Volume 153 — Federal Reporter

<p>In Error to the District Court of the United States for the Western District of Missouri.</p> <p>In the statement and. opinion in these cases the Armour Packing Company's case alone will bo treated, because the four cases were tried upon agreed statements, and their facts are so similar that the questions of law they present are identical.</p> <p>The packing company was indicted and tried for, and was convicted of, a violation of the Elkins act to further regulate commerce of February 19, .1903 (chapter 708, 32 Stat. 847 LIT. S. Comp. St. Supp. .1905, p. 5991) in the District Court for the Western District of Missouri upon tlie.se agreed facts: The Chicago, Burlington & Quincy Railroad Company, a corporation, was a common carrier engaged in the transportation of property through the states of the nation and for export to foreign countries by rail over its own road and over other railroads under contracts and arrangements with connecting carriers from Kansas City, in the state of Kansas, into and through the Western district of Missouri, to the city of New York.’ The packing company was a corporation engaged at Kansas City, in the state of Kansas, in packing meat: products and shipping them throughout the United Stales and to foreign countries. Its shipments to foreign countries were delivered to the Burlington company at Kansas City, were delivered by one of the Burlington company’s connecting carriers to an ocean steamer at: New York, and were handled exclusively by the carriers, rail and steamship, from the time they were delivered to the Burlington company at Kansas City until they were delivered to the shipper at the export destination. The shipment which is the subject of this prosecution was thus shipped, handled, and delivered.</p> <p>From May 9, .1905, until August 6, 1905, tariffs and schedules and joint tariffs and schedules duly filed, published, and posted, showed that the proportion of the rate on provisions of the character described herein shipped as export shipments from Kansas City, Kan., to foreign countries, was 23 cents per 100 pounds from all points on the Mississippi river to New York.</p> <p>On .Tune 10. 1905, tlie proprietors of the Wilson line of ocean steamers agreed with the packing company to carry these provisions from New York to Christiania, Norway, for 19.93 cents per 100 pounds, and a copy of this contract was delivered to the Burlington company.</p> <p>On June 17, 1905. the Burlington company agreed with the packing company to carry for it until December 31, 1905, products of this character shipped for export at the then filed and published rate, the proportional part of which from the Mississippi river to New York was 23 cents per .100 pounds.</p> <p>On August 0, 1905, the Burlington company and its connecting railway carriers filed witli the Interstate Commerce Commission an amendment, to their tariffs and schedules, which was duly published and posted, and which made a tariff or rate from Kansas City, Kan., to New York, for these products, the proportional part of which for their carriage from the Mississippi river to New York was 85 cents per 100 pounds.</p> <p>Prior to August G, 1905, shipments were made by the packing company for export and were carried by the Burlington company and its connecting carriers according to the terms of the contract of June 17, 1905, and at the then filed and published rate. After the amendment of the schedules of August; G, 1905, and on August 17, 1905. the packing company delivered at Kansas City, Kan., to the Burlington company, under the contract of June 17, 1905, for transportation to Christiania, Norway, by way of the latter’s railroad and via railroads of its connecting carriers to New York, and thence by the Wilson line of steamships to Christiania, under the contract of the packing company with the owners of that line, G7 tierces of oleo oil, which weighed 29,3(55 pounds, and the Burlington company received, agreed to deliver tliis oil to the order of the packing company at Christiania, Norway, and issued to it a through bill of lading therefor for 52.93 cents per 100 pounds, which included the 19.93 cents per 100 pounds agreed by the packing company to be paid to the Wilson line, and left 33 cents per 100 pounds for the transportation from Kansas City, Kan., to New York. The Burlington company and its connecting railway carriers thereupon transported this oil over their railroads from Kansas City, Kan., through the Western district of Missouri, to' N?.t? York, where they delivered it to a steamship of the Wilson line. The packing company paid to the Burlington company the full 52.93 cents per 109 pounds for the entire carriage from Kansas City, Kan., to Christiania, Norway. This 52.93 cents per 100 pounds was made up so that the proportionate part of this rate for the carriage from the Mississippi river to New' York was 23 cents per 100 pounds. The packing company did not at any time know how the rate was apportioned or made up or divided among the respective railway carriers or points, but it knew that the agreed steamship rate was 19.93 cents per 100 pounds, and hence that 33 cents per 100 pounds was the aggregate amount paid and received for the transportation of the property from Kansas City to New York, and it knew the filed, published, and posted rate for this product established by the amendment of August 6, 1905, the proportional part of which from the Mississippi river to New York was in fact 35 cents per 100 pounds.</p> <p>The oleo oil was one of the products which the Burlington company agreed to carry, and which it did carry under its contract of June 17, 1905; “the defendant company shipper contending and insisting that said amendment increasing the tariff rate did not and could not abrogate or impair the terms of said contract.” One of the connecting carriers objected to transporting this oil at the rate specified in this contract, but the Burlington company insisted that it should be so carried. The result was that the property was transported at a rate , the proportional part of which for the carriage between the Mississippi river and New York was 12 cents per 100 pounds less than the part of the rate established by the amendment of August 6, 1905, which was proportionate to that part of the carriage. The packing company was indicted and tried for, and was convicted of, accepting and receiving this concession of 12 cents per 100 pounds in respect of the transportation of this oleo oil in foreign commerce by the Burlington company and its connecting carriers, whereby this property was transported from Kansas City to New York, through the Western district of Missouri, at a less rate than that named in the tariffs published and filed, by the Burlington company and its connecting carriers.</p>

The plaintiff below is a manufacturer of certain proprietary medicines, the chief of which is the well-known article called “Peruna.” This, together with other preparations, he puts on the market through a system of contracts intended to maintain prices. Thus it is averred that he sells only to jobbers or wholesalers at uniform prices with a discount varying according to quantity.

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

<p>1 Trial — Question fob Court oe Jury — Negligence—Direction of Verdict.</p> <p>It is undoubtedly true that cases are not lightly to be withdrawn from the jury, and that ordinarily negligence is so far a question of fact that it Should be submitted to and determined by them; but it is equally true .that when the. evidence and the inferences to be reasonably drawn from it arc undisputed, or are of such conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, the case may and should be withdrawn from the jury and a verdict directed for the plaintiff or the defendant, as the one or the other may be proper.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, •§§ 377, 379.]</p> <p>2. Master and Servant — Rules—Obedience by Servant.</p> <p>Where the duties of a servant in given circumstances are particularly specified in the unambiguous and reasonable rules of the master, of which the servant has knowledge and' to which he has assented by entering and continuing in the service, his nonobservanee or disobedience of them at a time when they are capable of observance is negligence as matter of law, and is not to be judged by the undefined and varying requirements of ordinary care.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 759-775.]</p> <p>8, Same — Rules—Reasonableness—'Violation—Negligence.</p> <p>Rules of a railroad company requiring the engineer to keep a careful lookout for signals, to stop the train when a signal is not understood, or is imperfectly displayed or absent from its usual place, and expressly requiring that he “must know,” when approaching a switch, that it is in proper position, are reasonable and valid. And where the engineer, in approaching a known switch, at which designated and known signals were customarily displayed to indicate whether the switch was closed or open, either took proper observations, learned that the switch was open, and took chances upon being able to go safely through the same at great and unwarranted speed, or, knowing that he was approaching the switch, and not knowing whether it was closed or open, took chances on its being in proper position, and so drove into the switch when it was open, whereby the train was wrecked and he wras killed, held, he was guilty of contributory negligence, preventing a recovery for his death.</p> <p>4. Same — Special Train Orders — Eeeect.</p> <p>A wrecked train, of which intestate was the engineer being unable to conform to the regular schedule, was being run under special telegraphic-orders directing it to run late, according to a special schedule therein given. The train dispatcher who issued the order testified that it “simply-set the train hack”; and a general rule of the company, of which the engineer had knowledge, required him to run “steadily and uniformly, adhering as closely to time as due regard for safety permits.” Held, that such special orders should be construed merely to require the engineer to adhere to them as closely as due regard for safety permitted, and did not abrogate the standing rules of the company requiring engineers, on approaching switches, to know that they are in proper position, etc.</p> <p>5, Negligence — Contributory Negligence Preventing Recovery.</p> <p>One cannot — nor can one standing in his stead — recover damages for an injury to the commission of which he has directly contributed; and it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been a proximate cause of the injury, he — as also one standing in his stead — is without remedy against another, also in the wrong.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, § 84.]</p> <p>Adams, Circuit Judge, dissenting.</p>

<p>1. Customs Duties — Construction oe Statute — Double Duttks.</p> <p>The schedules of the tariff ads of 1890 and 1897 are based on the principle of protection to American industry, and in the construction of their provisions no inference can be drawn against a particular construction, because it will result in imposing double or treble duties on an article by adding duties for each stage it is advanced in manufacture.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 10.]</p> <p>2. Same — Construction by Treasury Department.</p> <p>The rule applied that a uniform construction given to a provision of a tariff schedule by the Treasury Department through a number of years, during which importations are made in reliance thereon, will not be overruled by the courts, except for cogent reasons.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 10.]</p> <p>3. Same — Classipicati on — Articles Make prom Coated Steel Wire.</p> <p>Tariff Act July 24, 1897, c. 11, § .1, Schedule C, par. .137, 30 Stat. 161 |U. S. Comp. St. 1901, p. 1639], imposes a duty on steel wire smaller than No. 16 wire gauge of 2 cents per pound, with an additional duty of 1% cents per pound on articles manufactured from such wire, “and on iron or steel wire coated with zinc, tin, or any other metal two-tent lis of 1 cent per pound in addition to the duty imposed on the wire from which it is made.” In 1900 the Treasury Department ruled that articles manufactured from steel wire coated were subject to all three of such duties, but shortly thereafter, and in the same year, formally reversed such ruling, and has since uniformly ruled that the additional duty of two-lenths of 1 cent was not to be imposed on articles manufactured from coated steel wire. Held, that in view of the uncertainty of the language of the statute such uniform ruling by the executive department, continued for five years, would be treated as a practical construction of the act, and would not be reversed by the courts.</p>

This was a petition t>y plaintiffs in error to have the defendant in error adjudicated a bankrupt. The averments of the petition were, in substance, that the defendant, Charles PI. Meier, is insolvent, and that within four months next preceding the date of this petition he had committed an act of bankruptcy.

<p>1. Judgment — Construction—Enforcement.</p> <p>Where judgments rendered on certain railroad aid bonds issued by a ■ township contained orders making it the duty, of the county commission- ■ ers of the county in which the township was located to annually levy a necessary tax to make the annual interest payments on the bonds, but such judgments did not direct the clerk to thereafter issue writs of mandamus if defaults should occur in the levy of the tax, they did not contain process within themselves for their own enforcement, so that, on the board’s default, it was necessary for the owner of the judgments to obtain orders of the court to compel performance.</p> <p>2. Same — Estoppel.</p> <p>Where judgments on certain township railroad aid bonds had become dormant by the lapse of three years, without process to enforce the same, and therefore required an order of court entered on notice to revive the judgments and authorize enforcement by mandamus, as provided by Revisal, N. C. 1905, § 620, the defendants on such an application were not estopped by the judgments to question the validity of the act under which the bonds were issued.</p> <p>3. Coubts — Federal Coubts — Following State Decision — Obligation op Contract — Impairment.</p> <p>Where certain township railroad aid bonds were issued under a state ' statute, and passed into the hands of non-resident holders for value at a time when the highest court of the state had rendered no decision . intimating that a provision of the Constitution of the state would be subsequently so construed as to invalidate the bond act, the federal courts sitting within such state were not bound by such a decision holding that the bond act was illegally passed, the effect of which was to impair the obligation of the contract existing between the township and the bond- . holders.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 950, ■ 957.</p> <p>Conclusiveness of judgment between federal and state courts, see note to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468.]</p>

<p>Petition to Revise Proceedings of the District Court of the United States for the District of Massachusetts, in Bankruptcy.</p>

<p>L Bankbtjptoy — Petition to Revise — Time.</p> <p>An order of a court of bankruptcy confirming an order of a referee denying a claim of certain exemptions asserted by the bankrupt’s wife, not being an 'order made specially appealable by Bankr. Act July 1, 1893, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], was reviewable on a petition to revise, presented within the six months generally limited for invoking the appellate jurisdiction of the Circuit Court of Appeals by Act Cong. March 3, 1891, c. 517, § 11, Z6 Stat 829 [U. S. Comp. St. 1901, p. 552],</p> <p>2. Same — Homestead Exemptions.</p> <p>Mills’ Ann. St. Colo. § 2133, provides that, to entitle any person to the benefit of a homestead exemption, he shall cause the word “homestead” to be entered' in the margin of his record title to the same, which entry shall be signed and attested by the clerk and recorder of the county in which the premises are situated, and, if the property belongs to the husband, the entry may be made by the wife and vice versa. Held, that where the alleged homestead of a bankrupt had not been so designated on the record, when the bankruptcy petition was filed, at the time of the adjudication or the appointment and qualification of the trustee, the premises were not exempt under the state law, and could not be made exempt under Bankr. Act July 1, 1898, c. 541, §§ 6, 21, 70a, 30 Stat. 548, 552, 565 [U. S. Comp. St. 1901, pp. 3424, 3430, 3452], providing for the vesting of the bankrupt’s property in the trustée and for the setting apart of exemptions.</p> <p>3. Same — Effect op Adjudication.</p> <p>On a bankrupt’s adjudication, the debtor’s entire nonexempt estate is in legal contemplation brought into custodia legis and appropriated to the payment of his debts as effectually as if taken in execution or attachment, subject to the qualification, except as otherwise provided, that the property is appropriated in the same condition and subject to the ■ same equities as when in the possession of the bankrupt.</p> <p>4. Same — 'Vesting op Title — Time.</p> <p>On the appointment ánd qualification of a bankrupt’s trustee, the title to the bankrupt’s property is vested in him as of the date of the adjudication.</p> <p>5. Same — Exemptions—Stock in Tbade.</p> <p>Mills’ Ann. St. Colo. § 2562, exempts to a debtor who is the head of a family stock In trade not exceeding $200 in value, and section 2563 declares that, when the head of a family shall die, desert, or cease to reside with the same, the family shall be entitled to receive all the benefits and privileges conferred on the head of the family residing with the same. Held, that where a merchant became a bankrupt and absconded with the intention never to return and deserted his wife, who, with him, had constituted a family, she constituted what remained of the family, and was entitled to the $200 exemption from his stock in trade.</p>

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

<p>1. Customs Duties — Proceeding eor Forfeiture or Smuggled Goods — Jurisdiction.</p> <p>Jurisdiction of a proceeding for the forfeiture of smuggled goods exists only in the district of seizure, which is the district in which the goods, if on land, are found; a collector cannot, by carrying them into another district and there mailing the formal seizure, confer jurisdiction of the proceeding on the court in such district.</p> <p>2. Pleading — Negative Pregnant.</p> <p>Pleas which are evasive or double are bad, and a negative pregnant is not a good plea for any purpose.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 202-205, 261-263.]</p>

In certain suits, No. 41, and ancillary proceedings thereto, No. 79, of the docket of the Circuit Court, entitled Vicksburg Waterworks Company v. Mayor and Aldermen of the City of Vicksburg, theretofore brought and decided, the last branch of the same being now pending in the Supreme Court of the United States, the Vicksburg Waterworks Company, complainant, filed a so-called motion making new and additional parties defendant, praying for a. perpetual injunction and for a…

<p>1. Railroads — Right of Way — Abandonment —Nature and Elements — Intent.</p> <p>A railroad company, which wrongfully obtained and held possession of a right of way for a spur track to reaclicertain industries which rightfully belonged to another company, is not entitled to retain such possession as against the rightful owner, on the ground .dLat>all(ionmeilt because of the construction by the latter of a spur track over another route, where it appeared that such construction was necessitated by its inability to obtain possession of the right of way in dispute, andSwas temporary only, and without any intention to abandon its rights which were in litigation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol.' 41, Railroads, §§ 213-219. V-.</p> <p>Abandonment or forfeiture of right of way, see note to Townsend v. Michigan Cent. R. Co., 42 C. C. A. 576.] N</p> <p>2. Removal of Causes — Jurisdictional Averments in Petition — Failure to Deny. ^.</p> <p>Averments of fact in a petition for removal, in the absence oí (some denial by answer or by comparison with the record, must be taken a\s admitted, and, if sufficient upon their face to justify a removal, all o'iher questions out of the way, will sustain the jurisdiction of the Circuit Cottrt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 166, 189, 195.]</p>

<p>Corporations — Contract for Services — Formation ox- Corporation — Effect.</p> <p>Defendant employed plaintiff to assist him in building up a business, under a parol contract that plaintiff was to draw his necessary expenses, and that the balance of his compensation should be determined at a future time, when plaintiff had proved his worth in the business, and that plaintiff should consider that he was “in with’’ defendant in the business, and that it was half his own. After the business commenced to succe'ed, defendant formed a corporation, in order to better conduct the same, and became the owner of all the stock; plaintiff being elected president, treasurer, and one of the directors, which office he continued to hold until he resigned, in 1903. No action was ever taken by the corporation with reference to the payment of salaries, and no salary was ever fixed during plaintiff’s employment. Held, that plaintiff’s services, rendered after the organization of the corporation, were rendered under the original contract, and that the organization of the corporation did not relieve defendant from liability therefor.</p>

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

The following is the opinion of Dodge, District Judge, in the District Court: The notes upon which the claim of the petitioners for rev-iew is based are dated March 20, 1902. They are payable to the petitioners’ order, and signed: “The Federation Shoe Company, by H. M. Cushman, Treas.” The bankrupt was a corporation under the laws of Massachusetts. Cushman was its treasurer, and signed the notes, which were then delivered to -the petitioners.

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

<p>Mines and Minebaes — Grant oe Mining Rights — Eobmitube by Abandonment.</p> <p>Defendant, for a nominal consideration expressed therein, obtained a large number of contracts, denominated “leases,” from owners of land, conveying to him the coal and other minerals under such land, with the right to mine the same for 99 years and of renewal in perpetuity. By the terms of the contracts he was to render an account to the grantors and pay royalty at specified rates whenever any coal or other mineral was mined. Held, that such contracts imposed obligations upon defendant, as well as vesting him with rights, a mining enterprise being clearly contemplated thereby, and that where he did not in fact intend to prosecute such enterprise, and took no steps toward it, and paid no royalties, through a period of more than 20 years, during which coal was extensively mined in the vicinity, his rights were lost by abandonment, without regard to his actual intent to retain the same, and an owner in possession under subsequent conveyances from the same grantors was entitled to maintain a suit in equity to cancel the contracts as clouds upon its title.</p> <p>]Ed. Note. — Ifor cases in point, see Cent. Dig. vol. 34, Mines and Minerals, 81 189, 190.]</p>

<p>Appeal — Reversal—Further Proceedings — Mandate.</p> <p>A mortgage having been executed by a husband and wife, suit was brought to foreclose the same, and a decree rendered charging the life estate of the wife, as widow of a former husband, as well as her after-acquired title to the remainder. This decree was reversed, in so far as it affected such after-acquired title, and the cause was remanded, with directions to render a decree charging the wife’s life estate. Held, that such judgment constituted the law of the case so far as the wife’s life estate was concerned, and that a decree following such mandate was not objectionable for failure of the Circuit Court to declare the decree without prejudice to the future determination of the nature and extent of the wife’s interest in the premises at the date of the mortgage.</p>

<p>1. Evidence — Conversation—Right to Explain, Vary, or Contradict. Where the whole or part of a conversation is put in evidence by one party, the other is entitled to explain, vary, or contradict it.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 20, Evidence, § 455.]</p> <p>2. Trial — Reception op Evidence — Scope op Rebuttal.</p> <p>In an action for broker's services, defendant sought, on cross-examination of plaintiff, to prove an agreement to accept an employment and certain stock, in full for his services; but this, on objection, was excluded as not proper cross-examination, as being matter -of defense. As a part of the defense, one of defendant’s witnesses testified that, after the services had been rendered, plaintiff in a stated conversation, accepted as full compensation a position as salesman and defendant’s agreement to carry for him, on certain terms, certain capital stock of a corporation. Held, that it was error, after the admission of such evidence, to refuse to permit plaintiff in rebuttal to give his version of such conversation, though plaintiff had previously in such cross-examination, testified to certain phases thereof.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. "vol. 40, Trial, §§ 140-155.]</p> <p>3. Same — Exclusion op Evidence — Opper op Proop — Necessity.</p> <p>Where, when a witness testifies in person at the trial, and not by deposition, certain questions asked of him are in proper form, relevant, and admit of favorable answers on behalf of the party propounding them, the sustaining of an objection thereto constitutes error, though there is no offer to- show the substance of the proposed testimony; no offer being required by the court.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 40, Trial, §§ 115-118.]</p> <p>•4. Same — Misleading Instructions — Brokers—Action por Services.</p> <p>Plaintiff was employed to get information with reference to the contemplated purchase of a grocery business for defendant, and to obtain a statement from the prospective sellers showing the volume of their business, amount of capital used, merchandise usually carried, salaries paid, profits realized, etc., but wás expressly charged not to disclose his principal’s name. On beginning negotiations, the sellers declined to . make any statement, unless informed concerning plaintiff’s principal, whereupon he disclosed defendant’s name and obtained the required information, shortly after which defendant authorized the disclosure of his name, and then completed the negotiations himself, expressing satisfaction with plaintiff’s efforts. Held, that, as applied to this evidence, in an action for plaintiff’s commissions, it was error to charge that a broker, in . order to show himself entitled to commissions, must faithfully carry out the instructions given by the principal, and has no right to depart sub- , stantially therefrom. ‘</p>

