Volume 154 — Federal Reporter

The majority and dissenting opinions of the Board of General Appraisers read as follows: Waite, General Appraiser. The merchandise in question consists of sugar drainings, upon which duty was assessed at the rate of six cents per gallon under the provisions of paragraph 209 of the act of July 24, 1897, c. 11, § 1. 30 Stat. 1(58 [U. S. Comp. St. 1901, p. 1(547]. The rate of duty to be assessed is determined by polariscopic test.

The following is the opinion of the District Court: HOLT, District Judge. These suits are brought to recover damages for a breach of an alleged contract for the transportation of passengers. In June, 1904, the owners of the steamship Pennsylvania chartered her to the Nautical Preparatory School for one year from June 1, 1904, for $3,000 a month. The Nautical Preparatory School was a corporation organized to conduct a boys’ school on shipboard.

This cause comes here upon writ of error to review a judgment of the Cirbuit Court, Southern District of New York, entered upon a verdict in favor of the defendant in error; who was plaintiff below, in an action to recover a loss by fire under a policy of insurance.

<p>1. Bankruptcy — Attorney’s LIENS — Oeder.</p> <p>Where an order was made in bankruptcy proceedings pending a motion to dismiss the proceedings before adjudication directing the bankrupt to deposit $50,000 to stand as security for the payment of all disputed claims, the cost of the proceedings and all attorney’s liens or equitable assignments, etc., such order protected any lien which the attorney for the petitioning creditors might have for his services.</p> <p>2. Attorney and Client — Lien on Cause op Action.</p> <p>In the absence of a statutory provision, an attorney has no lien on his client’s naked cause of action; his right being limited to the fruits of the litigation.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 399-406.]</p> <p>3. Same — Settlement Between Parties.</p> <p>A client may settle a controversy with the opposite party against the consent of his attorney either before or after action brought, unless the settlement is made for the purpose of depriving the attorney of his claim.</p> <p>[Ed. Note. — -For case^ in point, see Cent. Dig. vol. 5, Attorney and Client, §§ 407-417.]</p> <p>4. Courts — Federal Couets — State Statutes — Attorney’s Liens — Enforcement.</p> <p>Code Civ. Proc. N. X. § 66, creating an attorney’s lien on the client’s . cause of action, etc., and providing for the enforcement thereof on petition, was not a mere practice act, but created a right and provided a remedy for its enforcement, and was therefore controlling on the federal courts sitting in such state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 939-949.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>5. Bankruptcy — Deposits—Petitioning Creditors — Attorney’s Liens — Extent.</p> <p>Pending bankruptcy proceedings against a corporation all its claims, except those amounting to about $50,000, were settled, and an application made to dismiss the proceedings, which was denied, with leave to renew, and an order made directing the corporation to deposit $50,000 to stand as security for disputed claims, cost of bankruptcy proceedings, attorney’s liens, or equitable assignments, etc. Hold, that the attorney for the petitioning creditors was entitled to a lien which extended to all the demands of creditors who were settled with after the attorney’s formal appearance in the proceeding in their behalf, under N. Y. Code Civ. Proc. § 66, creating an attorney’s lien on his client’s cause of action, claim, or counterclaim, and the proceeds thereof, in. whosesoever hand they may come, not affected by any settlement between the parties before or after judgment or final order.</p>

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

The case involves the construction of Customs Administrative Act June 10, 1890, e. 407, § 15, 26 Stat. 138 [IT. S. Comp.

<p>Insurance — Construction or Policy — Avoidance jtor Breach or Condition.</p> <p>A singlo standard form of fire insurance policy adopted by a state cannot be construed as intended for use only in the insurance of real property alone or personalty alone, but may be used for the joint insurance of both, and, where so used, a provision that it shall be void, “if the subject of insurance be personal property and be or become incumbered by a chattel mortgage,” applies and renders it void as to both realty and personalty, where there wore chattel mortgages on the personalty covered thereby when it was issued, which fact was not disclosed to the insurer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 636-651.]</p>

C.) 149 Eed. 783, dismissing complaint in suit for unfair competition, consisting of the imitation of a padlock manufactured by complainant and of its catalogue number.

<p>Customs Duties — Component of Chief Value — Determination.</p> <p>Tariff Act July 24, 1897, c. 11, § 7, 90 Stat. 205 [U. S. Comp. St. 1901, p. 1693], providing that the component material of chief value in imported merchandise shall be determined with reference to the value of the components in their condition as found in the article, means the state which the materials are in when put together, without regard to their value after being advanced to completion; and articles of cotton covered with varnish, in which, before combination, the latter is of less value, should be regarded as composed in chief value of cotton, irrespective of the fact that subsequent labor in applying the varnish may render it the component of chief value in the completed articles.</p>

Appeals from the District Court of the United States for the Southern District of New York. These causes come here upon appeals from decrees of the District Court, Southern District of New York, holding the tugs Moran and Matthews and the scows 15 D and 18 D all in fault for a collision between 15 D and a car float belonging to the New York Central & Hudson River Railroad Company.

<p>1. Libel — Special Damages — Pleading.</p> <p>Where a count for libel did not contain any averment of special damages, defamatory statements alleged respecting the quality and value of plaintiff’s machines were insufficient to constitute a cause of action.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 248.]</p> <p>2. Same — Special Damages.</p> <p>Where, in an action for libel alleged to consist of a statement made to the President concerning the purchase of plaintiff’s typesetting machines by the public printer, the only averment of special damages, in a count setting out defamatory statements respecting the quality and value of plaintiff’s machines, consisted of expenses incurred by plaintiff in appearing at a hearing before a commission appointed by the President to investigate the matters charged by defendant against the public printer, which expenses plaintiff was under no obligation to incur, such damages were insufficient to sustain the action under such count.</p>

<p>Insurance — Rictit to Rescind Contract eor Anticipatory Breach — Election.</p> <p>Where an assessment life insurance company and a policy holder differed as to the construction of the contract, and the company made an assessment which the policy holder thought excessive and refused to pay, but tendered a smaller sum, his action was an election to stand on the contract as still in force, which election was final; and he could not afterward maintain an action in disaffirmance of the contract on the ground that the act of the company in making the assessment was an anticipatory breach.</p>

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

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

<p>Patbxts — Action at Law fob Invbincuement — Pkooe ok Damages.</p> <p>In an action at law to recover damages for the infringement of a patent, where there is no established market value or license fee, general evidence is admissible to show the extent of the plaintiff’s damages from the infringement, and he is entitled to show the utility and advantages of the invention over old devices, as a basis from which the jury may estimate the extent of his loss.</p> <p>[Ed. Note. — E’or cases in point, see Cent. Dig.- vol. 38, Patents, §§ 420, 421.]</p>

<p>Patents — Suit eob Int-bingement — Evidence.</p> <p>Evidence in a suit for infringement of a patent held insufficient to show that the defendant was privy to a prior suit brought b.y complainant against others so as to render a deposition taken therein admissible against defendant.</p>

<p>1. Patents — Invention—Adjudication on Invalidity on Demurbee.</p> <p>A patent should be adjudged void on demurrer for lack of patentable invention apparent on its face only in exceptional cases, where the Question is free from doubt.</p> <p>2. Same — Deed ge por Salt ob Pepper.</p> <p>The Hogan patent, No. 752,903, for a dredge for salt or pepper, is not so manifestly devoid of invention on its face as to warrant its being declared void on demurrer to a bill for its infringement.</p>

In Equity. Suit for infringement of letters patent No. 460,037, for an improved stocking and method of making the same, granted to B. E. Shaw September 22, 1891. On final hearing.

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

<p>Patents — Ineeingement.</p> <p>Claims 1 and 2 of United States letters patent No. 433,686, granted to Henry L. Leach, Jr., assignor, etc., for track-sanding apparatus for locomotives, sustained, and hold to have boon infringed.</p> <p>(Syllabus by the Court.)</p>

<p>Patents — Suit fob Infbingement — Violation of Injunction.</p> <p>The violation of an injunction against infringement of a patent by a defendant held not willful, where it substituted a device believed to be noninfringing, and the fine for contempt for such violation fixed at the amount of complainants’ damages, costs, and disbursements.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 619.]</p>

<p>Patents — Suit eob Infringement — Pbeliminaby Injunction.</p> <p>A preliminary injunction against infringement of the Dickinson patent, No. 831,501, for a candy-pulling machine, denied on condition that defendant furnish a bond; the patent not having been adjudicated nor long acquiesced in.</p>

<p>Patents — Patentable Novelty.</p> <p>Claims 1, 2 and S of U. S. letters patent No. 656,553, granted to Henry L. Leach, assignor, &c., for “Improvements in Pneumatic Track-Sanders for Locomotives,” held void for lack of patentable novelty.</p> <p>(Syllabus by the Court.)</p>

<p>1. Shipping — Chartee Party — Ports en Route Between New York and Brazil.</p> <p>Halifax, Nova Scotia, held, under the evidence, not. a port en route between New York and the eastern coast of South America, so as to entitle a charterer to proceed by that port on such a voyage under a charter party giving it the right to stop at ports en route.</p> <p>2. Same — Coal Delivered to Charterer — Market Priob.</p> <p>Under a clause, of a charter party for a steamer, which required the charterer to pay for the coal in the vessel’s bunkers at the time of her . delivery at the current market price, the price actually paid by the charterer in the port of delivery for coal bought in the open market to fill the bunkers, and also for other vessels at the same time, will be accepted as fixing the market price rather than the price given the owners on mere inquiries without any attempt to purchase.</p> <p>S. Same — Shortage op Cargo.</p> <p>The owners of a vessel are not liable to a time charterer for a shortage in delivery of cargo which was received, tallied in, and stowed, and also taken out by the charterer’s agents, and none of which was lost, jettisoned, or used during the voyage, although at the charterer’s request the master gave a general receipt for the cargo.</p> <p>[Ed. Note. — For .cases in point, see Cent. Dig. vol. 44, Shipping, § 435.]</p> <p>4. Same — Surveyor op Coal on Redelivery.</p> <p>Where there was a difference in the estimates of the owners and charterer in respect to the quantity of coal in a steamer’s bunkers at the time of her redelivery and each party called in a surveyor, each should bear his own expense.</p> <p>5. Same — Charter Hire — Detention op Vessel in Quarantine.</p> <p>A provision of a time charter party mutually excepting restraints of princes, rulers, and people, etc., covers a detention of the vessel in quarantine, and exempts the charterer from the payment of hire during the time of such detention.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 194, 195.]</p>

<p>INSURANCE — MARINIS INSURANCE — TOWERS POLICY.</p> <p>A marine policy of insurance on a towing tug, insuring against loss or damage for which the tug should become legally liable caused by collision or stranding, provided that the tug should be well found in anchors and the underwriter only responsible for injuries received by a tow while such tow was alongside or attached to a hawser. Held, that there could be no recovery on the policy for the loss of tows while they were at anchor where they had been placed by the tug, and for which she had been adjudged liable on the ground that she had left them in an unsafe place and insufficiently anchored.</p>

<p>Contbacis — Conversion of Ship into Barge — Delay in C</p> <p>A libelant, which contracted to convert a ship into a ba .a-ent in accordance with certain specifications within a si.. , and stipulated to pay liquidated damages for each day’s delay in completion beyond such time, held not entitled to be released from such payment on the ground that the delay was occasioned by changes in the specifications and extra work required by respondent, which did not necessarily affect the length of time required, and where no extension was asked for when they were agreed to, nor because of respondent’s delay in furnishing a windlass, where it appeared that libelant was not ready for it, but that the delay in completion was due to a strike of carpenters in its employ, for which no provision was made in the contract.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1375, 1379.]</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>These are cross-appeals from G. A. 6,406 (T. D. 27,536), in which the Board-of General Appraisers, one member dissenting, sustained the less favorable of the two contentions made by the importers against the assessment of duty by the collector of customs at the port of New York. The authority for this decision was Buehne v. U. S. (C. G.) .140 Fed. 772, which reversed a former decision of the Board (G. A. 5,927; T. D. 20,061), and tlie appeals from which were dismissed by the Circuit Court of Appeals (145 Fed. 1023, 74 C. C. A. 681). These proceedings involve the construction of the following provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule C:</p> <p>“Par. 193. Articles or wares not specially provided for in this act, composed wholly or in part of iron, steel, * * ⅜ or other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem.” 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645],</p> <p>“Par. 135. Steel ingots, cogged ingots, blooms, and'slabs, by whatever process made; die blocks or blanks, billets and bars and tapered or beveled bars; mill shafting; pressed, sheared, or stamped shapes; saw plates wholly or partially manufactured; hammer molds or swaged steel; gun-barrel molds not in bars; alloys used for substitutes for steel in the manufacture of tools; all descriptions and shapes of dry sand, loam, or iron-molded steel castings; sheets and plates and steel in all forms and shapes not specially provided for in this act.” 30 Stat. 161. [ü. S. Comp. St. 1901, p. 1638].</p> <p>“Par. 137. * ⅞ * Articles manufactured from * * * steel ⅜ * ⅞ wire shall pay the rate of duty Imposed upon the wire used in the manufacture of such articles, and in addition thereto one and one-fourth cents per pound.” 30 Stat. 161 [U. S. Comp. St. 1901, p. 1639],</p> <p>The Board held the merchandise in controversy (steel wool) to be dutiable under the second of these provisions; the government contends that it was properly classified under the first; and the importers assign as error the failure of the board to sustain their alternative contention under the third.</p>

<p>1. CORPORATIONS — FOREIGN CORPORATIONS-DOING BUSINESS IN STATE— Failure to Comply with Law — Penalties—Actions—Nature and Form.</p> <p>An action to recover a penalty against a foreign corporation for doing business in Arkansas without complying with Act May 13, 1907, was not a criminal prosecution, so as to be beyond the jurisdiction of the federal courts of chancery sitting in that state to enjoin the maintenance thereof, but was entirely a civil proceeding.</p> <p>[Ed. Note. — Enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 10 C. C. A. 00; Central Trust Co. of New York v. Grantham, 27 C. C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]</p> <p>2. Courts — Federad Courts — Jurisdiction—'Action Against State.</p> <p>Act Ark. May 13, 1907, provides that foreign corporations shall not do business in the state until they have complied with the act, which requires the filing of a copy of the articles of incorporation, with the consent that service of process may be had on the Secretary of State, and that it will not remove any action against it to any federal court without consent of the other party, requires payment of certain specified fees, and declares that any foreign corporation failing to comply and doing business in tbe state shall be subject to a fine of not less than $1,000, to be recovered in suits to bo brought in the name of the state by the prosecuting attorneys for the benefit of the county in which the suit is brought, and paid into the county’s general revenue; one-fourth of the recovery to belong to the prosecuting attorney as a part of his compensation. Held, that a suit by a foreign telegraph company, having failed to comply. with such act, against the prosecuting attorneys of the judicial circuits of the state, to restrain them from instituting any proceedings to recover penalties against complainant for its refusal to comply with the act on the ground that it was unconstitutional, was an action against the defendants merely in their capacity as attorneys for the state, and was in effect a suit against the state, within Const. U. S. Amend. 11, declaring that the judicial power of the United States shall not extend to any suit commenced or prosecuted against one of the United States by citizens of another state, etc.</p> <p>[Ed. Note. — Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165.]</p> <p>3. Same — State as Party.</p> <p>No suit can be maintained in the courts of the United States against the officers of a state, when the state, though not named in the pleadings, is the real party against which the relief is asked and the judgment will operate.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 844½.]</p> <p>4. Same.</p> <p>A suit is maintainable in the federal courts against a state officer claiming under an unconstitutional state statute, where he holds possession or is about to take possession or commit a trespass on property belonging to or in' plaintiffs possession.</p> <p>[Ed. Nóte. — Eor cases in point, see Cent. Dig. vol. 13, Courts, § 844½.]</p> <p>6. States — State Officers — Actions Against Officers.</p> <p>The exemption of a state from judicial process does not protect its officers and agents from personal liability in an action of tort by a private person whose rights of property have been wrongfully invaded or injured by the authority of the state; and in case the remedy at law is inadequate the officers may be restrained by injunction from doing positive acts for which they would be personally liable for taking or injuring plaintiff’s property in violation of the Constitution and laws of the United States.</p> <p>6. Same- — Real Party in Interest.</p> <p>A state is the real party in interest in a suit brought against its officers, when the relief sought is that which inures to the state alone, or when the suit will have the effect of depriving the state of funds or property in its. possession.</p> <p>7. Same — Enforcement oe Tariff.</p> <p>An action to prevent the enforcement of a tariff which is unreasonable and confiscatory, and which is to be enforced by a commission or other officials acting merely as administrative agents for the state, is not one against the state, if the act is unconstitutional and void as against the plaintiff; but the rule is otherwise where the proceeding is against the officers of the state to test the constitutionality of the statute-in the enforcement of which the officers will act only by formal judicial proceedings in the courts of the state as its attorneys.</p>

<p>1. Carriers — Interstate Commerce — Distribution of Cabs by Railroad Company to Coal Mines.”</p> <p>Where some of the operators of coal mines along a line of interstate railroad own coal cars individually which are moved by the railroad company, they are entitled to the exclusive use of such cars, but in times when the total supply of coal cars, including such individual cars and those owned by the railroad company, is insufficient to meet the demand, in the distribution by the railroad company of cars between the different mine operators on a percentage basis, calculated on the production of the several mines, each operator is entitled to its percentage of all of the available cars, whether owned by the company or individually, in so far as it will not interfere with such right of the individual owners to the exclusive use of their own cars, and the action of the railroad company in deducting such individual cars before making the distribution and allowing their owners in addition thereto their full quota of its own cars subjects other operators who own no cars to an undue and unreasonable prejudice and disadvantage, in violation of section 3 of the interstate commerce act of February 4, 1887 (24 Stat. 380, c. 104 [U. S. Oomp. St. 1901, p. 3155]).</p> <p>[Ed. Note. — Duties and liabilities of carriers as to furnishing facilities for transportation, see note to I-Iarp v. Ohoctaw, O. & G. R. Co., 61 C. C. A. 414.]</p> <p>•J. Same.</p> <p>In such a distribution the allotment of an arbitrary number of cars . for development to new mines which have had no opportunity to establish a percentage within reasonable limits is lawful.</p> <p>3. Same.</p> <p>The practice of a railroad company in distributing coal cars for use between mine operators on its line in times of shortage of cars not to charge against a mine as a part of its quota cars of other railroad companies who had bought coal for fuel from such mine and sent the ears there to receive delivery of the same, when the coal so sold is not taken into consideration in computing such mine’s percentage, does not subject other mine operators to an undue or unreasonable prejudice or disadvantage in violation of section. 3 of the interstate commerce act of February 4, 1887 (24 Stat. 380, c. 104 [U. S. Comp. St. 1901, p. 3155]). The same considerations apply to coal purchased by any buyer for its own use to be delivered into its own cars at the mine, and which does not become a subject of interstate commerce.</p> <p>4. Same.</p> <p>Nor is the statute violated by the allowance by the railroad company of an extra percentage of cars to an operator which during the preceding month has unloaded and returned its cars within a certain average time; such practice having been adopted instead of the imposition of a demur-rage charge to encourage prompt return of cars, and enlarge the available supply for use, and being open to all alike.</p> <p>5. Same.</p> <p>The method adopted by a railroad company for fixing the percentage of cars to which the several coal mines on its line in a certain district were entitled in distributing cars between them in times of shortage, by taking the actual shipments made from each mine during the season when there was a full supply of cars and also the possible output Of. such mine and making an average, counting the former as two units and the latter as one, held not discriminative as against the newer mines.</p>

<p>At Law. On demurrer to declaration,</p>

<p>1. Public Lauds — Railroad Grant — Effect—TntE.</p> <p>Act June-3, 183(5, c. 14, 11 Stat. 21, granting to the state of Michigan in aid of the construction of railroads certain public lands, excepting lands previously reserved, was a grant in pncsonti and confined to lands belonging to the government at the date of the grant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, § 227.]</p> <p>2. Same — Nature of Lands.</p> <p>The words “public lands” include only such lands as are subject to sale or oilier disposition under the general land laws, and not lands reserved from sale by competent authority.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, §§ ⅞ 237.]</p> <p>3. Same — Withdrawal from Sale.</p> <p>Where public lands were withdrawn from sale for the subsequent benefit of certain Indians, the fact that the withdrawal was conditional on the land being required for purposes of the Indian treaties, and that the Indians were to have no rights in suc-li lands until after legislation should invest them with the legal title, did not destroy the effectiveness of the withdrawal.</p> <p>4. Same — Decision of Land Department — Conclusiveness.</p> <p>Tile construction put on a railroad grant by the Land Department as excepting cerLain lands for Indian purposes cannot prevail against a correct, legal interpretation to the contrary.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, § 30.1.]</p> <p>5. Same — Railroad Grant — Lands Included.</p> <p>At the date of the grant of public lands to a state for railroad purposes, the lands in controversy had been reserved from sale conditionally for the benefit of certain Indians, but when the line of the beneficiary railway company was definitely located, and the lands were certified, the lands in controversy had been released from reservation, and were public lands, subject to sale or other disposition by Congress. Held, that as the grant operated from its date, and not from the date of the definite, location of the railroad line, the reserved land did not pass under the grant.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, §§ n, 237.1</p> <p>6. Same — Vacation of Patent — Recovery of Price.</p> <p>Certain public lands having been conditionally reserved for Indians at the date of a railroad grant, and which did not pass thereunder, were nevertheless, in accordance with the then existing construction of such grants by the government land department, certified as a part of the grunt; the lands having been withdrawn from the reservation at the time the railroad’s line was definitely located.' Both parties assumed that the lands were properly covered by the grant for several years, during which time the railroad company paid laxes thereon in excess of the government price, and sold the lands to innocent purchasers for value. After filing the railroad's map of definite location, the United States disposed of more than 23.000 acres of lands which were available to the railroad company under its grant in lieu of the land in question, and the railroad failed to obtain its full quota of land because of a deficiency existing on a part of its line to the extent, of five times the amount of the value of tile land alleged to have been wrongfully certified. The, United States has made no other disposition of the lands, and the rights of no others have intervened. Held, that the United States was not entitled in equity either to a cancellation of the patents for such land, nor to recover from the railroad company the minimum government price of $1.25 per acre therefor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands, § 332.</p> <p>Bona fide purchasers, see note to United States v. Detroit Timber & Lumber Co., 67 C. C. A. 13.]</p>

In Equity. On a motion for a preliminary injunction. The bill avers that on July 12, 1890, the municipality of Selma and the complainant entered into a contract, by which said1 municipality granted to the complainant the exclusive right and franchise to construct, maintain, and operate waterworks in said city of Selma for public and private supply of water therein for the period of 25 years from that time, and it avers that the complainant did construct and has maintained…

<p>In Equity. On plea, demurrer, and motion to dismiss.</p>

<p>In Admiralty. Ribel in personam by seamen to recover damages for suffering in consequence of being carried to sea on a voyage to a port of a belligerent nation in time of war, when the nature of the intended voyage was not indicated by the shipping articles which they signed. On final hearing. Decree for libelants.</p>

Demurrer to Bill of Complaint in Equity. The real ground of the demurrer is that there is a want oí equity in complainants on their own showing. No facts stated which entitle them to the relief demanded or to any relief.

