Volume 156 — Federal Reporter

The United Slates Rubber Company, a corporation of New Jersey, was a large manufacturer of rubber goods, and its principal office was in New York. It had a factory in one of the Fjastern states and a warehouse in Chicago, from which it shipped its merchandise to consignees and purchasers. The Butler Bros. Shoe Company, a corporation of Colorado, was a wholesale merchant engaged in the purchase and sale of rubber goods and other merchandise at Denver, in that state.

W. B. Bourne having been duly appointed deputy auditor of Ramsey county, Minn., by W. R.‘ Johnson, the auditor, and being as such authorized to sign all papers and do all other things that the. auditor himself might do, purporting to act by authority of the statute of that state providing for refunding to the holders of invalid certificates of sale for nonpayment of taxes the amounts paid by them therefor, drew seven spurious refunding orders, some purporting to be in favor…

<p>1. CANCELLATION OF INSTRUMENTS — GROUNDS—IMPROVIDENCE OR UNCONSOION-ABLENESS.</p> <p>An unmarried man 77 years old, and in feeble health, deeded his farm to his nephew on the expressed consideration of $1 and other considerations, the deed reserving to the grantor a life estate. It was also orally agreed that the grantee should furnish support to the grantor at the grantee’s own home, which he did so long as the grantor remained with him, and also paid the interest on a mortgage on the farm. Subsequently the grantor returned to the farm and commenced suit for cancellation of the deed. He was shown to have been mentally competent, and there was no evidence to establish coercion or undue influence. Held, that, the fact that the deed did not impose a positive obligation on the grantee for the grantor’s care and support did not authorize the court to set it aside as improvident and unconscionable.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, § 3.]</p> <p>2. Equity — Powers oe Chancellor — Contract Rights.</p> <p>There is no comprehensive discretion rex>osed in the chancellor by modern equity jurisprudence to make and unmake contracts of parties sul • juris subject to such limitations only as meet the approval of his conscience, but courts of equity are now required as much as courts of law to enforce contracts free from fraud, and to refrain from making contracts for the parties on which their minds never met.</p> <p>3. Same — Modern Jurisprudence.</p> <p>In the process of development, equity jurisprudence has assumed the qualities of a composite system of settled rules and principles by which the property rights of parties are measured and limited, and are rendered more certain and stable.</p>

<p>Petition for Revision of Order of the District Court of the United States for the District of Colorado, in Bankruptcy.</p>

<p>1. Insurance — Marine Policy Insuring Tug Against Liability for Loss of Tows — Expense of Successful Defense.</p> <p>A marine policy insuring a tug merely against legal liability for loss or damage caused to its tows by collision or stranding creates no liability on the part of the insurer for the expense of successfully defending the tug against a suit to recover for the stranding of tows.</p> <p>2. Same — Sue and Labor Clause.</p> <p>In a marine policy insuring a tug against legal liability for loss or damage caused to its tows or other vessels through collision or stranding, the usual “sue and labor” clause has reference only to the subject-matter of the insurance, and has no application to expenses incurred in defending the tug itself against an unsuccessful suit to establish its liability.</p>

In Equity. Bill in equity to restrain the infringement of letters patent issued to Alfred M. Hewlett of Kewanee, Ill., January 2, 1900, for a pipe coupling. On final hearing.

<p>1. Trusts — Contracts Creating — Violation of Duty by Trust®®.</p> <p>Complainant and defendant were both creditors of a steamship company, the defendant for a part of the purchase price of a steamship which it had contracted to sell to the company. The latter had loaded the vessel at Seattle for a voyage to Nome, but defendant refused to allow her to proceed until the indebtedness was adjusted. At a meeting at which all three parties were represented, the company by its president, a written agreement was made between complainant and defendant by which the latter agreed to take a mortgage on the vessel securing both claims, acting as trustee for complainant. At the same time the president of the company executed a note in its name to defendant as trustee for the amount of complainant’s claim, and also an agreement to deposit one-half the amount to defendant’s credit at Nome from the earnings of the voyage, to be applied on such note. He also signed the mortgage, and the vessel was delivered into the company’s possession. The other officers of the company in New York haying refused to execute the mortgage, defendant, without complainant’s knowledge, entered into an arrangement with the company by which they undertook to cancel the sale, and defendant executed a release to the company of all demands and claims including the freight money which was to be deposited for complainant’s benefit. The vessel was of sufficient value to pay all claims against it. Held, that the instruments executed at the meeting constituted a single contract to which all three were parties, and which, by virtue of the delivery of the vessel thereunder and its acceptance and use by the company, made a completed sale and rendered the mortgage and the note and collateral agreement binding obligations in favor of complainant, that by discharging and releasing the same defendant became liable to complainant for the full amount of his debt.</p> <p>2. Same — Equity—Necessary Parties.</p> <p>To a suit in equity by complainant to recover his debt from defendant as trustee, the steamship company was not a necessary nor proper party, having been discharged by the release from any liability over to defendant.</p>

<p>Habeas Corpus.</p>

<p>On Motion for an Injunction.</p>

<p>1. Corporations — -Actions by Stockholder Against Corporation.Parties.</p> <p>To a suit by a stockholder of a holding corporation which holds all oí the stock of certain street railway companies against such holding company for relief against its action in leasing the property of the street railway companies, and in taking other action alleged to have been without authority, and to have deprived complainant of his right to share ratably with other stockholders the entire net earnings of the street railway companies, the latter companies are not necessary parties; no question of their internal management being involved.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 719.]</p> <p>2. Same — Suit by Stockholder — Jurisdiction.</p> <p>Such a suit is not one relating to the internal management of the defendant corporation which can only be brought in the state of its incorporation, but is one to protect the individual rights of complainant, and may be maintained in any court having jurisdiction over the defendant.</p> <p>3. Equity — Pleading—Defense of Laches.</p> <p>Where a suit in equity is brought within the time fixed by the analogous statute of limitations, the bill is not demurrable for laches because of delay aioue, hut such defense, if not apparent on the face of the bill from other circumstances than such delay, must be made by answer setting up other facts'which make the doctrine of laches applicable.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 498.]</p> <p>4. Same — Right of Action — Form of Relief.</p> <p>A complainant is not debarred from all relief in equity against a voidable transaction by which others besides himself are affected, and in which they have acquiesced because he does not seek to have such transaction avoided as to them, but asks only equitable compensation for the injury resulting to himself.</p>

<p>1. Bankruptcy — Corporations Subject to Adjudication — “Engaged in Manueacturing.”</p> <p>In the phrase “engaged in manufacturing,’’ as used in Bankr. Act July 1, 1898, c. 543, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], the word ‘'engaged” moans occupied, employed, busy, and the word “manufacturing” means the making of an article, either by hand or maciiinery, into a new form capable of being used in ordinary life, or the fashioning of raw materials into a change of form for use; and a corporation which, although authorized to manufacture an article of commerce, lias not the means for such manufacture, and has taken no step in the process of manufacturing, is not engaged in any proper sense In the manufacturing of such article, and is not subject to adjudication as an involuntary bankrupt under said section.</p> <p>[I3d. Note. — What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. O. A. 4.]</p> <p>2. Same.</p> <p>A corporation incorporated for the sole purpose of making and selling cement, which has not completed its buildings nor its railroad from them to the marl beds from which it was to obtain its materials, nor in fact acquired all of the right of way therefor, and which has taken no step In the process of manufacture, is not subject to involuntary proceedings in bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [IT. S. Comp. St. 1901, o. 3423], as a corporation engaged in manufacturing.</p>

<p>In Admiralty. On exceptions by both parties to commissioner’s report on reference pursuant to decision reported in 146 Fed. 612.</p>

<p>Bankruptcy — Voidable Preferences — Payments to Creditors.</p> <p>Evidence considered, and held to show that a bankrupt at the time he made payments to two creditors within four months prior to his bankruptcy knew himself to be hopelessly insolvent and intended such payments as preferences; that, when the first of such payments was made, the creditor receiving it did not have knowledge of the insolvency, nor reasonable cause to believe that a preference was intended, so as to render it voidable under Bankr. Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended February 5, 1903 (32 Stat. 799, c. 487 [ü. S. Comp. St. Supp. 1905, p. 689]), but that as to all subsequent payments which were made after the debtor had repeatedly made defaults and given checks, which were protested, both creditors were put upon inquiry, which, if made, would have disclosed the insolvency, and had reasonable cause to believe that preferences were intended.</p>

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

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

<p>BANKBurrcT — JumsMCTiosr or Court — Summary Seizure ow Property,</p> <p>While a court of bankruptcy possesses the power to summarily seize property in the possession of third persons, but alleged to belong to the estate of a bankrupt, when necessary for the preservation of the estate, such power should be exercised only upon a petition by creditors definitely setting forth all the facts which show the bankrupt’s ownership and the necessity for such action, and on the giving of a bond to protect the rights of the person in possession; and when such person sets up an adverse claim to the property which is not merely colorable the bankruptcy court is without jurisdiction to adjudicate the same over his objection, but must leave it to be determined in a plenary suit.</p>

<p>2. Bankruptcy — V oí dable Preference — Date of Filing Petition.</p> <p>Where a petition in involuntary bankruptcy was insufficient on its face to authorize the court to make an adjudication, because it showed less than the required number of legally qualified petitioners, but other creditors afterward joined therein, the four months’ period within which transfers of property may be avoided as preferential, under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], or as fraudulent, under section 67e as amended by Act Feb. 5, 1903, c. 487, § 16, 32 Stat. 800 [U. S. Comp. St. Supp. 1905, p. 690], runs back from the time when such joinder made the petition sufficient, which for such purpose must be considered as the date of filing.</p> <p>2. Same.</p> <p>Under the law of New Jersey, it is not unlawful for an insolvent debtor to prefer a creditor by a transfer of property, if made in good faith and for an adequate consideration, and the trustee of a bankrupt cannot set aside such a transfer made by him under Bankr. Act July 1, 1898, c. 541, § 70, 30 Stat. 566 [U. S. Comp. St. 1901, p. 345], which gives the trustee the right to avoid any transfer which might have been avoided by creditors.</p>

<p>In Equity. On final hearing on bill, answer, replication, and proofs.</p>

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

<p>1. Indians — Reservations—Water Courses — Ft,ow of Water — Api-iioprtation.</p> <p>An Indian reservation on public lands is property of the United States within the rule that the government, as the owner of lands bordering on a public stream, is of right entitled to the continued flow of the waters of such stream so far at least as may be necessary for the beneficial use of the property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indians, § 28.]</p> <p>2. Waters asd Water Courses — Pun r,io Rands — Appropriation of Water.</p> <p>Under Rev. St. § 2339 [U. S. Comp. St. 1901, p. 1437], as long as land belongs to the United States as a part of the public domain, the water flowing over the same in nonnavigable streams is subject to appropriation for the purposes recognized and acknowledged by the local laws, customs, or decisions of the courts, and the mere fact that a stream traversing such public lands may border at some point or for some space on a specific territory reserved by the government for some particular governmental use or purpose will not of itself destroy the public character of its waters, which remain subject to appropriation the same as though the reserve had not been created, unless by the creation thereof there was a consequent reservation of the waters also for use in connection therewith.</p> <p>& Indians — Indian Reservation — Waters.</p> <p>The creation by the government of an Indian reservation on the public lands bordering on a nonnavigable stream operates as a reservation of so much of the waters of such stream as may he required by the proper needs of the government for use on the reservation for the benefit of the Indians thereon; but any surplus remains subject to appropriation by others in accordance with the local laws and customs, and such right includes the right to erect necessary dams, although they may rest in part on the land of the reservation.</p> <p>4. Same — Blackfeet Reservation in Montana — Water Rights.</p> <p>The Blackfeet Indian reservation was created by a convention with the Indians, as shown by Act May 1, 1888, c. 213, 25 Stat. 113-129, by which the land was assigned to them for their exclusive use and occupancy that they might be assured of permanent homes, and with the design that they should ultimately take allotments in severalty. The reservation is in part bounded by the center line of Birch creek, a considerable stream, and while a considerable part of the land is capable of being used for farming, it is arid, and requires irrigation. Held, that the creation of the reservation operated as a reservation of so much of the waters of the creek as might at any time in the future be required and could be utilized in carrying out the purposes of the treaty; that, so long as the government was administering the affairs of the Indians, it had the right to determine as an administrative question the quantity'of water required and to take the same when and where it deemed necessary, the rights of any others to appropriate water being subject to such paramount right.</p> <p>5. Waters and Water Courses — Water Eights of United States — Estop-pel. i</p> <p>The action of tli'e.Secretary of the Interior or other departmental officer of the government in approving the maps of location of irrigation canals or ditches over public lands or reservations, as provided for by Act March 8, 1891, c. 561, §§ 18, 19, 26 Stat. 1101, 1102 [U. S. Comp. St. 1901, pp. 1570, 1571], cannot give the companies constructing the same any right to appropriate. the waters of a stream, nor estop the United States to assert a priority of right thereto, where it exists, against either such companies or users who may be supplied by them.</p> <p>6. Same — Suit by United States — Parties.</p> <p>Any invasion of the prior right of the United States to the waters of a stream is a trespass, and the government may maintain a suit in equity to protect its right against any one or all of such trespassers.</p>