<p>1. Street Raiueoads--Lien Under Massachusetts Law.</p> <p>Rev. Laws Mass. 1902, c. 112, § 23, requiring a street railroad company before issuing mortgage bonds to obtain authority therefor from the state board of railroad commissioners, which may he granted only after a hearing and examination into the assets and liabilities of the company, and upon being saüsñed that its properly exclusive of its franchise equals or exceeds its indebtedness, embodies a rule of public policy which cannot be ignored nor overridden by the courts.</p> <p>2. Same — Agreement to Issue Bonds.</p> <p>A provision in notes, given by a Massachusetts street railroad company, by which it agreed to issue to the holder as security certain of its bonds secured by a mortgage previously executed, as soon as a further issue of bonds thereunder should be authorized by the state railroad commissioners, whose authority was necessary before they could be legally issued under Rev. Laws Mass. 1902. e. 112, $ 23, does not place the notes on an equality with bonds previously issued, nor entitle the holders to any preference over general creditors where no further issue of bonds was authorized, and the company has become insolvent and is in the course of administration, although the circumstances were such as to create an equitable lien as between the parties which the courts would enforce in the absence of the statute.</p> <p>3. Costs — Separate Costs.</p> <p>Where appellees recover costs in the Circuit Court of Appeals, separate costs are taxed for the several appellees who appear separately and file separate briefs.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Costs, § 921.)</p>

<p>1. Wbtt of Error — 1Time fob Bringing.</p> <p>While a motion for new trial seasonably filed in an action at law in a Circuit Court prevents the judgment from becoming final until it is disposed of, time given for the allowance of a bill of exceptions has no such effect and cannot enlarge the time within which a writ of error must be brought, which, where the writ is returnable to the Circuit Court of Appeals, is limited to six months from the date of the final judgment.</p> <p>LEd. Note. — For cases in xioint, seo Cent. Dig. vol. 2, Appeal and Error, § 1889-1896.]</p> <p>2. Same — When “Brought.”</p> <p>A writ of error is not “brought” within the meaning of Rev. St. § 1008 [U. S. Comp. St. 1901, p. 715], until the writ is actually filed or lodged with the clerk of the court which rendered the judgment sought to be reviewed.</p> <p>[Ed. Noto. — For cases in point, see Cent. Dig. vol. 2, xtppeal and Error, § 1918.]</p> <p>3. Same — Order Allowing Writ — Condition.</p> <p>x order allowing a writ of error conditioned on the giving of a bond by the plaintiff in error is ineffective until the condition is complied with.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, xippeal and Error, § 1915.]</p> <p>4. Same — Issuance—Duty of Clerk.</p> <p>A writ of error must be served, and such service is made by depositing it with the clerk ol' the court which rendered the judgment. While the clerk of a Circuit Court may issue a writ of error to that court, under the statute, as well as the clerk of the appellate court, upon an order allowing the same, it is not his duty to do so unless requested, but it is the duty of the plaintiff in error to apply for the writ and to deposit it for filing when issued.</p> <p>| Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Axipoal and Error, §§ 2105-2118.]</p>

<p>Cbiminai. Daw — Excessive Sentence — Conviction on Different Counts.</p> <p>Where a defendant has been convicted on different counts of an indictment charging separate offenses under the same statute, the court may impose separate and cumulative sentences upon the several counts, but a single sentence for a term longer than is authorized by the statute for one offense is void to the extent of the excess, and another court cannot cure the defect by apportioning the term upon the different counts, but after serving the lawful part of the term the prisoner may be discharged on a writ of habeas corpus.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Daw, §§ 3285, 3298-3300; vol. 25, Habeas Corpus, § 23.</p> <p>Power of court to revise sentence, see note to Nichols v. United States, 46 C. C. A. 412.]</p>

District of New York. On appeal from an order confirming an order of the Referee in Bankruptcy which reduced the claim of the appellant — The Perkins-Goodwin Company — to to extent; of $5,000. The Perkins-Goodwin Company filed a proof of debt against the United Educational Company, the bankrupt, for merchandise sold and delivered in the sum of $23.iM4.2(>.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal by the owner of tbe yacht Golden Rod from a decree of the District Court for the Southern District of New York condemning the yacht to pay a claim of $296.13 for coal supplied to the yacht between May 25, 1905, and June 22, 1905.</p> <p>The facts fully appear in the opinion of the District Judge, which is reported in 145 Fed. 743.</p>

<p>Vendor and Purchaser — Rescission as Saue — Kbaud—Time.</p> <p>Complainant, having purchased a lead and zinc mine in July, 1902, discovered in April, 1903, that its agent had been corrupted by the vendors, and that complainant had been induced to pay $7,000 more for the mine than the owners deemed it worth. With this knowledge, complainant brought suit to recover the amount alleged to have been wrongfully paid to its agent and made a claim against the vendors for the overpayment, but no notice of rescission for fraud was given to the vendors until August, 1904. and suit was not brought for such relief until September of that yeai', during which time complainant treated the mine as its own and operated the same changing the status of the parties and condition of the property in such a manner as to disclose a purpose to waive the fraud and affirm the sale. Held, that complainant was not entitled to a decree for rescission.</p> <p>I Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 213.]</p>

<p>Internat. Revenue-Oleomargarine Raw — Powers oe Collector.</p> <p>The oleomargarine acts (Act Aug. 2, 1886, c. 840, 2-1 Stat. 209 [U. S. Comp. St. 190J, p. 2228], as amended by Act May 9, 1902, c. 781, 32 Stat. 193 LU. S. Comp. St. Supp. 1905, p. 432J) are complete in themselves, only those provisions <S£ the general internal revenue statutes which are expressly enumerated therein being applicable thereto; and a collector is not authorized to exact the penalty of 50 per cent, provided for by Rev. St. § 3176 LU. S. Comp. St. 1901, p. 2068], from a dealer for neglecting to make the proper return.</p>

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

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

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

<p>Patents — Validity and Infringement — Enameling Metal Ware.</p> <p>The Claus patent, No. 527,361, for an improvement in enameling metal ware, held void as to claims 1, 2, and 3, and not infringed as to claims 9, 10, 11, and 12.</p>

<p>1. Patents — Construction—Proceedings in Patent Office — Retracted Disclaimers — Final Form of Application.</p> <p>Where, upon application fpr a patent for a pivot pin of a knitting machine needle, at the outstart of the proceedings in the Patent Office, the applicant, for the purpose of distinguishing certain references, made positive and reiterated declarations as to the headless character of the pins, but later was prompted to file a new and completely revised application, as a continuation of the proceedings, in which there were claims for a headed, as well as a headless, pin, the specifications being changed to correspond, which the examiner allowed and passed, although as the result of interference proceedings the headed claims were subsequently canceled, the patent (aside from the effect of the cancellation) is not limited, by such earlier declarations, to a headless pin; both specifications and claims, as allowed, being broad enough to include a headed one, and the final form In which the patent Is cast being the one to be tiRven in determining the scope of the invention, which stands as it was assei^d and accepted at the close of the proceedings, regardless of what had bex.n declared previously.</p> <p>2. Same — Interference Proceedings — Cancellation of Claims After.</p> <p>Where, ho ^ever, interference proceedings with another party have been declared, as the result of which he is found to be the prior inventor of the headed form of pin, and thereupon the applicant for the patent in suit cancels .the claims covering this form, and takes out a patent without them, he is precluded thereafter from asserting a right to anything but a headless pin, not because priority of invention was found in favor of the other patent, which may not be conclusive, but because by his own direct act, in response thereto, he canceled his claims for headed pins and accepted a patent in this restricted shape.</p> <p>3. Same — Prior Public Use — Public Use Proceedings — Effect of.</p> <p>The patentee having been defeated in interference proceedings as to one form of device, priority of invention being found in favor of the other party, at his instigation, in order to defeat the right of such party to a patent, public use proceedings were instituted, in which it was shown that for over two years prior to the time to which such party could carry back bis invention, this form of the device had been manufactured and used by the company where the patentee was employed. Held that, while this showing was fatal to the right of the other party to a patent, it did not change the status of the patentee, or restore his rights to the device as in fact the prior inventor; his own patent having been already taken out after he had canceled claims covering this form.</p> <p>4. Same — Knitting Machine Needle — Infringement.</p> <p>The Currier patent, No. 743,152, for a knitting machine needle, if broad enough in terms to cover both a headed, as well as a headless, form of pivot pin, was anticipated as to the headed form, which cannot, therefore, be claimed; and, as so limited, held not infringed.</p> <p>5. Same — Structural Form — Method of Manufacture.</p> <p>Semble, that where a patent is not for a product, the result of a method or process, but for an article of special mechanical structure, the method of manufacture cannot cuter into it as a patentable element.</p>

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

<p>Patents — Iner ingement — Electric Switch.</p> <p>The Blades patent, No. 453,032. for an automatic switch mechanism for an electric motor, construed, and held not infringed.</p>

<p>1. Patents — Validity—Combination.</p> <p>Under the modern rule, it is not necessary, in order to constitute a patentable combination, that each element should directly coact upon each of the others to produce the result, but, where all are necessary to obtain the desired end, a combination may be implied.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 27-29.]</p> <p>2. Same — Infringement—Fifth Wheel for Vehicles.</p> <p>The Morrill patent, No. 578,576, for a fifth wheel for vehicles, while of narrow scope in view of the prior art, discloses "patentable novelty and invention, and is valid; also held infringed.</p>

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

<p>1. Aliens — Exclusion—Departments oe Government — Review of Acts.</p> <p>Tlie right to exclude or expel aliens from the territory of the United States is vested in the political department of the government, and is a right with which the judicial department can have nothing to do except as authorized by treaty or act of Congress.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Aliens, § 71.]</p> <p>2. Jury — Trial by Jury — Deportation Proceedings.</p> <p>Congress not having authorized trial by jury in proceedings for the deportation of a Chinese person, provided for by Act Cong. Sept. 13, 1888, c. 10Í5, 25 Stat. 47(5 [U. S. Comp. St. 1901, p. 13.12[, the right to a jury trial does not exist.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, § 101.</p> <p>Right to trial by jury in federal court, see note t.o O’Connell v. Rood, 5 C. C. A. 003; Vany v. Peirce, 26 C. C. A. 528.J</p> <p>3. Aliens —Chinese Persons — Merchants—Evidence.</p> <p>In proceedings Cor the deportation of a Chinese person, evidence held insufficient to establish that he was a Chinese merchant when he came to the United States, and that he engaged in that line of business for some time thereafter.</p>

<p>New Teia7/ — Grounds—Ebroneous Submission of Question of Law to Juey.</p> <p>Tlie erroneous submission to the jury of a question, which, under the evidence, was one of law, entitles the defendant to a new trial where a general verdict for plaintiff was returned, and it does not appear that it was not based on an erroneous finding on such question.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 37, New Trial, § 56.]</p>

<p>Maritime Diens — Painting Vessel in Foreign Port — Contract.</p> <p>A libelant held not entitled to a maritime lien for the painting of a British vessel in the port of New York, where the work was not ordered by the master, but by a firm in Glasgow, Scotland, with whom libelant had previously had business dealings, and was done, as the evidence tended to show, upon their credit, and not upon that of the vessel.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 34, Maritime Diens, § 48.]</p>

<p>Towage — Lien—Services—Contract with Owner.</p> <p>Tlie owner of a tug which rendered towage and other services in attendance on three dredges, under a contract made with the owner of such dredges in his office, on account of which bills were rendered and general payments made from time to time based on the agreed hire per day for the tug, and without reference to the particular vessel to which the service was rendered, is not entitled to a maritime lien on the dredges for a balance of hire due in the absence of any agreement or understanding therefor merely on his testimony that it was his custom, and his intention in this particular instance, to look to the vessels for payment.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 45, Towage, § 9.</p> <p>Maritime liens, see note to The George Dunmois, 15 C. C. A. 679; The Nebraska, 17 C. C. A. 102; The Electron, 21 C. C. A. 21.1</p>

<p>Specific Performance — Homestead—Rights of Wife.</p> <p>Rev. St. Mo. 1899, § 3616 [Ann. St 1906, p. 2034], establishes the homestead of every housekeeper or head of a family, and declares that the husband shall be incapable of selling the homestead, and every such sale shall be void, unless the wife joins in the conveyance. Mold that, where a husband contracted to transfer his homestead and other real estate in exchange for certain corporate stock, in which contract his wife did not •join, and the homestead constituted one-fourth in value of the property agreed to be transferred, the contract was invalid, and specific performance thereof would not be decreed.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 33.]</p>

In Bankruptcy. On report of special master. On September 28, 1906, a petition was filed in the District Court in proper form, asking that respondent corporation be adjudicated a bankrupt. The pleadings therein raised two distinct issues. First. Was said respondent corporation insolvent at the time of the filing of the petition and at the time when it is alleged that it committed an act of bankruptcy? Second.

<p>.1. Bankruptcy — Fraudulent Transfers.</p> <p>A transfer of a merebant’s stock and all bis attachable property to bis wife for a nominal consideration for tbe purpose of preventing tbe levy of attachments, more than four months prior to the filing of a bankruptcy petition against him was fraudulent, and subject to be set aside at the instance of the trustee.</p> <p>2. Fraudulent Conveyances — Transfer to Wife — Consideration.</p> <p>A bankrupt and S. acquired the right to remove the timber from certain land, each paying $500, which they obtained from a bank on their joint and several unsecured note. The last renewal note signed by the bankrupt matured October 1, 1905, a month after he transferred his interest in such timber to his wife, while insolvent. She testified that the bankrupt .was desirous of surrendering to S. all right in the timber, but that she objected, and that the consideration for such transfer was her agreement to substitute her name on the note to the bank, instead of that of the bankrupt, which was subsequently done. Held, that the consideration for such transfer was insufficient to support it, but that the same was fraudulent as against the bankrupt’s creditors.</p>

<p>1. Trade-Marks and Trade-Names — Fraudulent Use by Another — Injunction.</p> <p>A manufacturer of shoes which has adopted and uses the name “Queen Quality” as a trade-mark or name exclusively for its shoes of superior grade, selected by it and stamped with such name, is entitled to be protected in such manner of use and to an injunction restraining a purchaser of shoes of its manufacture, but which it had rejected for such grade and stamped with a different name, from advertising, offering for sale, and selling the same under the name of “Queen Quality” shoes.</p> <p>[Ed. Note. — For' cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 76.]</p> <p>2. Same — Suit for Infringement — Injunction.</p> <p>Where a defendant continued to make use of complainant’s trade-mark after notice to desist and contested a suit brought to compel it to do so, complainant’s right to an injunction is not defeated because defendant had, in fact, ceased such use before the suit was brought, which fact was not known to complainant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 110, 111.]</p>

<p>Aliens — Chinese—Exclusion—Nativity—Evidence.</p> <p>In a proceeding for deportation of a Chinese person, evidence held Insufficient to establish that such person was born in the United States.</p> <p>[Ed. Note. — Citizenship of Chinese, see note to Lee Eook Sing v. United States, 1 C. C. A. 212; Lee Sing Ear v. United States, 35 C. C. A. 332.]</p>

In Equity. On application for preliminary injunction. This is a case in which a bill in efiuity was filed on February 6, 1905, to enjoin the execution of a judgment rendered in the civil district court for the parish of Orleans, state of Louisiana, in favor of Ephraim Simon and against the Southern Railway Company, a corporation of the state of Virginia ; the said judgment having been rendered on account of damages sustained by the plaintiff, Ephraim Simon, in an accident on…

<p>1. Bankruptcy — Definition of Terms.</p> <p>The term “bankrupt,” as used in Bankr. Act July 1, 1898, c. 541, § 1 30 Stat. 544 [TJ. S. Comp. St. 1901, p. 8418], includes a person against whom an involuntary petition shall not abate because of his death or insanity.</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to In re Taylor, 42 C. C. A. 2.]</p> <p>2. Same — Insane Persons — Subsequent Adjudication — Abatement.</p> <p>Where an involuntary bankruptcy petition was filed prior to the bankrupt’s being adjudged insane, such subsequent adjudication did not abate the proceedings nor preclude the court from administering the bankrupt’s estate, if the court’s jurisdiction was based on acts of bankruptcy committed while the bankrupt was sane.</p>

<p>Insurance — Conditions Avoiding Pomcx — Waiver.</p> <p>An insurance company cannot be deemed to have waived a condition in a policy of fire insurance making it void in case there was other insurance on the property, unless otherwise provided by agreement indorsed thereon or attached thereto, because of notice of concurrent insurance given to the agent who issued the policy, who had no authority under its terms to waive such condition, where such information was not communicated by him to the company; nor does .the fact that he reported to the company certain of the policies on the property then in force, to which no 'objection was made, affect the right of the company to insist upon the condition in respect to another policy for a substantial amount, which was not so reported.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 28. Insurance, §§ 968, 969, 091.</p> <p>Waiver of condition against other insurance, see note to United Firemen’s Ins. Co. v. Thomas, 27 O. O. A. 46.]</p>

<p>Bankruptcy — Powers of Court — Property Fraudulently Transferred.</p> <p>Where it clearly appears, in an involuntary proceeding in bankruptcy, before adjudication, from the examination of persons 1o whom the alleged bankrupt has transferred property, that such transfers wore fraudulent, and that the property will be recoverable by the trustee when appointed,, under Bankr. Act July 1, 1898, c. 541. § (>7c, 30 Stat. 504 [U. S. Comp. St. 1901. p. 3449]. as amended by Act Feb. 5, 1903, c. 487, § 36, 32 Stat. 800 [U. S. Comp. St. Supp. 3905, p. 090.1, the court of bankruptcy has power, without the institution of a plenary suit therefor by the creditors, to direct its receiver to take possession of and hold the properly pending suit, when such action is obviously necessary to prevent its loss to the estate.</p>

<p>Appeal and Error — Action on Appeal Bond — Invalidity op Bond.</p> <p>xVn appeal bond, given on an appeal from a judgment at law in a federal court, wbieli was a nullity and ineffective to stay execution or for any purpose, is without consideration, and will not support an action.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4729-4733.1</p>

<p>1. Witnesses — Cross-Examination—Collateral Matters.</p> <p>It was not an abuse of discretion for the trial court to permit a witness on cross-examination to be asked, for the purpose of discrediting him, whether he had, been drinking on the day of the injury and at the time of the trial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, jj§ 1106-1108.]</p> <p>2. Evidence — Expressions op Pain.</p> <p>In an action for injuries, statements of witnesses as to plaintiff’s expressions of pain were competent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 377-382.]</p> <p>3. Appeal — Harmless Error.</p> <p>In an action for injuries to plaintiff by defendant’s runaway team, a witness testified that C., defendant’s superintendent, was at the scene within a few minutes after the accident and identified the team as be-belonging to defendant, and, in reply to a general question as to what the superintendent said, the witness answered: “This is Armour’s team that has done this, and we are liable.” On objection, the court allowed the answer to stand de bene, and stated that he would instruct the jury, without further testimony, that it had no effect, and as to the question of liability it had no probative value. During the trial it was admitted that C. was defendant’s local superintendent, and that the team belonged to defendant, and the court expressly charged that C.’s statement could not be considered at all as an admission of liability. Held, that defendant was not prejudiced, under such circumstances, by the admission of such answer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4161-4170, 4178-4184.]</p> <p>4. Same.</p> <p>Where, in an action for injuries to plaintiff by a collision with defendant’s runaway team alleged to have been negligently permitted to remain unattended in a street, the evidence establishing the identity of the team as belonging to defendant, and that the horse was left at the curbstone with the reins thrown over his back, and later started to run, and came into collision with plaintiff’s vehicle and caused the injury, such facts warranted a verdict in favor of plaintiff, and hence defendant was not prejudiced by a technical error in the admission of evidence that the driver was relieved by defendant of his employment nearly a year after the accident.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4034.]</p> <p>Putnam, .1., dissenting.</p>

On the 23d clay of March, 1905, an agreement in writing was entered into between the Independence Smelting & Refining Company, a corporation of Colorado, as party of the first part, and Adolph .T. «Tarmuth, of Denver, as pari.v of the second part, the essential parts of whicii contract are as follows: “That tlie said party of the second part, for and in consideration of the sum of one dollar to him in hand paid by the said' party of tlie first part, the receipt whereof is…