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

<p>In Equity. Suit for infringement of trade-marks and unfair competition.</p>

<p>Bankruptcy — Obdeb to Pay Oveb Money — Funds in Hands of Wife.</p> <p>Where a bankrupt, within a few days prior to the filing of the petition in bankruptcy against him, sold property, and paid the proceeds to his wife, she will be regarded as holding the same as his agent, and such facts justify an order requiring him to pay the money over to his trustee; but he cannot be adjudged in contempt for a failure to obey such order with respect to certain of the money which his wife is affirmatively shown to have paid out to a third person prior to the bankruptcy.</p>

<p>In Bankruptcy. On review of orders of referee.</p>

<p>1. Courts — Jurisdiction op Federal Courts — Diversity op Citizenship.</p> <p>A federal court is not given jurisdiction on the ground of diversity of citizenship of a suit between a citizen of a state and a citizen of a territory.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 13, Courts, § 853.</p> <p>Diverse citizenship as a ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullaghan, 27 C. C. A. 298.]</p> <p>2. Same — Stockholders’ Suit-^ — Indispensable Parties.</p> <p>In a suit by a stockholder against a corporation and others founded in rights which may properly be asserted by the corporation, such corporation is an indispensable party, and a federal court is without jurisdiction of the suit on the ground of diversity of citizenship where the complainant is a citizen of a state and the corporation of a territory, although the requisite diversity exists as between complainant and other, defendants.</p>

<p>In Equity. On merits of plea.</p>

<p>Customs Duties — Classification—Baskets—“Chip.”</p> <p>Certain baskets held not to be manufactures of “chip,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 449, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678).</p>

On Application for Review of a Decision of the Board of United States General Appraisers. In the decision below the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board reads as follows: “WAITE, General Appraiser. This is an importation of a piece of statuary entitled ‘Bellona,’ composed of bronze and ivory, one the last works of the noted French sculptor Gerome.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The case involves the construction of Tar’iff Act July 24, 1897, c. 11, § 1, Schedule I, par. 313, 30 Stat. ITS [U. 3. Comp. St. 1901, p. 1659], which reads as follows: ' “313.

• On Application for Review of a Decision of the Board of United States General Appraisers. Dor decision below, see G. A. 6,283 (T. D. 27,086), which, on the authority of U. S. v. Van Blankensteyn (C. C.) 91 Red. 977, affirmed the assessment of duty by the collector of customs at the port of New York. ...

<p>1. Customs Duties — Measurement—Invoice Description — “Galeón.”</p> <p>Tbe description of merchandise in an invoice as contained in “gallon” tins is not to be taken as conclusive against tbe importers, as fixing tbe amount contained' in tbe tins for tbe assessment of duty. Sucb descriptions do not purport to indicate exactly tbe amount so contained, and it is tbe duty of government officers to ascertain as nearly as possible tbe quantity imported.</p> <p>2. Same — Measurement by Customs Officers — Presumption of Correctness.</p> <p>The method employed by administrative officers of tbe customs in ascertaining tbe dutiable quantity of imported merchandise should not be disturbed, except upon a clear showing of unfairness or injustice.</p>

<p>On Reargument.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 5,929 (T. D. 26,063), affirming the assessment of duty by the collector of cústoms at the port of New York.

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

This cause comes here upon appeal from a decree of the District Court, Eastern District of New York, in favor of libelant. The suit was brought by the cook of the steamship Cuzco to recover damages for injuries sustained by a fall through a coal bunker hatch while the vessel was in the Straits of Magellan on August 24, .1903.

This cause comes here upon appeals from the final decree of the District Court for the Southern District of New York entered December 21, 1905, which held both ferryboats Mauch Chunk and Northfield in fault for a collision between them, limited the liability of the respective owners, and distributed the proceeds. The Northfield was bound out from her slip which lies on the west side of a long pier, on the east side of which lies the slip for which the Mauch Chunk was bound.

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

<p>Petition to Review Order of the District Court of the United States for the Southern District- of New York.</p> <p>This cause comes here upon petition to-review" an order of the District Court, Southern District of New York, denying an application of the trustee for an injunction and other relief. Rothschild, by agreement dated January 16, 1905, leased from the Gorham Manufacturing Company the premises 384 Fifth avenue from the date of completion of the building thereon until April 30, 192G, at the yearly rent of 835,000, to be paid in equal monthly payments on the 1st day of each and every month. He entered Into possession of the lease some time prior to his bankruptcy. About July 1.4, 190(1, the Gorham Company, claiming that the July rent was due and unpaid, began dispossess proceedings under the New York Code of Civil Procedure in the Municipal Court. The precept, which was returnable on July 24 th, was served, not on the tenant personally, but by leaving a copy thereof with a person in charge on the premises. On the return day a stipulation signed by attorneys for the landlord and attorneys for the tenant was presented, consenting that Rothschild might have, until the 26th to pay the rent, but not extending his time to plead or put in any defense; a clause to that effect being struck out of the stipulation. Thereupon a final order was made in favor ol‘ the landlord, awarding to said landlord the delivery of the premises by reason of the tenant’s nonpayment of rent. The order contained a marginal note: “Warrant issued 27th day of July, 1906. See stipulation.” The 26th of July passed without payment of the rent. On the 27th the warrant issued, and on the same day three checks, aggregating 82,910.67, were delivered by Rothschild to the attorneys for the company. Before the warrant was served or the checks cashed Rothschild was thrown into bankruptcy by the filing of a petition against him (July 31st). The next day a receiver was appointed, who at once took possession of the premises, and on August 7th the bankruptcy court made an order restraining the Gorham Company from taking any steps to carry out Its dispossess warrant and from interfering with the possession of the receiver. The receiver continued in possession, selling out the bankrupt’s stock and fixtures, through the month of August, by which time he had entirely disposed of them. Rothschild was adjudged a bankrupt August 30th. On September 7th, on notice to the company, the facts above recited were laid before the bankruptcy court, and the receiver moved that the injunction against the company should be continued. This motion was denied, without prejudice to the rights of any of the parties or of the estate of the bankrupt, whereupon the receiver vacated the premises and the company entered into possession of the same. Thereafter, on November 23d, the trustee, who had meanwhile been appointed and had succeeded the receiver, moved upon notice to vacate the order of September 7th, to reinstate the injunction, and make the same permanent, restraining the company from interfering with the possession of the trustee and his enjoyment of the unexpired term of the lease. This motion was denied, and that denial is brought here for review.</p>

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>For decision below, see 145 Fed. 843, reversing decisions of the Board of United" States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York.</p> <p>The merchandise in controversy was found by the court below to be similar to that passed upon previously by the same court in Herrmann v. U. S. (G. C.) 141 Fed. 486, consisting of so-called beaver strips or bands, which were there held dutiable as manufactures of fur, undter Tariff Act July 24, 1897, e. 11, § 1, Schedule N, par. 450, 30 Stat. 193 [U. S. Comp. St. 1001, p. 1678], In these appeals the government has not questioned the correctness of that classification, but contends that the evidence on which the court below based its conclusion of similarity of the merchandise to that in the former Herrmann Case, suiua, and the assignments of error are limited to this point.</p> <p>The evidence the sufficiency of which is at issue consisted of testimony of the importers or their employgs, who were familar both with the importations in controversy and with their invoice descriptions, and who on examination of the exhibits in said Herrmann Case stated that the goods were similar to such exhibits. Actual samples were not produced, and this evidence was based on the recollection of the witnesses as to the character of the goods represented by the invoice description of the various items, which had been imported two years or more previously. The government urged that, in view of the failure of the importers to produce samples of the goods, and the fact that the testimony of the importers was based on an inspection of the invoices, there was no competent evidence to sustain the conclusion of the Circuit Court.</p>

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

<p>1. Judgment — Persons Concluded — Principal and Agent.</p> <p>An exclusive sales agent for an article alleged to infringe a patent, who became such agent pending a suit against his principal for the infringement, was in privity with such suit, and a decree therein declaring the patent void is a bar to a suit against him for its infringement, based . on his sales as such agent, and commenced while the former suit was still pending.</p> <p>{Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1218.]</p> <p>2. Same — Pleading—Defense of Res Judicata.</p> <p>A defense of res judicata in an equity suit should properly be raised by plea, or where it arises after answer by a supplemental answer; but it may be considered, although raised informally by an amended answer, filed by stipulation of the parties, and to which no objection is made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§, 1787-1790.]</p>

<p>Specific Performance — Contracts Enforceable — Unauthorized Contract by Trustee.</p> <p>An assignee of a patent under an assignment which expressly provided that the assignee and his successors should hold the title in trust, without power to sell or incumber the same, for the benefit of three persons named. and who had himself become the owner of one of the interests, entered into a contract by which ho agreed to sell all right, title, and interest In the patent, together with all claims for damages for past infringements ; the purchaser having full knowledge of the condition of the title. Held, that such contract was not specifically enforceable in equity without proof that it was authorized or ratified by the owners of the other beneficial interests, and that such authorization or ratification was not established by the fact that they ratified a second contract made by the trustee a few days later for a sale of the patent to another for a larger price.</p>

<p>1. Bankruptcy — Proof op Debt — Statement of Consideration.</p> <p>A proof of debt is clearly defective, where the sole statement of the consideration is that it was for “services, mdse., etc.,” “bal. of wages,” “for goods sold and delivered,” and the like.</p> <p>2. Same — Creditors’ Meeting — Postponement by Referee.</p> <p>The postponement of a meeting of a bankrupt’s creditors for the purpose of allowing a restatement or perfecting of a proof of debt is a matter within the discretion of the referee, which will not be interfered' with excei>t for abuse.</p> <p>3. Same — Kuection of Trustee — Claims Represented by Bankrupt's Attorney. 1</p> <p>Where, at a meeting of creditors called to elect a trustee, the majority-in number were represented either by one who was attorney of record for the bankrupt or by a student in his office, and are objected to on that ground, as well as because the proofs of debt were insufficient, as a restatement or perfecting of the proofs will not remove the other objection and tlie controversy developed renders it probable that there will be no election, the court may go ahead and appoint a trustee, without awaiting further action by the creditors.</p>

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

<p>In Bankruptcy.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The articles in controversy consisted of books having as their only lithographic prints a picture on the front cover of each.

<p>In Bankruptcy. On reargument of certificate from referee concerning claim of Virginia Iron, Coal & Coke Company.</p>

<p>CfíiJfiNAT, I/Aw — Removal to Another Federal Distbiot — Proceedings.</p> <p>In proceedings for the removal of a person charged with a criminal offense from one federal district to another for trial, the filing of a properly certified copy of the indictment makes a prima facie case for the government, which is not overcome by a bare denial under oath by the accused that he committed the offense charged.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 14, Criminal Daw, § 510.]</p>

<p>L CHAMPERTY AND MAINTENANCE — NATURE OF CONTRACT.</p> <p>Where a complainant and an intervening petitioner had a common interest in the subject-matter of a suit, an agreement between them, by which the intervener agreed to bring and prosecute the suit at its own expense, and that complainant should have a certain share of the net recovery, is not champertous or illegal.</p> <p>2. Principal and Agent — Powers of Agent — Construction of Written Authority.</p> <p>A power of attorney, and a letter written contemporaneously by the principal to the agent inclosing the same, are to be considered as constituent parts of the same instrument, and are to receive the same construction as though embodied with one and the same paper; and, where in such case the agent was authorized by the letter to use the power of attorney to make a transfer of property only on certain terms, the power of the agent was strictly limited by such instructions, and he could not convey his principal’s interest on other or different terms to one who had knowledge of such limitation.</p> <p>3. Coup orations — Unauthorized Acts op Agent — Ratification.</p> <p>A letter written by an officer of a corporation, expressing his personal .approval of an unauthorized act done on behalf of the cornoration by an agent, cannot bind the corporation as a ratification.</p> <p>4. Equity — Grounds por Equitable Relief — Laches.</p> <p>The owners of certain land leased the right to mine coal thereon, for a term of 50 years, to one as trustee; he stipulating to furnish the capital and develop and carry on the mining, to pay the lessors a share of the net profits, and, if the enterprise, should prove unprofitable,' to have the right to remove the machinery and buildings placed on the land. Others, among whom was complainant, became interested as beneficiaries under the lease. After prosecuting the enterprise for more than 10 years unsuccessfully, and with continuous loss, the trustee, with the consent of the lessors, executed to them a formal abandonment of the lease on behalf of all the^ beneficiaries whom he represented as trustee. All assented to and ratified the abandonment, except the complainant, whose agent also engaged that it would assign its interest to the lessors; but it did not do so, and nearly five years afterward brought suit to annul all the transfers on the ground of fraud and establish a right in the property under the lease. No fraud was shown, and it appeared that the trustee received no consideration for the abandonment. Held, that complainant could not maintain the suit, especially after such delay and the acquiring of interests in the property by others.</p> <p>5. Execution — Property Subject to Execution — Interest op Tenant under Lease.</p> <p>Under Rev. St. Tex. 1895, art. 3122, which provides that a tenant cannot sublet the leased premises without the landlord’s consent, the interest of a lessee is not subject to forced sale under execution or attachments.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 21, Execution, § 83.]</p> <p>6. Limitation op Actions — Texas Statute — Suit for Cancellation op Conveyances.</p> <p>Rev. St. Tex. 1895, art. 3358, prescribing a limitation of four years for actions “other than for the recovery of real estate,” for which no limitation is otherwise prescribed, applies to a suit for the cancellation of instruments purporting to surrender a coal mining lease, even though as a result of such cancellaton complainant might recover possession of the land; and, while such statute does not govern in suits in equity in the federal courts, yet, where such a suit was brought more than four years after the execution of the instruments and the abandonment of work under the lease, the statute will be applied by analogy, and the suit' held barred by laches.</p>

In Equity. Suit by the Board of Trade of the City of Chicago against the National Board of Trade of Kansas City, Mo., and others, to restrain defendants from counterfeiting or simulating complainant’s quotations on prices of grain and hog products for future delivery in Chicago, and from directly or indirectly distributing or disseminating, or permitting or aiding others to distribute or disseminate, quotations that might be mistaken for quotations sent out by complainant.

In Bankruptcy. Review of order of Joseph B. Atwell, Esq., referee in bankruptcy, disallowing the claim of First National Bank of Northampton Mass., on a note of $5,000 made by said bankrupt, Hopper-Morgan Company, dated the 4-th day of April, 1905, and which note was given without consideration, as an accommodation, and not in the business of said maker, a corporation.

At Law. Suits in trover to recover the value of timber cut for sale and sold by the Indian occupant from his alleged allotment in the Stockbridge and Munsie reservation and purchased in good faith by the defendants, respectively. Trial before the court on stipulations waiving a jury.

<p>1. Witnesses — Subpcena Duces Tecum— Sufficiency of Application.</p> <p>A petition for a subpoena duces tecum is sufficiently definite with respect to the books or documents required, where the description is specific enough to enable the witness to produce them without uncertainty.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 22.]</p> <p>2. Same.</p> <p>To entitle a party to a subpoena duces tecum requiring a witness' not a party to the action to produce books and documents in his possession, it is not sufficient to allege merely that the documents are material and relevant to the issues in the case; but the facts that will enable the court to determine that they are prima facie material and relevant must be set out.</p>

<p>In Error to the Circuit Court of the United States for the Southern EsUct of Illinois.</p> <p>This writ of error brings for review a judgment of the Circuit Court and sentence of imprisonment against the plaintiff in error, James Hamilton Cevis, upon finding of contempt of court, in the violation of an injunction»I th der of such court. The proceedings in which the injunctions 1 order was i.s-⅞!.. i were under the title of consolidated actions of Farmers’ Loan & Trust ¡Company, Trustee, and United Waterworks Company, Limited, v. New England Waterworks Company, Alton Waterworks Company et al. — one a bill (tor foreclosure of a mortgage and the other a creditors’ bill — upon which de-force had theretofore been entered, which is the same decree appealed irom in |New England Waterworks Co. v. Farmers’ Loan & Trust Co., 130 Fed. 521, C. C. A. 207, and affirmed by this court, and the general nature of the bills and decree are sufficiently described in the opinion there filed and reported.</p> <p>Upon the coming in of the master’s report of sale under that decree, objections to confirmation of the sale were interposed by one Allen A. Brown and other persons, as individual bondholders under a trust deed, made by the Boston Water & Light Company (a defendant in such decree) to the International Trust Company, trustee (also a defendant therein), setting up, among other grounds, that they were not made parties to such suits, had no notice thereof, and were “being deprived of their property without notice and without due process of law”; also that the purchase price was grossly inadequate. The plaintiff in error appeared for and represented these bondholders in opposing the confirmation. On May 5, 1905, the court entered an order or decree of confirmation of the sale, as reported, to Samuel L. Peck, G. R. Leighton, Charles G. Sanford, and Russell Frost, a committee representing bondholders, for the price named. The order recites, among other matters, that the purchaser moved to strike out the objections filed by Brown and others, and then orders “that the said objections and exceptions of the said Allen A. Brown and others be and the same are hereby overruled and held for naught,” and that the sale is thereupon confirmed; and the following is the concluding provision:</p> <p>“And it is further ordered, adjudged, and decreed that, upon the completion of the payment of the purchase price by the said purchasers, the delivery to them of the deed of the said master and the deliyery of the property to them by the said receiver, that the title to the said property and assets as against each and every party to this action, and all persons claiming, or to claim, under them, or either of them, be vested absolutely in the said purchasers and their assigns, ¿nd all parties to this suit, and all persons claiming, or to claim, by, through, or under them, be, and they and their and each of their attorneys, solicitors, officers, and agents are, forever prohibited and enjoined from setting up any pretended or alleged title, as against the title of the said purchasers acquired by means of said master’s deed in this decree mentioned, and which said pretended or alleged title may have arisen by, through, or under any of the said parties to thes said cause, and from in any way interfering with or disturbing the said purchasers, or their assigns, in the full and free use and occupation and enjoyntent of all the said property so acquired by said purchasers by means of said áale and said deed from the said master. \</p> <p>“It is further ordered, adjudged, and decreed that the said purchasers have leave at the foot of this decree to apply for further directions\and for any amendment thereof until the last day of the next term of thikcourt, and for that purpose this cause will, upon adjournment of the present term of this court, stand continued upon the docket of this court until the last day of the next term thereof.” • \</p> <p>The objecting bondholders then made application to Mr. Justice Day bf the Supreme Court for allowance of an appeal to that court, but the appeal was disallowed with a letter addressed to the plaintiff in error, which is nurde a part of the record, stating in effect that the bondholders were not named as parties, so that they were not entitled to a review on appeal, remarking that “their rights, if invaded, must in my opinion be worked out in an original proceeding.” Subsequently, Brown and other bondholders filed a bill \in the circuit court of Madison county against the Boston Water & Light Company and other defendants, including the purchasers under the foreclosure decree above mentioned, for foreclosure of their alleged mortgage, and tlie plaintiff in error appeared therein as solicitor for the complainants. Thereupon the purchasers under the foreclosure decree petitioned for a rule to b® entered by the Circuit Court of the United States, upon the plaintiff in ei4 ror, to show cause why he should not be punished for contempt of court for filing such bill and issuing' summons thereupon, in alleged violation of the injunction of that.court. The petition was entertained by the court, under the title of the original consolidated suits, upon an order “that said causes be re-docketed for the purposes of said petition,” and that a citation issue thereupon. 1</p> <p>The plaintiff in error submitted his sworn answer to such rule, disclaiming “any intention on his part to violate any lawful orders or decrees en-traed by” the court, and stating that lie represented Brown and other bondholders, as their duly authorized attorney; and haying applied for an appeal to the Supreme Court, which was denied with an opinion by Mr. Justice Day which is annexed to the answer, he so proceeded in behalf of such bondholders, believing that they were neither parties to nor affected by the decree of this court and were entitled to so proceed. The court on April 16th entered the order appealed from, which reads (after the title) as follows:</p> <p>“In the matter of the petition of Samuel Pock, G. Ralph Leighton, Ojiarles G. Sanford, and Russell Frost for a rule against James Hamilton Lewis to show cause why he should not be punished for a contempt of court in violating the injunction contained in the decree made and entered in the above-entitled consolidated cause on the 5th day of May, A. D. 1905.</p> <p>“Tlio above-entitled matter coming on to be further heard and the court being now fully advised finds that the said James Hamilton Lewis did file in the circuit court of Madison county, Ill., a certain bill wherein Allen A. Brown,' trustee, Robert B. Wason, Harriet N. Houghton, James Sehouler, C. A. Damon, Joseph C. Foster, Chas. M. Page, George W. Fairbank, M. C. Grier, Sabra Hodgkins, Win. B. Trask, and Mary A. Evans aro complainants and Boston Water & Light Company, a corporation, International Trust Company, a corporation, Alton Waterworks Company, a corporation, George W. Sumner, and Chester B. Sumner, executors of the estate of Win. H. Sumner, James ITowe, Orin Warren, Alice G. Pages John Farquhar, administrator of estate of Benjamin F. Dudley, deceased, George F. Lovett, Vernon Prouty, Frank Dromgoole, the O. H. Vennor Co., a corporation, Oidele Vennor, Samuel Peck, G. Ralph Leighton, Charles G. Sanford, Russell Frost, and unknown parties claiming an interest in the property described in the said bill, are defendants, praying for the foreclosure of a certain mortgage executed October 1, 1897, by the Boston Water & Light Company, of the state of Maine to the International Trust Company of the state of Massachusetts, to secure the payment of 200 bonds bearing same date for $1,000 each. The court further finds that said action is in violation of the injunction order of the Circuit Court of the United States entered May 5, 1905. It is therefore ordered that said James Hamilton Lewis be and is hereby held to be in contempt of this court and is sentenced to be imprisoned in the Sangamon county, Ill., jail for (50 days or until further order of this court, in case the above-described cause now pending in the circuit court of Madison comity, Ill., is dismissed within five days from this date, said sentence of imprisonment is to be suspended.”</p> <p>On April Trth, under compulsion of such order, the plaintiff in error dismissed the suit so commenced in Madison county circuit court, and advised the Circuit Court of the United States of such dismissal, pursuant to and under the compulsion of such order, to save himself from the imprisonment thus imposed.</p> <p>For jurisdiction to enter the injunctional order contained in the order or decree of confirmation, paragraphs 22, 25, 2(5, and 27 of the original decree are relied upon. Paragraph 22 provides that the purchaser thereunder, after delivery of the premises and property, “shall hold possession and enjoy the same with all rights, privileges, immunities, and franchises pertaining 1 hereto as fully as said Alton Waterworks Company, the New Itogland Waterworks Company, and Boston Water & Light Company, or the receiver therein, now hold or enjoy the same, or held or enjoyed, or were entided to hold or enjoy the same at any time heretofore, and shall hold the same free and discharged” from the lien or incumbrance of all the mortgage trust deeds in this decree mentioned, and free from all claim or claims of every kind and nature of all parties to this canse and those claiming under them.</p> <p>The other paragraphs read as follows:</p> <p>“(25) All questions not hereby disposed of, including the settlement of the accounts of the receiver and his discharge and the amounts to be allowed said receiver and 1ns counsel, and the amounts to be allowed said trustee, complainants, and their solicitors, and the amount to be allowed the master, and the application of moneys in the hands of the receiver to bonds and coupons or upon allowances and costs, are hereby reserved for future adjudication, and any party interested in such reserved questions may at any time, either before or after sale, apply to this court at the foot of this decree, for further relief in respect thereto.</p> <p>“(26) Any party interested in the questions hereinbefore reserved concerning coupons and interest [referring to claims of O. H. Yenner Company reserved in paragraph 16, not in question], may at any time apply to this court at the foot of this decree for further relief in respect thereto.</p> <p>“(27) Jurisdiction of this cause is retained in this court for the purpose of determining all such reserved questions and of enforcing the conditions of this decree and of any further order made herein, and any party to this proceeding may apply to the court for further orders and directions at the foot of this decree.”</p>

