Volume 155 — Federal Reporter

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

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

The appellee caused the steamship Senator to be libeled because of the breach of a maritime contract for the carriage of goods upon the steamship Senator from Seattle, consigned to the steamer Monarch at St. Michaels, at the mouth of the Yukon river. The goods consisted of a large quantity of merchandise, including perishable articles.

<p>1. Insurance — Action on Accident Policy — Questions fob Jury.</p> <p>■ The question whether appendicitis, which caused the death of an in. sured, was caused by an accident or was the result of a diseased condition existing prior to the accident, held properly submitted to the jury, where the testimony of physicians testifying as experts was conflicting.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol.' 28, Insurance* § 1745.]</p> <p>2. Same — Accident Insurance — Cause of Death.</p> <p>In an action to recover for the death of an insured upon an accident policy which provided that “loss of life by accident as used in this policy shall be deemed to mean death from bodily injuries * * * which independently of all other causes are effected solely and exclusively by external and accidental means and which shall result in the death of the assured,” it Was shown that the insured while riding in a buggy was thrown against the dashboard, striking his abdomen; that the same night he complained of pains, and five days later was operated on for appendicitis, and a week aftei the accident died-from septic peritonitis which resulted from appendicitis. Ten or twelve years before he had twice had appendicitis, but apparently recovered. Held, that the jury were properly instructed that if the insured had fully recovered from the former attacks, so that the disease- no longer existed in his body, and there was only a susceptibility to it if a'proper exciting cause should arise, and the fall against the dashboard was such cause, the case would be one for recovery under the policy; but that if the disease still actually existed, and was liable to be and was in fact rendered active and virulent by the injury sustained, his death was the joint result of the injury and the latent disease, and there could be no recovery.</p> <p>[ICd. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1186, 1779.</p> <p>Accident insurance. Risks and cause of loss, see note to National Ace. Soe. v. Dolph, 38 C. C. A. 3.]</p> <p>3. Same — Allowance of Attorney’s Fees — Tennessee Statute.</p> <p>The allowance of $1,000 attorney’s fee to the plaintiff in an action to recover on an accident policy for $5,000 held within the discretion of the jury under Tenn. St. 1901, c. 141, p. 248, which authorizes such an allowance, not exceeding 25 per cent, of the liability on the policy, on a finding that the refusal to pay the loss was not in good faith.</p>

<p>Lotteries — Guessing Contest — Validity.</p> <p>A guessing contest prior to the presidential election of November, 1904, by which defendant agreed to give $10,000 to the person who would make the nearest correct estimate of the total popular vote to be cast for the office of President of the United States, on November 8, 1904, and $5,000 for the second nearest correct estimate, persons filing guesses being required to pay small sums as a subscription to a periodical named in the advertisement, constituted a lottery in violation of the federal laws and also of Comp. Laws Mich. § 11,344, providing that every person who shall set up or promote within.the state any lottery or gift enterprise for money, or shall dispose of any property, real or personal, goods, chattels, or merchandise, or any valuable thing, by way of lottery or gift enterprise, shall be punished, etc.</p> <p>[Ed. Note. — What constitutes lottery, see note to MacDonald v. United States, 12 C. C. A. 346.]</p>

<p>1. Master' and Servant — Injury of Servant — Assumption of Risk.</p> <p>To defeat recovery for an injury to a servant by the.defense of assumption of risk, the master must show not only that the servant knew of the negligence of which he complains, but that he knew and understood, or ought to' have known and appreciated, the increased danger to which he voluntarily exposed himself by reason of such negligence.</p> <p>. [Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, | 575.]</p> <p>2. Same. .</p> <p>A copper water block in the wail of a blast furnace being operated by defendant blew out, and plaintiff, who was a plumber’s helper in defendant’s employ, was injured by the molten metal which escaped. The block, which was embedded in the wall, had become leaky, and preparations-had been made to remove it, which could only be done when the blast was off. After much of the cement packing which held it in the wall had been removed, it was decided to allow* it to remain for some hours, until the next blast should be off, in order to make repairs to the water system, which had also become defective at the same time. When the removal was about to be made, and while the furnace was still being operated, plaintiff was ordered upon á platform near the block to shut off the water, when the block was pulled, and was there when it blew out. Held that, although plaintiff knew of the defective water system, that the furnace was in full blast, and that a part of the packing had been removed from around the block, it could not be said as matter of law that he assumed the risk arising from such conditions, where it did not appear that he knew the dangers therefrom, .or that his experience had been such that he should have known that there was danger that the block would blow out.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1068, 1077.</p> <p>Assumption of risk incident to employment, see note to Chesapeake &. O. 11. Co. v. Hennessey, 38 C. C. A. 314.]</p>

<p>1. Removal of Causes — Nonresidence of Both Parties — Consent.</p> <p>A Circuit Court acquires jurisdiction of a suit by removal, although neither of the parties is a resident of the district, and the suit could uot originally have been brought in that court, where the plaintiff fails to object in any way to such removal, and submits to trial on the merits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 203.]</p> <p>2. Carriers — Carriage of Passengers — Performance of Contract.</p> <p>A railroad company cannot he held answerable to a passenger in damages because of matters which are ordinary incidents of travel, such as exposure to drafts from windows opened by, or at request of, other passengers.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 9, Carriers, § 1087.]</p> <p>3. Same — Accommodations During Transit.</p> <p>Plaintiffs purchased first-class tickets over defendant’s railroad for passage between two points, and also tickets for a berth in a sleeping car between such points; such car being operated by another company and hauled under contract by defendant. At 3 o’clock in the morning, when some 45 miles from plaintiffs’ point- of destination, owing to a wreck beyond such point, the sleeping car was diverted and sent around over another road to its point of destination, and plaintiffs were required to transfer into a day coach for the remainder of their journey, which was made in about two hours. The car so provided was comparatively new and in good condition, and the only material coinplaint in regard to it was that it was filled with passengers, and the windows were kept open; the month being August, although the night was somewhat chilly. Held, that such facts did not establish a breach of the contract of carriage which rendered defendant liable in damages.</p> <p>4. Same — Sleefing Cab Company — Contracts fob Accommodations.</p> <p>A sleeping car company which sells accommodations in its cars between points on a railroad to passengers of the railroad company, the cars heing hauled by the railroad company in its trains under a contract between the two companies, is not liable to a passenger for breach of contract because the ear in which such passenger is riding is diverted by the railroad company on account of a wreck and does not reach the passenger’s point of destination, in consequence of which he is compelled to change into another car.</p>

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

Action upon account for goods sold and delivered, and cross-action for damages for breach of contract. Jury waived. The trial judge made a finding of facts and a general finding for the plaintiff for the full amount of the account and against the defendant upon its cross-petition.

<p>1. Carriers — Circus Train — Transportation—Contract—Public Policy.</p> <p>A circus company, owning its own cars, contracted with a railroad company for the hire of motive power and the use of tracks and trainmen, to be considered as the circus company’s servants, for the transportation of the train from one place to another; the contract exempting the railroad company from liability for injuries to any person or persons using the train from whatsoever canse. Held that, the railroad company being under no legal duty to move the circus company in the manner specified, the contract was not contrary to public policy.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 9, Carriers, § 648.]</p> <p>2. Same — Injuries to Employí: — Carrier and Passenger — Relation.</p> <p>Where a carrier leased motive power, the use of its tracks, and train operatives to a circus company, under a contract exempting the carrier from liability for all injuries, the relation of passenger and carrier did not exist between the railroad company and an employs of the circus company, traveling solely by virtue of his employment, who was not a party to such transportation contract, so as to entitle such employé to recover against the railroad company for injuries sustained in a collision between two sections of the circus train.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, § 977. Who are passengers, see note to Chamberlain v. Pierson, 31 C. C. A. 164.]</p>

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

<p>Carriers — Putting Passenger Oee at Dangerous Place — Proximate Cause of Death.</p> <p>Plaintiff’s intestate was riding on defendant’s railroad on a through ticket, which entitled him to transportation to a. junction with the next connecting road. The train on which he took passage did not stop at the junction, but stopped at a station four miles north, to which the train of the connecting road also ran over defendant’s track to make connection with it. Deceased was advised of such fact, and told to get off at such station, which he did, but -for some unexplained reason got back on- the same train and started southward. He was soon discovered by the conductor, 'wiio put him off a half mile south of the station and told him that if he would-hasten back he could- still catch his connecting train, which would soon follow. The place -at which he was put off was between two tunnels, and he walked back through the north one, and while talking with a man whom he met his train left the station, which was in sight and only a short distance away. He then turned southward again, walked through- .the first tunnel, and entered the second; which was 1,600 feet long, curving, very dark and narrow, and while in such tunnel was struck by a train and so injured that he soon died. There was no material evidence to show how he came to be struck. Held that, conceding that deceased was put off at a dangerous place between the two tunnels, he had passed such danger and reached a place of safety, and the proximate cause of Ills death was, not such negligence of the conductor, but his own voluntary act in turning back, for which defendant could not be held liable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 9, Carriers, § 1245.]</p>

<p>In Error to the Circuit Court of the United States for the Western District of New York.</p> <p>On writ of error to the Circuit Court for the Western District of New York to review a judgment entered upon the verdict of a jury in favor of the plaintiff for $3,420.40, upon a certificate of insurance for $3,000, issued by the defendant to Winfield E. Scott for the benefit of the plaintiff, who was his wife.</p>

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

<p>1. Bankruptcy — Mode of Review — Orders Made in Bankruptcy Pboceedincs.</p> <p>An order made by a court of bankruptcy affirming an order of a referee-setting aside an allowance of a secured claim, and requiring the creditor to pay to the trustee the amount of an unlawful preference; is one made-in the bankruptcy proceedings proper, and is reviewable on petition for review, under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 [U. S-Comp. St. 1901, p. 3432],</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 915-Appeal and review in bankruptcy cases, see note to In re Eggert, 43-C. C. A. 9.]</p> <p>2. Same — Voidable Preferences — Intent to Give Preference.</p> <p>To render a preferential payment received by a creditor from his debtor within four moi lis prior to the latter’s bankruptcy voidable under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 502 [U. S. Comp. St. 1901, p. 3445], as amended by Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St-Supp. 1905, p. ’689], the bankrupt must not only have been insolvent when the payment was made, but must have intended it as a preference, and, if in fact made in the ordinary course of business, without thought of injuring other creditors and in the belief in his ability to pay them all, the creditor receiving it cannot be charged with reasonable cause to believe-that a preference was intended.</p> <p>3. Same.</p> <p>The making of a present loan is a sufficient consideration for a transfer of collateral to secure not only such loan, but also a prior indebtedness, and, where such a transfer was made in good faith when the debtor was solvent, the right of the creditor to the securities attached at that time and collections subsequently made by it thereon and applied on the prior debt after the debtor became insolvent and within four months prior to its bankruptcy do not constitute voidable preferences.</p>

<p>Bankruptcy — Property Passing to Trustee — Wills—Construction—Precatory Trust.</p> <p>A testator by a will made certain devises and bequests to each of his three sons, and left his residuary estate to his wife, “absolutely and without reservation,” but expressing his desire that she should make a will, after advising with the sons, to carry out his wishes as far as practicable, confiding in her sense of justice and discretion. He subsequently revoked such will and made another leaving his entire estate to his wife, confiding in her ability and integrity to make “as early’as practicable contemplated bequests which she is aware of” to the sons. After his death his wife made her will, by which she divided the greater part of her estate between the sons, share and share alike. Prior to her death a large part of the property was divided between the sons with her consent, each receiving more than was left them by the first will of their father.. Held that, if the will of the father created a precatory trust, in the absence of any evidence as to what bequests were contemplated except the prior will, such trust had been fulfilled by the mother prior to her death, and that on her death after the bankruptcy of one of the sons the property received by him under her will came from her estate and was not a part of the assets of his estate in bankruptcy.</p>

<p>Banks and Banking — National Banks — Liability of Stockholdees of Record.</p> <p>One who was notified that shares of stock in a national bank had been transferred into his name, although he had in fact no interest therein, and who indorsed the certificates in blank, but took no steps to have the stock transferred to the name of the true owner, cannot avoid liability for an assessment thereon made by the comptroller to meet the debts of the bank after its insolvency.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 916.</p> <p>Who liable as shareholders in national banks, see notes to Beal v. Essex Savings Bank, 15 C. C. A. 130; Earle v. Carson, 46 C. C. A. 503.]</p>

<p>1. Courts — Jurisdiction of Federal Courts — Oonteoverst Between Citizen of State and Citizen of TERRrroRY.</p> <p>Diversity of citizenship between citizens of different states is indispensable to sustain the jurisdiction of a federal court on that ground.</p> <p>A controversy between a citizen or citizens of a state or states and a citizen or citizens of a territory or territories will not confer jurisdiction upon a national court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 853. Diverse citizenship as a ground of federal jurisdiction, see notes to</p> <p>Shipp1 v. Williams, 10 C. C. A. 249 and Mason v. Dullagham, 27 C. C. A. 298.]- .</p> <p>2. Same — Territorial Laws no.t Laws of United States.</p> <p>The laws enacted by a territorial Legislature, subject to disapproval by Congress, are not laws of the United States, and a suit arising under them, as where a corporation organized under them is a party to the suit, does not arise under the laws of the United States, and a federal <»urt has,no jurisdiction on that ground.</p> <p>[Ed. -Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 820.]</p> <p>3. Same — Jurisdiction—Lack of, Fatal to General Judgment for Defendant.</p> <p>Where the court has no jurisdiction, a general judgment for the defendant is erroneous, because it renders the merits of the case res adjudicata. It must be reversed and a judgment of dismissal for want of jurisdiction, or without prejudice, entered.</p> <p>[Ed. Note. — 'For cases in point, see Cent. Dig. vol. 13, Courts, § 158.] (Syllabus by the Court.)</p>

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

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

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

<p>Appeal and Error — Time of Taking Proceedings — Effect of Motion to Vacate Judgment.</p> <p>The six months allowed by statute for suing out a writ of error for the review of a judgment by the Circuit Court of Appeals cannot be extended by a motion in the trial court to vacate the judgment, filed after such time has expired, which brings nothing new into the record, but is in effect merely a motion to reargue the question whether the judgment was warranted by the record.</p>

<p>Master and Servant — Death of Servant — Fellow Servant Act — Constitutionality.</p> <p>The Ohio fellow servant act of April 2, 1890 (87 Ohio Laws, p. 150), providing that, in an action for injuries to a railroad employé, it shall be no defense that the injury was caused by the negligence or default of a fellow servant, is a valid law under the Constitution of Ohio, and is not repugnant to thé fourteenth amendment of the federal Constitution.</p>

This cause comes here on appeal from an order for preliminary injunction, upon bill and affidavits submitted by complainant and opposing affidavits submitted by defendant.

<p>Patents — Infringement—Pool Tables.</p> <p>The Cunningham patents, Nos. 553,185 and 556,532, the former relating to the construction of a pocket for pool tables having return conduits for balls, and the latter to the conduit, if conceded invention, held not infringed. No. 559,790 to the same inventor, also relating to pockets, is void; for lack of invention.</p>

In Equity. Suit for infringement of letters patent No. 378,379 for a. filtering process for beer granted to Heinrich Stockheim February 21, 1888. On final hearing.

<p>Patents — Suit fob Infbingement — Pbeliminaby Injunction.</p> <p>A preliminary injunction against infringement of the Sachs patent, No. 660,341, for an electrical safety fuse, denied, where upon the showing made there was a serious question whether the article made and sold by defendants embodied the invention of the patent and it also appeared that similar articles were generally made by others and for sale In the open market, and that the injunction, If granted, would cause serious loss to defendants.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 489-495.</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p>

<p>Patents — Infringement—Peed Mechanism fob Sceew Cutting Lathes.</p> <p>The Norton patent, No. 470,591, for a feed mechanism for screw cutting lathes, limited to the precise combination of old elements shown and claimed, as it must be in view of the prior art, held not infringed by the machine of the Newton patent, No. 787,537, in which the cone gears are not located on the feed shaft as specifically described in each claim of the Norton patent.</p>

<p>Patents — Suit to Compel Issuance — Issues and Pkoofs.</p> <p>The government is treated as a party to all actions in which the validity of a patent is involved, in order that it may protect the public against a monopoly granted to one who is not entitled thereto, and in a suit under Rev. St. § 4915 [U. S. Comp. St. 1901, p. 3392], to compel the issuance of a patent to complainant for an invention for which one was granted to the defendant, evidence is admissible to show that defendant’s patent is void for anticipation, although no such issue is made by the pleadings, and although such evidence may defeat the action.</p>

<p>Patents — Infringement—Tabulating Attachment fob Typewriters.</p> <p>The Gathright patent, No. 436,916, for a tabulating attachment for typewriters, as previously construed by the Circuit Court of Appeals, held infringed, on motion for a preliminary injunction.</p>

In Equity. Motion for preliminary injunction in suit for alleged infringement of patent to Judson C. Sharp, for fire escape, issued November 13, 1906, on application filed July 13, 1904.

<p>1. Eminent Domain — Nature of Right — Property Right — Transfer.</p> <p>The right of a corporation to maintain a proceeding to condemn land for a public use is not a right of property, in the sense that it may be made the subject of private proprietorship, so as to be capable of conveyance by deed from one corporation to another.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 35.]</p> <p>2. Same — Proceedings—Change of Parties.</p> <p>Where a corporation entitled to exercise the right of eminent domain, after instituting proceedings for that purpose, transferred all, its franchises, rights, and property to another corporation organized for the Same purpose and entitled to exercise the same rights, the transferee thereby became invested by operation of law with the right to continue such proceeding as the representative of the state, and was therefor entitled to be substituted as the petitioner in the pending proceeding under Code Civ. Proc. Cal. § 385, providing that, in case of a transfer of interest, the court may allow the action or proceeding to be continued by or against the successor, or may allow the transferee to be substituted as a party to the suit.</p>

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

<p>1. Customs Duties — Classification—Wall Pockets — Lithographic Prints.</p> <p>Articles composed of cardboard on which lithographic prints have been pasted, and which is cut into forms adapted to be folded into pockets to hang on walls, some of them having pincushions or calendars attached, are not dutiable as “lithographic prints,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 400, 30 Stat. 188 [U. S. Comp. St. 1901, p. 1672], but as manufactures of paper, under paragraph 407, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1673].</p> <p>2. Same — Commercial Designation — Lithographic Prints.</p> <p>The expression “lithographic prints,” in Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 400, 30 Stat. 188 [U. S. Comp. St. 1901, pi 1672], had no such definite, general, and uniform meaning in the wholesale trade and commerce of the United States at the time of the passage of that act as. to control its construction. ‘ _</p> <p>3. Same — Evidence—Admissibility of Previous Records.</p> <p>The .Poard of General Appraisers admitted as evidence in a case testimony taken previously in another case. This was done over the objec“tion of counsel, who had not appeared in the previous case nor had opportunity of cross-examining the witnesses therein; and the articles involved in the two cases were not shown to be the same. Held, that such evidence should not have been admitted.</p> <p>4. Same — Appeal peom Board oe General Appraisers — Competency oe Evidence.</p> <p>Though Customs Administrative Act June 10, 1890, c. 407, § 15, 26 Stat. 138 [U. S. Comp. St. 1901, p. 1933], providing appeals from the Board of General Appraisers to the Circuit Court, makes competent evidence admitted by the board, the court may attach very slight weight to such eyidence.</p>

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

On Application for Review of a Decision of the Board of United States General Appraisers. The goods in controversy were described by the Board as follows: “This merchandise consists of woven fabrics of silk in the piece, boiled off, and having a cotton cord loosely wound with gilt paper sewed upon the fabric with a colored thread.