<p>1. Writ of Error — Process—Amendment.</p> <p>A writ issued out of the federal court described plaintiff’s citizenship, but omitted to state the citizenship of either of the three defendants. Defendants moved to dismiss for want of Jurisdiction because of this omission, whereupon plaintiff ashed leave to amend the writ by inserting after the description of the “plaintiffs” the words “citizens and residents of.” This motion was allowed, all parties treating the word “plaintiffs” as intended for “defendants,” after which defendants, who were represented by the same counsel, filed a special plea denying that one of them was a citizen pf Massachusetts, which plea, was heard and overruled. Held, that the , error 'in the motion to amend was unsubstantial, and that plaintiff, as defendant in error, was entitled to correct the record by substituting the word “defendants” for “plaintiffs.”</p> <p>2. Juey — Right to Juey Trial — Waiveb.</p> <p>A written stipulation is not essential to a waiver of a jury to assess damages on a bond after default, under Rev. St. § 961 [U. S. Clomp. St. 1901, p. 699], declaring that, when the sum for which judgment shall be rendered in such suit is uncertain, it shall, if either party request it, be assessed by a jury.</p> <p>3. Same — Proceedings—Request eor Juey — Time.</p> <p>Plaintiff sued on a contractor’s bond to secure performance of a written contract. On the trial, defendants’ attorney stated that defendants might be defaulted, but that he “would like to be heard on the question of damages,” and immediately thereafter suggested that the ease be sent to an auditor. This was agreed to, and, though a jury was then present, an auditor was appointed, and no request was made for a jury trial at any time during the term, nor until four months after default, and after defendants had learned that the auditor’s report was unfavorable, when they applied for an assessment of damages by a jury, as authorized by Rev. St. § 961 [U. S. Comp. St. 1901, p. 699], Held, that the finding of the Circuit Court that the request for a jury trial was too late should not be disturbed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 31, Jury, §§ 163%, 164.</p> <p>Right to trial by jury 'in federal court, see note to O’Connell v. Reed, 5 O. C. A. 603; Vany'v. Peirce, 26 C. C. A. 528.]</p>

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

<p>Bankruptcy — Resale op Property — Rights op Purchaser.</p> <p>A sale of property by a trustee in bankruptcy was set aside by an order directing- a resale of the property “free and discharged of and from all incumbrances,” and requiring the petitioner to give security to bid an advanced price offered, and, in addition, such sum as might be awarded to the prior purchaser. Pending an appeal from such order the court vacated a prior order staying execution on a decree of foreclosure previously entered in a state court, but requiring the petitioner, with its consent, to make a similar bid at the foreclosure sale. It became the purchaser at such sale at a price largely in excess of that which it had undertaken to bid. Held, that it was entitled to the property free of incumbrance, the same as though the sale had been made by the bankruptcy court; and that the amount awarded to the former purchaser, and the costs in connection therewith, as well as the accumulated taxes on the property, should he paid by the trustees from the proceeds of the sale.</p>

<p>1. Patents — Anticipation—Abandonment op Machine.</p> <p>A machine fully embodying a device subsequently patented by another does not lose its effect as an anticipation because its use was abandoned, solely for the reason that the product in making which it was employed was not successful, where it is shown that the machine operated successfully, and that the maker did not abandon the invention embodied therein.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 73.</p> <p>Abandonment of invention, see note to Hayes-Young Tie Plate Co. v. St. Louis Transit Co., 70 C. C. A. 6.]</p> <p>2. Same — Oputch.</p> <p>The Davey & Ladd patent, No. 672,056, for a clutch for starting and stopping machines, is void for anticipation by the clutch previously employed in the Stiles-Thomson machine for setting lacing studs in shoes.</p>

<p>1. Patents — Invention—Imperfect Operation of Device.</p> <p>The fact that a patented device, designed for a novel use, does not work perfectly does not deprive it of invention where the principle is disclosed, and all that is necessary to its perfection is a more perfect or modified mechanical adjustment of parts.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 38, Patents, § 34.]</p> <p>2. Same — Infringemeni>-Pin Setter for Bowling Alleys.</p> <p>The Crawford patent, No. 644,546, for a device for setting pins in a bowling alley, discloses patentable invention, and is valid. Also held infringed by the device of*the Backus patent, No. 771,963.</p>

<p>Patents — Invention and Infringement — IIeddhe-Making Machine.</p> <p>The Gibbs patent, No. 626,900, for a heddle-making machine, claim 15, was not anticipated and discloses invention in the mode and means shown for twisting the wire. Claims 4, 5, 6, 7, 8, 13, and 14 are void for lack of invention. Claim 15, also, held infringed.</p>

<p>In the Matter of the Review of the Findings of the Referee Refusing to Allow the Claim of Mrs. Z. T. Poynter as a Secured Claim.</p>

<p>1. Corporations — Citizenship—Residence.</p> <p>A corporation organized under the laws of any one of the United State» is in contemplation of law a citizen and resident of the state in which it is incorporated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 141-147.</p> <p>Citizenship for purposes of federal jurisdiction, see note to St. Louis, I. M. & S. Ry. Co. v. Neweom, 6 O. C. A. 174; Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p> <p>2. Removal op Causes — Residence—Foreign Corporations.</p> <p>Act March 3, 1887, c. 373, 24 Stat. 552, as corrected and amended by Act Aug. 33, 1888, c. 866, 25 Stat,433 [U. S. Comp. St. 1901, p. 508], provides for the removal of causes in Which there shall he controversy between citizens of the state and foreign states, citizens, or subjects, and section 2 declares that all such suits may be removed to the Circuit Court of the United States for the proper district by the defendant or defendants therein being nonresidents of that state. Reid that, where defendant was an alien insurance corporation, it was a nonresident of California within such act, though it had a branch office within the state, for the transaction of business.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 64-68.]</p>

<p>1. Bankruptcy — Possession of Property — Rights of Landlord.</p> <p>On an adjudication of bankruptcy against a tenant, the latter’s property is in custodia legis, the landlord, being thereupon precluded from enforcing his rent claim by distress, is only entitled to proceed against the trustee in the bankruptcy court.</p> <p>2. Same — Preferred Claims — Rent.</p> <p>Under, S. C. Civ. Code 1902, §§ 2427, 2428, 2429, giving a landlord a preferred lien for rent on a tenant’s personal chattels, situated on the leased premises, enforceable by distress, on the tenant’s being adjudged a bankrupt, the landlord possessed a preferred claim as against the proceeds of sncli property for rent due to the date of the bankruptcy adjudication, as provided by Bankr. Act July 1, 1898, c. 541, § 04, subd. 5, 30 Stat. 5G3 Lib S. Ooinp. St. 1901, p. 3448], giving priority to debts owing to any person who by the laws of the state is entitled to priority.</p>

<p>1. Corporations — Mortgages—Bonds—Execution.</p> <p>In proceedings for tbe foreclosure of a mortgage securing bonds of a corporation, evidence held to sustain a finding that the entire issue contemplated and secured by the mortgage were outstanding obligations of the corporation.</p> <p>2. Same — Bondholders—Estoppel.</p> <p>Where corporate bonds in controversy were issued under a certain contract, the holders of a part of the bonds were estopped, while claiming the right to enforce the same, to assert that' others were unenforceable be- ' cause of the alleged illegality of the contract.</p> <p>3. Same — Bona Fide Holders.</p> <p>Where a treasurer of a corporation borrowed certain money from a bank, which he used for the corporation’s benefit, and pledged to secure the same certain of the corporation’s bonds, the bank was a bona fidéholder of such bonds, and entitled to enforce the same to the extent of' the money so applied to the corporation’s benefit, regardless of the treasurer’s authority to execute notes for money borrowed for the corporation.</p> <p>4. Payment — Renewal op Notes.</p> <p>Where the treasurer of a corporation borrowed certain money from a bank for the benefit of the corporation, and iiledged certain of its bonds, as collateral, the fact that such treasurer and his firm gave new notes for such indebtedness, including further advances, the last of which stated on their face that the bonds were held as collateral, did not constitute payment of 'the original indebtedness.</p> <p>■ . [Ed. Note. — For eases in point, see Cent. Dig. vol. 39, Payment, §§ 78-86J</p> <p>5. Pledges — Bonds—Bona Fide Purchaser — Notice. ' , ;</p> <p>Certain corporate bonds, payable to bearer and duly certified by the trustee to have been properly issued, came into the hands of the corporation’s treasurer, pursuant to certain reorganization contracts between the person controlling the corporation and himself, after which they were pledged -by the treasurer to a bank to secure' debts of his firm. Held that, in making' such pledge, the treasurer acted personally, and not as an of- : fleer of the corporation, and, having possession of the bonds with till the indicia of title, the bank was not charged with notice of any infirmity-therein because it had knowledge of the treasurer’s official connection with the corporation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, §§ 4&-50.</p> <p>Eights and liabilities of pledges of corporate stock, see note to Frater y. Old Nat. Bank, 42 O. O. A. 133.]</p>

<p>1. Shipping — Charter Hire — Time of Redelivery.</p> <p>Wliere, at the time of an oral charter of a steamer to carry a cargo of fruit at a monthly hire, she had- fittings for the cargo which had been left therein by a former charterer, and which, with, some additions, were also left by the later charterer when she was redelivered, the owner is not entitled to recover hire thereafter during the time of a dispute as to the duty of the charterer to remove such fittings.</p> <p>• [Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 194.]</p> <p>2. Same — Breakdown oe Machinery — Liability for Incidental Loss to ■ Charterer.</p> <p>Under a charter of a steamer to proceed to Cuba for a cargo of fruit, which exempted the owner from liability due to any accident to the machinery, his failure to promptly notify the charterer of a breakdown at sea which delayed arrival at the port of loading for several days, did not render him liable for a loss of bananas which had been cut in anticipation of her earlier arrival; there being no provision of the charter requiring such notice.</p>

<p>1. Telegraphs — Messages—Failure to Disliver — Right to Sub.</p> <p>Wliero P., in sending a message, accepting a proposition for the sale of a business in his own name, was in fact acting as agent of plaintiff, plaintiff was entitled, to sue the telegraph company for failure to deliver the message.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 37.]</p> <p>2. Frauds, Statute or — Contract—Memorandum—Sumtotency.</p> <p>The statute of frauds does not require that every detail of an agreement for the sale of chattels shall be in writing at the time the contract is made, but only requires that some memorandum or note thereof shall be in writing at some time prior to suit brought.</p> <p>I Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Frauds, Statute Of, § 210.]</p> <p>3. Contracts — Acceptance by Agent — Telegram.</p> <p>A telegram, accepting an offer for the sale of a business, signed by plaintiff’s agent acting for plaintiff, was sufficient to make an enforceable contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 120.]</p> <p>4. Frauds, Statute oi^Kight to Defense.</p> <p>The benefit of the statute of frauds as a defense is personal, and cannot be availed of by a third person.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, . § 344.]</p> <p>5. Contracts — Offer and Acceptance.</p> <p>A corporation, operating a naval stores business offered its property on September 19, 1905, for $13,900, when the company had finished its year’s business, the offer to be open for acceptance on or before October 4, 1905. On October- 3d plaintiff forwarded a telegram of acceirtance. Meld, that the offer contemplated an immediate sale on acceptance, though possession was not to be surrendered until the expiration of the year’s business, and hence the offer was not so conditional that its acceptance would not constitute a contract.</p> <p>6. Telegraphs — Messages—Failure to Deliver — Pleading.</p> <p>Where a telegraph company failed to deliver a message, accepting an offer for the sale of the addressee’s business, possession to be delivered on completion of the addressee’s business year, a complaint for damages, failing to definitely allege the time when possession and delivery were to be accomplished, was defective.</p> <p>7. Same — Damages.</p> <p>Where a telegraph company failed to deliver a message, accepting a corporation’s offer to sell its business for a specified price within a certain time, and the corporation thereupon refused after the expiration of the time to comply with such offer, the telegraph company was liable to the sender of the message for the difference between the price specified in the offer, and the value of the corporation’s business at the time an acceptance was attempted.</p> <p>[Ed. Note. — For cases in point, see Cent. -Dig. vol. 45, Telegraphs and Telephones, § 72.</p> <p>Measure of damages in actions against telegraph and telephone companies, see note to Western Union Telegraph Co. v. Coggin, 15 C. C. A. 235; Western Union Telegraph Co. v. Morris, 28 C. C. A. 59.]</p> <p>8. Same — Rules—Application.</p> <p>A rule of a telegraph company, that it would not be liable for damages in case of an unrepeated message, was inapplicable, where there was an utter failure to deliver the message at all.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 39, 43, 46.]</p> <p>9. Same — Substantial Compliance.</p> <p>Where two messages in the same terms were sent to two different points a short distance apart, by which plaintiff attempted to accept a corporation’s offer for the sale of its business, in either of which places the vendor could have been found, such telegrams constituted a substantial compliance with the rule of the telegraph company, requiring that a message be repeated in order to create a liability on the telegraph company.</p>

At Law. On rule for judgment for want of a sufficient affidavit of defense.

<p>In Bankruptcy.</p>

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

This cause comes here upon appeal from an order of the District Court, Northern District of New York, which set aside certain contracts made by the bankrupt corporation with its various stockholders, found that certain of its shares represented stock which was not full paid, and ordered that a call and assessment be made upon the holders of such shares to an amount sufficient in each case to make the stock full paid.

Appeal in admiralty from a decree in personam (145 Bed. 569) adjudging the respondent liable for the loss caused to a cargo _ of wheat by the sinking of the canal boat upon which the wheat was being transported.

<p>1. Master and Servant — Action for Injury of Servant — Evidence of Master’s Negligence.</p> <p>Where plaintiff, a car repairer employed by defendant railroad company, was injured while repairing the trucks which had been removed from under the end of a car by the falling of the end of the ear which had been jacked up by other employes, and rested upon the jacks, there was no presumption of negligence on the part of defendant arising from the accident itself, and no ground of recovery against it for the injury was shown, in the absence of any substantive proof of its negligence or of any evidence to show what caused the car to fall.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 881, 898.]</p> <p>2. Same — Unsafe Place to Wokk — -Negligence oe Fellqw Sehvants.</p> <p>The jacking up of the end of a railroad car for the purpose of repairing the trucks was not a part of the master’s duty of providing a reasonably safe place for the employes to work, but a part of the duty of the servants making the repairs, and there can be no recovery against the master for an injury resulting to a fellow servant from their negligence in doing the work, the appliances furnished by the master not being shown to have been insufficient nor defective.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 352.]</p>

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

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

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

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, dismissing a libel, brought to recover for cargo damage against the Steamship Folmina. The opinion below is reported in (D. C.) 143 Fed. 636. The steamship sailed from Kobe, Japan, for New York with No. 8 lower hold filled with rice in bags. During discharge the rice on the starboard side was found damaged.

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

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

Habeas Corpus. The petition of D. G. Chapman ior a writ of habeas corpus, alleging that he is unlawfully imprisoned ai d restrained of his liberty by the United States marshal for the district of Idaho, in the county jail of Ada county, Idaho, haying been presented, and, an order thereupon having been made and served upon the marshal requiring1 him to show cause why the writ should not issue as prayed for, there appear from the petition and the return of the marshal to the…

<p>1. Shipping — Carriage of Goods — Yerbal Contract Followed by Bill of Lading.</p> <p>Where a bill of lading does not conform to the original contract of shipment, it must yield, in the absence of proof that the parties intended thereby to create a new agreement. ,</p> <p>2. Same — Bill of Lading — Signing under Protest.</p> <p>Where a bill of lading presented by the carrier to the shipper for signature, after the shipment has been made, does not conform to the original contract, but includes cargo not taken by the vessel as agreed, it is a proper course for the shipper to sign the same under protest, and such protest will preserve its rights.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 414, 416.]</p> <p>3. Same — Dead Freight — Refusal to Take Full Cargo.</p> <p>Libelant and respondent entered into a verbal contract that one of respondent’s steamers should load and transport a quantity of marble from Spezia, Italy, to New York. The marble was delivered, as agreed, alongside the steamer, which made the voyage with only a'part of the cargo, insisting subsequently that libelant’s agent should sign a hill of lading for the whole, describing the omitted portion as “short shipped,” which bill the agent signed under protest. Held, that libelant was entitled to recover from the steamer the amount exacted in excess of the freight earned, and also the damages suffered by reason of the refusal to take the remainder of the cargo.</p>

<p>Bankruptcy — Preferences—Vacation—Actions—Jurisdiction.</p> <p>* Bankr. Act July 1,1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445] as amended by Act Cong. Feb. 5, 1903, c. 487, 32 Stat. 799 [U. S. Comp. St. Snpp. 1905, p. 689], provides that for the purpose of recovering a preference any court of bankruptcy, as previously defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction. Held, that a United States District Court as a court of bankruptcy has jurisdiction either at law or in equity to set aside a preference alleged to have been given after the amendment of the act, without the consent of the creditor alleged to have been preferred.</p> <p>[Ed. Note. — Jurisdiction of federal courts in. suits relating to bankruptcy, see note to Bailey y. Mosher, 11 C. C. A. 313.]</p>

<p>1. Corporations — Officers—Misappropriation of Funds.</p> <p>Where defendant, an officer and director of a corporation, absolutely dominated its board of directors and induced such board to authorize the purchase of worthless bonds of other corporations in which he was interested, by which he was enabled to make a large individual profit, lie was liable to account to the corporation’s receiver for the profit so made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1393-1415. J</p> <p>2. Equity — Accounting—Appointment of Master — Discretion.</p> <p>In a suit by the receiver of a corporation for an accounting of profiis wrongfully made by defendant, an officer and director, by the wrongful use of the corporation’s funds, the court, after determining defendant’s liability, was not bound to appoint a master to take an account, but could do so or not, in its discretion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 866.]</p>

<p>In Equity. Demurrer to amended bill of complaint on the ground that on the complainant’s own showing he is not entitled, in equity, to the relief demanded, or to any relief, as to any of the matters alleged or contained in such bill of complaint.</p>

In Equity. Robert McCullough, William E. Gheen, Samuel Humos, J. W. Christman, H. A. Miller, and Thomas A. Davies, citizens of Pennsylvania, have filed their original bill in this court against Howard Sutherland and Stephen B. Elkins, citizens of West Virginia, and the Pennsylvania Steam Coal & Coke Company, a West Virginia corporation, in which they allege themselves to have been, prior to the 28th day of March, 1903, the officers, directors, and sole owners of all the…

<p>1. Insolvency — Stockbrokkes — Distribution oe Proceeds oe Pledged Stocks.</p> <p>Insolvents were engaged in business as stockbrokers, and were given an order by petitioner to purchase certain stocks. This order they executed through a correspondent firm, which purchased the stock, advanced the money to pay for the same, and charged the amount to the general account of the insolvents, holding the stock as security for such account according to the usual custom between brokers. On being presented with a bill by insolvents, petitioner paid the same, and the insolvents promised to have the shares transferred to his name and to deliver the same. They did not. do so, however, nor remit the price to their correspondent, which on their failure sold the stock with other stocks bought for bankrupts on margin for customers to cover a balance due from them on their account. The'proceeds of all of the stocks so sold exceeded the amount due, and the excess was paid over to the receiver in insolvency. Held, that petitioner’s stock, having been separate from any other and paid for, as between him and the insolvents, or any of their creditors except the pledgee, was his property, and that he was entitled to the entire proceeds; none of it having been needed to pay the indebtedness to the pledgee.</p> <p>[Rights and liabilities of pledgees of corporate stock, see note to Prater v. Old Nat. Bank of Providence, 42 O. O. A. 125.]</p> <p>2. Same.</p> <p>Petitioner directed the insolvents, who were stockbrokers, to sell certain stock for him, and to purchase certain other stock. They sold and delivered the stock through a correspondent firm in Chicago, which credited the proceeds to their account, and they gave petitioner a corresponding credit on their hooks. They also purchased the desired stock from another broker, but it had not been paid for nor delivered at the time of their failure, and the saie was canceled by the seller. At the time of the failure, and from the time of the sale of the stock, the insolvents owed the Chicago correspondent firm a balance on account, for which the latter held as collateral stocks purchased and carried, and in which customers of the insolvents had an interest. On the failure such stocks were closed out 'by the pledgee realizing a surplus after paying the account which was turned over to the receiver in insolvency. Held, that petitioner had no interest in such fund, and was not entitled to share therein with customers Whose stocks produced it, but was merely a general creditor.</p>

On Plea to the Jurisdiction and Motion to Remand to State Court.