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

In Equity. T. Moore Jackson, having assets consisting of bonds, town lots, and other real estate, stocks, notes, choses in action, and personal property aggregating, in estimated value, to about… Held: and to convert said estate, real and personal, into money, and pay same to creditors. 'Phis agreement, carefully drawn, contains many other stipulations and matters of detail not necessary to refer to.

In Equity. Suit for injunction. On demurrer to bill. The bill charges: That complainant is a railway corporation created by and existing under the laws of the states of Iowa and Illinois, engaged in operating lines of railroad and conducting a business as a common carrier in and through the states of Illinois, lovra, Minnesota, South Dakota, Nebraska, Colorado, Missouri, Kansas, Tennessee, Arkansas, Louisiana, and Oklahoma and Indian Territories.

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

<p>1. Bankruptcy — Voidable Preferences — Intent to Prefer.</p> <p>In determining the question of a bankrupt’s insolvency at the time he made a payment to a creditor, as bearing upon the question of his intent to give a preference, his property should be taken at a fair valuation, and not at the amount it afterward brought when sold at auction by the trustee in bankruptcy.</p> <p>2. Same.</p> <p>A bankrupt, at the time he made a partial payment on a note to a bank which he had signed as surety owned and conducted a large store, was director and president of a manufacturing concern and a national bank. He was a man of good reputation and credit, and at his own estimate the value of his property as a going concern was several thousand dollars more than his indebtedness. His bankruptcy shortly after was brought chiefly if not entirely through the insolvency of the manufacturing company caused by the burning of its plant, which was at the time uninsured, through default of a lessee. Held, that under such circumstances the payment could not be found to have been made with intent to give a preference such as would render it voidable, and require its surrender under Bankr. Act July 1, 1898, c. 541, § 57g, 30 Stat. 560 [U. S. Oomp. St 1901, p. 3443!, as amended by Act Feb. 5, 1903, e. 487, § 12, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, p. 689], before the creditor could prove the remainder of its claim.</p>

In Equity. On demurrer to amended bill; The complainant telephone company filed a bill, complaining: That William Kent and a great number of other defendants, electrical workers, members of a labor union, had formed and organized a conspiracy to tie up the telephone and telegraph business of the plaintiff and of the Central District & Printing Telegraph Company; that in pursuance of the said conspiracy they all quit work and organized a strike; that the company employed)…

In Equity. Motion by complainant for preliminary injunction in suit to restrain acts alleged to constitute unfair competition in trade.

<p>On Information for Violation of Safety Appliance Act.</p> <p>The Interstate Commerce Commission lodged with the United States attorney information showing violations of the safety appliance law by the Chicago, Burlington & Quincy Railway Company. There were two petitions; one alleging the hauling of a car with a defective coupler, and one alleging the hauling of two cars with defective couplers and one car with missing handholds. The petitions were consolidated. Defendant made general denial as to all the counts, and at the trial offered evidence to show due diligence in inspection and repair of the cars alleged to be defective.</p>

<p>1. Railroads — Safety Appliance Act — Construction.</p> <p>Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St 1901, p. 3174], which makes “unlawful” certain acts by common carriers engaged in interstate commerce by railroad, and’ provides -that for a violation of its provisions such a carrier shall be liable to a penalty, to be recovered in a suit to be brought for the purpose, is a criminal statute creating public offenses, and is to be construed in accordance with the rules governing the construction of such statutes, and trials thereunder are governed by the rules of criminal procedure and evidence; the defendant being presumed innocent until every element necessary to constitute the offense has been proved beyond a reasonable doubt.</p> <p>[Ed. Note. — Duty of railroad companies to furnish safe appliances, see-note to Eulton v. Ballard, 37 O. O. A. 8.]</p> <p>2. Save — Violation of Act — Elements of Offense.</p> <p>A railroad company is not guilty of a violation of the provisions of Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St 1901, p. 3174], by using on its line in moving interstate traffic an engine or car not equipped as therein required, if it was properly so equipped at the beginning of its interstate journey, but became defective during such journey, unless such company failed to supply the deficiency at the first opportunity after it was actually discovered, or should have been discovered by the use of the utmost care that a highly prudent man would use under the circumstances of the case.</p> <p>3. Same.</p> <p>To entitle the United States to recover the prescribed penalty for a violation of Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Oomp. St. 1901, p. 3174], by using a car not equipped as required, it must prove beyond a reasonable doubt the following facts: First, that the car was used in hauling interstate traffic; second, that when so used it was either not equipped or provided with the required safety appliances at all, or else that some part of those appliances had become inoperative; and, third, if those appliances were all in good order'and condition when the car was originally started on its interstate journey, and afterwards became defective in transit, that the defects had respectively been either in fact discovered by the carrier, or else that they could have been discovered and corrected by it by the exercise of the utmost degree of care and diligence which, could be expected at the hands of a highly prudent man under similar circumstances.</p> <p>4 Same.</p> <p>Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], while in terms it requires only that engines and cars shall be “equipped” with the required appliances, must be construed to mean equipment which, if there, is capable of being operated, and that it shall be kept in good order and repair; but it cannot be construed to require that the equipment shall in fact he efficiently operated by those in charge of the train.</p> <p>5. Same.</p> <p>In case of an empty car being hauled in an interstate train, in order to subject the carrier to the penalty prescribed for violation of Safely Appliance Act March 2, 1803, c. 196, 27 Stat. 531 LU. S. Comp. St. 1001, p. 3174], for a failure to have such car equipped with the required safety appliances, it must be shown that the car was used or intended to be used in moving interstate traffic.</p>

<p>Bah boads — Safety Am»acs Act — Usjs or Defective Cab.</p> <p>A car owned by defendant railroad company came into its yards loaded with interstate traille, with one oí the handholds missing. It was moved by defendant to other yards, and then for delivery to a connecting carrier, si ill in the same condiiion. Defendant had facilities for repairing the car at its yards, and during the time made two inspections of it, but did not discover the defect Hold, that it failed to exorcise the measure of care required by ¡Safely Appliance Act March 2, 1893, c. 196, 27 Stat. 531 I íí. S. Comp. St. 1901, p. 31711, and was subject to the penalty prescribed for its violation.</p> <p>I Ed. Note. — Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 O. C. A. 8.]</p>

<p>Railroads — Safett Appliance Act — Use of Defective Cab.</p> <p>A car of defendant railroad company was found in its yards in Louisville loaded with pig iron which had been shipped from another state, and with the chain forming a part of the coupler on one end broken, rendering the device inoperative. The defect was discovered by defendant, but could not be repaired where the car was without blocking Ihe entire business of the yards, and the place of business of the consignee of the iron was only four blocks distant and nearer than the repair track, and defendant therefore took the car to the consignee, where it was unloaded, and from there to the repair track, where it was repaired. It did not appear what company had brought the car to the yards. Held, that defendant took the most practicable course after discovering the defect, and was not guilty of a violation of Safety Appliance Act March 2, 1893, c. 196, 27 Stat 531 [U. S. Comp. St. 1901,' p. 3174],</p> <p>[Ed. Note. — fluty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 87 O, O. A. 8.]</p>

<p>On Rule to Set Aside Service of Summons.</p>

<p>Salvage — Rescue of Stbanded Launch — Amount of Compensation.</p> <p>A naphtha launch, 60 feet long and worth $6,500, became stranded on a jetty in the Delaware river; the rocks piercing holes in her bottom under the engine, where they could not be reached. All of her apparel and the other property aboard was taken off, and she was left alone with her anchors out. On the next day she was found by the tug Crawford, apparently abandoned and in danger of further injury, and the tug undertook her rescue. She was hauled off the rocks to the mud flats near by, and an effort made to pump her out and repair her, so she could be towed without sinking. This was found impossible, and another tug was procured, and she was towed to port between the two. After commencing the work the tug was warned by persons in a boat not to touch the launch, but had no reason to suppose from their language that such persons had any interest in her. The tug devoted eight days to the work. Melé, that it was a salvage service, and under the evidence was performed with reasonable skill and care, and that the tug was not liable for injuries resulting to the launch, but that, in view of the fact that there was no danger connected with the work, an award of $750 therefor was sufficient, with a further allowance of $100 for the helping tug.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Salvage, |§ 17, . 72-74.</p> <p>Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

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

<p>In Equity. Suit to quiet title to unoccupied real estate. Heard on demurrer to an amended bill of complaint.</p>

<p>1. Bankeuptcy — Partnership—Moktoage to Secure Debt oe Pabtneb.</p> <p>A mortgage executed by an insolvent partnership on Its property, within four months prior to its bankruptcy, to secure the individual debt of a partner, is voidable as against partnership creditors.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 6, Bankruptcy, § 282.}</p> <p>2. Same — Provable Debts — Claim of Pabtneb.</p> <p>The amount contributed by a partner to the capital of a partnership cannot on the bankruptcy of the firm be proved as a debt entitled to share ratably with general creditors.</p>

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

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

<p>Appeat, and Ereob — Recobd—AtmiOEiziNG Usk off Obigisal Papkes.</p> <p>• Clause 4 of rule 14 of the Circuit Courts of Appeals (150 Fed. xxix, 79 C. C. A. xxix), which provides that “whenever it shall be necessary or proper in the opinion of the presiding judge in any Circuit or District Court that original papers of any kind should bo inspected in this court upon writ of error or appeal, such presiding judge may make such rule or order for the safe-keeping, transporting and return of such original papers as to Mm may seem proper,” fixes the limit within which the presiding judge may act In such matter and he is not authorized to make an order for incorporating original papers introduced in evidence in the record on appeal, instead of copies, merely for the purpose of saving expense to the parties, nor unless in his opinion an inspection of the originals by the appellate court, as distinguished from authenticated copies, is either necessary or would be useful or aidful in the determination of the appeal.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 3, Appeal and Error, § 2639.]</p>

<p>In Bankruptcy. On review of decision of referee denying exemptions.</p>

Violation of Revenue Law. The defendant, a corporation, was indicted by the grand .Jury of the United States for the Eastern District of Illinois, on three counts, charging that It did on three, different occasions “ship, transport, and. remove, and did cause to be shipped, transported, and removed, a certain quantity of spirituous liquors, to wit, fifteen (15) gallons of whisky in a certain package under another name and brand than that known to the trade as designating the…

In Bankruptcy. On petition for review of order made by Dexter, referee, disallowing in part the claim of Bruno Klemm. The bankrupt was adjudicated in July, 1905, pursuant to an Involuntary petition filed on the preceding January 20th. On November 3, 1901, Klemm, a creditor residing in Germany, obtained a lien against certain German real estate belonging to Pollmann.