<p>Account Stated — What Constitutes.</p> <p>Where the repairer renders accounts for the work done and materials furnished and the owner of the vessels accepts the accounts and uses them to obtain its pay from the Government, to which they were chartered, upon assurances of correctness, and an examination of the accounts by the agents of the Government follows, the accounts will be deemed stated between the parties and a recovery for the full amount allowed without reduction for a commission claimed by the respondent.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 1, Account Stated, §§ 30-40.]</p> <p>(Syllabus by the Court.)</p>

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

In Equity. On demurrers to amended and supplemental bill and motion for preliminary injunction. This is a suit in equity against the city of Superior and the county of Douglas, based upon certain street improvement bonds of the city of Superior. The bill has been twice amended, and the demurrers involve the sufficiency of the amended and supplemental bill of complaint.

<p>1. Courts — Jurisdiction op Federal Courts — Federal Question.</p> <p>A federal court has jurisdiction of a suit by a landowner to restrain revenue officers of a state from prosecuting proceedings expressly based on a state statute to enforce the collection of taxes against such lands, on the ground that such statute as applied to complainant’s lands impairs the obligation of a contract with the state exempting such lands from taxation.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, §§ 820, 821.</p> <p>Enjoining proceedings in state courts, see notes to Gamer v. Second Nat. Bank, 16 C. C. A. 90; Central Trust Co. v. Grantham, 27 C. C. A. 575; Copeland v. Brunning, 63 C. C. A. 437.]</p> <p>2. Constitutional Daw — Who may Raise Constitutional Questions — Taxation — Exemption op Land — Interests op Lessees.</p> <p>An educational corporation, owning lands which by a contract with the state are exempted from taxation, may maintain a suit in equity to restrain- the officers of the state from levying and collecting taxes on improvements made on such lands by lessees, which by the terms of the leases become part of the realty, to be paid for by the landlord on the termination of the leases; such taxes being in effect against the lands themselves, and in any event in direct diminution of their rental value.</p> <p>3. Same — Impairment op Contract — Erroneous Construction op Statute.</p> <p>Where officers of a state are prosecuting proceedings under a state statute relating to taxation, the effect of which will be to impair the obligation of a contract, the right of a party to such contract to invoke the jurisdiction of a federal court for the protection of his constitutional rights is not affected by the fact that such officers may be proceeding upon an erroneous construction of the statute, aud that, properly construed, it is not unconstitutional.</p> <p>4. Courts — Federal Courts — Jurisdiction—Actions Against States.</p> <p>An action by a university, whose lands are exempt from taxation, against officers charged with the duty of levying and collecting taxes, to restrain such officers from enforcing taxes on improvements erected by lessees on such exempt lands, is not a suit against the state, so as to exclude the jurisdiction of the federal courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 844%. Federal jurisdiction of suit against state, see note to Tindall v. Wesley, 13 C. C. A. 165.]</p> <p>5. Same — Conflicting Jurisdiction op State and Federal Courts — Enjoining State Court Action.</p> <p>Nor can such suit be considered one to enjoin the action of a state court, on the ground that the tax officers are charged with judicial functions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 1418.]</p>

<p>Petition for Writ of Habeas Corpus.</p>

<p>1. Equitv — Objections to Jurisdiction — Time fob Taking.</p> <p>In a suit in equity for an accounting by an agent, the objection that equity is without jurisdiction because of the adequacy of the remedy at law can only be interposed in the earlier stages, and will not be considered after the case is at issue and has been heard by a master.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 495.]</p> <p>2. Work and Labor — Parent and Child — Services by Son to Father-Implied Promise to Pay.</p> <p>Services rendered by a son to his father in the collection of rents do not raise an implied promise on the part of the father to pay for them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Parent and Child, § 17.]</p> <p>3. Principal and Agent — Right of Agent to Compensation — Forfeiture by Misconduct.</p> <p>Where a son who was agent for his father to collect rents and deposit the same in bank to the father’s credit kept no proper account of his collections, and did not deposit all of the money collected, but mixed a part with his own funds and converted the same to his own use, he thereby lost his right to any allowance for his services If otherwise entitled thereto.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 211, 212.]</p> <p>4. Same — Accounting by Agent.</p> <p>An agent on an accounting for money collected for his principal will not be allowed for disbursements claimed to have been made by him where he failed to keep proper accounts, and the testimony in support of his claim is vague and unsatisfactory.</p> <p>5. Gift — Forgiveness of Debt — Evidence to Establish.</p> <p>While a creditor may make a present to his debtor of the amount due him, nothing less than a delivery of the note or a receipt for the amount will support such gift.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gifts, §§ 95-99.]</p>

<p>O. F. Goddard, for complainant.</p> <p>Mclntire & Mclntire and Geo. Y. Wallace, Jr., for defendant.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. Appeal from the decision of the Board of General Appraisers at New York on the protest of the importer from the assesment by the collector of customs at the port of Baltimore of duty at the rate of iy2 cents per pound on merchandise invoiced as 77 barrels of scrap tin circles, weighing 82,800 pounds and valued at $414, imported from Canada.

<p>1. Bankruptcy — Involuntary Proceedings — Amendment oe Answer by Creditor.</p> <p>Formal amendments to an answer filed by a creditor to a petition in Involuntary bankruptcy against his debtor may be made at any time before adjudication.</p> <p>2. Same — Amendment op Petition.</p> <p>A petition in involuntary bankruptcy cannot be amended to allege additional acts of bankruptcy after the time for pleading thereto has passed and the alleged bankrupt by making default has confessed the acts charged.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 126-129.]</p> <p>8. Same — Procedure When Two or More Petitions are Filed.</p> <p>Rule 7 of the general orders in bankruptcy, which provides that where two or more petitions in bankruptcy are filed against a debtor alleging separate acts of bankruptcy, and the debtor shall appear and answer such petitions, the one which charges the earlier act of bankruptcy shall be first heard and determined, applied only where the defendant takes issue on both or all of the petitions. Where two petitions are filed alleging different acts of bankruptcy, and the defendant answers but one, which charges the earlier act, the rule has no application, and the case will proceed upon the petition which is confessed; the other remaining in abeyance.</p> <p>4. Same — Answer—Suiticienct.</p> <p>Where a petition in bankruptcy charges as an act of bankruptcy a transfer of property by the defendant, while insolvent, to a creditor in payment of his debt with intent to prefer such creditor, an answer, which in effect admits the insolvency and the act charged, but merely denies the intent, raises no issue upon which the defendant is entitled to a jury trial.</p>

<p>1. Equity — Pleading—Supplemental Bill.</p> <p>Where suits by railroad companies to restrain the enforcement of a state statute fixing freight rates, on the ground that it was confiscatory and unconstitutional, were pending in a federal court at the time of the enactment of a second statute fixing passenger rates, the question of the constitutionality of the second act may properly be raised and determined in the pending suits on supplemental bills.</p> <p>2. Courts — Federal and State Courts — Priority of Jurisdiction.</p> <p>Where bills were tendered for filing in a federal court pursuant to notice previously given, and while leave was not then granted because of the absence of defendants, restraining orders were issued by the court based thereon, the court obtained jurisdiction over the subject-matter of the suits from such time, which was not ousted by the institution- of suits in a state court subsequently, but before the formal filing of the bills.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 1346, 1347.]</p> <p>3. Same — Jurisdiction of Federal Courts — Suits to Enjoin Enforcement of State Statute.</p> <p>A federal court of equity has jurisdiction of suits to determine the constitutionality of state statutes regulating railroad rates which are attacked on the ground that the rates fixed are unremunerative to the railroad companies, and that their effect, if enforced, will be to deprive the companies affected of their property without due process of law, and such suits are appropriate means for determining the question.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 820, 823.</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore Purchasing Co. v. Boston & M. C. C. & S. Min. Co., 35 C. C. A. 7.]</p> <p>4. Caebieks — Statute Regulating Railroad Rates — Preliminary Injunction to Restrain Enforcement.</p> <p>Preliminary injunctions to restrain the putting into effect of a state statute fixing maximum rates of passenger fares on railroads denied to await a demonstration of the reasonableness or unreasonableness of such rates by actual trial for a reasonable length of time.</p>

<p>1. Courts — Jurisdiction of Federal Courts — Suit Against State.</p> <p>A federal court is not without jurisdiction of a suit to restrain the enforcement of a state statute fixing railroad rates, to which the officers of the state who are charged with such enforcement are made parties defendant, on the ground that such suit is in fact one against the state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 844%. Federal jurisdiction of suits against state, see note to Tindall v. Wes- • ley, 13 C. C. A. 165.]</p> <p>2. Corporations — Stockholders’ Suits — Equity Rule 94.</p> <p>Under equity rule 94, a stockholder in a railroad company cannot maintain a suit in a federal court to enjoin the company from obeying a state statute fixing freight or passenger rates, where the only effort made by the complainant to secure the desired action alleged in the bill was a demand on the- directors, and the manner or reason for its refusal are not disclosed, since such refusal may have been a proper exercise of the discretionary powers vested in the directors.</p>

<p>Corporations — Foreign Corporations — Service of Process on Agent.</p> <p>A railroad company of another state, neither owning nor operating any line of road in the state of Iowa, cannot be brought within the jurisdiction of a state court therein, either under the rule of the national courts or the Iowa statutes relating to suits against foreign corporations, by service made upon an employé, not a general agent, maintaining an office in that state for the purpose of soliciting business to be done outside of the state, where the cause of action has no connection with such office or agency.</p> <p>[Ed. Note. — For cases in point,- see Cent. Dig. vol. 12, Corporations, §| 2603-2612.</p> <p>■ Service of process on foreign corporations, see notes to Eldred v. American Palace-Car Co., 45 C. C. A. 3; Celia Commission Co. v. Bollinger, 78 C. C. A. 473.]</p>

<p>1. Bankruptcy — Action by Trustee — Jurisdiction oe Circuit Court.</p> <p>A Circuit Court of the United States has jurisdiction of an action by a trustee in bankruptcy against a national bank to recover usurious interest received by the defendant from the bankrupt, in violation of Rev. St §§ 5197, 5398 [U. S. Comp. St. 1901, p. 3493); such action being one arising under the laws of the United States, which might have been brought in such court by the bankrupt, regardless of the citizenship of the parties.</p> <p>[Ed. Note. — Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p> <p>2. Same — Right oe Trustee to Maintain Action to Recover Usury Paid.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 70, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], which vests in a trustee all of the rights of a bankrupt In respect to his property, such a trustee may maintain an action to recover usurious interest paid by the bankrupt.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 231.]</p>

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

<p>.1. Shipping — Construction op Charter Party — Discharge by Charterer.</p> <p>Under a charter party which required the vessel to discharge by night, as well as by day, if required by the charterer or consignee, but also gave the charterer the option to provide the stevedore for discharging, for which the vessel agreed to pay at not exceeding a specified rate, where he exercised such option, he is not entitled to charge for discharging a sum exceeding the stipulated rate because of night work, especially where by means of it he earned dispatch money under the charter.</p> <p>‘2. Same — Suit to Recover Freight — Issues Not Made by Pleadings.</p> <p>In a suit in personam by a vessel owner to recover freight money from a charterer, the claim that under the cesser clause of the charter the sole remedy of the libelant was in rem against the cargo cannot be urged as a defense where it was not raised by the pleadings.</p> <p>:3. Same — Liability por Port Charges.</p> <p>Where a charter party provided that the freight specified should be “in full of primage, consulage, port charges, etc., as customary,” and also that the vessel should, if required, discharge by night, as well as by day, she is liable for extra port charges incurred by reason of night Work, although the discharging was done by the charterer under a provision giving him that option at a specified rate to be paid by the vessel.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 183.]</p>

<p>Shipping — Charters—Construction — Parties — Unauthorized Attempt to Bind Tiiied Party.</p> <p>The United States through Its navy department entered into a contract with a firm doing business in New York for the transportation by a named steamship owned by plaintiff of a cargo of coal from Baltimore to Yokohama, Japan. The coal delivered was short of the quantity loaded as checked by the representative of the government and shown by the bill of lading and for which it paid the contractor, and the government deducted the value of the quantity short from the freight, which it paid to the contracting firm. Plaintiff brought suit against the United States to recover the freight so withheld, the charter party having been signed by the firm “by authority of United States government.” Held, that the transaction did not authorize such signature, nor make the United States a party io the charter, and that whatever right of action plaintiff might have was against the firm, which was, in fact, the charterer.</p>

<p>Shipping — Charter Party — Liability of Vessel for Broker’s Attendance Fee.</p> <p>A vessel was chartered at Rio de Janeiro to carry a cargo of ore from that port to Philadelphia. The charter party provided that “the vessel to be consigned to charterer’s agents at the port of discharge, paying usual commission not exceeding 2y2 per cent, at this port.” Such commission of 2% per cent, was paid to the charterer before the vessel sailed. Held, that it was in effect an “address commission” which went to the charterer in reduction of freight, and did not cover the attendance fee of the agents at the port of discharge, which is a broker’s fee for the transaction of the vessel’s inward business at that port, and that, in the absence of agreement otherwise, they were entitled on rendering or tendering the service to collect such fee from the vessel at the customary rate.</p>

Action to recover money paid under the provisions of subdivision 3 of Schedule A of the war revenue act of June 13, 1898 (30 Stat. 458, c. 448), as amended by the act of March 2, 1901 (31 Stat. 943, c. 806 [U. S. Comp. St. 1901, p. 2302]). The amount involved is about $1,804.88 aside from interest.

Action by Joseph R. Dover against the Gloucester Electric Company. A verdict was rendered in favor of plaintiff for $5,200, and defendant moved for a new trial. Denied.

In Equity. Suit by a street railway corporation for an injunction to prevent a rival street railway company from occupying a public street in such a manner as to obstruct the complainant in laying tracks for an extension of its system. On final hearing. Injunction refused and suit dismissed.

<p>Bankruptcy — Petition to Reclaim Property — Sufficiency.</p> <p>A petition by one who sold goods to a bankrupt firm during several months prior to its bankruptcy, seeking to rescind the sales for fraud and to reclaim all of the goods remaining, will not be considered and referred for hearing, under the peculiar circumstances of the case, unless it not only alleges all the facts necessary to entitle the petitioner to rescind, but also sets out all the transactions and describes the goods in detail.</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 sustained the protest of Gustav Martin against the assessment of duty by the collector of customs at the port of Boston. This action was taken on the authority of a former decision of the Board. In re Parke,' G. A. 5,010 (T. D. 23,323). The opinion in the former case reads as follows: SOMERVILLE, General Appraiser.

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

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

<p>Bankruptcy — Fraudulent Transfer of Property — Suit by Trustee to Set Aside.</p> <p>A sale by an insolvent company in bulk of its stock of merchandise, which constituted practically all of its property, the transfer having been made secretly, at night, to a purchaser which knew of the insolvency, and the proceeds in part used to pay certain creditors, held to have been made with intent to hinder, delay, and defraud its creditors, and to be voidable at suit of its trustee in bankruptcy,</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 248.]</p>

<p>Bankruptcy — Examination op Bankrupt — Right Prior to Adjudication.</p> <p>Bankruptcy Act July 1, 1898, § 21a, c. 541, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3430], providing for the examination of witnesses “concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration under this act,” does not authorize an order in involuntary proceedings in which there has been no adjudication requiring the alleged bankrupt to appear and submit to an examination.</p>

<p>In Bankruptcy. On review of referee’s decision.</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern District of Ohio.</p> <p>In Equity. Suit for infringement of letters patent No. 689,906, for a detonating device granted to George M. Potter December 31, 1901.</p>

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

<p>1. Patents — Invention—New Combination oe Old Elements.</p> <p>Where a patented structure, although a combination of old elements, Is new, and capable of a use which is new and of special utility, and in such use constitutes an important advance in the art, it cannot be denied patentability because other uses are also claimed for it, in which it is not a substantial advance on the prior art.</p> <p>[Ed. Note. — For eases in, point, see Cent. Dig. vol. 38, Patents, § 49.]</p> <p>2. Same — Infringement—Pumping Engine.</p> <p>The' Whiting & Wheeler patent, No. 526,913, for a pumping engine intended for use as an air pump for withdrawing the water and air from the condenser of a steam engine, was not anticipated and discloses patentable novelty and invention. The Hall & Gage patent, No. 522,938, for a combination which includes a special valve movement for use in connection with such pump, also held valid, and both patents held infringed.</p>

<p>Patents — Anticipation—Electricity Metebs.</p> <p>The Duncan patent No. 550,823 for improvements in electricity meters of tlie motor type claims 1 and 8, the essential feature of which is a magnetic shield inserted between the armature and the damping magnets to protect them from the influence of the field coils, are void for anticipation and lack of patentable novelty in view of the prior art and publications.</p>

<p>•In Equity. Suit for infringement of patent. On final hearing.</p>

<p>In Equity. Suit for infringement of letters patent No. 497,482, for a shunt for electric light and. power stations, granted to Edward Weston May .16, 1893. On report of master.</p>

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

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

<p>In Equity. On defendant’s motion for entry of final decree.</p>

<p>For former opinion, see 148 Fed. 719.</p>

In Equity.- On June 20, 1904, the Canton Roll & Machine Company, a Pennsylvania corporation, filed its bill in its own behalf and in behalf of all other creditors of the Rolling Mill Company of America who might join therein in this court against the Rolling Mill Company of America, a New Jersey corporation, the Morgantown Tin Plate Company, a West Virginia corporation, Hector M. Hitchings, Melvin J. Palliser, W. J. Logan, Jacob Meurer, Dick S. Ramsey, Andrew Meurer, August…