<p>1. Shipping — Damage to Cargo — Exemption from Liability Under Har-ter Act.</p> <p>Section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]), which exempts the owner of any vessel transporting property from liability for loss or damage thereto resulting from faults or errors in navigation, or in the management of the vessel, if he has exercised due diligence to make such vessel in all respects seaworthy and properly manned, equipped, and supplied, applies only to a vessel after the voyage has commenced, and cannot be invoked by an owner to relieve him from liability for loss of cargo through the careening and sinking of a vessel at the pier before she was fully loaded, due to the negligence of a watchman in failing to adjust her lines to permit her to drop with the tide.</p> <p>[Ed. Note. — Statutory exemptions of shipowners from liability, see note to Nord-Deutscher Lloyd v. Insurance Co. of N. A., 49 C. C. A. 11.1</p> <p>3. Same — Limitation of Liability — Pending Freight.</p> <p>Under Rev. St. § 4283 [U. S. Comp. St. 1901, p. 2943], which provides that the liability of the owner of a vessel for loss or damage to cargo occurring without his privity or knowledge “shall in no case exceed the amount or value of the interest of such owner In such vessel and her freight then pending,” pending freight is limited to that due to or to be earned by the particular vessel through whose fault the loss occurred, and the fact that goods when lost or injured were being transported under through ¡lilis of lading upon different vessels of the same owner does not require a surrender óf the freight earned by a different vessel in the course of such shipment.</p> <p>8. Same.</p> <p>Where a lighter sank at a pier while being loaded, injuring a large part of her cargo, the fact that the uninjured cargo was then transferred by her owner to another vessel, and that such lighter, did not deliver any part of it, does not relieve the owner in proceedings for limitation of his liability from the necessity of surrendering as “pending freight” the freight which she would have earned if she had carried the cargo.</p> <p>4, Same — Damages Recoverable for Loss of Cargo — Salvage Expenses of Carrier.</p> <p>It is the duty of a carrier of cargo which meets with disaster through the fault of the vessel to do what he can to minimize the damage, by which'he profits as well as the cargo owner, and he is not entitled to a deduction of expenses so incurred from the damages recoverable by the cargo owner by reason of his loss.</p>

<p>1. Appearance — What Constitutes — Administrators — Invoking- Jurisdiction op Foreign Coubt — Conclusiveness op Judgment.</p> <p>Under the statutes of Nebraska, which abolish the common-law writ of error, and provide for proceedings in the Supreme Court to review a judgment of a district court by the filing of a petition in error and the issuance and service of a summons thereon, such proceedings are in effect an original action, and a foreign administrator who avails himself of the right given him by the statutes of the state to sue in its courts by instituting such a proceeding in error to review a judgment of a district court subjecting lands of his intestate to an attachment voluntarily submits the question of the validity of such judgment to the Supreme Court of the state, and its decision is binding upon him and upon the property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appearance, § 41.]</p> <p>2. Judgment — Pebsons Concluded — General and Ancillabt Adhinistra-tors.</p> <p>A judgment of a state court against a foreign administrator, subjecting land of his intestate’s estate to an attachment, which is conclusive as against him, is also conclusive as against a local administrator subsequently appointed, and a bar to an action brought by him to recover the land from a purchaser under the former judgment in which the same issues only are involved.</p>

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

This is a suit in equity brought by the Union Sawmill Company, an Arkansas corporation, against the Arkansas Southeastern Railroad Company, a Louisiana corporation. On the 16th of August, 1900, the Union Sawmill Company filed its petition in the Fourth judicial district court of the state of Louisiana against the Summit Lumber Company and the Arkansas Southeastern Railroad Company.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The appeal is from a decree, dismissing for want of equity a bill brought by appellant as heir at law of his mother, Anna M. Benedict, against appellee personally, and as executor and trustee under the will of Mrs. Benedict. The facts are stated in the opinion.</p>

<p>1. Iksttbance — Marine Policy — Construction—Freight.</p> <p>A marine policy, insuring freiglit on board, or not on board, valued at £2,062, or actual freight, if more, “full interest admitted, the policy being deemed sufficient proof of interest,” should be construed to cover the freight at risk at the valuation specified, though the freight actually at risk was much less in value.</p> <p>2. Same — Actual Freight--Percentage.</p> <p>Where a marine policy insured freight on board, or not on board, valued at a specified sum, or actual freight, if more, full interest admitted, and of the actual freight insured lost the whole, except a small salvage, there having been no abandonment, the percentage of actual freight lost should have been applied to the value in the policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1250.]</p>

In Bankruptcy. On review of order of referee in re claim of David H. Burrell. Held: as collateral to the note, a mortgage on the bankrupt’s mill, and another mortgage on the Saratoga property. The Saratoga mortgage was foreclosed, and the proceeds, about $1,800, paid to Burrell.

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

<p>1. Sams — Breach or Warranty — Instructions—Statement or Issues.</p> <p>The charge of a trial court in an action to recover the purchase price of an engine considered, and held to have fully and fairly submitted to the jury the issues raised with respect to the compliance of the engine with the warranty made in the contract of sale.</p> <p>2. Evidence — (Relevancy to Issues — Collateral Facts.</p> <p>In an action to recover the purchase price of an engine built and installed by plaintiff in defendant’s factory, in which the defense was the failure of the engine to comply with the warranty, evidence of the alleged unsatisfactory work of other engines built by plaintiff for other parties was properly excluded, where it was not shown that they were the same as the engine in suit, or that they were intended for like use or sold under a like warranty.</p>

<p>1. Libel — Actionable Publication — Advertisement Containing Portrait.</p> <p>The publication by a newspaper of an advertisement containing a portrait of a woman, together with a statement calculated to convey the impression that she is a nurse, and had personally used, and as a nurse had recommended the use of, a certain brand of whisky as a tonic, does not constitute a libel per se, and, in the absence of allegation of special damages, will not support an action.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 213.]</p> <p>2. Appeal and Error — Grounds fop. Reversal — Failure to Award Nominal Damages.</p> <p>Where there was no request in the trial court for the allowance of nominal damages by a plaintiff and no assignment of error because of the failure to do so, the judgment will not be reversed because of such failure.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2468.]</p>

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

<p>1. Courts — Federal Courts — State Decisions.</p> <p>The decisions of the highest courts of the state interpreting a state statute, if uniform and consistent, are controlling on the federal courts; but not so as to state decisions not in construction of the particular statute-in controversy.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 956, 957.</p> <p>Conclusiveness of judgment between federal and state courts, see note to Kansas City, Ft. ¡3. & M. K. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 4» O. C. A. 468.J</p> <p>2. Corporations — Directors—Statutory Liability — Enforcement.</p> <p>A Vermont statute provides that no debts shall be contracted by a corporation exceeding in amount two-thirds of the capital stock actually paid in, and that a director, assenting to the creation of an indebtedness exceeding such amount, becomes personally liable for the excess. JÍold, that the liability so imposed was for the benefit of all of the creditors of the corporation, and was therefore enforceable only by a proceeding in equity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. .12, Corporations, §§ .1492, 1493.</p> <p>Liabilities of corporate officers for debts and acts of corporation as dependent on knowledge or participation, see note to Folwell v. Miller, 75 O. C. A. 492.]</p>

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

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The appeal in this case is from an order of the District Court allowing tlic claim of appellees as a preferred claim against the bankrupt’s estate, for the sum of seven hundred thirty-seven dollars and seventy-four cents back rent, and ordering that the trustee be directed to pay it as such preferred claim, out of the moneys in his hands.</p> <p>The facts are stated in the opinion.</p>

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

The cause comes here upon cross-appeals from a decree of the District Court, Southern District of New York, holding the steamer Furnessia solely in fault for a collision with the schooner William Bisbee. The steamer appeals on the merits, and libelants upon the assessment of damages. The witnesses on the merits were all examined out of court. The collision happened about 1:45 a. m. May 15, 1904, in the Atlantic Ocean, some 15 miles east of Fire Island lightship.

<p>Negligence — Defective Gae Coupling — Failure to Inspect.</p> <p>A train of cars loaded with sand and operated by defendants was being backed upon a pier for the purpose of dumping the sand into a scow which was hired by defendants, when the coupling between the locomotive and the first car broke, and the cars ran by their acquired momentum with such force against the bumper at the end of the track that the end car mounted the bumper and spilled its load upon the scow, injuring libelant, who was the wife of the owner and rightfully on the scow and at the place where the injury occurred. The evidence tended to show that the breaking of the coupling was due to improper handling of the ears by the engineer or to its defective condition. Held that, in either case, the defendants were chargeable with negligence, which rendered them liable for the injury, in the absence of any evidence to show the condition of the coupling, or that it had been recently examined to ascertain whether it was safe for ordinary use.</p>

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

<p>Towage — Abandonment of Tow — Liability of Tug.</p> <p>Evidence held to support the finding of the trial court that the leaking of a barge in tow which made it necessary to abandon her did not result from her grounding through the fault of the tug, but that it was due to her unseaworthy condition; and the tug also held, not in fault for not sooner going in search of the barge after her crew had been taken off and she had gone adrift at sea in the night, in view of the belief of all parties that she had foundered.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 36.]</p>

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

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

<p>1. Patents — Inekingement—Suit by Owneb Against Licensee.</p> <p>A suit by the owner of patents to enjoin a licensee from using any of the patented devices except on the terms imposed by the license contract is not one Cor the specific performance of the contract, but is one to enjoin infringement of the patents by excluding defendant from that part of the patent domain not granted by the contract, and is maintainable in a federal court of equity irrespective of the validity of the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 312½.</p> <p>Jurisdiction of federal courts in suits relating to patents, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. Same — Validity and Scope — Pneumatic Stbaw Stackebs.</p> <p>The Buchanan patent No. 467,476, for a pneumatic straw stacker, covers the uniting of old elernents to form a novel and useful combination of a generic character, and its claims are not limited in scope by anything in the prior art. Such patent is dominant in the art, and the patents to Nethery, Nos. 493,734 and 517,475, and to Landis, Nos. 512,553 and 514,266, are for improvements only and subordinate thereto, and the uniting of all in a single ownership is not therefore in restraint of competition.</p> <p>3. Monopolies — Restbaint oe Tbade — Contbacts Relating to Patented Ab-TICLES.</p> <p>Complainant, which was the owner of a number of patents relating to pneumatie straw stackers, granted licenses to manufacturers of threshing machines by which they were given the right to use any or all inventions covered by such patents and required to sell stackers made thereunder at a stated price and to pay complainant a royalty on each stacker so made and sold. They were also given the right to use the inventions covered by any other patents relating to the art which should thereafter be acquired by complainant, and it did afterward acquire the ownership of practically all patents relating to such stackers. Held, that such contracts were not in restraint of competition and in violation of the Sherman anti-trust act of July 2, 1890 (26 Stat. 209, e. 647'[U. S. Comp. St. 1901, p. 3200]), but were within complainant’s right under the patent laws, although all of the manufacturers of threshing machines in the United States became licensees, there being no right in the public to free competition in articles covered by patents.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Monopolies, i§ 11, 13.]</p>

<p>L Patents — Infringement—Equivalent Parts.</p> <p>Where three separate elements in a patented device, each performing an individual function, are supplanted in another device by a single element which itself performs the functions of all three, the threefold capacity of the single element is not the equivalent of the three separate elements.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 24.]</p> <p>2. Same — Conveying Apparatus.</p> <p>The North patent, No. 480,029, for a conveying apparatus, relating to fall rope carriers for cable conveyors, is not infringed by the device of the Delaney & Lambert patent, No. 829,911. Held infringed, however, by another device manufactured by defendant.</p> <p>8. Same — Invention—Cable Hoist.</p> <p>The Dusedau patent, No. 548,973, for a cable hoist, is void for lack of invention.</p>

This cause comes here upon appeal from a decree of the circuit court, Southern District of New York, dismissing the bill. The suit was brought for infringement of Tetters Patent No. 714,290, issued Nov. 25, 1902, on application filed January 18, 1902, to Philip H. Fielding for an electrical receptacle. The patent describes the device as an improvement upon the device described in prior letters patent to the same Fielding No. 660,154 issued October 23, 1900.

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

<p>On Application for Temporary Injunction.</p>

<p>I. Telegraphs and Telephones — Right to Use of Streets — Minnesota Statute.</p> <p>Act Minn. April 19, 1893, Laws 1893, p. 189, c. 74, amending Gen. St. Minn. c. 34, tit. 1, § 42, which, as it then stood gave telegraph and telephone companies the right to erect poles for their wires in any road or highway in the state, by providing that they should not use streets or alleys in any city or village without obtaining a franchise from such city or village, was within the power of the Legislature over public highways, the statute before amendment merely granting a license, which the Legislature could revoke or modify at any time, except in so far as it had been previously acted upon by the actual erection of poles in streets or highways; and under such amended statute and Act April 13, 1901, of similar import, a city or village may exclude any telephone company from using any street or alley not used by it prior to the amendment, unless authorized by an ordinance, or resolution of its council.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 2, 6.</p> <p>Rights of telegraph and telephone companies to use of streets, see note to Southern Bell Tel. & Tel. Co. v. City of Richmond, 44 C. C. A. 155.]</p> <p>St Same.</p> <p>The fact that a telegraph or telephone line, when completed, will be used as an instrument of interstate commerce, gives a company projecting the same no greater rights respecting right of way than are possessed by a purely local company, and it can use the public streets or highways for. its. line only subject to the state statutes.</p>

<p>1. District oe Columbia — Legislative Power oit Congress — Operation oe Acts,</p> <p>The power given to Congress by the Constitution, to legislate for the District of Columbia, is not given to it as a local legislature, but as the legislature of the United States, and laws enacted under such power are laws of the United States, and enforceable as such throughout the Union.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 17, District of Columbia, § 4.]</p> <p>2. Same — State Banks Doing Business in District — Subjection to National Banking Laws.</p> <p>By Act June 25, 1906, 34 Stat. 458, amendatory of Code D. C., all banking or trust companies organized under the laws of any of the United States having an office or banking house located within the District of Columbia, where deposits or savings are received, are made subject to the provisions of the national banking act. They are required to make and publish reports, and the Comptroller of the Currency is given power to examine into their condition, “and when in his opinion it is necessary to take possession of any such bank or company for the reasons and in the same manner and to the same extent as are provided in the laws of the; United States with respect to national banks.” Held, that such act is within the constitutional powers of Congress to legislate for the District of Columbia, and that under it the Comptroller has authority to appoint a receiver l'or any such corporation, who may sue to collect assets in any federal court in any part of the United States for distribution among its creditors: it being no part of the purpose of such proceeding to dissolve the corporation.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. In the decision below, the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of Philadelphia.

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

<p>1. Public Lands — Unlawful Inclosure — Criminal Prosecution.</p> <p>On the trial of an indictment for violation of section 1 of Act Feb. 25, 1885, c. 149, 23 Stat. 321 [U. S. Comp. St. 1901, p. 1524], containing three counts, the first charging the unlawful erection and construction of an inclosure of certain public lands, the second the unlawful maintenance and control of such inclosure, and the third the unlawful prevention and obstruction of free passage over said lands by means of fencing and inclosing the same, a verdict of not guilty on the first and third counts is not inconsistent with one of guilty on the second.</p> <p>2. • Criminal Law — Trial—Unwarranted Statements by Counsel — Action by Court.</p> <p>It is a general rule, with rare exceptions arising from extreme cases, that prejudice created by unwarranted statements of coúnsel in the presence of the jury is sufficiently cured by an admonition by the court to the jury to wholly disregard such statements. •</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1693.]</p> <p>3. Same.</p> <p>During the trial of a criminal case the district attorney stated to the court in the presence of the jury that he was informed that attempts had been made by a brother of defendant to induce persons who were acquainted with jurors in the case to influence them in favor of defendant, and such attorney was directed by the court to investigate the matter, and, if he thought the information correct, to' institute proceedings in contempt. On exceptions by defendant’s counsel and on their request, the court at once admonished the jury that they should not be influenced in favor of or against either party by what had been said, but should lay the same entirely out of their minds and consider the case on the evidence alone, which admonition was repeated in the charge. HeM, that the occurrence was not prejudicial to defendant so as to require a reversal of a judgment of con-yiction which was amply supported by the evidence.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14r Criminal Law, § 730.]</p> <p>4. Public Lands — Unlawful Inolosuhe — Deed to Unsurveyed Lands.</p> <p>On the trial of a defendant charged with maintaining an unlawful' inclosure of public lands, a deed from a railroad company to defendant for unsurveyed public lands, described by section and subdivison as though surveyed, is inadmissible .to show color of title, since it creates no right to any particular land.</p> <p>5. Same — Trial—Instructions.</p> <p>The charge of the court on the trial of a defendant charged with maintaining an unlawful inclosure of public lands, construed in its entirety, held free from error.</p>

<p>1. Courts — Law op the Case — Previous Decisions.</p> <p>Where no appeal was taken from an original decree, and a bill of review was denied, all matters within the pleadings and jurisdiction of the court, expressed in the decree, were res judicata, and not reviewable on appeal from a supplemental decree.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 13, Courts, § 340.]</p> <p>2. Equity — Jurisdiction—Retention por Complete Relief.</p> <p>Where a federal court of equity acquired jurisdiction of a suit by an administrator with the will annexed, to determine a claim of lien on certain lands belonging to testator and declare the rights of the parties, the court having determined that the title to the laud was in the administrator and that the defendants were entitled to a lien under a certain contract, it was not bound to remand the cause to the probate court for the enforcement of such lien by a sale of the land, but could retain jurisdiction until complete justice had been accomplished by a sale of the land and distribution of the proceeds between the administrator and the lien-ors.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 19, Equity, §§ 103-114.]</p> <p>3. Judicial Sales — Liens—Foreclosure—Sale of Land — Decree—Platting op Land.</p> <p>Gen. St. Kan. 1901, § 3012, provides that where it is made to appear by any executor or administrator that any 'lands of the estate, lying near an incorporated town or city would be materially advanced in value by being platted into town and city lots, the court may order the executor or administrator to subdivide and plat the land. Section 3013 requires the order directing such plat to be made on petition of the executor or administrator, to be áccompanied by an accurate plat of the proposed subdivision; and section 3014 requires the executor or administrator, on receipt of the order, to acknowledge and file the plat as an addition to the city, and that no sale of any part of such real estate shall be ordered by the probate court until the plat has been acknowledged and filed. Held, that where an administrator with the will annexed sued to have an alleged lien of the defendants on property adjoining a city declared, and the land sold, it was a proper exercise of the court’s discretion to refuse, without the consent of .the administrator, to direct that the property be platted into a city subdivision, before sale, under such sections, and to require that the land be surveyed and subdivided into , parcels containing not less than 5 nor more than 10 acres.</p> <p>4. Same — Conditions—Eobfeiture.</p> <p>Where a lien was imposed on the excess of the proceeds of a sale of land belonging to an administrator with the will annexed, over $60,000, the owners of the lien could not object to a provision in the sale decree requiring each bidder as evidence of good faith to 'deposit 20 per cent, of the amount of his accepted bid, to be. forfeited and applied to the costs if the bid was not made good, the commissioner being authorized to ac-copt the receipt of the administrator in lien of cash in case he became the purchaser at the sale.</p> <p>5. Same — Appointment op Master — 'Clerk, op Go get.</p> <p>Where an order appointing a clerk of the Circuit Court of the United States special master to conduct a judicial sale of certain land under a decree of the Circuit Court did not specify special reasons therefor, the order was erroneous to that extent, under Act Cong. March 3, 1879, c. 183, 20 Stai. 415 [U. S. Comp. St. 3901, p. 591], prohibiting the appointment of any clerk of a District or Circuit Court of the United States or their deputies as receiver or master in any case, except where the judge shall determine that a special reason exists therefor, to be assigned in the order of appointment.</p> <p>6. Same — Amendment op Decree.</p> <p>Such error did not affect the balance of the sale decree, which was amendable in that respect.</p>

<p>1. Parties — Suits in Equity — Agents of Parties.</p> <p>.Persons whose sole connection with the subject-matter of a suit is that they are agents for the person really interested are not necessary parties, where no relief is asked against them.</p> <p>LEd. Note. — For cases in point, seo Cent. Dig. vol. 37, Parties, § 41.]</p> <p>2. Vendor and Purchaser — Suit to Foreclose Lien — Parties.</p> <p>Complainant sold certain mining property, reserving a vendor’s lien. Some two years later an agreement was made between complainant, the purchaser, and a third party, whereby the latter, which held a claim against a stockholder of complainant, was to receive payment in installments from the net proceeds of the mining property, the operation of which was placed in the hands of a board of five managers. The third party, in accordance with the agreement, released its claim against the stockholder. Held, that to a suit by complainants against the purchaser and such third party to foreclose its vendor’s lien the managers were not indispensable parties, being merely the agents of the parties before the court.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 780.]</p>

In August, 1905, a crew was shipped on the appellant’s steamship Barracuda at San Francisco for a voyage of nine months to Siberia and return. The Barracuda carried salt, a contraband of war, and was captured by the Japanese and taken with her crew to a Japanese port. The crew were subsequently released in the city of Yokohama.