<p>In Admiralty. Suit by stevedore for personal injuries. On final hearing.</p>

<p>1. CONTRACTS — CONSTRUCTION—QlJISSTTONS FOB COTTBT AND JtTBY.</p> <p>As a general proposition, where the issue is one of fact as to the performance of a contract, it is the province of the jury to pass upon it; but, before the question of compliance or nottcompliance arises, there must be a determination of the terms of the contract itself, and where it is in writing showing the whole of the agreement, and its terms are capable of intelligent interpretation, its construction is for the court, and not for tlie jury.</p> <p>[Ed. Note. — -For eases in point, see Cent, Dig. vol. II, Contracts, § 707.]</p> <p>2, Sams — Construction of Contract,</p> <p>In accepting an offer made by plaintiff to furnish a quantity of cotton, defendant wrote as follows: “We understand this cotton is to be full 1 ⅜ inch staple, same as the staple in the 25 líale sample lot you shipped to us. the grade to be average strict middling, nothing middling. We desire that you bo particular in the selection of this cotton as nothing- less than full 1⅜ inch, same type as the sample lot will be suitable to us.” II old, that the contract so made required the cotton sold to be of the same grade as the sample lot of 25 bales, and that, where plaintiff admitted that the cotton shipped thereunder was not of such grade, it could not recover for breach of the contract by defendant in refusing to accept the same.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 48, Sales, § 388.]</p> <p>8. Wbit of Ebbok — Grounds of Review — Pbesebvation—Motion ron Dismissal.</p> <p>A defendant may assign, for error the overruling of a motion to dismiss, made at the close of plaintiff’s evidence, on the ground that there was no issue of fact for submission to the jury, although such motion was not renewed at the conclusion of all the evidence, where the only question in issue under the evidence was the proper construction of a written contract plain in its terms, upon which defendant’s evidence had, and could have, no bearing.</p> <p>McDowell, District Judge, dissenting.</p>

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

<p>Master and Servant-Contract or Employment — Duration or Employment.</p> <p>A verbal contract between the owner of a vessel and a marine engineer for the services of the latter, in which Ids wages were fixed at a stated sum per month, but without any specified term of employment, constituted a hiring at will, and not by the month, and, in the absence of any established usage to the contrary, either party had the right to terminate the employment at any time without notice, and, upon the employe’s discharge, he was entitled to wages only to the time of such discharge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 19.]</p>

<p>Injunction — Restraining Foreign Suit — Court First Obtaining Jurisdiction.</p> <p>Where the parties to a suit and the greater part of the property which is the subject of the litigation are within the jurisdiction of a court, it has power to enjoin the maintenance of a suit in a foreign country between the same parties and involving the same subject-matter, and will do so where it first obtained jurisdiction and all matters between the parties ■ are being fully litigated before it. It is not a ground for the institution of a foreign suit by a defendant, involving the same issues in whole or in part, that complainant’s witnesses refused to answer certain questions on their examination, since the court had full power to compel answers, if proper.</p> <p>[Sd. Note. — For cases in point, .see Cent. Dig. vol. 27, Injunction, § 38.]</p>

<p>Courts — Jurisdiction op Federal Court — Amount in Dispute.</p> <p>Under the rule that the Jurisdiction of a federal court must affirmatively appear from the record1, a bill for the partition of lands does not state a case within the Jurisdiction where it shows the value of complainant’s Interest therein to be less than $2,000.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, § 890.]</p>

<p>Appeals from Orders of Deportation.</p>

<p>On Motion for a New Trial.</p>

<p>Oareiebs — Interstate Commerce — Statute ItEaunAim» Carriage or Live Stock.</p> <p>Act. June 29. 1906, c. 3591, 34 Stat. 607, prohibiting railroad companies transporting live stock on interstate shipments from keeping the same confined in ears continuously for more than 28 hours without unloading the same for feed, water, and rest, is to be strictly construed, and a railroad company, which receives live stock from a connecting carrier after It has already been, continuously confined In cars for more than 28 hours and allows several raore hours to pass before unloading the same, is prima facie guilty of a violation of the statute.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 9, Carriers, §§ 926-928.]</p>

<p>In the Matter of Fees for Marshal’s Services.</p>

<p>1. Shipping — Contract for Carriage of Horses — Liability for Breach.</p> <p>A shipment of a number of horses from Nome to Seattle helé to have been made under a contract made by the parties partly by correspondence and partly by oral conversations, all of which must be taken into account to ascertain its terms, and, as so construed, to have required the shipowner to construct stalls for the horses between decks, and slings for use in rough weather, the failure to provide which rendered the vessel liable for injury to the horses during the voyage.</p> <p>2. Same.</p> <p>Where the terms and conditions upon which horses were to be carried on a vessel had been fully agreed upon by the shipper and vessel owner, a subsequent contract signed when the horses were loaded, at the instance of the carrier, by the shipper’s head teamster without authority from the shipper, and differing materially in its terms from the previous agreement, was void.</p> <p>8. Same — Measure of Damages.</p> <p>A shipper held entitled to recover for property lost during the voyage through the fault of the carrier the value of such property at the place of shipment, together with the freight paid thereon.</p>

<p>In Admiralty. Suit in personam to recover damages from the charterer of a ship for refusal to accept the vessel, or to pay the amount demanded for canceling .the charter party. Hearing on the merits. Decree for respondent.</p>

<p>1. BANKRUPTCY— COMPENSA TION OF STATE RECEIVER — JURISDICTION OF STATE Court to Ai.no w.</p> <p>A state court took possession of the property of a partnership through its receiver in a suit between the partners for a dissolution, and subsequently, in accordance with a stipulation between the parties, it ordered the receiver to return the property which he did. Some time later, and more than four months after the commencement of the partnership suit, bankruptcy proceedings were instituted against the partnership, in which an adjudication was made and a trasteo appointed, who took possession of the property from the bankrupts. Afterwards the receiver made his report to the state court, which approved the same and discharged the receiver, at the same time making him an allowance for his services, which it directed to be certified to the bankruptcy court for payment. Held, that, on the return of the property to the partners, such court lost jurisdiction over the same, or to make any order with respect thereto, and its order was not binding on the bankruptcy court, which had previously succeeded to the possession of the property and full jurisdiction to administer the same.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, SS 821-323.]</p> <p>2. Same — Right of Receiver to Compensation.</p> <p>A court of bankruptcy will not allow compensation to a receiver of a state court, who previous to the bankruptcy had possession of the bankrupt’s estate, for time during which no service was rendered, nor for services which were of no benefit to the estate.</p> <p>3.' Same.</p> <p>A receiver of a state court, who, on turning over the property to the parties pursuant to an order of the court, with their consent withheld certain accounts for collection, the proceeds to be applied on his compensation, but who made no effort to collect the same, is not entitled to return them to a trustee in bankruptcy, subsequently appointed for the owners of the property, after they have become worthless, and to be allowed their' amount from the estate.</p>

<p>1. Shipping — Injury to Stevedore’s Employé — Liability op Vessel.</p> <p>The liability of a vessel for an injury to an employé of a stevedore while working on the vessel does not depend upon any contractual relation between the vessel or owner and the employé, but, where it exists, rests upon the breach of some implied duty to exercise due care as to the condition of the vessel and appliances which might affect the safety of persons necessarily employed to work thereon.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 44, Shipping, §§ 349-351.]</p> <p>2. Same — Unsafe Place to Work.</p> <p>Under a charter party requiring the vessel to be furnished with clear holds for receiving cargo and in every way fitted for the service, it was the owner’s duty to render her safe for workmen to enter her holds, and to there perform the services ordinarily required in loading and' stowing the cargo, and the vessel is liable to a stevedore employed by the charterer for an injury received by him while stowing cargo in a dark water ballast-tank from the falling upon him of loose planks which had in some manner caught in the beams at the top of the tank, probably when it was full of water, and were negligently permitted to remain there.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 44, Shipping, §§ 349-351.]</p>

At Law.. Action to recover real estate. Heard upon a motion to strike out parts of the affirmative defenses pleaded in a separate answer by two of the defendants, and upon a demurrer to each of said defenses.

<p>1. Aliens — Construction or Immigration Act — Executive Order Excluding Laborers.</p> <p>Immigration Act Feb. 20, 1907, c. 1134, § 1, 34 Stat. 898 TU. S. Comp. St. Supp. 1907, p. 389], provides “that whenever the President shall be satisfied that passports issued by any foreign government to its citizens to go to any country other than the United States or to any insular possession of the United States or to the Canal Zone, are being used for the purpose of enabling the holders to come to the continental territory of the United States to the detriment of the labor conditions therein, the President may refuse to permit such citizens of the country issuing such passports to enter the continental territory of the United States from such other country or from such insular possession or from the Canal Slone.” Pursuant to said provision, the President, on March 14, 1907, issued an order that such “citizens of Japan or Korea, to wit, Japanese or Korean laborers, skilled and unskilled, who have received passports to go to Mexico, Canada or Hawaii and come therefrom, be refused permission to enter the continental territory of the United States.” The order further directs the Secretary of Commerce anti Labor to take such measures and to make and enforce such rules and regulations as may be necessary to carry the order into effect Held, that neither such statute nor order applies to aliens who have no passports from their governments, nor does the order authorize the exclusion of Japanese or Korean laborers other than those having passports to go to Mexico, Canada, or Hawaii; that a rule, adopted by the commissioner, that if a Japanese or Korean laborer applies i'or admission and presents no passport it shall be presumed that he did possess a passport limited to Mexico, Canada, or Hawaii, is beyond any power conferred on him by either the act, or the President’s order, and affords no authority for excluding a Japanese or Korean laborer who presented no passport, the natural presumption in such case being that he had none, and there being no basis for the presumption stated in the rule.</p> <p>2. Same — Failube or Master or Vessel to Return Aliens Exclude» — Liability.</p> <p>Tlie master of a vessel is not subject to tbe penalty prescribed by section 19 of Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 [U. S. Comp. St. Supp. 1907, p. 389], for failing to detail! on board his vessel and return thereon to their own country aliens brought by him to the United States and who are not entitled to enter under the law, in a case where such aliens were shipped by him in a foreign port as seamen for the round voyage, and after being refused admission to the United States and returned to his vessel they escaped notwithstanding all reasonable efforts made by him in good faith to detain them, short of putting them in irons.</p>

<p>1. BALSKBUPTOY — VOIDABLE PllE!EIIEHCES — LIABILITY OP TOWNSHIP TO SUIT.</p> <p>A trustee in bankruptcy may maintain a suit against a township or its trustees antler Bankr. Act July 1, 1898, c. Sil, § 60b, 30 Slat. 562 [U. S. Comp. “>t. 1901, p. 3445], as amended by Act Feb. 5, 1903, e. 487, § 13, 32 Slat, 79!) [U. S. Comp. iH. Supp. 1905, p. 683], to recover a preferential payment received on behalf of the township under such circumstances as to render it voidable under said section.</p> <p>2, Sams — Suit by Trustee to Recover Preference— Sotfioxeiscy of Bull.</p> <p>A bill by a trustee in bankruptcy to recover a preference under Bankr. Act July 3, 1898, c. 541, § 60b [as amended by Act Feb. o, .1903, c. 487, 32 Stst. 799 (U. S. Comp. St. Supp. 1905, p. 689)3, must contain four essential allegations, viz.: (3.) That the bankrupt was insolvent when the alleged preference was given; (2) that it was within four months prior to the bankruptcy; (3) that the effect of the enforcement of the judgment or- transfer will be to enable the defendant to obtain a greater percentage of his debt than any other creditor of the same class; and (4) that defendant had reasonable grounds to believe that a preference was intended. The omission of any one of such allegations renders the bill demur-rable.</p>

At Law. On demurrer to complaint and motion to strike out paragraph. This is an action for the recovery of damages alleged to have been sustained by plaintiff through the refusal on the part of defendant to accept further payments of premium on a life insurance policy issued to the plaintiff, or to further recognize such policy as still of binding force and effect.

