — Recanting—Tendering Compliance.</p> <p>Where a passenger willfully refused to establish his right to transportation or pay fare, his ejection from the train was not rendered wrongful because of a tender of his fare by a third person, with the passenger’s consent, after the process of ejection had begun.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 9, Carriers, § 1435.]</p> <p>5, Same — Damages—Instructions.</p> <p>Plaintiff, a passenger on defendant’s train, refused to establish his right to transportation or pay fare, and during the process of ejection a third person, with plaintiff’s consent, tendered plaintiff's fare to the next station which was not plaintiff’s destination. Held that, if the ejection was wrong ful, plaintiff was only entitled to recover damages Cor loss of time and to.-, convenience in reaching the station to which his fare was tendered, anc' that an instruction authorizing a recovery for inconvenience in being compelled to reach his “destination” by other means ivas erroneous.</p> <p>[Ed. Note. — B’or cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1483. 1485.]</p>

<p>Í. Appeal — Fin'dino op Master — Concurrence by Trial Court — Review.</p> <p>Finding of a master, concurred in hy the trial court, will be taken as presumptively correct, and will be permitted to stand, unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence; but such findings are not conclusive on the appellate court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3996-4005.]</p> <p>2. Bankruptcy — Bora Fide Purchaser — Evidence.</p> <p>Evidence held sufficient to charge purchasers of a bankrupt's property, out of the regular course of business and shortly before he became a bankrupt, with notice that the sale was being made by him in fraud of credit.ors, and that such purchasers were therefore not entitled to protection against an action by the bankrupt’s trustee to recover the property or its value as bona fide purchasers for value.</p> <p>3. Same — Prima Facie Evidence.</p> <p>In the absence of a statutory provision in a bankruptcy act that a sale not made in the ordinary course of business of the debtor shall be prima facie evidence of fraud, the fact that a sale or conveyance is made out of the usual course of business does not, without more, render it prima facie fraudulent; but it may be a badge of fraud, depending for its effect on the surrounding facts. Doklcen v. Page, 147 Fed. 438, 77 O. O. A. 674, explained’ and limited. .</p>

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

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

<p>1. Bankruptcy — Right to Object to Claims — Parties in Interest.</p> <p>The term “parties in interest,” as used in Banfcr. Act July 1, 1808, e. 541, § 57d, 30 Stat. 560 TU. S. Comp. St. 1901, p. 3443], which permits parties in interest to object to the allowance of claims against the estate, applies only to those who have an interest in the res which is to be administered and distributed in the proceeding, and does not include those who are merely debtors or alleged debtors of the bankrupt.</p> <p>2. Same — Re'-Examinino oe Claims.</p> <p>The element of motive cannot prejudice the assertion of a clear legal right or a statutory pi-ivilege, and' the right to have a re-examination of claims allowed against a bankrupt estate as provided for by Banfcr. Act July 1, 1898, c. 541; §‘ 57k, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444], should not bei:denied to creditors who clearly hare an interest therein because they seek such re-examination chiefly or solely in the interest of a third party. '</p>

<p>Boundaries — Retracing Old Survey — Reversal of Calls.</p> <p>In a case of disputed boundary, where the proof goes to the extent of showing that part of the survey was made on the ground, the calls may be reversed and the lines traced the other way, whenever by. so doing the land embraced would most nearly harmonize all the calls and tae objects of the grant</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 52, 66-69.]</p>

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

<p>Landlord and Tenant — Repudiation of Tenancy — Denial of Title — Unlawful Detainer — Time to Sue.</p> <p>Where tenants repudiate their tenancy, deny the title of their landlord and assert title in themselves, the landlord is entitled to commence and maintain an action of unlawful detainer, without awaiting the expiration of the lease.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 330, 1209.]</p>

<p>3. Gas — Negligence—Contributory Negligence — Question fok Jtjbt.</p> <p>In an action for injuries, to plaintiff by being overcome by gas, caused by defendant’s servant making an improper connection in a rooming house, evidence of defendant’s negligence and plaintiff’s contributory negligence held to require submission of The case to the jury.</p> <p>[Ed. Note. — For cases in point, see .Cent. Dig. vol. 24, Gas, § 16.</p> <p>Liability of innkeepers for jiersonal injuries to guest, see note to Clancy V. Barker, 66 C. C. A. 483.] ■</p> <p>2. Negligence — Gontbibutohy Negligence.</p> <p>In order to justify a conclusion that plaintiff was guilty of contributory negligence as a matter of law, the evidence must be such as to require a finding that all reasonable men in the exercise of an honest and impartial judgment must draw the conclusion under the facts that lu-did not exercise ordinary care.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, § 83.1 '</p>

The appeal is from a final decree of the court below, dismissing the bill brought by the appellant against the appellees for the infringement of letters patent No. 424,695, issued, April 1st, 1890, to Charles J. Van Depoele, for improvements in suspended switches and traveling corti.ets for electric railways. The further facts necessary to the determination of the case, are stated in the opinion.

<p>Patents — Inekingement—Numbering Machines.</p> <p>Tbe Bates patent, No. 721,276, for a typographic numbering machine, narrowly construed as required by the prior art, held not infringed.</p>

<p>1. Patents — Priok Use — Evidence to Establish.</p> <p>Evidence considered, and held insufficient to establish prior invention of a patented device, in the absence of the testimony of the alleged inventor, or any showing that it could not be obtained, and where the device itself was not produced, and appeared from the testimony to have been at most an abandoned experiment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Palcnts, § 104.</p> <p>Priority and continuance of public use of invention as affecting patent-ability, see note to Eastman v. City of New York, 69 C. O. A. 646.]</p> <p>2. Same — Validity and Infringement — Dredger for Enameling.</p> <p>The Arrott patent, No. 633,941, for a dredger for pulverulent material, used in the enameling of bath tubs, having a pneumatic agitator contained in the hollow handle, adapted to vibrate the sieve to secure a uniform distribution of the material, was not anticipated and discloses patentable invention; also held valid as against a claim of prior use, and infringed.</p>

In Equity. On petition by defendant for injunction. This is a suit in equity commenced on the 24th day of July, 1906, based upon United States letters patent No. 664,383 and No. 727,609, for acetylene gas tanks. An answer was filed September 29th, in which the invalidity of the complainant’s patents 'is asserted on various grounds, and infringement is denied.

<p>1. Pleading — Amendment—Effect of General Appearance by Defendant.</p> <p>• The rule that the. filing of a notice of appearance or of a general pleading, such as an answer, is equivalent to a-general appearance for all purposes of the case, is limited in its application by the scope of the action in which such appearance or pleading is filed; and such an appearance does not authorize an amendment of plaintiff’s pleading, so as to state a new or different cause of action upon which the defendant could not originally have been sued in that jurisdiction.</p> <p>2. Equity — Pleading—Amendment of Bill — Patents—Suit for Infringement.</p> <p>In a suit in equity against two defendants, one of whiph was a nonresident corporation, for infringement of patents, the bill alleged a conspiracy and a joint infringement by defendants within the district of suit; the corporation by selling to its codefendant, and the latter by buying and • using the infringing article ,in said district. Both defendants appeared, and filed a joint and several answer, denying the alleged infringement. Held, that such appearance by the corporation was limited to the cause ■of action stated in the bill, and did not empower the court to permit its amendment by dismissing as to the other defendant and alleging infringement generally by the corporation in said district “and elsewhere in the United States,” and that it had conspired “with others” to infringe.</p>

In Equity. • This is on final hearing of a suit in the nature of a creditors’ bill to enforce contribution from the defendants, as stockholders in a corporation known as the “Cushman United Telephone Company,” organized in the state of Illinois in February, 1905. The suit is brought in the interest of S. D. and I. M. Cushman, who are the real parties in interest.

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 6,400 (T. D. 27,490), which affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The goods in controversy consisted of fish in tins; each tin having a separate piece of tin with a small piece of wood pressing it down on the fish to hold it tei place, and this leaving a vacancy in each tin. The importers contended that a ascertaining whether the tins contained more or less than 33 cubic melles each in order to determine their tariff classification, this vacancy should be ■ - .red for, and only the cubic measurement of the fish should be considered</p>

<p>Customs Duties — Classification—Whetstone Blocks — Crude Minerals.</p> <p>Whetstone blocks, of an approximately rectangular shape, which after being quarried have had their projections removed by a process ot rough dressing, and which are used in that state, held within the provision for “minerals, crude, or not advanced in value or condition by refining or grinding, or by other process of manufacture,” under Tariff Act July 24, 1897, e. 11, § 2, Free List, par. 614, 60 Stat. 199 [U. S. Oomp. St. 1901, p. 1685.]</p> <p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The case relates to so-called “whetstone blocks” imported at the port of New York. They are nearly rectangular in shape, weighing approximately from 80 to 110 pounds. After being quarried, they were roughly dressed for the purpose of removing their projections; this leaving them with an irregular, uneven surface. The evidence showed that they were used in their imported condition by calico printers for sharpening instruments and grinding the edges of rollers. The Board of General Appraisers held these articles to have been properly classified as unenumerated manufactured articles, under Tariff Act July 24, 1897, c. 11, § 6, 30 Stat 205 [U. S. Comp. St. 1901, p. 1693J, overruling the importers’ contention that they should have been classified under section 2, Free last, par. 614, 30 Stat. 199 [TJ. S. Comp. St. 1901, p. 1685], which reads as follows: “614. Hiñerais, crude or not advanced in value or condition by refining or grinding, or by other process of manufacture, not specially provided for in this act.” The board observed in its opinion: “The claim under paragraph 614 we think not well taken. In our judgment this paragraph was not intended to cover articles of this character; besides, the evidence shows that the stones in question have beoñ advanced in condition by some process of manufacture. In other words, the pieces as imported are not in the exact condition in which they came from the quarry.”</p>

<p>Customs Dutiios — Ct.assipioatioN—-HAitnuBizEn Taped.</p> <p>So-called “marbleized paper,” which is made by hand, held dutiable as surface-coated paper under Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 398, 30 Stat. 188 |U. S. Comp. St. 1901. p. 1671], and not as handmade paper under paragraph 401, 30 Stat. 189 TU. S. Comp. St. 1901, p. 1672]. It Is excluded from the latter paragraph because not ejusdem generis with the classes of paper there enumerated.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,290 (T. D. 27,113), which affirmed the assessment of duty by the collector of customs at the port of New York on collars, classified under the provision for “articles made wholly or in part of lace,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 [U. S. Comp.