<p>1. Bankruptcy — Liens—Equitable Bights Under Unrecorded Mortgage.</p> <p>Claimant was given a mortgage on a sawmill building and a part, but not all, of the machinery therein, which mortgage was not recorded in the town where the mortgagor resided, as required by the statute of the state in case of chattel mortgages. The mill burned, and the property was partially destroyed, and several months afterward the mortgagor was adjudged a bankrupt, and his trustee took possession of and sold the remnants of the mill property. After the adjudication claimant recorded her mortgage, but in the meantime took no steps to obtain possession of any of such property or to assert any right thereto under the mortgage. Held that, under the facts, she had no equitable claim to the proceeds of such property which could be enforced against the trustee in bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 276.]</p> <p>2. Same — Proceeds of Insurance.</p> <p>The mortgagor, however, having taken out a policy of Insurance on the property payable to the claimant as her interest might appear, in accordance with an agreement made when the debt was created, she had an equitable lien on the proceeds of such policy enforceable as against the trustee in bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 295.]</p> <p>8. Same — Property Held Under Conditional Sale Contracts.</p> <p>Claimants sold machinery and other supplies to be used in the construction and equipment of a sawmill, taking notes therefor reciting that the title to the property should remain in the sellers until the notes were fully paid. Such notes were not recorded as required by the statute of the state in case of conditional sales. The mill and a part of the machinery were destroyed by fire, and subsequently the purchaser was adjudged a bankrupt, and the remnants, consisting in part of the property sold to the bankrupt by claimants and in part of other property, were sold by the trustee. Held, that the facts were not sufficient to impress the fund arising from such sale with an equitable claim in favor of claimants arising out of the conditional sale notes.</p> <p>4 Same — Proceeds of Insurance.</p> <p>Where a bankrupt, on a purchase of property under contracts of conditional sale, orally agreed to insure the same for the benefit of the sellers until it should be fully paid for, and actually procured a policy of insurance thereon payable to them as their interest might appear, which was delivered to them, on a destruction of the property by fire the fund arising from the insurance, was impressed with an equitable lien in favor of the sellers arising out of the agreement and enforceable as against the trustee in bankruptcy, even though the bankrupt had a renewal policy made payable to another than the sellers, of which fact they had no knowledge.</p> <p>5. Same — Preference—Assignment of Claim fob Insurance.</p> <p>The assignment by a bankrupt within four months prior to his bankruptcy and while insolvent of a claim against an insurance company for a fire loss to secure a prior indebtedness was void as a preference, and created no legal or equitable lien in favor of the assignee to the insurance money as against the trustee in bankruptcy.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 247.]</p> <p>6. Mortgages — Character of Instrument — Mortgage of Building to Owner of Land.</p> <p>A mortgage taken by the owner of land on a mill built thereon with his consent, under an oral agreement that on subsequent payment of an agreed price he would convey the title, is not a mortgage of real estate.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, § 10.1</p> <p>7. Bankruptcy — Agreement to Insure — Equitabíle Lien on Insurance Money.</p> <p>An oral agreement by a mortgagor to Insure the property for the benefit of the mortgagee whose money was used in its purchase and construction gives the mortgagee an equitable lien upon the proceeds of the insurance after the property has been destroyed by fire, as against the mortgagor or his trustee in bankruptcy, although such agreement was made after the mortgage was given and the policies had been issued which were not in terms for the mortgagee’s benefit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 295.]</p>

<p>In Admiralty. Proceeding for limitation of liability.</p>

<p>Shipping — Delay in Discharge Caused by Insufficient Steam.</p> <p>A vessel under contract requiring reasonable dispatch is liable to a consignee for demurrage paid by him to another vessel by reason of the occupation of a wharf by the first for an excessive time in discharging, where the delay was caused by the failure of such vessel to furnish sufficient steam for the winches to make the discharge with reasonable dispatch. Such vessel is also liable for an extra sum which the consignee was compelled to pay to the stevedores by reason of the delay so caused.</p> <p>[Ed. Note. — Quick dispatch, see note to 14 C. C. A. 657 ; 21 C. C. A. 342.]</p>

<p>In Bankruptcy. On petition to try title to personal property.</p> <p>The Cullman. Fruit & Produce Association having been adjudicated a bankrupt, the Sprague Canning Machinery Company files this petition, asking that this court direct the receiver to turn over to them certain personal property found in possession of the bankrupt at the time of the filing of the petition, alleging the same to be the property of the petitioners; the facts in relation to the issues being as follows: On or about' the 14th day of May, 1906, certain machinery to be used in a canning factory was shipped by the Sprague Canning Machinery Company, a corporation of Illinois, to the Cullman Fruit & Produce Association, a corporation in Alabama. This shipment was made on an order received from the Cullman Association on the 14th day of May, and provided for the shipment on «Tune 1, 1906; the sale being for cash. The shipment was made, with bill of lading and draft attached; but it was not shown whether the bill of lading was in the name of the Sprague Canning Machinery Company or the Cullman Company. After the goods arrived at Cullman, Ala., the Cullman Association wired the Sprague Company to release the car and they would send check. Upon receipt of this telegram the Sprague Company, relying on this promise to send the check, wired. the railroad to let the Cullman Company have the goods, and the goods were in fact so delivered; but no payment was ever made by the Cullman Association for the goods shipped to them. About the 1st of August, 1906, after the delivery of the goods, an agent of the Sprague Company went to Cullman, Ala., and saw the president and manager of the Cullman Association, and asserted claim to the property, and made demand for the machinery or the money which had been promised therefor. The president of the Cullman Association admitted the claim of the Sprague Company and then gave the said agent two vouchers, drawn by the president on the treasurer of the company and payable at Parker’s Bank, one for $215 and one for $1,000, in payment for the purchase money for the property. Said vouchers were payable August 15th and September 1st, respectively. At the time of the delivery of these “vouchers” (as they were designated by the witnesses) to the agent of the Sprague Company, there was also delivered to him by the president of the Cullman Association $1,200 worth of bonds to secure the payment of the drafts or vouchers. These bonds were secured by a mortgage on all the assets of the Cullman Association, and the fact was made known to the agent of the Sprague Company at the time he accepted the bonds. At the time of the acceptance of these vouchers and bonds by the Sprague Company the property was in the possession of the Cullman Association at Cullman, Ala., and was in use as part of its canning factory, being attached to the building by pipes. About the 5th of September, 1906, another agent of the Sprague Company went to Cullman to secure some sort of a settlement of the account between that company and the Cullman Company, and, failing to secure a satisfactory adjustment, a certain contract was entered into, which was signed in duplicate by the Sprague Canning Machinery Company, by its treasurer, and by the Cullman Fruit & Produce Association, by its president, to one of which was attached the seal of the Cullman Company, and to the other there was no seal. That contract was in terms a contract of lease by the Cullman Company from the Sprague Company of the identical canning property now in issue; the terms of the lease being that the Cullman Company agreed to pay as rental the identical sums of money as embraced in three notes, which were executed at the same time with this lease. These notes were never paid. It was further stipulated in the said lease that the Sprague Company would make a complete bill of sale to the Cullman Company of the property involved in this proceeding as soon as said notes were paid. No action was taken by the board of directors of the Cullman Company authorizing this lease, or in any manner ratifying the act of the president and manager in executing same; but the president of the Cullman Association represented to the agent of the Sprague Company, at the time the lease was signed, that he had ample authority to sign same. The Sprague Company, which was a corporation under the laws of Illinois, had never complied with the laws of Alabama for entering into business in this state.</p>

<p>1. Judgment — Effect of Conditional Order Setting Aside.</p> <p>A final judgment was rendered on an appearance bond given by tbe defendant In a criminal case. Subsequently a motion was made to set aside such judgment, and an order was entered sustaining the motion on condition that the costs in the case should be paid within 60 days, which was not done. Held, that such order did not supersede the judgment, but merely suspended it for 60 days, and that an execution was properly based on such judgment, and not upon the subsequent one.</p> <p>2. United States — Enforcement of Judgment — Defense of Laches.</p> <p>The right of the United States to cause execution to be issued on a judgment in its favor in a purely governmental suit, such as an action on an appearance bond given by a defendant in a criminal case, is not barred by limitation, nor by the laches of its officers in failing to have such execution issued until more than 10 years after the judgment was entered.</p>

<p>Towage — Injury to Tow — Fault of Tow in Failing to Make Hawser Fast.</p> <p>A steamer taken in tow by a tug, to be moved out from her loading berth, is responsible for the proper fastening of the lines to her own bitts, and where, in such case, the tow was injured by coming in contact with a pier by reason of the insecure fastening of one of the lines which slipped on the bitt, the tug is not in fault for her injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 25.]</p>

<p>Trade-Marks and Trade-Names — Suit for Infringement — Priority or Rigiit.</p> <p>A firm commenced the use of a name as a trade-mark for tooth brushes in 388S, and continued such use until its failure about 1890, and during the same time defendant used a similar name for brushes sold by him. On being sued for infringement, he promised to quit, hut, the firm soon failing, he did not. After the failure complainant’s assignor, who had become a partner shortly before, appropriated the trade-mark as his own, and had the same registered. Held, that he was not the legal successor of the firm, and obtained no right from defendant’s promise, but his right dated only from the time of his own use, which, being later than defendant’s, afforded no ground upon which complainant was entitled to enjoin defendant as an infringer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 36, 41, 42.]</p>

<p>1. Pleading — Amendment Permissible Where Variance Immaterial.</p> <p>Where the variance between the pleading and the facts which the pleader seeks to prove is so slight that it is obvious that the opposing party could not have been misled by it in the preparation of his case for trial, it is the duty of the court to disregard it or to permit an amendment to conform the pleading to the proof offered.</p> <p>[Ed Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, § 1338.]</p> <p>2. Bills and Notes — Notice oe Protest— Sueficiency.</p> <p>A notice of protest is sufficient which by express terms or by necessary implication informs the indorser of the identity of the paper, of due demand, of its protest, and of its dishonor.</p> <p>Mistakes and omissions in it which obviously could not have misled or prejudiced the indorser are not fatal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1129-1136.]</p> <p>8. Same — Facts—Conclusion.</p> <p>A certificate of deposit dated January 25, 1904, due January 25, 1905, was duly presented for payment. Payment was demanded and refused on January 25, 1905. Thereupon a notice of the presentment, demand, and dishonor was sent to, and received by, the indorser, which was dated January 25, 1904, when it should have been dated January 25, 1905, which stated that the demand and dishonor were on the day of the date of the notice, that the certificate was dated January 25, 1905, when it was dated January 25, 1904, and it omitted to recite this clause which was in the certificate, “No interest after six months.” Held, the notice sufficiently identified the certificate and notified the indorser of due presentment, demand, and dishonor, so that it is obvious that he could not have been misled or prejudiced by the mistakes in it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1129-1136.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal and Error — Decision—Questions Presented by Record.</p> <p>Legal issues other than the one specifically presented for determination may properly be considered and determined by an appellate court, where they naturally arise and are pertinent to the question at issue and to further proceedings in the trial court.</p> <p>2. Courts — Federal Courts — Jursidiction to Enforce Judgments.</p> <p>The jurisdiction of a national court over a controversy once lawfully acquired includes the power to enforce its judgment or decree, and this power may not be destroyed or restrained by the legislation or lack of legislation of the states.</p> <p>3. Same — Writ of Scire Facias to Revive a Judgment.</p> <p>A Circuit Court of the United States has power to issue its writ of scire facias to revive its judgment and to prescribe a reasonable method of service thereof without the district where the judgment defendant has departed therefrom. Such power is derived from the Constitution and Rev."St. § 716 [U. S. Comp. St. 1901, p. 580], and cannot be restrained, limited, or rendered less efficacious by the statutes of a state.</p> <p>4. Same — Mode of Service.</p> <p>The conformity act (Rev. St. §§ 914, 915, 916 [U. S. Comp. St. 1901, p. 684]) empowers a Circuit Court to use a similar remedy to that provided by a state statute to enforce its judgments, but does not require it to follow the method prescribed by a state statute in serving a writ of scire facias to revive a judgment on a nonresident defendant if it deems such method insufficient.</p> <p>[Ed. Note. — State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71, and Hill v. Hite, 29 O. C. A. 553.]</p>

<p>1. Master and Servant — Negligence of Fellow Servants.</p> <p>One who enters the employment of another thereby assumes the risk of the negligence of his fellow servants in the performance of all acts which they do while they are not discharging a positive duty of the master.</p> <p>[Ed. Noto. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 567.]</p> <p>2. Same — Duty of Care for Safety of Place and of Appliances where Character Necessarily Chances with Work, Servant’s not Master’s.</p> <p>The duty of caring for the safety of a place or of appliances in cases in which the work which the servants are employed to do necessarily changes the character of the place or of the appliances as to safety as the work progresses is the duty of the servants to whom the work is intrusted, and it is not the duty of the master.</p> <p>3. Same — Vice Principal — Fellow Servants.</p> <p>All who enter the employment of a common master to accomplish a common undertaking are prima facie fellow servants, although their grades of service are different, and some direct and supervise the men subject to their command and their work, while others perform the labor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 451, 452.</p> <p>Wbo are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippen v. Kimball, 33 C. C. A. 286.J</p> <p>4. Same — Risk of Supervision by Fellow Servant Assumed.</p> <p>The servant assumes the risk of the negligence of his superior fellow servant in the direction of the men and the work to the same extent that ho assumes the risk of the negligence of the fellow laborer by his side who is engaged in performing the work.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 567, 570.]</p> <p>.5. Same — Vice Principal — Departments of Business.</p> <p>The homogeneous business of a master cannot be divided into distinct and separate departments under the rule in Railroad Co. v. Baugh, 33 Sup. Ct. 914, 149 U. S. 368, 383, 37 L. Ed. 772, by the testimony to that effect of bis servants, and such testimony is incompetent for this purpose. Tbe nature of tbe business alone can separate it into departments.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. rol. 34, Master and Servant, §§ 475-479.]</p> <p>6. Same — Vice Principal — Facts—Conclusion.</p> <p>Tbe plaintiff and D. were employed by tbe defendant in dismantling heavy machinery in the World’s Fair buildings. D. was foreman under a superintendent who was under a manager there. The day before the accident a heavy wooden frame 25 feet high had been erected and temporarily fastened in place with guy ropes under, the direction of D. to be used to lift and move the heavy parts of an engine. On the day of the accident the plaintiff and four other men were working under D. to permanently secure this frame in place. D. directed the plaintiff to go upon the frame, and, after he had climbed there for the purpose of moving one of the ropes which held this frame in place so that they could use it at another place as a permanent guy rope, D. untied it below, and the frame fell and injured the plaintiff.</p> <p>He-ld, D. was not a vice principal, but he was a fellow servant of the plaintiff, and the defendant was not liable for his negligence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 451, 452.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal and Error — Review—Presumptions—Trial by Court.</p> <p>It matters little whether a court trying a case without the intervention of a jury formally excludes evidence which it has necessarily had to hear in order to determine its relevancy at the time when offered, or at the end, when it considers the whole with a view of maturing its judgment, for the fact that it remains in the record does not necessarily imply that it was improperly considered in making the final decision.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3766.]</p> <p>2. Same — Findings op Fact.</p> <p>Reversal of the lower court’s judgment as to the facts will only be made when such judgment is shown to be against the clear preponderating weight of all the evidence.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3974.]</p> <p>3. Same — Presumption.</p> <p>Where the whole testimony has not been incorporated in the record, it will be presumed that such testimony preponderates in favor of and sustains the judgment of the trial court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3673.]</p> <p>4. Same — Findings op Fact — Sufficiency to Support Judgment.</p> <p>Where findings of fact are specifically made and filed by the trial court sitting without the intervention of a jury, and no exceptions are taken to such findings, no other or additional findings are asked, and the testimony in full is not incorporated in the record, such findings will be taken as' true, and the appellate court in passing upon the case will only reverse in case it finds the judgment rendered to be contrary to the facts so found and set forth by the trial court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3073.] ■</p>

<p>Collision — Steamer and Soho oner — Failure to Show Proper Lights.</p> <p>A schooner held In fault for a collision with a steamer in Chesapeake Bay in the night, on the ground that, while becalmed, she had been drifted around by the tide so that the steamer was an overtaking vessel, and could not see her side lights, and she failed to exhibit any white light or flare-up astern as required by the rules, although the steamer was seen approaching for a considerable time before the collision.</p> <p>|Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 105-116.</p> <p>Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p>

<p>1. Railroads — Action fob Injury in Collision — Pennsylvania Statute.</p> <p>Act Pa. April 4, 1868 (P. L. 58), which provides that, when any person shall sustain personal injury or loss of life while lawfully engaged or employed “on or about the road, work, depots and premises of a railroad company” of which company such person is not an employe or passenger, the right of action and recovery shall be the same as would exist if such person were an employd, does not prevent a recovery from a railroad company for tlie death of an engineer in the employ of another company, who, while running a train of such company over a track of defendant, under an agreement which gave it the right of way, was killed in a collision with a train of defendant negligently being run upon the same track, since the track was not at the time the premises of defendant, whose train was there without right, but of the lessee.</p> <p>2. Same — Instructions—Contributory Negligence.</p> <p>The charge of the court, in an action to recover for the death of a railroad engineer, killed in a collision between his train and a train of defendant company, held to have fairly submitted to the jury the question of contributory negligence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 951.1</p>

In Equity. Bill to restrain infringement of letters patent No. 655,-402, issued to Joseph G. Hendrickson and Guilliam H. Clamer, for an alloy for anti-friction hearings. On final hearing.

<p>1. Patents — Subject of Patents — Function of Machine.</p> <p>The Conroy patent, No. 723,139, for a method of ornamenting glass, which consists in chipping and scalloping the edges of plate glass for small mirrors by the use of a machine, is void as merely being for the function of the machine in the manufacture of an old product; the same work having previously been done by hand and by practically the same mechanical process.</p> <p>2. Same — Public Use — Machine foe Shaping Edges of Glass.</p> <p>The Conroy patent, No. 735,949, for a. machine for shaping or chipping the edges of glass articles, discloses invention, and is not invalid for public use because the machine was in fact used for more than two years prior to the application; it being shown that, while the machine was fairly successful, and its product was sold, the purpose of its use was experimental, and It was during such time being perfected by the inventor and was kept under lock and key and as far as possible from the knowledge even of the factory workmen who were not engaged in its operation. Also, held infringed.</p>

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

In Equity. Suit for infringement of letters patent No. 688,739, for a process for making sound records, granted to Joseph W. Jones, December 10, 1901. On motion for preliminary injunction.

<p>1. Patents — Infringement—Talking Machine Records.</p> <p>The mere making of duplicate copies of fully finished, commercial, foreign-made records for talking machines does not constitute infringement of the Jones patent, No. 688,739, for a process of producing sound records.</p> <p>2. Same — Suit foe Infringement — Preliminary Injunction.</p> <p>Preparations or threats to infringe a patent shown by ex parte affidavits only are hot sufficient to warrant the granting of a preliminary injunction.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 38, Patents, § 479.]</p>

At Law. The plaintiffs in these suits are steamship owners In the North Atlantic trade; the International Mercantile Marine Company operating the American and Red Star lines, and the Oceanic Steam Navigation Company the White Star line. Defendant is the collector of customs at this port. The actions are brought to recover, as illegally exacted, various sums of $100 each, paid defendant as a condition of procuring clearance for certain of plaintiffs’ ships.

<p>Iñi Admiralty.</p>

<p>L Collision — Steamship Aiding Grounded Tow in Channel — Attempt op Another Vessel to Pass.</p> <p>While the steamship Ligonier and a tug were working to get the Ligonier’s tow off the ground at the southern end of the canal leading from Port Arthur into Sabine Pass, the steamship Waverley, coming down the canal, attempted to pass through the narrow space between the Ligonier and the west bank, resulting in a collision. The Ligonier did not consent to such passing; but, on the contrary, both she and her tow sounded a number of blasts of their whistles intended to warn the Waverley of the danger. The Ligonier stopped her engines, but could not move further to the eastward because of the shallow water. Held, that the Waverley was solely in fault for the collision in attempting to force a dangerous passage, in the absence of an agreement by the Ligonier to co-operate. - ’</p> <p>2. Navigable Waters — Obstruction op'Channel by Vessels — Construction op Statute.</p> <p>Section 15 of Act March 3, 1899, c. 425, 30 Stat. 1152 [U. S. Comp. St. 1901, p. '3543],' which makfes it unlawful to anchor or tie up any vessel in a návigable channel in such manner as 'to prevent or obstruct the passage of other vessels, was not intended to prevent" the aiding of a vessél grounded or in difficulty, even if it involves the temporary obstruction of a channel. " A A- A ’ '' ‘ _ •' : ■ ■■ ¡ ' A</p>

In Admiralty. Suit for damage to cargo. Certain steel was shipped on the barque Bérengére from Antwerp, in Belgium, to be carried to Portland, Or. The shippers, having received their bills of lading, indorsed them to Henry Lund & Co., the libelants, who were to deliver the steel to Robertson-Manning Company, on its arrival at destination, at the alleged invoice price of $3,656.20.