<p>1. Courts — Jurisdiction of Federal Courts — Action by Assignee.</p> <p>Where the assignor of a cause of action before the assignment could have prosecuted the action in a federal Circuit Court, the assignee, if the requisite diversity of citizenship exists, can prosecute the action in such court in the district of which he is a resident or in that of the defendant, and in the former case it is not required that the assignor should have also been a resident of the same district so that he might have brought suit therein.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 865-874.]</p> <p>2. Removal of Causes — Separable Controversy.</p> <p>An action to recover the price of property sold, brought against the original purchasers and one to whom they assigned their contract, who assumed payment and to whom the property was delivered, presents a separable controversy as to the assignee, who may remove the same into a federal court, where the requisite jurisdictional facts appear, regardless of the citizenship of the other defendants. o</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 94-99.</p> <p>. Removal of causes, separable controversy, see notes to Robbins v. Ellen-bogen, 18 C. C. A. 86; Meeke v. Valleytown Mineral Co., 35 C. C. A. 155.]</p>

<p>L Maritime Liens — Statutory Liens — Supplies Furnished to Domestic Yessels.</p> <p>A lien on a domestic vessel for supplies furnished in her home port, given by Laws N. Y. 1897, pp. 526, 527, c. 418, §§ 30-32, as amended by Laws 1904, p. 494, c. 246, may be enforced in a federal court; but such lien will not attach in the absence of proof that credit was given to the vessel, and the rule is not altered by the fact that the vessel was under charter or in the possession of a prospective purchaser.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 34, Maritime Liens, §§ 30, 111.</p> <p>For supplies and services, presumption as to credit to vessel, see note to The George Dumois, 15 C. C. A. 679.]</p> <p>2. Same — Supplies Furnished on Credit op Vessel — Evidence.</p> <p>The testimony of one furnishing supplies for a vessel in her home port that they were furnished on the credit of the vessel is not of controlling weight, unless it is corroborated by other competent evidence; nor is the fact that they were charged on the books against the purchaser and the vessel of great weight.</p> <p>3. Same — Burden op Proof.</p> <p>There is no presumption that the supplies furnished to a vessel on order of a charterer at its place of residence were so furnished on the credit of the vessel; but such fact must be affirmatively proved by evidence showing that tnere was a mutual understanding to that effect.</p> <p>4. Same — Evidence Considered.</p> <p>Libelants furnished supplies to vessels on the orders of a contracting corporation of the same port engaged in dredging work to which the vessels were chartered for the season under charters requiring the charterer to furnish all supplies and to return the vessels free from liens. It did not appear that libelants knew of the charters or made any inquiry In respect to the ownership of the vessels. The supplies were charged on the books to the corporation and the vessel to which they were furnished, and libelants testified that they were furnished on the credit of the vessels. From time to time they settled with the charterer, sometimes taking its notes for the balance due. The vessels were domestic vessels registered in the same port. The charterer having been adjudged bankrupt, libelants filed claims for liens under Laws N. Y. 1897, pp. 526, 527, c. 418, §§ 30-32, as amended by Laws 1904, p. 494, c. 246, and brought suit to enforce such liens. Held,, that the evidence was not sufficient to show a mutual agreement or understanding pledging the credit of the vessels, nor to entitle libelants to a lien thereon.</p>

<p>1. TOWAGE — INJURY TO TOW — MEASURE OF DAMAGES.</p> <p>Under a decree awarding damages against a tug for negligent Injury to tier tow, an allowance of an item of expense for piling water-logged lumber at double tbe rate charged for piling dry lumber sustained; it being shown that such charge was customary.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 38.]</p> <p>2. Same — Loss of Cargo.</p> <p>The measure of damages recoverable from a tug for cargo of the tow lost through the tug’s negligence is the market value of such cargo at the port of shipment, together with the carrying expenses incurred.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 38.]</p> <p>3. Admiralty — Finding of Commissioner — Review.</p> <p>A finding of a commissioner on a question of fact, based on conflicting evidence, will not be disturbed, unless obviously erroneous.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 770.]</p> <p>4. Evidence — Value of Vessel — Sale Price of Similar Vessels.</p> <p>Upon an issue as to the value of a barge lost through the negligence of a towing tug, evidence to show the selling price of other similar vessels „ is inadmissible.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 267.]</p>

In Equity. On motion to require master to file report. An order of reference was made in this case against the objection of the complainant. The substance of the order was that the master should take the testimony, and make findings of fact, and report the same to the court.

<p>In Bankruptcy. On motion to confirm report of special master recommending tiie bankrupt’s discharge.</p>

<p>In Equity. On motion to set aside default and for leave to file answer.</p>

<p>Bankruptcy — -Time fob Proving Debts — Claim Liquidated by Litigation.</p> <p>Where a claimant of property which was in the possession of a bankrupt at the time of his bankruptcy was defeated after litigation in the court of bankruptcy on the ground that the transaction by which the property was delivered to the bankrupt constituted a sale which passed the title, he may prove his claim for the purchase price against the estate, although more than a year has elapsed since the adjudication as one liquidated by litigation within the meaning of Bankr. Act July 1, 1898, a 541, § 57n, 30 Stat 561 [U. S. Comp. St. 1901, p. 3444].</p>

<p>BANKRUPTCY — XNVOr.TTNTARY PROCEEDINGS — BANKING CORPORATION.</p> <p>Tile provision of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423J, which excludes from debtors subject to proceedings In involuntary bankruptcy “banks incorporated under state or territorial laws,” applies to a corporation organized for the purpose of carrying on a banking business under the general incorporation statutes of a state which had no special laws relating to banking corporations.</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 O. O. A. 4.J</p>

<p>1. Witnesses — Competency—Knowledge or Means ce Knowledge oe Facts.</p> <p>A clerk in the office of a district foreman of a telephone company is not, from the fact of his position alone, qualified to testify as to the duties of subforemen, who are under the orders of his chief, on an issue as to whether the chief duty of such subforemen was superintendence, so as to render the company liable to other employes for their negligence under the Massachusetts employers’ liability act (Rev. Laws, e. 106, §§ 7.1-79).</p> <p>IL’d. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 80-87.J</p> <p>8. Master and Servant — Liability eor Negligence oe Superintendent— Massachusetts Statute.</p> <p>The fact that a foreman having charge of a gang of men works with his hands, the same as the rest of the men, for the greater part of the time, or even all of the time, does not necessarily exclude him from being one “whose * ⅜ principal duty is that of superintendence,” within the meaning of the Mai?sachusetts employers’ liability act (Rev. Laws, c. 106, §§ 71-79), for whose negligence, causing an injury to another employe, the master is liable.</p> <p>8. Same — Actton eor Injury to Servant — Questions eor Jury.</p> <p>Plaintiff was a telephone lineman engaged, with others, under a sub-foreman, in stringing new wires. He was upon the cross-arm of one pole holding back two wires, while they were being run over the cross-arm of the next pole. To the end of the wires was tied a rope, and beyond that a piece of insuiated wire. The foreman and others were beyond the next pole pulling the wires over the cross-arm, when he called to plaintiff to “let 1hem come.” Plaintiff did so, and the wires sagged and came in contact with highly charged electric light wires, which ran transversely across the line at a lower level, and ho received a shock which caused Ms injury. There was evidence that the method pursued was not usual nor proper under the circumstances, the plaintiff did not know the position of the light wires, and, because of intervening trees, could not see it distinctly, nor tell whether the insulated wire, the rope, or the hare wires were over the light wires when lie was ordered to slack. Held, that whether he had such knowledge of the situation that he assumed the risk, or was justified in relying on the care of the foreman and obeying the order, or was negligent in doing so, were questions for the jury.</p> <p>11⅞1. Note. — For eases in point, seo Cent. Dig. vol. 34, Master and Servant, §§ 1068-1332.</p> <p>Assumption of rirk incident to employment, see note to Chesapeake & O. It. Go. v. Hennessey, 48 O. G. A. 8M.]</p>

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

The defendant in error was the plaintiff in the court below in an action against the plaintiff in error to recover damages resulting from personal injury. lie alleged in his complaint that, while employed as a car repairer for the plaintiff in error and operating a planing machine driven by a belt, his right arm was broken by the parting of the belt; that the cause of the breaking of the belt was chat it was old. decayed, and defective; that the plaintiff in error had…

<p>1. Damages — Pleading and Proof — Personal Injuries.</p> <p>Under a declaration, in an action for personal injury, which describes the wounds received by plaintiff, evidence is admissible, under the settled rules stated in Chitty on Pleading, 411-414, with respect to injuries not described, but which naturally resulted from such wounds, as affecting the amount of damages recoverable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig.' vol. 15, Damages, §§ 441, 442.]</p> <p>2. Appeal and Error — Reservation of Grounds of Review — Exceptions.</p> <p>An fexception by a defendant to testimony brought out by him on cross-examination of a witness for plaintiff, and a motion to strike out such testimony, are insufficient under the circumstances according to the practice of the federal courts to raise any question for review by the appellate court, where the record does not show that any grounds for either were given or any reason shown why the testimony was improper.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error. § 1141.]</p> <p>8. Trial — Instructions—Construction of Charge as a Whole.</p> <p>In an action by a servant against the master to recover for a personal injury alleged to have been caused by a defective appliance furnished by the defendant, expressions used by the court, In its charge, that, under the circumstances, it was the duty of defendant to furnish and maintain reasonably safe appliances, are not ground for reversal, where the duty of defendant was elsewhere explained as not being absolute, and where at defendant’s request the jury were specifically instructed at the close of the charge that it was the duty of the defendant only to use reasonable and ordinary care.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 46, Trial, §§ 703-717.]</p>

<p>Landlord and TENANT — Negligence -Dan geeous Elevator in Building —Injiiey to Trespasser.</p> <p>Defendants were tbe owners of a building consisting of several floors leased to tenants engaged in tbe manufacture of shoes. There were two stairways reaching to the several floors from different sides of the building, and on another side was a freight elevator, the entrance to which opened on the street. There was no stairway from said entrance, and there was a sign on. the elevator shaft reading, “For freight only.” Plaintiff was a shoe workman, and, seeing a sign on that side of the building that vampers were wanted, asked a teamster the way into the building, and the teamster, who was going up with some leather, took plaintiff with him in the freight elevator. Plaintiff was told to return tbe next day, which he did, going down and coming back with some one who was using the elevator. On the second day, not having been employed, when he wished to go down, there was no one at the elevator, but the door of the shaft was open, and he stepped in upon a trapdoor, which he supposed was the elevator. In a moment the elevator ascended, opening the trapdoor, and plaintiff was caught and injured. By the provisions of the leases, the operation of the elevator was left entirely to the tenants, who kept no one in charge, but each used it when occasion required. It was rarely used except by some one bringing up or taking down, freight. Held, that plaintiff was not in the elevator by invitation of defendants or their tenants, either express or implied, and therefore defendants owed him no duty of c.are, and were not liable for his injury.</p>