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>Th.e plaintiff in error, Louis A. Gourdain, was indicted, with one John H. Dalton, for violations of section 5480, Rev. St. (U. S. Comp. St. 1901, p. 3696), and upon joint trial both were convicted. This writ of error is prosecuted from the judgment thereupon against the first-named defendant. The indictment contains three counts, averring like schemes to defraud — that described under the first and second counts, stated as carried on under the name of “Louisiana State Loan & Trust Company of New Orleans, La.,” and under the third count as “Louisiana Trust Banking Company.” Each count is voluminous in description of the scheme and means, and the only substantial difference is in the letters alleged to be mailed in execution thereof, and in tho location of lands and size of lots referred to under one and the other name.</p> <p>Tho averments of the first count are summarized in the briefs for the plaintiff in error as serving for all questions raised, and such summary is adopted, in substance, for this statement, as follows:</p> <p>The count charges that Gourdain and Dalton within the jurisdiction of the court had devised a scheme and artifice to defraud one Charles H. McClees (with residence described) and a class of persons then resident within the United States not capable of being resolved into individuals and not capable by means of their great number and of want of information on the part of the grand jurors of being all named in the indictment; that is to say, such of the persons being desirous of purchasing tickets and chances in a lottery and tickets and chances in an enterprise similar to a lottery, and of investing small sums of money in gambling enterprises and in speculative enterprises and in oil lots and options on oil lots and interests in oil lots, as they, the said Gour-dain and Dalton, should induce to purchase what they called “options” on lots and interests in the same, in the Wynn oil lots, situated in the parish of Wynn, in the state of Louisiana.</p> <p>The scheme was a scheme and artifice to defraud the said persons so intended to be defrauded, by promoting and conducting a fraudulent enterprise under- the name of the Louisiana State Loan & Trust Company of New Orleans, La., by purchasing a large tract of land in Louisiana (1,000 acres of little value, namely, $1.50 per acre), and platting the same into a large number of small lots 20 feet square under the name of “Wynn Oil Lands,” and by offering for sale and selling to the persons so intended to be defrauded options on and whole interest in one of said lots for $20, and fractional interests at proportional prices, and by sending such persons certificates to evidence the sale of options which would purport on their faces to be merely certificates of such options, but which certificates in general appearance would so closely resemble ordinary lottery tickets, and would contain such indicia and earmarks of lottery tickets and of tickets in an enterprise similar to a lottery, that they would cause those persons familiar with lottery tickets who should see the certificates to believe that they were either lottery tickets or tickets in an enterprise similar to a lottery; so that such persons would be caused to believe that the reference to options on oil lots was a mere subterfuge to evade the law against lotteries and like enterprises; and by issuing and sending monthly to the same persons to whom the certificates would be sent lists which would purport on their face to be reports of prices which had been bid for lots, which would resemble ordinary lottery lists, commonly published and sent out by the promoters of regular lotteries; and by causing all of the literature sent out by the said Gourdain and Dalton in conducting such enterprise to resemble in general appearance ordinary lottery literature. By means of such resemblance and similarity of the certificates to regular lottery tickets and the similarity of lists to regular lottery lists and the similarity of literature to regular lottery literature, and by the further means of false representations and false pretenses to the effect that such enterprise was conducted in a fair, square, and honest manner, and had paid sums of money to some of its patrons, to cause said last-mentioned persons to believe that said lottery, or enterprise similar to a lottery, had fair, square, and honest drawings and paid large and capital prizes; whereas, in truth and in fact, the said enterprise was not intended by them and would not be either a lottery or an enterprise similar to a lottery which had fair, square, and honest drawings and paid large and capital prizes, and the said certificates were not intended to be and would not be lottery tickets in an honest and fair lottery, nor in an enterprise similar to a lottery having fair and honest drawings and paying large and capital prizes; but, on the contrary, it was intended by the said Gourdain and Dalton that the enterprise should not be either a lottery or an enterprise similar to a lottery which had honest and fair drawings and which paid large and capital prizes; and it was then intended that said enterprise should not have honest and fair drawings and should not pay large and capital prizes. And the grand jurors present that they do not know and cannot state the method and manner by which said Gourdain' and 'Dalton intended to determine and did determine which of the said persons purchasing the said certificates should be paid small prizes; but the grand jurors say the said Gourdain and Dalton did intend to pay and did pay to some of the persons who should and did purchase said certificates small prizes, ranging from $5 to $50, and that the small prizes were intended to be paid and were paid as a bait to induce those persons to whom they were paid and others of the said last-mentioned 'persons to purchase the said certificates. And that as a part of the said scheme and artifice said Gourdain and Dalton intended by the means aforesaid, that is to say, by causing those of the said persons ini ended to be defrauded, who were familiar with lotteries, etc., to believe that the said enterprise was either a lottery or an enterprise similar to a lottery, and that the certificates were either lottery tickets or tickets in an enterprise similar to a lottery, that had fair, square, and honest drawings and paid large and capital prizes, as aforesaid, and by paying small prizes, as aforesaid, to induce such last-mentioned persons, respectively, to purchase of them under the name aforesaid the said certificates, and to induce said last-mentioned persons to send and pay their moneys to the said Gourdain and Dalton under the said name of Louisiana State Loan & Trust Company. And lhat the said Gourdain and Dalton intended by this means to obtain possession of such money as should be so sent to them under the name aforesaid, or under any other name, for purchasing such certificates, and all or a part of the said money to convert to their own uses without rendering anything or service of value to said last-mentioned persons therefor, and thereby to defraud those said persons of the same. The exact part and amount of which said moneys they intended to convert to their own use are to the grand jurors unknown. And the said Gourdain and Dalton intended that a large majority of said persons who should prxrchase said certificates should receive nothing whatever of value in return for the moneys which they should pay for said certificates, and intended that what small amounts they should pay to such purchasers of said certificates as small prizes, as aforesaid, should be paid to said purchasers as a bait to induce them and other persons to purchase other of said certificates.</p> <p>And the grand jurors further present that, as a part of said scheme and artifice to defraud, it was intended by said Gourdain and Dalton that said certificates, lisls, and literature, so to be sent out by them, should cause the said persons Intended to be defrauded to whom they were to be sent, who were not familiar with lotteries, lottery tick els and literature, to believe that the said enterprise, conducted under the name of the Louisiana State Loan & Trust Company, was an honest, fair, and legitimate enterprise for the sale of oil lots and options on the same. That for the purpose of causing the last-mentioned persons, go as aforesaid intended to be defrauded, to so believe as aforesaid, and for the further purpose of causing said last-mentioned persons to believe that large sums of money could be made by them, the said last-mentioned persons, by purchasing said options, they, the said Gourdain and Dalton, intended in the promoting and conducting of said enterprise to falsely represent and pretend to the last-named persons in effect that said lots were of great value, were located in an oil district, that oil had been discovered and found in that immediate district and locality; that large sums of money had been bid in good faith for numerous ones of said lots respectively, and numerous persons had ordered their respective Interests owned by them in different ones of their said lots to be negotiated for large sums of money; that large sums of money had been made by different persons who had purchased options on said lots, and that there had been bid in good faith in cash prices for 1,194 of the lots mentioned an aggregate sum of $1,210,000, and prices for several lots mentioned, ranging from $300,000 a lot downward to $1,000.</p> <p>And the grand jurors further present that, as said Gourdain and Dalton well knew, said lots were not of great value, nor located in a district where valuable oil had been found in paying quantities, and were not oil lots, nor situated in an oil plat, and no oil had been found in that immediate district, nor anywhere in that vicinity, and no large sums of money had been bid in good faith for any of said lots, and no person had ordered their respective interests negotiated for large sums of money, as they, the said Gourdain and Dalton, intended to falsely represent and pretend in effect, as aforesaid, to the said last-mentioned persons who were not familiar with lotteries, etc. And, as a part of said scheme and artifice, that the said Gourdian and Dalton, by moans of said false representations and pretenses, intended to induce said last-mentioned persons who were not familiar with lotteries to purchase of them the said certificates and send and pay their money Cor the said certificates to said Gourdain and Dalton, under the name and style aforesaid; and that by this means they intended to obtain possession of such money to be sent and paid to 'them under the name aforesaid, or under any other name, by the last-mentioned persons for purchasing said certificates and options, and all or a part of the said moneys to convert to their own uses without rendering any •thing or service'of value to the said last-mentioned persons therefor, and thereby to defraud those said persons of the same. The exact part and amount of which moneys which the said Gourdain and Dalton intended to convert to their own use, as aforesaid, are to the grand jurors unknown.</p> <p>The said scheme and artifice to defraud was a scheme and artifice which they, the said Gourdain and Dalton, when so devising the same, and when committing the offenses mentioned, intended to effect and was to be effected by opening correspondence and communication by means of the post-office establishment of the United States, etc. And the grand jurors present that said Gourdain and Dalton, on April 5, 1905, so having devised the said scheme and artifice in and for executing the same and attempting so to do, and for defrauding by and through such scheme the said Charles M. McClees, who was one of the persons so intended to be defrauded, did place in the post office of the United States, at Chicago, etc., a letter which is described.</p> <p>Other proceedings and facts upon which error is assigned are mentioned in the opiuion ¾ so far as deemed material.</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>. The plaintiff in error, Jolin H. Dalton, was convicted witli one Louis A. Gourdain, upon their joint trial under indictment for-violations of section 6480, U. S. Rev. St. (3 U. S. Comp. St. 1901, p. 3696), and reversal is sought of the judgment thereupon against him. The indictment is the same described in the opinion upon the writ of error of the above-mentioned Gourdain (handed down herewith), and both cases are presented in a single transcript of record, under .leave of this court, as the questions raised are identical, except in reference to evidence of participation in use of the mails for execution of the alleged scheme to defraud, and in minor particulars mentioned in this opinion. In the case referred to of Gourdain v. United States' (3STo. 1,297) 154 Fed. 453, the averments of the indictment are sufficiently stated, and other material facts involved in this review are .stated in the present opinion. o</p>

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

<p>1. Bankktjptcy — Mode op Review — Obdeb Denying Priobity op Cdaim.</p> <p>An order of a court of bankruptcy denying priority to a claim which has been allowed against an estate is one made in a controversy arising in a bankruptcy proceeding, and not one made in a bankruptcy proceeding, and is roviewable by the Circuit Court of Appeals on appeal under Banltr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 [ü. S. Comp. St. 1901, p. 3432].</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see notes to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Chattel Mortgage — Identity oe Mosto aged Property.</p> <p>A chattel mortgage given by a small retail merchant on liis stock, containing no after-acquired property clause, canhot be enforced against stock on hand when he was adjudicated a bankrupt nearly a year and a half afterward, without proof that the goods were the same.</p> <p>3. Same — Moktgage—Eeeect oe Withholding prom Record.</p> <p>Under ICy. St. 1903, § 496, which provides that no mortgage shall be valid “against a purchaser for a valuable consideration without notice thereof or against creditors” until lodged for record, as construed by the state Court of Appeals a mortgage is valid against the general creditors of a bankrupt where it was recorded prior to the filing of the petition in bankruptcy, although it was withheld from record for several months, during which time a large part of the indebtedness was contracted.</p>

This cause conies here upon appeal from a decree of the District Court, Southern District of New York, awarding to the libelant $317.41 on account of charter hire, paid in advance, of the steamship Osceola, which was let to libel-ant for a round trip to and from certain named foreign ports on the agreement of charterer to pay for her use and hire £900 British sterling per month, and at the same rate for any part of a month.

This cause comes here upon appeal from’ decrees of the District Court, Southern District of New York, which held the Gladiator solely in fault for a collision between a car float which she had in tow and the steamship Phonix.

<p>1. Bankruptcy — Proceedings to Revise in Matters op Law — Scope.</p> <p>Bankr. Act July 1, 1898, § 24b, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], giving Circuit Courts of Appeals authority to superintend and revise in matters of law, was intended to provide a summary method of revising the orders of courts of bankruptcy on questions of law, and does not Contemplate any review of facts.</p> <p>2. Same — Jurisdiction op Court — Summary Proceedings por Surrender op Assets.</p> <p>Where property of bankrupts was taken on a void attachment and the proceeds paid to the plaintiff on a judgment against the bankrupts, recovered by default several weeks after the filing of their petition in bankruptcy, which fact was known to the plaintiff, a referee has authority under Bankr. Act July 1, 1898, § 2 (7), and section 67f, c. 541, 30 Stat. 546, 565 [U. S. Comp. St. 1901, pp. 3421, 3450], to make a summary order requiring such proceeds to be paid over to the trustee.</p> <p>3. Same — Commitment por Contempt.</p> <p>Where an order by a referee requiring a person to turn over money to a trustee in bankruptcy was within his lawful authority, the District Court has power to commit such person for contempt for refusal to obey such order.</p>

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

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

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

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

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

In Bankruptcy. Sur trustee’s claim to insurance policy. The following is the certificate of Referee in Bankruptcy Richard S. Hunter: To the Honorable the Judges of the District Court: The referee hereby certifies under general order No. 27 and upon request of counsel for trustee: (1) That claim was made by the trustee to a certain insurance policy taken out by the bankrupt in the Provident Life & Trust Company, providing for the payment of $2,000 to the bankrupt upon March…

<p>Attachment — Application to DISCHARGE — Substitution oe Bond.</p> <p>Code Civ. Proc. N. Y. § 688, which provides for the discharge of an attachment upon the giving by the defendant of a bond conditioned for the payment of any judgment that may be recovered, does not apply where the attached property is current money.</p>

<p>Sur Petition for Mandamus.</p>

<p>1. Corporations — Foreign Corporations — Process—Siorviqe.</p> <p>Rev. St Mo. 1899, § 570 (Ann. St. 1900, p. 397], provides that if the defendant in an action is a corporation organized under the laws of any other state or country, and “having an office or doing business” within the state, summons may be served by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business of the company, or, if it have no office or place of business, then to any officer, agent, or enrployé in any county where such service may be obtained. ÍTeící, that a return of service under such provision must either show that the corporation served had an office within the jurisdiction or was doing business there, and a return that the writ issued against defendant, a Yellowstone Parle transportation company, was executed in St. Louis, Mo., by delivering a copy of the writ and petition to a railroad company, agent of the defendant, by delivering a copy of the writ and petitioh to the railroad’s chief clerk, the defendant being a foreign corporation and having no office or place of business within the state, was fatally defective.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 12, Corporations, § 2621.]</p> <p>Service of process, see notes to Eldred v. American Palace Car Co., 45 C. C. A. 3; Celia Commission Co. v. Bolilinger, 78 C. C. A. 473.]</p> <p>2. Same — Resident Agent.</p> <p>Where defendant, a foreign corporation engaged as a common carrier within the Yellowstone National Park, maintained no office or place of business in St. Louis, but authorized the agent of a railroad company doing business there to sell coupon tickets entitling persons traveling over the railroad to transportation by defendant’s line through the park, the agent of the railroad company was not an agent of defendant in Missouri on whom process could be served, which would bind defendant to answer in courts sitting in Missouri.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations § 2621.]</p>

<p>United States — Ompioers—Campaign Contributions — Solicitation — Statutes.</p> <p>Act Cong. Jan. 16,1883, c. 27, § 11, 22 Stat. 407 [U. S. Comp. St. 1901, p. 1223], prohibits officers and employes of the United States from soliciting or receiving any contribution for any political purpose from any of its officers, clerks, and employes, and section 12 prohibits every person from soliciting such contributions in any room or building occupied in the discharge of official duties by any officer or employs of the United States mentioned in the civil service act, or in any navy yard, fort, or arsenal. Held, that the sending of a letter addressed to an internal revenue employs at his office in a federal building by defendant, who was neither an officer nor an employs of the United States, soliciting a political contribution to be sent by mail to the chairman of the Republican state executive committee, did not constitute an offense within such act.</p>

<p>Judgment —Res Judicata — Identity oe Cause oe Action — Mastek and Servant.</p> <p>Plaintiff sued defendant railroad companies and certain of their employes in a state court for a tort consisting- solely of the act of such employes. All the defendants appeared, and at the trial a verdict was rendered in favor of the individual defendants and against the corporations. Plaintiff did not appeal from the judgment against him in favor of the individual defendants, hut the corporations appealed and obtained a reversal of the judgment against them, whereupon plaintiff toot a nonsuit, and subsequently brought a new action in the federal court against the corporations alone. Held that, the corporations being only chargeable because of the doctrine of respondeat superior, the final judgment in the state court in favor of the servants was a bar to plaintiff’s present action against the railroads.</p>

<p>On Motion for Directed Verdict.</p>

At Taw. Action for unpaid duties. Suit was brought by the government against the defendant to recover $3,87(5.00. with interest, for duties on the importation of merchandise known as “w ool waste.” The original entry 'of the merchandise was made July 25, 1903, and was classified as “waste” and of the dutiable value of $512, with a rate of duty of 10 per cent, ad valorem. The duty assessed of S51.20 was paid by the importer.

Ad Raw. On motion to reform judgment. Suit was brought by the plaintiff to recover of the defendant the sum of $1,529.50, with interest, as duties on the importation of certain cattle. The entry was reliquidated April 10, 1902, and the defendant duly notified thereof by the collector. The defendant refusing to pay the increased duties, suit was instituted for their recovery December 19, 1905.

<p>1. BANKRUPTCY — VOIDABLE PREFERENCE.</p> <p>In order to render a preference voidable under Bankr. Act July 3, 1898, § COb, c. 541, 30 Stat. 562 LU. S. Comp. St. 1901, p. 3445J, which provides that it shall be voidable if the creditor receiving it or his agent “shall have had reasonable cause to' believe that it was intended thereby to give a preference,” it must appear that the creditor had reasonable cause to believe that the debtor was then insolvent within the meaning of such term as defined by the act.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. C, Bankruptcy, § 256.]</p> <p>2. Same — Preferences Required to be Surrendered Before Allowance oe Claim — B urden of Peooe.</p> <p>The burden of proof rests upon a trustee in bankruptcy who objects to the allowance of a claim until the surrender of an alleged preference, as required by Bankr. Act July I, 1898, § 57g, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3445], as amended February 5, 1903, c. 487, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, pp. 688, 689J, to establish the facts which would render such preference voidable under section 601), 30 Stat. 562 [U. S. Comp. St. 1901, p. 3415].</p> <p>[Kd. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 256.]</p> <p>3. Same — Bvidfnce Considered.</p> <p>A bankrupt who was in business kept an account with a bank for some four years prior to his bankruptcy, and during- such time the bank from time to time made him loans and also discounted notes of his customers, which he indorsed and took up at maturity when the customer did not. At the time of opening his account, he gave the president of the bank a statement of his assets and liabilities, which allowed him to be abundantly solvent. Within the four months prior to lxis bankruptcy, he took up a number of customers’ notes, and the president also insisted, on his paying a note of his own for $1,000 which came due. He, then stated to the president that he was hard up on account of slow collections, and requested an extension of live days, which was given, and at (lie end of that time he x>aid the note. lie was in fact insolvent at that time, but only ascertained it a few days previously on taking an inventory, and did not advise the bank of the fact. The president of the bank testified that he supposed the bankrupt to be making money in his business until notified of his bankruptcy, and only insisted on payment of the note because his indebtedness was larger than was warranted by the amount of his current account. Hold, that such evidence was insufficient to show that the bank had reasonable cause to believe the bankrupt insolvent when such payments were made, so as to require it to surrender the same as voidable preferences before proving its claim against the estate in bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>Bankruptcy — Property Held Under Conditional Sale — Right to Reclaim.</p> <p>A bankrupt corporation had in its possession certain machinery, which It obtained under a rental contract by which it was to pay a stated sum of rental in installments, and then had the privilege of purchasing the machinery for one dollar. In the meantime it was to remain the property of the lessor, who had the right to declare the lease forfeited, and retake the property on any default in the payment of rent; time being expressly made of the essence of the contract. The lessee had paid many of the installments at maturity, others after due, and still others were In default at the time of the bankruptcy, but no claim to a forfeiture had been made by the lessor. After bankruptcy the lessor claimed the property, and within a week thereafter, and before it was sold by the receiver, the latter tendered the lessor the amount of the installments of rent still remaining due, with interest, and one dollar additional, which tender was refused. Held that, by the failure of the lessor to insist upon a forfeiture when installments became in default, the provision making time of the essence of the contract was suspended if not entirely waived, and could not be enforced against the receiver or trustee in bankruptcy, but that the claimant was entitled to no more than the contract price of the machinery.</p> <p>[Ed. Note. — For eases In point, see Cent. Dig. vol. 6, Bankruptcy, 1199.)</p>

<p>1. BANKRUPTCY — DISCHARGE—OBJECTIONS— SPECIFICATIONS.’</p> <p>It is incumbent on a creditor opposing a bankrupt’s discharge to allege in his specifications of objections and prove at least one of the statutory grounds for withholding the discharge; objections not specified in the act being unavailable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 714, 720.]</p> <p>2. Same — Concealment—Withholding on Books — Intent.</p> <p>Specifications of objection to a bankrupt’s discharge, alleging concealment of assets and withholding of books, not charged to have been with the fraudulent intent to conceal his true financial condition, were insufficient.</p> <p>[Ed. Note. — E’or cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 714.]</p> <p>3. Same — 'Withholding of Property — Fraud.</p> <p>An allegation that a bankrupt withheld and concealed his property and assets from his schedule and from his trustee, failing to charge that such withholding and eoneealmeut was knowingly and fraudulently done, was insufficient to prevent his discharge.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 714.']</p> <p>4. Same — DrsciiAitsE—Revocation.</p> <p>A discharge in bankruptcy may be revoked, if it is made to appear that it was obtained through the bankrupt’s fraud, and that the petitioning creditors only obtained knowledge of the fraud after the discharge was granted.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 869.]</p> <p>5. Same — Lagues.</p> <p>Where a petition to revoke a bankrupt’s discharge for fraud alleged that the fraud was not known to petitioners until after the discharge, and they had no opportunity before that time to interpose the fraud in opposition to the discharge as alleged, they were not chargeable with laches.</p>

Thomas Battle was indicted for the murder of D. M. Berry by a federal grand jury, the offense being charged to have been committed on a plot of ground in the city of Macon, Ga., which had been conveyed to the United States for the erection of a post office and federal court building, over which territory the state had surrendered jurisdiction, reserving the right to serve process and apprehend offenders there. On demurrer to the indictment. Overruled.