In Admiralty. Suit in rem, to recover damages for the loss of the three-masted schooner Alcalde, alleged to-have been caused by negligence in the performance of a towage contract. On the evidence, the court decides that the loss of the Alcalde was caused by concurring negligence of the owners and masters of both vessels, and that the damages and costs be.divided equally.

<p>1. Courts — Jurisdiction of Federal Courts — Suit Against State.</p> <p>A suit to enjoin state officers or a state commission from enforcing a state statute or regulation fixing maximum railroad rates is not one against the state, of which a federal court is prohibited from entertaining jurisdiction by the eleventh constitutional amendment; no property or revenues of the state being affected by such suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, g 844%. Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165.]</p> <p>2. Equity — Pleading—Multifariousness of Bill.</p> <p>A bill which seeks to enjoin the Attorney General of a state from taking steps to enforce state statutes fixing railroad rates is not multifarious because it also joins the members of the State Railroad and Warehouse Commission as defendants, and asks an injunction restraining them from enforcing an order made by them under legislative authority also affecting rates.</p> <p>3. Corporations — Suits by Stockholders — Conditions Precedent.</p> <p>Stockholders in corporations, who made demand either upon the directors or the managing officers of their corporations to refuse to comply with a state statute alleged to be unconstitutional, and whose demands were in each case refused on the ground of the severe penalties imposed by the statute upon such officers and directors for their failure to obey its requirements, held to have sufficiently complied with equity rule 94 to entitle them to maintain a suit in a federal court to enjoin the corporation from complying with such statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 793.]</p> <p>4. Carriers — State Regulation of Rates — Determination of Validity.</p> <p>Where a state enacted successive regulations of rates to be charged by railroads on intrastate business, each of which necessarily affected the earnings of the railroad companies, the validity of such regulations as to whether they are unconstitutional as confiscatory is to be considered separately; the first without reference to the subsequent ones, and the latter with reference to the effect of those previously enacted.</p> <p>5. Courts — Jurisdiction of Federal Courts — Federal Question.</p> <p>A suit to enjoin the enforcement of state enactments regulating railroad rates, on the ground that the same are confiscatory and would deprive the railroad companies of their property without due process of law and deny them the equal protection of the laws, in violation of the fourteenth constitutional amendment, is one arising under the Constitution of the United States, of which a federal court has jurisdiction on that ground.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 820, 822.</p> <p>Jurisdiction in eases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; City of Helena v. Mills, 5 C. C. A. 11.]</p> <p>8. Injunction — Preliminary Injunction — Grounds for Denial.</p> <p>,- Where rates of charge by railroad companies for the intrastate carriage. of commodities and passengers háve been fixed by the state, and such, fates havé been accented and put into operation by • the railroad • companies, a preliminary injunction will not be granted at suit of stockholders of such companies to restrain. further enforcement of such rates by the state or obedience thereto by the companies; the legitimate purpose of such an injunction, except in cases of fraud, being to preserve the status quo pending a final hearing on the meri.ts.</p> <p>[Ed. Note. — For cases in point, see Gent.. Dig. vol. 27, Injunction, §§ 302-306.]</p> <p>7. Carriers — State Regulation of Railroad Rates — Constitutionality of Statute.</p> <p>A preliminary injunction granted restraining the putting into effect of Act Minn. April 18,.1907 (Laws 1907, p. 313, c. 232), fixing rates for the carrying of commodities .by railroads within the state on the ground that such rates, .If enforced, in connection with reductions in both commodity and passenger rates made by prior acts, would on the showing made be .confiscatory,. and would-deprive the companies of fair compensation for the services performed and a fair return on the property invested.</p>

<p>Bankruptcy — Preferences—Knowledge of Creditors — Evidence—Findings.</p> <p>Evidence held to sustain a referee’s finding that certain mortgagees, who took their mortgages within four months before the filing of a bankruptcy petition, had no knowledge that at the time the mortgages were given the bankrupt was insolvent, and that a preference was intended, but that another mortgagee, whose mortgage was executed only eight days before the bankruptcy petition was filed, had sufficient knowledge of, the bankrupt’s actual condition to put him on inquiry, and his mortgage whs therefore void as a preference.</p>

<p>1. Sales — Breach of Contract by Purchaser — Remedy c*f Seller.</p> <p>The price of goods contracted to be sold and delivered, but which have not been delivered nor accepted so as to pass title to the buyer, cannot be recovered under a count in assumpsit for goods bargained and sold, the only remedy of the seller being an action for damages-for breach of the contract, and the rule is the same whether the contract is one to sell merely or to manufacture and sell, in the absence in the latter case of the assent of the buyer to an appropriation on the contract of goods manufactured by the Seller, or unless they are of such peculiar character as not to be marketable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, §§ 958, 960.]</p> <p>2. Same — Construction of Contract.</p> <p>A written contract to sell a specified quantity of yarn of a stated quality, at a stated price, to be delivered in smaller quantities at intervals, is not one to manufacture and sell, but an executory contract to sell only, although the seller owned and operated a mill for making yarn, and it was contemplated by the parties that the yarn should be spun at such mill, since it was not bound to so make it.</p> <p>[Ed. Note. — Contracts for sale of things to be produced or manufactured, see note to Star Brewing Co. v. Horst, 58 C. C. A. 363.]</p> <p>3. Same — Measure of Damages for Breach.</p> <p>Where a purchaser refuses to take goods bought which the seller has not on band, but is to manufacture or purchase, the measure of his damages recoverable for breach of the contract is not the difference between the contract price and the market price of the goods at the time of the breach, but the actual profit he would have made on the sale.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1106.]</p> <p>4. Same.</p> <p>A company operating mills for making yarn which contracted to furnish to a buyer a quantity of yarn to be delivered as required in the future, after the completion of a contract then existing between the parties, on the refusal of the buyer to order or accept any further deliveries under the contract, held not entitled to recover as damages for its breach a loss resulting from a resale of wool which it bought some two years before it was required and reserved for use in filling the contract, although it was suitable for use on other contracts; such an element of damages apparently not being within the contemplation of the parties when the contract was made.</p>

<p>1. Salvage — Basis op Compensation — Quasi Derelict.</p> <p>Prima facie a vessel found at sea in a situation of peril, with no one-on board, is a derelict; but, where the master and crew have left temporarily for the purpose of obtaining assistance, and with intent to return and resume possession, she is not technically a derelict, although another vessel finding her in such condition and rescuing her is entitled to-salvage compensation as in case of a derelict.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, §§ 7, 8.]</p> <p>2. Same — Schooner Temporarily Abandoned at Sea — Salvage Award.</p> <p>The schooner Myrtle Tunnel, laden with cross-ties, was disabled by a hurricane off the Florida coast, and, a passing steamer being unable to-tow her, the master and crew took passage on such steamer to Charleston to procure assistance. The master proceeded to Savannah, where her owners resided, who hired two ocean-going tugs to go in search of the schooner. Three days later the steamer Shawmut, on a voyage from. Jacksonville to Philadelphia, finding the schooner abandoned and waterlogged, took her in tow and proceeded with her to Jacksonville, which was the nearest port, and some 60 to 75 miles distant. Owing to her being so deep in the water, she could not be taken over the St. John’s-Bar, and the master of the Shawmut, after a delay of a day and a half, by direction of his owners, took her to Charleston. One of the tugs sent out to search for her came up with the Shawmut and her tow before they reached the bar, and demanded that the schooner be surrendered to her, and also that she be taken to Charleston, advising the master of the Shawmut that she could not cross the St. John’s Bar. The other tug joined them at the bar, and both accompanied the Shawmut and tow to Charleston. The value of the schooner and cargo was $38,500. Held that, under the rule that a salvor is bound to the exercise of ordinary care-only, the Shawmut was not chargeable with fault which deprived her of the right to salvage or lessened the amount to which she was entitled, because she proceeded to the bar and stayed there until the master could, communicate with her owner’s agent at Jacksonville, or because of his refusal of the assistance of the tugs, or the use of an alleged defective hawser on the towage to Charleston, which proved sufficient, but that she would not be allowed for the hire of two tugs engaged to take the schooner into the harbor at Charleston, the two tugs under hire from the owners being present, and having tendered their services; that under the-circumstances, and in view of the efforts being made by the owners to regain the schooner, which would probably have been successful, the Shawmut was entitled to an award equal to one-third the value of the vessel and cargo.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 69. Awards in federal coürts, see note to The Lamington, 30 C. C. A. 280.1';:</p>

<p>1. Corporations — Director's—Contract with Company.</p> <p>That directors of a corporation are personally interested in a contract made with the company and are to a certain extent to profit by it does not necessarily condemn the transaction. It merely calls upon them to justify it. •</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 12, Corporations, §§ 1401-1415.] •</p> <p>2. Same — Stockholder’s Surr — Injunction Against Carrying Out Con- , • TRACT. . • ..." .</p> <p>Defendant railroad company entered into a contract with a syndicate, some members of which were its directors, and which had built a connecting line of road, by which defendant was to' become guarantor of bonds of a company organized to own such road to the amount of $1,-250,000, and was to receive 51 per cent, of the stock of. such company, the syndicate to receive the remainder and. the bonds in payment for the road. The control of such liné was of great advantage to defendant, and the agreement was approved and ratified by a large majority of the stockholders. There was no proof of any fraud or attempt on the part of the members o'f the syndicate who were also directors of defendant to use their official position to benefit themselves at the expense of defendant, and they did not in fact control the syndicate. Helé, that a single minority stockholder had no standing' in equity to enjoin the carrying out of such contract upon allegations' that it ought to be more favorable to defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, f 1438.]</p>

<p>Bankruptcy — Effect of Petition — Exclusiveness of Jurisdiction.</p> <p>A federal court was without jurisdiction to entertain a creditors’ suit against, a foreign corporation, and to appoint a receiver therein, where at the time such suit was commenced a petition in bankruptcy was pending against the defendant in the district of its domicile, which was afterward followed by an adjudication; and, on the facts being made known to the court, such suit will be dismissed.</p> <p>[Ed. Note. — Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey y. Mosher, 11 O. C. A. 313.]</p>

<p>Removal of Causes — Time fob Filing Petition — Pennsylvania Pbactioe.</p> <p>Under the removal statute as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508], which permits a petition for removal to be filed on or before the time when the defendant is required by the laws of thé state or rules of the state court to answer or plead to the declaration or complaint, a petition must be filed by the time an affidavit of defense is required by the Pennsylvania practice, which, under the rules of the court, is an answer to plaintiff’s claim and frames the issues to be tried.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Cans-es, § 141.]</p>

<p>1. Abatement and Revival — Pendency of Another Suit — Federal and State Courts.</p> <p>The pendency of another action between the same parties for the same cause in a state court is not a bar to an action in a federal court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, § 87.</p> <p>Pendency of action in state or federal court as ground for abatement of action in the other, see notes to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 205; Barnsdall v. Waltemeyer, 73 C. C. A. 521.]</p> <p>2. Courts — Jurisdiction of Federal Courts — Citizenship of Party.</p> <p>Plaintiff had for many years been a resident of a city in Pennsylvania. Some two years before the commencement of suit he became superintendent of a company engaged in drilling oil wells, which required his presence the greater part of the time at the place where the company was at work. A year later, the most of the welis on which it was then engaged being in the vicinity of a town across the river in Ohio, 16 miles from his residence, he established his headquarters there, hiring a room in a hotel, where he stayed through the week. His family, consisting of a wife and son, remained in Pennsylvania, where his wife built a residence, and he usually spent Sundays there. He was in the directory there as a resident, paid taxes there, and voted there when he last voted. Held that, notwithstanding his testimony that he was a resident of Ohio and although he may have intended to remove to the Ohio town, he was in fact still a resident and citizen of Pennsylvania, and could not maintain a suit in a federal court against another citizen of that state.</p>

<p>1. Sales — Breach of Contract by Purchaser — Measure of Damages.</p> <p>Tile, measure of the damages recoverable by a seller for the breach by the purchaser of a contract for the sale of a quantity of scrap steel, which on the failure of the purchaser to take it was sold by the seller at the market price, is the difference between such price and the contract price.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1098.]</p> <p>2. Damages — Pleading—Affidavit of Defense.</p> <p>An affidavit of defense, attempting to plead a claim for damages for breach of contract, must allege facts showing, not only the right to such damages, but from which the amount can be ascertained.</p>

<p>1. .Railroads — Contract Granting Right to Build Shipping Platform— ' Validity.</p> <p>A contract by a railroad company, granting tbe right to another to build a platform on its- right of way from which to load cotton for shipment, over its lines on condition that the builder shall indemnify it against any loss- or damage it may sustain by reason of such structure, is not contrary-to the publie policy-of the state Of Alabama.</p> <p>[Ed. Note. — For cases-in point, see Cent. Dig. vol. 41, Railroads, § 182.]</p> <p>2. Contracts — Presumption of Consideration — Alabama Statute.</p> <p>.Under Code Ala. 1896, § 1800, every written contract made the basis of a suit is presumed to have been made on a sufficient consideration, and :,-.the burden of impeaching such consideration rests upon the defendant.</p> <p>[Ed. Note. — For cases in point; see Cent. Dig. vol. 11, Contracts, § 404.]</p>

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

<p>Bankruptcy — Discharge—Concealment oe Books.</p> <p>A bankrupt held, on the evidence, not entitled to a discharge, on the ground that he caused his books of account to be removed from his safe and concealed, with intent to conceal his financial condition.</p>

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,277 (T. D. 27,059), affirming the assessment of duty by the collector of customs at the port of Burlington. The article in controversy consisted -of pulverized corundum, which the collector classified as ground emery under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 419, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674].

<p>Bankbuptct — Dischabge—Concealment oe Assets.</p> <p>A bankrupt cannot be refused a discharge on the ground of fraudulent concealment of assets because of his failure to state in his schedules, or to advise his trustee of the fact, that he had expended money in the improvement of property owned by his wife, where in a plenary suit by the trustee against the wife it was determined that the creditors had no lien upon or interest in the property because of such expenditure.</p>

<p>Shipping — Proceeding for Limitation of Liability — Exclusive Jurisdiction Over Claims.</p> <p>A court of admiralty in which proceedings are instituted by a vessel owner for limitation of liability has exclusive jurisdiction to settle in such proceedings all claims arising out of the matters on which they are based, and an order made therein restraining all persons having claims from prosecuting suits thereon elsewhere is a bar to a subsequent suit on a claim in another court, although brought by an administrator who had not at that time been appointed.</p> <p>[Ed. Note. — For cases in point, see Cent Dig vol. 44, Shipping, § 659.]</p>

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

<p>Homestead — Exemption—Judgments in Favor of United States.</p> <p>A homestead exemption given by the laws of a state may be asserted against a judgment in favor of the United States in a civil cause, and also, by virtue of Rev. St. § 1041 [U. S. Comp. St. 1901, p. 724], which provides that judgments for a fine or penalty may be enforced by execution “in like manner as judgments in civil cases are enforced,” against, a judgment imposing a fine, even though under the state decisions the exemption does not extend to executions on judgments for torts or for fines imposed under the criminal laws of the state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Homestead, § 162.]</p>

<p>Injunction — Preliminary Injunction — Suit Against Interstate Commerce Commission .*</p> <p>A preliminary injunction to restrain tiie enforcement of an order of tlié Interstate Commerce Commission pending a hearing on the merits refused.' ■ •</p>

<p>Appeal from the Circuit Court of the United States for the District of Kansas.</p> <p>This was a bill in equity to foreclose a mortgage given April 27, 1901, by Herbert H. Clark and his wife to Harvey S. Clark, his father, conveying an undivided one-half interest in certain real estate situated in Wilson county, Kan., to secure the payment of certain notes amounting to $35,000 described in the mortgage, upon which $19,500 remained unpaid when the suit was brought. This mortgage was duly recorded in the office of the register of deeds of Wilson county on April 29, 1901. The mortgagors and also one Frederick E. Lyster, who held the title to the mortgaged premises at the time the suit was brought, were originally made defendants. Subsequently the suit was dismissed as to the Clarks and prosecuted only against defendant Lyster. His answer admits the execution of the mortgage as charged, but avers that at the time it was given Clark, the mortgagor, had no mortgageable interest in the land conveyed, that the notes claimed to have been secured by the mortgage had all been paid and satisfied, and that the mortgagee by reason of certain facts was estopped in equity from enforcing his security. The main facts, as disclosed by the pleadings, proof, and proceedings below, are as follows: Defendant Lyster and Herbert Clark, the mortgagor, had prior to April 27, 1895, been copartners in the manufacture of linseed oil, and were then the owners in fee simple, as tenants in common, each of an undivided one-half interest in the real estate which had been used by them in connection with their manufacturing business, the one-half of which belonging to Clark constituted the land which he subsequently mortgaged to his father. Their partnership was on that day dissolved, and a new agreement entered into by which Clark was to retire from active participation in the business, but to retain as a silent partner for a term of five years thereafter his interest in it. He agreed to leave his portion of the partnership capital, except $5,000, in the business, to loan Lyster $25,000 for five years, to pay annually to Lyster $2,500 in lieu of rendering personal services in carrying on the business, and in order to afford Lyster a basis of credit and commercial standing he agreed to convey and did convey to Lyster by a quitclaim deed his one-half undivided interest in the mill property, taking from Lyster a bond for a deed to reconvey the same to him on September 1, 1900. They proceeded with the business under the new agreement until about the expiration of the term, when Clark brought his action against Lyster to wind up their partnership business and for an accounting of all moneys due to him from Lyster under the agreement of April 27, 1895. On March 1, 1902, while that action was pending, Clark and Lyster settled and compromised all their differences involved in the suit. Lyster paid Clark $40,000 in full of all his dues, whether for money loaned or profits made. Clark dismissed his suit, and agreed to and did convey by a quitclaim deed his one-half equitable interest in the mill property which he had on April 27, 1901, mortgaged to his father and for which he then held Lyster’s bond for a deed. At the time of that settlement Lyster had no actual as distinguished from constructive knowledge of the existence of the mortgage sued on, or of the fact that Clark’s father had any right or interest in the property, and believed he was acquiring from Clark an unincumbered title to the same. After Clark received the $40,000 from Lyster pursuant to the terms of the settlement, he paid more than $16,000 of it over to his father in partial satisfaction of the mortgage debt, and the latter, being then 79 years old, made a present to his son of $10,000 to be invested for the support of his family. Lyster, after making his settlement with Clark on March 2, 1902, under the belief that he was the owner of an unincumbered title to the land in question, erected thereon permanent improvements of the value of $20,000, and was not actually informed of complainant’s claim until this suit was begun, July 10, 1902. The court below by consent of parties appointed a special master to take testimony and return the same, with his findings of fact based thereon, to the court. The master heard the proof, made a finding of the foregoing main facts, and also found (using his language) that: “Close confidential relations existed at all times between Harvey S. Clark and Herbert H. Clark; the father was generous to the son, and to a considerable extent was dominated by the son. The settlement was brought to a close after Harvey S. Clark had come to Kansas City in order to be present when the settlement was made, and at a time when Harvey S. Clark was dwelling with his son Herbert H. Clark. Of the proceeds of said settlement Harvey S. Clark presented Herbert H. Clark with about $10,000 to invest for the latter’s family, although Herbert H. Clark was then still indebted to Harvey S. Clark in the sum of nearly $20,000. From these facts, as well as from the contradictory evidence which Harvey S. Clark gave and the lack of interest which he manifested while testifying, I find that Harvey S. Clark authorized the settlement which was made by Herbert H. Clark with Lyster, and that the attempt to foreclose the written instrument described in the bill of complaint is an afterthought conceived by Herbert H. Clark, who overpersuaded his father to undertake it.” He also specially found that “neither during the negotiations for settlement nor at the time of the settlement and payment of the $40,000 was anything said one way or the other by any of the parties engaged therein concerning the said mortgage,” and that Clark, in consideration of the receipt of $40,000 from Lyster, agreed to and did accept the same in full settlement and satisfaction of the indebtedness duo him from Lyster, which he found to be $38,279.45, and agreed “to make, execute and deliver to said Lyster at the time said $40,000 is paid a good and sufficient quitclaim deed of conveyance of all of his right, title and interest in and to” the property which was mortgaged. He also specially found that the issue involved in the accounting suit between Clark and Lyster “did not embrace or involve or include any questions pertaining to the real estate or the reconveyance thereof or other matters provided for in the bond of date April 27, 1895, but only as to the moneys loaned and left in the business by the said Herbert H. Clark and the earnings of the business.” The master reported in favor of a dismissal of the bill on the ground that it would be unjust and inequitable to defendant Lyster to have the mortgage enforced. The Circuit Court overruled exceptions duly filed to the master’s report, confirmed the same, and entered a decree dismissing the bill. From that decree an appeal is prosecuted to this court.</p>