<p>Customs Duties — Classification—Decorated China — Commercial Designation.</p> <p>The provision for decorated china, in Tariff Act July 24, 1897, e. 11, § 1, Schedule B, par. 95, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], was used in a commercial sense which includes china ware having a brown stain or glaze on the sloping underside, tending to conceal finger marks, etc.</p>

<p>On Motion to Quash Service and Motion to Remand to State Court.</p>

<p>Equity — Pleading—Exceptions to Answer.</p> <p>A defendant will be required to file a new answer on the filing of exceptions to the original answer, which contains objectionable and irrelevant matter intermingled with parts that are good, so that the result of sustaining .the specific exceptions would be to leave the remaining parts disjointed and not in good form.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 532.]</p>

<p>1. Public Lands — Patents—Effect.</p> <p>A patent to land of tbe disposition of which the department has jurisdiction is both the judgment of that tribunal and a conveyance of the legal title to the land.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands. § 314.]</p> <p>2. Same — Vacation.</p> <p>Where the officers of the land department have been induced to issue a patent to the wrong party, either by an erroneous view of the law or by gross or fraudulent mistake of the facts, the party entitled to the land may have the patent set aside on proof either that on the facts found, conceded, or established, without dispute at the hearing before the department, its officers erred in the construction of the law applicable to the case, which caused, them to refuse to issue the patent to complainant, or that through fraud or gross mistake they fell into a misapprehension of the facts proved before them, which had the like effect.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, §§ 339, 340.]</p> <p>3. Same — Fraud—Quantum of Proof.</p> <p>Where a patent issued by the land department is attacked for mistake on the part of the government’s officers, the complainant must allege and prove, not only that there was a mistake in the findings, but the evidence before the department from which the mistake - resulted, the particular mistake that was made, the way in which it occurred, and the fraud, if any, which induced it.</p> <p>[Ed. Note. — For cases in point, sée Cent. Dig. vol. 41, Public Lands, § oik).</p> <p>Decisions of the land department, their conclusiveness and effect, see note to Hartman v. Warner, 22 C. C. A. 38; Carson City Gold & Silver Min. Co. v. North Star Min. Co., 28 C. C. A. 344; Úinta Tunnel Min. & Transí). Co. v. Creerle & C. 0. Min. & Mill. Co., 57 C. C. A. 207].</p> <p>4. Same — Duty of Entraman.</p> <p>Where an applicant for a cash entry of public land regularly applied to enter the'land, paid the price, and obtained his receipt therefor, he was under no obligation to supervise the entries on the books of the register of the land office, in order to see that the proper entries were made.</p> <p>5. Same — -Va cation of Entry.</p> <p>The records of the land office and the decision of the Interior Department with reference to a land entry could not be overturned 50 years after they were made and after the patentee had died, because of evidence that the patentee intended to enter the land for mill purposes, and that he erected a mill on an adjacent tract and not on the property entered, on which no water power existed.</p> <p>6. Same — Subsequent Entry.</p> <p>G. made a cash entry on iand in controversy in 1848, which immediately rendered the land subject to taxation, and withdrew it from the operation of the United States land laws. By mistake of the register in a land office, a patent was issued for another tract and long after G.’s death, the error was corrected, the original patent canceled, and a correct patent issued to G. and his heirs for the land in controversy, pending which complainant. had made a homestead entry on the land. Held, that the land was not subject to homestead eniry at the time complainant attempted to enter it, and that he had no rights therein.</p>

In Equitv. On plea. The Champagne Lumber Company is a Wisconsin corporation engaged in the manufacture of lumber, and in 1896 action was brought by ouo Nyback, an employe, for damages by reason of personal injury.

<p>Bankbuftcy— Sale, of Mortgaged Property — Allowance of Attorney’s Fee to Mortgagee.</p> <p>Under the settled rule of practice in Pennsylvania an attorney’s commission, stipulated for in a bond and mortgage in case of foreclosure, is subject to the control of the court, which may reduce the amount of such commission in its discretion, and such rule will be followed by a court of bankruptcy in that state, and, where the mortgaged property has been sold by the trustee in bankruptcy, under its order, the mortgagee will be allowed such part of the commission as will fairly compensate his 'attorney for the services actually rendered in the matter.</p>

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

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

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

<p>1. Master and Servant — Injuries to Servant — Railroads.</p> <p>Where intestate, a railroad employe, was going in the direction of his employer’s terminal yards at the time'the accident occurred, and his duties were such that he was required to be on the yards and go to and irom the same, his employer owed him the duty to exercise reasonable care for his safety while he was thus engaged.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 212, 218.]</p> <p>2. Same — Negligence—Contributory Negligence.</p> <p>Rev. St. Fla. 1892, § 2345, provides that no person shall recover damage from a railroad company for injury to himself or his property where the same is done by his consent or is caused by his own negligence; but 'if the complainant and the agents of the company are both at fault, the former may recover, the damages to be diminished by the jury in proportion to the amount of default attributable to complainant. Reid that, while such section practically eliminates the doctrine of contributory negligence, it does not entitle a complainant to recover without proof that the particular negligence of which defendant was at the time guilty was the proximate cause of the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 795-800.]</p> <p>3. Railroads — Injuries to Pedestrians — Presumptions.</p> <p>Where just prior to intestate’s injury by being struck by a railroad train he was walking alongside the track at a place where he could not ■have been injured; the engineer and those in charge of the train were entitled to assume that he would not leave such place and go upon the track in front of the train.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1279, 1280.]</p> <p>4. Same — Negligence—Proximate Cause.</p> <p>Where intestate stepped onto a railroad track in front of a train and was killed,'and the engineer did uot see him at all, the fact that the railroad company was negligent in failing to equip the engine with air brakes was not the proximate cause of the accident. • •</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 1320.]</p>

Appellant’s bill for alleged infringement of two trade-marks was dismissed for want of equity. In 1869 appellant’s predecessor, the firm of Enoch Morgan’s Sons, put on the market a scouring soap for general household use. In connection with its Introduction they adopted two marks.

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

<p>Ejectment — Evidence—Abstbact of Title — Admission of Entby fob Limited Purpose.</p> <p>Under a rule of court requiring the parties to an action for the recovery of real property to file copies of their abstracts of title, the purpose being to enable the court to learn whether they trace their title from a common source, and, if so, to limit the proofs to subsequent conveyances and transactions, the fact that an entry in an abstract is admitted in evidence as showing a source of title common to both parties, but for no other purpose, does not render the subsequent entries admissible as evidence in favor of the proponent of such abstract.</p>