At Law. On April 25, 1905, the defendant issued to George W. Cone, under the firm name of George W. Cone Lumber Company, its policy of insurance, to which a slip is attached showing the amount of insurance and the property covered, as follows: $500 00 On one story rubberroid roof, frame building, occupied by the assured as a wet log- sawmill, situate on the east bank of the Willamette river, at St. .Johns, Multnomah county, Oregon. $500 00 On engines, boilers, etc. $500 00…

At Law. On October 5, 1904, defendant issued to A. S. Douglass, R. P. D. Douglass, and A. B. Douglass, partners doing business under the firm name of St. Johns Lumber Company, its policy of insurance, whereby it insured the firm against loss or damage by fire, as per printed slip attached to the policy, as follows: $1,500 On frame wet log saw mill building and additions, adjoining and communicating, situate on the east bank of the Willamette river, St. Johns, Multnomah…

<p>1. Commerce — Interstate Commerce — Invalid Restriction — License.</p> <p>A state statute imposing a license on persons soliciting orders for pictures, picture frames, etc., who were not merchants or dealers having a permanent place of business within the state, etc., constituted an invalid restriction on interstate commerce in so far as it affected an agent of a foreign art company who delivered pictures, frames, etc., and collected the money due on orders previously taken by another agent of the corporation and sent to another state where the corporation resided to be filled.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Commerce, § 111.</p> <p>State laws interfering with interstate commerce, see note to 24 O. O. 'A. 21.]</p> <p>2. Same — Discrimination.</p> <p>A state statute imposing a license tax on persons soliciting orders for the enlargement of photographs or for picture frames, etc., within the state, but declaring that the act shall not apply1 to merchants or dealers having a permanent place of business within the state, and who kept picture frames as a part of their stock in trade, was invalid as an unjust discrimination in restraint of interstate commerce in favor of merchants residing within the state and having a permanent place of business therein.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Commerce, $ 111.]</p>

On Motion to Strike Further and Separate Answers. On about April 12, 1803, there was allotted to Maggie Damain, a mixed-blood Indian woman, who was at the time the wife of John Damain, the northeast quarter of section 20, township 3 north, range 34 east of the Willamette Meridian, situated within the Umatilla Indian reservation.

On Demurrer to Complaint. The complainant, who is an Indian woman, brings this suit to determine her right to dower in certain lands situate upon the Grand Ronde Indian reservation, in the state and district of Oregon, formerly allotted to Henry Win-slow, a full-blood Indian. From the allegations of the bill of complaint, it appears that the complainant intermarried with Henry Winslow in the year 1881.

<p>1. Indians — Heirs.</p> <p>Where a child was born out of wedlock to an Indian woman, to whom Indian reservation lands were allotted, and such child survived her, he was her heir at law.</p> <p>2. Same — Curtesy—Indian Lands — Husband of Allottee.</p> <p>Where an Indian woman of mixed blood, to whom Indian reservation lands had been allotted, died, leaving a son born out of wedlock, as her heir at law, and a husband, surviving her, the husband was entitled to an estate by the curtesy in the allotment, and to the rents, issues, and profits thereof.</p>

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

<p>Salvage — Eire—Compensation eor Service.</p> <p>Eour steamships of the same owner, and largely of wooden construction, were lying for the winter at piers near each other, when one took fire in the night and burned. Another, the Lowell, worth $300,000, which was lying in the same slip, with only 50 feet between them, was in imminent peril, and would probably have been destroyed if she had remained. A small tug offered its services, but they were refused, although probably adequate, and the Lowell took a line from libelant’s larger tug, and was towed to a place of safety; the service requiring half an hour. The tug then went to the assistance of two smaller tugs, and together they took out the third vessel, the Puritan, worth $S00,000, which was lying on the opposite side of the pier from the burning ship and was in a position of danger, as the pier was on fire, and would probably have been injured, but not destroyed. This service took about three-quarters of an hour, and at the request of those in charge of the fourth vessel the tug then stood by during the remainder of the night, but her service was not required. The tug was valued at $60,000. Neither she nor her crew were at any time in danger. Held, that she was entitled to a salvage award of $9,000 in case of the Lowell, and $5,000 in case of the Puritan, and also to $250 for standing by the fourth vessel at the request of her owners; three-fourths of such award to go to the owner, and one-fourth to the crew.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 43, Salvage, §§ 55-77. Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. Appeal of the United States from the decision of the Board of United States General Appraisers, overruling the decision of the collector of customs at Baltimore with resoect to the assessment of duty on an importation of powder puffs.

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,067 (T. D. 26,475), relating to merchandise imported at the port of Philadelphia.

<p>In Bankruptcy. Reargnment on certificate from referee concerning claim of Baker, Giltinan & Patterson.</p>

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

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>These are cross-appeals from a" decision reported as G. A. 6,315 (T. D. 27,216), in which the Board of General Appraisers affirmed in part and reversed in part the assessment of duty by the collector of customs at the port of New York.</p>

<p>Bankruptcy — Homestead Exemption — Head op Family.</p> <p>Where a bankrupt and his wife had separated by mutual consent a short time before the bankruptcy, and she had received approximately half of his property, and had removed with an adopted child to another town, where she remained, leaving him with no property, except a small stock of merchandise, he ceased on such separation to be.the head of a family, within the meaning of the homestead provision of the Constitution of South Carolina, and is not entitled thereunder to the allowance of a homestead exemption out of the remaining property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 668-670 ; vol. 25, Homestead, §§ 22-25.]</p>

<p>On Motion to Dismiss Appeal.</p>

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

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

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

<p>3. Railroads — Injuries to Licensee — Speed—Negligence.</p> <p>In general, in the absence of a regulating statute or ordinance, a carrier may run its trains at such a rate of speed as it deems convenient for the conduct of its business, without being gnilty of negligence per se in case a derailment occurs resulting in injuries to licensees on tlie train.</p> <p>TEd. Note.- — Eor cases in point, see Cent. Big. vol. 41, Railroads, § 879.</p> <p>Rights of licensee on train, see note to Chamberlain v. Pierson, 31 C. C. A. 164.]</p> <p>2. Same — Question eor Jury.</p> <p>Where defendant railroad company operated a fast mail train down a descending grade of 60 feet to the mile, and at the sharpest point of a 6 degree curve at the foot of the grade, at the rate of from 70 to 75 miles per hour, without slackening speed, and the train was derailed at the curve, resulting in the death of plaintiff’s intestate, an express messenger working on the train, whether defendant was guilty of negligence was for the jury.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 41, Railroads, § 918.]</p> <p>3. Writ op Error — Exoessiveness op Damages — Review.</p> <p>The Circuit Court of Appeals has no jurisdiction to review an objection that the damages awarded in an action for wrongful death are excessive, though it is convinced that the trial court improperly exercised its discretion in refusing to grant defendant relief on such ground on the motion for a new trial.</p> <p>¡'Ed. Note. — Eor eases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3873.]</p>

<p>1. Writ of Error — Review able Order — Judgment- of Nonsuit.</p> <p>A judgment of compulsory nonsuit, entered by a federal court in Pennsylvania in conformity to the state practice, is a final judgment, and reviewable on writ of error.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 471.</p> <p>Conformity of practice in common-law actions to that of state court, see note to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p> <p>2. Carriers — Injury to Passenger — Getting off Train — Contributory Negligence.</p> <p>Plaintiff’s husband was struck and killed by a passing train at a station on .defendant’s railroad.. In an action to recover damages for the death, the only testimony was that introduced by plaintiff, which was uncontradicted, and showed that the road was a double-track road, trains running west on the north track and east on the other, there being a space of 12 feet between the two; that there were platforms for passengers on the north side of the north track and on the south side of the south track, but no platform between; that decedent alighted from a west-bound train on the south side of the same in the daytime, and started across the south track, when he was struck by an east-bound train thereon. The only witness to the accident was another passenger, an employs of defendant, who alighted on the same side in advance of decedent and crossed the south track ahead of the train. lie testified that such train was in plain view and whistled, and also that he called and motioned to decedent to stav back, but that decedent started to run, and had reached the south rail when he was struck. There was no evidence of any invitation by defendant to passengers to alight on that side of trains, or that it had knowledge" of any custom to do so; nor did decedent, who was a stranger to the place, have knowledge of any such custom, if it existed. Held, that the court; properly directed a compulsory nonsuit on the ground of contributory negligence.</p> <p>[Kd. Note. — For cases in point, seo Cent. Dig. vol. 9, Carriers, §§ 1385-3397.]</p> <p>3. WlTNIiSSES — CKOSS-IlXAlIlNATrOX—SCOPE.</p> <p>Where a witness of an accident by which a person was run over and killed by a railroad train, on his direct; examination by the plaintiff in an action to recover damages for the death, testified generally to the situation and conditions surrounding the accident, and to certain acts of the decedent, the defendant was entitled on cross-examination to inquire in detail as to all the acts and conduct of decedent immediately preceding the accident.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 50, Witnesses, § 933-948.]</p>

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

<p>3. Bankkuptcy — Order on Adjudication — Gonclusiveness on Findings.</p> <p>Where a petition in involuntary bankruptcy alleged that the two defendants owned a stock of goods as partners, and that therefore a partnership existed which it was prayed might be adjudged a bankrupt, and such adjudication was made, it was a conclusive determination of the ownership of the stock of goods as between the parties to the proceeding, hut could not bind the trustees in bankruptcy of one of the alleged partners, who had taken possession of and sold the goods as assets of his individual estate, and who were not permitted to become parties to the partnership proceeding.</p> <p>2. Same — Partnership—Evidence to Establish.</p> <p>The owner of the stock of goods in a store turned the same over to his brother, who personally conducted the business thereafter under a company name, which was publicly used in all transactions relative 'to the business, It was originally the intention to form a corporation to own the business, the most of the stock to be issued in the first instance to the brother who owned the goods, hut such intention was never carried out. Held, that there was a partnership in fact between the brothers in the business, which might be adjudged a bankrupt, and which, was the owner of the property and assets of the business.</p> <p>[Ed. Note. — For cases in point, see Cent'. Dig. vol. 6, Bankruptcy, § 51; vol. 38, Partnership, §§ 1-38.]</p>

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

Since this case was here on the former appeal (Files v. Bro-wn, 59 C. O. A. 403, 124 Fed. 333, to which reference is made for a general statement of the facts), the receiver has amended his petition and placed his right of recovery upon different grounds than before.

Writ of error by defendant: below to review judgment of the United States Circuit Court for the Northern District of New York, entered upon a verdict in favor of plaintiff below, for $20,184.26 for personal injuries. The undisputed facts material to the issues presented herein are as follows: The defendant is the owner of a dock known as the “fish dock,” on the east side of the Harlem river, above the Willis Avenue Bridge. The river at this point is about 400 feet wide.

<p>1. Injunction — Actions—Necessary Pa ethos — Defendants.</p> <p>In a suit in equity in a federal court to enjoin the defendant from proceeding under an oil and gas lease which obligated him to operate for oil and gas for a term of years, and to pay royalties in kind and in cash to the owner of the-land, the right of complainant to relief being based on the alleged invalidity of such lease, the landowner is an indispensable party, without whose presence the court can make no decree.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, § 212.]</p> <p>2. Ai'I'eai, — Matters Keviewable — Defect of Parties.</p> <p>Where a decree was entered in favor of a complainant in a suit in which because of the absence of an indispensable party whose rights were directly affected the court was not warranted in granting any relief, the defeet of parties cannot be waived by the parties before the court, and the fact that no objection was made on that ground cannot prevent the consideration of the question by an appellate court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1189; vol. 37, Parties, § 169.]</p>

<p>1. Cbiminab Daw — Evidence—Cobbobobative Facts.</p> <p>On the trial of a defendant charged, under Eev. St. § 5467 [U. S. Comp. St. 1901, p. 8691], as a post-office clerk with having secreted and embezzled letters containing articles of value, and stealing such articles from letters, the government produced witnesses who testified that they saw defendant open a letter and take therefrom an article of value, which he placed in a pigeonhole. Defendant in his own behalf testified that the letter referred to was open when received, and that the article which he placed in the jjigeonholo he found lying loose on his table when assorting mail, and laid it away for proper disposition. Held, that he was entitled to show by other employés that the mails at the office had been very heavy for some time prior to this occurrence, and that many letters and packages came in bad condition, with the edges worn and broken, so that articles could readily fall out, as evidence tending to support bis defense; its weight being for the jury.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 802. 1713.]</p> <p>2. Sane — Evidence of Intent — Commission of Otheb Simtlab Offenses.</p> <p>On tlie trial of a post-office clerk charged with secreting and embezzling letters containing articles of value and stealing the contents, the government was entitled to prove a statement made by defendant a short time previously that he had, destroyed a number of election circulars, a quantity of which had come into the office for distribution, as evidence tending to show the commission of an offense of similar character to those charged and bearing on the question of intent. Sanborn, Circuit Judge, dissenting.</p> <p>[Eft. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 830.]</p>

The appellant, a resident of the state of Ohio, engaged in loaning money and renting real estate, was the owner of a certain building in the city of Spokane. The property was in charge oí the firm of Cook & Clarke, real estate agents at Spokane. In 1901 and 1902 it was in the possession of one Oamia, an Italian, under a lease which was to expire January 1, 1904; the rental being $150 per month. CJamia was running a questionable resort, and was haying trouble with Ihe police.

<p>1. Shipping — Injury to Stevedore — Duty op Vessel.</p> <p>The owners of a vessel owe a personal duty to the members of a stevedore’s gang employed to work thereon to provide reasonable security against danger to life or limb, and to warn them of any latent danger caused by the ship, or for which the ship is responsible.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 44, Shipping, §§ 349, 350.]</p> <p>2. Same — Liability op Vessel — Defective Hatch Coveb.</p> <p>In a suit by a stevedore’s employé to recover from a vessel for a personal injury caused by the falling of a hatch cover, precipitating him into the hold, it was shown that, when in the course of his duty he went to remove the cover which had been closed by the vessel, or by those for whom she was responsible, he was not warned of any danger; that he went upon the hatch, when, without fault or negligence on his part or on the part of his fellow laborers, the supports immediately collapsed without apparent cause. Held, that such evidence was sufficient to make a prima facie ease, which, unless overcome by countervailing evidence, entitled him to recover.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 349, 350.]</p>

<p>Trial — Exclusion of Evidence — Instructions.</p> <p>In an action for damages caused hy the collapse of a building during alteration, plaintiff alleged noncomplianee with an ordinance requiring the issuance of a building permit before the building alterations were commenced. Defendant sought to prove what had. been done with reference to securing a permit before the commencement of the work, but the court sustained plaintiff’s objection, and stated that he did not see how the permit was material; that in -the view he took of the case it would go to the jury on the single proposition whether the work was done in a negligent manner. The matter was not again referred to, but the court charged that in determining whether defendants were negligent the jury might consider the fact that the city ordinances required a permit to be obtained, the fact that .one was not obtained, and whether the omission contributed to the injury. Hold, that such instruction submitted an issue on which defendant had not been heard, and was erroneous.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 46, Trial, § 596.]</p>

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

<p>Courts — Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>Where, in an action for breach of a contract for the sale of a drug business brought in a federal court, there was evidence that the business and good will was of such a value that plaintiff’s share thereof, together with $500 advanced by plaintiff as a part of the price for which he also sued, would amount to $2,000, an objection that the amount in controversy was not shown equal the jurisdictional amount because there was no proof of any market value of the goods inventoried or what they would sell for was unsustainable.</p> <p>[Ed. Note. — Jurisdiction of circuit courts as determined by the amount in controversy, see note to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p>

<p>Trial — Federal Courts — Special Findings Where Jury is Waived.</p> <p>Special findings by a trial judge in an action at law in a federal court, where a jury has been waived pursuant to the provisions of Rev. St. § 649 [TJ. S. Comp. St. 1901, p. 525], have the same effect as special verdicts of a jury, and must embrace a finding on every material issue joined in the case, otherwise the result is a mistrial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 935.]</p>

<p>Internal Revenue — Sale oe Property Under Distraint Warrant — Replevin by Third Party.</p> <p>A sale of property by an internal revenue officer under a distraint warrant for the collection of a tax does not cut off the title of a third person who does not owe the tax and against whose property the warrant is not directed, and the true owner may assert his title and right of possession by replevin against the purchaser after the officer has made the sale and transferred possession, and has. thus completed his official' acts with respect to the property. A sale of property by a collector under a distraint warrant is clearly distinguishable from a sale of property seized and condemned in forfeiture proceedings for violation of the customs or internal revenue laws, and passes only the interest of the tax debtor.</p>

<p>Shipping — Injury op Stevedore — Liability of Vessel Owner. ,</p> <p>, The owner of a vessel which was seaworthy aud properly equipped is not liable, under the admiralty law, for an injury to a stevedore’s employe caused by the negligence of himself or other employés handling the hatch coverings when discharging the vessel.</p> <p>[Ed. Note. — For cases in point, seo Cent. Dig. vol. 44, Shipping, §§ 342, 349.]</p>

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

The case comes here upon the pleadings and the report and opinion of the referee to whom the issues were referred by stipulation of the parties.

<p>In Error to the Circuit Court of the United States for the Northern District of New York.</p> <p>On writ of error to review a judgment for $24,397.33 damages, interest and costs, entered April 17, 1900. in favor of the plaintiff for damages occasioned by the failure of the defendant to deliver lumber to the plaintiff pursuant to an order for 4,000,000 feet of lumber, dated January 2, 1902, which order was duly accepted by ihe defendant. The case comes here upon the pleadings, report and memorandum of the referee and also upon the opinion of the judge of the Circuit Court, delivered upon plaintiff’s motion for judgment and defendant’s motion for a new trial.</p>

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

<p>Covenants — Construction—Covenant or Condition.</p> <p>A provision in a deed conveying right of way to a railroad company requiring the grantee to erect a station house thereon and to stop all passenger trains there which stopped at other stations within three miles held, in view of other provisions, to constitute a covenant and not a condition subsequent.</p>

<p>Patents — Invention—Insulating Ltnings.</p> <p>The Marshall patent, No. 784,695, for an insulating lining consisting of a paper tube held in the metallic shell by its resiliency and yet easily removable, claims 5 and 9 are void in view of tbe prior art, as involving merely the substitution of paper as an insulating material for vulcanized liber previously used, with no change excel)! the minor advantage of removability which results from the fact that paper is slightly more compressible, an advantage not involving invention, and also because both claims are devoid of patentable novelty in view of the Hart “Diamond II” switclicap which preceded the alleged invention of the Marshall patent, and had a paper lining similar in use. purpose, and function.</p>

<p>Patents — Anticipation—Abdominal Pad and Hose Supporter.</p> <p>The Young patent, No. 638,540, for a combined abdominal pad and hose supporter, the prominent feature of which is a pad to depress the most prominent portion of the abdomen of the wearer, and aid in producing a proper carriage of the body, was not anticipated by the O’Byrne design patent, No. 29,777, for a hose supporter, nor by anything shown in the prior art and discloses patentable invention. Also held infringed as to claim 1.</p>

In Equity. Suit for alleged infringement of United States letters patent No. 812,183, issued February 13, 1906, to Benjamin F. Bellows, on application filed January 11, 1904, by William O. Coffee, for improvement in telegraph instruments for transmitting signals, and known as a “telegraph key.”

<p>In Equity. Suit to restrain alleged infringement of claims 1 and 2 of United States Letters Patent No. 767,303, dated August 9, 1904, and issued to Horace G. Martin, the complainant, for an improvement in telegraph transmitters.</p>

<p>Aliens — Chinese Exclusion Acts — Minos Childeen of Chinese Merchant. ...</p> <p>The fact that a Chinese person, who as shown by the uncontradicted evidence entered the United States in 1898, when a minor 14 or 15 years old, ’ his father being at the time a merchant engaged in business in San Francisco, did not have a certificate under section 6, Act May 6, 1882, c. 126, 22 Stat. 60,, as amended by Act July 5, 1884, c. 220, 23 Stat 116 [U. S. Comp. St. l901, p. 1307], does not raise any presumption that bis entry was unlawful, no such certificates being then required under the decisions of the Supreme Court to entitle the wives and children of Chinese merchants residing in this country to entry.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Aliens, §§ 75, 81.],</p>

On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings'- were brought in the name of C. Wesley Thomas, collector of customs at the port of Philadelphia, to secure a review of a decision of the Board of General Appraisers, which had reversed the collector’s assessment of duty on certain imported articles.

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

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,356 (T. D. 27,324), affirming the assessment of duty by the collector of customs at the port of New York. '

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>Note Wimpfheimer v. Erhardt (C. C.) 59 Fed. 451.</p> <p>The Board of General Appraisers reversed the assessment of duty by the collector of customs at the port of New York. The government’s assignments of error, as stated' in the application for review of the board’s decision, read as follows: .</p> <p>“And for the errors of law and fact in the decision of said board herein complained of, your petitioner states: (1) That the said board was in error in holding the merchandise in question to be free of duty under the provisions of paragraph 561 of said act (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1683]). (2) In not finding the same to be dutiable at 20 per cent, ad valorem under paragraph 426 of the said act, as assessed.. (3) In finding as a matter of fact that the said merchandise is unfitted for use in hat making except as an adulterant. (4) In not finding the same to be furs not on the skin prepared for hatters’ use. (5) In sustaining the protest of the importers and in reversing the decision of your petitioner, as collector of customs, in the premises.”</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The Board of General Appraisers, on the authority of former decisions by the board — G. A. 1,410 (T. D. 12,814), and G. A. 5,397 (T. D. 24,604) — affirmed the assessment of duty by the collector of customs at the port of Philadelphia.