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

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

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

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

<p>1. Patents — Infringement— Stamp Canceling Machines.</p> <p>The Laass and Hey patent. No. 388,366, and the Hey patent, No. 632,-527, for stamp canceling machines of the type in which the letter actuates the printing mechanism, construed, and held not infringed.</p> <p>2. Same.</p> <p>Bates v. Keith, 84 Fed. 1014, 28 C. C. A. 638, as to implements of universal use, applied, and decision of the Circuit Court of Appeals for the Second Circuit in Groth v. International Postal Co., 61 Fed. 284, 288, 9 O. C. A. 507, followed.</p>

<p>PATENTS — ANTICIPATION—BOTTLE STOPPEBS.</p> <p>Tlio Weissenthanner patent, No. 801,281, for a sheet metal stopper for bottles, etc., having a securing flange provided with a tongue, and being weakened by slits adjacent to said tongue so that it may readily be ruptured and removed by means of the tongue, is void for lack of novelty and Invention, having been anticipated by the Galleson patent, No. 708,528; the two devices differing, if at all, only in the degree to which the slits are extended.</p>

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

<p>In Admiralty. Suit for personal injuries. On final hearing.</p>

<p>1. Shipping — Injury op Stevedore — Liability op Vessel.</p> <p>The owners of a vessel owe a personal duty to stevedores employed to load or unload the same to provide reasonable security against injury and also to warn them of any latent danger caused by the vessel for which the latter is responsible.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 350.}</p> <p>2. Same — Defective Construction of Vessel.</p> <p>While libelants were working as stevedores in the hold of a vessel, the jottom of a skid suspended vertically in the hatchway was accidentally struck', and it fell, causing their injury. Held, that such facts were sufficient to cast the burden upon the vessel to prove that the skid was reasonably well secured at the top, and that a finding by the commissioner that it was not so secured because of the inferior quality of the iron used in the hinges by which it was suspended was sustained by the evidence.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 335.]</p>

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

<p>Bankruptcy — Acts or Bankruptcy — Tbansmb of Property with Intent 'ro Defraud Creditor.</p> <p>Hvidence that an alleged bankrupt, when insolvent within a few days, sold and transferred practically all o-f his property, receiving considerable sums of money, which he wholly fails to account for, together with his claim that he lias neither money nor property remaining, is sufficient to establish an act of bankruptcy by a transfer of property with intent to defraud Ms creditors.</p> <p>¡lid. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ GO - 80.)</p>

<p>In Admiralty. On the intervening petitions of S. P. Blackburn & Co., Staples Coal Company, D. Kahnweiler’s Sons, Almy Water Tube Boiler Company, Bass Point Company, Penobscot Machinery Company, Snow & Nealley Company, Maine Coast. Transportation Company, P. Ahern, C. H. Buck & Co., Thomas F.. Gallagher, Hunter & Brander, W. M. Crosby, and E. & I. K. Stetson.</p>

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

<p>1. Cancellation on Instruments — Insurance Policy — Effect op Death op Insured.</p> <p>A suit in equity cannot be maintained in a federal court for the cancellation of a life insurance policy on the ground that it was obtained by fraud, where the bill is not filed until after the death of the insured.</p> <p>2. Insurance — Action on Policy — Jurisdiction op Equity.</p> <p>The fact that a life insurance policy gives the beneficiaries the option to receive payment in bonds or in cash does not give them the right to a decree for specific performance by delivery of the bonds, so as to render a suit on the policy one of equitable cognizance, nor give the insurer the right to sue in equity for cancellation of the policy after the death of the insured.</p> <p>3. Same — Parties—Action by Executors.</p> <p>Under Gen. St. Kan. 1905, § 4895, which provides that an executor may bring an action without joining with him the person for whose benefit it is prosecuted, executors may sue on a policy of insurance on the life of their testator, payable to his estate, without joining the heirs or legatees, though the policy is at their option payable in bonds, and such bonds are specifically bequeathed by the will.</p> <p>4. Discovery — Inspection op Inanimate Objects.</p> <p>Rev. St. § 724 [U. S. Comp. St. 1901, p. 583], provides only for requiring the production of books or writings in the possession of a party, and does ■not authorize a federal court in an action at law in general to order the production or inspection of inanimate objects.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 16, Discovery, § 108.]</p> <p>5. Dead Bodies — Power to Order Exhumation — Rights op Widow.</p> <p>A court has no power to order the exhumation of a dead body in an action at law to which the widow of the deceased, who has the right to control the body, is not a party.</p> <p>[Ed. Note. — 'For cases in point, see Cent. Dig. vol. 15, Dead Bodies, §§ 1, 2.]</p> <p>6. Discovery — In Equity — Scope op Remedy.</p> <p>A bill of discovery may be maintained in a federal court of equity in aid of a law action either pending or in immediate contemplation.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 16, Discovery, f 9.]</p> <p>7. Same — In Aid ok Defense to Action on Insubance Policy — Exhumation of Body.</p> <p>Whore an action at law ⅛ pending to recover on a life insurance policy shown to have been obtained under circumstances indicating fraud, and one of the defenses is that the insured committed suicide by poison, which would avoid the policy by its terms, a court of equity has power in aid of such defense to order the body to bo exhumed for examination.</p> <p>[Ed. Note. — Suicide as a defense to a life policy, see notes to JEtan Life Ins. Go. v. Florida, 16 G. C. A. 623; Fidelity & Casualty Co. v. Egbert, 28 C. C. A. 281.]</p>

<p>1. Admiralty — Master and Servant — Assumption ot Risk.</p> <p>The doctrine of assumption of risk is applied in admiralty as fully aa in other branches of jurisprudence, notwithstanding the rule that damages will in some cases of concurrent negligence be divided.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 302.]</p> <p>2. Shipping — Injukt op Servant — Defective Appliance on Vessel.</p> <p>Libelant had been employed as fireman on a tug, and was the only person who remained on board at the time of her sale, when she was out of commission and lying at a wharf for repairs. He was told by the new engineer that he might stay in the employment, and remained on the vessel while the repairs were being made. Among the equipment was a ladder used in passing from the tug to the wharf, one rail of which was broken off at the end, so that, when that end was put down, the ladder was likely to fall; but it could be safely used by placing the other end down. Libelant’s attention had been called to the condition of the ladder by the former owner, and he was advised as to the proper manner of using it; but the new owner had no knowledge of the defect. Libelant went on shore one evening, using the ladder, which he left on the wharf. On his return he placed the ladder with the broken end down, and it fell with him, causing his injury. Held, that he assumed the risk of using the ladder in its known condition, and that his injury was due to his own want of care, and the vessel was not liable therefor.</p>

<p>1. Moktgaces — Transfer of Property — Mortgagor as Surety — Right to Compel Foreclosure.</p> <p>An assignee of notes and a mortgage security, who has knowledge of an arrangement between the mortgagor and mortgagee by which a new agreement is substituted for the old, and the mortgagee becomes the owner of the mortgaged property, and, by assuming payment of the mortgage debt, becomes the principal debtor and the mortgagor his surety, is hound to take notice of such changed conditions and to foreclose the mortgage when notice is given by the mortgagor requiring it, under penalty of releasing the latter from liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, § 756.]</p> <p>2. Principal and Surety — Discharge op Surety — Failure to Proceed Against Principal — Waiver.</p> <p>A surety for a debt secured by mortgage who has demanded of the creditor that he foreclose the mortgage loses his right to insist that the failure to comply with such demand until the mortgaged property has become worthless releases him from liability, where, with full knowledge of such failure, he continues for years to join in the renewal of the notes.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 40, Principal and Surety, §§ 366-372.]</p> <p>8. Mortgages — Conveyance of Premises — Assumption of Debt by Grantee • — Discharge of Mortgagor — Suit to Cancel Debt — Defenses.</p> <p>Complainant bought an interest in certain oil leases in Pennsylvania, and gave his notes for the purchase money secured by a mortgag'e on the property. These notes and mortgage were transferred by the mortgagee to defendant bank. Subsequently complainant reconveyed the property, and the mortgagee assumed payment of the notes. Complainant afterward, demanded that defendant foreclose the mortgage, but it was not done, and the notes were renewed from time to time until both defendant and iho mortgagee became Insolvent, and the mortgaged property which had been transferred to others had become worthless. Under the statute of Pennsylvania, a mortgage on a leasehold interest is not valid unless the lease, as well as the mortgage, shall bo recorded, and the leases in question wrere not so recorded. Held, that the invalidity of the mortgage constituted a defense to a suit by complainant for the cancellation of the notes because of defendant’s failure to foreclose.</p> <p>4. Estoppel — Equitable Estoppel — Silence Bespecting Matter of Record.</p> <p>The fact that defendant, with knowledge of the invalidity of the mortgage, induced complainant to enter into another contract and assume a further liability in the belief that the mortgage security was good and would be enforced, did not estop defendant from pleading the invalidity of the mortgage, where no actual fraud was practiced nor misrepresentation made; the means of ascertaining the validity of the mortgage being open to complainant, as well as to defendant</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 19, Estoppel, §§ 285-287.]</p> <p>5. Banks and Banking — Advances by Bank — Implied Agreement fob Interest.</p> <p>Tlie right of a bank to interest on advances made is to be implied, unless the parties to the transaction have otherwise stipulated, or under the circumstances it would be inequitable to exact it, and such right is not lost merely by a failure or refusal to furnish statements of account to the debtor when requested.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, §§ 686-700.]</p>

<p>Post Office — Fraud Orders — Withholding Mail Pending Hearing.</p> <p>The Postmaster General is without authority, on the fixing of a date six weeks in advance for a hearing on the question of the issuance of a fraud order against a person or company, to direct all mail addressed to such person or company to be withheld in the meantime.</p> <p>[Ed. Note. — Nonmailable matter, see note to Timmons v. United States, 80 C. G A. 79.]</p>

<p>1. COLLISION — TOW AND AtSOIIOIIED VESSEL — FAULT AS BETWEEN TUG AND TOW.</p> <p>"Where a tug passed an anchored vessel at a safe distance, while her tow came into collision with it, the burden rests on the tow to establish alleged negligence on the part of the Lug; it being her duty to follow the ■fug and conform to her movements, so long as they do not lead into, danger.</p> <p>1'Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 83.1</p> <p>2. Same — Failube oe Tow to Follow Tug.</p> <p>A dredge, engaged in dredging a new channel in the Delaware river, was anchored at night on the easterly side of such channel, carrying proper lights indicating that vessels should pass to the eastward of her through the old channel, which was still in use and marked by lights. A tug, with a large schooner in low on a hawser 480 feet long, was passing down the river, and, seeing the lights of the dredge, turned to the eastward when half a mile above, and (he tow failing to follow endeavored to attract her attention by her whistle. The tug passed the dredge at a safe, distance, and the tow failing to follow turned almost directly to the eastward, but the tow kept nearly straight ahead and struck the dredge, injuring her and one of the men on board, and drowning another. Held, that the schooner was solely in fault in failing to pay proper attention to her course and to follow the tug, there being a sufficient depth of water in the old channel.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § T8.]</p>

<p>On Motion that Petitioner be Permitted to Pile a Petition for Certificate of Naturalization.</p> <p>The following facts appear from the papers submitted: Guliano came to the United' States in 1891, being then 19 years old. In 1897 he applied for and obtained a certificate of naturalization in the Supreme Court of this state (Kings county). At the time of this application he swore that he was but 16 years of age on arrival, and did this, as he deposes, upon the advice and under the influence of a fellow countryman. The certificate of naturalization thus unlawfully obtained Guliano kept, and presumably used, until 1904, when, 1he illegality being discovered, he surrendered it to a special employé of the Department of Justice. Immediately thereafter, and in February, 1904, he declared his intention to become a citizen in the New York Supreme Court (New York county). In February, 1905, he was indicted in the Circuit Court for this district under Rev. St. §§ 5425, 5428 [IT. S. Comp. St. 1901, pp. 3009. 3(570], and pleaded guilty. Sentence, however, was suspended. On August 14. 1907, he applied for his final papers to the Supreme Court of this state (New York county), and his application was, as shown by the extract from the records, "absolutely denied.-’ He now moves for leave to file another petition in this court.</p>