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

<p>1. Insurance — Employee’s Liability Bond — Signature of Servant.</p> <p>Where the execution hy a servant of an employer’s liability bond was not made a consideration Cor nor a condition of the creation of liability by the insurer, but the latter thereafter continued the bond, which ■ was not signed by the servant, three tipies for a further new consideration, subject to the conditions and covenants of the bond, defendant was not entitled to object that it: was not liable on the last renewal, because the bond was not originally signed by the servant as contemplated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1041.</p> <p>Guaranty insurance, see note to American Credit Indemnity Co. v. Wood, 19 C. C. A. 271.]</p> <p>2. Same — Notice.</p> <p>An employer’s liability bond provided that the insurer should indemnify the employer against fraudulent or dishonest acts of the omployfi amounting to embezzlement or larceny, subject to the condition that the insurer should be notified in writing of any fraudulent or dishonest act on the part of the employe which might involve a loss for which (lie company was responsible, immediately after the occurrence of such act should have come to the employer’s knowledge. Held, that the notice required was one which would charge the employe with the commission of a felony, and hence the employer was not bound to give such notice until it had acquired knowledge sufficient to justify a reasonable man in making such a charge.</p> <p>3. Same — Evidence.</p> <p>In an action on an employer’s liability bond, evidence held to sustain a finding that plaintiff gave immediate notice of the employe’s default, after acquiring knowledge that such default amounted to the crime of embezzlement or larceny, against which the bond only granted indemnity.</p> <p>4. Same — Renewal—Contract—Representations.</p> <p>An original employer’s liability bond was issued in 3901, insuring plaintiff against the employe's misconduct for a year. It was renewed for a new consideration for the succeeding year, and again for the years 1903 and 1904; the renewal reciting that it was made in consideration of $20 premium, and continued the bond in force to June 1, 1904, “subject to all the covenants and conditions thereof.” Held, that the renewal did not include a statement issued February 24, 1903, in which plaintiff represented that checks signed by the insured employs should be safeguarded by certain other signatures, so that a failure to perform such representation did not relieve defendant from liability on the bond.</p> <p>5. Same — Correspondence—Construction.</p> <p>Where there is doubt and uncertainty concerning the effect of correspondence on an employer’s liability bond, such doubt should be resolved in favor of sustaining the contract as executed in favor of the insured.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 295.]</p> <p>6. Same — Nature of Contract.</p> <p>An employer’s liability bond is essentially a contract of indemnity against loss, governed by the rules applicable to ordinary Ufe and fire insurance policies.</p> <p>7. Same — Application for Insurance — Acceptance.</p> <p>An application for insurance is a proposition to the insurance company which must: be accepted as made, if at all.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 190, 198.]</p> <p>8. Same — ActioN on Policy — Trial—Instructions—Construction.</p> <p>In an action on an employer’s liability bond, tbe court charged that the-employer’s statement, made by plaintiff and pleaded by defendant as being the basis and part of the contract, was confessed by the pleadings and admitted to have been executed and delivered to plaintiff by defendant. Held, that such instruction should be construed to mean that plaintiff admitted only that the statement was executed and delivered for some -purpose, and not that it was the basis of the contract.</p> <p>9. Pleading — Reply—Failure to Verify — Effect.</p> <p>' Rev. St. Mo. 1899, § 746 [Ann. St. 1906, p. 731], provides that, when any petition or other pleading shall be founded on any instrument of writing charged to have been executed by the other party, the execution of the instrument shall be adjudged confessed, unless the party charged to have executed the same denies its execution by verified answer or replication. Held, that where a verified answer pleaded that a written instrument had been made by plaintiff to defendant, and was the basis of an employer’s liability bond sued on, plaintiff’s failure to verify its replication of general denial only admitted the execution and delivery of such instrument, and was sufficient to join issue on the question whether the statement was the basis of the contract.</p> <p>10. Writ of Error — Presumptions—Verdict.</p> <p>Where the record on a writ of error does not clearly show that the-jury’s finding was contrary to the instructions of the court when taken as a whole, it will be presumed that the jury followed the instructions,, and that the verdict is right.</p> <p>[Ed. Note. — For cases in- point, see Cent. Dig. vol. 3, Appeal and Error, § 3757.]</p> <p>11. Same — Assignment of Errors — Incorporation in Brief.</p> <p>Under Circuit Court of Appeals rule 24 (150 Fed. li), declaring that the brief for the plaintiff in error shall contain a specification of the errors relied on, and shall set out separately and particularly each error asserted and intended to be urged, an objection that a false or misleading issue had been tried to the prejudice of plaintiff in error could not be reviewed, where no such error was so assigned.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3094.]</p> <p>12. Same — Right to. Allege Error.</p> <p>Where the trial of an alleged false issue was induced by defendant’s own procurement, over plaintiff’s objection, defendant could not object thereto on a writ of error.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3591, 3593.]</p> <p>13. Same — Prejudice.</p> <p>Where a judgment was for the right party and in the interest of substantial justice, it will not be reversed On a writ of error because the court proceeded on an erroneous theory.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4034.]</p> <p>14. Same — Scope of Review — Damages—Excessiveness.</p> <p>Where a verdict returned in the federal court has been allowed to stand by the trial judge, it cannot be set aside on appeal as excessive.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3948.]</p> <p>15. Same — Instructions.</p> <p>Where, in an action on a fidelity bond, the court gave an instruction with reference to the allowance of a credit in favor of defendant, whether the verdict contravened such instruction was reviewable on a writ of error.</p> <p>16. Same — Peejudice.</p> <p>Where, in an action on a fidelity bond, the verdict returned was in strict accord with the proof touching the amount of the employe's embezzlement, and under no theory was defendant entitled to a credit which the jury disallowed, defendant was not entitled to a reversal because the disallowance of such credit was contrary to an ambiguous instruction with reference thereto.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4231.]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>(Syllabus by the Court.)</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 District of South Dakota.</p> <p>These are appeals from two decrees in the same suit, one of which sustained the separate demurrer of the Penobscot Mining Company to the bill of the complainants and dismissed it, and the other of which sustained the separate demurrer of Alexander Maitland to the same bill and dismissed it. The suit was brought by Rogers, Rosenthal, Thomas, and Maloney against Maitland and the Penobscot Mining Company, to compel Maitland to convey certain mining claims to the Penobscot Company, a corporation of South Dakota, to secure a decree that he had no right, title, or interest in these claims, to enjoin him from disposing of or incumbering them, and for general relief. The facts stated in the bill upon which the complainants based their prayer were these: In the spring of 1902 F. R. Byrns and the defendant Maitland made an agreement that Byrns should procure options to purchase three groups of mining claims situated in South Dakota in the name of Maitland; that they would organise a corporation with a capital stock of 500,000 shares, of the par value of $1 per share; that this stock should be issued to Maitland; that he should convey to the corporation all the options, should return 300,000 shares of stock to the treasury of the company, should convoy to Byrns 50,000 shares, and should furnish the money to pay the unpaid balances upon the options and to further develop the properties, either by loans which he should make to the corporation or. by the purchase of its treasury stock. Byrns obtained the options in Maitland’s name and thus completely performed his part of the agreement. Maitland and Byrns organized the defendant, the Penobscot Mining Company. In accordance with their agreement, Maitland conveyed the options to it, the 500,000 shares of stock were issued to him, and he placed 300.000 shares of it in the treasury of the corporation. The unpaid balances owing upon the options were thereupon paid by the Penobscot Company for its own use and benefit; but the deeds of the mining claims were taken from the former owners to Maitland, and-not to the company. In February, 1903, Byrns had assigned 1.000 of the 50,000 shares of the stock of the company to which he was entitled to one Adams, and thereupon, in pursuance of the former contract between him and Maitland, he and Maitland made a second agreement to the effect that the latter would transfer to Byrns 49,000 shares of the stock, less one-half of the shares which should ultimately be found to be due, to one Bradburn. The number of the shares due to Bradburn was determined to be 13,000 before the commencement of this suit, so that the number due to Byrns became 42,500. In April, 1903, Byrns sold and assigned this stock and all his rights under his contract to the United States Mines Company. Subsequently this company transferred to the complainant Rogers 2,500 shares, to the complainant Maloney 1,800 aliares, and to the complainant Ttosenllml 7,000 shares oí the capital stock of the Penobscot Company out of the shares coining to the United States Alines Company from Maitland under Byms’ assignment, and Rosenthal assigned one-half of his 7,000 shares to the complainant Thomas. Maitland holds a majority of the stock and Is the treasurer of the Penobscot Company, and he controls its board of directors, lie has refused to convey the mining claims to the Penobscot Company, and has refused to assign or deliver to the complainants the shares of stock to which they are entitled. , The complainants have demanded of the Penobscot Company that it bring suit to compel a conveyance by Maitland of the mining claims to itself, and have demanded of Maitland and the Penobscot Company that they issue and deliver to them the .shares of the capital stock of the company which have been assigned to them, and the defendants have refused to do so. Upon this state of fads the court below sustained the demurrer of the defendants to the bill, upon the ground that the hill failed to show that the complainants were either the legal or equitable owners of stock of the Penobscot Company.</p>

Pursuant to an order of the TInitecI States Court in the Western District of Indian Territory, which has the jurisdiction of a probate court, a lease of 160 acres of mineral land which had been allotted to Edith Durant, a minor Indian, was advertised for sale on sealed bids by Monday Durant, her guardian, and on the day of sale, March 5, 1900, the highest bonus bid for it was $3,490, and this bid was made by Robert W. Morrison, Charles W. S. Cobb, John B. McKinney, William…

<p>1. Damages — Master and Servant — Action eor Personal Injury — Evidence oe Condition of Injured Member, and Cause Thereof Admissible.</p> <p>In an action for personal injury, evidence of the condition of the injured member up to the time of the trial, and evidence to what extent that condition was caused by the wrong of the defendant, and to what extent it was caused by the malpractice of the surgeon who treated it, is admissible, because the defendant is liable for the former and free from liability for the latter.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 15, Damages, § 183.]</p> <p>2. Master and Servant — Negligence—Contributory Negligence — Sufficiency of Evidence — Pacts—Conclusion.</p> <p>An engine drawing 31 loaded cars stopped at a station to permit the unloading of freight from one of them, and the fireman, with the knowledge of the engineer, stepped out for the purpose of crawling under the engine and raking the ashes out of the ashpan. It was dangerous to the fireman to move the engine while he was under it. He crawled under it, and, as he was about to commence to rake out the ashes, the engine moved backward, he placed his hands upon the rail and jumped out, but before he could remove them one of the trucks passed over and crushed his left hand. The engine moved from two to four feet. There was evidence that this backward.movement was caused by the recoil of the rear cars of the train after it stopped and that the engineer could not have prevented it. There was also evidence sufficient to sustain a finding by the jury that the backward movement was caused by the engineer by giving the engine steam while the lever was in the backward motion.</p> <p>Held, the case was properly submitted to the jury, because, if the engineer caused the backward movement by giving the engine steam while he knew the fireman had gone to crawl under it, he was guilty of negligence, and the evidence was not conclusive that the fireman was guilty of contributory negligence.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1051-1067, 1089-1132.]’</p> <p>3. Courts — Federal Courts — Procedure—Appeal—Decisions Reviewable— Amount of Damages.</p> <p>The question whether or not a jury has been induced by passion or prejudice to assess an excessive amount of damages is not reviewable in a federal appellate court.</p> <p>4. Writ of Error — Review—Discretionary Matters — New Trial — Order Granting or Refusing Discretionary and Not Reviewable.</p> <p>Where a trial court has jurisdiction to grant or refuse a new trial, its order granting or refusing it is discretionary, and it is not reviewable in a national appellate court.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3860-3876.]</p>

<p>1. Railroads — Foreclosure os’ Railroad Mortgage — Preferred Claim in Equity.</p> <p>A mortgagee oC the property acquired and to be acquired and of the income of a quasi public corporation, such as a railroad company, takes a lien on the net income after the current expenses of operation in the ordinary course ot business are paid, and impliedly agrees that,the gross income shall be first applied to the payment of these expenses.</p> <p>|Ed. N'oie. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 5814585.]</p> <p>2. Receivers — Priority ot Running Expenses before Receivership.</p> <p>A court of equity engaged in administering mortgaged railroad property under a receivership in a foreclosure suit may in its discretion prefer unpaid claims for current expenses incurred in the ordinary operation of Hie railroad within a limited time, usually six months, before the receivership, to the claims of bondholders secured by a prior mortgage, in the distribution of the income or of the proceeds of the corpus of the mortgaged property.</p> <p>fEd. Note. — For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 301-306.]</p> <p>3. Same — Preferential Claim — Test.</p> <p>The tost of the equity which entitles a claim to a preference over the mortgage in foreclosure is whether the consideration of the claim was or was not a part of the current expenses of the ordinary operation of the corporation within the timo limited.</p> <p>LEd. Note. — For cases in point, see Cent Dig. vol. 42, Receivers, §§ 301-306.]</p> <p>4. Same-Necessity — Conservation—Increase of Security Insufficient.</p> <p>Neither the fact that the consideration of the claim conserved the properly and increased the security of the mortgagee, nor the fact that it was necessary to keep the mortgagor a going concern or to continue its bust ness or operation, will raise a preferential equity in its favor, if its consideration was not a part of the current expenses of the ordinary operation of the mortgagor.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 42, Receivers, §§ 301-806.]</p> <p>5. Same — Claims fob Purchase Price oe Rental of Rolling Stock Rot Preferential.</p> <p>Claims for the purchase price or for the rental of engines, freight and passenger ears are not entitled to preference in payment out of the income or out of the corpus of the mortgaged property over those of creditors secured by prior mortgages.</p> <p>[Ed. Note. — Eor eases in point, see Cent Dig. voi. 42, Receivers, §§ 301-306.]</p> <p>6 Same — Claim foe Purchase Price of Ballast Caes Not Preferential.</p> <p>A claim for $26,192.05, the purchase price of 32 ballast cars, bought by a mortgagor railroad company operating 168 miles of railroad within six months of the appointment of recen ers, is not a current expense of the ordinary operation of such a railroad company, and is not entitled to preference in payment out of the income or the corpus of the mortgaged property in preference to those of bondholders secured by prior mortgages.</p> <p>The broad language of the dictum in Fosdick v. Seliall, 99 U. S. 235, 252, 25 L. Ed. 339, that “necessary operating and managing expenses, proper equipment, and useful improvements” are to be deducted from the current income before the net income out of which the mortgage is to be paid arises, has been disapproved and modified, and the class of claims entitled to equitable preference has been limited to those for the current expenses of ordinary operation within six months of the receivership, by the later decisions of the Supreme Court in Kneeland v. Trust Co., 136 U. S. 89, 98, 10 Sup. Ct. 950, 34 L. Ed. 379, Morgan’s L. & T. R. & S. S. Co. v. Texas Cent. Ry Co., .137 U. S. 171. 196, 198, 11 Sup. Ct. 61, 34 L. Ed. 625, Thompson v. Railroad Co., 132 U. S. 68, 71, 73, 74, 10' Sup. Ct. 29, 33 L.- Ed. 256, Thomas v. Car Co., 149 ü. S. 95, 110, 13 Sup. Ct. 824, 37 L. Ed. 663, Southern Ry. Co. v. Carnegie Steel Co., 176 TJ. S. 257, 296, 20 Sup. Ct 347, 44 L. Ed. 458, Lackawanna Iron & Coal Co. v. Farmers’ Loan & Trust Co., 176 U. S. 298, 315, 20 Sup. Ct. 363. 44 L. Ed. 475, and Gregg v. Metropolitan Trust Co., 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717. See Illinois Trust & Sav. Bank v. Doud, 44 C. C. A. 389, 105 Eed. 123, 52 L. R. A. 481.</p>

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

<p>1. Contracts — Railroad Bridge Construction — Estimates oe Engineers.</p> <p>A contract for railroad bridge construction in Mexico provided that the railroad company’s engineers should supervise the work, approve the number of men to be sent from the United States, their salaries, fitness, the number to be employed, that they should O. K. all important purchases of material and those obtained outside of Mexico, with the right to determine what were important, to voucher and approve all expense bills, and pay rolls in triplicate, etc. Held that, the railroad company having, accepted and paid 44 out of 49 of such estimates without question, the court in an action on the contract properly held that the estimates so made were prima facie evidence of the work done, and that the account should be based on the estimate, subject to correction, contradiction, or impeachment for error, mistake,, omission, or concealment.</p> <p>2. Corporations — Agents—Authority—Repudiation of Acts.</p> <p>Where a contract for railroad bridge construction on a percentage basis originally limited the contractor’s net compensation for building the original bridges to $33,000, and thereafter the assistant to the president of the railroad company was sent to confer concerning expediting the work, and then waived the compensation limit so fixed, and the railroad company did not promptly repudiate his acts, it would be assumed that he had authority to act in the premises, and that the waiver was binding on the corporation.</p> <p>S. CONTRACTS — PERFORMANCE—CURRENCY—RATE OF EXCHANGE.</p> <p>Where a contract, made on the percentage basis, for railroad bridge construction in Mexico provided for payment on the Mexican money basis, the exchange to be effected on the Mexican rate existing at the time in Mexico City, the bridge company, having contracted' with certain employes taken from the United States for payment in United States currency or in Mexican at a flat rate of exchange, was chargeable with any. loss suffered because of changes in the rate of exchange during the performance of the contract.</p> <p>4. Same — Accounting.</p> <p>- A contract for Mexican bridge construction provided that the railroad company should pay the contractor the exact cost plus ]5 por cent, for his profit, and that all payments should be made in Mexican money at the rate of exchange existing at the time of payment in Mexico City. $086,48.1.37 was paid in Mexico to American employes, and to reimburse plaintiff for this sum the railroad company forwarded gold drafts for $343,240.68, which the bridge company converted into Mexican currency at the rate of $2.2.0, making a gain of $3.1,203.69. Held, that the bridge company was properly required to account for such gain to the railroad company.</p> <p>5. Interest — Unliquidated Demands — Demand—Shit Brought.</p> <p>Where a railroad bridge construction contract was made in Missouri for performance in Mexico, and suit for an accounting was brought thereon in Maryland, whore funds of 1he railroad were attached, the contractor was entitled to recover interest on the balance due from the date of demand or suit brought, under Rev. St. Mo. 1899, § 3705 [Ann. St. .1006, p. 2073], declaring that creditors shall be allowed interest at 6 per cent., when no other rate is agreed on, for all moneys after they become due and payable on written contracts and on accounts after maturity and demand made.</p>

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

<p>1. COTJETS — JURISDICTION OS' ClBOUTT COUBT — ENJOINING WEIT OS EeKOB.</p> <p>A Circuit Court of, the United States sitting in equity has no authority to enjoin a party to a judgment rendered on its law side from suing out a writ of error from the Circuit Court of Appeals to review said judgment.</p> <p>I Ed. Noto. — Enjoining proceedings in federal courts, see note to Clapp v. Otoe County, 45 C. C. A. 591.1</p> <p>2. JunGitEN’K-SATISSACTION — COMPELLING Elf IKY — EQUITY—JURISDICTION.</p> <p>A court of equity is without jurisdiction of a suit for a decree requiring the entry of satisfaction of a judgment at law, the court which rendered such judgment haying full power over it, and to grant any relief in respect tiiereto which justice may require.</p> <p>TEd. Note. — For eases in point, see Cent. Dig. vol. 30, Judgment, §§ 1707-1713.]</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District oí New York. This cause comes here upon petition to review an order of the District Court, Western District of New York, providing for the distribution of certain funds among the holders of the mortgage bonds of the bankrupt corporation. The facts sufficiently appear in the opinion. The opinions of the District Judge and of the referee are reported in 147 Fed. 814.

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

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

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

The decree of the Circuit Court for the Northern District of New York held valid and infringed the first claim of letters patent No. 717,014, granted December 30, 1902, to William Morrison, for a new and useful improvement 'in making brushes. The opinion below is reported in 146 Fed. 517.