<p>Bankruptcy — Lien Creditors — Bights.</p> <p>Where creditors of a bankrupt contractor, after filing liens against the property of persons indebted to the estate oh account of the same claims, filed and proved their claims against the bankrupt’s estate as “unsecured,” such claimants were entitled, on surrendering their liens, to share generally in the estate’s assets, or on agreeing as to the value of the security covered by the liens, and crediting such amounts on the claims, prove the balance against the bankrupt’s estate, as authorized by Bankr. Act July 1,1898, c. 541, § 57, subd. h, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3444].</p>

<p>1. Carriers — Violation of Interstate Commerce Aoi^-Debarture from Published Acts..</p> <p>Under Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], as supplemented by tbe Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St Supp. 1905, p. 601]), an initial carrier which has become a party to a joint through-rate for the transportation of property, over its own and connecting lines between two points in different states, which rate has been filed and published as required by the act, cannot lawfully transport property between such points at a less and' unpublished rate over another route ánd with different connections.</p> <p>2. Same — Indictment for Receiving Concessions in Rates — Sufficiency.</p> <p>An indictment under the Elkins a!ct (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 601]), charging a shipper with having received a rebate or concession from the joint rate published and filed by a carrier for the transportation of property between points in different states, is not defective because it does not specifically charge that such rate was required to be filed by the statute, where it alleges that it was published and filed as required by law, nor because it does not charge that the defendant solicited the concession, nor need it name any other shipper who has been charged and paid the higher rate as is required where discrimination is charged, or that any shipment was actually made at the published rate.</p> <p>3. Same.</p> <p>Because an indictment under the Elkins act (Act Feb. 19. 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 601.1), for receiving a concession from the published rate on an interstate shipment of property alleges that such shipment was made in car load lots, or in cars not owned by the carrier, it does not follow as matter of law that such fact justified the departure from the published rate so as to render the indictment demurrable.</p> <p>4. Same — Discrimination in Bates — 1Construction of Statute.</p> <p>In considering the sufficiency of an indictment for receiving an unjust discrimination in rates from a carrier on an interstate shipment of property in violation of Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 [IT. S. Comp. St. 1901, p. 3154], as supplemented by the Elkins act (Act ÍFeb. 19, 1903, c. 708, 32 Stat. 847 ITT. S. Comp. St. Supp. 1905, p. 6011), any doubts as to the correct construction of the statute should be resolved in favor of the evident intention of Congress that equality among shippers should be maintained, and unjust discrimination and favoritism of all kinds condemned, leaving the question whether the existing conditions justified the difference in rates charged to be determined as one of fact on the trial.</p> <p>5. Same — Scope of Statute.</p> <p>The Elkins act (Act Feb. 19, 1903. c. 708, 32 Stat. 847 ITT. S. Comp. St. Supp. 1905, p. COTI), is not restricted in its provisions to departures from an established tariff rate, but is violated, if any other advantage is given to a shipper whereby a discrimination is practiced.</p>

<p>1. Abmy and Navy — Clothing of Soldikb — Sale.</p> <p>The sale of military clothing issued to a soldier during his term of service constitutes an offense against the military law, for which he may be punished by a court-martial, as provided by the seventeenth article of war, as amended by Act July 27, 1892, c. 272, 27 Stat. 277 [U. S. Comp. St. 1901, p. 9173, declaring that any soldier who sells or through neglect loses or spoils his horse, arms, or accoutrements, shall be punished as the court-martial shall adjudge, etc.</p> <p>2. Same — Pledge—Liability of Pledgee.</p> <p>The receiving in pledge, by a civilian from a soldier, of clothing issued to the latter during the term of his enlistment, does not constitute a penal offense, within Rev. St. § 5438 [U. S. Comp. St. 1901, p. 8673], providing that every person who purchases or receives in pledge from a soldier any arms, equipment, ammunition, clothing, military stores, or other public property, such soldier not having the lawful right to pledge or sell the same, shall be imprisoned, etc., since the clothing oil being issued to the soldier becomes his individual property and ceases to belong to the United States.</p>

<p>1. Trade-Marks and Trade-Names — Descriptive Word.</p> <p>The word “Bohemian,” placed on bottles of beer, is a descriptive term, indicating a brand of beer in the manufacture of which Bohemian hops are used and cannot be monopolized as a trade-mark by a particular manufacture".</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 40, Trade-Marks and Trade-Names. § 13. Arbitrary, descriptive, or fictitious character of trademarks and trade-names, see note to Searle & llereth Co. v. Warner, 50 C. C. A. 323.]</p> <p>2. Same — Unfair Competition- — Imitation oe Labels.</p> <p>To warrant the granting of an injunction against unfair competition by the imitation of a label, it must either be manifest to the court on an inspection of the two labels that the similarity as a whole is such as would be likely to deceive ordinarily attentive and observing retail purchasers, or there must be proof of actual mistake by purchasers.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 91. Unfair competition, see notes to Scheuer v. Muller, 20 C. O. A. 165; Lare v. Harper & Bros., 30. O. C. A. 376.]</p> <p>3. Same — Beer Bottle Labels — Compabison.</p> <p>The labels used by the respective parties on bottles of beer compared, and held not to show such similarity as a whole as to warrant the granting of a preliminary injunction restraining defendant from using its label on the ground of unfair competition, in the absence of any evidence of actual deception of the public. .'</p>

<p>1. Contracts — Partial Invalidity — Separation.</p> <p>Where a city, in order to construct a sewerage plant, borrowed $25,000 from complainant to construct the same, and agreed to repay the loan in installments in various ways, a provision of the contract that, in ease after the year 1901 the total taxable value of all complainant’s property should be fixed and kept at a sum not to exceed $5,000, then complainant for each year in addition to other credits would credit on the loan a sum equal to 14 times the taxes on $5,000, or such proportionate amount in case the valuation exceeded $5,000, was separable from the remainder of the contract, and, if invalid, did not invalidate the balance.</p> <p>[Ed. Note. — Divisibility of contracts, see note to Saunders v. Short,-30 C. C. A. 467.]</p> <p>2. Municipal Corporations — Borrowing Money — Sewers—Construction-</p> <p>Powers.</p> <p>A city having express statutory authority to construct sewers as provided by Iowa Code 1897, §§ 791, 794, 796, 810, 820, 831, 841, had power to borrow money for the purpose of constructing a plant for the disposition of the sewage.</p> <p>3. Same — Contracts—Validity—Relief from Taxation.</p> <p>A contract by which complainant agreed to loan defendant city the sum of $25,000 for the construction of a sewerage plant to be repaid by a return of all water rents owing to the city from complainant, together with all taxes due the city on a specified valuation of the company’s property, etc., was not objectionable as relieving complainant from the burden of taxation.</p>

<p>1. Carriers — Discrimination—Indictment—Joint Rates — Filing.</p> <p>Where in a prosecution against a carrier for discrimination iu violation of the Interstate Commerce Law, Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380 LU. S. Comp. St. 1901, p. 31581, the indictment alleged that a common arrangement existed between defendant and three other connecting carriers named for a continuous forwarding of property, in interstate commerce, between two specified points, and that defendant kept open for public inspection its printed tariff of rates, and filed the same as required by law, with the allegation that the shipment in question was accompanied by written shipping orders, waybills, and transfer slips showing a continuous shipment between such points, it sufficiently charged the establishment of a joint tariff of rates for the commodity in question, without alleging that all the connecting carriers concurred in such joint rate, or that it was filed with the interstate commerce commission by their joint action.</p> <p>2. Same — Joint Rate — Departure.</p> <p>Where a tariff has been established on a commodity for a through interstate shipment, as provided by Interstate Commerce Law, Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380 [II. S. Comp. St. 3901, p. 3158],, there can be no departure therefrom unless made according to law.</p> <p>8. Same — Different Routes.</p> <p>Interstate Commerce Law, Act Feb. 4, 3887, c. 104, § 6, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3158], declares that it shall be unlawful for any common carrier, party to any joint tariff, to charge or receive a greater or less compensation for the transportation of persons or property or for any services in connection therewith, between any points as to which a joint rate is named thereon than specified in the schedule filed by the commission in force at the time. Held, that the words “between two points” did not limit such section to points on the established route, but that the section prohibited the transportation of property between terminals in different states át a greater or less rate than the established rate, without reference to routes.</p> <p>4. Same — Indictment.</p> <p>Where an interstate carrier was indicted for charging a lower rate than that established by a filed joint1 tariff over a specified route for transportation of petroleum between tbe same termini over a different route, the indictment was not defective for failure to allege that the lower rate over the latter.route was not scheduled and filed as required by Interstate Commerce Law, Act Feb. 4, 1887, e. 104, § 6, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3158],</p> <p>5. Same — Burden of Proof.</p> <p>In a prosecution of an interstate carrier for-charging a less rate for ■ the transportation of petroleum between two specified termini in different states than that scheduled in a filed joint tariff, in violation of Interstate Commerce Law, Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380 [U. S. Comp. St. 1903, p. 31581,' the burden is on the government to show a common arrangement for a continuous carriage between the points mentioned in the filed joint tariff.</p> <p>6. Same — Indictment—Through Shipment.</p> <p>An indictment against an interstate carrier for discrimination alleging that, under a common arrangement between the connecting carriers, the commodity, which was contained in tank ears was transported without stoppage or interruption and was accompanied by written shipping orders, waybills, and transfer slips indicating a through transxiortation, the rate and place of destination, sufficiently alleged prima facie a common arrangement between the carriers for a through shipment.</p>

<p>1. Carriers — Interstate Commerce — Traffic—Failure to File — Indictment.</p> <p>An indictment against a carrier for failure to file its tariff between intrastate points as a part of an interstate shipment of petroleum in violation of Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905,. p. 599]) alleged that a nine-cent rate per 109 for carrying .petroleum in tank cars between designated intrastate terminals was established and in force under a common arrangement between connecting carriers named for a continuous shipment; and that it was agreed that defendant and the P. .Railroad Company, which was to receive nine cents a barrel, should collect a separate freight charge, while the other carriers, parties to the common arrangement, should receive $23 for each tank car of oil transported from one of such terminals to a point in another state, making the aggregate charge per hundred pounds for transportation from the initial point of shipment to destination 15.34 cents. The indictment also alleged that each of the shipments were under shipping orders, transfer slips, and waybills, showing that the commodity was to be transported from the initial shipping point by continuous route to destination without unloading or transhipment. Held, that such allegations sufficiently showed that defendant’s road, though entirely an intrastate railroad, was part of a joint through route over which interstate commerce was transported, and was therefore subject to the provisions of such act.</p> <p>2. Same — Several Carriers — Duty to File Rates.</p> <p>Under the interstate commerce act (Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380), as amended March 2, 1889 (25 Stat. 855, c.- 302, § 1 [U. S. Comp. St. 1901, p. 3156]), requiring several common carriers operating a through line engaged in interstate commerce to file schedules of rates constituting the basis of a through interstate rate, each carrier, though operating a line wholly within a state, which line is a portion of a through route engaged in interstate commerce through a common ar- ' rangement between several connecting carriers, is bound to comply with ’ such act.</p> <p>3. Same — Indictment—Common Arrangement.</p> <p>An indictment of a carrier for failure to file its tariff of rates for petroleum, established under a common arrangement for interstate shipment, in violation of the Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), alleged the establishment of a rate for carrying petroleum between intrastate terminals under a ■ common arrangement for a continuous interstate shipment, and that each of- the shipments under such rate were under shipping orders, transfer slips, and waybills, showing that the commodity was to be transported' from the point of shipment to destination by a continuous route without unloading or transhipment. Held, that the indictment sufficiently charged a common arrangement between the various carriers for a through interstate shipment under a joint tariff.</p> <p>4. 'Same^Statútes — Repeal.</p> <p>Under Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], providing that the repeal of any statute shall not operate as a release from liability incurred under such statute unless the repealing act shall expressly so provide, the saving clause contained in the Hepburn act (Act June 29, 1906, § 10, 34 Stat. p. 584, c. 3591), relating to interstate commerce, did not repeal Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), in so far as it affected an indictable offense thereunder, previously committed.</p> <p>[Ed. Note. — Construction and operation of provisos, exceptions and saving clnuses, see note to United States y. R. F. Downing & Co., 76 a C. A. 381.] ......•</p>

<p>Collision — Steam Vessels Meeting — Mutual Fault.</p> <p>A collision in the East river, near the Brooklyn Bridge, between a barge in tow on the starboard side of the steamer Manhattan, bound up the river to Pier 24 on the Manhattan side, and the steamer Maine, bound from New Bedford to her pier in the North river, held due to the fault of both steamers. The Manhattan held in fault for attempting to pass on the starboard side of the Maine from a head and head position without an agreement, and for stopping and reversing after starboarding her helm on failing to receive an answer to her signal, which threw her directly across the Maine’s course, and the Maine for not answering signals promptly and for excessive speed, hut not being somewhat on the Brooklyn side of the channel as she was required by the presence of other vessels to depart from the East river rule of the state to keep in the middle, and as the narrow channel rule does not apply to those waters.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 10, Collision, § 40.</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630J</p>

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

<p>1. Customs Duties — Fraudulent Entry — False Statement, Etc.</p> <p>The first part of section 9, Customs Administrative Act June 10, 1890. e. 407, 20 Stat. 135 [U. S. Comp. St. 1901, p. 1895], relating to fraudulent or false invoices, statements, practices, or appliances, lias application only wlien sucli means are employed in connection with goods the importation of which is not concealed.</p> <p>2. Same — Fortteiturio—'Willful Aot or Omission.</p> <p>The penalty of forfeiture prescribed by Customs Administrative Act June 10, 1890, c. 407. § 9, 20 Stat. 135 [U. S. Comp. St. 1901, p. 18951, where any importer is “guilty of any willful act or omission by means whereof the United States shall be deprived of the lawful duties,” is incurred whore a passenger on a steamer willfully omits to mention to the customs officials merchandise in his possession.</p> <p>3. Same — “Baggage”—Articles on the Person.</p> <p>Precious stones carried loose in a pocket of a passenger arriving in the United States, though not “baggage” within the common-law definition of that term, are baggage within the meaning of section 2802, Rev. St. TU. S. Comp. St. 1901, p. 1873]; and the jiassengcr is bound to declare them in the same way as articles contained in his trunk.</p> <p>[Ed. Note. — Interpretation of commercial and trade terms in tariff laws, see note to Dennison’s Mfg. Co. v. U. S., 18 O. C. A. 545.]</p> <p>4. Same--Merchandise Unladen Without Permtt — Articles on the Person.</p> <p>Where a person arriving in the United States took with him from tlie vessel articles which he had willfully omitted to declare to the customs officers, he was guilty of unloading merchandise withoul a permit, in violation of section 2872, Rev. St. LU. S. Comp. St. 1901, p. 1910].</p> <p>5. Same — Peodúction of Invoice — Smuggled Goods.</p> <p>Customs Administrative Act June 10, 1890, c. 407, § 4, 20 Stat. 131 [U. S. Comp. St. 1901, p. 1888], requiring the production of an invoice or declaration of imported merchandise, applies only where there has been an actual, intentional entry of merchandise, ■ and not where the entry has been concealed.</p> <p>6. Same— Smuggling — Completion—Seizure Within Customs Lines.</p> <p>A person arriving in the United States omitted from his declaration made to the customs officials on shipboard any mention of a package of emeralds contained in his clothing, and at the time of the examination of .his baggage on the dock falsely stated to such officers that he had no precious stones in his possession. Said emeralds were then seized under section 2865, Rev. St. [U. S. Comp. St. 1901, p. 1905], providing for the forfeiture of smuggled goods. Held, that the act of smuggling was complete when he had passed from the vessel to the shore, and that it was immaterial that he had not gone beyond the customs lines established on the dock for convenience in examining baggage.</p>

<p>t. Customs Duties — Classification—Burlaps—Double-Warp Bagging.</p> <p>The provision for “burlaps,” in Tariff Act Aug. 27, 1894, c. 349, § 2, Free List. par. 424%, 28 Stat. 539, does not include so-called double-warp Dundee bagging.</p> <p>[Ed. Note. — Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.]</p> <p>2. Same — Protest—Sufficiency—Wrong Claim.</p> <p>Goods, which should have been classified free of duty under a paragraph relating to “jute bagging,” were asserted in the importers’ protest to be free under a paragraph relating to “burlaps,” and there was no suggestion that the importers at the time of filing the protest had in mind the former provision. Held, that the protest did not set forth the importers’ objections “distinctly and specifically,” within the meaning of Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933].</p>

<p>1. Customs Duties — Estoppel—Delay of Customs Officers.</p> <p>There was a delay of several years by customs officers in forwarding an importer’s protests to the Board of General Appraisers for decision, and during this period the value of the importer’s evidence became impaired. Hold, that no right against the government arose by reason of this delay, particularly when not intentional or negligent.</p> <p>2. Same — Classification—Sugar Above No. 16 Dutch Standard — Beet</p> <p>Sugar.</p> <p>In construing Tariff Act July 24, 1897. c. 11, § 1, Schedule E, par. 209, 80 Stat. 1(38 [U. S. Comp. St. J901, p. 1G47], relating- to “sugar above number sixteen Dutch standard in color, and * * * sugar which has gone through a process of refining,” held, that it is not necessary that, in order to come within the first clause of this provision, sugar should be capable of being used commercially, without refining, as cane sugar; and therefore beet sugar, which is not so capable, is included therein.</p> <p>[Ed. Note.- — Interpretation of commercial and -trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.]</p> <p>8. Statutory Construction — Unambiguous Language.</p> <p>Where the language of a statute is incapable of more than one construction and does not lead to an absurd result, a court lias no power to vary the meaning by going o-utside the unambiguous language adopted by the lawmakers.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 266.]</p>

At Law. Action for the repayment of internal revenue taxes illegally imposed. These proceedings were brought.by William A. Taylor and Irving K. Taylor, as copartners doing business under the name of W. A. Taylor & Co., against Charles H. Treat, fdrmerly a collector of internal revenue in the city of New York. The case was tried before the court without a jury.

<p>Admiralty — Remedies in Rem — Torts—Assault by Master.</p> <p>■ Under admiralty rule 10, providing that in all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime Jurisdiction, the suit shall be in personam only, a libel against a vessel will not lie for an unprovoked assault committed by the master on a seaman upon the vessel.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 284. Jurisdiction of torts, see note to Campbell v. H. Hackfeld & Co., 62 C. C. A. 279.]</p>

■ Trespass on the Case. On motion to remand to state court and petition for leave to amend petition for removal.