<p>Indians — Indian Lands — Town Sites in Cheek Nation — Secretary of Interior — Decision—Review.</p> <p>Act Cong. March 1, .1901, c. 676, 31 Stat. 861, ratifying the agreement between the United States and the Creek tribe in the Indian Territory, authorized the Secretary of the Interior to survey and lay out town sites in the Creek Nation, the limits thereof to be so established as to best subserve the then present needs and the reasonable prospectivfe growth of such towns, and declared that all things necessary to be done, not otherwise specially provided for, should be done under the authority and direction of such Secretary. Held, that the extent of each site was to be measured by the then present needs and the reasonable prospective growth of the town, that the decision of-this question of fact .was intrusted to the Secretary of the Interior, whose action was to be final, and that, if not intended to be conclusive, it is at least controlling, in the absence of a clear, unequivocal, and convincing showing that it was wrong and was induced by fraud or imposition.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Appellant’s bill for alleged infringement of patent No. 423,998, issued March 25, 1890, to Herron, for improvements in brake shoes, was dismissed for want of equity on the ground of lack of invention.</p> <p>Claim 2 was the basis of the suit: “(2) In a brake-shoe, the shoe, A, having blocks, B, of steel set in its face below the surface, and the strips, C, 'of wrought iron, substantially as shown and described, and for the purpose specified.”</p> <p>The drawings and description, explanatory .of the claim, are as follows :</p> <p> </p> <p>“This invention relates to brake shoes, more especially relating to the class of shoes known as ‘composite-’ shoes, the object being to provide a shoe that will be strong, durable, and afford the greatest possible frictional contact with the hardened tire of the wheel, and one that will fit itself to the circumferential curve of said wheel, and that will not be open to the defects heretofore found in composite shoes. The details whereby these ends are accomplished are hereinafter fully described, and the parts claimed as new pointed out in the claims.</p> <p>“In the accompanying drawings, Fig. 1 is a perspective view showing the contact-face and one edge and an end of the shoe. Fig. 2 is a vertical cross-section of Fig. 1 on the line x, y. Fig. 3 is a longitudinal section on the lino a, b, Fig. 1 showing the cross-sectional contours.</p> <p>“In the figures like reference marks indicate corresponding parts in the several figures.</p> <p>“The blocks, B, are of crucible steel and are of cross-sectional form, as best shown in Fig. 3, being set in the face of the main body of said portion A an eighth to a quarter of an inch, said distance to be governed by the wearing qualities of the iron of which said part A is made, the prominence of the parts of the body, A, projecting above the blocks, B, being for the purpose of offering a surface for contact with the wheel which shall be easily worn down to the curve of the circumferential surface of the wheel and afford as soon as possible a steady bearing for the shoe on said circumferential surface. Projections, D, enter corresponding grooves in the hard pieces, B, and form a rib strengthening the shoe and obviating any possibility of lateral displacement of the parts, B. Strips or curved rods, C, of wrought-iron are cast into the main body of the shoe for the purpose of strengthening the entire mass, it being in such a position that any stress tending to break the shoe in cross-section will exert a pulling tension on said strip, O, and a crushing strain on the body of the shoe, thus applying the wrought-iron of the one and the east-iron of the other to the exact force it is best adapted to successfully withstand. These strips may be as many in number as desired. The heavier the work to he done, the more intense is the strain to he overcome or guarded against, and the more strength to be supplied by these strips, O.”</p> <p>The prior art was illustrated by the German publication of Vo-n Waldegg in 1871, and by the following patents: 8,255, reissue, McConway; 9,329, reissue, Curtice; 11,137, Parker; 11,746, Walsli; 18,962, Eicllitz; 27,141, McCam-mon; 34,539, Warden; 43,418, Lovelace; 50,976, Storer and Wbelpley; 54,838, Arnold; 78,786, Brown; S2,677, Barrows; 98,530, Titus; 149,875, McNisk; 168,-408, Onions; 174,898, Congdon; 223,062, Nichols; 286,371, Baldwin; 298,283, Brigham; 324,851, Lappin; 320,459, Lappin ; 340,353, Pfleging; 344,517, Bradel; 354,724, Meehan; 354,725, Meehan; 374,272, Sargent; 374,427, Pollock; 385,352, Hayes; 397,617, Tilden; 399,665, Hatt; 410,989, Pollock; 412,572, Whalen et al.</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern Division of the Southern District of Illinois.</p> <p>The decree adjudges that appellant is an infringer of both claims of the Tesla patent No. 511,559, and of the first four claims of patent No. 511,560, issued December 26, 1893, the one for improvements of method and the other of means of electrical transmission of power.</p> <p>The general nature of the new method of No. 511,559 is described in the' following portions of the specification and in the claim’s: “In certain patents heretofore granted, I have shown and described a system of electrical power transmission in which each motor contains two or more independent energizing circuits through which were caused to pass alternating currents, having in each circuit such a difference of phase that by their combined or resultant action they produced a rotary progression of the poles or points of maximum magnetic effect of the motor and thereby maintained the rotation of its movable element In the system referred to and described in said patents, the production or generation of the alternating currents, upon the combined or resultant action of which the operation of the system depends, is effected by the employment of an alternating current generator with independent induced circuits which, by reason of the winding or other construction of the generator, produced currents differing in phase, and these currents were conveyed directly from the generator to the corresponding motor coils by independent lines or circuits. I have, however, discovered another method of operating these motors, which dispenses with one of the line circuits and enables me to run the motors by means of alternating currents from a single original source.</p> <p>“Broadly stated, this invention consists in passing alternating currents, obtained from one original source, through both of the energizing circuits of the motor, and retarding the phases of the current in one circuit to a greater or less extent than in the other.</p> <p>“The distribution of current between the two motor circuits may be effected by induction or by derivation. In other words, I may pass the alternating current from the source through one energizing circuit and induce by such current a second current in the other energizing circuit. Or, on the other hand, I may connect up the- two energizing circuits of the motor in derivation or multiple are with the main circuit from the source. In either event I make flue provision for maintaining a difference of phase between the currents in the two circuits or branches.</p> <p>. “In carrying out my invention I have used various means for securing this result. For example, when I induce a current in one of the circuits from the current flowing in the other, I employ a form of converter or bring the two circuits into such inductive relations as will produce the necessary difference of phase. Or, when I obtain the two energizing currents by derivation, I make the two circuits of different degrees of self-induction by inserting a resistance or self-induction coil in one of said currents, or I combine these devices in different ways, as I shall more specifically describe hereinafter. * * *</p> <p>“In an application filed of even date herewith, I have shown and described other ways of accomplishing this result, among which may be noted the introduction of a resistance capable of variation in each motor circuit, or the use of a resistance in one circuit and a self-induction coil in the other. * * *</p> <p>“What I claim herein is:</p> <p>“(1) The method of operating motors having independent energizing circuits, as herein set forth, which consists in passing alternating currents through both of the said circuits and retarding the phases of the current in one circuit to a greater or less extent than in the other.</p> <p>“(2) The method of operating motors having independent energizing circuits, as herein set forth, which consists in directing an alternating current from a single source through both circuits of the motor and varying or modifying the relative resistance or self-induction of the motor circuits and thereby producing in the currents differences of phase, as set forth.’’</p> <p>Fig. 1 is illustrative of the inductive method, and Fig. 2 of the derivative.</p> <p> </p> <p> </p> <p>' In the specification of patent 511,560 Tesla said: “</p> <p>“My present application relates to the means employed when the two energizing currents are obtained from a single.source by derivation.</p> <p>“In explanation of whát appears to be the principle of the operation of my invention and of the. functions of the several instrumentalities comprised thereby, let it be assumed that .the two energizing circuits of an'alternating current motor, such, for example, as I have described in my patent No. 382,-280, dated May 1, 1888, are connected up in derivation or multiple arc with the conductors of a circuit including an alternating current generator. It is obvious that if both circuits are alike and oiler the same resistance to the passage of the current no rotary effect will be produced, for, although the periods of the currents in both circuits will lag or be retarded to a certain extent with respect to an unretarded current from the main circuit, their phases will coincide. If, however, the coils of one circuit have a greater number of convolutions around the cores, or a self-induction coil be included in one of the circuits, the phases of the current in that circuit are retarded by the increased self-induction. The degree of retardation may readily be secured by these means which will, produce the difference in electrical phase between the two currents necessary for the practical operation of the motor. If in lieu of increasing the self-induction of one circuit a dead resistance be inserted, .the self-induction of such circuit exerts a correspondingly diminished effect, and the phases of the current flowing in that branch are brought more nearly in unison with those of an unretarded current from the main line, and the necessary difference of phase between the currents1 in the two energizing circuits thus secured. I take advantage of these results in several ways. For example, I may insert variable resistances in both branches or energizing circuits, and, by varying one or the other so as to bring the phases of the two currents more or less in unison with those of the unretarded current, I may thus vary the direction of the rotation of the motor. In lieu of resistances I may employ variable self-induction coils in both circuits. Or I may use a resistance in one and a self-induction coil in the other and vary either or both.</p> <p>“ * * * a reduction of resistance in one circuit imparts to the motor rotation in one direction, while a reduction of the resistance in the other circuit will produce a rotation in the opposite direction. By means of the two resistances, therefore, capable of variation or of being bodily withdrawn from or inserted in the circuits by any ’well-known means, a perfect regulation of the motors is secured. * * *</p> <p>“In Fig. 7 the usual means for varying the resistance or self-induction of the motor circuits at will are indicated by the lever, M, sliding over a series of resistance plates, and by a core, N, which is adapted to be moved in and out of the induction coil, S.</p> <p>“Similar results may be secured by such a construction or organization of the motor as will yield the necessary differences of phase. For example, one set of energizing coils may be of finer wire than the other, or have a greater number of convolutions, or each circuit may contain the same number of convolutions, but composed of different conductors, as, for instance, one of copper, the other of German silver. I have represented this in Fig. 6, in which the coils, C, are indicated by closer lines than coils, D.”</p> <p>Figs. 6 and 7 are as follows:</p> <p> </p> <p> </p> <p>The claims, of whose infringement complaint was made, read thus:</p> <p>“(1) The combination, with a source of alternating currents and a circuit from the same, of a motor, having independent energizing circuits connected with, the said circuit, and moans for rendering the maguctic effects due, to said energizing circuits of different phase and an armature within the'influence of said energizing circuits.</p> <p>“(2) The combination, with a source of alternating currents and a circuit from the same, of a motor having independent energizing circuits connected in derivation or multiple arc with the said circuit, the motor or energizing circuits being of different electrical character, whereby the alternating currents therein will have a difference of phase, as set forth.</p> <p>“(3) The combination, with a source of alternating currents and a circuit from the same, of a motor having independent energizing circuits connected in derivation or multiple are with &⅞ said circuit and of different active resistance, as set forth.</p> <p>“(4) In an alternating current motor, the combination, with field magnets, of independent energizing currents, adapted to be connected in multiple arc with the conductors of the line or transmission circuit and a resistance or self-induction coil in one or both of the said motor circuits, as set forth.”</p> <p>In connection with the defense of double patenting, claim 5 is brought into the case: ■</p> <p>“(5) In an alternating current motor, the combination, with the field magnets or cores, of independent energizing coils adapted to be connected in multiple are with the line or transmission circuit, and a variable resistance or self-induction coil included in one or both of the motor circuits, as set forth.”</p> <p>If the patents are valid, appellant concedes infringement</p> <p>The defenses are anticipation, want of invention, double patenting, and prior foreign patenting.</p> <p>Respecting anticipation, the facts, as we find them to be, are summarized in the opinion.</p> <p>As no anticipation is found, the prior art, with notice of which Tesla was chargeable, is limited to- his own polyphase motor, referred to in the patents in suit, and to Overbeck’s laboratory demonstration of the equivalency of three modes of producing two alternating currents of differing phases, one mode being by the use of a two-phase generator, and the other two being by splitting, a single current and causing the part in one branch (either induced or derived) to lag. In one of appellant’s briefs Overbeck’s experiments and appellant’s application of them to the patents in suit are diagramed thus:</p> <p> </p> <p> </p> <p>The defense of double patenting is founded on a comparison of the patents in suit, particularly claim 5 and Fig. 7 of No. 511,600, with Tesla’s patent No. 401,520, issued April 16,. 1889, on an application filed February 18, 1889, for a “method of operating electro-magnetic motors.”</p> <p>The specification of No. 401,520 states:</p> <p>“As is well known, certain forms of alternating-current machines have the property, when connected in circuit with an alternating-current generator, of: running as a motor in synchronism therewith; hut, while xiie alternating current will run the motor after it has attained a rate of speed synchronous with that of the generator, it will not start it. Hence, in all instances heretofore where these ‘synchronizing-motors,’ as they' are termed, have been run, some means have been adopted to bring the motors up to syn-chronism with the generator, or approximately so, before the alternating current of the generator is applied to drive 1liem. In some instances mechanical appliances have been utilized for this purpose. In others special and com-idieated forms of motor have been constructed. I have discovered a much more simple method or plan of operating synchronizing-motors, which requires practically no other api>aratus than the motor itself. In other words, by a certain change in the circuit-connections of the motor I convert it at will from a double-circuit motor, or such as I have described in prior patents and applications, and which will start under the action of an alternating current, into a synchronizing-motor, or one which will be run by the generator only when it has reached a certain speed of rotation synchronous with that of the generator. In ibis manner I am enabled to very greatly extend the applications of my system and to secure all the advantages of both forms of alternating-current motor.</p> <p>“The expression ‘synchronous with that of the generator’ is used herein in its ordinary acceptation; that is to say, a motor is said to synchronize with the generator when it preserves a certain relative speed determined by its number of poles and the number of alternations produced per revolution of the generator. Its actual speed, therefore, may be faster or slower than that of the generator; but it is said to be synchronous so long as it preserves the same relative speed.</p> <p>“In carrying out my invention I construct a motor which has a strong tendency to synchronism with the generator. The construction which I prefer for this is that in which the armature is provided with polar projections. The field-magnets are wound with two sets of coils, the terminals of which are connected to a switch mechanism, by means of which the line-current may be carried directly through the said coils or indirectly through paths by which its phases are modified. To start such a motor, the switch is turned onto a set of contacts which includes in one motor-circuit a dead resistance, in the other an inductive resistance, and, the two circuits being in derivation, it is obvious that the difference in phase of the current in such circuits will set up a rotation of the motor. When the speed of the motor has thus been brought to the desired rate, the switch is shifted to throw the main current directly through the motor-circuits, and although the currents in both circuits will now he of the same phase the motor will continue to revolve, becoming a true synchronous motor.” « * *</p> <p>“I believe that I am the first to operate electro-magnetic motors by alternating currents in any of the ways herein suggested or described; that is to say, by producing a progressive movement or rotation of their poles or points of greatest magnetic attraction by the alternating currents until they have reached a given speed, and then by the same currents producing a simple alternation of their poles, or, in other words, by a change in the order or character of the circuit-connections to convert a motor operating on one principle to one operating on another, for the purpose described.”</p> <p>And the claims are these:</p> <p>“(1) The method of operating an alternating current motor herein described by first progressively shifting or rotating its poles or points of greatest attraction, and then, when the motor has attained a given speed, alternating the said poles, as described.</p> <p>“(2) The method of operating an electro-magnetic motor herein described, which consists in passing through independent energizing-circuits of the inotor alternating currents differing in phase, and then, when the motor has attained a given speed, alternating currents coinciding in phase, as described.</p> <p>“(3) The method of operating an electro-magnetic motor herein described, which consists in starting the motor by passing alternating currents differing in phase through independent energizing-circuits, and then, when the motor has attained a given speed, joining the energizing-circuits in series and passing an alternating current through the same.</p> <p>• “(4) The method of operating a synchronizing-motor, which consists in passing an alternating current through independent energizing-circuits _ of the motor and introducing into such circuits a resistance and self-induction coil, whereby a difference of phase between the currents in the circuits will be obtained, and then, when the speed of the motor synchronizes with that of the generator, withdrawing the resistance and self-induction coil, as set forth.”</p> <p>The defense of prior foreign patenting is based on section 4887, U. S. Rev. St. [U. S. Comp. St. 1901, p. 3382], as it stood when the patents in suit were issued:</p> <p>“Sec. 4887. No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patented in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application. But every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term, and in no case shall it be in force more than seventeen years.” ■</p> <p>The foreign patent on account of which the patents in suit are said to have expired is British patent No. 6,527 of 1889. It is substantially the same as the domestic patent No. 401,520.</p> <p>The patents here in suit, as well as the basic patents relating to the rotating-fleld motor-principle, have been in litigation repeatedly. In connection with the voluminous record and briefs we have read the following cases: Westinghouse Co. v. Granite Co. (C. C.) 103 Fed. 951; Westinghouse Co. v. Granite Co., 110 Fed. 753, 49 C. C. A. 151; Westinghouse Co. v. Royal Weaving Co. (C. C.) 115 Fed. 733; Westinghouse Co. v. National Electric Co. (C. C., E. D. Wis., not reported); Tesla Electric Co. v. Scott & Janney (C. C.) 97 Fed. 588; Westinghouse Co. v. Dayton Co. (C. C.) 106 Fed. 724; Dayton Co. v. Westinghouse Co., 118 Fed. 562, 55 C. C. A. 390; Westinghouse Co. v. Catskill Co. (C. C.) 94 Fed. 868; Westinghouse Co. v. Catskill Co. (C. C.) 110 Fed. 377; Westinghouse Co. v. Catskill Co. (C. C.) 121 Fed. 831; Westinghouse Co. v. Stanley Co. (C. C.) 129 Fed. 140; Westinghouse Co. v. Stanley Co., 133 Fed.' 167, 68 C. C. A. 523; Westinghouse Co. v. Stanley Co., 138 Fed. 823, 71 C. C. A. 189; Westinghouse Co. v. Roberts (C. C.) 125 Fed. 6; Westinghouse Co. v. Mutual Life Ins. Co. (C. C.) 129 Fed. 213; Westinghouse Co. v. Electric Appliance Co. (C. C.) 133 Fed. 397; Westinghouse Co. v. Electric Appliance Co. (C. C.) 142 Fed. 545; Jefferson Co. v. Westingfcouse Co., 139 Fed. 385, 71 C. C. A. 481.</p> <p>Appellant’s counsel urge their case with thoroughness and zeal, and they properly' insist upon their right to our independent judgment of the merits of each defense as now presented.</p>