<p>Patents — Inbbingement—Design pob Bedspbing.</p> <p>The Tompkins design patent, No. 87,649, for a design for a bedspring, held to disclose patentable novelty and invention, and also to be infringed by a spring which, while not an exact copy of that of the patent, is sufficiently like it to deceive purchasers who give it ordinary observation.</p>

<p>Patents — Infringement—Electric Motors.</p> <p>The Eickemeyer patent, No. 677,308, for an alternating current motor, held valid and infringed.</p>

<p>Patents — Infringement—Separable Buttons.</p> <p>The Pringle patent, No. 720,616, for a stud member of a separable button or fastener, held valid and infringed.</p>

<p>Bankruptcy — Trustee's Sam — Vacating op — Inadequacy—Upset Bi».</p> <p>Where a bankrupt’s goods were appraised at $5,000 and realized $3,400 at a public sale by the trustee, an upset bid merely amounting to an advance of $400 was insufficient to warrant a vacation cf ¡.be salo and on order directing a resale. While a sale may be set aside on the sole ground of inadequacy, it must be such as to be unconscionable.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. toL ⅞ Bankruptcy, § 370.]</p>

<p>1. Trusts — Following Trust Funds.</p> <p>Complainant having purchased land of testator, he agreed to assist her in the construction of a cottage thereon, and negotiated with a builder for fihat purpose. When the contract was prepared, the builder refused to sign it, whereupon testator signed the contract and employed the builder to do the construction work, testator giving his personal attention to the same. Testator directed complainant to make checks payable to him, informing her th'at he would be responsible to her for the payment of the bills contracted by the builder, pursuant to which instructions she sent testator a remittance of $2,000, which he deposited in his bank so that it was earmarked, and died without having disbursed the same. Held, that, in view of all the circumstances, the testator was complainant’s agent for the disbursement of the money, and that complainant was entitled to recover from the bank the unexpended balance of. the deposit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 520-526.]</p> <p>2. Same — Costs—Chargeable to Fund.</p> <p>Where testator at the time of his death held certain money belonging to complainant, as her agent, which had been deposited in the bank in such a manner as to be earmarked, both the bank and the executrix being entitled to hold the fund until complainant’s right thereto was established, they were not chargeable with the costs of a suit by complainant to recover the funds, which costs were payable out of the fund.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trusts, § 377.]</p>

<p>In Bankruptcy. On report of special referee and various petitions.</p>

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

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

<p>Customs Duties — Classification—Jacquard Figured Goods.</p> <p>Goods which have been made on a Jacquard loom and contain two or more colors in the filling are dutiable under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], for “all Jacqftard figured goods in the piece, made on looms * * * and containing two or more colors in tlie filling,” irrespective of the fact that they are not such goods as are customarily made upon the Jacquard loom nor are its characteristic and usual product.</p>

<p>1. Bankruptcy — Petition—Acts op Bankruptcy.</p> <p>An averment of an act of bankruptcy, that the alleged bankrupt had within four months paid money to. one or more creditors, with intent to prefer such creditors over its other’creditors, was insufficient.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 118.]</p> <p>2. Same — Amendment.</p> <p>Leave will not be granted to amend a bankruptcy petition, when the proposed amendment introduces entirely new acts of bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 128.] .3. Same.</p> <p>A bankruptcy petition, averring no specific act of bankruptcy, cannot be amended, so as to allege an act of bankruptcy committed more than four jnonths prior to the amendment.</p> <p>fEd. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 128.]</p> <p>4. Same — Petition por Amendment — Requisites.</p> <p>An application to amend a bankruptcy petition must show why the act of bankruptcy proposed to be inserted by amendment was not set out in the original petition, in compliance with bankruptcy rule 11 (18 Sup. Ct. v).</p> <p>[Ed. Noté. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 128.]</p>

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

<p>Indians — Reservation Treaty — Construction—Indian Lands — Title.</p> <p>Indian agreement 1883 between the United States and Chiefs Moses and Sar-sarp-kin, of the Columbia reservation, and Tonasket and Lot, of the Colville reservation, provided for the removal of the tribes to the Colville reservation at their election, for their surrender of a large, quantity of reservation lands, and for the allotment in severalty of one square mile of land to each head of a family or male adult, “in the possession or ownership of which they shall be guarantied and protected.” This agreement was ratified by act Cong. July 4, 1884 (23 Stat. 79, c. 180), providing that, in case the Indians elect to remain on the Columbia reservation, the Secretary of the Interior shall cause the quantity of land stipulated in the agreement to be allowed them; the same, when selected, “to be held for the exclusive use and occupation” of such Indians, and the remainder of the reservation to be restored to the public domain. Held, that land allotted to such Indians in severalty vested in them in fee, as distinguished from a mere right of possession.</p>

<p>J. Customs Duties — Rules oe General Appraisees — Authorization by Secretary oe Treasury.</p> <p>Under Customs Administrative Act June 10, 1890, c. 407, § 12, 26 Stat. 136 [U. S. Comp. St. 1901, p. 3931], tbe Secretary of the Treasury is empowered to authorize the Board of General Appraisers to make rules for the avoidance of conflicting decisions.</p> <p>2. Same — Board op General Appraisers — ¡Rules—Transfer op Jurisdiction.</p> <p>A Board of three General Appraisers, which had acquired jurisdiction of a case, and after hearing therein had prepared and signed, but had not promulgated, a decision, transferred the case to another Board; this being in accordance with a rule adopted for the avoidance of conflicting decisions. The latter Board, after giving the parties a rehearing, rendered a decision of opposite effect to that which had been prepared by the former Board. Held, that adoption of a rule for the purpose named was reasonable and commendable, and that such procedure thereunder was valid.</p> <p>3. Same — Rules op General Appraisers — Approval by Secretary op Treasury.</p> <p>The Board of General Appraisers adopted a rule of procedure before the power to enact it had been given by the Secretary of ilie Treasury, but shortly thereafter the Secretary promulgated a regulation providing that the Board should adopt such a rule. Held that the ratification should be presumed.</p> <p>4. Same — Glassipication—Machined Forgings.</p> <p>So-called machined forgings, being such as in addition to the forging process have been subjected to a machining process wholly or partly complete, are not within the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule O, par. 127, 30 Stat. 160 [U. S. Gomp. St. 3901, p. 1637], for “forgings * * * of whatever degree or stage of manufacture.”</p>

<p>In Bankruptcy. On review of decision of referee disallowing claim of W. L. Seale.</p> <p>The following is the opinion of Referee R. T. Ervin:</p> <p>This matter coming on to be heard on the objections of the trustee to the claim of W. L. Seale and it appearing that the claim of Seale is on- a judgment rendered by the circuit court of Mobile county, Ala., in a suit wherein Seale claimed damages for a personal injury suffered by him while in the employ of the bankrupt. This suit was brought under the employer’s liability statute, constituting section 1749 of the present Code of Alabama of 1896, and the judgment was rendered after the adjudication of bankruptcy. The objections of the trustee raise the question that the judgment is for a tort, and so is not susceptible of proof against the bankrupt estate. Petitioner, however, contends that, as it was necessary in suing under this statute to aver and to prove a contract; oí employment, the claim is “founded upon a contract, expressed or implied,’’ as provided by paragraph 4 of section 63 of the Bankrupt Act (Act July 1, J898, c. 841, 30 Stat. 502 LTJ. S. Comp. St. 3901, p. 3417J). Is this claim founded upon a contract, as here provided?</p> <p>In the case of Alabama Great Southern R. R. Oo. v. Carroll, 97 Ala. 137, 13 South. 808, 18 L. R. A. 433, 38 Am. St. Rep. 163, it is said: “The only office of the contract, under section 2590 of the Code, is the establishment of a relation between them, that of master and servant; and it is upon that relation, that incident or consequence of the contract, and not upon the rights of the parties under the contract, that our statute operates. The law is not concerned with the contractual stipulations except in so far as to determine from them that the relation upon which it is to operate exists. Rind-ing this relation, the statute imposes certain duties and liabilities on tbe parties to it wholly regardless of tlie stipulations of the contract as to tlie rights of the parties under it, and, it may be, in the teeth of such stipulations. It is the purpose o£ the statute, and must be the limit of its operation, to govern persons standing in tlie relation of master and servant to each other in respect of their conduct in certain particulars within the state of Alabama.”</p> <p>The conclusion reached in this case seems to me to he correct, and T therefore follow it. If the plaintiff’s injury arose from the negligence of the defendant, as the complaint averred that it did, I cannot see that it was founded upon a contract of employment, merely because such contract created the relation or placed the parties in the position where plaintiff was injured by the negligence of the defendant. To my mind tlie statute does not create or add any term to the contract of employment. Its only province is to chango the common-law rule that the employe assumes the risk as to the negligence of his follow servant, and as to the safety of the plant, etc., of the employer in which service is accepted. In other words, the statute changes the duties which the common law imposed on the employer, but does not have anything to do with the contract of employment.</p> <p>In the case of Mobile Life insurance Company v. Iiandall, 74 Ala. 177, Judge Stone quotes from Wait’s Ac. & Def., as follows: “When there is a contract either expressed or implied, from which a common-law duty results, an action on the case is for tlie breach of that duty; in which case the contract is laid as mere inducement, and tlie tort arising from the breach of duty is the gravamen of the action.” On page 178, he says: “Wherever there is carelessness, recklessness, want of reasonable skill, or the violation or disregard of a duty which the law implies from the conditions or attendant circumstances, and the individual injury results therefrom, an action on the case lies in favor of the party injured; and if the transaction had its origin in a contract which places the parties in such a relation as that, in performing or attempting to perform the service promised, the fort or wrong is committed, then the breach of tlie contract is not the gravamen of the suit. There may be no technical breach of the letter of the contract. The contract, in such case, is mere inducement, and should be so stated in pleading. It induces, causes, creates the conditions or state of things, which furnishes the occasion of tlie tort. The wrongful act, outside of the letter of the contract, is the gravamen of the complaint, and in all such cases the remedy is an action in the ease. Take, for illustration, the contract of a carpenter to repair a house, partly decayed, or otherwise defective. The implications of his contract: are that he will bring to the service reasonable skill, good faith, and diligence. If he fail to do the work, or leave it incomplete, the remedy, and only remedy against him, is ex contractu. Suppose, in the attempted performance, he. by his want of skill or care, destroys, damages, or needlessly wastes the materials furnished by the hirer, or suppose that in making the needed repairs he did it so unskillfully or carelessly as to damage other portions of the house, this Is tort, for which the contract only furnished the 'occasion. The contract is mere inducement, and the action is on the case. We may add that there are many cases in which the pleader has the election of suing in assumpsit or case.”</p> <p>Does not the gravamen of the complaint furnish or show the foundation of the cause of action; in other words, is not a claim founded upon what may he said to he the gravamen of the complaint? On the hottom of page 177. the court illustrates hy stating a case where the terms of the contract contain the provision which the law would in its absence impose as a duty, and the court there says: “We do not doubt that assumpsit would lie in the case last supposed, hut case would lie also. It was a case, not only of a breach of contract, but a violation of a duty enjoined by law, and therefore a tort. Blick v. Briggs, 6 Ala. 6S7; Myers v. Gilbert, IS Ala. 4G7. In such case, the pleader has the option to sue in assumpsit for a breach of the contract; or in case, for the violation of the duty imposed hy law.”</p> <p>It therefore seems to me, where the gravamen of the complaint is the breach of the legal duty growing out of a contract, that the demand is not founded upon the contract, but only on the “tort, for which the contract only furnished the occasion.”</p> <p>It is therefore ordered that the claim of W. L. Seale be, and the same is hereby, disallowed.</p>

<p>1. Cbiminal Law — Federal Courts — Jurisdiction—Process—Foreign Corporation.</p> <p>Under Rev. St. § 716 [U. S. Comp. St. 1901, p. 580], providing that the Supreme, circuit and district courts shall have power to issue writs of scire facias, and all writs not specifically provided for by statute which may he necessary for the exercise of their respective jurisdictions agreeable to the usages and principles of law, the federal District Court sitting in Tennessee had power to issue summons for the appearance of an Indiana corporation having neither officer nor place of business within the district of Tennessee, where it was indicted for an offense committed in such district.</p> <p>2. Corporations — Criminal Prosecution — Process—Return—Construction.</p> <p>A marshal’s return on a summons indorsed served on the Standard Oil Company by reading to and in the presence of and by delivering a true copy of the writ to G., manager of the Standard Oil Company, he being the highest officer of sáid company found “in the district, at Indianapolis, Marion county, Feb. 8, 1907,” should be construed merely as meaning that the return was executed at Indianapolis, Marion county, etc., and was not therefore objectionable as indicating that the marshal limited his search for the highest officer of the company to the city of Indianapolis, and not to the district.</p> <p>3. Same — Amendment.</p> <p>Shell return was amendable on the application of the district attorney, as authorized by Rev. St § 948 [U. S. Comp. St. 1901, p. 695].</p> <p>4. Same — Plea in Abatement.</p> <p>No inference will be indulged by the court to supply omitted material averments or to cure inaccuracies in a plea in abatement in a criminal case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 645, 655.]</p> <p>5. Same.</p> <p>Summons having been served on a corporation by serving 6., as its manager and highest officer within the district, defendant pleaded in abatement that G. was not at the issuing of the process, the service of the same, nor since, the highest or chief officer or agent of the defendant in the district of Indiana, but that B. was; he being the superintendent and a higher officer or agent than G. 17eld, that such plea was fatally defective for failure to allege that the office of superintendent was higher than that of manager; that B. was superintendent of defendant, and represented it in the district of Indiana at the time; that he resided in Indiana, and was within the state at the time of the service.</p>

<p>Customs Duties — Classification—Hides oe Cattle — Bueealo Hides — “Cattle.”</p> <p>Tbe term “hides of cattle,” in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 437, 30 Stat. J.92 [U. S. Comp. St. 1901, p. 1676], is not used in a commercial sense, but according to the ordinary dictionary meaning of the words, and refers to the hides of domesticated animals of the bovine species, including those of the East India buffalo.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. The case involved the construction of the proviso in Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 [U. S. Comp.

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

<p>1. Customs Duties — Action for Duties — Stay of Proceedings.</p> <p>On an action against an importer for unpaid duties, it is proper to stay the trial in order to permit the importer to pay the duties under protest, so as to allow the Board1 of General Appraisers to pass upon the correctness of the assessment in question, as prescribed by Customs Administrative Act June 10, 1890, e. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933].</p> <p>2. Same — Jurisdiction of General Appraisers — Delay in Payment of Duties.</p> <p>Mere delay in the payment of duties on imported merchandise does not deprive the Board of General Appraisers of power to pass upon the question of the proper classification of imported merchandise under Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], where protest has been filed within the time prescribed in said section.</p> <p>3. Same — Interest on Unpaid Duties.</p> <p>The United States is entitled to interest on duties due from an importer.</p>

<p>Bankruptcy — Discharge—Prepeiíenges.</p> <p>A bankrupt borrowed money prior to the filing of his petition in bankruptcy, to secure which he executed a deed of trust to certain personal property, which he claimed belonged to his wife. Thereafter he executed a bill of sale to the lender for a stock of goods and appurtenances, the purchase price being credited on the debt secured by the deed of trust, and omitted to list the property conveyed by the deed in his schedules in bankruptcy. He also claimed that the goods were sold, for cash in good faith, while he believed himself perfectly solvent, and that.the sale was not made to secure a pre-existing- debt. Held, that such transfer did not constitute a preference which would bar his application for discharge.</p>

<p>In Bankruptcy.</p>

<p>Trade-Names — Wrongful Use — Unlawful Competition — Names of Individuals.</p> <p>Complainant’s president, Laving built up a large business in the manufacture of artificial legs under ¿is own name, wliieb became widely and favorably known as “Rowley” legs, transferred bis business and good will to complainant, which employed defendant, a brother of its president, of the same narfie, to open an agency in another city. This defendant conducted until a disagreement arose, when he began manufacturing legs in competition with comxilainant, advertising himself as manufacturing “Rowley Artificial Limbs,” and in various other ways, by using the name “Rowley,” misleading the public to believe that the limbs sold by defendant were those manufactured by complainant. Held, that defendant was not entitled to use his name in such manner, and that complainant was entitled to an injunction restraining defendant’s use of the name “Rowley” in connection with artificial limbs manufactured by him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 75.</p> <p>Right to use one’s own name. See notes to R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 17 C. C. A. 579; Kathreiner’s MalzKaffee Fab. v. Pastor Kneipp Med. Co., 27 C. C. A. 357.]</p>

<p>1. BANKRUPTCY — Coil POSITION — CONFIRMATION—FRAUD.</p> <p>Under Bankr. Act July 1. 1898. c. 541, 30 Slat. 549 [XT. S. Comp. St 1901, p. 3427], § 12d, providing that a composition shall be confirmed if the judge is satisfied that it is for the host interests of creditors, and that the bankrupt has not been guilty of any act which would bar his discharge, a composition cannot bo sustained where it is proved by the holder of an assigned claim against the bankrupt that lie liad been guilty of fraudulent concealment, and disposal of assets of great value, though it appears that the creditors under the composition might get a larger dividend Ilian would lie secured on full administration.</p> <p>2. Same — Objecting Creditor — Motive.</p> <p>Where the holder of an assigned claim against a bankrupt objected to confirmation of a composition because of fraudulent concealment and disposal of assets by the bankrupt, it was immaterial that the holder of such claim purchased it for the purpose of forcing a settlement or discontinuance of a suit instituted by the trustee against another, by threats of opposition to the confirmation.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The decision below reversed the assessment of duty by the collector of customs at the port of Boston on an importation by F. T. Walsh.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. In the decision below, the Board of General Appraisers, on the authority of a former decision (G. A. 5,728; T. D. 25,431), sustained the importers’ protests against the assessment of duty by the collector of customs at the port of Providence.

<p>Customs Duties — Classification—Flax-Wool Fabrics.</p> <p>Fabrics in chief value of flax, but in part of wool, are dutiable under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par...346, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1663], relating to goods “the component material of chief value” in.which is flax, and not under Schedule K, par. 366, 30 Stat. 184 [U. S. Comp. St. 1901, p. 1066], relating to cloths “in part of wool.”</p>

<p>1. Copyright — Suit for Infringement — Preliminary Injunction.</p> <p>Under the rule that, to warrant the granting of a preliminary injunction, the facts must he clear, and the equities growing out of them in no doubt, such an injunction will not be granted in favor of one of two rival publishers of information respecting real estate transfers in a city to restrain the sale of a publication by the other, on the ground that it contains pirated copyrighted matter, where the piracy is denied, as well as the right of complainant to copyright the matter, and a counter charge of piracy is also made in the same connection, and where, moreover, the alleged infringing publication is a year old.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Copyrights, § 78.]</p> <p>2. Same — Future Numbers of Periodical.</p> <p>Nor will a preliminary injunction be granted to restrain infringement of the copyright of future numbers of a periodical publication which have not yet been published or copyrighted.</p> <p>3. Same — Inspecific or Argumentative Injunction.</p> <p>Semble, that an injunction simply in terms restraining the defendants from making any unlawful use of the complainants’ publication would be open to the objection that it was argumentative and inspecific; the defendants being entitled to be informed with reasonable certainty of what they are forbidden to do.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Copyrights, S 79.]</p>

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

<p>Bankruptcy — I’artnkbsiiip—-Members of Firm.--Exemptions.</p> <p>Where a minor, though having contributed to the capital of a firm, did. not participate in the assignment which constituted the act of bankruptcy, nor take any part in any of the firm’s transactions, and was not a partner as to creditors, he was not entitled to an exemption allowance out of the personal property of the estate.</p>

<p>1. Shipping — Negligent Navigation — Destruction op Beacon.</p> <p>Tbe rule tbat a moving vessel is presumably in fault for a collision with one at anchor and without fault, and can only exonerate herself by showing that the collision was the result of inevitable accident, applies with greater force to a collision with a stationary object fixed in the land In the bottom- of the water, such as a beacon.</p> <p>2. Same — Liability op Vessel — Inevitable Accident.</p> <p>Inevitable accident, which will exonerate a vessel from liability for a collision, or for a destruction of property, does not mean an accident which was unavoidable under any circumstances, but one which could not be prevented by the exercise of ordinary care, caution, and maritime skill.</p> <p>3. Same.</p> <p>The destruction of a government beacon, which was stationary on a derrick constructed on piles on the side of the Mobile ghip Channel by a steamship, which came into collision with it when coming up the channel against a strong ebb tide, a freshet in the river, and a north wind, held to have been due to an error of judgment or want of proper skill or attention on the part of the harbor pilot, who was navigating the ship, in failing to stop and let go the anchor in time to a-faid the collision when he found she did not answer to her helm, for which fault the ship was liable.</p> <p>4. Admiralty — Procedure—Adjudication of Collateral Issues.</p> <p>In a suit in rem against a ship to recover for tbe destruction of a beacon, for which she was held in fault, the court will not adjudicate a claim by the claimant of the ship against the pilot, who was in charge of her navigation, but will leave such claim, to be determined in an independent suit.</p>

<p>1. Courts — Federal Courts — Federal Question — State Decisions.</p> <p>Whether a state statute authorizing arrest of a judgment debtor on certain grounds after the return of an execution unsatisfied has been superseded by the federal bankruptcy law is a federal question, as to which stale decisions are merely advisory.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 954.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 408.]</p> <p>2. Same — State Writs — 'Wabbant op Abbest — Issuance bt Federal Court— Statutes.</p> <p>Act Pa. July 12,1842 (P. L. 339), authorizing the issuance of a warrant of arrest, against a judgment debtor for specified causes after the return of an execution unsatisfied, may be enforced by the federal courts sitting in such state under Rev. St. § 710 ITT. S. Comp. St. 1901, p. 580], authorizing federal courts to issue writs of scire facias and writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, agreeable to the usages and purposes of law, and section 910 (TJ. S. Comp. St. 1901, p. 084], declaring that a party recovering a judgment in any common-law case in any Circuit or District Court of the United States shall be entitled to similar remedies on the same as he would be entitled to in a state court.</p> <p>3. Bankruptcy— State Insolvency Daws — Suspension.</p> <p>State insolvency laws are suspended by the bankrupt act of 1898 only so far as the two are in conflict, and in so far as the bankruptcy law covers and supplies what is undertaken to be disposed of by the state law.</p> <p>4. Same — Assignment por Creditors.</p> <p>A voluntary assignment Cor the benefit of creditors, though forming part of the general insolvency system of a state being valid at common law, may be carried out notwithstanding the federal bankruptcy act, unless such assignment is directly called in question by a petition in bankruptcy.</p> <p>5. Same — Arrest op Judgment Debtor Under State Statute — State Insolvency Daw — Suspension by Bankruptcy Act.</p> <p>The right to arrest a judgment debtor for specified causes conferred by Act Pa. July 12, 1842 (P. D. 339), was not taken away by the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 34181), even though'the insolvency laws of the state (in effect made a part of tho remedy) were superseded thereby; the right of the judgment debtor to relief therefrom,’ either before or after commitment, by assigning his property for the benefit of creditors, agreeable to the provisions of such insolvent laws, being written into the statute allowing his arrest, and so being preserved to him, notwithstanding that the insolvency laws themselves were superseded, and, even if this were not so, the debtor being entitled to the same relief by resort to the bankruptcy act by which the provisions of the insolvent laws were supplied.</p> <p>6. Prisons — Incarceration op Federal Peisoners.</p> <p>A federal prisoner may be incarcerated in any of the jails of the district.</p> <p>7. Courts — Federal Courts — Procedure—Execution—Arrest op Judgment Debtor — Bail—Jurisdiction op Court Commissioners.</p> <p>Under Rev. St. § 991 [U. S. Comp. St. 1901, p. 7091, providing that all proceedings for discharge from arrest or imprisonment on mesne or final process shall be had before one of the commissioners of the Circuit Court for the district in which the defendant is held, where a judgment debtor was arrested on a writ issued out of the federal court on the ground that he had property which he refused to apply to a judgment against him, all proceedings to secure his release after commitment other than by petition In bankruptcy must be taken before a United States commissioner.</p>