<p>1. Chattel Mortgages — Beal Estate Leases.</p> <p>A lease of real estate for 10 years was a chattel real, as provided by Beal Property Law N, Y. p. 563, c. 547, § 23, and was not, therefore, the proper subject of a chattel mortgage.</p> <p>2. Bankruptcy — Beoexvers—Sale oe Assets.</p> <p>Where the receiver of a bankrupt acquired possession of a leasehold as . a part of the bankrupt’s estate, the receiver should not have attempted to make a sale of the lease prior to the trustee obtaining possession.-</p> <p>3. Same — Title oe Trustee.</p> <p>The title of a trustee in bankruptcy relates back to the adjudication. [Ed. Note. — Por eases-in point, see Cent. Dig. vol. 6, Bankruptcy, § 194.]</p> <p>4. Same-jSatje by Receiver — Authority—Coxfirhation.</p> <p>A sale of a chattel real by a receiver of a bankrupt without the express direction of the court conveys no title, and such defect cannot be cured bj a motion to confirm the sale and to quiet adverse claims to the property sold.</p>

<p>1. Bankruptcy — Examination of Bankrupt — Rights of Schedule Creditor.</p> <p>Where a bankrupt’s schedules disclosed the claim o£ I’., and lhat the bankrupt claimed the same was barred by limitations, P. was entitled to examine the bankrupt as to the extent of his estate at an adjourned meeting of creditors before I*, had formally filed his claim with the referee, in order that I*, might determine whether the size of any possible dividend was sufficient to justify the expense of proving the claim, notwithstanding the rule requiring a creditor to file a formal claim before any examination.</p> <p>2. Same — Debts Disoiiarged — Proof.</p> <p>Where a claim against a bankrupt is duly scheduled, it is included in his discharge, whether the creditor proves it or not.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 0, Bankruptcy, § 772.]</p>

<p>Fixes — Enforcement—Imprisonment.</p> <p>Rev. St. § 30(52 ["U. S. Comp. St. 1901, p. 2007], provides that if any person who may be driving or conducting or in charge of any carriage, vehicle, or beast, or any person traveling shall willfully refuse to stop and allow search and examination to be made by United States revenue officers for goods imported without payment of duty, when required to do so, he shall be punished by a fine of not more than $1,000 nor less than $50. Held that, where a fine imposed under such section was not paid, the court had common-law jurisdiction, according to local usage since the original judiciary act, to commit the defendant to jail until the fine was paid or he should be otherwise discharged according to law.</p>

<p>Indians — Indian Lands — Aldotmjcnt—-Patents— Restrictions — Sam oír Timbeb — Rights of United States.</p> <p>Lands in controversy were allotted to certain Chippewa Indians under treaty of September 30, 1854, and patented to them with the restriction that they should not sell, lease, or in any manner alienate the land without the consent of the President of the United States, which restriction was inserted by authority conferred on the President by article 3 of such treaty (10 Stat. 1110). Helé, that the patent devested the United States of all title to the land or timber growing thereon, notwithstanding the restriction ; and that the United States liad therefore no capacity to sue to recover the value of timber cut from such allotments under an improvident contract between defendants and the allottees.</p>

<p>1„ Bankruptcy — Distribution of Estate — Priorities under State Law.</p> <p>While a state law cannot of its own force determine priorities under a national bankruptcy law, Bankr. Act July 1, 1898, c. 541, § 64b(5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], which provides that “debts owing to any person who by the laws of the state * * * is entitled to priority” shall be given priority in the distribution of the bankrupt’s estate, adopts the law of the state, and makes it the applicable federal law in determining priorities.</p> <p>[Ed. Note. — Effect of national bankruptcy act on state insolvency laws and on assignments for benefit of creditors, see note to Carling v. Seymour Lumber Co., 51 C. O. A. 11.]</p> <p>2. Same — Claim fob Materials Furnished to Manufacturing Company— Kentucky Statute.</p> <p>Ky. St. 1903, § 2487, which provides, inter alia, that persons who shall have furnished materials or supplies for the carrying on of the business of any manufacturing company shall have a lien therefor on its property and effects involved in the business, when the same shall be assigned for the benefit of creditors, or shall in any way come to be distributed among creditors, whether by operation of law or by act of such company, which lien, as provided by following sections, is superior to any mortgage or incumbrance thereafter created, while it may not create a technical lion until the happening of one of the conditions mentioned, gives a substantial right in or inchoate lien upon the property from the date of Hie furnishing of the material or supplies which comes within the spirit and purpose of Bankr. Act July 1, 1898, c. 541, § 64b(5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], and on the bankruptcy of the company entitles such a claim to priority over the claims of general creditors.</p> <p>3. Same — Statutes—Construction—Kentucky Lien Statutes.</p> <p>Ky. St. 1903, | 2494, which provides that “no lien provided for in this article” shall attach, unless a claim therefor is filed in the county clerk’s office within 60 days after the last day of the last month in which any labor was performed or material was furnished for which the lien is claimed, refers solely to liens provided for in section 2492 for labor or materials furnished in the construction of works of public improvement, and has no application to the liens given by section 2487 for materials or supplies furnished to a manufacturing company in case of the distribution of its property among creditors, notwithstanding the general language “lien provided for in this article”; the two classes of liens having their origin in different statutes, which with a third were carried without substantial change into the article in question, and sections 2492 to 2495 inclusive comprising one of the prior acts, while section 2487 formed part of another.</p> <p>4. Same — Claims Entitled to Priority — Effect of Assignment.</p> <p>A claim which is given priority by Bankr. Act July 1, 1898, c. 541, § 64b(5), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448], because of a state statute by which the right of priority is given to the debt, and not to the creditor, may be assigned before bankruptcy, and the right of priority will pass to the assignee.</p>

On exceptions to the commissioner’s report, Swan, District Judge, delivered the following opinion in the court below: An interlocutory decree was granted in the above-entitled cause adjudging the Oceánica solely in fault for the collision between that steamer and the steamer William Chisholm and dismissing the original libel. It was referred to the clerk to ascertain and report the damages suffered by the cross-libel-ants. The commissioner filed his report November 23, 1904.

<p>1. Wills — Creditors oe Testator — Action Against Legatee — Form.</p> <p>An action in the federal court against a legatee in his lifetime, in which action only a money judgment without discovery or accounting was asked, was properly brought at law under Rev. St. § 723 [U. S. Comp. St. 1901, p. 583], declaring that suits in equity shall not be sustained in United States courts in any case where a plain, adequate, and complete remedy may be had at law.</p> <p>2. Courts — Federal Courts — Procedure—Eeeect oe State Law — Witnesses —Competency—Transaction with Person Since Deceased.</p> <p>In a suit in the federal court against a legatee on a contract for services rendered testator in hi's lifetime, whether plaintiff was a competent witness should be determined by the federal law, and not by the law of the state where the suit was brought, or the law of the state where the ■ services were performed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 925, 984.</p> <p>Competency in federal courts, following state practice, see notes to O’Connell v. Reed, 5 C. C. A. 602, and Bank of California v. Cowan, 21 C. C. A. 278.]</p> <p>3. Witnesses — Competency—Transaction with Decedent — Action Against Legatee — Statutes.</p> <p>Rev. St. § 858 [U. S. Comp. St. 1901, p. 659], declaring that no witness shall be excluded because of interest, except that in actions by or against executors, administrators, or guardians neither party shall be allowed to testify against the other as to any transaction with or statement by testator, intestate, or ward, unless called to testify thereto by the opposite party, did not incapacitate plaintiff to testify in an action against a legatee for services rendered testator.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 653-657.]</p> <p>4. Wills — Debts oe Testator — Action Against Legatee — Contract for Services — Relation oe Parties — Instructions.</p> <p>In a suit against a legatee on testator’s express contract to pay plaintiff for services rendered him, the court properly charged that the relation of the parties was a circumstance bearing on the probability of there being such a contract, and that, if the contract was not made, if plaintiff’s relation to testator was that of his betrothed or future wife, and the services were rendered in that relation, she could not recover.</p> <p>5. Evidence — Stjebtciency and Weight op Evidence.</p> <p>In a suit against a legatee on a contract for services between plaintiff and testator, it was not error for tlie court to refuse to charge that the proof of plaintiff’s claim must be clear and unequivocal in order to entitle her to recover; a preponderance of the evidence being sufficient.</p> <p>6. Courts — Federal Courts — Procedure—Writ of Error — Scope of Review —Motion for New Trial.</p> <p>The action of the federal court in refusing a motion for a new trial is not reviewable on a writ of error.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 937.1</p> <p>7. Trial — Verdict—Amendment.</p> <p>A verdict may be amended with reference to both matters of form and substance during the term, either by reference to the judge’s notes taken at the trial, or by other satisfactory evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4G, Trial, §§ 791-801.]</p> <p>8. Same — Interest.</p> <p>A petition, in an action against a legatee on an express contract between plaintiff and testator for plaintiff’s services, alleged that testator died December 29, 1901, and prayed judgment for $21,000 and interest from that date. The jury returned a verdict finding the issues in favor of plaintiff and awarding her $21,000 and interest. Held that, the date of testator’s breach of contract being fixed by his death, the court was justified in amending the verdict during the term by adding interest from that date.</p>

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

<p>1. Courts — federal Courts — Trial to Court — Practice.</p> <p>On a trial of a cause in a Circuit Court without a jury, the court cannot he required to “hold” specific propositions of law presented by the parties.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Courts, § 934.]</p> <p>2. Same — Findings of Fact.</p> <p>Parties to a suit at law in a federal court, tried to the court without a jury, have no right to require the court to make a special finding.</p> <p>¡Ed. Note. — For cases in point, see Cent. Dig.< vol. 13, Courts, §§ 927, 934.]</p> <p>3. Saiif — Writ of Error — Federal Court — Scope of Review.</p> <p>Where the finding of a federal court in a law case tried without a jury is general, a writ of error reaches only the court’s ruling in the progress of the trial, and, if the finding is special, the review may extend to the determination of the sufficiency of: the facts found to support the judgment, as provided by Rev. St. § 700 [IT. S. Comp. St. 1001, p. 570J.</p> <p>4. Commerce--Interstate Commerce — Commission’s Findings — Evidence.</p> <p>The interstale commerce act (Act Feb. 4, 1887, o. 104, § 14, 24 Stat. 384, as amended by Act March 2, 1889, e. 382, § 4, 25 Stat. 859 |TT. S. Comp. St. 1901, ]). 31651) provides that, whenever an investigation shall be made by the commission, it shall make a report in writing which shall include the findings of fact on which the commission’s conclusions are based, etc., and such findings shall thereafter be deemed prima facie evidence as to each and every fact found in ail judicial proceedings. Held that, where a proceeding to enforce the commission’s findings was tried to a federal court without a jurj, it was not error for the court to receive tlie commission’s report in evidence without excluding matters of opinion stated therein, as distinguished from tlie commission’s findings of fact.</p> <p>6, Writ of Error-Admission of Evidence — Prejudice.</p> <p>Where on writ of error in a suit, to enforce a finding of the Interstate Commerce Commission, the record affirmatively showed that neither the Commission nor (lie Circuit Court based any part of tlie judgment sought to be reviewed on certain evidence admitted over objection, the admission of such evidence was harmless.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and, Error, §§ 4153, 4185, 4186.]</p> <p>6. Commerce — Interstate Commerce Commission — Findings—Evidence.</p> <p>A finding by the Interstate Commerce Commission that a just and reasonable charge for the privilege of reconsigning hay at East St. Louis was one cent per hundredweight was prima facie evidence of its own truth.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Commerce, § 145.]</p> <p>¶. Carriers — Rates—Discrimination. «</p> <p>A carrier’s rafes on through business do not prove that a local rate is unreasonable, nor can the local rate throw light on the justice or injustice of discriminations between nonlocal shipments of the samé origin and destination.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, § 84.1</p> <p>8, Same--Excess Charges — Heconsignment Privilege.</p> <p>An additional charge by a carrier of two cents per hundredweight for the privilege of reconsigning hay at East St. Louis, originating.in northwestern territory and shipped into southeastern territory, was excessive, within Interstate Commerce Act, § 1 (Act Feb. 4, 1887, c. 104, 24 Stat. 379 |U. S. Comp. St. 1901. p. 3155]) prohibiting excessive rates, and thereby produced an unjust discrimination, in violation of sections 2 and 3.</p>

The appellant (complainant in the court below) sought by its bill to restrain the appellees from using as a trade word the words St. Bernard Alpenkrauter; averring that the use of such trade words by appellees, upon appellees’ bottles, and in üieir advertising, is in the nature of unfair competition with appellant’s medicines, sold for the same ailments, and known as Dr. Forni’s Alpenkrauter.

<p>On Appeal from Taxation of Costs.</p>

<p>1. Patents — Reissue—Invention—Thread-Guides fob Spinning Machines.</p> <p>Tbe Hougbton reissued patent, No. .12,263 (original No. 753,577), for an improved tbread-guide for spinning or twisting machines, was applied for within about four months after the granting of the original patent, which was within a reasonable time, and, in view of the broadened claims which were necessary to cover the actual invention, was a proper reissue. The improvement of the patent, which consists in substituting, for the wooden finger-heads of the prior art, heads made of metal accurately hinged and</p> <p>properly adjusted to a vertical metal strip secured to the face of a doffing-rail, making it possible to change the thread-guide from soft to hard wire, permitting an accurate adjustment of metal parts at the outset, and under such conditions as to secure continued accuracy of position in operation, constitutes a positive advance in the practical art of cotton spinning and twisting, and'discloses invention of such character as to relieve the patent in a measure from the operation of the narrow rules of construction which apply to improvement patents that only slightly advance the art. Olaims 1, 2, 3, and 4, also, held infringed.</p> <p>2. Same — Invention—Substitution of Materials.</p> <p>While the mere substitution of one material for another in a structure does not constitute invention, it is something to be considered on that issue, where it malíes possible changes in other elements of a combination to produce improved operation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 23.]</p>

<p>Patents — Infringement—Elevator Mechanism.</p> <p>The Cole patent, No. 700,740, for a valve mechanism for elevators of the plunger type, designed to secure an automatic slow stop of the elevator in both directions, without affecting the rate of speed in starting cannot be so broadly construed as to cover all means for accomplishing such purpose, but is limited to the means shown, which consists of an auxiliary valve mechanism or what may be fairly considered the equivalent of such mechanism ; but, since the invention is not for a mere improvement, in details of construction, hut represents a new and advanced step in the art, the patent is entitled to a fairly broad construction upon the question of what may be considered equivalent' means. As so construed held not infringed by the mechanism shown in the Larsson patents, Nos. 786,653 and 786,654, which does not contain the essential feature of th© Cole invention, namely, the throttling of a portion of the pilot valva passage by the movement of the main valve when the elevator is stopped, nor means which are equivalent.</p>

<p>1. Patents — Oonstbuotion on Claims — Acquiescence in Limitations.</p> <p>If a patentee acquiesces in the limitations suggested by the Patent Office, and tlie essential elements of the claim are alluded to by reference letters indicating that the Patent Office intended to restrict the claims to tlie particular device described, a claim to a broader scope cannot be maintained.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 244.)</p> <p>2. Same — Infkingement—Neckties.</p> <p>The Davies patent, No, 005,947, for a necktie having “the connections, C, C, secured to the inner face of the hand portion adjacent to each end portion, and provided at their free ends with rings adapted to fit over a collar button,” conceding it to disclose patentable invention, in view of tlie prior art and the action of the Patent Office in suggesting the language of the claim designating the connection pieces by reference letters, which suggestion was accepted by the patentee, must be limited to a tie having connections so secured. As so limited, livid not infringed.</p>

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

<p>Patents — Suits fob Infringement — Accounting.</p> <p>On an accounting for infringement of a patent under Rev. St. § 4921 [TJ. S. Comp. St. 1901, p. 3395J, the defendant’s profits and complainant's damages aro distinct from and independent of each other and are governed by different principles, and one is not tbe measure of the other, and hence both should be fojind, so that complainant may elect between them.</p> <p>[Eld. Note.' — For cases in point, see Cent Dig. yol. 38, Patents, g 569.</p> <p>Accounting by infringer for profits, see note to 50 C. C. A, 8.]</p>

In Equity. Suit to restrain alleged infringement of United States letters patent No. 619,567, dated P'ebruary 14, 1899, to William Hamilton for “face-plate for burial-caskets.”

<p>Patents — Smi fob Infbingement— Pleading.</p> <p>Where a bill for infringement of a patent, in which the patentee and an alleged licensee join as complainants, is challenged by demurrer for misjoinder of complainants, and the bill does not set out the instrument of license nor.allege that it is recorded, it should be produced, that the court may determine its legal effect.</p>

<p>1. Infants — Contracts—Avoidance.</p> <p>A contract of an infant is voidable only; tbe infant being entitled to elect whether or not he will avoid the contract, either during minority or within a reasonable time after he reaches majority.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Infants, § 151.]</p> <p>2. Same — Consideration—Return.</p> <p>On avoiding a contract, an infant must return the consideration, so far as it may be in his possession.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Infants, § 157.]</p> <p>3. Bankruptcy — Preferred Claims.</p> <p>Where an infant obtained a bill of sale from a bankrupt to secure advances, and after his claim of preference by virtue of such bill of sale had been disallowed he elected to disaffirm the same because of his infancy, he was then only entitled to prove his claim for advances as a general creditor.</p> <p>4. Same — Wages.</p> <p>A claimant against a bankrupt’s estate is not entitled to a preference for wages earned more than three months prior to the commencement of the bankruptcy proceedings, as provided by Bankr. Act July 1, 1898, e. 541, ■ § 64, subd. 4, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447].</p>

<p>In Bankruptcy. Motion for new trial, and motion by defendant for judgment notwithstanding the verdict.</p>

<p>1. Customs Duties — Classification—Balata—India Rubbek.</p> <p>Crude balata is “india rubber, crude,” within the meaning of Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 579, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1084],</p> <p>2. Same — “India Rubbeb”~Commercial Designation.</p> <p>The term “india rubber,” in Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 579, 30 Stat. 198 |U. S. Comp. St. 1901, p. 1084], lias a commercial meaning that includes nearly a hundred varieties of inspissated vegetable gums, among them balata, which are used in the manufacture of what are commonly known as “rubber goods.”</p> <p>[Ed. Note. — Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.]</p>

At Law. On motion for new trial. The following is the charge to the jury; The plaintiff, a Are insurance company, having paid $4,375, the sum for which it insured the compress building, and having paid $55,506.92, its loss on 1.150 bales of cotton which were destroyed by Are while in possession of and on the plaiform of the compress company, is now entitled, as the subrogee of the several persons to whom tlie losses were paid, to sue defendant company for damages oil the…

<p>•On Exceptions to Report of Referee.</p>

<p>1. Costs — Suits in Forma Pauperis — Interest of Attorney.</p> <p>Where plaintiff’s attorney was financially interested in tbe result of an action brought in the federal court, plaintiff could not obtain an order permitting him to sue in forma pauperis, as authorized by Act Cong. July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S Comp. St. 1901, p. 706], without a showing that plaintiff’s attorney was also unable because of poverty to give security.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Costs, §§ 502, 508 J</p> <p>2. Attorney and Client — Contract for Services — Construction.</p> <p>A contract between plaintiff and his attorney provided, that plaintiff agreed to pay the attorney in full settlement of his fee an amount of money equal to one-third of any amount recovered in the cause by settlement or otherwise. The contract also stipulated that the attorney should not settle the suit without, plaintiff’s consent for less than tlie total amount sued for, and that the attorney should have full authority to do all such acts as he might deem necessary and proper in the premises, with power to associate or substitute other attorneys with him at his option, field, that the contract provided for a contingent fee, and vested in the attorney a pecuniary interest in tlie suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 5, Attorney and Client, § 353.]</p> <p>3. Costs — Suits in Forma Pauperis — Appointment of Attorney.</p> <p>Act Cong. July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706|, authorizes impecunious persons to prosecute suits in the federal courts without giving security for costs, and section 4 authorizes the court to assign counsel to prosecute the suit on behalf of such plaintiff. Held, that where plaintiff had secured counsel under a contract for a contingent fee, who had commenced the suit, filed pleadings, and prosecuted the case through two mistrials, plaintiff was not thereafter entitled, on the making of an application for security' for costs, to an order rescinding his contract with his attorney and permitting him to sue in forma pauperis and to the assignment of counsel by the court.</p>

<p>1. Conspiracy — 'Wiiat Constitutes.</p> <p>A conspiracy is formed when two or more persons in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a crime or unlawful purpose.</p> <p>|Ed. Note. — For eases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 30-89.]</p> <p>2. Same — Elements—Overt Act.</p> <p>In order to establish a conspiracy to commit an offense against the United States in violation of 1 Rev. St. Supp. (2d Ed.) p. 264, c. 8 [U. S. Comp. St. 1901, p. 86761, there must not only be an agreement or combination to commit a crime or unlawful purpose, but also an overt act apart from the conspiracy, done to carry into effect the object of the original combination.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 38, 30.]</p> <p>3. Same — Knowledge of Guilt — Evidence.</p> <p>Guilty connection of a conspirator may be established by showing association by the persons accused in and for the purpose of procuring the illegal object.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 100-104.]</p> <p>4. Slaves — Peonage—Definition.</p> <p>Peonage is the status or condition of compulsory service tn payment of an alleged indebtedness by the peon to his master.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Slaves, §§ 1, 2.]</p> <p>5. Criminal Law — Credibility of Witnesses — Province of Jury.</p> <p>The jury, being the exclusive judges of the credibility of the witnesses, are entitled to determine for themselves what portion of conflicting testimony is most worthy of belief, though they should endeavor to reconcile and harmonize it, if possible.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1714.]</p> <p>6. Same.</p> <p>In determining the weight to be given to the testimony of a witness, the jury should consider his relationship to the parties, his means of information, and opportunity of knowing the facts to which he testifies, his manner and bearing in testifying, together with his interest in the controversy.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1252.]</p> <p>7. Same — Innocence of Accused — Presumptions.</p> <p>In a criminal case the presumption of law is in favor of the innocence of the accused until his guilt has been established to the satisfaction of the jury beyond a reasonable doubt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 731-737.]</p>

<p>1. Cbiminal Law — Teiae—Defense of Insanity.</p> <p>In a criminal prosecution, where the defendant admits the doing of the act charged, but relies on the defense of insanity, such defense has exclusive reference to the.act charged and to the time of its commission. The legal presumption is that defendant was sane, and it is the duty of . the jury to convict unless on the whole evidence they have a reasonable doubt as to whether defendant when he committed the act was of sufficiently sound mind to know fight from wrong and to form a criminal intent, or to resist the impulse to do the act.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig; vol. 14,- Criminal Law, §§ 53-64, 742-744.]</p> <p>2. Same — Evidence—Exfebt Testimony.</p> <p>While, on the issue as to the sanity or insanity of a defendant charged' with crime, the opinions of experts are admissible, and it is the duty of the jury to give the same due consideration, such opinions constitute only a part oí the evidence and are not controlling, but the jury should form their own judgment on the issue from all the proof in the case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig', vol. 14, Criminal Law, §§ 1045, 1081.]</p> <p>3. Same.</p> <p>Although a defendant admits the acts charged as a crime and relies wholly on the defense of insanity, it is competent for the prosecution to prove sucli acts, the conduct of the defendant previously, at the'time of, and after, the acts, and subsequent statements or confessions made by him, as evidence which may be considered by the jury in connection with the oilier evidence on the question of insanity, as well as affording a basis for hypothetical questions to be propounded to medical witnesses.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 14, Criminal Law, § 700.]</p> <p>4. Same — Opinion Evidence — Nonexperts.</p> <p>The opinion alone of a nonexpert upon a question of insanity is not evidence unless accompanied with a statement of the facts and circumstances within the personal knowledge of the witness upon which that opinion is based.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1045, 1057.]</p>