In Equity. Suit for alleged infringement of claims 1, 4-, 5, 7.'and 1.0 of United States letters patent No. 528,323, dated October 30, 1894, to Daniel M. Cooper for workman’s time recorder.

<p>In Equity. On application for final decree.</p>

<p>Monopolies — Action for Damages Under Anti-Trust Law — Pleading.</p> <p>In an action under section 7, Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3202], to recover damages for injury alleged to have been caused to plaintiff by reason of contracts made by defendant in restraint of trade or commerce among the several states or with foreign nations, and an attempt by defendant to monopolize such trade or commerce, or a part thereof, in violation of said act, it is not sufficient to frame the declaration in the language of the statute, but the nature and substance of the contracts relied upon, and the substantial facts alleged to constitute an attempt at monopoly must be pleaded to enable the court to determine whether they are in violation of the statute, and to enable the defense to properly prepare to meet the charge.</p>

<p>3. Process — Validity op Service — Nonresidents.</p> <p>A defendant, who, knowing that a possible cause of action exists against him in a certain jurisdiction, voluntarily goes into'such jurisdiction on business with third parties, takes the risk of being there discovered and, served with process ; and such service is not invalidated because the plaintiff had knowledge that defendant would come within the jurisdiction and arranged to be notified'when he did come, where no trick or device was resorted to for the purpose of inducing his coming.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Process, § 70.]</p> <p>2. Removal op Causes — Procedure After Removal — Foreign Corporations —Validity op Service — Determination.</p> <p>Where an action against a foreign corporation has been removed from a state to a federal court, the question of the validity of the service of the summons and complaint on the defepdant is to be determined according to the rules and practice of the federal courts, and not by the law of the-state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 250.]</p> <p>3. Corporations — Foreign Corporations — Actions—Process—Service — Validity.</p> <p>A federal court cannot acquire jurisdiction over a foreign corporation which is not doing business in the state of suit and has no property within such state with relation to which the suit is brought, by the service of process on an officer who is casually within the state; and the fact that the corporation maintains an office room wihin the state of suit, in charge of a salaried sales agent, who takes orders for goods to be accepted and filled by the corporation at its home office, does not constitute a doing business within the state such as to validate the service.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 2813, 2626.</p> <p>Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3; Celia Commission Co. v. Bohlinger, 78-C. C. A. 473.]</p>

<p>1. Bankruptcy — Appointment or Receiver — Requirement oe Bond.</p> <p>Where the only property of an alleged bankrupt, so far as shown, is property subject to a mortgage upon which a decree of foreclosure has been entered, before the court will appoint a receiver the petitioning creditors will be required to furnish a bond, and include as one of its conditions that they will pay the expenses of the receivership .if sufficient assets applicable to that purpose are not discovered.</p> <p>2. Same-Judgments Avoided by Proceedings — Decokee Foreclosing Mortgage.</p> <p>. A decree foreclosing a mortgage on property of the defendant entered within four months prior to the liling of a petition in bankruptcy against him is not a judgment creating a lira which is rendered void by his adjudication as a bankrupt under Bankr. Act: July 1, 1898, § 67f, c. 541, 30 Stat. 5(55 LU. S. Comp. St. 1901, p. 3450], but merely a decree for the enforcement of a prior lien, which is not affected by the bankruptcy proceedings.</p>

<p>1. Contracts — Pleading—Declaration—Allegation op Contract.</p> <p>A declaration which alleges a conveyance of real estate by a third party to defendant “upon his express promise and agreement as to the consideration for said conveyance to him” that he should thereafter pay to plaintiff and the other creditors of the grantor 50 per cent, of their claims and judgments against said grantor sufficiently alleges the making of a contract by defendant to make such payments.</p> <p>2. Same — Contract poe Benefit op Third Persons — Right op Action to Enforce.</p> <p>Tlie right of a third person to sue upon a contract made tor his benefit being fully established by decision in Rhode Island, such rule of the state court is controlling upon a federal court sitting in that state. But whether the state decisions can be extended so far as to sustain an action on a contract to pay only a percentage of a debt due from the promisee to the plaintiff, quaere.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 798.1</p> <p>3. Same — Action to Enforce — Pleading.</p> <p>A declaration which alleges a contract between defendant and a third parly, by which defendant promised for a vaina hie consideration to pay 50 per cent, of the amount of the “claims and judgments” of creditors oí the promisee, does not. state a cause of action in favor of the plaintiff, who subsequently obtained a judgment against such promisee, although it was based on an indebtedness existing when the contract was made, since the claim as then existing was merged in the judgment, and the contract as alleged covers only such judgments as were then in existence.</p>

<p>1. CommeroiiTRegtjlations — Congressional Power.</p> <p>The commerce clause of the federal Constitution empowers Congress to regulate the adjuncts of interstate commerce, as well as such commerce itself.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Commerce, §§ 10-35.1</p> <p>2. Same — State Regulation — Implied Consent.</p> <p>The implied consent of Congress to state legislation regulating interstate commerce, arising from a failure of Congress to enact similar legis-la'tion, is temporary only, and is withdrawn by a congressional enactment covering the same subject-matter.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Commerce, § 8.]</p> <p>3. Same — Statutes—Regulation of Employes.</p> <p>Act Cong. June 1, 1808, e. 370, § 10, 30 Stat. 428 [U. S. Comp. St. 1901. p. 3211J, makes it an offense for an interstate carrier and any officer, agent, or receiver thereof to (1) require any employe or person seeking employment, as a condition thereof, to enter into an agreement not to become or remain a member of any labor organization, or (2) threaten any employe with loss of employment or unjustly discriminate against any employe because of his membership in such a labor organization, or (3) require any employe or person seeking employment, as the condition thereof, to agree to contribute to a fund for charitable, social, or beneficial purposes, and to release the employer from liability for personal injuries, etc., or (4) to attempt or conspire after having discharged an employe, ox-after his quitting, to prevent him from obtaining employment. Sold, that such section directly affects one of the adjuncts of interstate commerce, and was within the power of Congress conferred by the commerce clause of the federal Constitution.</p> <p>4. Constitutional Law — Commerce Clause — Limitations—Due Process of Law.</p> <p>The provision of the fifth amendment \>f the federal Constitution that no person shall be deprived of life, liberty, or property without due process of law, though a limitation on the commerce clause of the federal Constitution, was not infringed by Act Cong. June 1, 1898, c. 370, § 10, 30 Stat. 428 [U. S. Comp. St. 1901, p. 3211], regulating the relations between interstate carriers and their enrployés; such carriers not being entitled to unrestricted liberty of contract either in their relations with the public or their employes.</p> <p>5. Commerce — Interstate Commerce — Regulation—Discrimination.</p> <p>Act Cong. June 1, 1898, e. 370, § 10, 30 Stat. 428 fU. S. Comp. St. 1901, p. 3211], regulating the relations between interstate carriers and their employes, was not unconstitutional as penalizing a common carrier engaged in interstate commerce for discharging an, employs because of his membership in a labor organization, or otherwise discriminating against him on that ground without reference to whether he was engaged in interstate or intrastate commerce.</p> <p>6. Evidence — Judicial Notice — Subjects.</p> <p>A court will take judicial notice -that a particular common carrier engaged in interstate commerce also operates trains over its lines solely within the state.</p> <p>7. Constitutional Law — Equal Protection of Laws — Federal Constitution.</p> <p>The provisions of the fourteenth- amendment of the federal Constitution prohibiting class legislation, applies only to state action amounting to such denial; there being no provision prohibiting Congress from passing laws subject to- such objection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 649-677.]</p>