<p>1. Courts — Circuit Court of Appeals — Jurisdiction in Mandamus.</p> <p>A Circuit Court of Appeals of the United States has no power to interfere by mandamus with the action of a Circuit Court, where the question involved relates to its jurisdiction as a Circuit Court of the United States, but the application in such case must be made to the Supreme Court; but such want of power in the Circuit Court of Appeals does not exist where the question involved relates to the jurisdiction of a Circuit Court as a judicial tribunal of original jurisdiction, having no relation to its limitation as a national court.</p> <p>[Ed. Note. — Jurisdiction of Circuit Court of Appeals in general, see notes to Lau Ow Bew v. United States, 1C. O. A. 6; United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>2. Mandamus — Subjects and Purposes of Relief — Controlling Judicial Action.</p> <p>Mandamus will lie to control the action of an inferior court when it assumes to act beyond its jurisdiction, or where it refuses to take jurisdiction of a case and proceed to judgment therein when it is its duty to do so, and there is no other adequate remedy, but not to control its action in a matter which is within its jurisdiction to hear and determine.</p> <p>[Ed. Noté. — For cases in point, see Cent. Dig. vol. 33, Mandamus, § 62.]</p> <p>3. Equity — Decree—Bill of Review — Grounds—Fraud.</p> <p>Fraud in obtaining a decree cannot be made the basis of a bill of review, but only of an original bill to impeach the decree for fraud; the radical difference between the two kinds of bills being that a bill of review is a continuation of the original litigation, whereas a bill to impeach a.decree for fraud is new and independent litigation.</p> <p>[Ed. Note. — For cases in point, see C.ent. Dig. vol. 19, Equity, § 1090.]</p> <p>4. Judgment — Equitable Relief — Pendency of Appeal — Effect.</p> <p>A bill to impeach a decree for fraud, the relief sought being an injunction to restrain its enforcement, is not the same in purpose as an appeal, and the court which rendered the decree has jurisdiction to entertain such a bill, although an appeal from the decree is pending.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 771.]</p>

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

In Equity. Suit for infringement of letters patent No. 587,308 for a net leader granted to Epraham Haataja August 3, 1897. On final hearing. On March 18, 1884, Erik Maunula, the plaintiff, was granted letters patent upon a machine for casting leads upon fish-net lines. In its construction it consisted of an extended arm attached by one end to a table.

<p>1. Patents — Suits for Infringement — Equity Jurisdiction.</p> <p>Where a number of suits for infringement between the same parties, each based on a different patent, are related, the patents having to do with similar subject-matter, so that, if joined, all could be tried upon the same record, the court may properly retain jurisdiction in equity, even though in some of them an adequate remedy may exist at law, because of the near expiration of the patent.</p> <p>2. Same.</p> <p>The fact that profits are recoverable in a suit in equity for infringement of a patent under Rev. St. § 4921 [U. S. Comp. St. 1901, p. 3395], and not in an action at law, while not in itself any basis for equitable jurisdiction, is a reason why that jurisdiction should not be relinquished when it may be upheld on other grounds.</p> <p>3. Appearance — District of Suit — Waiver of Objection.</p> <p>The objection that a court is without jurisdiction of a suit for infringement of a patent because not brought in the district of which defendant is an inhabitant or a district in which infringement was committed, and defendant has a regular and established place of business, if apparent on the face of the pleadings, is waived by the filing of a general demurrer or any other act which constitutes a general appearance.</p> <p>4. Patents — Defense of Laches.</p> <p>A bill for infringement of a patent which alleges acts of infringement within six years need not specifically allege that complainant has been diligent.</p> <p>5. Same — Sufficiency of Bill — Multifariousness.</p> <p>A bill for infringement against a corporation and an individual described as its president and general manager, which charges that defendants have and each of them has committed certain acts of infringement, sufficiently alleges a joint infringement, and is not demurrable for multifariousness.</p> <p>6. Courts — Jurisdiction—Diversity of Citizenship.</p> <p>Circuit Courts of the United States being given exclusive jurisdiction of suits relating to patents by Rev. St. § 711 TU. S. Comp. St. 1901, p. 577], diversity of citizenship between the parties is not essential to such jurisdiction.</p> <p>7. Patents — Infringement—Pleading—Jurisdictional Allegations.</p> <p>Under Act March 3, 1897, c. 395, 29 Stat. 695 [U. S. Comp. St. 1901, p. 589], which authorizes a suit for infringement of a patent in any district “in which the defendant * * * shall have committed acts of infringement and have a regular and established place of business,” it is not essential that the bill should use the words, “regular and established,” In characterizing defendant's place of business, if it appears that it is such from the facts alleged.</p> <p>8. Same.</p> <p>In a bill for infringement of a patent against a corporation and an individual, which charges that the corporation has a regular and established place of business within the district where its business is conducted by its codefendant as its president and general manager, and where they have committed joint acts of infringement, it is not necessary to allege affirmatively that the individual defendant is either an inhabitant of the district, or has a regular and established place of business therein.</p> <p>®. Same — Sufficiency of Bill — Allegations on Information and Belief.</p> <p>A bill for infringement of a patent is not demurrable because material facts are alleged on information and belief.</p> <p>10. Same.</p> <p>A bill for infringement of a patent against two defendants held not demurrable as being too vague and uncertain in its allegations.</p>

<p>Specific Performance — Sufficiency of Bill.</p> <p>A bill for specific performance of a contract by one of the defendants to assign to complainant a patent for an invention alleged to have been made by such defendant while in complainant’s employment, the applicatlon for which patent he had assigned to his codefendant, held, on. demurrer, to state a cause of action.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 356-372.]</p>

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

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

<p>In Bankruptcy. Discharge. On exception to objections.</p>

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

In Equity. Demurrer to the bill. This suit was brought to restrain the enforcement of two ordinances attached to the bill, respectively, as Exhibits C and D, and hereinafter more fully set forth. The allegations of the bill are substantially as follows: The city of Los Angeles exists, and since 1888 has existed, under a freeholders’ charter.

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

<p>In Equity. On demurrer to cross-bill and motion to strike out cross-bill.</p>

<p>1. Taxation — Public Lands Selected in Lieu of Forest Reserve Lands— Passing of Equitable Title.</p> <p>Under the several acts relating to forest reservations which permit private owners of lands therein to transfer or relinquish the same to the government and to select other public lands in lieu thereof, no exchange is effected until approved by the Land Department. The act of March 2, 1S99 (30 Stat. 993, c. 377), establishing the Mt. Rainier National Park, expressly provides for the approval of the Secretary of the Interior, but the general act of June 4, 1897 (30 Stat. 34, c. 2 [U. S. Comp. St. 1901, p. 1538]), contains no such express provision, and the approval may be made by the Commissioner of the General Land Office under paragraph 18 of the rules adopted by the department thereunder. In either case, it is contemplated that the department shall, through proper officers, consider all questions of law and fact affecting the title and validity of the conveyance of the base lands, and the character and condition of the lieu lands selected, and, until that has been done and a formal approval given, the equitable title to the lands selected does not pass from the government, nor does the applicant acquire any right of possession thereto, and they are not subject to taxation, especially in view of the fact that the department requires the applicant to pay all taxes levied on the base lands up to the time the exchange is approved.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 31, 35, 38-44.</p> <p>Of equitable title to public lands, see note to Northern Pac. R. Co. v. Wright, 4 C. C. A. 196.]</p> <p>2. Same — Effect of Deed to Public Lands.</p> <p>A railroad company which owned patented lands within national forest reserves conveyed the same to the United States, and selected other public lands in lieu thereof, as permitted by statute. Thereafter it executed a deed to the lands so selected to complainant, but several years elapsed before such selections were approved by the Land Department and before the lands were even surveyed. Held, that the fact of its conveyance gave the county no right to tax such lands in the meantime while they remained unsurveyed public lands of the United States.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, §§ 40, 41.]</p> <p>3. Same — Suit to Enjoin Collection of Taxes.</p> <p>That a complainant was not the owner of lands at the time of an illegal levy of taxes thereon does not deprive it of the right to maintain a suit in equity to enjoin the enforcement of such taxes by a sale of the lands after it has become the owner.</p> <p>4. Same — Pleading—Waiver of Defect in Allegations.</p> <p>A complainant is not debarred from maintaining a suit to enjoin the enforcement of taxes illegally levied upon lands because its bill did not allege it to be the owner of such lands where no objection was taken to the pleading,, and the proofs, taken by stipulation, establish its ownership.</p> <p>5. Same — Property Subject to Taxation — Unsukveyed Lands.</p> <p>Lands which have not been officially surveyed by the United States are not as a rule taxable, nor are they under the statutes of Idaho, and such a survey is not completed until it has been accepted by the Land Department.</p>

<p>L Taxation — Suit to Enjoin Collection of Taxes — Estoppel.</p> <p>The mere fact that a complainant accepted and recorded a deed purporting to convey to it lands, the legal and equitable title to wbicb were both in fact in the United States, does not estop it to maintain a suit in equity to enjoin the collection of taxes levied on said lands by the taxing officers of the county who had actual knowledge of the condition of the title and of the claim of complainant that the land was not taxable and were not misled by such deed or record.</p> <p>[Ed. Note. — Persons entitled to injunction restraining or damages for wrongful enforcement of tax, see note to Bayles v. Dunn, 54 C. C. A. 550.]</p> <p>2. Same — Peopebty Subject to Taxation — Idaho Statute.</p> <p>The Revenue Law of Idaho (Sess. Laws 1901, p. 238, § 11), provides that “all taxable property shall be assessed in the county, city, or district in which it is situated on the second Monday in January, or if not within the state on that day on the day of assessment. The assessor * * * must assess such property to the persons by whom it was owned or claimed * * * at 12 o’clock m. of the second Monday in January next preceding, or on the day of assessment as aforesaid.” Section 31, page 247, requires the taxpayer to state under oath that the lists returned by him contain all of the property owned by him on the second Monday in January, if it was then within the state, and Ann. Code 1901, § 1318, provides that every tax upon real estate shall attach as a lien as of the second Monday of January of each year. Held, that under such statutes the status of property within the state for purposes of taxation is fixed on the second Monday in January, and that real estate exempt from taxation on the second Monday of January of any given year does not become subject to taxation during that year, even though transferred to a person in whose hands it is no longer exempt under the law.</p>

<p>In Equity. Suit for infringement of trade-mark.</p>

<p>On motion to confirm the report of a special commissioner overruling amended specifications to a bankrupt’s discharge. Denied.</p>

<p>Courts — Federal Courts — Adoption of State Practice — Judgments—'Vacation of Default Judgment after Term.-</p> <p>An action by the United States for the forfeiture of smuggled goods is a statutory proceeding assimilated to an action in rem in admiralty, and Rev. St. § 914 [U. S. Comp. St. 1901, p. 683], providing for conformity to the state practice in civil causes other than equity or admiralty causes, does not apply to such a proceeding so as to abrogate the settled rule of the federal courts that a court has no power to set aside a default judgment after the term at which it was entered to permit a defense to be interposed, because such practice is authorized in the courts of the state.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 13, Courts, § 934.</p> <p>Conformity of practice in common-law actions to that of state, see notes 'to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 O. C. A. 392.]</p>

<p>L Statutes — Construction—Statutes Adopted prom Other State.</p> <p>Laws Kan. 1874, p. 143, c. 93, providing that a railroad company shall be liable for all damages done to any employé of it from any negligence of its agents or by any mismanagement of any employes “to any person sustaining such damage,” adopted from the state of Iowa after the Supreme Court of the state had construed it as covering the case of death of an employé and creating a cause of action in favor of the administrator of deceased, was adopted with such construction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 307.</p> <p>Construction of statutes, state laws as rules of decision in federal court, see note to Wilson v. Perrin, 11 C. C. A. 72.]</p> <p>2. Master and Servant — Injury to Servant — Fellow Servant — Statutes</p> <p>Modipyino Common-Daw Liability.</p> <p>Laws Kan. 1874, p. 143, c. 93, providing that a railroad company shall be liable for all damages done to an employé of it from any negligence of its agents or by any mismanagement of any employés, while restricted to hazards peculiar to railroading, applies to the case of a track repairer injured while being taken from his work in a caboose, and while still in the company’s employé, by collision of that and another train of the company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 501.]</p> <p>3. Same — Res Ipsa Loquitur.</p> <p>A railroad company being liable under Laws Kan. 1874, p. 143, c. 93, for injury to an employé from negligence of a fellow servant, and under the common law for negligence of a vice principal, the rule of res ipsa loquitur applies to the case of injury to an employe from collision of two trains of the company, and raises a presumption of negligence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 880.]</p> <p>4. Master and Servant — Injuries to Servant — Notice oe Claim — Necessity.</p> <p>Laws Kan. 1903, p. 599, c. 393, amending Laws 1874, p. 143, c. 93, to provide that a railroad company shall be liable for damages done to any employs of it from any negligence of its agents or by any mismanagement of any employes to any person sustaining such damage, provided that notice of the injury be given “by or on behalf of such person injured” to the company, within 90 days from the accident, does not apply to a case of death, where the action is by the administrator.</p> <p>5. Same.</p> <p>Even if the provision of the statute as to notice were otherwise applicable to the case of death of an employs, it will not be so held in the case of an employs killed 53 days after the act was passed, but 65 days before it went into effect.</p>

In Bankruptcy. On review of decision of referee. This case has been certified by the referee for decision as to the extent of the wife’s right to an allowance in lieu of a homestead out of the proceeds arising from the sale of personal property. Edward Luby, his place of residence being unknown and incapable of ascertainment, was served by publication and duly adjudged an involuntary bankrupt.

<p>1. Indictment — Rules of Construction — Descriftion of Offense.</p> <p>In the construction of indictments refinement and technicality must yield to substantial things, and the criterion for judging the sufficiency of an indictment is whether the words employed make the charge clear to the “common understanding.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 266, 310.]</p> <p>2. Same.</p> <p>Reasonable implications from facts clearly charged may be indulged in ascertaining the true meaning of an indictment.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 27, Indictment and Information, § 310.]</p> <p>3. Extradition — Interstate—Indictment Charging Offense.</p> <p>An indictment which avers that defendant, as president of a corporation, in an affidavit made pursuant to the requirement of a state statute, swore that his company was not at the time a party to any agreement with any other company to fix the price or limit the production of any article of manufacture, and that such affidavit was false, in that the company was at the time a party to such a contract with another corporation named relating to a certain article of manufacture, is sufficient to charge the substance of the offense of false swearing under the Texas statute, and to advise the defendant of the offense charged, and constitutes a sufficient foundation for extradition proceedings for the return of defendant from another state.</p> <p>4. Same.</p> <p>If an indictment states the substance of an offense, however inartificially, or however involved with immaterial or incompetent matters, it is sufficient to sustain extradition proceedings to secure the return of the accused from another state; all other defects or deficiencies in the indictment being matters to be adjudicated by the trial court.</p>

<p>1. Courts — Injunction—Bill—Verification—Officers.</p> <p>Rev. St. § 1778 [U. S. Comp. St. 1901, p. 1211], provides that in all cases in which under the laws of the United States oaths or acknowledgments may be taken before any justice of the peace, they may be also taken by or before any notary public or any of the commissioners of the Circuit Courts, and when certified under the hand and official seal of such notary or commissioners will have the same force as if taken before a justice of the peace. Held, that a bill for an injunction in a federal court, verified before a commissioner of deeds of the city of Now York, was improperly verified.</p> <p>2. Same — Preliminary Injunction — Violation of Contract.</p> <p>Where a contract between plaintiff and a trade union for the publication of a trade paper for five years provided that a new contract might be made at the expiration of the original on like terms, and that complainant should have the first right to obtain such contract, provided complainant should have carried out the terms of the agreement to the satisfaction of the association, which thereafter refused to renew the contract, claiming dissatisfaction, complainant was not entitled to a preliminary injunction restraining the association from contracting with another and from refusing to renew the contract because it had satisfactorily performed the old contract, and that the union’s refusal to renew was not in good faith, but a mere subterfuge on the part of certain officers in control having a personal animosity against complainant</p>

<p>1. Chattel Mortgages — Rights of Creditors — Disposition of Pbooeeds of Property.</p> <p>A chattel mortgage on a stock of goods, though valid when made, there being no evidence that the mortgagor was then insolvent, or that it was given to hinder, delay, or defraud creditors, or to create a preference, is invalid as to subsequent creditors; it appearing the mortgagor was allowed to sell from the stock, without accounting for the proceeds, and it not appearing that the part so sold did not equal the mortgage debt</p> <p>[Ed. Note. — For eases in point, see Cent Dig. vol. 9, Chattel Mortgages, % 412.]</p> <p>2. Same.</p> <p>Though the lien of a chattel mortgage is lost as to a stock of goods, as against subsequent creditors of the mortgagor, because the mortgagee allowed the mortgagor to sell therefrom, without accounting for the proceeds, it is not on this account lost as to teams also covered by the mortgage and which the mortgagor retained.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, § 376.]</p> <p>3. Bankruptcy — Expenses of Receiver — Keeping Mortgaged Property.</p> <p>Where the mortgagee having a valid lien attempted to foreclose his chattel mortgage on horses of a bankrupt, but was prevented from doing so by the possession of the receiver, only such part of the expenses of keeping the horses as would necessarily have been incurred by him during foreclosure will be chargeable to the mortgagee, and the balance will be paid out of the bankrupt estate.</p>