<p>1. Damages — Breach oe Contract — Compensation — Contemplation op Parties.</p> <p>In an action for breach of contract, the party committing the breach is liable only for such losses as would naturally and probably be in the contemplation of the parties at the time of malting the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 15, Damages, § 58.]</p> <p>2. Sales — Breach op Contract — Damages—Contingent I’iiottts.</p> <p>AYhere defendant purchased certain cotton-seed milling machinery of plaintiff, to he installed ata specified time, and in contemplation thereof purchased large quantities of cotton seed, which deteriorated in value by reason of plaintiffs delay in installing the machinery, defendant was not entitled to recover on a counterclaim losses resulting from the manufacture and sale of the seed products which might not have occurred if the machinery had been installed in timó.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 43, Sales, § 1198; vol. 15, Damages, §§ 72-88.]</p> <p>8. Damages — Reduction on Damages.</p> <p>Where plaintiff contracted to install certain cotton-seed machinery in defendant’s factory within a specified time, and foreseeing that it would be unable to deliver the machinery in time, notified defendant, urging him not to accumulate seed, it was defendant’s duty to reduce its damages to a minimum, and it was not justified in purchasing such improvident quantities of seed that it-was necessary to store same on the ground, exposed to the elements, and charge the damage to plaintiff.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 128-131.]</p> <p>4. Sales — Breach oe Contract — Damages—Subsequent Contract.</p> <p>Where defendant made certain contracts for the sale of cotton-seed products, after the execution of plaintiff’s contract to install certain machinery in defendant’s factory at a specified time, plaintiff was not chargeable with defendant’s losses on such contracts because of plaintiff’s failure to install the machinery within the time.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1198; vol. 15, Damages, §§ 72-88.]</p> <p>5. Same — Measure oe Damages.</p> <p>Where plaintiff failed to perform a contract to install certain cottonseed machinery in defendant’s factory within a specified time, and defendant purchased cotton seed in large quantities, relying on the performance of the contract, the measure of defendant’s damages was the difference between the value of the seed at the time the machinery should have been ready and when it was actually installed.</p> <p>6. Samis — Contract—Breach'—Delay—Reooupment.</p> <p>Where defendant suffered damage because of plaintiff’s delay in performing contract to install certain cotton-seed machinery in defendant’s mill within a specified time, but there was no proof as to the difference in value of defendant’s cotton seed at the time the machinery should have been installed and when it was actually ready, defendant was only entitled to recoup against the purchase price the necessary expense incurred in stirring and airing the seed during the delay, the cost of insurance necessitated thereby, the loss in value of seed damaged by the delay and sold for fertilizer, and the expense of replacing a shaft broken on account of improper adjustment by plaintiff’s servants.</p>

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

<p>Removal op Causes — Procedure Aeter Removal — Matters Determined by State Court.</p> <p>On removal of a cause into a federal court, that court takes it precisely as it finds it, accepting all decrees and orders of flic state court as adjudications, and will not entertain a motion which had been fully presented to and finally decided by the state court before removal.</p> <p>LEd. Note. — Por cases in point, see Cent. Dig. vol. 42, Removal of Cans-es, § 241.</p> <p>Dogal and equitable remedies and proceedings on removal from state court, see note to Utah-Nevada Co. v. De Dainar, 75 C. C. A. 4.]</p>

<p>Customs Duties — -Classification—Sheep Dip — Use.</p> <p>In Tariff Act July 24, 1807, e. 11, § 2, Eree List, par. 657, 30 Stat. 201 [U. S. Comp. St. 1901, p.. 1687], providing for sheep dips, except “compounds or preparations that can be used for other purposes,” the application of this exception is not to be determined by the rule of chief or predominant use of an article as sheep dip; and Cannon’s dip, a preparation advertised as fit for various other purposes, and presumably having commercial value for such purposes, is not covered by the paragraph.</p> <p>[Ed. Note. — Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 C. C. A, 545.]</p>

<p>1. Collision — contributing Faults — Absence of Lookout.</p> <p>The absence of a lookout on a vessel, although a fault, Is immaterial in fixing liability for a collision, where it clearly was not a contributory cause because the other vessel was seen in ample time, so that with proper navigation on the part of both vessels the collision would not have occurred.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 148.]</p> <p>2. Same — Steam and Sailing Vessel — Change of Course by Sailing Vessel.</p> <p>Where a sailing vessel by her unnecessary deviation from her course renders a collision with a steamer unavoidable, the steamer cannot be charged with liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Collision, § 51.]</p> <p>3. Same.</p> <p>A collision at sea in the night between a schooner and a meeting steamer held due solely to the fault of the schooner in changing her course after the vessels had seen each other, and the steamer had so changed her course that there was no danger of collision if the schooner held her course.</p> <p>[Ed. Note. — For cases in point, seo Cent. Dig. vol. 10, Collision, § 51.J</p>

<p>Cross-Appeals from the District Court of the United States for the District of Maryland.</p>

<p>1. Bankruptcy — Surrender of Property — Stipulation—-Performance.</p> <p>Where intervener surrendered possession of property received from the bankrupts which was to be the subject of litigation, on the faith of a stipulation between the intervener and the bankrupt’s receiver, approved by the referee, that intervener should lose no rights thereby, the bankrupt’s trustee should not bo permitted to repudiate the stipulation, though, the receiver and referee may have acted improvidently in, entering into it.</p> <p>2. Chattel Mortgages — Distinguished from Conditional Sale.</p> <p>Intervener contracted in writing to deliver certain goods to the bankrupts prior to their bankruptcy, to be sold by them in the usual course of their business, but that tbe title and right of possession of all such goods and all the proceeds of sales thereof, whether in cash or in book accounts, should be vested and remain in intervener until the purchase price of the goods had been fully paid to it; that, except for the right to resell the goods in the ordinary course of business, the bankrupts should not remove any from the city in which they were doing business; and that they should keep the goods insured for intervener’s benefit. Eeld, .that the bankrupts, not only held such goods"for intervener, but were bound to account for and pay over the proceeds of goods sold as collected, and that the contract was therefore a conditional sale, and not a chattel mortgage.</p> <p>[Ed. Note. — Eor eases in p'oint, see Cent. Dig. vol. 9, Chattel Mortgages, § 23.]</p> <p>3. Bankruptcy — Claims to Property — What Law Governs.</p> <p>Where intervener in bankruptcy proceedings claimed certain property delivered to it u'ust prior to the institution of the proceedings, whether the contract under which intervener claimed was a conditional sale or a chattel mortgage, whether it was valid as between the parties, and the effect of intervener’s failure to record it were questions which were determinable exclusively by the local law.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 273, 275, 276, 277.]</p> <p>4. Sales — Conditional Sales — Record.</p> <p>Under tbe law of Arkansas a conditional contract of sale is valid though it provides that the vendee may sell the property in the usual coui'se of business, and it is not recorded.</p> <p>[Ed. Note, — Eor cases in point, see Cent. Dig. vol. 43, Sales, §§ 1352, 1353, 1384, 1397, 1370.]</p> <p>5. Bankruptcy — Title of Trustee.</p> <p>The bankrupts’ trustees acquire no greater right to property which has been in the bankrupts’ possession than the bankrupts themselves had.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 193, 353, 1384, 1397, 1370.]</p>

<p>In Error to the Circuit Court of the United States for the District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of the Circuit Court, entered upon a verdict in favor of defendant in error, who was plaintiff below. The action was brought to recover damages for the death of plaintiff’s intestate, who was killed by being struck by an engine operated by defendant on its railroad.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal by all parties from a decree of the District Court for the Southern District of New York awarding damages in the sum of $17,363.23 to the libelant for injury to his scow sustained by collision with the Umbria-opposite’Bay Ridge, in the Upper Bay of New York, while the scow was in tow of the tug Matthews. The District Court held both the tug and steamship at fault and adjudged that one-half of the above amount be recoverable against each vessel. Both appeal.</p> <p>The libelant also appeals, insisting that the commissioner and court erroneously disallowed $3,000 paid by it for repairs of the scow. The witnesses as to the collision, with one unimportant exception, were examined before the district judge. The opinion of the district judge, confirming the report of the commissioner upon the question of damages, is reported sub nom. The Umbria (D. C.) 148 Fed. 283.</p>

<p>Appeal from the District Court of the United States for the Eastern District of New York.</p> <p>This cause comes here upon appeal from a decree of the District Court (149 Eed. 790)' holding the steamer liable for injuries sustained by the libelant, who was working upon her as a longshoreman.</p>

<p>Customs Duties — Appraisement—Mixed Wools.</p> <p>White and colored wools were sold together In the Bagdad market at one price, without any distinction as to. color; this being in accord with immemorial practice in that market. Held, that in finding “the actual market value * * * in the principal markets of the country whence imported, and in the condition in which such merchandise is there bought and sold for exportation to the United States,” under Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U. S. Qomp. St. 1901, p. 1924], both kinds of wool should be appraised at the same price, in accordance with the manner of purchase, without regard to any difference in value which may attach to each kind in any other country.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Following- is the opinion of the court below:</p> <p>• WHEELER, District Judge. This is found to be specifically hand-made paper, which is specifically provided for under paragraph 401 of the act of 1897, and is not such as was under consideration in Miller v. U. S. (O. C.) 128 Eed. 469, although the remark there made would cover it, as held by the Board. That remark as made by me does not appear to have been sound, and was not essential to the decision, and was not approved by the mere affirmance of the decision. The question seems to be still open, and the specific designation must govern. The decision of the Board brought about apparently by that remark, therefore is erroneous.</p>

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

Fahy. The Fahy was sunk by reason of the negligence of the tugs Overbrook and Media in towing her upon the rocks near St. George, Staten Island. The claimant of the Fahy brought in the tugs under the fifty-ninth rule in admiralty. The District Court dismissed his petition with costs and the claimant has appealed to this court, insisting that the Fahy should be absolved and the tugs Overbrook and Media held for the libelants’ damages.

Cross-Appeals from the Circuit Court of the United States for the Southern District of New York. Cross-appeals from order of the Circuit Court, reversing the decision of the Board of General Appraisers (G. A. 6,142, T. D. 26,687), who had affirmed the action of the collector in his assessment of duty on certain merchandise under the act of 1897. The opinion of the court below is reported in 144 Fed. 707.

<p>1. Shipping — Charters—Constetiction—Dbedses.</p> <p>Where a dredge charter provided that the dredge should be able to deposit on shore an average of 300 cubic yards of material per hour, the owner merely warranted the dredge’s capacity, and not that the dredge should in fact deposit that quantity of material.</p> <p>2. Same — Evidence.</p> <p>In a libel for the hire of a dredge, evidence held insufficient to show that the dredge did not pump 300 yards of material per hour, according .to its warranted capacity.</p> <p>3. Same — Charter—Construction.</p> <p>Where a dredge charter provided that it should be used as the charterer or his agents might direct in dredging material and putting the same ashore on the meadows adjoining the Passaic and Hackensack rivers, or at such, other localities as the charterer might direct, the charter did not cover dredging material not ordinarily found in such operations, and for which such a dredge as that chartered by reason of its peculiar construction was not adapted.</p> <p>4. Admiralty — Appeal-—-Evidence—Admission—Prejudice.</p> <p>Where, upon a proper construction of a dredge charter, it did not cover the dredging of material not ordinarily found in such dredging operations, and for which a dredge of that construction was not adapted, the charterer, in a libel for the hire of the dredge, was not prejudiced by the admission of representations made by one of its officers as to the character of the material which was to' be dredged.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon appeal from a decision of the Circuit Court, which reversed a decision of the Board of General Appraisers (Ga. 5,985 [T. D. 26,210]), sustaining the reliquidation of duties on certain cotton goods.</p> <p>The opinion of the court below is as follows:</p> <p>WHEELER, District Judge. These are cotton goods which were assessed at 45 per cent, under paragraph 322 of the act of July 24, 1897, c. 11, § 1, Schedule I, 30 Stat. 179 [U. S. Comp. St. 1901, p. 1661]. They were countable under paragraphs 304 to 309, and on protest and appeal reliquidation was ordered : “(2) That where the particulars of count of threads, condition, weight, value, etc., necessary to reliquidation, can he ascertained from the invoices, samples, or record, reliquidation will proceed at the applicable rates thus ascertained ; that as to all items and cases wherein these cannot be ascertained from the invoices, samples, or records, the statutory particulars above stated, or any of them, sufficient for reliquidation at the appropriate rate, such re-liquidation is, for want of proof in support of the protests, denied, but in such cases reliquidation at the rate of 40 per cent, ad valorem, the minimum rate applicable to such goods as countable cottons, will follow.” On reliquidation the collector reported: “I have to state that the entries in question w.ere reliquidated in strict conformity with the decision of the Board of Appraisers of May 27, 1904, supra, and in the reliquidations, .as the invoices failed to state whether'the merchandise was bleached, unbleached, or colored, this office applied the rate of 40 per centum ad válorem, as directed by the Board in the second holding of said decision.” .</p> <p>This appears to have been done upon the record, so called, as it came from the Board, without examining or considering the government samples; and the importers within 10 days from the reliquidation protested against this rate of 40 per cent. The protests are said not to have been in time, but they appear to have been within 10 days of this assessment of 40 per cent.</p> <p>The statute requires one package of every invoice and at least one of every ten to be designated, opened, 'examined, and appraised, and ordered to the public stores for examination. Rev. St. § 2901 [TJ. S. Comp. St. 1901, p. 1921], These packages belong to the collector for the purposes of classification and appraisal, and he could not be without means more or less convenient for making these appraisals. The protests against the reliquidation at 40 percent. seem to be well founded and in due time; and it is not easy to see why the highest duty in a varying schedule should be laid for mere want of description.</p>

<p>In error to the Circuit Court of the United States for the District of Rhode Island.</p> <p>William P. Sheffield, Jr., and William R. Harvey (Max Revy, on the brief), for plaintiff in error.</p> <p>Charles A. Wilson, U. S. Atty., and Amasa M. Eaton, for the United States.</p>

Appeal worn the Circuit Court of the United States for the Southern District of New York. The decision below reads as follows: WHEELER, District Judge. These aro mushrooms dried wholly by evaporation, without other treatment, and imported in large zinc-lined boxes for protection and convenience in transportation. They appear to be “vegetables in their natural state,” as classified (Kraut v. TJ. S. fC.

This cause comes here on appeal from a judgment affirming the decision of the Board of General Appraisers, G. A. 6,253 (T. D. 26,-968), which affirmed the action of the collector. The decision below reads as follows: WHEELER, District Judge. These are mushrooms cleaned, sliced, and dried on sieves in the sun.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>For decision below, see 148 Fed. 333, affirming a decision of the Board of United States General Appraisers (G. A. 5,787 [T. D. 25,-577]), which had affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The articles in controversy consist of Singapore pineapples in tin cans. They were classified as “fruits preserved in sugar,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 263, 30 Stat. 171 [U. S. Comp. St 1901, p. 1651], and were claimed by the importers io be dutiable under the provision in the same paragraph for “pineapples preserved in their own juice.” The Board of General Appraisers found that cane sugar had been added in the preserving process in quantities varying from 2.28 to 8.82 per cent, and affirmed the assessment of duty, on the basis of the conclusions stated as follows in the Board’s opinion:</p> <p>“Somerville, General Appraisers. We are disposed, therefore, after due consideration, to adopt the following principles for the classification* of goods of this kind: (1) Where the chemical analysis shows not over 14 per cent, of total sugar, including both invert and cane sugar, and the chemist expresses no expert opinion on the subject, the goods are prima facie subject to classification as pineapples preserved in their own juice and not in sugar, and are therefore dutiable at' 25 per cent, ad valorem» under the last clause of Said paragraph 263. (2) Where the percentage of total sugars runs over 14 per cent, and there is no expert opinion expressed by the chemist as to whether or not cane sugar has been extrinsically added, the probability is nevertheless that such cane sugar has been added, and the goods are, accordingly, pineapples preserved in sugar, and are dutiable at 35 per cent, ad valorem and one cent per pound, under said paragraph 263.”</p>

<p>Injunction — Receiver of .National Bank — Direction to Retain Fund Pending Suit.</p> <p>When a party asserts the ownership of property, or a specific lien thereon; it is within the discretion of the trial court to retain the property within its jurisdiction until the questions at issue can be determined, even though such property is a fund in the hands of the receiver' of a national bank and an injunction is necessary to restrain him from transmitting it to the Comptroller of the Currency in the usual course as required by statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 86-90.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>In the decision below the Circuit Court reversed a decision of the Board of United States General Appraisers (G. A. 5,954; T. D. 26,109), which had affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The opinion of Wheeler, District Judge, in the Circuit Court reads as follows:</p> <p>This is an oil expressed from uiger seed, and comes under paragraph 3 of the act of 1897 (Act July 24, 1897, e. 11, § 1, Schedule A, 30 Stat. 15J [U. S. Comp. St. 1901, p. 1627]), where it was assessed, unless it is “commonly used in soap making” and is “fit only for such use,” under paragraph 568, § 2, Free List, 30 Stilt. 198 [U. S. Comp. St. 1901, p. 1684|. The Board found that it was scarcely known in this country, and failed to find that it was commonly used in soap making, and found that it is fit for other uses, apparently as a lubricant, an illuminant, and an adulterant of other oils, and affirmed the assessment. The evidence taken in this court shows that it is commonly used in soap making in this country, and that it can be used for these other purposes. But that is not the true test. The question is whether it is fit for other uses, and it does not appear to be. It would have to bo refined for an adulterant, is too sticky for a lubricant, and too gummy for an illuminant.</p>

<p>1. Patents — 1Term—Expiration of Foreign Patent.</p> <p>The rule applied that a patent is not exempted from tlxe operation of Rev. St. § 4887 [U. S. Comp. St. 1901, p. 3382], making it expire with a. prior foreign patent for the same invention, because there may be differenees in detail between the devices of the two patents, unless such' differences affect the essence of the invention in a patentable sense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 188%. See Westinghouse Co. v. Stanley Instrument Co., 138 Fed. 823, 71 C. C. A. 189.]</p> <p>2. Same — Electric Meter.</p> <p>The Thomson patent, No. 448,894, ‘for an electric meter, expired on July 8, 1904, with the British patent for the same invention.</p>

This cause comes here on defendant’s appeal from an interlocutory decree of the United States Circuit Court for the Northern District of New York on final hearing, sustaining the validity, and finding infringement by defendant, of the first and third claims of complainant’s patent, No. 469,809, granted to it as assignee of William Stanley, Jr., on March 1, 1892.

<p>Patents — 'Validity and Infringement — Pipe Coupling.</p> <p>The Dresser patent, No. 625,155, for pipe coupling designed to unite the ends of sections of pipe and to insulate them from each other to prevent electrolysis, was not anticipated and discloses invention. Also held infringed.</p>

This cause comes here by appeal from a decree of the United States Circuit Court for the Southern District of New York, dismissing the bill alleging infringement of complainant’s patent No. 483,511, granted September 27, 1892, to Hugo Cook, for improvements in cash registers and indicators. The opinion of the court below is reported in 148 Fed. 385.

J. Wilson for improvements in electric railway signals. The bill alleges infringement of 53 claims of these patents, but the discussion on this appeal has been limited by stipulation of counsel to the consideration of 6 claims only. The operation of the injunction was suspended pending appeal.