<p>On Writ of Habeas Corpus and Return Thereto,</p>

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

<p>1. Contracts — Action por Price — Right op Action — Substantial Performance.</p> <p>An action for the contract price may be maintained either upon the contract, upon an allegation of performance, or upon a quantum meruit, where one has substantially though not completely performed- his agreement, and the other party has received and retained the benefits of such performance. The other party, however, may recover the damages he has sustained by the failure of the first party to completely perform, either by an independent action before he is sued, or by a counterclaim! after suit has been commenced against him.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1549-1557.]</p> <p>2. Same — Submission op Issues.</p> <p>A count upon the contract and one 'upon the quantum meruit for the same relief may be submitted to a jury together, under an instruction that there can be but one recovery.</p> <p>3. Work and Labor — Evidence—Admissibility.</p> <p>In an action on a quantum meruit for the value of the work and materials furnished under a contract partially performed, the latter is evidence of their value.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 50, Work and Labor, § 52.]</p> <p>4. Courts — United States Courts — Procedure—Verdict.</p> <p>A general verdict on several counts in a complaint and several counterclaims in an answer is sufficient in a national court in an action at la.w, although several or special verdicts are required in such eases in the courts of the state in which the trial is had.</p> <p>5. Same — Conformity to State Practice — Statutory Provisions.</p> <p>The act of conformity (section 914, Rev. St. [U. S. Comp. St. 1901, p. 684]) does not require the courts of the United States to adopt any rule of pleading, practice, or procedure enacted by state statute or announced by -the decision of a state court which would restrict their jurisdiction, or unwisely incumber the administration of justice in their tribunals. It only requires conformity “as near as may be.”</p> <p>[Ed. Note.; — Eor cases in point, see Cent. Dig. vol. 13, Courts,. §§ 899-910.</p> <p>Conformity of practice in common-law actions to that of state court, see notes to 5 C. C. A. 594 ; 27 C. C. A. 392],</p> <p>6. Arbitration and Award — Arbitrators—Authority—Termination.</p> <p>The power' of an arbiter is exhausted by a final award, and he may not stibsequently modify, revoke, or annul his finding; or make a new awardi upon the same issues.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 4, Arbitration and Award, §§ 355-358.]</p> <p>7. Contracts — Performance—Certificate of Engineer — Modification.</p> <p>An engineer empowered by the parties to an agreement to determine when it was completed to his satisfaction, and when 15 per cent, of the price, which was to be retained until that time, was due, made a final estimate in which he certified that this 15 per cent, was due on January 5, 1903. On November 5, 1903, lie made another final estimate, wherein he charged the contractor $3,067.10, which did not appear in liis former estimate. Held, the power of the engineer to determine that the work was completed and that the 15 per cent, was due was exhausted by his first estimate, and the second was not binding upon the parties.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 1326.1</p> <p>8. MUNICIPAL CORPORATIONS — ACTIONS—CONDITIONS PRECEDENT — PeKSENTAtion of Claim.</p> <p>The presentation of a claim to a city is not indispensable to the maintenance of an action upon it, under § 5854, Rev. St. Mo. 1899. The only penalty for a failure to present it is disallowance by the city, and, if the claim is unliquida ted, the loss of costs.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 2193, 2213.]</p> <p>0. Same-Governing Body — Proceedings—Contracts.</p> <p>The legislative body of a city may act by resolution or motion, unless the charter or statute from which it derives its powers requires it to act by ordinance. Sections 5838 and 5846, Rev. St. Mo. 1809 [Ann. St. 1906, pp. 2051, 2955], do not require tlie passage of an ordinance to extend the time for the performance of a contract with the city, but its city council may grant such an extension by motion or resolution.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 895.]</p> <p>10. Pleading — Issues—Evidence Admissible.</p> <p>The plaintiff pleaded an extension of time to a later date, “to wit November 1, 1902” and then proved its extension “at least sixty days” from September Í, 1902. Held, pleading a date under a videlicet does not hold the pleader to the exact date named, and he is not estopped thereby to prove a near but different date.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1306, 1311.]</p> <p>11. Contracts — Construction—Particular Phrases.</p> <p>An extension of “at least 60 days” is an extension for an indefinite time not less than 60 days, and gives a reasonable time after tlie 60 days expire.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 903-968.J</p> <p>12. Municipal Corporations — I’ublic Improvements — Contracts—Performance — Approval oe Engineer.</p> <p>An engineer was an employe of the city and also an arbiter under a contract between tlie city and the contractor, empowered to direct the lat" ter to do extra work with tlie approval of tlie city council, and to decide all questions which should arise relative to the installation of waterworks by tlie contractor. After 1he works had been substantially completed to tlie satisfaction of tlie engineer, and had been in the use of the city for three months, a break and leak occurred in the settling basins which rendered them unfit for use. Thereupon, by direction of a committee of the city council, tlie engineer notified the contractor to repair the basins and to make them water tight, or that the city would do so at his expense. The contractor answered that he was not responsible for the break, and that he would not repair it. Held, the engineer was acting as the agent of the city and not as an arbiter in giving the notice, and his letter which contained the notice was not his decision as arbiter, either that the contractor was responsible for the repairs, or that they were extra work under -the contract.</p> <p>(Syllabus by the Court.)</p>

<p>Indians — Indian Lands — Allotment.</p> <p>Defendant W., a person of Indian blood, made a selection of land in the Umatilla Reservation, after which L., an Indian woman, also attempted to select the same land. L.’s stepsons, who were white persons iand not entitled to allotment, were in possession when W. made his selection, and agreed to relinquish the ’possession to W. on their being permitted to retail* the present crop, which was allowed. L. never had any possession of the land until after it was allotted to W. in 1891. Held, that L.’s stepsons held possession at the time of allotment, subject to the claim of W., and that he had the superior right to the allotment. '</p>

<p>On Motion to Strike Out Interrogatories.</p>

<p>Contracts — Performance—Conditions.</p> <p>Defendant, having a claim against D., and desiring to obtain certain documentary evidence in possession oC the husband of plaintiff’s decedent, contracted to pay decedent or her assigns $4,325 on a specified date, in consideration of a delivery of the papers, and further obligated himself to pay decedent, in addition, $5,000 out of any money he might recover and collect from L. or F. under a specified contract, on condition that defendant recover judgment against L. for the amounts of money that might be recovered against defendant thereafter, for which defendant had claims against L. under his contract. Defendant thereafter compromised his suit against L., taking the note of a third person in full satisfaction of the claim. Held, that such compromise rendered performance of the condition by which decedent was entitled to the additional payment impossible. and she, not being responsible therefor, was entitled to recover the additional payment, as though the condition had been performed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 1446.]</p>

<p>1. BANKBUPIOY — PROCEEDINGS—METHOD OF REVIEW'.</p> <p>This appeal relates to the title of certain assets claimed by the trustees in bankruptcy of Frederick M. Tucker & Co. to belong to the bankrupt estate, but which the appellant claims belongs to a testamentary trust The proceedings were commenced by the trustees in bankruptcy by a petition in the District Court. There the appellant resisted the petition, among other reasons, because, as he claimed, the District Court had no jurisdiction over the controversy. The District Court decided against him, and he thereupon appealed to us. In this court the parties mutually agreed to waive all questions of jurisdiction. Held, that the waiver was sufficiently retroactive in its effect to enable us to take jurisdiction of the merits of the case on appeal.</p> <p>2. Same — TRust Fund — Administeation.</p> <p>The partners of the bankrupt partnership of F. M. Tucker & Co. were formerly testamentary trustees of the same trust, which the appellant now represents as their successor. While such trustees, they borrowed from the trust, and earmarked certain stocks of their own as collateral securing repayment. F. M. Tucker & Co. failed and had made an assignment under tlie state law for the benefit of their creditors, and tliere-afterwards they went through the form of canceling the indebtedness, and of taking the collateral securities as the absolute property of the trust. They still later disposed of a portion of the collateral, leaving a residue, which residue constitutes the assets in .controversy here. The trustee in bankruptcy claims, first, that the transaction by which the loan was attempted to be discharged and the collateral securities taken as the absolute property of the testamentary trust was void; and, second, that as F. M. Tucker & Co. disposed of certain of the securities after the attempted cancellation of the indebtedness, and as the securities thus disposed of were more than equal to the indebtedness, the proceeds thereof should be held, as between the present parties, to have discharged the indebtedness. Held that, under the circumstances, the transaction which involved the attempted cancellation of the indebtedness was not only void, but that it was void for all purposes; and, further, held, that inasmuch, as between the members of the bankrupt copartnership and the testamentary trust, both the status of the indebtedness ánd of the collateral securities now in controversy remained in law unchanged until the time of the bankruptcy, and inasmuch, also, as the equities remain precisely the same as they would have been between F. SI. Tucker & Co. and the testamentary trust if there 'had been no bankruptcy, the securities in controversy must be administered for thq benefit of the testamentary trust.</p>

This writ of error is prosecuted from a judgment recovered against the Midland Contracting Company, defendant below, upon alleged default, in a replevin suit, brought by defendant in error, to recover a steam dredge and damages for alleged unlawful detention.

In June, 1900, while the steamer Santa Ana was on a voyage from Seattle to Nome with passengers and a general cargo of merchandise, fire broke out in the cargo, and for the general safety it became necessary to pour water and inject steam into the hold to extinguish the fire.

<p>1. Cotjbts — Jurisdiction—Amount in Dispute.</p> <p>Upon all questions of jurisdiction, the sum demanded, not the amount recovered, recoverable or admitted, is the amount in dispute, unless the record proves to a legal certainty either that the sum demanded cannot be as a matter of law the amount in dispute, or that it is, as a matter of fact, a colorable and fictitious amount inserted in bad faith to invoke jurisdiction.</p> <p>LIfid. Note. — For cases in point, see Cent. Dig. vol. 18, Courts, § 890.</p> <p>Jurisdiction of Circuit Courts is determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Teiment-Stribling Shoo Co. v. Rope, 86 C. C. A. 459.]</p> <p>2. Damages — Option Contract — Failure to Furnish Abstract — Damage</p> <p>Value Less Contract Price- — 'Whether or Not Vendee would have Bought Immaterial.</p> <p>Upon a broach by a vendor of a covenant to furnish an abstract of title in a contract which grants a time option to purchase land, the measure of damages is the difference between the contract price and the value of the land, and the issue whether or not the vendee would have bought the land If the vendor had furnished the abstract is speculative and immaterial.</p> <p>3. Waiver — Equivalent of Estoppel.</p> <p>The basis of waiver is estoppel, aud where there is no estoppel there Is no waiver.</p> <p>Hook, Circuit Judge, dissenting in part.</p> <p>(Syllabus by the Court.)</p>

In Error' to the Circuit Court of the United States for the District of Nebraska. This is an action for conversion, growing out of ⅞⅛ following state of facts: The Peters & Williams Company, a corporation of the state of Nebraska, was engaged in conducting a sheep ranch near Hay Springs in said state. The defendant in error Silberman Bros, was a copartnership firm residing and doing business at Chicago, Ill., as wool merchants.

<p>1. Master and Servant- -Th.-jury to Servant — Longshoreman Employed on Vessel.</p> <p>The rule of the maritime law that a vessel is not liable in rein for an injury-to a seaman through, the negligence of tho owner or master does not apply to tho caco a longshoreman who is employed by the owner of a vessel to work ics-u on and is Injured through being given an unsafe place to work; such ⅛-"• being governed by the ordinary rules relating to master and servant.</p> <p>[Ed. Note.— For eases in point, see Cent. Dig. vol. 34, Master and Servant, § 211.]</p> <p>2. Same — Unsafe Place to Work — Failure to Warn Servant of Danger.</p> <p>Libelant was a longshoreman employed in shoveling ore at the docks, and was sent by Ids employer, with others, on the employer’s scow to assist in lightening m- ore steamer which had gone aground. After the steamer had been floated the scow proceeded to retransfer the ore which had been taken out, and libelant and others were sent on the scow to shovel ore into the buckets. These were moved by, a hoist or derrick mounted on a revolving platform, which also could be moved on tracks the length of the scow. The work of reloading was commenced in the night, and libelant had never worked on the scow before, or on any one having such fore and aft movement of the derrick, and he was given no. warning or instructions. While he was resting on his shovel after he had filed a bucket and it had swung away from him, the derrick was moved along the rails, he was struck from behind, and, throwing out his arm to save himself, it was run over and crushed. Held, that the injury was not due to the negligence of a fellow servant, it not appearing that' the engineer operating the hoist was negligent, but to the failure of the master to warn libelant of the danger from the movement of the derrick, which rendered the place where he was set to work dangerous.</p> <p>8. Shipping — Limitation op Liability — Paets op Vessel.</p> <p>A traveling steam hoist or derrick, mounted upon a fuel scow specially designed to be used with such a hoist, and from which, although removaable, it had been removed but once'in 14 years, is a part of the vessel, within the meaning of the limitation of liability statute (Rev. St. § 4283 [U. S. Comp. St. 1901, p. 2943]).</p>

This is an appeal from a decree for the execution of a trust created by a conveyance, and for the specific performance of a contract to vest tlie tille to a patent for an invention in a corporation and to distribute its stock among those entitled thereto in accordance with their agreed interests.

<p>1. Fbaudulent Conveym-ces -Voluntaby Deed.</p> <p>A voluntary conveyance by au insolvent grantor is fraudulent in itself because it cannot be made without hindering and defrauding his creditors.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, ⅜§ 133. 139, 188.]</p> <p>2. Same — Wm® Yoluntary Deed by Parent to Guild is Not Fraudulent.</p> <p>A 'oluntaiy conveyance by a solvent father to his child is not necessarily voidable by his existing creditors, and it is valid against subsequent creditors Y the absence of evidence that it was made with intent to defraud them.,</p> <p>If the provision be reasonable, if it leave in the hands of the grantor ample property to pay his existing debts, and if there be no intent to defraud existing or subsequent creditors, it may be sustained.</p> <p>[ICri. Note. — For cases in point, see Cent. Dig. vol. 24, Fraudulent Convey mees, §§ 141, 144, 145.]</p> <p>3. Same -Want of Consideration Insufficient to Avoid.</p> <p>7 ⅛ want: oZ consideration is only a circumstance insufficient in itself to iiu.ye a femdulont intent, but from which and other circumstances su i .m inti «it may be inferred.</p> <p>[id. Nob*. — Bor eases in point, see Cent. Dig. vol. 24, Fraudulent Con-vej.uMies, §§ 186, 189.]</p> <p>4. Same — Deed fob Use of Grantor Not Voidable if Reservation Incidental AND PARTIAL.</p> <p>The rule that, a conveyance in trust for the use of the person making the same is voidable by creditors of the grantor is inapplicable to a deed which is made-primarily and principally for the use of the grantee, and in which the reservation for the grantor is secondary and partial, as in the case of a conveyance by an aged man of a lot and building worth $9,000 and a reservation in the deed of possession of the property during his life.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, § 352.]</p> <p>(Syllabus by the'Court.)</p>

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

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

<p>In Error to the United States Court of Appeals in the Indian Territory.</p>

<p>Customs Duties — FoBrerruBE—-“Baggage”—Akticues jn Clothing.</p> <p>Held, that articles in the clothing are “baggage,” within the meaning of section 2802, Rev. St. LU. S. Comp. St. 1901, p. 1873], relating to the concealment of dutiable articles “found in the baggage of any person arriving within the United States,” and that a package of precious stones found in the pocket of a passenger is forfeitable under said provision.</p> <p>NOTE. — TOWNSEND, Circuit Judge, heard argument, participated in consultation, and voted to affirm, but did not see the opinion.</p>

<p>Post Office — Embezzlement of Mail Mattek — Decot Letters.</p> <p>A post office superintendent discovered a misboxed letter, which had been placed in a “dead” pigeonhole at the top of the case, where defendant, a clerk, was engaged in sorting mail. The letter was removed by the superintendent and handed to a post office inspector, who took it to the addressee, and, without delivering it, obtained permission to open it. He then returned to the post office, unsealed the letter, and took from it an express order for $2, a statement of account, and a letter from the sender of the money order. After making a copy of the letter, he placed it in the envelope with two marked $1 bills, and forwarded the money order and the statement to the addressee. The envelope containing the letter and bills having been duly sealed was returned to the dead pigeonhole, and a short time thereafter was embezzled by defendant. Held, that the letter at the time it was returned by the inspector to the dead pigeonhole had not ceased to be mail matter, and that defendant was therefore properly convicted of embezzling a letter containing inelosures, in violation of Eev. St. § 5467 [Ü. S. Comp. St. 1901, p. 3691].</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 40, Post Office, § 61.]</p>

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

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

<p>In Equity. On defendants’ motion that the interference record be made a part of the record in the case.</p>

<p>Patents — Validity and Infringement — Grass IIook.</p> <p>The Sellers patent, No. 529,GS5, for a grass hook, having as its essential features the handle raised above the level of the blade, and the blade balanced evenly on either side of the handle, is not for a mere aggregation of old elements, but covers a true combination of the two elements which conjointly produce a new and improved result, and discloses invention. Also, held infringed.</p>

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

<p>In Equity. Suit for specific performance and injunction.</p>

<p>1. Customs Duties — Dutiable Value — Addition Entby — Definiteness of Addition.</p> <p>In making an addition to the invoice value at the time of entry, in order to equal market value, as permitted by Customs Administrative Act June 10. 1890, c. 407, § 7, 26 Stat. .134 [U. S. Comp. St. 1901, p. 1893J, the importer should state the added value with sufficient definiteness to enable the customs officers to ascertain its amount; but reference to an item, without specifying its amount, is sufficient, if such amount is officially known to the customs officers.</p> <p>2. Same — Pbotest—Sueeiciency.</p> <p>Importers protested against the action of a collector of customs in considering a certain amount as the entered value, and asserted that he had erred in failing to regard the fact that said amount included some nondutiabie items. Held, that this statement of objections was sufficiently distinct and specific to satisfy the requirements of Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933].</p> <p>3. Judgment — Reeobmation—Correction oe Computations.</p> <p>A judgment may always be reformed for the purpose of correcting computations made under it,' regardless of whether the term at which it was entered has ended.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. The ease relates to goods classified as composed in chief value of wool, which, the importers contended were composed chiefly of silk.

<p>Customs Duties — Classification—Bbaids of Straw and Cotton — “Composed OF.”</p> <p>Braids composed in chief value, but not wholly, of straw, were “braids * * * composed of straw,” within the meaning of Tariff Act Oct. 1, 1890, c. 1244, § 2, Free Hist, par. 518, 2G Stat 604.</p>

On Application for Review of Decisions of the Board of United States General Appraisers. The decisions below affirmed the assessment of duty by the collector of customs at the port of New York.