In Bankruptcy. This is an application by the National Bank of Syracuse for an order directing the trustee in bankruptcy of Walter E. Northrup and Robert A. Hill, as copartners tinder the name of the Central Bank, doing business at Oneida, N. X., to pay oyer to it the sum of $796.23, the amount of certain drafts sent by the National Bank of Syracuse to the said Central Bank in payment of certain collections it had made as agent for said Central Bank, but which had not been…

<p>1. Wills — Constbuotion—Legacy to Wipe in Lieu of Dower.</p> <p>A legacy given to a wife in lieu of dower is based"upon a valuable consideration, and is a matter of purchase and not merely of gift, and, in case of ambiguity or conflicting provisions in the will, is entitled to preference over gifts merely voluntary.</p> <p>Lilit. Note. — For cases in point, see Cent. Dig. vol. 49, Wills, § 989.]</p> <p>2. Same — INCONSISTENT ok Ambiguous Peovisions.</p> <p>A primary provision of a will controls as against inconsistent secondary provisions, and, when a clear gift, lias been made, it will not be impaired by any subsequent ambiguous or doubtful disposition.</p> <p>LKd. Note. — For cases in point, see Cent. Dig. voi. 49, Wills, § 987.]</p> <p>3. Same — Wnm Oonstkueu.</p> <p>A testator by his will devised his estate to trustees as an entirety, with directions that the income therclrom should be paid to bis wife until bis youngest child living should reach the age of 21 years, after which one-third of Hie income should be paid to tile wife and the remaining two-thirds divided equally between bis three daughters and bis son or their descendants. It was provided that after tile death of the wife the income should be equally divided between the children or their descendants, subject to a further provision that one-fifth of the son’s share in the estate should be paid to him when he reached the age of 21 years, and three-fifths when lie reached the age of 28, subject to the discretion of the trustees and-wicLow, if living, to delay such payment until they should approve, the remaining one-fifth of his share to be held in trust for the benefit of himself or his direct descendants. The provision for the widow was to be in lieu of dower. Held, that the primary purpose of the will was to provide for the widow who was entitled during her lifetime, after the youngest child became 21 years old, to one-third of the income from the entire estate without diminution on account of the provisions relating to the son, and that it was also the purpose of the testator that the shares of the children should be equal; that, therefore, the son was not entitled to receive the fifth parts of his fourth of the entire estate so long as his mother lived, but only to such parts of his fourth of two-thirds of the estate, since any other construction would reduce his mother’s share of the income or that of his sisters.</p> <p>4, Same — Trustees—Discretion to Withhold Payment of Legacy.</p> <p>A testator has the right to postpone the payment of a legacy to a child to a definite period beyond the majority of the legatee and also the right to have its payment further withheld at the discretion of his trustees, and in such case the trust is an active and continuing one, and, in the absence of fraud or an abuse thereof, the discretion of the trustees cannot be controlled by the courts.</p> <p>6. Same — Construction of Trust Provision.</p> <p>A will, after providing for the payment to a son of the testator of four of the fifth parts of his share of the estate, provided that “the remaining one-fifth part of his share shall be held in trust by my executors for the benefit of my said son * * * and his direct descendants.” Held, that such provision did not create an estate tail which entitled the son to receive such portion at once, but that it was the testator’s intention to create a trust which was sufficiently declared and under which the property must be held by the trustees for the contingent benefit of any children the son might leave at his death.</p>

In Equity. The complainant, a corporation organized under the laws of the state of South Dakota, charges in its bill that it is engaged in the printing and publishing'business, having a publishing plant in University City, Winner Station, one of the substations of the post office of St. Louis, Mo., and that the defendant is the postmaster of said city of St. Louis; that one of the publications owned, printed, and issued by complainant is the Woman’s Farm Journal, which has…

This is an action to enforce and collect of the defendant individually assessments upon stock of the American Exchange National Bank of Syracuse, N. Y., levied by the Comptroller of the Currency of the United States under the provisions of section 5151, Rev. St. U. S. [U. S! Comp. St. 1901, p. 3465], and which stock was issued in the name of and stood upon the books of the said bank in the name of “D. H. Gowing, Trustee.”

<p>1. United States — Contracts—Subcontract—Agency.</p> <p>Where, after defendant A. had obtained a contract from the government for the removal of certain rocks from San Francisco Bay, he organized defendant corporation, of which he was president and the owner of a majority of the stock, and contracted with such corporation, in consideration of a block of the stock, to employ it as his agent in 'the performance of such contract, the corporation agreeing to carry out the contract and specifications and to have full control of the work and all employes working thereon, etc., the corporation was neither an assignee of the contract nor a subcontractor, but a mere agent for A.</p> <p>2. Courts — Federal Courts — Jttrisdiction—Cases Arising under United States Laws.</p> <p>An action by the United States on relation of a materialman against a government contractor and a surety to recover on the contractor’s bond to the government, as required by Act Cong. August 13. 1894, c. 280, § 1, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523], for materials furnished to enable him to perform the contract, constituted a case arising under the Constitution or laws of the United States, and was therefore within the jurisdiction of the federal courts, as provided by Act Cong. March 3, 1875, as amended by Act March 3, 1887, and corrected by Act August 13, 1888, e. 86G, § 1, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508].</p> <p>[Ed. Note. — Jurisdiction in cases involving federal question, see note to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purch. Co. v. Boston & M. C. C. & S. Min. Co., 85 C. C. A. 7.]</p> <p>3. Limitation op Actions — Application op Statute — Time.</p> <p>Where a materialman delivered materials to a government contractor for use in the performance of the contract in California, the material-man’s right to recover on the contractor’s bond to the government was barred by the California statute, limiting actions on accounts to two years, and was not within the four-year statute relating to actions on written contracts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 136, 137.]</p> <p>4. Same — Acknowledgment op Debt.</p> <p>Where a contractor executed his note to a materialman for $5,000, such note constituted an acknowledgment of indebtedness to that amount within the statute of limitations as of the date the note was given.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 591-602.]</p>

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

<p>On Motion to Remand and Set Aside Default.</p>

Motion to confirm report of special master refusing- to dismiss the petition of creditors in involuntary proceedings on the ground the petition was not filed in time.

<p>3. Bankruptcy — Composition—Petition to Vacate — Limitations.</p> <p>Under the express provisions of Bankr. Act July 1, 1808, c. 541, § 13, 30 Stat. 550 LU. S. Comp. St. 1901, p. 3427], a petition to set aside a composition -with a bankrupt's creditors not filed within six months after the composition was confirmed held barred by limitation.</p> <p>2. Same — Extension of Time.</p> <p>Bankr. Act July 1, 1898, c. 541, §• 15, 30 Stat. 550 [U. S. Comp. St, 1901, p. 3428], providing that a Judge, on application of the parties in interest, who have not been guilty of undue laches filed within a year after a discharge shall have been granted, may revoke it if on the trial it shall appear that it was obtained through the bankrupt’s fraud, etc., does not apply where the discharge results by operation of law from the confirmation of the bankrupt’s offer of composition.</p> <p>3. Same — Confirmation of Composition — Effect.</p> <p>So long as an order confirming a composition with a bankrupt’s creditors stands, it is effective to discharge the bankrupt from his debts other than those agreed to be paid by the terms of the composition and those no I affected by a discharge as provided by Bankr. Act July .1. 1898, c. 541. § 14, subd. “c,” 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428],</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 610.!</p>

<p>1. Corporations — Sales or Land — Power of President.</p> <p>Where it was not shown to be the custom of a corporation to permit its president to make sales of the corporation’s lands, without authority of the board of directors, he had no power to sell such lands without a special or general resolution of the board of directors conferring such authority.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 1629.]</p> <p>2. Same — Forged Resolutions — Void Deed.</p> <p>Where no resolution of the board of directors of a corporation was ever passed at any time authorizing a sale of the corporation lands by the president, and the corporation’s other officers and stockholders knew nothing of a deed to such lands executed by the president, to which was attached an alleged copy of a resolution conferring on the president authority to make the deed, which copy also bore the forged signature of the corporation’s secretary, the deed was void.</p>

<p>Liens — Equitable Liens — Raw Material Sold for Manufacture.</p> <p>_ Petitioners who were foreign commission merchants purchased certain sills filatures for the bankrupt for manufacture into silk. The contract provided that the goods were to be taken by the buyer on arrival, and that the buyer should receive an allowance should sea water damage exceed 5 per cent The brokers were also excused from accidents of the seas and other specified unavoidable casualties, and were given a prior lien on the goods covered by the order or an equivalent value, until payment had been made. The filatures were delivered to the bankrupt, with the intention that the same should be made up and on a credit of 90 days, with a.discount of 1½ per cent, or net six months note. Held, that such facts did not create an equitable lien on the goods in favor of the brokers as against the bankrupt’s other creditors.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 32, Liens, §§ 26-28.J</p>

<p>. In Bankruptcy. On exceptions, to report of referee upon petition to discharge trustee.</p>

<p>Shipping — Ijswuky op Stevedoke--Liability op Vessel.</p> <p>A vessel held liable for an injury to a stevedore’s employe while engaged in stowing cotton in tlio hold, and resulting from the breaking of a fail which was being operated by the ship, and with which neither libelant nor any of his fellow servants had any connection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 350, 351.]</p>