<p>Habeas Corpus to Test the Validity of Imprisonment of Bankrupt.'</p>

<p>Shipping — Suit, for Nondelivery op Cargo — Costs.</p> <p>Where a vessel stranded oil a voyage near her port of delivery, and on being released some days later started back with the intention of delivering the cargo back to the consignors, in violation of the contract of carriage, the consignees were entitled to sue the. vessel in admiralty to recover the cargo and damages for its nondelivery, and a delivery of the . goods to libelants pending the suit and a receipt for the same, releasing ’ the vessel and master from claims for damages, do not relieve the vessel from payment of the costs where the receipt expressly provided that the settlement should not have that effect.</p>

<p>Bankruptcy — Temporary Receiver — Perishable Property — Sale.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 2, subd. 3, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3421], authorizing the appointment of a temporary receiver “for the preservation of the estate,” such receiver had power to sell perishable property ii^ his hands in order to prevent loss thereof.</p>

<p>Customs Duties — Classification—Evergreen . Seedlings — “Evergreens.”</p> <p>In Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 252, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1650], the provision for “evergreen seedlings” is not restricted to such evergreen plants as the conifers and box, but extends to those that retain their verdure or greenness throughout the year; and seedlings of rhododendrons and laurels, that remain green constantly, are included in said provision.</p>

<p>1. Railroads — Equipment of Cars — Safety Appliances — Violation of Statute — Penalty—Enforcement—Pleading.</p> <p>An action by the United States against a railroad company to recover penalties for violations of the safety appliance act of March 2, 1893 (27 Stat. 531, c. 196 [U. S. Comp. St. 1901, p. 3174]), is one of debt, and in such an action brought in North Carolina, where the pleading is governed by the state practice, it is not necessary that the complaint should allege a specific date in describing the violations.</p> <p>[Ed. Note. — Conformity of practice in common-law. actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594, and Nederland Life Ins. Co. v. Hall, 27 C. O. A. 392.]</p> <p>2. Same — Burden of Proof.</p> <p>In an-action to recover penalties from a railroad company brought under section 6 of the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 53 [U. S. Comp. St. 1901, p. 3174]), as amended by Act April 1, 1896, c. 87, 29 Stat. 85, the burden rests upon the defendant to bring itself within the proviso, excepting from the provision of the act four-wheeled standard logging cars.</p> <p>[Ed. Note. — Duty of railroad companies to furnish safe appliances, see note to Eelton v. Bullard, 37 C. C. A. 8.]</p> <p>3. Same — Pleading.</p> <p>In such an action, it is not incumbent on the plaintiff to allege and .prove that the defendant had not used due care or ordinary diligence in-making an inspection or in repairing such defects as that inspection may have disclosed; the purpose of the statute being to make a railroad company liable unconditionally for its violation.</p> <p>4. Commerce — Railroad Regulation — Safety Appliance Act — Constitutionality.</p> <p>The federal safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), as amended by Act April 1, 1896, c. 87, 29-Stat. 85, and Act March 2, 1903, e. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1905, p. 603], is within the constitutional power of Congress to regulate-interstate commerce.</p>

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

In Equity. On demurrer to bill. The complainant has heretofore and for a long time been engaged in the manufacture of a preparation designed and used as a first or priming coat upon inside wood finish, commonly known as a first coater or wood filler.

<p>Bankruptcy — Conditional Sales — Validity.</p> <p>Where conditions reserving title in the seller, printed on the hack of contracts for the sale of wagons to a bankrupt, which the seller knew were to be resold in the course of the bankrupt’s business, were not called to his attention at the time the contracts were made, and the bankrupt testified that he had no knowledge of such printed conditions until his attention was called thereto by his trustee in bankruptcy, the contracts never having been recorded, the title to the wagons passed to the trustee in bankruptcy as against the seller; such conditional provisions being fraudulent and invalid as against the bankrupt’s creditors.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 199.]</p>

<p>1. Collision — Steamer and Pilot Boat — Duty op Steamer.</p> <p>A steamer approaching a pilot boat fulfills her entire duty by maintaining a reasonable speed and a fixed course after the vessels are so near together that a change might embarrass the pilot boat in her endeavor to approach.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 43, 44.]</p> <p>2. Same — Negligent Navigation op Pilot Boat.</p> <p>Tiie sinking of a schooner pilot boat at sea in the night by being run down by a steamer hold due solely to the fault of the pilot boat in so changing her course as to cross the steamer’s bow, and in leaving the wheel lashed while the pilot went below, leaving no lookout.</p> <p>[Ed. Note. — For cases in point see Cent. Dig. vol. 10, Collision, § 50.]</p>

<p>1. Bankruptcy — Fraudulent Transfer.</p> <p>A bankrupt shoe dealer sold his entire stock, receiving $3,850 therefor, which was given to his wife. She testified that she did not understand the matter, and did not remember whether she received any money, though early on the morning after the sale she met her brother, told him of the sale, and shortly thereafter the brother deposited, with a trust company $3,070, which he testified was obtained from his brother-in-law, W., in repayment of certain loans which neither were able to identify. Thereafter the wife’s brother, on being served with a subpoena in bankruptcy for his examination, called, on IV., and gave him a check for $2,500 without solicitation, which check was immediately certified and paid. Held, that the transaction was a scheme to defraud the bankrupt’s creditors, and that the fund would be ordered paid, over to the trustee.</p> <p>LEd. Note.' — For cases in point, see (lent. Dig. vol. 6, Bankruptcy, § 274-1</p> <p>2. Same — Summary Proceedings.</p> <p>Where the proceeds of a sale of a bankrupt’s business were found to be in possession of certain persons, who were a mere cover or receptacle for the property to conceal it and prevent it being readied by the bankrupt’s creditors, it was recoverable by summary proceedings: the trustee not being required to resort to a plenary suit for that purpose.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 447J</p> <p>On the night of March 17, 1907, the bankrupt, a shoe dealer, sold his entire stock, receiving therefor '$3.850, which, it was alleged, was given to his wife, O. The latter testified she was suddenly called to the store, where she saw several strangers, but was so excited she was unable to understand what was transpiring, and she could not remember whether she received any money. Early the next morning she met her brother, L. — a Coney Island photographer, in a small way of business — at the Manhattan entrance of Brooklyn Bridge, by accident, as she testified ; told him of the sale, and that her husband had gone away; whereupon L. returned to Coney Island to search for the bankrupt, and O. returned borne. A notary public, who drew the. bill of sale, testified that O. received the money. On March tilth, D. deposited in cash in a trust company at Coney Island the sum of $3,070, which he testified was obtained from W.. his brother-in-law, in repayment of loans made at various times several years past, though the exact dates of such loans were unknown, as he kept no record, and that they were made in cash, although L. kept a bank account. W. testified that he borrowed said moneys, but, however, could give no details, as he kept no record thereof, and further stated that he repaid, the full amount in cash to L. ón March lfith. On March 26th, after being served with a subpoena in bankruptcy for his examination, L. called on W., and gave him $2,500 by check, which L. testified he did not need and was willing to loan to W. again, though the latter had not requested such loan. The check was immediately certified, and W. received the cash.</p>

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

<p>At Law. Motion under section 724, Rev. St. U. S. [U. S. Comp. St. 1901, p. 583], to require the production before trial and deposit with the clerk for defendant’s inspection of a great number of books and papers the property of defendant now in its custody and concerned with details of its business. The action is for treble damages under the Sherman anti-trust act.</p>

Petition • to Superintend and Revise Proceedings from the District Court of/the United States for the Southern District of Florida.

This was a creditors’ bill brought by George F. Perkins against Clara. J. Gibbs, Albert L. Gibbs, her husband, the Cloquet Lumber Company, and several other defendants alleged to have some interest in the lands in controversy, to set aside certain deeds made by the judgment debtor as fraudulent.

<p>1. Evidence — Judicial Notice — Recobds oe Same Coubt.</p> <p>The rule applied that a court is entitled to take judicial notice of its own records, especially where the facts constitute a part of the same litigation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 62-65.]</p> <p>2. Appeal and Ebbob — Appealable Obdee — Contempt Proceeding.</p> <p>The rule applied that an order of a Circuit Court, adjudging the defendant in a suit for infringement of a patent in contempt for violation of an injunction granted therein, and imposing a fine for the benefit of the complainant, is civil in its nature, and constitutes a part of the proceedings in the case, and, where entered after final decree, is appealable to the Circuit Court of Appeals.</p> <p>S. Same — Review—Assignment of Ebeoes.</p> <p>Held, that the ordinary rules in reference to the limitation after mandate of the powers of a court appealed from do not apply here, because no proposition with reference to them was made in the court appealed from; and consequently the Circuit Court of Appeals declined to revise a proceeding in the Circuit Court with reference to the violation of an interlocutory injunction, which proceeding occurred after the reception of the mandate dismissing the suit.</p>

On Application for Review of a decision of the Board of United States General Appraisers. Held: at which much additional evidence was introduced. But the majority of the Board held, in Re Stirn, G. A. 6,275 (T. D. 27,057), that the new evidence would not warrant a departure from the rule of the previous decision.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>The following is the opinion of Hough, District Judge, in the court below:</p> <p>The legal question here to be decided offers as a basis for adjudication very few and simple facts.</p> <p>Within four months of the. petition filed against the bankrupt herein the same man was at the same time the president of the bankrupt corporation, and an agent and director of an entirely different corporation. The bankrupt being already insolvent, this person on several occasions applied the funds _ of the corporation for which he was agent to the uses and purposes of the' bankrupt, passing such funds through the bankrupt’s bank account. Neither as agent nor director had he any authority to do what he did, and what he did do amounted in plain language to theft. The money under his control was in New York, and the headquarters of the corporation for which he was agent were in St. Louis, where also all its officers resided or had their place of business. When this man realized that bankruptcy of the corporation of which he was president was inevitable, he converted into cash a considerable portion of the bankrupt’s assets, and repaid to himself as agent for the. St. Louis corporation the amount which he had practically stolen. None of the officers of the defendant (the St. Louis corporation) had the slightest'knowledge that their New York funds had either been taken or replaced until months after the bankruptcy was flagrant. The trustee in bankruptcy now asserts that the repayment of. the stolen money constitutes a voidable preference under secion 60 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]).</p> <p>It is admitted that, in order to constitute a voidable preference,' either (a) the person receiving the preference; or (b) the-person to be benefited by the preference, or (c) “his agent acting therein” shall have had reasonable cause to believe that a preference was intended by the payment or transfer complained of. Assuming that the performance above outlined comes within the purview of the bankruptcy act at all, it must be admitted that neither “the'person receiving” the payment in question, nor the person “to be benefited thereby,” had, or had reasonable cause to have, the guilty knowledge which is the basis of a voidable preference.</p> <p>This whole claim rests upon the proposition that the man who took the money from the defendant was the agent of the defendant in respect of the repayment, and that, inasmuch as the payment constituted a preference under section 60a, the words “his agent acting therein” bring the matter within the prohibition of section 60b. It is candidly admitted in the able argument for the plaintiff that the rule which charges the principal with his agent’s ‘knowledge is subject to exception in cases where the agent is acting in fraud of his principal in the very transaction wherein he has knowledge or gets notice. As was said in De Kay v. Hackensack Water Co., 38 N. J. Eq. 161: “Where an officer of a corporation deals with the corporation in a matter in which his interest is opimsed to the interest of the corporation, he does not in such transaction represent the corporation so as to make his knowledge the knowledge of the corporation.” It is not, of course, argued that the person out of whose wrongdoing this claim arose was the agent of the defendant in permitting its money to flow into the coffers of the bankrupt; but it is strenuously urged that,-when it came to repaying that money (by such repayment probably saving himself from criminal prosecution), the same man became unce more the defendant’s agent. But the whole transaction, including payment and repayment, was something of which the defendant had no knowledge whatsoever, and as to which the law expressly repudiates any imputation to the corporation of a dishonest director’s knowledge. It does not appear to me to be possible for a person to be not the agent of a corporation in a swindle on that corporation, and to be the agent of the same corporation in effecting reparation thereof, when both swindle and reparation remain entirely unknown to the corporation affected. If this case had arisen under the act of 1867, it cannot I think be doubted that Lindsey v. Lambert Building Association (H. C.) 4 Fed. 48, would have required judgment for the defendant. The reasoning of that case is entirely satisfactory to me, and I fail to perceive that tt« words of the present statute “or his agent acting therein” require a different decision.</p> <p>In order to make those words applicable, the person whose knowledge is to be imputed to the defendant must be (a) an agent, and (b) he must be an agent authorized or empowered to act in respect of the preference, and (c) he must actually perform the duties of his agency in respect of the preference. How a man can have an agent empowered to act in a matter which could never arise without the commission of a flagrant moral wrong (if not a technical crime) by the alleged agent I cannot perceive; and to presume that a person appoints an embezzler to recover the amount embezzled is, I think, an application of the maxim regarding “setting a thief to catch a thief,” which exposes the. law to ridicule. The cases of Nisbit v. Macon 1! & T Oo. (C. O.) 12 Fed. (386, and Crooks v. People’s National Bank, 72 App. Div. .‘331, 76 N. Y. Supp. 92. 495 (affirmed 177 N. Y. 68, 69 N. E. 228), do not appear to me to affect this case. They both lack that element of secret dishonesty on the part of the person sought to be treated as an agent, which is, I think, the ruling consideration here.</p> <p>I regard this case as suitable for the consideration of the appellate court, and have thought it sufficient, therefore, to indicate briefly the reasons which lead me to direct judgment for the defendant.</p>

For former proceedings in this case, see (C. C. A.) 151 Fed. 473, reversing (C. C.) 137 Fed. 971, as to an importation at the port of New York. It was there held that, when an importer is sued for unpaid duties, he cannot defend oil Che ground that the duties were improperly assessed; that under Customs Administrative Act June 30, 1890, e. 407, § 14. 26 Stat. 137 [U. S. Comp.

This cause comes here upon appeals from a decree of the District Court, .’Southern District of New York, which held both vessels in fault for a collision between the Whitney and libelant’s canal boat Emergency, in tow of the Bavier, which happened in the East river opposite Wallabout Bay, and to the south of Corlear’s Hook, August 16,1904, at about 6 p, m.

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

<p>Admieamt — Peooeduee—.Toindee of Claims in Rem and in I’ehsonam.</p> <p>Under admiralty rule 46, tile court may permit the joinder in an action in tort for a personal injury of a claim in rem against a vessel and one in personam against stevedores, although the latter are neither master nor owner of the vessel, where the injury is alleged to have resulted from the joint negligence of both, and the joinder will best subserve the ends of justice.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 298.]</p>

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

<p>Principal and Surety — United States — Bond of Contractor for Government Work — Release of Surety’.</p> <p>The giving of a note by a contractor for government work for thearuount of an account rendered for materials furnished does not release the surety on Ms bond, given pursuant to Act Aug. 13, 1894, e. 280, § 1, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523], from liability for such, material an action on the bond being based on the account, and not on the note.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 40, Principal and. Surety, §§ 219-222.]</p>

<p>In Bankruptcy.</p>

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

<p>1. Master and Servant — Fraudulent Breach oe Contract by Servant.</p> <p>Or. Code S. C. 1902, § 357, providing that' any laborer working for a share of a crop, or for wages in money or other valuable consideration, under a contract to labor on farm land, who shall receive advances either in money or supplies, and thereafter willfully and without just cause fail to perform the reasonable services required of him by the terms of the contract, shall be liable to prosecution for misdemeanor and punished by imprisonment, etc., constituted an attempt to secure compulsory service in payment of a debt, which was not within the state’s police power to create and punish offenses.</p> <p>2. Constitutional Law — Equal Protection oe Laws.</p> <p>Such section, being intended to cover agricultural laborers only, was invalid as a violation of the equality clause of the fourteenth amendment of the federal Constitution.</p> <p>3. Same — Slavery.</p> <p>The act also authorizes the creation of a system of peonage or involuntary servitude, in violation of the federal Constitution, Amend. 13, declaring that neither slavery nor involuntary servitude, except as punishment for crime whereof the parties have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.</p>

<p>1. Carriers — Violation of Interstate Commerce Act — Refusal to Make Switch Connections.</p> <p>The provisions of Interstate Commerce Act Feb. 4, 1887, c. 104, § 3, • 24 Stat. 380 (U g. Comp. St. 1901, p. 3153], making it unlawful for any common carrier engaged in interstate commerce to give any undue or unreasonable preference or advantage to any particular skipper, or to subject any particular shipper to any undue or unreasonable prejudice'or disadvantage in any respect whatever, if construed to apply to the affording of facilities for shipments, do not subject a railroad' company to indictment under section 10 of the act for its failure or refusal to furnish switch connections to a skipper tendering interstate traffic for transportation, although such connections are furnished to other shippers, where the indictment does not charge that those demanded are reasonably practicable and could be put in with safety and would furnish sufficient business to justify the expense of their construction and maintenance, nor that the person or company asking for the same‘offered to pay such portion of their cost as is usual and reasonable.</p> <p>(Ed. Note.-Duties and liabilities of carriers as to furnishing facilities for transportation, see note to Harp v. Choctaw, O. & G. R. Co.,° , Cl C. C. A. 414.]</p> <p>2. Indictment — Description of Offense — Using Language of Statute.</p> <p>While the offense may be set forth in an indictment in the general language of the statute, it must be accompanied by a statement of ail the particulars necessary to show the commission of the crime without uncertainty or ambiguity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 2Ü3.J</p> <p>3. Carriers — Discrimination Against Shipper — Indictment for Failure to Furnish Oars.</p> <p>An indictment against a railroad company, based on Interstate Commerce Act Feb. 4, 1887, c. 304, § 3,'24 Stat. 380 [TJ. S. Comp. St. 1901, p. 3155], which charges generally that defendant did knowingly and unlawfully grant, give, and practice an unreasonable and unjust discrimination, in respect of the transportation of property in interstate commerce, by failing and refusing to grant, give, and furnish to a particular coal company its proper and rightful share and quota of cars and motive power, which it was justly and of right entitled to receive from said defendant, and by granting, giving, and furnishing to certain other coal companies and other persons, firms, and corporations more than their respective shares and quota of cars and motive power, to the undue and unreasonable prejudice and disadvantage of the first named company, does not allege a violation of that part of the section relating to the giving of an undue or unreasonable preference or advantage to any particular person, company, or locality, or to any particular description of traffic; nor does it sufficiently charge that defehdant subjected any particular company or any particular description of traffic to any undue or unreasonable prejudice or disadvantage, where it alleges no facts showing the rightful share or quota of cars and motive power to whifeh the coal company charged to have been so prejudiced was entitled, or that such company at the time charged was prepared to make shipments and tendered the Same and made demand for cars and motive power for their transportation in interstate commerce.</p>

<p>1. Collision — Burdened Vessel — Steamer and Tug with Tows.</p> <p>As between a steamer and a tug with a cumbersome tow, the latter has the right of way, and upon the steamer is imposed the responsibility of exercising extra precaution to avoid collision.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 75.]</p> <p>2. Same — Defense to Liability.</p> <p>Precautions required by law to be taken when there is risk of collision must he taken in time to be effective against sucb risk, or they will constitute no defense to liability if collision occurs. ■</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 10, Collision, § 15.]</p> <p>8. Same — Tow on Wrong Side of Channel.</p> <p>The fact that a tug with a large tow was on the wrong side bf the channel, if admitted, would not prevent a recovery for a collision with a meeting steamship which, having the tug and tow in full sight in the daytime for a distance of 2% miles, violated her plain duty to keep out of the way, as she might readily have done.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 34.]</p> <p>4. Same — Contributory Fault — Evidence to Establish.</p> <p>Where the vessel on which rested the barden to avoid a collision was chargeable with faults sufficient in themselves to account for the collisiou which occurred, she cannot escape liability on the suggestion of possible faults on the part of the other vessel, which is entitled to the benefit of all reasonable doubts.</p> <p>[Ed. Note. — Eor cases'in point, see Cent. Dig. vol. 10, Collision, § 42.]</p> <p>5. Same — Evidence Considered — Stjcamjbb and Meeting Tow.</p> <p>A tug with seven barges in tow passing down Elizabeth river in the daytime found it necessary to cross to the western side of the channel in order to take her tow to an anchorage on the Newport News flats, and had passed entirely out of the deep-water channel with all of her lows, except the last, which was still from 125 to 150 feet in the channel, when it came into collision with the steamship Westhall passing up the channel. The channel was at the place 500 feet wide, and the tow had been in view of the Westhall for a distance of 2% miles. The wind was from the west, and the tide flood, which somewhat retarded the movement of the tow to the westward. Hold, that it was the duty of the Westhall to either stop at a safe distance until the barge was clear of the channel or to keep 16 the eastward, as she could easily have done, and that she was solely in fault for the collision.</p>

<p>Shipping — Charter Party — Dead Freight.</p> <p>Where a provision Is made in a charter party that it shall be superseded by the bills of lading, and an adjustment is made between the charterers and the master before the sailing of the vessel and bills of lading are signed showing that uo dead freight is due, it cannot be afterwards recovered by the owner from the charterers.</p>

<p>Collision — Vessel Lying at Pier — Projecting Anchor.</p> <p>A schooner lying in a slip, with her anchor projecting slightly beyond the rail toward the stem, but not so as to protrude beyond her side at the widest part, held not liable for an injury to a barge by collision with such anchor while being pushed past the schooner by a tug, where the anchor could plainly be seen and would not have touched the barge if care had been taken by the tug.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 10, Collision, § 101.]</p>

<p>In Error to the Circuit, Court of the United States for the Western District of New York. Judgment was entered upon a verdict in favor of the defendant. The cause has been twice tried. The first trial also resulted in a verdict for the defendant, but a new trial was ordered by this court because of error in the admission of testimony offered by the defendant upon an erroneous issue of fraud. The opinion on the first writ of error is reported in 140 Fed.-529, 72 C. C. A.- 45.</p>

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

<p>In Error to the Circuit Court of the United States for the Southern District of New York. A judgment for $3,802.29 was entered in the Circuit Court for the Southern District of New York, upon a verdict directed by the court in favor of defendant in error, who was plaintiff below.</p>

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

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

<p>Appeal from the District Court of the United States for the Southern District of New York. A decree of the District Court held the tug and the barge Thomas L. Parker both in fault for a collision between the latter and a mud scow in tow of the tug. The opinion below is reported in 141 Fed. 690, and sets forth the facts quite fully.</p>

<p>Motion to Punish for Contempt.</p>