<p>1. Bankruptcy — Grounds foe Refusing Discharge — Transfer of Property with Intent to Defraud Creditors.</p> <p>A conveyance by a bankrupt of real estate in New York, which is required to be recorded by Rev. St. N. Y. pt. 2, c. 3, tit. 5, § 1, as amended by Laws 1896, c. 572, p. 652, may be made the basis of an objection to the bankrupt’s discharge, under Bankr. Act July 1, 1898, c. 541, 30 Stat. 550, § 14b (4) [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1905, p. 684], if made with intent to hinder, delay, or defraud his creditors, although made more than four months prior to his bankruptcy, if it was recorded within that time.</p> <p>2. Same — Findings of Fact by Special Commissioner.</p> <p>A finding by a special commissioner, to whom was referred a bankrupt’s application for discharge and objections thereto, that a transfer of property by the bankrupt was not in fact made with intent to hinder, delay, or defraud creditors, should be followed, unless there is no evidence to support it.</p>

<p>On Motion to Set Aside Service of Summons and Complaint.</p>

<p>1. Bail — Recognizance—Oral Modification.</p> <p>A recognizance conclitionecl absolutely that the defendant appear cannot be modified by an oral agreement of the government’s representative with the surety that the defendant need not appear unless he be indicted for a certain offense.</p> <p>2. Same — Conditions and Liability.</p> <p>Under a recognizance conditioned that defendant, held on a charge of having deserted the mails, appear at a certain time and answer all such matters as shall be objected against him, the surety is liable for the nonappearance of defendant, though he be not indicted for deserting the mail, but for stealing the mail, and the government could therefore have arrested him at any time, instead of relying on the bond.</p>

<p>1. Limitation of Actions — Pleading—Statute.</p> <p>The defense of the statute of limitations cannot be made by demurrer.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 670, 671.]</p> <p>2. Libel — Publication Libelous Per Se — Charging Want of Integrity. •</p> <p>An article published by defendant, which as set out in plaintiff’s statement directly charged plaintiff with having betrayed his trust as a delegate of a branch of a fraternal order in favor of a rival branch, from which he accepted money to that end, was libelous per se, and an averment of special damages was not necessary.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 32, Libel and Slander., 8 95.]</p>

<p>1. Action — Statutory Rights of Action — Conditions Imposed by Statute Creating Right.</p> <p>When it is sought to enforce a statutory right iu another jurisdiction, any restriction or limitation upon such right imposed by the statute which created it must also be given effect.</p> <p>2. Courts — Action under Foreign Statute — Personal Injury — Nevada Statute.</p> <p>Act Nev. March 23, 1905 (Laws 1905, p, 249, c. 142), which gives a right of action for a personal injury caused by the wrongful act or negligence of another, but which provides that such liability “shall exist only in so far as the same shall be ascertained and adjudged by a state or federal court of competent jurisdiction in this state in an action brought for that purpose by the person injured,” supersedes the common law applicable to the subject in the state, and an action to recover for a personal injury received in Nevada, through the alleged negligence of the defendant, cannot be maintained except in a state or federal court in that state.</p> <p>[Ed. Note. — Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 O. O. A. 513.]</p>

<p>.-Bankrottcy — Claims—Preferences—Wages—Statutes—Amendment.</p> <p>Bankr. Act July 1, 1898, c. 541, § 64b, par. 4, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447]/ giving priority of payment to “wages due to workmen, clerks, or servants” earned within three months before the commencement of,, the proceedings, -was- amended by Act Cong. June 15; >1906, which took effect on its passage, so as to include traveling or city 'salesmen. EelA that, where a salesman was not entitled to a preference for wages under the original act at the time when the bankruptcy petition was filed or the adjudication entered, he could not obtain it by virtue of the subsequent amendment.</p>

<p>Bankeuptct — Final Dividend — Final Report — Time.</p> <p>Bankr. Act 1898, § 57, subd. “n,” c. 541, 30 Stat. 561 [ü. S. Comp. St. 1901, p. 3444]; declares that claims shall not be proved against a bankrupt after a year from the adjudication, except In the case of litigation, when 90 days additional may be added, and, in the case of infancy or insanity, such persons being entitled to six months additional within which to file claims. Section 65b provides that the first dividend shall be declared within 30 days after adjudication if there are funds sufficient to do so, and that the final dividend shall not be declared within 3 months after the first dividend shall be declared; and subdivision “e” provides that creditors who have received dividends, or in whose favor final dividends have been declared, shall not be affected by proof or allowance of claims subsequent to the date such' dividends are declared and paid. H'eld that, where a bankrupt’s estate is ready for final dividend, it may be closed at any time after four months- irom the adjudication, on notice to all persons scheduled or appearing in any way in the proceedings as creditors.</p>

<p>•Peter Schmuck, for bankrupt.</p> <p>Adolph M. Schwarz, Strasbourger, Weil, Eschwege & Schallek, and Arthur Garfield Hays, for creditors.</p>

<p>Bankruptcy — Claims — Validity — Proceedings in State Court — Appeal-Stay.</p> <p>Code N. Y. Civ. Proc. § 1351, provides for an appeal within 30 days without security, but declares that the appeal does not stay the execution of the judgment or order appealed- from, in the absence of a stay directed by the judge. Held, that where, in a suit in the state court against a bankrupt’s trustee to enforce the lien of a chattel mortgage on the proceeds of certain of the bankrupt’s property, it was determined that the mortgage was void, from which judgment the creditor appealed, but failed to procure a stay, and an execution against him for costs was returned unsatisfied, the appeal was ineffective to prevent the trustee from assuming possession of the fund and disbursing the same free from the lien of the mortgage.</p>

<p>Bankruptcy — Referees—Qualifications—Interest.</p> <p>Bankr. Act July 1, 1898, c. 541, § 39b, 30 Stat. 556 [U. S. Comp. St. 1901, p. 3436], providing that referees in bankruptcy shall not act in cases in which they are directly or indirectly interested, does not disqualify a referee, where the only interest he has in the matter submitted to him is the compensation he may receive by way of fees.</p>

<p>1. Bankruptcy — Examination of ' Bankrupt — Referees—Jurisdiction—Employment op Stenographer — Statutes—Application.</p> <p>Bankr. Act July 1, 1898, § 38, subd. 5, c. 541, 30 Stat. 555 [U. S. Comp. St. 1901, p. 3435], authorizing referees in bankruptcy, on the application of the trustee during the examination of the bankrupt or other proceedings, to employ stenographers at the expense of the estate at a compensation not to exceed 10 cents per folio for reporting and transcribing the proceedings, does not apply to hearings on the examination of the bankrupt before a special commissioner.</p> <p>2. Same — Defense—Examination—Approval of Bill.</p> <p>Where the testimony of an alleged bankrupt was taken before a special commissioner, at the request of a receiver, by a public law stenographer, who charged 20 cents a folio for the testimony, the bill could only be allowed and paid out of the bankrupt’s estate after its approval by the receiver and proof that all the examination was necessary and resulted in benefit to the estate.</p>

<p>Bankruptcy — Examination of Bankrupt — Preservation of Testimony — Defense.</p> <p>Where a trustee in bankruptcy had no funds in his hands, and the bankrupt claimed to be without means, the bankrupt could not compel the trustee to pay for a stenographer’s minutes, referee’s fees, and disbursements in taking the testimony, which the bankrupt desired to introduce in opposition to that offered by the trustee, in a proceeding to compel the bankrupt to turn over property; it being within the discretion of the referee to determine how the bankrupt’s testimony should be taken and preserved in order that he might not be in contempt, solely because of his inability through poverty to perpetuate the testimony.'</p>

<p>Customs and Usages — Shipping—Demurrage—Charter Party.</p> <p>Where a charter party provides for lay days for loading In specific terms, the contract cannot be affected by any custom of the port.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 15, Customs and Usages, § 34.]</p>

<p>1. Maritime Liens — Evidence to Establish.</p> <p>Evidence of an account stated between a claimant and the owner of a vessel for supplies furnished has no tendency to establish a maritime lien on the vessel.</p> <p>2. Same — Supplies—New Jersey Statute.</p> <p>A claim for a lien for supplies furnished a vessel in her home port in New Jersey, under 2 Gen. St. N. J. p. 1966, § 46, sustained on evidence that they were furnished and charged to the vessel.</p> <p>[Ed. Note. — Created by state laws, see note to The Electron, 21 C. G A. 21.]</p>

<p>Bankruptcy — Claims Against Trustee — Rent.</p> <p>Where the receiver and trustee continue to occupy premises leased by the bankrupt without agreement as to rent, the landlord is entitled to rent on a quantum meruit, but cannot recover for power which was not used.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 352.]</p>

<p>1. Reference — Repost—Review on Motion in Trial Court.</p> <p>The practice of moving for new trials in causes in federal court» heard by referee has practically fallen into disuse since the creation of the Circuit Courts of Appeals, and, while the right to make such motions remains, the court, in considering the same, will not retry the case, nor consider any question which may be brought before the Circuit Court of Appeals by writ of error, nor will it substitute its conclusions on conflicting proofs for those of the referee.</p> <p>2. Same — Admission of Improper Evidence.</p> <p>The admission of improper evidence on a trial before the court without a jury, or before a referee, is of no moment, and not ground for a new trial, unless such evidence was necessary to support the finding of facts.</p>

<p>Bankbtjptcy — Dischaege—Denial—Gbounds.</p> <p>Where a bankrupt did not willfully conceal testimony preventing his creditors from obtaining property, the fact that he apparently gave evasive and disrespectful answers to questions concerning the same was not ground for denying his discharge.</p>

<p>Bankruptcy — Receivership—Expenses.</p> <p>Where the proceedings of a receiver in bankruptcy were beneficial to the estate, and the items of- expense seemed reasonable and necessary at the time they were incurred, the receiver and his attorneys having acted according to their best judgment and on sufficient cause at the time, such expenses would be allowed, though it thereafter appeared that the receivership had cost more than the necessities justified.</p>

<p>Bankruptcy — Supplementary Proceedings — Stay.</p> <p>Where bankruptcy proceedings Intervened pending supplementary proceedings against the bankrupt, which were thereupon stayed, and the claim of the creditor conducting the proceedings was one provable in bankruptcy proceedings, and from which the bankrupt might obtain a discharge, he was entitled to have any further examination either of himself or third persons conducted in the bankruptcy proceedings, and hence the creditor could not obtain a vacation of the stay on the ground that the supplementary proceedings could be carried to a termination in the state court with less expense.</p>

<p>Bankruptcy — Claims—Pabtial Allowance — Laches.</p> <p>Where, after a partial allowance by a referee of a creditor’s claim to recover money deposited with the bankrupt prior to the filing of the petition, no substantial injury to the estate ensued by the creditor’s delay in taking up the referee’s report and acting thereon, which was ultimately filed by the attorney for the trustee, the claimant did not lose his right to the amount allowed, because of his laches, at least to the extent of the fund in the hands of the trustee in excess of the cost of administration.</p>

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

<p>1. Waste — Nature of Remedy — Equity.</p> <p>Equity has jurisdiction of a suit to restrain waste by the cutting and removal of valuable timber, and incidentally for an accounting for waste already committed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Waste, § 16.]</p> <p>2. Adverse Possession — Possession by Tenant — Extent.</p> <p>When a tenant is placed in possession of a definite part of a larger tract of land, the possession will not avail the landlord beyond the part so claimed and held; but, if one claiming under an assurance of title defining boundaries place a tenant in possession without limiting him to any definite part, the tenant’s possession will extend to the landlord’s boundaries, although the land actually occupied is but a small part of the whole.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Adverse Possession, § 585.]</p> <p>3. Same — Tennessee Statute.</p> <p>Under Shannon’s Code Tenn. § 4456, possession of land under assurance of title, if continued for seven years, operates not only to bar an action on a superior title, but to devest that title and vest it in the adverse holder ; but, on the other hand, possession without color of title continued for seven years gives a mere right to defend against the title so long as the possession is actual and continuous, under section 4458, which provides that no person shall have any action for any lands, but within seven years after the right of action has accrued, and such right is lost the moment the possession is abandoned. Hence, under such statute as construed by the Supreme Court of the state, where one in possession of land without color of title attorned to another who had made entry from the state of a definite tract, including his own, and agreed to hold possession of the whole for his landlord, the effect was an abandonment of his own possession, and from that time his possession was that of his landlord and referable to the entry, and extended to the whole tract, although there was no extension of his actual inclosure.</p> <p>[Ed. Note. — 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>On Rehearing.</p> <p>4. Public Lands — Entry of State Lands — Tennessee Statute.</p> <p>The provision of Acts Tenn. 1824, c. 22, § 6, making unlawful an entry of state land on which another resided or which was; occupied by him, unless lie was given 30 days’ notice, was intended solely for tlie protection of the occupier, by enabling him to exercise his prior right to enter the land; and an entry made without giving such notice to an occupier of part of the land is void only as to such part. The notice might, moreover, be waived by an occupier, and was so waived in a case where for a valuable consideration he agreed to attorn to the entryman and hold possession for him until the grant was secured.</p>

<p>1. Contracts — Consideration—Mutuality.</p> <p>There is want of mutuality, necessary for a valid contract, where plaintiff, the manufacturer of a certain cigar, offered to sell in the future to defendant, a cigar dealer, as many of such brand as he might desire for his wants, and to continue to do so during the life of the brand, as long as defendant cared to sell them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 344.</p> <p>Mutuality in, seo note to American Cotton Oil Co. v. Kirk, 15 C. C. A. 543.]</p> <p>2. Appeal — Record—Questions Raised.</p> <p>The question of want of mutuality in the contract on which a counterclaim is predicated is properly raised by the record; plaintiff having at the close of the evidence moved for an instructed verdict on the ground that defendant showed a failure of consideration on the part of plaintiff for the contract, and the overruling of the motion having been assigned as error, and such assignment insisted on in the brief.</p> <p>3. Same — Review—Rules oe Court.</p> <p>The provision of Circuit Court of Appeals rule No. 11, that the court, at its option, may notice plain errors not assigned, reserves to the court, in the interest of justice, the right, resting in public duty, to take cognizance of palpable errors on the face of the record and proceedings, especially such as clearly demonstrate that the suitor has no cause of action.</p> <p>[Ed. Note.' — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2968-2982.]</p>

<p>1. Courts — Jurisdiction of Federal Courts — Federal Question.</p> <p>When the jurisdiction of a federal court depends upon the case being one arising under the Constitution or laws of the United States, the facts necessary to make such a case must be plainly shown upon the record, and it is not enough that such question may arise.</p> <p>fEd. 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. Constitutional Law — Impairment of Contracts — Unauthorized Action by Municipality.</p> <p>A federal court is without jurisdiction of a suit to enjoin the enforcement of a municipal ordinance, on the ground (.hat it impairs the obligation of a contract or deprives complainant of property without due process of law, in violation of the Constitution of the United States, when the bill alleges that no power had been granted to the municipality by the Constitution or Legislature of the state to pass such ordinance; the prohibition of the federal constitution being against state action only.</p>

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

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

<p>1. Patents — Infringement—Armatures.</p> <p>The Morrow patent, No. 504,401, for an armature for dynamo electric machines, claim 2, which covers an armature core comprising layers of segmental laminse dovetailed to an internal supporting shell, the function of the dovetail connection being to lock the laminse to the spider for driving purposes, and also to do so in such manner that they cannot be driven from the spider by centrifugal force, was not anticipated as to the latter feature, and discloses patentable novelty; also held infringed.</p> <p>2. Same — Anticipation.</p> <p>The Reist patent, No. 559,910, for an armature for a dynamo electric machine, is void for anticipation as to all three of its claims. Claim 2, if possibly novel, held not infringed.</p>

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

<p>1. Patents — Meastjke of Damages fob Infbingement — License Fee.</p> <p>An agreement between tbe owner of a patent and 12 licensees, fixing a uniform license fee to be paid by each for the use of the patented machine, together with the exaction of the same fee from subsequent licensees, is sufficient to establish a general acquiescence in the reasonableness of such fee and to make it a proper measure of the damages recoverable for a subsequent infringement by a stranger to such licenses; but it can be accepted only as fixing the market value of the use of the machine from and after the time when the first agreement was made, and any recovery for infringement prior to that time must be based on other evidence.</p> <p>2. Same — Interest.</p> <p>Damages • for infringement of a patent can be considered as liquidated, where an established license fee renders such damages easily determinable, but an infringer is liable for interest on such damages only from the date when he incurred the obligation to pay damages, and not from the date when the license fee became payable.</p> <p>[Ed. Note. — For’cases in point, see Cent. Dig. vol. 38, Patents, § 581.]</p>

<p>1. Carriers — Regulation of Rates — Statutes—Implied Repeal.</p> <p>Laws N. C. 1907, p. 252, c. 217, regulating passenger and freight rates within the state, contains no provision repealing laws in existence at the time so far as the freight rates are concerned and with reference to passenger rates, but only contains section 6, which repeals Revisal 1905, § 2618, requiring all railroad companies to furnish first and second class passenger accommodations. Sold, that all laws in existence at the time of the passage of the act of 1907, and not inconsistent therewith, were still in force, under the rule that a statute will not be construed as impliedly repealing a prior one on the same subject, unless there is an irreconcilable repugnancy, or the new law is intended to supersede the prior one and comprise in itself a complete system of legislation.</p> <p>2. Same.</p> <p>Revisal N. C. 1905, § 2567, subsec. 9, conferring on railroad companies the right to make passenger rates within a maximum of five cents a mile, repealed, by implication section 1099, subd. 1, which imposed on the North Carolina Railroad Commission the duty of making passenger rates.</p> <p>3. Same.</p> <p>Revisal N. C. 1905, § 2567, subsec. 9, giving railroads the right to make passenger rates within a limit of five cents a mile, was repealed by Laws 1907, p. 675, c. 469, § 7, extending and enlarging the powers of the Corporation Commission.</p> <p>4. Carriers — Statutory Regulation.</p> <p>Laws N. C. 1907, p. 252, c. 217, to prevent unjust discrimination in freight and passengér rates, and to fix the maximum charges therefor, ' and Act March 11, 1907, to extend and enlarge the power of the Corporation Commission; áre. not self-executing. , ‘ .</p> <p>5. Statutes — Construction—Repealed Acts.</p> <p>It is proper to consider a repealed statute in arriving at a particular construction of existing acts.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 299, 302-306.]</p> <p>6. Carriers — Regulation—Rates—Injunction—Parties.</p> <p>Tlie North Carolina Railroad Commission being required by Revisal 1905, § 1108, to make railroad rates subject only to the limitation contained in Laws N. C. 1907, p. 252, c. 217, the members of such commission were proper parties to a suit to restrain enforcement of such chapter because of unconstitutionality.</p> <p>7. Courts — Federal Courts — Jurisdiction—Action Against State — Actions Against State Oeeicers.</p> <p>The North Carolina Corporation Commission and the Attorney General being specially charged by Revisal N. C. 1905, §§ 1066, 1113, 5380, and Laws 1907, p. 251, c. 217, § 2, with the enforcement of such chapter, a suit against the Attorney General and the members of the commission to restrain the enforcement of the chapter, and other similar laws, because of alleged unconstitutionality, was not a suit against the state within Const. U. S. Amend. 11, providing that the judicial power of the United States shall not extend to any suit against one of the United States by citizens of another state, or by citizens or subjects of a foreign state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 840, 844%.]</p> <p>8. Attorney General — Duties—Carriers—Statutory Regulation.</p> <p>Revisal N. C. 1905, § 1113, provides that the Corporation Commission, whenever in its judgment any corporation has violated a law, shall first give notice of such violation to the offending corporation, and, in the event of a failure of tho corporation to comply with the law, shall forthwith present the facts to the Attorney General, who shall take such proceedings thereon as he may deem expedient. Held, that such provision is mandatory, and imposes a duty on the Attorney General when called on to prosecute any suit or action which may he deemed necessary to secure the enforcement of the railroad rate laws of the state.</p> <p>9. Words and Phrases — “Specially Charged.”</p> <p>The words, “specially charged,” when used in connection with a state officer’s duty to enforce a statute, are not limited to a case where the officer is expressly commanded by the statute to bring suits for penalties or prosecute offenses under the act, but include every case where the officer is charged by his general duties as a law officer of the state to enforce the statute.</p> <p>10. Witnesses — Credibility—Matters oe Opinion.</p> <p>Where a prior affidavit of a witness contained: facts based only on an estimate, not intended to be treated as matters of fact, such affidavit, though containing statements inconsistent with the witness’ subsequent testimony, did not affect his credibility.</p> <p>11. Constitutional Law — Unconstitutional Statute — Power of Federal Courts.</p> <p>The federal courts have power to declare an act of the state or federal Legislature invalid when known to be repugnant to the Constitution.</p> <p>12. Carriers — Rates—Regulation—Injunction.</p> <p>Revisal N. O. 1905, % 1082, providing that no judge shall grant an injunction restraining order or other process staying or affecting during the pendency of any appeal, the enforcement of any determination of the Corporation Commission fixing rates or fares without requiring as a condition precedent the execution of certain bonds, etc., indicates that the Legislature intended not to interfere with the remedy by injunction in cases where it appeared that the rates fixed were confiscatory, etc.</p> <p>13. Same — Profits.</p> <p>While a railroad is not entitled'to earn a profit on every mile of Its road nor on every article carried by it, it is nevertheless entitled to earn a reasonable profit on its entire intrastate business.</p> <p>14. Same — Railroads—Maximum Rate Law — Preliminary Injunction — Continuance — Irreparable Injury — Multiplicity of Suits.</p> <p>In a suit to restrain enforcement of Laws N. C. 1907, p. 252, c. 217 et seq., fixing maximum passenger rates, and providing for the establishment of freight rates for railroads within the state by the North Carolina Railroad Commission, on the ground that the rates fixed and provided for were unreasonably low and confiscatory, and that the act was unconstitutional as depriving complainant of its property without due process of law, a prima facie ease was made by undisputed evidence, on the hearing of a motion to continue a temporary injunction restraining enforcement of the act pending the hearing on the merits, that the act provided for the establishment of rates which were confiscatory and would not render complainant a reasonable return on its investment, and that, if complainant failed to comply with the act pending the suit, it would be subjected to innumerable suits for heavy penalties. Held that the court was authorized to continue the injunction to preserve the status quo and prevent irreparable injury, and to avoid a multiplicity of suits.</p>