<p>• In Bankruptcy. On certificate from referee concerning claim of Francis J. Thorn to priority.</p>

<p>Shipping — General Average — General Average Loss.</p> <p>The right to a general average contribution can only arise from a deliberate and intentional act of the master of the vessel or other representative of the joint enterprise in sacrificing a portion of the marine adventure, or incurring an extraordinary expenditure, for the joint benefit of all interests; and an owner of cargo injured by water poured into a burning vessel cannot recover contribution in general average from the vessel where the act was hot done by nor under the direction of the master, but by the fire department of a city acting on its own authority.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. yol. 44, Shipping, §§ 598, 509.</p> <p>General average, see note to Pacific Mail Steamship Co. v. New York H. & R. Mining Co., 20 C. C. A. 357.]</p>

<p>1. CollisioN — Damages Recoverable — Interest.</p> <p>Where the injury received by a vessel in collision, was repaired, Interest is allowable on the damages recovered from the vessel in fault only from the time the cost of the repairs became payable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 284.]</p> <p>2. Same.</p> <p>Interest is not recoverable on demurrage awarded to a vessel for the time she was laid up for repairs after an injury in collision.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 10, Collision, §§ 284, 290.]</p>

<p>Collision — Steamship and Ferryboat Leaving Slip — Mutual Fault.</p> <p>A ferryboat, after giving the starting signal, left her slip on the Philadelphia side of the Delaware river. To the southward of her pier and 60 feet distant was a long covered pier, extending into the river 180 feet beyond the pilot house of the ferryboat, in which the master was stationed when he gave the signal to start. As she started a steamship came past the end of the long pier, about 100 feet distant therefrom; and before tlie ferryboat, which started with the full power of her engines, could he stopped, a collision occurred. Held, that both vessels were in fault; the ferryboat for not starting at sufficiently slow speed to enable the master to avoid collision with any vessel that might be passing up by the end of the long pier, which prevented the master from seeing down the river, and the steamship for passing up so close to the end of such pier without signal or other warning.</p> <p>(Kd. Note. — For cases in point, see Gent. Dig. vol. .10, Collision, §§ 200-202.]</p>

<p>1. Bankruptcy — Adverse Claims — Jurisdiction op Bankruptcy Court.</p> <p>The mere assertion of a claim of title to property adverse to a trustee in bankruptcy, even with an intention to protect it by the usual process of law, will not preclude the bankruptcy court from exercising its power to proceed summarily; but it is only when the evidence indicates that the asserted claim is not false or fraudulent that such court is deprived of jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 6, Bankruptcy, §§ 321-323. .</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey, v. Mosher, 11 C. C. A. 813.]</p> <p>2. Same.</p> <p>The claim of an attorney, who as such collected money for a bankrupt before the bankruptcy, of the right to retain such money and apply it on an indebtedness from the bankrupt to him, is not such an adverse claim of title as to deprive the bankruptcy court of jurisdiction to adjudicate such claim In a summary proceeding therefor by the trustee.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 6, Bankruptcy, §§ 321-</p>

<p>In Bankruptcy. On review of referee’s decision rejecting claim of Max Mayer.</p>

<p>t. Criminal Daw — Review on Writ or Error — Assignments or Error.</p> <p>An assignment of error in a criminal case, based, upon the fact that the jury were permitted to take with them to their room the indictment, on which was indorsed the verdict of the jury on a former trial finding the defendant guilty, cannot be considered by the appellate court, where the matter was not brought to the attention of the trial court until after the verdict was returned.</p> <p>2. Samis — Matters Reviewable — Ruling on Motion tor New Trial.</p> <p>A judgment of conviction in a criminal case will not be reversed by an appellate court because of the overruling of a motion for a new trial based upon the ground that the jury took to their room the indictment, on which was recorded a former conviction of defendant, where such motion and the supporting affidavits were considered and passed upon by the trial court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Daw, § 3071.]</p> <p>3. Same — Evidence—Accomplices Within Rules or Evidence.</p> <p>On the trial of a defendant charged with perjury in giving false testimony in a proceeding for naturalization, of an alien, the applicant for citizenship is not an accomplice in such sense as to require the jury to be cautioned in respect to his testimony, where it does not appear that defendant gave the false testimony at the instigation of such applicant.</p> <p>4. Perjury — Elements of Offense — Federal Statute.</p> <p>On the trial of a defendant charged with a violation of Rev. St. § 5395 [U. S. Comp. St. 1901, p. 3654], which denounces a penalty against one ■who “knowingly swears falsely” in making any oath under any law relating to naturalization, it is sufficient to warrant conviction if defendant knowingly and willfully testified falsely, and it is not necessary that his act should also have been corrupt or malicious.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 39, Perjury, § 1.]</p> <p>5. Same — Instructions.</p> <p>Instructions on the trial of a defendant charged with perjury In naturalization proceedings, under Rev. St. § 5395 [U. S. Comp. St. 1901, p. 3654], considered and approved.</p> <p>[Ed. Note. — For cases in point see Cent Dig. vol. 39, Perjury, §§ 134-138.]</p> <p>6. Criminal Law — False Swearing in Naturalization Proceeding — Jurisdiction oe Offense.</p> <p>A District Court of the United States has jurisdiction of a prosecution, under Kev. St. § 5395 [U. S. Comp. St. 1901, p. 3654], for false-swearing in a naturalization proceeding, notwithstanding the fact that such proceeding was in a state court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 14, Criminal Law, § 170.]</p>

<p>Mines and Minebals — Leases—Action foe Beeach — Sufficiency of Evidence.</p> <p>A judgment in favor of the lessees of certain mine dumps, which they were to work over for mineral on a royalty basis, against the lessor, for an alleged violation of the lease in excluding plaintiffs from the property, held not supported by the evidence, a preponderance of which showed that the work had been abandoned by the lessees because they found it unprofitable.</p>

“The appeal in this case is from an interlocutory order granting an injunction pendente lite.

<p>1. Courts — Federal Courts — Construction or State Statutes.</p> <p>The construction of a statute of a state by its highest court will be followed by the federal courts; but, where such highest court is composed of a number of judges, a construction idaced upon a statute by the opinion of one judge which is not concurred in by a majority is not so binding, but leaves the question to he determined, independently by a federal court.</p> <p>[Ed. Note. — For eases in point, see Cent. Big. vol. 13, Courts, § 957.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Municipal Corporations — Grant op Street Railroad Franchise — California Statute.</p> <p>Civ. Code Cal. § 499, provides that “two lines of street railway, operated under different managements, may be permitted to use the same street, each paying an equal portion for the construction of the tracks and appurtenances used by said railways jointly; but in no case must two lines of street railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively.” Held, that such provision does not deprive the municipal authorities of a city of power to grant to two railways, haying tracks of different width, the right to operate their cars on the same street for a distance not exceeding fiye blocks, each occupying the middle of the street, and each paying an equal portion of the cost of paving between and beside the tracks as required by section 498.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1465.]</p>

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

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

The plaintiff in error was convicted of violation of the clause of section 3894 of the Revised Statutes [U. S. Comp. St. 1901, p. 2659], which provides that no letter, postal card, or circular concerning any lottery shall be carried in the mail or delivered at or through any postoffice or branch thereof.

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

<p>Pleading — Sufficiency op Complaint — Allegation op Satisfaction op Judgment.</p> <p>Where plaintiff deposited money to indemnify his sureties on injunction bonds against loss on account of a judgment rendered against them and plaintiff on such bonds, a complaint to recover such money from the depositary does not state a cause of action, where it alleges merely that the judgment was satisfied on the docket by the clerk of the court on return of an execution issued thereon “fully satisfied”; there being no allegation that the judgment has been in fact paid and satisfied. Nor is such complaint made good by an allegation that the sureties are not liable on such judgment, which is a mere conclusion of law. i</p>

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

At Law. Action in ejectment. Declaration in ejectment in this action was filed in this court at April rules, 1901, an order of survey subsequently directed and on November 13, 1906. in open court, a stipulation was filed by counsel representing the plaintiff and the trustees of the Crozer Land Association, the Houston Coal & Ooke Company, and the Turkey Gap'Coal & Coke Company, whereby it was agreed that the action should be tried at that term as to said parties and as to…

<p>1. Account — Equity—Jurisdiction—Remedy at Law.</p> <p>While an account, even though composed of many items, does not necessarily entitle a litigant to invoke the jurisdiction of equity, yet, the jurisdiction at law and in equity being concurrent, when it is clearly shown that the nature and extent of the dealings have been such as to require an accounting, which would be impracticable for a jury to make, a court of equity will entertain jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1. Account. §§ 62-70.1</p> <p>2. Same.</p> <p>A bill by a depositor against a bank for an accounting states a case cognizable in equity, where it shows that the business was all transacted on the part of complainants by an agent, the transactions covered a period of five years, the deposits aggregated about $2,500,000, and the items involved numbered over 5,000, and where it further alleges that defendant diverted funds from the account and applied them in payment of personal obligations of the agent, and prays for discovery.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Account, §§ 62-70.]</p> <p>3. Same — Discovery.</p> <p>A discovery, sought through interrogatories in a bill for an accounting or other equitable relief, does not belong to the auxiliary jurisdiction exercised by courts of equity in aid of actions at law, but is only incidental to the equitable suit, and is not in such case to be confounded with discovery in its original and strict signification.</p> <p>4. Same — Laches.</p> <p>A bill in equity, filed In a federal court within the time permitted by the state statute of limitations, and which charges actual, positive fraud on the part of defendant, is not demurrable on the ground of laches, because complainant did not sooner discover the fraud.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 237.]</p>

In Equity. On demurrer to bill. G. W. Buck was, on June 13, 1903, adjudged a bankrupt, and on August 22d following defendant Galloway was appointed trustee of bis estate.

In Admiralty. Suit for damage to cargo. Libelants chartered the ship Ninfa (J. A. Marosea & Sons being the owners) for tlie carriage of a cargo of cement and other lawful merchandise from London. England, to the port of Los Angeles, Cal., and Portland, Or. The charter party contained the ordinary warranty that the ship was tight, staunch, and strong, and In every way fit aud seaworthy for the carriage of tlie cargo upon the voyage contemplated.