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

<p>1. Monopolies — Contracts and Combinations in Restkaint op Interstate Commerce — Combinations -Prohibited.</p> <p>A declaration alleged that defendant corporation was engaged in purchasing and contracting for the purchase of window glass from the manufacturers for certain named jobbers and wholesale dealers doing business in different states, who owned practically all of defendant’s stock and. controlled it; that such dealers comprised over 75 per cent, of all those in, the United States, and sold more than 75 per cent, of the window glass sold therein; that up to a certain date they were uncombined, and competed freely with each other and with other wholesale dealers, but that on such date defendant entered into a combination and agreement with them and with a manufacturer which owned and operated factories in different states and manufactured 70 per cent, of all the window glass made in the United States, by which defendant and such dealers agreed to buy window glass from no other manufacturer unless at materially lower prices, and such manufacturer agreed to sell to no other dealers, except at higher prices than it charged them; that such agreement further limited the quantity of window glass to bo purchased by each of such dealers to such as should be arbitrarily fixed by defendant and the manufacturer, and also gave them the power to arbitrarily fix excessive and unreasonable prices which were to be charged retail dealers, which prices such wholesale dealers agreed to observe under penalty of fines to be. assessed against and paid by them; that it further restricted and limited the territory within which each of such dealers should sell to retail dealers, the object and effect of such combination and agreement being to restrain interstate commerce in window glass, to destroy competition therein, and to practically monopolize the same, especially in the better grades, which were practically ail made by such manufacturer. Held, that the declaration charged a contract or combination in restraint of interstate commerce, in violation of the Anti-Trust Act July 2, 1800, c. 647, 2G Stat. 210 LU. S. Comp. St. 1901, p. 32021, which, as construed by the Supreme Court, makes unlawful any contract or combination in restraint of such trade or commerce, and not merely those which are in unreasonable restraint of trade and therefore illegal at common law.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 35, Monopolies, § 13.]</p> <p>2. Same — Right oh Action foe Damages.</p> <p>A contract or combination in restraint of interstate commerce, prohibited by Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 210 FU. s. Comp. St. 1901, p. 3202], is not merely illegal in the sense that it is not enforceable, but is per so unlawful, and one who is harmed in his business or property by such a contract or combination has suffered a legal injury, within the meaning of section 7 of the act, and is by such section given a rigid of action therefor.</p> <p>LEd. Note. — For cases in,point, see Cent. Dig. vol. 35, Monopolies, § 18.]</p> <p>3. Same — Pleading.</p> <p>Where a declaration sufficiently charges a contract or combination on the part of defendants in restraint of trade and commerce among the states, in violation of Anti-Trust Act July 2, 1890, c. 647, 20 Stat. 210 [U. S. Comp. St. 1901, p. 3202], general allegations showing that the result of such contract or combination was to deprive plaintiff of customers, and prevent it from making a profit in its legitimate business as theretofore, are sufficient to support an action for treble damages, under section 7 of the act.</p> <p>[Ed. Note. — Rights and liabilities of parties contracting with trusts or combinations in restraint of trade, see note to Chicago Wall Paper Mills v. General Paper Co., 78 C. C. A. 612.]</p>

<p>Appeal -from the Circuit Court of the United States- for, the District of Kansas.</p> <p>In March, 1892, the appellee Neville, as administrator with the will annexed of the estate of Morrell C. Keith, deceased, and- Morrell Keith Neville, the only heir at law, exhibited their bill to the .Circuit Court of the District of Kansas against Eugene S. Quinton and Abram Bergen, and others setting out the ownership by the testator in his lifetime of land situated in Shawnee county, Kan., the complainant’s relation to him as above stated, and the following facts: That the will had been duly probated in the county court of Lincoln county, Neb., where the testator resided at the time of his death; that Neville had “lately filed in the probate court of Shawnee county 'an authenticated copy of his appointment as administrator with the will annexed and caused the same to be recorded therein”; that debts amounting to $55,000 duly allowed against the estate remained unpaid; that the will empowered the executor as trustee and his successor, Neville, as administrator c. t. a., to sell .the real estate of the testator for the purpose of settling the estate, and expressed a desire that such property as was located outside the state of Nebraska should be first sold for that purpose; that it was advisable in the opinion of the complainants and for the best interests of the estate that the land situated in Shawnee county should be - sold to liquidate the remaining unpaid debts of the estate; that it was impossible to make such sale by reason of wrongful acts, claims, and pretensions of the defendants Quinton and Bergen, who, it was alleged, had performed certain legal services in litigation over the Kansas lands for the testator in his lifetime and had on March 14, 1S93, entered into a written contract with him whereby it was agreed that, when the lands should be sold or disposed of, Quinton and Bergen should have for their professional services one-third of the net proceeds after deducting $00,-000 therefrom; that the contract contained the following clause: “No sale or disposition to be made without the consent of all parties to this agreement” —that defendants had claimed and publicly given out that no valid sale could be made of the land without their consent and for the purpose of preventing the administrator c. t. a. from selling and disposing of it the bill' alleged as follows: That they; Quinton and Bergen, “had refused and still refuse although often requested by your orators to consent to any sale or disposition of the land by him [the administrator c. t. a.] and in further aid of such purpose the defendants or some one of them have lately caused to be placed on record in the office of the registry of deeds of Shawnee county, aforesaid, a copy of the said agreement purporting to be so acknowledged as to entitle it to record”; that the administrator e. t. a. was in the possession of the land holding the legal title to it for the purposes of the trusts created by the will; that his co-complainant, Morrell Keith Neville as heir at law, was the beneficial owner of the land excepting in so far as the same was vested in the administrator e. t. a. for the purposes of the-trusts.</p> <p>The bill alleged that the only interest which defendants Quinton and Bergen or any of the defendants claiming under them had in the land by virtue of their agreement with Keith in his lifetime was a claim or lion in the nature of an equitable mortgage to secure a debt due them from Keith, with the right to have the land sold for the purpose of fixing their compensation according to' the terms of the agreement and for the purpose of making the lien available.</p> <p>.The prayers of the hill, among other things, were that the part of the agreement of 1893, which provided that the lands should not be sold or disposed of without the consent of Quinton and Bergen be declared inoperative hs repugnant to the main purpose of the agreement and in restraint of alienation, that the land be sold in order to fix the elaim or interest of Quinton and Bergen to it, and that complainants be allowed to redeem from the lien by paying to Quinton and Bergen the amount of their interest in it when so ascertained. There was also a prayer for general relief.</p> <p>After an unsuccessful demurrer the defendants Mary K. Quinton and E. W. Poindexter, assigns of all the rights of Quinton and Bergen, answered,-admitting by failure to deny Ae allegations of tlie bill, complainants’ right, title, and interest in the land in question under the testator’s will as stated in the bill; averring some misconduct on the part of the administrator c. t. a. which it is conceived, has little pertinency to the merits of the controversy, and is therefore not detailed here; averring that complainant, the administrator c. t. a., had ample money on hand to pay the debts of the estate without soiling the Kansas land; that no offer to sell had ever been made to defendants, and that Quinton and Bergen or their assigns had never refused to join in a sale or disposition of the land; that the provision of Ae contract of 1893 to the effect that the land should not be sold except by their consent was inserted solely for the benefit of Quinton and Bergen “as protection for them in their contingent Pee ■ * * * as protection to the said E. S. Quinton and Abram Bergen for a reasonable fee ⅜ * * so that they might have some way and power of protecting themselves against the sale of the property that would cut them off from any compensation for their services.”</p> <p>The general replication in equity was filed, and after Ae testimony was 1 alten and the proofs closed complainants filed a motion to suppress certain depositions taken by defendants to show the actual value of the legal services referred to in the contract of 1893. The case was afterwards argued by counsel and submitted for a final decree, which was signed and handed down November 19, 1903. Simultaneously therewith the circuit court sustained the motion to suppress some of defendants’ depositions.</p> <p>The court specifically found in and by Ae final decree that the title and beneficial interest in the land was vested in complainants as stated in their bill, subject only to an equitable lien in favor of Quinton and Bergen or their assigns for compensation for their legal services; that the parties to the agreement of 1893 had been unable to agree upon a price at which the land could be sold or disposed of; that under the pleadings and facts established by the evidence the court had the power and ought to terminate the relations between the parties growing out of the agreement of 1893, and to adjudge and decree to them their separate and respective rights in the premises as nearly as practicable ; that neither the testator in his lifetime nor the complainants as successors in interest to him liad acted in bad faith or otherwise violated or refused to conform to the terms or intent of Ae agreement in failing or declining to sell or consent to a sale of the lands upon terms or conditions proposed or suggested by any other party in interest. The court then declared the rights of Ae parties, giving defendants an equitable lien upon the land for one-third of the net proceeds of its sale in excess of $60,000 according to the terms of the agreement, and appointed a master to invite and receive offers for the land for a period of over four months from any of the parties in interest or any other persons whom they might induce to make, offers therefor and to report the same without delay to each of the parties interested for liis or their acceptance or rejection, fixing an upset price, however, of $61,000 for the land. The court; further ordered 'that, if any offer not less than $01,000 should be consented to by the parties, a sale should be made at that price, and the administrator c. t. a. should in the execution of his powers under the will of the testator convey the laud to the purchaser. The decree further provided that, if no offer should be received or consented to on or before Ae time limited therefor, then the land should be advertised and sold for not less, however, than §01,000, and the proceeds of the sale should be brought into court for disposition and distribution to the parties according to their rights determined by the decree.</p> <p>Subsequently, on May 18, 1904, the defendants Mary K. Quinton and E. W. Poindexter filed in the court which rendered the decree a bill of review to secure its reversal. That bill set out the original bill, demurrer, answer, replication, and final decree in extenso, and prayed that the latter be set aside because erroneous on the face of the record. Certain pleas and demurrers were filed which on hearing were sustained by the circuit court and the bill of review was dismissed. This appeal by the defendants in the original action challenges the correctness of Ae ruling resulting in the dismissal of Ae hill of review.</p>