<p>In Equity.</p> <p>The Seaboard Air Line Railway, the Atlantic Coast Line Railroad Company, the Kansas City, Memphis & Birmingham Railroad Company, the Southern Railway Company, Central of Georgia Railway Company, the Nashville, Chattanooga & St. Louis Railway Company, the Louisville & Nashville Railroad Company, all foreign corporations, the Western Railway of Alabama, the Alabama Great Southern Railroad Company, the Mobile & Ohio Railroad Company, the Atlanta & Birmingham Air Line Railway Company, and the South & North Alabama Railroad Company, domestic corporations, operating railroads in this state, filed their bills in the United States Circuit Court for the Middle District of Alabama, on the 25th day of March, 1907, against the Railroad Commission of Alabama and the Attorney General of Alabama, praying on final hearing to suspend and enjoin the enforcement of four statutes passed at the present session of the Legislature. One of these statutes fixed 2y2 cents per mile as the maximum rate for intrastate passengers. Another classified and fixed the maximum rates for intrastate transportation of 110 commodities. Another provided that the rates in force on the 1st of January, 1907, should be the maximum intrastate freight rates on the articles not included in the other statutes. The fourth statute provides that the bringing of a suit by a foreign corporation in the federal court “shall ipso facto forfeit all its right or license to engage in or carry on business, originating and terminating in this state, of freight or passengers, and its right or license to engage in or carry on such business in this state shall by said act itself be revoked and shall cease.” The statutes as to freight and passenger rates provide severe penalties for their violation in each instance by fine or imprisonment, and other laws make it the duty of the Railroad Commission and the Attorney General to enforce the provisions of these statutes. All the corporations, both domestic and foreign, sought relief against the three first-named statutes. All the foreign corporations sought relief against the statute forbidding their doing a domestic business in consequence of bringing a suit in this court. Only two of the complainants sought a preliminary injunction to prevent the enforcement of the act which makes the rates in force on the 1st of January, 1907, the maximum freight rates thereafter, and they asked a preliminary injunction against its enforcement. As no order was made in those cases pending further investigation, no statement is necessary as to the rights claimed by them in that behalf. All the complainants asked a preliminary injunction against the enforcement of the statute reducing the passenger rates and the rates on 110 commodities. Each of the bills alleges that the enforcement of the several statutes would either confiscate complainants’ property or deprive them of any adequate return on the value of the property devoted to intrastate business or deprive them of property without due process, deny to them the equal protection of the laws, and impair the obligation of contracts. A restraining order was issued on the 30th of March, 1907, and the hearing for preliminary injunction went over until the 8th of May, 1907. No answers having been filed in the cases, the issue of preliminary injunction was taken up on the allegations of the sworn bilis of the 8th of May, 1907; no opposing evidence by way of affidavit or otherwise being offered.</p>

In Equity. On demurrer to bill. It is alleged in the bill that the defendant, Knapp, then vice president of the Tonapah Home Mining Company, on the 10th day of March, 1903, heid, under a pooling agreement, certain stocks issued by said company belonging to Adolf Longabaugh. The terms of the agreement are not disclosed, other than, the condition that the stock should be delivered to Longabaugh on August 12, 1904.

<p>Wharves — Negligence—Injury op Scow at Pier — Sunken Pile.</p> <p>Respondent, as contractor, was constructing the piers of a steamship company at Hoboken to replace others which had burned and had contracted ■ with libelant to furnish crushed stone delivered on scows. It had removed all stubs of piers extending above low water, and an independent contractor had dredged the botton under and alongside the old piers to a depth, of 25 feet, and removed all other stubs found, and had. also taken proper measures to ascertain that none remained. By agreement libelant left five scows loaded with stone which was to be used by respondent as required during the winter. Respondent caused one of such scows to be moved from one side of a slip to the other, and there made fast to the pier to which others of the scows were also tied up. A very strong wind blowing from the west for two days caused an extraordinary fall of the tide, and as she settled such scow was pierced by an unknown sunken pile, and capsized and injured. The pile or stub appeared to be an old one, but the span alongside the pier had been used by other vessels during the work with safety, and it was shown that respondent had dragged the bottom to discover any obstruction.. Held, that conceding that respondent owed the duty of reasonable care to protect the vessel, as bailee or otherwise, such care had been exercised, and that no negligence or fault was shown which rendered it liable for the injury.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 48, Wharves, §§ 36, 37.]</p>

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

<p>On Motion to Quash and Vacate Service of Summons.</p>

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

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

<p>1. Patents — Term—Expiration of Foreign Patent.</p> <p>Tlie claim that a British patent covering an invention also patented in the United States was taken out by an intermeddler, and was unauthorized, and therefore that its expiration did not affect the term of the American patent, cannot be sustained, where the American, patentees authorized •the taking out of a patent in England, and under the other circumstances named in the opinion, did not repudiate the one in fact obtained until after its expiration.</p> <p>2. Treaties — Construction and Effect — Relation to Statutes.</p> <p>Treaties and statutes of the United States have always been practically put in the same class, so far as judicial action is concerned, to the extent that a later treaty has the same effect on a prior statute that a later statute has, and may supersede it as a later statute may supersede a prior treaty. Nor is there any practical distinction as between a statute and a treaty with regard to its becoming presently effective without awaiting further legislation which depends entirely upon its terms.</p> <p>3. Statutes — Construction—Resort to Title.</p> <p>When a legislative act is general in its terms, the title may be resorted to for the purpose of ascertaining its proper limitations.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 288.]</p> <p>4. Patents — Term—Effect of Treaty.</p> <p>Article 4 bis, inserted in the international convention for the protection of industrial property of March 20, 1883, by the additional convention or act of December 14, 1900, proclaimed by the President August 25, 1902 (32 Stat. 1936, 1939), as controlled and construed by Act March 3, 1903, c. 1019, 32 Stat. 1225 [U. S. Comp. St. Supp. 1905, p. 663], “to effectuate the provisions” of such additional act of convention, did not have the effect of changing the term of an existing United States patent as fixed by statute at the time of its issuance; and such a patent granted prior to January 1, 1898, and which is limited by the provisions of Rev. St. § 4887 [U. S. Comp. St. 1901, p. 3382], to the term of a prior foreign patent, is not extended by such additional act.</p> <p>5. Same — Sole Sewing Machine.</p> <p>The French and Meyer patent, No. 412,704, for a sole sewing machine, expired September 17, 1902, with the expiration of the term of the prior British patent, No. 13,366, of 1888, granted to the same patentees for substantially the same invention.</p>

"In Equity. On demurrer to bills. These are three suits in equity, in which bills were filed for the purpose, briefly, of enjoining the defendants, whether acting individually •or in concert, or in their own names or that of sundry associates, companies, and combinations, in which it is charged they were severally doing business, from dealing in nontransferable tickets issued by the ■complainants as public service corporations to and from the Jamestown Exposition, now being…

<p>1. Shipping — Injury to Tow from Swell-Negligent Navigation os Steamer:</p> <p>A vessel causing injury to others by her swell must be held responsible for any failure to appreciate the reasonable effect of her own speed and motion through the water at the particular place and under the particular circumstances where the injury occurred, and her officers are required to take into consideration other vessels which - may reasonably- be expected to be affected, and to take all reasonable precautions to avoid their injury, even though former experience has shown that in the ordinary and usual course of events they are likely to escape injury, and a tug with small craft in tow, if properly managed, with the tow properly arranged, has the right to assume that a larger craft will observe such reasonable precautions and is under no obligation to warn her of the danger.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 345.</p> <p>Liability of vessel for injuries caused by creating swell, see note to The Asbury Park, 78 C. C. A. 3.]</p> <p>2. Same.</p> <p>A tug with three scows loaded with sand in tow tandem with 4 to 5 feet between them was passing down the channel in East river to the west of Blackwell’s Island in the daytime on an ebb tide, when she saw the steamer Chapin coming up a distance of' about nine streets below, and gave her a signal of one whistle. This was not answered, and the tug blew alarm whistles, but the Chapin did not answer and kept her course and speed, and as she passed within 75 to 100 feet from the scows her swells caused them to bump together, and one was turned over and seriously injured. The Chapin was about the middle of the channel, which was from 1,000 to 1,100 feet wide, and was proceeding through the water at a speed of from 15 to 18 miles. The tow was made .up in the proper and usual manner. The Chapin was a large screw steamer, creating a considerable swell, and which made almost daily trips up the river and was accustomed to meeting tows and scows. Held, that her master must be presumed to be acquainted with the amount of disturbance caused by her and its probable effect on the meeting scows, and that she was in fault and liable because of his failure to reduce his speed or keep at a greater distance.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 345.]</p>

<p>1. Shipping — Duty op Steamer with Respect to Swell — Structures at Dock.</p> <p>Tke duty of a passing steamer with respect to causing dangerous swells-is the same toward a floating dry dock permanently located alongside of a pier as toward vessels in the same situation, and she is bound to exercise reasonable care to avoid causing injury to such dock, having regard to the character of the structure and its greater liability to injury from its size and therefore longer subjection to the action of the swells; and it is also the duty of the owner of the dock to take into account the same liability to injury from swells and to make reasonable provisiohsagainst it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol., 44, Shipping, § 345.</p> <p>Liability of vessel for injuries caused by creation of swell, see note to The Asbury Park, 78 C. C. A. 3.]</p> <p>2. Same — Injury to Floating Dry Dock prom Swell.</p> <p>Libelants were the owners of a floating dry dock 278 feet long and 90 feet wide permanently stationed alongside of a pier on . East river by means of four very heavy vertical timbers or spiles driven along the side of the pier, to which the dock was secured ,by means of yokes or eyes of heavy lumber built around the vertical timbers, allowing the dock to move down and up as it was submerged or pumped out, or as the tide fell and rose. The large steamer Payne, owned by respondent; passed down the river in the daytime at a distance of about 1,100 feet from the pier against a flood tide at a speed of 12 knots or more through the water, and her large swell caused the dock to oscillate to such extent as to break the end yokes and also one of the vertical timbers. Held, that the Payne-was in fault for not reducing speed so as to avoid causing such dangerous swells; that libelants were also in fault for failing to make better provision against the action of swells from passing vessels by giving greater play to the yokes at the ends of the dock.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 345.1</p>

<p>Bankruptcy— Suit by. Trustee to Set Aside Transfers as Fraudulent-Sufficiency of Proof.</p> <p>Evidence considered, and Itfld insufficient to sustain the allegations of a bill filed by a trustee in bankruptcy to set aside certain conveyances made by the bankrupt as made to hinder, delay, and defraud creditors, where the only witnesses were the parties to the transactions introduced by complainant, eacli one of whom testified that the transfers were made in good faith and for a fair consideration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, I 462.]</p>

<p>Bankruptcy — Void abre Preference — Suit to Recover.</p> <p>In a proceeding by a trustee in bankruptcy to recover a horse which had been delivered by the bankrupt to a creditor as payment or security under circumstances which rendered It a voidable preference, the fact that the creditor had expended money for keeping of the horse and for medical treatment is no defense; any claim to recover such money being one which must be presented for allowance against the estate.</p>

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

<p>1. Schools and School Districts — Claims fob Supplies — Action—Parties.</p> <p>Where, in a suit against a county school superintendent a board of citizens and taxpayers, and a board of county commissioners, to compel payment for certain school desks purchased by a board of school trustees, as authorized by Comp. Laws Nev. §§ 1294, 1298, it appeared that the trustees executed the contract, received the desks, and allowed complainant’s claim, which was thereafter disallowed by defendants, a bill, not joining the schbol trustees representing the school district, from whose funds any judgment would have to be paid, nor praying any relief against them, was demurrable.</p> <p>2. Same — Disallowance of Claims.</p> <p>Comp. Laws Nev. § 1287, provides that no public money can be paid out except on warrants of the county auditor issued on orders of the county superintendent of public schools, and section 1338 makes it the duty of the county superintendent of public schools to draw his order on the county auditor in favor of the trustees of any school district in his county for any bill signed by the trustees and authorized by the act, except that, if in the opinion of the superintendent the bill contains an exorbitant or unwarranted charge, he may refuse to draw his order until ordered to do so by the board of county commissioners, who are required to act as auditors on any bill rejected by the county superintendent. Act Feb. 13, 1905, p. 23, § 9, authorizes the trustees of the district in question to purchase new school furniture, and provides that no purchase shall be valid until it has received the approval of a majority of a board of taxpayers and citizens created by such act. Held that where, after the allowance of a bill for school desks by school trustees, it was allowed only for a portion of the amount by the county superintendent, whose ruling was confirmed by the board of citizens and taxpayers and the board of county commissioners, the allowance of the bill by the trustees was insufficient to establish the claim as a valid claim for the full amount against the district.</p> <p>8. Same — Payment—Enforcement.</p> <p>Prior to the allowance of claims against a school district by the officers selected therefor by law or the establishement of such claim by a judgment against the district, proceedings will not lie to compel payment of the claims by the officers of the county.</p> <p>4. Mandamus — Scope of Writ — School Districts — Claims—Payment.</p> <p>After a claim against a school district has been duly established and liquidated, mandamus is the proper remedy to compel payment thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Mandamus, § 226.]</p> <p>5. Equity — Grounds of Jurisdiction — Multiplicity of Suits.</p> <p>Where complainant’s claim against a school district for school desks was partly disallowed, all the desks having been purchased under a single contract, complainant was not entitled to sue In equity to compel payment of the full amount claimed in order to prevent a multiplicity of suits.</p> <p>[Ed. Note. — For cases .in point, see Cent. Dig., vol. 19, Equity, §§ 167, 169.]</p>

<p>Contracts — Implied Conditions — Contract with Baseball Playee.</p> <p>The provisions of the “national agreement for the government of professional baseball,” adopted by the so-called “major” and “minor” leagues in 1903, and of the rules of the national commission created thereby, which give to a club having a player under contract with it the right to reserve such player for the ensuing season or to sell him to another club, in the absence of a stipulation to the contrary in the contract, are not binding upon a player who continued during succeeding years to play with a club under a contract entered into prior to the adoption of such agreement or the promulgation of the rules, and who did not thereafter make any new contract under or with reference to the same, and such club has no power to sell him without his consent, nor has the commission the right to enforce the prescribed penalties because of his refusal to recognize such a sale.</p>

<p>1. Bankruptcy — Exemptions—Pennsylvania Statute.</p> <p>Under tñe law of Pennsylvania (P. L. 1849, 533) exempting to a debtor “property to tbe value of $300,” as construed by the Supreme Court of the state, the exemption must be taken in property, and cannot be claimed in the proceeds of property to be subsequently sold, and a claim by a bankrupt of an exemption of “$300 in cash out of the proceeds of bankruptcy estate” is invalid and gives him no right.</p> <p>2. Same — Waiver of Exemption — Right to Withdraw.</p> <p>Under the law of Pennsylvania a debtor may waive his claim to exemption, but may not assign it; and a bankrupt who has filed a formal waiver of his claim will not be permitted to withdraw such waiver for the benefit of a single creditor to whom he has made an assignment of his claim.</p>

<p>Collision — Schooner and Tug and Tow Meeting — Fault of Tug — Evidence.</p> <p>A tug with a schooner in tow on a hawser held, on the evidence, solely in fault for a collision between her tow and a meeting schooner In Delaware Bay at night, on the ground that she held her course directly toward the meeting schooner, until they were so close that there was danger of collision, and then attempted to cross the schooner’s bows with her tow.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 10, Collision, § 84.)</p>

<p>1. Master and Servant — Injury of Servant — Evidence of Master’s Negligence.</p> <p>The mere fact that an accident happened by which a servant was injured does not itself create a presumption of negligence on the part of the master, and, where negligence is charged as a ground for recovery by the servant against the master, the burden is upon the plaintiff to show that by some act or omission the defendant violated some duty he owed to the plaintiff which caused the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 881, 895.]</p> <p>2. Same — Duty of Master — Safe Place to Work.</p> <p>The rule which makes it the positive duty of a master to exercise reasonable care to provide a servant with a reasonably safe place in which to work, even if it extends to providing a reasonably safe mode of entrance to and exit from the place where the workmen are employed, is not applicable to a case where the place becomes dangerous in the progress of the work either necessarily or from the manner in which the work is done.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 34, Master and Servant, § 550.]</p> <p>8. Same — Condition of Way.</p> <p>Plaintiff was employed on the third floor of defendant’s packing house, which was reached by an outside stairway running up from a platform, 10 to 14 feet wide, extending along the side of the building. This platform was used by other employés in conveying meat on trucks from one part of the building to another, and there were more or less drippings from the trucks which in cold weather froze upon the platform. After plaintiff had been so employed for three years, in walking along the platform from the stairway in going from work one night In the winter, he slipped on the platform, and was injured. Held that, assuming that Ike fall was caused by lee resulting from such drippings, it was not due to any neglect or breach of duty on the part of defendant, but to a cause the risk from which was known to and assumed by plaintiff.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 610.]</p>