<p>In Bankruptcy. Proceeding • to review the decision of referee in bankruptcy disallowing the claim of the Robertson Paper Company on a promissory note of $2,500, dated July 25, 1905. ' No payment had been made on said note, and the claim is for the face thereof, with interest.</p>

<p>BANKRUPTCY — PROVABLE CLAIMS — FRAUDULENT NOTES OF CORPORATION.</p> <p>A holder of notes of a bankrupt corporation fraudulently executed by its treasurer without authority or consideration, and which had at once been diverted from the purpose for which they were delivered, held to have failed to sustain the burden of proof resting upon him to show that he was a bona fide purchaser for value to entitle him to their allowance as debts of the estate in bankruptcy.</p>

<p>1. Evidence — Paroi, Evidence — Contracts—Construction.</p> <p>Where a written contract uses a term which, is not self-explanatory as applied to the subject-matter, parol evidence is admissible to show its meaning, including what was said when the contract was made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 2104.]</p> <p>2. ContRacts — Construction—Sams—“Undivided” Bonds — Pledse.</p> <p>Plaintiff and defendants, being interested with others in the construction of a railroad, which was to be paid for in stock and bonds of the company at so much a mile, the interest of each being measured by the amount of money respectively contributed therefor, after such stock and bonds had been received, and the interest of each therein had been definitely determined and agreed upon, and a part of the same distributed, entered into an agreement in writing by which the plaintiff sold and the defendants agreed to buy at 75 cents on the dollar all the bonds which the plaintiff owned, “divided or undivided.” At the time this agreement was executed certain of the said bonds, which had been received on joint account of all the parties interested, had been put into the hands of one of the defendants, in trust to secure outstanding obligations incurred in the construction of the railroad, which obligations, prior to the bringing of the suit, but not until after the execution of the agreement in question, the said defendant had individually paid off. It being practically undisputed that by the expression “undivided bonds,” used in the agreement, the bonds so held in trust were intended to be referred to, the plaintiff was entitled to recover from the defendants the price of his share of them, subject to a deduction and reimbursement of the defendants for a proportionate part of the joint indebtedness for which they stood pledged, without any prior settlement between the parties, or the payment by him of his part of such indebtedness, or the segregation in his favor of a definite number of said bonds; nor did it matter that upon a foreclosure sale of the railroad but 41 cents on the dollar was received for said bonds, which did not pay the amount for which they were, pledged.</p> <p>8. Same — Prohibited Contract — Director or Railroad Interested in Construction — Action for Price of Bonds Growing Out of Such Illegal Contract — Sale of Bonds Not in Esse.</p> <p>The plaintiff, being also interested with the defendants in the construction of an extension of the said railroad, which was to be similarly paid for, was further entitled to recover the price of the bonds which were coming to him as his share of the profits arising therefrom, wdiich could be determined by the jury in this action, without a previous settlement between the parties, by charging up the costs of construction against the amount to be received therefor; nor was this affected by the fact that the plaintiff, as a director of the road, was prohibited by law from being interested in its construction, the action being for the price of the bonds into which the transaction had ripened, and not for the profits arising out of .. it, even though the number of bonds which he was to receive was to be measured thereby; nor was it of any significance that at the time of entering into the agreement of sale the bonds in question had not yet been delivered, it being testified by the plaintiff and others that they were mentioned at the time as intended to be included under the head of “undivided bonds,” and the parties having thus treated them as in posse, if not in esse.</p> <p>4. Partnership — Action by Partner to Recover Interest in. Assets — Form;.</p> <p>Where a partnership has merely to do with a single completed transaction, an action at law may be maintained by one partner against another to recover his share of the profits of the transaction where an accounting is not necessary to ascertain the amount.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Partnership, § 170.]</p> <p>5. New Trial — Grounds—Pleading—Variance—Failure to Object.</p> <p>A variance not objected to during the trial cannot be taken advantage of on a motion for a new trial when of such a character that it did not mislead and could have been obviated by an amendment of the pleadings at the time.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, New Trial, § 38.]</p>

<p>1. Bankruptcy — Defect or Discharge — Liabilities Discharged.</p> <p>Tlie liability of a factor to bis principal for the proceeds of goods consigned to and sold by bim is one dischargeable in bankruptcy, and it is immaterial that be was to receive for bis services a share of the profits of the sales, instead of the usual percentage commission.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 799.]</p> <p>2. Same-Debts Cheated by Fbaud ok Misappbqpeiatiqí'í as Aoekt.</p> <p>In tlie absence of an agreement to the contrary, a principal has the right at any time to retake possession of goods consigned to a factor ©n payment of advances and liens; and where a factor, without legal excuse, refused to return goods on demand of the consignor, his liability therefor is a debt created by his fraud, embezzlement, or misappropriation while acting in a fiduciary capacity, within the meaning of Bankr. Act 1898, c. 541, § 17a (4), 30 Stat. 551 [U. S. Comp. St. 1901, p. 3428], form which he Is not released by a discharge in, bankruptcy; and this rule applies, although by agreement he was to be paid a part of the profits for his services, instead of a commission.</p> <p>[Eld. Note. — For cases In point, see Cent. Dig. vol. 6, Bankruptcy, § 795.]</p> <p>3. Factobs — Conversion by Factor — Refusal to Retubn Goods.</p> <p>A factor -was not legally justified in refusing to return goods consigned to h'im, on demand of the consignor, because of advances made by him thereon which had not been repaid, where the consignor offered to pay such advances on receipt of an Itemized statement of the same, which the factor did not furnish.</p>

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

<p>1. Sales — “Conditional Sale” — Definition-Contract in Question.</p> <p>A conditional sale is one in which the vesting of the title in the purchaser is subject to a condition precedent, or in which its revesting in the seller is subject to a failure of the buyer to comply with a condition subsequent.</p> <p>An agreement that the purchaser will buy and pay for merchandise, that he may sell It in tiie regular course of his business, but that the proceeds shall be applied as a credit or as collateral security to the debt of the vendee at the option of the vendor, and that the latter will sell and deliver the goods on condition that the title to them shall remain in him until the notes and accounts of the vendee are paid in cash, is a valid contract of conditional sale.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1321.</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1408-1410.]</p> <p>2. Same — Option of Purchaser to Pay is Not an Indispensable Element.</p> <p>An option in the purchaser to pay, or to refuse to pay, for the property, is not essential to a conditional sale.</p> <p>3. Same — Permission to Vendee to Sell and to Apply Proceeds to His Debt does Not Render Contract Voidable.</p> <p>A stipulation that the purchaser may sell the merchandise in the regular course of business, and that he shall apply the proceeds to his debt as a credit or as collateral security, at the option of the vendor, does not render such a contract fraudulent or voidable against creditors. It does not make it a chattel mortgage with a secret lien.</p> <p>4. Same — Bankruptcy—Failure to Record.</p> <p>The failure to record a contract of conditional sale renders it voidable by attachment creditors, judgment creditors, and bona fide purchasers only, in Minnesota; and, where there wore no such creditors and purchasers when the petition in bankruptcy was filed, such failure did not render it voidable by the trustee, because he had no better title, in the absence of fraud, than the vendee and Ilia creditors had at the filing of the petition.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1370.]</p> <p>5. Bankruptcy — Section 70a (tí) is Inapplicable to Property Held by the Vendee Under Such Contract’.</p> <p>Section 70a (5) of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 566 ¡TI. ñ. Comp. St. 1901, p. 3451]), is inapplicable to property held by a bankrupt purchaser under such a contract. The “properly which prior to the filing of the petition he could by any means have transferred” is property which he could have transferred lawfully on the same terms that he transfers it by law to the trustee. It does not include property of a third party which ho was authorized to transfer only on condition that he sold it for value, or on condition that he sold it and held the proceeds for its owner.</p> <p>[Ed. Note. -For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 199.)</p> <p>6. Sales — Conditional Sale — Foreign Corporation Statute — ü Contract Void, Title to Unsold Property Still in Vendor.</p> <p>If a contract of conditional sale is void because violative of a statute which permits a foreign corporation to do business in the state only upon certain conditions, and prescribes penalties other than the invalidity of contracts for doing business without a compliance with the conditions, It Is void in every part, and the property in the possession of the vendee under it for which he has not paid remains the property of the vendor.</p> <p>7. Same — Contract op Absolute Sale — Same.</p> <p>If a contract of absolute sale is void for the same reasons, and the property sold remains in the possession of the vendee, who has not paid for it, an implied contract to return it arises, and the property or its value may be restored to the vendor. Pullman’s Palace Car Company v. Central Transportation Co., 171 ü. S. 13S, 151, 18 Sup. Ct. 808, 43 L. Ed. 108.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1420.]</p> <p>8. Corporations — Foreign Corporation Statute of Minnesota — Contracts of Foreign Corporations Doing Business Without Compliance are Not Void.</p> <p>The statute of Minnesota provides that before a foreign corporation of the character of the vendor here shall be authorized to do business in the state, or to acquire or hold property, or to maintain suits in its courts, it shall have a public place of business in the state, shall appoint a resident agent to accept service of process, and, perhaps, shall pay a license fee, and that, if such a corporation does business in the state and fails to comply with these conditions, it shall be subject to a fine of $1,000, and shall not be permitted to maintain any suit or action in the courts of the state. Held: .</p> <p>Contracts innocent or beneficial in themselves, made by foreign corporations while doing business in the state without complying with this statute, were not intended to be and were not made void thereby. The purpose and effect of the statute were to require foreign corporations doing business in the state to subject themselves to the jurisdiction of its courts and to a compliance with the other prescribed conditions, and in case of their failure to do so to refuse to permit them to use those courts to maintain their suits and to impose upon them a penalty of $1,000 for each offense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 2540.]</p> <p>6. Contracts — Illegal Contracts Not Always Void — Exception When That Penalty is Not Prescribed and is Manifestly Not Intended.</p> <p>The general rule that illegal contracts are void is not of universal application.</p> <p>It is qualified by the exception that where a contract is not evil in itself, and its invalidity is not denounced as a penalty for its violation by the express terms of the statute, or by rational implication from the language of the statute which it violates, and that statute prescribes other specific penalties, it is not the province of the courts to do so, and they will not thus affix an additional penalty not intended by the lawmaking power.</p> <p>The true rule is that the court should carefully consider in each case the entire statute which prohibits an act under a penalty, its object, the evil it was enacted to remedy, the effect of holding contracts in violation of it to be void, for the purpose of ascertaining whether or not the Legislature intended to make agreements violative of it void, and if from all these considerations it is manifest that the Legislature had no such intention, such contracts should be sustained and enforced; otherwise, they should be adjudged void.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 681-699.]</p> <p>10. Courts — Federal Courts — Minnesota Statute Not Intended to, and it Does Not, Affect Jurisdiction of Federal Courts.</p> <p>The provision of the Minnesota statute which prohibits unqualified foreign corporations doing business in that state from maintaining suits in its courts, was not intended to, and it does not, restrict or affect the power or duty of the national courts to determine controversies in bankruptcy proceedings or other controversies of which the Constitution and the acts of Congress gave them jurisdiction.</p> <p>The power of the federal courts was not granted by, and It may not be revoked, impaired, or restricted by, any law or act of a state.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. yol. 14, Courts, §§ 795, 796.]</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Action — Trial—Consolidation op Causes — Powers of Federal Courts.</p> <p>Under Rev. St. § 921 [U. S. Comp. St. 1901, p. 685], which authorizes federal courts to consolidate “causes of a like nature or relative to the same question,” a Circuit Court has power in its discretion to consolidate for trial separate actions brought against a railroad company to recover for the death of persons who were killed at the same time and in the same manner.</p> <p>2. Carriers — Liability of Railroad Company for Death of Passengers—</p> <p>Operation of Trains.</p> <p>Three young men traveling together were passengers on a railroad train which approached Knoxville, Tenn., which was their destination, after dark. The trainmen had announced that the next station would he Knoxville, as required by the state statute, but had not called the station, when the train stopped on a narrow trestle in order to make use of a V in turning before entering the city. The next morning the bodies of the young men were found near together under the trestle. Upon the trial of a consolidated action against the railroad company to recover for their deaths, there was evidence that they left the car together, while on the trestle, arid tending to show that.they fell over the edge as they stepped off. Held, that neither the announcement of the name of the next station nor the stopping of the train thereafter before It was reached was negligence, nor was either an Invitation to passengers to alight before the station was called, which imposed on defendant the duty of warning them or rendered it liable for the deaths of plaintiffs’ intestates.</p>

<p>Appeal from the Circuit 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 Southwestern Division of the District of Missouri.</p>