<p>1. Equity — Pleading—Issue upon Pleading.</p> <p>At the hearing upon a plea in equity and a general replication no fact is in issue except the truth of the matter set up in the plea.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 639.]</p> <p>2. Same — Bubden of Proof.</p> <p>Where a bill alleges that certain acts were done by defendants partly within the United States and partly within foreign countries, a plea which sets up that such acts were done wholly in foreign countries is not an affirmative but a negative plea, and the burden of proof rests upon the complainant; the effect of the plea being to deny one of the allegations of the bill.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 726.]</p> <p>3. Courts — Jurisdiction—Place of Accrual of Cause of Action — Trade.Marks and Trade-Names — Unfair Competition in Foreign Trade.</p> <p>A corporation was organized under the laws of New Jersey for the purpose of exporting oil for sale in foreign, countries. Its manager, who was a dealer in Hamburg, Germany, was given a power of attorney conferring on him full authority to act for the company in all matters and which in effect vested in him all of its powers in respect to its business. He continued the business in Hamburg, in the name of the company, which pnr-' chased oils from a refinery in this country and had the same shipped in its name to Hamburg to itself as consignee, from which point they were distributed. By iLs directions barrels were shipped unmarked, except for an identifying mark, and on their receipt at Hamburg, and before their sale to consumers, they were marked with names and brands previously exclusively used by complainant to designate its different kinds of oil, which it also sold largely in Europe. Such company also made false representations that its oils were the same as complainant’s and made by the same process. Held, in a suit against the company, its manager, and certain of its officers, that such acts of fraud and unfair competition were not committed solely in a foreign country, but had their inception and were in part performed in this country, wlienc-e the barrels were purposely sent without marks, and that a court of the United States had jurisdiction to grant relief against the same.</p> <p>4. Equity — Jurisdiction—Subject-Matter of Suit.</p> <p>The fact that the subject-matter of a suit is situated in a foreign country will not deprive a court of equity of the United States of jurisdiction to grant relief against fraud with reference to such subject-matter by defendants, who are within the court’s jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 18, Equity, § 96.]</p>

<p>In Equity.</p> <p>This is a suit instituted by a number of sheep owners, who are possessed of flocks aggregating 50,000 head, kept in the counties of Walla Walla, Columbia, Garfield, and Asotin, in the state of Washington, against W. H. Lytle, sheep inspector of the state of Oregon, John Bryant, deputy sheep inspector for the county of Umatilla, and T. F. Boylen, Dan P. Smythe, and W. H. Steusloffl, constituting the board of sheep commissioners of the state, to restrain these officers from in any manner interfering with complainants driving their sheep across the line into the state of Oregon and pasturing them therein. It appears from the bill of complaint that complainants are allottees from the general government, with the privilege of pasturing their sheep' upon that portion of the "Wenaha Forest reserve lying within the state •of Oregon for the year 3907; that in order to reach such reserve it is necessary to drive through a portion of Umatilla county in Oregon; and that a separate range is necessary for the pasturage of such sheep during the spring, summer, and fall months because of the insufficiency of feed for their sustenance where they are at present confined. Following this, it is averred, in effect, that the defendants and a large number of persons in the sheep business in the state of Oregon combined and confederated together.for the purpose of procuring the exclusion of all sheep belonging to nonresidents of the state, including- the sheep of complainants, from ranging upon the said "Wena-ha reserve in the state of Oregon, and to that end secured the passage of an act through the Legislative Assembly of the state of Oregon during the 3907 session, known as “I-Iouse Bill No. 17.” (Laws 1907, p. 383, c. 223). which contains provisions inimical to complainants’ rights and privileges; that by virtue of such act the Governor of the state of Oregon, on May 91, 1907, made a proclamation declaring the states of Washington, Nevada, and California presumably infected with scabies, and prohibited the importation of any sheep from eaeli and all of such states except under such regulations as -the state hoard of sheep commissioners might deem proper; that the alleged facts upon which is based the necessity for such proclamation were and are false and groundless, and were attested to the Governor for the purpose of deceiving and misleading him, and inducing him to assist defendants in excluding complainants’ flocks; that the board of sheep commissioners, acting in pursuance of such proclamation, have issued and published certain" rules prescribing regulations under which sheep from the prohibited states may be brought into the state of Oregon, which regulations require that the" persons or corporations driving sheep wiihin the state shall, immediately upon crossing the line and within one mile thereof, make written application to the sheep inspector of the state or his nearest deputy for the inspection of the sheep, whereupon the inspector or. deputy is required to proceed at once to inspect said sheep, and within six days thereafter to cause them to be dipped once in the manner proscribed for dipping within the state, and thereupon to place them in quarantine for a period of not less than eight, nor more than fourteen, days, fixing the quarantine limits, and to cause said sheep to be dipped again within the period from the said eighth to the fourteenth day, when the said inspector or his deputy is required to deliver to the owner a certificate of health, and to permit the sheep to proceed on their route to destination. It is further averred that these regulations are unreasonable. and that it is impossible, because of the condition of the country through which the sheep will be ‘driven, for complainants to comply with them, there being no facilities afforded for dipping, quarantining, or feeding, and that, if required to conform to such regulations, complainants will suffer great hardship and irreparable loss; that complainants’ sheep are "healthy and free from any infection; that the territory and locality in which they are now confined, and have been kept and pastured for years past, is free from ■any infectious or contagious diseases; that the Governor of the state of-Oregon and said sheep inspector arbitrarily and without cause determined that the sheep from the state of Washington are likely to convey scab or scabies if Imported into the state of Oregon; that complainants have fully complied, or intend to comply, with the laws of Congress regulating the inspection of sheep passing from one state into another; and that said sheep will all be dipped, under the supervision of the Veterinary Inspector of the Bureau of Animal Industry of the United States, within 10 days prior to crossing the line into this state. Answering this bill under oath, the defendants deny all allegations averring combination or confederation in the passage of the bill complained against, and deny any arbitrary or unwarranted, acts on the part of the Governor or the sheep inspector of Oregon in determining the matters and things essential, upon which was founded the proclamation, of the Governor, or upon the part of the Governor in issuing such proclamation, and deny all other allegations of fact touching the condition of such sheep or the localities in which they are being kept, and of the conditions to be met with on the way in driving the sheep to the Wenaha reserve. Several affidavits have been filed in support of the bill, but none of them contain additional matter, except that it is charged specifically that the Umatilla Wool, Growers’' Association, which association sought allotments upon the Wenaha reserve, hut without success, urged the election of candidates to the Legislature pledged to the support of a hill containing provisions in import the same as contained in House Bill No. 17; that one Slusher was elected to said Assembly; that he introduced the hill in question and procured its passage; and that another hill was introduced and passed hy the Legislature known as the “Hart Bill,” providing for licensing sheep driven from other states into this, and requiring the payment of 20 cents per head before such license may be issued.</p>

In Equity. The bill of complaint herein shows that complainant Philomme Smith is a full-blood Indian woman, a member of the Walla Walla band or tribe of Indians, and the wife of complainant P. A. Smith, a white person. That the complainants Charles Smith, Maggie Smith, and Janie Smith, are children of the said Philomme and P. A. Smith. That Elizabeth Smith is the child of James Smith, now deceased, who was the child of Philomme and P. A. Smith.

<p>1. Post Office — Offenses—United States Mails — Scheme to Defkatjd.</p> <p>The elements of the offense of devising a scheme or artifice to defraud, to be effected by means of the post office establishment of the United States, in violation of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3696], are: (1) That defendant devised the scheme to defraud, as alleged; (2) that he intended to effect such scheme or artifice by opening correspondence or communication with the persons intended to be defrauded, by means of the post office establishment of the United States, or by inciting them to. open correspondence with him respecting such scheme or artifice; and (3) that in the furtherance and execution of the scheme, or in attempting to further the same, defendant deposited or caused to be deposited in the United States post office letters, papers, writings, or circulars, or took from the post office papers or writings connected with the furtherance of such scheme.</p> <p>[Ed. Note. — Eor cases in point, see Gent. Dig. vol. 40, Post Office, § 55. Nonmailable matter, see note to 30 O. O. A. 86.] '</p> <p>2. Geimiral Daw — Degree of Pkoof — Reasonable Doubt.</p> <p>In a criminal case, the burden is on the government to establish defendant’s guilt beyond all reasonable doubt by full and satisfactory proof; a mere preponderance of evidence being insufficient.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 14, Criminal Law, § 1266.]</p> <p>3. Same — Reasonable Doubt.</p> <p>A reasonable doubt sufficient to entitle accused to an acquittal is not a mere possible doubt that is sought after in the evidence, or arises out of sympathy or ingenious suggestion not warranted by the evidence or lack of evidence, but such as naturally arises upon an impartial consideration of all the evidence.</p> <p>(Ed. Note. — For eases in point, see Cent. Dig. vol. 14, Criminal Daw, §§ 12(57, 1208.]</p> <p>4. Same — Other Offenses — Showing Intent.</p> <p>In a prosecution for having devised a scheme or artifice to defraud, to be effected by means of the post office establishment of the United States, in violation of Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3090], evidence that defendant knowingly deposited in or sent through the mails letters, papers, and writings, other than those described in the indictment, to other persons for the purpose of carrying out the alleged scheme, was admissible solely as bearing on defendant’s intent and purpose in his transactions charged in the indictment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Daw, §§ 830-832.]</p> <p>5. Post Office — Using- Mails to Defraud — Time—Materiality.</p> <p>In a prosecution for devising a scheme or artifice to defraud, to be effected through the post office establishment, the date of the alleged mailing of the different letters, papers, or writings described in the indictment was not an essential element of tlxe offense; it being sufficient that the letters, writings, circulars alleged, or some of them, were deposited or caused to be deposited by defendant at any time within three years next prior to the finding of the indictment.</p> <p>6. Same — Scheme to Defraud — Definition.</p> <p>A “scheme or artifice” to defraud, within Rev. St. § 5480 [U. S. Comp. St. 1901, p. 3096], prohibiting the use of the post office establishment in aid of a scheme or artifice to defraud, is the formation of a plan, device, or trick to perpetrate a fraud on another.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Post Office, § 55.]</p> <p>NOTE. — The jury returned a verdict of guilty upon each count of the indictment.</p>

On Demurrers to Answers. Action in two counts, instituted under the safety appliance a’ct of Congress, to recover the penalties prescribed for a violation of the act.

<p>1. COURTS — Federal Courts — Jurisdiction — Federal Statutes — Construction.</p> <p>Where complainant, a Washington railroad company, had complied with all the provisions of Act Cong. March 3, 1875, c. 152, § 1, IS Stat. 482 [U. S. Comp. St. 1901, p. 15681, conferring on railroad companies duly organized, etc., a right of way over the public lands of the United States, sought to restrain defendant railroad company, also incorporated under the laws of Washington, from trespassing on complainant’s alleged right of way over public lands along the north bank of the Columbia river, on which complainant alleged it intended to construct its railroad in the future, the jurisdiction of the federal court was sustainable on the ground that the case involved the construction of such federal statute.</p> <p>[Ed. Note. — Jurisdiction in cases involving federal questions, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 35 C. C. A. 7.]</p> <p>2. Public Lands — Railroad Right of Wat — Contest—Determination oe Interior Department.</p> <p>Complainant had fully complied with Act Cong. March 3, 1875, c. 152, § 1, IS Stat. 482 [U. S. Comp. St. 1901, p. 1568], but the Secretary of the Interior had not given his approval nor acted 'upon the matter pursuant to the provisions of section 4 of the act. Held that, while not so expressly deciding, the rule apparently is that the approval of the Secretary is not necessary in order to pass the fee, or such title or estate as Congress intended to grant, and, in this view, there is a complete remedy by an action for possession, and equity cannot intervene when the remedy is adequate at law. Held, further, that if the statute is not subject to this construction, and the approval of the Secretary is necessary to complete the grant, that the court is without jurisdiction to interfere, so long as the matter is pending before the Department, to any greater extent than is necessary to preserve the status quo pending the decision of the matter by that tribunal, the necessity for which in this case is not disclosed by the bill.</p> <p>[Ed. Note. — -Jurisdiction of federal courts in suits under public land laws, see note to Bailey v. Mosher, 11 C. C. A. 314.]</p> <p>3. Injunction — Subjects op Relief — Waste.</p> <p>The modern rule is that one out of possession, claiming title, may seek the aid of'equity to enjoin acts which will work irreparable injury to, or destruction of, the inheritance, such as the cutting of timber, the removal of ores, or the like; but the acts complained of do not bring the case within that rule.</p>

<p>Corporations — Insolvency—Creditors or Stockholders — Estoppel to Present Claim.</p> <p>A corporation being indebted to certain bank^ to the amount of $40,000, and being unable to secure more funds, a contract or reorganization was made between the corporation and the banks, by which it was agreed that claimants, three of the directors of the corporation, should take up $40,000 of the notes held by the panics, and that in consideration thereof the corporation should issue to them preferred stock for such amount, and that a trust company, having succeeded to the rights of one of the banks, should then advance on the corporation’s demand notes and receive-ables amounts not exceeding $50,000, and that until the advances of the trust company were repaid the banks would not press for payment of the company’s indebtedness. This arrangement was completed. The preferred stock was issued and voted. The trust company advanced further funds, and other creditors became such on the faith of the reorganization, but the preferred stock issued was invalid for failure to comply with Acts Mass. 1908, p. 427, e. 437, § 14, requiring the filing of a certificate of such issue within 30 days after it was made. Held, that it was the duty of the claimants under the agreement to see that the stock was legally issued, and that they were estopped after the failure of the corporation to claim that they were creditors to the amount of the claim so paid, and not stockholders.</p>

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

In Equity. Bill of complaint to enjoin defendants from infringing complainant’s trade-mark and from unfair competition in making and selling men’s drawers made of white jean with buff colored elastic insertion along the seams.

<p>Equity — Taking Proofs — Patents—Suit for Infringement.</p> <p>Leave granted defendant in a suit for infringement of a patent to taka certain testimony in surrebuttal.</p>

Petition for Writ of Habeas Corpus. This is a writ of habeas corpus issued upon the petition of the commanding officer at the post of Key West, alleging that one Joseph Schlatter, an enlisted soldier… Held: and punished for a violation of such, relying upon a cited decision of the Supreme Court of Utah. Each party relying upon its position as a matter of, law, the facts were not very particularly inquired into.

On Application for Review of a Decision of the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York; the opinion of the Board of General Appraisers reading as follows: “HAY, General Appraiser. The merchandise in this ease was invoiced as bala-ta and returned by the appraiser as a nonenumerated unmanufactured article.

On Application for Review of a Decision of the Board of United States General Appraisers. These are cross-appeals from a decision of the Board of General Appraisers, reversing the assessment of duly by the collector of customs at the port of New York. The merchandise consists of so-called Persian berry extract, which was classified as a color under Tariff Act July 21, 1897, c. 11, § 1; Schedule A, par. 58, 30 Stat. 154 [U. S. Comp. St. 1901, p. 16301.

On Application for Review oí a Decision of the Board of United States General Appraisers. The opinion filed by the Board reads as follows: MCCLELLAND, General Appraise!1. The question raised by this protest is Whether olive oil imported in tins containing five gallons each is dutiable at 50 cents per gallon, under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 40, 30 Stat. 153 |U. S. Comp.

<p>Customs Duties — Classification—Miniatuke Frames — Jewelrt.</p> <p>The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 434, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for “articles commonly known as jewelry,” does not include miniature frames composed of precious metals set with diamonds and pearls, which are not used as articles of personal adornment but for utility, but they are dutiable under paragraph 193.</p>

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

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

This cause comes here upon writ of error to review a judgment of the Circuit Court, Western District of New York, in favor of defendant in error, who was plaintiff below. The judgment was entered upon the verdict of a jury and was for damages resulting from the death of plaintiff’s intestate; it being alleged that his death was caused by the negligence of defendant.

<p>1. Collision — Moving and Anciioeed Vessels — Contbibuioby Fault.</p> <p>Where a moving vessel was clearly in fault for a collision with one at anchor, the latter will not be held in fault because at the last moment she did something that contributed to the collision, or omitted to do something which might have avoided it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 227.]</p> <p>2. Same — Acts Done in Extbeihs.</p> <p>A dredge which had been engaged for some months in dredging the channel of the Delaware river below Philadelphia, 00 feet to the westward and 175 feet to the eastward of the line of the Kdgemoor range lights, at night moved to the eastward 350 feet from the range line and 175 feet outside of the dredged channel, where she anchored for the night, carrying proper anchor lights and with her bow down stream. On her west side lay a tng with the bow up stream. The anchor lines of the dredge extending to the westward were weighted and sunk, while two extending eastward were not. While in such position the large steamship Maiing, coming down from Philadelphia and drawing more than 20 feet aft, after rounding the buoy 1½ miles above the dredge, took a course which would have carried her slightly to the eastward of the dredge. Seeing her approaching nearly head on, the watchman on the dredge seized a lantern, and waved it from east to west. The tug, also, as contended by the steamship, gave a signal of a single blast on which the steamship, when about five lengths distant, ported and attempted to go to the westward, but ame into collision with the stern of the dredge. The Maiing was clearly in fault for being not only on the wrong side of the channel, but entirely outside of and heading away from It. Held. that the dredge was not chargeable with contributory fault because of the i>osition in which she was anchored, nor because her port lines were not weighted, since she was not In the fairway of the Maiing, and owed her no duty with respect to the lines to the eastward, and neither act, therefore, was a contributory causo of the collision, nor was she in fault for the signal given by her watchman, which, if improper, was an act done in extremis when the dredge was in imminent danger of collision, or of having her lines cut by a vessel out of .her proper course. Held, also, that the tng was not chargeable with fault because, as alleged, she was carrying sailing lights, nor because she gave alarm signals, neither of which contributed to the collision, but both of which were calculated to warn the Maiing of her improper course, nor because of her passing signal, which, If given, was in extremis and in aid of the signals from the dredge.</p>

The case involves construction of Customs Administrative Act June 10, 1890, c. 407, § 13, 26 Stat. 137 [U. S. Comp.

On appeals by both parties from a decree of the Circuit Court for the Eastern District of New Xork holding valid claim 5 of letters patent, No. 717,122, issued to Alfred Roesch, December 30, 1902,- for an improvement in pressure-governors. The decree adjudged that the defendants have infringed the said claim by making and selling a hot water regulator known and designated as “Exhibit A.” From this part of the decree, the defendants appeal.

<p>Patents — Infringement—Pneumatic Toot.</p> <p>The Boyer patent, No. 537,629, for a pneumatic tool, held not infringed.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. In tlie decision in question, the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. The Board’s opinion reads as follows: WAITE, General Appraiser.

<p>Execution — Supplementary Peoceedings — Costs.</p> <p>Where a judgment debtor had not been the cause of delay in extended supplementary proceedings before a master, the expenses of a controversy maintained by his debtors to protect their individual interests should not be taxed to him, but he was only liable for a portion of the costs with necessary disbursements in serving papers on him; all other cofets and disbursements being chargeable to his debtors, whose obligations the creditor sought to reach in the proceedings.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 21, Execution, § 1194.]</p>

<p>Customs Duties — Classification—Riüüons of Silk and Cotton — “Otherwise.”</p> <p>Ribbons composed chiefly of silk, but in part of cotton, are not “ribbons * * * of cotton, * * * whether composed in part of india rubber or otherwise,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule I, par. 320, 30 Stat. 179 [U. S. Comp. St. 1901, p. 16611; for the word “otherwise” is there used with the meaning of “not,” and not as relating to other materials than india rubber. Such ribbons are properly assessed as manufactures of silk, under paragraph 391, of Schedule L.</p>

<p>1. Salvage — Rescue of Disabled Bark from Shoals — Grade oe Service and Compensation.</p> <p>Tlie Norwegian bark Baunberga, with a cargo of lumber, encountered a storm when between Pensacola and tlie Bermudas, in which her rudder and steering gear were damaged, and she turned westward to reach a port for repairs. September 21st she struck on Frying Pan Shoals, off the mouth of Capo Fear river, with sueli force as to turn her over on her side, and her masts and rigging wore cut away. She then righted and drifted into deeper water in a slough in the shoals, where she anchored. The next day tlie fishing steamer Wharton, a powerful vessel with a 1,000 horse power engine, came to her assistance, and with tlie assent of her master took her in tow, and after 12 hours brought her into port with her cargo. Owing to the fact that the storm had drifted away the lightship and shifted tlie buoys marking the shoals, aud also that the bottom is continually shifting, the task of extricating the bark and taking her into deep water was one of considerable difficulty, and in its performance she again struck aud suffered further injury to her bottom. The weather was very calm, and the sea smooth, and remained so for two days thereafter. The bark was in a position of peril from which she could not extricate herself, but there were other steamers and tugs available by which she could have been rescued within a few hours. Her value as salved was $3,100, and Unit of her cargo $11,000. The value of tlie Wharton was $40,000, and she had a crew of 24 men. Held, that the service was one of salvage, but of low order, as there was no especial danger to the steamer or her crew; iliat she was not chargeable with fault or want of skill or care in handling tlie bark in the shoals under the circumstances ; and that she was entitled to a salvage award of $2,000, one-fourth to be divided among the crew, and to a further allowance tor standing by and pumping tlie bark after reaching port.</p> <p>[Ed. Note. — For cases in point, see. Cent Dig. vol. 43, Salvage, § 72. Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p> <p>2. Same — Derelict Defined.</p> <p>A vessel which, although disabled, has not been abandoned by her officers and crew, is not a derelict, aud salvage for her rescue cannot be awarded on that basis.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 7.]</p> <p>3. Same — Bottomry Bond — Subordination of Bien to Claim for Salvage.</p> <p>A bottomry bond, while a valid lien in admiralty, is subordinate to a claim for salvage of the vessel.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 105.]</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,411 (T. D. 27,541), in which the Board affirmed the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board reads as follows: HOWELL, General Appraiser.

In Equity. On final hearing on bill and cross-bill. On January 17, 1900, the Doddridge County Oil & Gas Company, a Delaware corporation, filed in this court its hill against Frank and Martha J. Smith, citizens of Doddridge county, this state, alleging the execution of an oil and gas lease by said defendants to Anson H. Russell, Jr., raider date of October 10, 1901, upon a tract of 800 acres owned by them in Doddridge county, and tlio assignment thereof by Russell on January…

<p>1. Habeas Corpus — Federal Courts — Procedure.</p> <p>On an application for a writ of Rabeas corpus presented to a federal court, it is not required to issue the writ instanter, but the court in its discretion may, instead, make an order on the officer alleged to have petitioner in his custody to show cause on a day certain why the writ should not be issued.</p> <p>2. Same — Discretion—Other Remedies.</p> <p>Petitioner, having been extradited, was placed on trial under the extradition indictment, and, having become a witness in his own behalf, after disagreement of the jury, and before the case was finally disposed of, was again indicted for perjury alleged to have been committed on his former trial, and was convicted. He appealed to the state Court of Appeal, and applied to the state Supreme Court for discharge on habeas corpus, challenging the state court’s jurisdiction to try him for any other offense than that for which he was extradited, until he had been either convicted and served his sentence and had a reasonable time to return to his asylum country, or had been acquitted and! had a like opportunity. This writ was denied, and a writ of error allowed for review by the Supreme Court of the United States. Held that, pending the determination of such writ of error, he was not entitled to a discharge on habeas corpus issued outof the federal Circuit Court.</p>

<p>1. BANKRUPTCY — SELECTION OP TRUSTEE — RIGHT OP CREDITORS TO ELECT.</p> <p>The selection of a trustee in bankruptcy is properly and primarily the business of the creditors, who are owners of the fund which must bear the expense of administration, and where a majority in number and in amount of claims have voted for one person for trustee the referee is not justified in refusing to ratify his election solely because he does not reside in the county where the assets are situated and in appointing another person trustee.</p> <p>. [Ed. Note. — Eor cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 168-183.],</p> <p>2. Same — Examination op Bankrupt — Scope.</p> <p>Under Bankr. Act July 1, 1898, e. 541, § 7 (9), 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425], which authorizes the examination of a bankrupt “concerning the conduct of his business, * * ⅜ his dealings with his creditors and other persons, the amount, kind and whereabouts of his property,” etc., a question as to whether a bankrupt did not make a certain statement in writing as to his assets within a few months prior to his bankruptcy upon which he obtained property on credit from certain of his creditors is material and proper to be asked him on his examination.</p>

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

'On Application for Review of a Decision of the Board of United States General Appraisers. The following is the opinion of the board sustaining, said protests: HAY, General Appraiser. By these protests the right of the collector to exact the sum of 20 cents on each package in connection with the entry of what are known to the law as “packed packages” is called in question.

<p>Customs Duties — 1Classification—Hauteville Store — Marble.</p> <p>Hauteville stone, a compact limestone susceptible of a fairly high polish and used for decorative work in the interiors of buildings, is dutiable as “marble,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule K, par. 114, 30 Stat. 158 LU. S. Comp. St. 1901, p. 1035], rather than as “limestone ⅜ * * not specially provided for,” under paragraph 117, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1030].</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 Northern District of Oiiio.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. On appeal and cross-appeal from a final decree of the Circuit Court for the Southern District of New York, filed July 25, 1905.

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

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

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

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

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

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

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

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

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

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

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

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

<p>Motion for interlocutory decree, granting ihjunction and reference to a master to take proof of damages and profits, made under stipulation.</p>

<p>Exceptions to Report of Commissioner on the. Subject of Damages.</p>