<p>Patents — Infringement—Tube Cleaner.</p> <p>The Elliott patent, No. 641,092, for a rotary boiler tube cleaner, was not anticipated, and discloses invention; also held valid as against the claim of prior use, and infringed.</p>

<p>Collision — Steamship and Cbossing Tow — Mutual Fault.</p> <p>A tug with four barges in tow, the entire tow being 1,250 feet in length, was passing up near the east side of the Delaware river in the daytime on a flood tide, and, it being necessary to cross to leave some of the barges on the west side, the tug signaled the tow her intention to shorten up the hawsers as was customary and proper to lessen the danger of collisions with other vessels in crossing, but she did not then shorten the hawsers, but proceeded out to the middle of the channel, and then stopped for that purpose. Meantime the steamship Algeria was coming slowly down the river, being about a half mile distant, when the tow started to cross. No signals were exchanged, but, seeing the tow turn to cross, the Algeria starboarded her helm, and slowed still more, but did not reverse until the tug stopped, when it was too late, and she came into collision with the second barge from the rear. Held, that the tug and the Algeria were both in fault, the former for not stopping and shortening her tow before crossing in the usual manner, and for stopping when halfway across, and thus obstructing the channel with her long and cumbersome tow in front of the coming steamship; and the latter for not stopping at once when such dangerous maneuver was seen; and that the barges were not,in fault for casting off their hawsers when the collision was Imminent.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 10, Collision, { 79.]</p>

<p>1. Bankruptcy — Reclamation of Property by Seller — Rescission of Sale Contract.</p> <p>Circumstances under which a court of equity .might permit a rescission of a contract of sale on the ground of mistake in the representations, where the parties could be restored to their original position, may not warrant such relief after the purchaser has become bankrupt, and especially where the specific property purchased cannot be restored.</p> <p>2. Same — Sale Induced by Eraud.</p> <p>Evidence held not to sustain the claim of a seller of goods' to a bankrupt that such sales were induced by fraud on the part of the bankrupt in knowingly making materially false statements of assets, such as would entitle the seller to rescind.</p>

<p>Habeas Corpus.</p>

<p>Trade-Marks and Trade-Names.</p> <p>The name “White House,” and the picture of the White House at Washington, held, upon final hearing, to constitute a valid trade-mark and trade-name for plaintiff’s coffee.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 8, 11.]</p>

<p>1. Arbitration and Award — Validity of Award — Notice of Hearing.</p> <p>Mere statements made by one claiming tbe ownership of certain stock of a corporation that, if he recovered it, he would use or dispose of it for the benefit of the corporation, did not constitute a transfer which gave the corporation the right to notice of a hearing before arbitrators to determine the ownership of the stock under an agreement to which it was not a party, or to join in a bill to set aside the award and for the recovery of the stock.</p> <p>2. Same.</p> <p>A dispute having arisen between several persons as to the ownership of certain shares of stock in a corporation, an agreement was made to submit all questions as to such ownership to arbitration, and arbitrators were selected, the most of whom were stockholders, and had heard the claims of the respective parties discussed. Complainant, who was one of such parties, after the arbitrators were selected, repeatedly stated to them that he had said all he wished to say, and that, as he was going away, they should proceed without him, which they did, making an award before his return. Held, that complainant could not impeach the award because no notice of the hearing was given to him, nor because the arbitrators may have considered evidence which would not have been admissible in court, having evidently intended that they should do so in respect to his own claim.</p> <p>3. Same — Impeachment of Award — Grounds.</p> <p>An allegation that arbitrators acted “with manifest unfairness, arid with such partiality as to destroy the judicial character of the proceedings,” does not state any ground for impeachment of their award, in the absence of any allegation that the party benefited participated in any misconduct or was guilty of fraud or collusion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4, Arbitration and Award, §§ 322, 415.</p> <p>Setting aside award for Interest, prejudice on misconduct of arbitrator, see note to Nolan v. Colorado Cent. Consol. Min. Co., 12 C. C. A. 589.]</p> <p>4. Same — Waiver of Objections.</p> <p>A party to an arbitration agreement who voluntarily joins in the selection of persons as arbitrators, who are known to have formed opinions upon the merits of the controversy, cannot impeach the award on the ground that the arbitrators were not impartial.</p>

On Indictment for Receiving in Pledge Soldiers’ Clothing. The defendant, Charles Koplik, was a member of a firm conducting a pawnbroking business in the city of New York. He was indicted under section 5438 of the Revised Statutes [U. S. Comp. St. 1901, p. 3674] for having at his place of business knowingly received in pledge, from a soldier stationed at Ft Schuyler, N. Y., an olive drab overcoat which the soldier did not have the right to pledge or sell.

<p>Bankruptcy — State Exemption — Fraudulent Concealment of Property.</p> <p>A bankrupt was a general merchant in a small town, carrying an average stock of about $5,000. Within three- months prior to his bankruptcy he bought goods to the value of $11,000, which he did not pay for, in addition to those then on hand; and on his bankruptcy his stock Invoiced at cost price less than $3,500. During such three months not more than $3,000 in money was accounted for, and no proper books showing the business transactions were found. Úeld, that under the law of Pennsylvania, having fraudulently concealed his property he forfeited his right to his $300 state exemption.</p>

<p>Bankruptcy — Allowances to Trustee — Removal fob Misconduct.</p> <p>A trustee in bankruptcy removed for cause held, on bis accounting, not entitled to allowance of persona] expenses or commissions on the ground that, although residing at a distance of 75 miles from the property, he secured the appointment by soliciting claims to be sent to his attorney, and that he was guilty of willful misconduct in conniving with the bankrupt in concealing the books of the business, and favoring the bankrupt’s relatives in the sale of the property.</p>

<p>In Bankruptcy. On question certified by Harlow P. Davock, referee.</p>

<p>1. Carriers — Wrongful Delivery — Liability for Conversion.</p> <p>A carrier or a warehouseman is liable in trover for the wrongful delivery of goods intrusted to it for shipment or storage; but such right of action may be waived by any action which ratifies the delivery, and thereby deprives the carrier or warehouseman of the right to recover over against the person to whom the delivery was made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, $ 361.}</p> <p>2. Same — Ratification by Shipper.</p> <p>Plaintiff delivered to defendant railroad company a shipment of apples covered by bills of lading with drafts upon the consignee attached. Defendant delivered the apples without collecting the drafts, and on learning such fact plaintiff entered into correspondence with the consignee and obtained part payment and the consignee’s acceptances for the remainder. Held, that the effect of such action was to ratify the delivery and pass title to the apples to the consignee, which precluded plaintiff from recovering from the defendant for conversion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, § 361J</p>

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

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

<p>1. Contempt — Violation of Order of Court — Notice.</p> <p>If a person has actual knowledge of an order of court, he is liable for the consequences of violating it, although he has not been formally served with it.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 10, Contempt, S 70.]</p> <p>2. Same — Interference with Receiver in Bankruptcy.</p> <p>On the filing of a petition in involuntary bankruptcy, an injunction was granted and a receiver appointed, who took possession of the bankrupt’s stock of goods and placed a lock on the door. When his custodian went to the place the next day, respondent, who was a city marshal, had broken open the door and was about to seize goods under a writ of replevin. He was informed of the action of the bankruptcy court and that the property was in possession of its receiver, whose name was given, and was warned not to interfere with the same, but answered that he did not care for the United States court, and took and removed goods under his writ. Held, that he was guilty of contempt of the bankruptcy court, and a sentence of 60 days’ imprisonment imposed as a punishment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Contempt, f 163.]</p>

<p>1. Statutes — General Repealing Clause.</p> <p>A clause generally repealing “all laws and parts of laws In conflict with” the act of which it is part repeals nothing that would not be equally repealed without it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 225.)</p> <p>2. Same — Later Act Covering Whole Subject of Prior One.</p> <p>The rule that a later act, covering the whole subject of a prior one and embracing new provisions, plainly showing that it was intended as a substitute, operates by implication to repeal the prior act, is subject to the qualification that where the later act expresses the extent to which it is intended to repeal prior laws, as by a clause repealing all laws and parts of laws in conflict therewith, it excludes any implication of a more extended repeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 229.</p> <p>Repeal of statutes by implication, see note to First Nat. Bank of Butte v. Weidenbeclc, 38 C. C. A. 136.]</p> <p>3. Same — Re-enaotment with Amendments.</p> <p>Statute law is not abrogated or annulled by mere re-enactment or repetition j and when, for purposes of enlargement, contraction, or otherwise, a statute is re-enacted or repeated with amendments, the amendatory act is to be regarded as an affirmation and continuation of the prior law, in so far as in substance and operation it is the same, and is to be regarded as new legislation only in so far as in substance or operation it differs from the prior law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 241.]</p> <p>4. Carriers — Rebates—Section 1 of Elkins Act (32 Stat. 847) Not Wholly Repealed by Hepburn .Act (34 Stat. 584).</p> <p>In so far as section 1 of the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), provided for the punishment of acts of corporate carriers in knowingly offering, granting, or giving, as also the acts of corporate shippers in knowingly soliciting, accepting, or receiving, rebates, concessions, or discriminations from the legal rates and tariffs, it was not abrogated or repealed by the Hepburn act (Act June 29, .1906, c. 3591, 34 Stat. 584), but was preserved and continued ; and in so far as it provided for the punishment of such acts, when not knowingly done — assuming, but without deciding, that it did so provide — it was repealed.</p> <p>5. Statutes — Congress Cannot Limit Manner in Which Its Will shall be Manifested in the Future.</p> <p>While Congress may prescribe rules affecting the construction of after-legislation, which does not in terms, or by necessary implication, show that it is to be unaffected by them, these rules cannot be so framed as to defeat the plain intention of after-legislation, and, like other statutes, they cease to be effective when plainly or necessarily In conflict with a later manifestation of the legislative will.</p> <p>6. Same — Rev. St. § 13, Construed.</p> <p>As applied to subsequent repealing ■ acts which do not expressly, or by necessary implication, contravene its provisions, Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], prescribing the effect of a repealing act upon existing penalties, forfeitures, and liabilities, is effective and obligatory upon the courts; but beyond this it is without effect and not obligatory upon any one. Notwithstanding its enactment, Congress remained at liberty to legislate respecting its subject-matter in any manner they might choose.</p> <p>7. Same — Intention is Controlling, Though Resting Only in Necessary Implication.</p> <p>The intention of the Legislature constitutes the law, and may be as effectually manifested by what is necessarily implied as by what is expressed • and, where there are conflicting manifestations of the legislative will, the last is controlling, even though it rests in necessary implication.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 264.]</p> <p>8. Same — Repeal by Implication.</p> <p>To establish a supersession or repeal of a statute by implication, it is not sufficient to show merely that a later statute, making no mention of the particular subject of a prior one, employs language broad enough to cover some part or all of it; for, as words are sometimes employed with less than their largest literal meaning, it must also appear that the two statutes cannot stand together, reasonable purpose and operation being accorded to each. Particularly is this true if the prior statute expresses a settled policy in legislation.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 44, Statutes, § 230.]</p> <p>9. Carriers — Rebates—Discrimination—Rev. St. § 13, Not Superseded by Special Saving Clause in Hepburn Act (34 Stat. 584).</p> <p>The special saving clause in section 10 of the Hepburn- act (Act June 29, 1906, c. 3591, 34 Stat. 595), does not mention the particular subject of the general saving clause in Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], namely, the effect upon existing penalties, forfeitures, and liabilities of a repealing act, and can be accorded reasonable operation, consistently with the true intendment of its language and with the undisturbed operation of the general saving clause, by treating it as saving causes then pending in the courts of the United States from what, in its absence, and in the presence of the general saving clause, would be the effect upon them of the amendments provided for in that act. Consequently it does not by necessary implication supersede the general saving clause or impinge upon its field of operation.</p> <p>(Syllabus by the Court.)</p>

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

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

In Equity. Suit for infringement of letters patent No. 476,230 for a hot-air furnace issued to W. W. Kelsey May 31, 1892. Also charging unfair competition. On final hearing.

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

<p>Commerce — Interstate Commerce — Validity oe Municipal Regulation.</p> <p>A city ordinance merely providing that “no person shall distribute In any public street or from any buildings handbills, cards, circulars or papers of any description except newspapers,” reasonably construed and enforced by the officers as a police regulation only, to protect people on the streets from annoyance, is not unlawful as an interference with interstate commerce as against a concern doing business In another state and desiring to distribute on the public streets circulars advertising such business.</p> <p>[Ed. Note. — State laws interfering with interstate commerce, see note to MeOanna & Fraser Co. v. Citizens’ Trust & Surety Co., 24 C. C. A. 21.]</p>

<p>In' Bankruptcy. On certificate from' J.' R. Vandersloot, referee.</p>

<p>1. Injunction — Powers of Court — Restraining Publication of Ordinance.</p> <p>The general rule that -a court of equity will not restrain the enforcement of an ordinance or other legislative act until it has been fully completed so far as legislative action can go does not apply to an ordinance which has been finally passed by a city council and approved by the mayor, and nothing remains to be done to render it immediately effective except its publication, which is merely a ministerial act, and in such a case upon a proper showing made the court has power to enjoin the publication.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 27, Injunction, § 154.]</p> <p>2. Street Railroads — Statute Governing Incorporation — Minnesota Statute.</p> <p>Gen. St. Minn. 1866, c. 34, relates to the formation of corporations. Title 1 provides generally for corporations which are or may be authorized to exercise the power of eminent domain, and specifies certain public service corporations, such as those formed for the construction of railways, canals, and works of like character. Title 2 provides for all other corporations for pecuniary profit, all those specified therein being for the conducting of purely private enterprises. Held that, while street railroad companies are not specifically mentioned under either title, the nature of their business is such as to render them quasi public corporations, which might properly be authorized to exercise the power of eminent domain and to bring them within the generic term “railways,” and that a street railroad company organized under said chapter came within the provisions of and derived its powers from title 1, having the right as therein provided to fix the term of its corporate existence at fifty years.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 22.]</p> <p>3. Same — Contract with City — Effect of Change of Motive Power.</p> <p>A city ordinance granting a franchise to a street railroad company and accepted by the company reserved the right to the city council after five years to fix just and reasonable fares provided they should not be reduced below five cents per passenger on any continuous line. It provided for the use of animal or pneumatic power on the company’s lines, but permitted it to connect with other lines using power “similar to that authorized to be used on street railways by the city council,” subject to the restriction that it should not allow locomotives or ordinary railroad cars to be run over its tracks unless with the consent of the council. Held, that the fact that after a number of years the company changed its motive power to electricity, with the consent of the council, did not .terminate the contract made by the ordinance so as to give the city the right' to reduce'fares below five cents in violation of its provisions.</p> <p>4.' Same — Effect of Subsequent Oonteacts.</p> <p>A provision in a contract between á city-and a street railroad company ■that the city should not reduce fares below five cents was not abrogated by a subsequent contract providing that “in the construction, maintenance and operation” of its lines the company should be subject to all present or future ordinances of the city.</p>

<p>1. Abbitbation and Award — Construction of Abbitbation Agreement— Scope of Questions Submitted.</p> <p>An agreement for arbitration between a railroad company and the Order of Railway Telegraphers, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205], providing for arbitration of differences between interstate carriers and their employés, provided for the submission, among others, of the question “whether members of the order of railroad telegraphers in the employ of the employer shall legislate for train dispatchers respecting rates of pay and hours of service or otherwise.” Held, that such question was not limited to an inquiry as to whether the train dispatchers in the service of the employer had authorized the order or its committee to represent them in the arbitration proceedings, which was merely a matter of agency, but that it covered the broader question, as to whether they should be represented generally in their negotiations and dealings with the employer in respect to rates of pay and hours of service by the body of its employés who were members of the order, or should be separately represented, and that the board of arbitration properly admitted evidence offered by the employer to show the nature of their duties, and that their relation to the employer and to its service to the public was different from that of ordinary telegraphers.</p> <p>2. Same — Abbitbation of Labor Disputes — Federal Statute.</p> <p>An arbitration of differences between an interstate carrier and its employés, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205], is essentially a common-law arbitration, and rests solely on the written agreement of arbitration entered into by the parties, which limits and determines, not only the rights of the parties thereto, but also the extent of the powers of the arbitrators, and it is to be construed in accordance with the rules governing the construction of contracts, rather than those applicable to pleadings.</p> <p>3. Same — Consteuotion of Agreement.</p> <p>A written contract inter partes, as an agreement for arbitration stating the questions to be submitted and determined, must primarily be interpreted by its language taken in its ordinary and accepted meaning, and, if that language is plain and unambiguous in itself, there is no room for construction, but it will be held to mean precisely what its terms imply. It is only when the language is susceptible of more than one construction that the intent or understanding of the parties may be inquired into,, or that evidence of the surrounding circumstances may be resorted to.</p> <p>4. Same — Scope of Questions Submitted.</p> <p>An agreement for arbitration, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205], between a railroad company and the Order of Railroad Telegraphers whose members employed by the company were working under a schedule agreed to between the parties fixing rates of pay and hours of service, which submitted as one of the questions to be arbitrated “the question of eliminating from the operation of the schedule certain important agencies where the duties of soliciting traffic are paramount,” is not ambiguous in respect to such question, which is clearly limited by terms to “agencies where the duties of soliciting traffic are paramount,” and cannot be broadened by construction to authorize the board of arbitrators to consider and determine whether the schedule shall apply generally to “station agents whose regular duties do not include telegraphic work and whose annual earnings * * * equal or exceed” a certain sum.</p> <p>5. Same — Entry of Judgment on Award.</p> <p>In an arbitration proceeding to settle differences between an Interstate carrier and its employés, under Act June 1, 1898, c. 370, 30 Stat. 424 [U. S. Comp. St. 1901, p. 3205], which provides in section 4 for a hearing by the Circuit Court on exceptions to the award, and also for an appeal from the court’s decision within 10 days, judgment on the award cannot be entered by the court until after the appeal has been determined, or until after the time for taking an appeal has expired.</p>

In Equity. On demurrers by Alfred J. Ulman, the Crozer Land Association, and the Pocahontas Coal & Coke Company to the cross-bill of Samuel Ross.

<p>1. Bankruptcy — Refusal of Discharge — Effect in Second Proceeding.</p> <p>The refusal of a discharge to a bankrupt renders the Issue as to his right to a discharge from debts provable in that proceeding res judicata, and he is not entitled to retry it in a second proceeding, even though the enforcement of such debts may have become barred by limitation; the bar of the statute being available to him as a defense when it is sought to enforce the debts or prove them in the second proceeding, but not on an application for a dischárge.</p> <p>2. Same — Reduction of Debt to Judgment.</p> <p>The fact that a debt proved in bankruptcy proceedings in which the debtor was refused a discharge was afterward reduced to judgment does not create a new debt in such sense that the bankrupt may retry the question of his right to a discharge therefrom in a second bankruptcy proceeding instituted by him.</p>

<p>Injunction — Preliminary Injunction — Right in General.</p> <p>Where an answer not only puts in issue ail the material averments of the bill, but fully negatives its equity, whatever the rights of the parties may ultimately be found to be on final hearing, the complainant is not entitled to a preliminary injunction, except it appear either that irreparable injury will result from its denial or that some special or peculiar circumstances exist to warrant a departure from the rule.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, § 319.]</p>