<p>1. Statutes — Legality oe Enactment — constitutional Requirements.</p> <p>The provision of Const. Neb. art. 3, § 10, requiring the yeas and nays on the final passage of a bill by the Legislature to be entered on the journal of each house, as construed by the Supreme Court of the state, does not apply to a vole of concurrence by either house in an amendment adopted by the other, but only to the vote on the passage of the bill following its third reading in each house, which is treated as the vote on its final passage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 20.]</p> <p>2. Same- — Silence oe Legislative Journal — Presumption.</p> <p>Under the Nebraska decisions, an act of the Legislature is not invalidated because ihe journal of the house in which the bill originated is silent in respect to its concurrence in an amendment by the other house which appears in the act as enrolled and signed.</p> <p>3. Same — Readings of P.ill — Concurrence in Amendment.</p> <p>The provision of Const. Neb. art. 3, § 11, requiring every bill to be read in each house on three different days, as construed by the Supreme Court of the state, does not make it necessary that there shall be three readings of a bill in the house in which it originated, and by which it has been duly passed, on its return for concurrence in an amendment adopted by the other house.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 44, Statutes, § 16.]</p> <p>4. Same — Title of Act.</p> <p>Where a legislative act as enrolled and authenticated bore the same title as the bill when introduced, and the journals contain no affirmative statement that the title was at any time changed or amended, the act is not invalidated by the fact that in the journal entries relating to the bill during its passage it is sometimes identified by an abbreviated title and its number.</p> <p>LEd. Note. — -For eases in point, see Gent. Dig. vol. 44, Statutes, § 27.]</p> <p>5. Same — Error in Title.</p> <p>Act Neb. March 31, 1887 (Laws Neb. 1887, p. 597, c. 76), is entitled “An act to amend ‘An act to provide for the issuing and payment of school district bonds’ approved February 26. A. D. 1879, being subdivision 15 of chapter 79, Revised Statutes.” The only preceding Revised Statutes were those of 1866, which being prior to the passage of the original act did not contain the same, but it constituted subdivision 15 of chapter 79 of the Compiled Statutes of 1881, and such Compiled Statutes wore named in the body of the amendatory act. Held, 1hat the obvious error in the title did not produce any uncertainty as to the subject of the amendatory act such as to render it invalid as in violation of the constitutional mandate that the subject of a bill shall be clearly expressed in its title.</p> <p>6. Same — Amendatory Act — Constitutional Requirements.</p> <p>Tbe provision of Const. Neb. art. 3, § 11, that “no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed,” dees not require that the purpose to repeal the original sections shall be expressed in the title of the amendatory ac-t, nor is an amendatory act void, where it correctly recites the sections amended, because in the repealing clause there is au obvious error in giving the number of the chapter containing such sections.</p> <p>[Ed. Note. — For oases in point, see Cent. Dig. vol. 44, Statutes, § 207.]</p> <p>7. Same.</p> <p>Under, the rule of decision in Nebraska, an amendment of a prior law. coupled' with a formal repeal of such law, does not operate as a repeal of the original act in a constitutional sense, but continues it in effect in its amended form, and a subsequent amendatory act is not void because it refers to and purports to amend the original and not the amended act.</p> <p>[lid. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 202, 203.]</p> <p>S. Trial — Waiver of .Jury — Discretion as to Findings.</p> <p>Where an action at law in a federal court is tried to the court without ' a jury, by stipulation pursuant to Rev. St. § 649 [U. S. Comp. St. 1901, p. 525], which provides that in such case the finding may be either general or special, whether such finding shall be general or special rests in the discretion of the court, and its refusal to make special findings is not subject to review.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 920-926.]</p> <p>9. Same — Direction of Verdict — Refusal—Waiver op Exception.</p> <p>The denial of a request for a finding in favor of a defendant, in the nature of a directéd verdict, made at the close of plaintiff’s evidence, and an exception to such denial, are waived by the subsequent introduction by defendant of evidence in its own behalf.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 983.]</p> <p>10. Pleading — Issues—Admissions Qualifying General Denial.</p> <p>Under the rule of practice in Nebraska, which governs in actions at law ,lin a federal court in that state, a general denial in an answer is treated as qualified by admissions made in other defenses; and where, in an action on school district bonds, the answer contained a .general denial, but also an admission of the execution and genuineness of the bonds, and pleaded tlieir invalidity, the admission governs, and the plaintiff was not required to prove their execution and genuineness.</p> <p>11. Schools and School District — Bonds—Innocent Purchaser.</p> <p>Where bonds of a school district in Nebraska payable to bearer contained recitals that they were issued for a certain purpose “and in pursuance of” a certain statute, which authorized their issuance for such purpose, and also bore a certificate of the state Auditor of Public Accounts that they were duly registered, and another by that officer and the Secretary of State showing that they were issued pursuant to law, as required by the statute, evidence that such bonds were purchased before their maturity in New York in the regular course of business by a dealer in such securities at practically their face value, and in reliance on such recitals and certifi-' cates, is sufficient to sustain a finding that he was an innocent purchaser for value, and entitled to protection as such.</p> <p>12. Same — Validity—Nebraska Statute.</p> <p>Act Neb. Feb. 26, 1879 (Daws 1879, p. 170) as amended by Act March 31, 1887 (Daws 1887, p. 597, c. 76), which authorizes school districts to issue bonds “to purchase a site for, or erect a school house, or houses, or for furnishing the necessary furniture or apparatus for the same, or for all of these purposes,” authorizes such issuance for either one or all of the purposes stated, and such bonds are not invalid because they recite that they were issued “for the purpose of building a schoolliouse” only.</p> <p>[Ed. Note. — For cases in po[nt, see Gent. Dig. vol. 43, Schools and School Districts, § 224.]'</p> <p>13. Same — Rights of Purchaser — Notice of Invalidity.</p> <p>Bonds of a Nebraska school district were sold by a banker in New York, and bore certificates of registration and regularity by designated officers of the state, as required by the statute under which they were issued. The purchaser was told by the banker that a suit had been brought to enjoin such registration and certification, but that it had been dismissed, and the banker produced the bonds bearing certificates by such officers of due registration, and regularity. In fact the suit had not been dismissed, and it subsequently resulted in tbe granting of a permanent injunction as prayed for. Held, that such facts sustained a finding that the purchaser was not chargeable with actual notice of the pendency of the suit.</p> <p>14. Samr-Pkndknot ov Suit — Constructive Notice.</p> <p>A purchaser of negotiable bonds issued by a school district, which are regular on their face and bear the certificates of state officers that they wore issued pursuant to statutory authority, is not chargeable with constructive notice of a pending suit to contest the election at which the bonds were authorized, brought under a general statute of the state authorizing suits to contest the election of any person to office, or the adoption of any proposition submitted to a vote of the people, but containing no provision for superseding ilie result of any election as declared by the canvassers pending such a suit; nor is such a purchaser chargeable with construct-' ive notice of a temporary injunction granted in such suit restraining the issuance of the bonds, they having been in fact issued in due form.</p>

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

<p>1. Ml),\ini'AL CORPORATIONS — JUIKBIENT AGAINST CORPORATION — MISAPPLICATION OF IlFAENUE.</p> <p>Where a ciiy is given by statute authority to borrow money for the erection of public buildings and to issue its bonds therefor, it lias not the right to use its current revenues for that purpose as against a judgment creditor, whose judgment is payable only from the surplus of such revenues above current expenses.</p> <p>(Ed. Note. — Constitutional mid statirfory limitations of municipal indebtedness, see note to City of Helena v. Mills, 30 C. C. A. 0.]</p> <p>2. Same — Enforcement of Judgment — Mandamus.</p> <p>A writ of mandamus requiring a ciiy to levy taxes for municipal purposes to the full amount permitted by statute, and to apply the surplus remaining after paying current expenses chargeable thereon in payment of a judgment against it. is continuous in its operation, and (he court may modify its order from time to time to meet the exigencies of the case. It may bring in as parties officers elected after its order was made, and, while it cannot control their discretion if honestly exercised, it may exercise a supervisory power over their acts so far as necessary to insure an observance of its mandate in good faith.</p>

- - The defendant in error, a teamster, while engaged in taking on a load of steel plates at the mill of the plaintiff in error, sustained an injury from the slipping of a bundle,of suspended plates out of the hooks, and lost a leg. Michael Wingle, the father of the defendant in error, Francis Wingle, owned a number of teams, and did hauling as an independent contractor.

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

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

<p>1. Ckiminau Law — Writ of Erbob — Time of Taking Extension.</p> <p>The six months granted by Act Cong. March 3,1891, c. 517, § 11, 26 Stat. 829 [U. S. Comp. St. 1901, p. 552], within which a writ of error may be taken in a criminal case, cannot be extended.</p> <p>2. Same — Commencement of Period.</p> <p>The time within which accused may sue out a writ of error begins to run from the date judgment was entered.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. voi. 15, Criminal Law, § 2097.1</p> <p>3. Saíie — Assignment oe Error — Bill of Exceptions.</p> <p>Rev. St. § 997 [TT. S. Comp. St. 1901, p. 7121, providing that an assignment of errors shall he annexed to and returned with a writ of error, does "not necessitate the settlement of a bill of exceptions prior to the filing of the writ and the assignment of errors. ■ . ■</p> <p>4. Same — Effect—Time.</p> <p>A writ of error sued out by accused does not become effective until deposited with the clerk of the trial court.</p> <p>5. Same — Enlargement of Time.</p> <p>Where a .writ of error sued out by accused is filed in time, the time for ■ complying with it may be enlarged by proper orders.</p> <p>6. Same — Nunc Rko Tunc Order.</p> <p>Where delay in suing out a writ of error was the act of accused, it could not be cured by a nunc pro tunc order.</p>

Previous to the 1st of July, 1902, negotiations had been carried on between Warren K. Blodgett, who was the president of the Albion Chemical & Export Company, a Maine corporation, with the plaintiff, the Portland Chemical & Phosphate Company, also a Maine corporation.

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

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

<p>1. Appeal — Review—Questions of Fact — Bankruptcy Proceedings.</p> <p>Where one engaged principally in farming made a mortgage upon a large part of his lands for $98,503.32 to secure a pre-existing debt within four months before he filed a voluntary petition in bankruptcy and the court below sustained it, held (1) where the court has considered conflicting evidence and made a finding or decree, it is presumptively correct, and, unless some obvious error of law has intervened, or some serious mistake of fact has been made, the finding or decree must be permitted to stand; (2) no such error or mistake was disclosed by the record, and the finding of the court below, that the mortgagee did not have reasonable cause to believe that it was intended to give a preference by the mortgage, and that the mortgagor did not intend thereby to hinder, delay, or defraud any of his other creditors, must be affirmed.</p> <p>'2. Bankruptcy — Administration of Estate — Preferences—Effect.</p> <p>A transfer by an insolyent, within four months prior to the filing of a petition, for the purpose of securing or paying a pre-existing debt, without any intent or purpose to affect other creditors injuriously beyond the necessary effect of the security, is lawful, if not violative of other provisions of law, and it does not evidence any intent to hinder, delay, or defraud creditors within the meaning of Ba'nkr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449],</p> <p>3. Same — Mortgages.</p> <p>The transfer specified in Bankr, Act July 1, 1898, c. 541, § 60a, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], includes a mortgage or a lien voluntarily created by tbe debtor. If such a mortgage or lien creates a preference under section 60a, it is nevertheless not voidable under section 60b unless the creditor who receives it or is benefited thereby, had reasonable cause to believe that it was intended to give a preference by it.</p> <p>4, Same.</p> <p>A transfer or mortgage made by a person adjudged a bankrupt, to secure a pre-existing debt, witbin four months of the filing of the petition, is not void, under Bankr. Act July 1, 1898, c. 541, § 67e, 30 Stat. 564 [U.'S. Comp. St. 1901, p. 3449], unless it was either made with the intent on his part to hinder, delay, or defraud his creditors, or some of them, or is held void as against his creditors by the laws of the state, territory, or district in which the property is situated.</p> <p>5. Same — Proceeds oe Mortgaged Property.</p> <p>Where a trustee sells mortgaged property of the bankrupt free of the mortgage, and the proceeds thereof are sufficient for that purpose, the mortgagee is entitled to the payment of the interest upon his mortgage debt as well as the principal, out of the proceeds in accordance with the terms of the note and mortgage.,</p> <p>(.Syllabus by the Court.)</p>

<p>1. Bankruptcy — Involuntary Proceedings — Grounds—Preference — Transfer of Property.</p> <p>A debtor stated to his creditor on December 21, 1903, that his property was worth §216,750, and that he owed only §36,000. On May 2, 1904, he made a mortgage on a part of his property for §98,503.32 to another creditor. On June 18, 1904, he made another statement to his creditor that ids property was worth §254,710, and that he owed §195.400, of which §117,500 was secured by mortgages upon his real estate. Thereupon, the creditor to secure its claim for §22,000, toot from him three mortgages which together covered substantially all the debtor’s unexempt property except a few hogs and horses, including his tools, machinery, and crops, and the debtor, who was then insolvent, thereby gave a preference under section 00a of the bankruptcy law, Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]. Hold, the creditor had reasonable cause to believe when it took the mortgages that it was intended thereby to give a preference.</p> <p>2. Notice — Constructive Notice — B’acts Putting on Inquiry.</p> <p>Notice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 37, Notice, §§ 4, 6.]</p> <p>(Syllabus by the Court.)</p>

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

<p>Insurance — Extent of Liability of Insurer — Indemnity Insurance.</p> <p>A policy, issued by a casualty company, insured against loss from liability for damages on account of bodily injuries accidentally suffered by any person caused by the negligence of tbe assured, “and against tbe expense of defending any suit for sucb damages.” It limited the company’s liability arising from the injury or death of one person to $5,000, and provided for notice to tbe company of any injury and any claim or suit for damages therefor, that the company should defend or settle any such suit, and prohibited the assured from making any settlement or incurring any expense or interfering in any negotiations for settlement or in any legal proceeding without the company’s consent. Held, that the limitation did not include the costs and expenses of a suit on a claim for damages for the death of a person which was defended by the company pursuant to the terms of the policy, and that on recovery of a larger sum by the plaintiff therein the assured was entitled under the policy to be reimbursed for the costs and expenses which it was compelled to pay in addition to the $5,000 indemnity against the damages recovered.</p>

• In Rrror to the Circuit Court of the United States for the Southern District of New York. Writ of error by the defendants in the court below to review a judgment for the plaintiff.

<p>1. UOTJKTS — JUEISDTCTION OB' FeDEBAL COTTBTS — ■SuFI'ICIENCY OF RECORD.</p> <p>Wliilo parties cannot confer jurisdiction on a federal court by consent, still where the jurisdictional facts are properly alleged, and thus properly appear on the record, and the parties proceed to trial on pleadings which go to the merits, and, particularly, when, the jurisdictional facts are not subsequently put in issue by the defendant nor seriously denied, the case ordinarily will not be dismissed for want of jurisdiction, where the proofs do not create a legal certainty that it is not within the jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 1S5,156.)</p> <p>2. Sale — Delivery—-Passing of Title.</p> <p>Under a contract for the sale of a cargo of foreign iron to be delivered from tile ship, custom house charges paid, the unloading of the iron on a wharf, from winch it was being removed by the purchaser -without any objection to the quality or quantity at the time of its loss, and the payment of the duties constituted such a delivery as to pass the title.</p>

<p>1. Equity — Trooi?s—Mode of Taking.</p> <p>Judiciary Act Sept. 24, 1789, c. 20, § 30, 1 Stat 88, authorizing federal courts to require a party to adduce his evidence orally in open court on final hearing was repealed by Rev. St. § 862 [U. S. Comp. St. 1901, p. 601], declaring that the mode of proof in equity causes shall be according to rules now or hereafter prescribed by the Supreme Court, except as otherwise specially provided.</p> <p>2. Same — Equity Rules — Instructions.</p> <p>Amendment May 15, 1893 to Equity Rule 67 [149 U. S. 793, 13 Sup. Ct. iii], providing that on due notice given as prescribed by previous order, the court may, in its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing does not authorize the court to require an unwilling party to so adduce evidence and forego his right to use the methods prescribed by the rule prior to amendment.</p>

In Admiralty. This libel, in admiralty, was instituted to recover for the loss of the barge Oak, and her cargo of fertilizer, alleged to have been caused by the negligent and unskillful navigation of the steam tug Dauntless, which had undertaken to tow the barge from Baltimore to Norfolk. The barge sank about 10 o’clock in the morning in the Swash Channel of the Thimble Shoal, about one mile west of the Thimble Light, near the entrance to Hampton Roads.

This cause comes here upon writ of error to review a judgment of the Circuit Court, Western District of New York, which was entered uiion a verdict directed by the court in favor of the defendant at the close of plaintiff’s case.

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

This canse comes.here npou appeal from a judgment of the Circuit Court, District of Connecticut, in favor of defendant in error, which was defendant below. The action was brought to recover damages for personal Injuries sustained in defendant’s mill, while plaintiff was employed in the handling, with an iron hook, of some hot iron which had been taken from a furnace and run through the roughing rolls.

<p>Collision — Steam Vessels Meeting — Violation of Signal Rules.</p> <p>Two steamships meeting in the Mississippi both held in fault for a collision, the descending vessel for giving the first passing signal contrary to the statutory rule, and after It had been accepted in giving a contrary signal, intended for another vessel astern of the first, but which was mistaken by the latter and acted on, directly contributing to the collision, the ascending vessel for so mistaking the second signal and acting on it, instead of sounding a danger signal and stopping until the signals were fully understood.</p> <p>[Ed. Note. — Signals of meeting vessels, see note to The New York, 30 G. C. A. 630.]</p>

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

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

<p>Patents — Validity and Infringement — Heating and Ventilating Apparatus.</p> <p>The Powers patent; No. 558,610, for improvements in heating and ventilating, which consist of a heating and ventilating apparatus wherein double dampers controlling separate ducts for hot and cold air are held in mixing position by a gradually-acting thermostatically-controlled motor, the purpose being to automatically regulate the temperature of the air discharged into a room through a single pipe, was not anticipated and discloses invention, the device shown differing from anything in the prior art, in that the dampers are moved gradually, and not by steps from one fixed point to another; and in such respect the invention is so far a pioneer in its particular field as to entitle the patentee to claim the use of any of the well-known gradually acting thermostatic devices in the same combination as equivalents. As so construed, held infringed.</p>

<p>1. Removal op Cause» — Causes Removable — Condemnation Proceedings.</p> <p>A suit by a railroad company in a state court to restrain a telegraph company of different citizenship from maintaining proceedings to condemn a right of way for a telegraph line along the railroad’s right of way, in which the railroad claimed that the proposed structure would menace the safety of the railroad company’s trains and obstruct its business, presented a justiciable issue which was removable to the federal court.</p> <p>[Ed. Note. — Por cases In point, see Cent. Dig. vol. 42. Removal of Causes, §§ 11, 23, 85.</p> <p>Proceedings under power of eminent domain as civil suits under laws relating to removal of causes to federal courts, see note to South Dakota C. Ry. Co. v. Chicago, M. & St. P. Ry. Co.. 73 C. C. A. 183.]</p> <p>2. Eminent Domain — Appraisees—Powers—Telegraphs—Right of Way.</p> <p>Under the laws of Georgia appraisers appointed in proceedings by a telegraph ompany to condemn a right of way along the right of way of a railroad .ve no authority except to assess the value of the property and consequent damages.</p> <p>3. Contracts — Legality —Restraining Competition— Telegraph Lines — Right of Way — Exclusive Contract — Validity.</p> <p>A contract between a railroad company ‘ and a telegraph company bv wliich the latter is granted the exclusive right of occupancy of the railroad's right of way for the maintenance of a telegraph line is void.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Contracts, § 551.]</p> <p>4. Eminent Domain — Defenses—Telegraphs—Right of Way — Injunction.</p> <p>Where a telegraph company sought to condemn a,right of way along the right of way of a railroad, and in its proposition stated that the height of its poles above the ground would not exceed the distance from the poles to the end of the nearest cross-ties, the railroad company was not entitled to an injunction restraining the prosecution of such condemnation proceedings because its right of way was already encumbhred by a rival telegraph line and that the effect of complainant’s line would be to seriously interfere with the railroad’s business and would constitute a menace to the safety of its tracks and trains.</p> <p>. [Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 770.]</p>

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

<p>Fish — Protection—Boundary Waters — Concurrent Legislation.</p> <p>Under their respective Constitutions and the acts of Congress admitting them into the Union, the states of Oregon and Washington, although their common houndary is the middle channel of the Columbia river, are each accorded and have concurrent jurisdiction over the entire river. Held, that B. & C. Comp. § 4092, as amended by Sess. Laws Or. 1903, p. 218. declaring that it shall be unlawful for any person to take salmon in the waters of the state unless such person is a citizen of the United States or has declared his intention to become such, and has been a bona fide resident of the state of Oregon or the states of Washington or Idaho for a period of six months, etc., not having been concurred in by the Legislature of the state of Washington, is void as to all persons fishing for salmon in the Columbia river, regardless of their citizenship or residence. ■</p>

On Motion to Quash Service. The complaint herein exhibits an action based upon a contract, entered into In the state of Idaho, between W. C. Jones of the one part, and the defendant company of the other, whereby the latter sold and agreed to deliver to the former certain copper ore then at the Seven Devils Mines in the state of Idaho. Among other things, an advance payment of $3,000 was agreed upon.

<p>Trespass on the Case. Upon demurrer.</p>

<p>1. Towage — Leaving Tow at End of Pier in East Kiveb — Liability op Tug bob In juey op Tow in Collision.</p> <p>A tug was chartered to tow a canal boat to a certain pier in East river, where she was to be shortly picked up by another tow and taken to her place of loading. On. reaching the pier she was placed at the end of the sanie outside of three other boats also waiting for the same tow, where she remained in violation of the state statute until she was injured in a collision with another vessel. The evidence tended to show that the position was a convenient one from which to be picked up by the other tow, and that the master made no objection to the place,1 and the master of the tug testified that if objection had been made he would have placed her elsewhere. Held, that the tug was not in fault and could hot be charged with liability for the damages resulting from the collision.</p>

<p>1. Equity — Taking Pkooes— Depositions —Suppression—Admissibility in Part.</p> <p>A motion to suppress depositions taken in rebuttal, on the ground that the testimony therein is also in chief, must bo overruled if any part of such testimony is proper in rebuttal and if the rebuttal testimony cannot be separated from that which is not rebuttal.</p> <p>2. Samis- Evidence in Ciusa? Taken in Rebuttal.</p> <p>Where depositions taken in rebuttal, in a suit in equity in a federal court, contain testimony properly in rebuttal, and also additional evidence in support of the main case, tile defendant is entitled, on a proper siiowing to an extension of time, to take testimony to meet such new evidence.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 19, Equity, § 734.]</p>

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

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

<p>Petition for Leave to File Bill of Review.</p>

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

<p>On Petition for a Writ of Mandamus.</p>

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

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

Action in equity to restrain alleged infringement of claims 1 to 8, inclusive, and claim 12, of United States letters patent No. 712,718, to Adrian de Piniec-Mallet, dated November 4, 1002, for extensible bedstead or couch.

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