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

<p>On petition for rehearing.</p>

<p>1. Bankruptcy — Provable Claims — Boíalty eor Use oe Patent.</p> <p>Where a claim against a bankrupt for a minimum annual royalty under a license contract for the use of a patent was rejected by the special master as being in the nature of a penally and unenforceable, he was not authorized to allow any sum to the claimant, except on proof that the patent was actually used by the bankrupt and of the reasonable value of such use.</p> <p>2. Same.</p> <p>Disallowance of claim for minimum amount of royalty during life of patent, on ground of illegality, as-being in reality a penalty, approved.</p>

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

<p>1. Patents — Infringement—Tabulating Attachment fob Typewriters.</p> <p>The Gathwright patent, No. 436,916, for a tabulating attachment for typewriters, construed, and held infringed on a motion to punish a defendant for contempt in violating a preliminary injunction restraining it from infringement of such patent.</p> <p>2. Same — Suit foe Infringement — Impounding of Infbinging Articles.</p> <p>A court of equity has power on a preliminary motion in a suit for infringement of a patent, when a prima facie ease is made, to order the marshal or a receiver to take possession of infringing articles in the possession of defendant, and to hold them until a final decree.</p> <p>3. Same — Infeingement—Sale After Expiration of Infringing Article . Made Before.</p> <p>The making of articles which infringe a patent during the existence of the monopoly which is created by that patent is in violation of the patent law, and infringing articles so made during the life of a patent cannot lawfully be sold after its expiration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 360.]</p>

<p>1. Patents — Tnfrtogkmk'mt—Combination Patent.</p> <p>A patent for a combination is not infringed by using one element of such combination as an element of a different combination.</p> <p>• [Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 387.1</p> <p>2. Same — Switcii-Rod.</p> <p>The Elfborg patent, No. 640,456, for an adjustable switch-rod in which an eccentric is used as means for adjusting the length of the rod in a split switch, is not a pioneer patent, but the device shown differs from prior devices only in the specific locking means employed, and, in view' of the narrow construction required by the prior art, the patent is not infringed by the device of the Lee & Moore patent, No. 679,153.</p> <p>3. Same — Change oj? Combination. »</p> <p>A patent for a four-part structure operating in a certain way cannot bo construed to cover a three-part structure in which one of said three parts is a combination of two of the parts of the patented structure, where an entirely different mode of operation is required, and where, when it is attempted to operate the patented device in the same way, it is wholly inoperative.</p>

<p>1. Patents — Infringement—Switch-Rod.</p> <p>The Elfborg patents, No. 768,591 and.No. 768,592, for switch-rod mechanism, construed, and, as limited by the language of their claims and by the prior art, held, not infringed.</p> <p>2. Same — Constbuction of Claims.</p> <p>Where a patentee limited his claims, by the use of the word '“corrugated,” to describe the form of a part, he cannot be heard to say that it should be given a broader construction, as “polygonal”, or “noncircular,” when there was pending in the Patent Office at the same time another application, with .which he would have been thrown into interference if he had used the broader term.</p>

<p>In Bankruptcy. Petition of Barbara Boyle for the reclamation of certain property.</p>

<p>1. Pledges — Validity.</p> <p>The Philadelphia Warehouse Company, being engaged in the business of advancing cash or giving credit to manufacturing and other establishments on the security of a pledge of merchantable commodities, loaned $150,000 to the Diamond State Steel Company on collateral notes of the latter company, taking from it leases of portions of its premises on which personal property intended as security for such notes and their renewals was situated, and pursuant to contract with the steel company appointed a custodian of the leased premises and of the personal property deposited or thereafter to be deposited thereon; the custodian being an employs of the steel company. The custodian duly took possession of the leased premises and placed and continuously maintained thereon in a number of conspicuous positions signs and placards plainly indicating that the warehouse company was the owner of or specially interested in the personal property thereon. Held, that a valid pledge of such personal property was created in favor of the warehouse company which should be enforced against receivers of the steel company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, §§ 34, 35. ¡</p> <p>2 Same — Notice.</p> <p>Due and reasonable care should be observed by a pledgee to negative the existence of ostensible ownership In the pledgor, and to this end such means should be resorted to as fairly to inform or put third persons on inquiry; but the common-law doctrine of pledge does not require the adoption of such means of giving notice to the public as absolutely to insure to all persons dealing with the pledgor knowledge of the existence of the pledge, nor should it be so strained as to shock reason and negative in large measure the validity of pledges fairly made for the accomplishment of useful ends in extensive industrial operations.</p> <p>3. Same.</p> <p>The signs and placards placed by the warehouse company on the leased premises being of such character as to attract the attention of persons of ordinary intelligence and capable of reading and understanding tile English language, and being plainly visible to those visiting the premises and using reasonable care and circumspection, the warehouse company -fully discharged its duty to negative ostensible ownership in the steel company.</p> <p>4. Same.</p> <p>The fact that the steel company had some of its own unpledged property on the leased premises could not, as against reasonable notice to the public afforded by signs and placards, establish ostensible ownership in that company of the pledged property; for, while it might have a tendency to create belief on the part of third persons that the unpledged property on the leased premises was in fact pledged, the effect of such belief, far from causing false credit to be given to the steel company, would tend to deter third persons from extending to that company credit which otherwise it might receive.</p> <p>(Syllabus by the Court.)</p>

<p>1. Fraudulent Conveyances — -Transfer in Fraud or Creditors — Knowledge of Purchaser.</p> <p>The sale by a retail merchant of his entire stock of goods puts the purchaser on inquiry to learn whether the seller is not in financial difficulty, and casts upon him the burden of proving that lie used such means of knowledge as were at hand to ascertain the facts, in order to sustain his title as against creditors of the seller.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, §§ 500, 501.]</p> <p>2. Bankruptcy — Voidable Preference — Recovery by Trustee.</p> <p>A bankrupt within four months prior to his bankruptcy transferred Ms stock of goods to a creditor who held a mortgage thereon, which was void as to the bankrupt's creditors, in satisfaction of the debt. The transfer was made in good faith, both parties supposing the mortgage to he valid, but the bankrupt was insolvent at the time, which fact the creditor could have ascertained by reasonable inquiry. Held, that the transfer constituted a voidable preference, and the trustee in bankruptcy was entitled to recover the property or its proceeds.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. C, Bankruptcy, §§ 250--257.]</p> <p>8. Same — Suit by Trustee to Avoid Preference — Amount Recoverable.</p> <p>In a suit by a trustee in bankruptcy to avoid a preferential transfer of property, where tbe transferee has sold tbe property to as good advantage as tbe trustee could probably bave done, be should not be held to account for more than the amount received therefor.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 466.]</p> <p>4. Same — Equitable Powers oe Court — Protecting Equities op Dependant.</p> <p>In a suit by a trustee in a court of bankruptcy to set aside a voidable preference under Bankr. Act July 1, 1898, c. 541, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445], as amended by Act Peb. 5, 1903, e. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 1907, p. 1031], tbe court has tbe full powers of a court of equity, and may enforce equities of the defendant as against any other creditor who would otherwise be entitled to share in the recovery, but such creditors are not represented by the trustee in such sense that they can be excluded from participating in the fund or property recovered equally with other creditors without being given notice and an opportunity to be heard.</p> <p>[Ed. Note. — Por eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 467.]</p> <p>5. Same.</p> <p>A bankrupt had made a preferential transfer of his stock of merchandise to his largest creditor in payment of his debt and the creditor had sold the same. Such stock comprised all of his property, except certain real estate for which he was largely indebted, and which his wife claimed as a homestead and refused to surrender. She also filed a claim against the estate. The creditors to whom the bankrupt owed the purchase price of such homestead had reserved no lien thereon. The bankrupt also owed a note given in part payment for a worthless patent right. JSeÁd, in a suit brought by the trustee to set aside the transfer, that the equities of the defendant were superior to those of such creditors; that, on accounting for the proceeds of the property received by him after paying the costs and expenses of the bankruptcy proceedings, his own claim was entitled to participate pro rata with those of the remaining creditors in the remainder of the fund.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 531.]</p>

<p>1. Street Railroads — Ordinance Granting Franchise — Power to Repeal.</p> <p>A reservation in an ordinance granting a franchise to a street railroad company, which by its acceptance by the company created a contract, of the power to repeal said ordinance in case of a preach of its conditions by the company, does not authorize the city to repeal the ordinances at its pleasure without assigning any breach, and when there has, in fact, been none.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 50.]</p> <p>2. Cocrts — Jurisdiction op Federal Courts — Federal Question.</p> <p>A suit to restrain the passage of a municipal ordinance repealing a prior ordinance granting a franchise to a street railroad company, which had been accepted by the company, is one involving the question of the impairment of the obligation of a contract in violation of the constitu-tierna] rights of the coinpany, and is within the jurisdiction of a federal court, regardless of the citizenship of the parties.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 821.</p> <p>Jurisdiction in cases involving federal question, see notes to 11 C. C. A. 308 ; 35 C. C. A. 7.]</p> <p>3. CONSTITUTIONAL I¡AW — JUDICIAL POWERS — CONTROLLING LEGISLATIVE ACTION ott Municipality.</p> <p>While a court of equity of the United States may properly enjoin the enforcement of a municipal ordinance which impairs the obligation of a contract in violation of the federal constitution, it has no power to enjoin the passage of such an ordinance, which involves the exercise of legislative discretion.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 10, Constitutional Daw, § 123.]</p>

<p>In Bankruptcy. On motion to dismiss proceedings.</p>

<p>1. Bankruptcy — Involuntary Proceedings — Sufficiency of Petition.</p> <p>Creditors other than the original petitioners may at any time join In a petition in involuntary bankruptcy, and on so joining subsequent to its filing may be reckoned in making up the number of creditors and amount of claims required by the bankruptcy act to support the petition.</p> <p>2. Same — Insolvency. •</p> <p>In determining the issue as to the solvency or insolvency of an alleged bankrupt, all of the property which he owns is to be reckoned in computing the amount of his assets, except such as he may have transferred or concealed in fraud of creditors, but not excluding property which is exempt from execution by the laws of the state.</p> <p>3. Same — Burden of Proof.</p> <p>Where a referee has found that an alleged bankrupt concealed property with intent to hinder, delay, or defraud his creditors, the burden rests upon him to prove his solvency, and it is incumbent on him to clearly show that the aggregate of his property at a fair valuation is sufficient to pay his debts, exclusive of any property so concealed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 137.3</p> <p>4. Same — Petition—Amendment.</p> <p>An allegation in a petition in involuntary bankruptcy that defendant was engaged in trade under a firm name implies that he was not a wage earner nor farmer, and is sufficient to support an amendment expressly alleging such fact.</p> <p>5. Same — Persons Subject to Involuntary Proceedings — Change of Occupation.</p> <p>Where property was acquired and debts contracted by an alleged bankrupt, while engaged in a mercantile business, he is not exempt from bankruptcy proceedings because he subsequently became a wage earner.</p>

<p>Tbade-Marks and Trade-Names — Unfair Competition — Repair Parts fob Machine.</p> <p>The mere making and sale of repair parts for a well-known machine, the patents on which have expired, by other than the patentee and maker of the machine, which also makes and sells such repair parts, is not an act of unfair trade, unless they are put out as the goods of the original patentee, and especially where they are unmarked, while those made by the patentee are marked with its name.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 79.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Dare v. Harper & Bros., 30 C. C. A. 370.]</p>

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

<p>1. Judgment — Correction after Teem — Authority of Court.</p> <p>It is within the power of a court to amend its record of a judgment at a subsequent term to prevent injustice through a mistake or inadvertence of the judge or counsel or the clerk, as by correcting the wording of an order of dismissal which by mistake did not conform to the motion on which it was based.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 594-599.]</p> <p>2. Same — Notice of Motion.</p> <p>It is not a fatal objection to a nunc pro tunc order correcting a judgment on the ground of mistake that the motion therefor was not served as many days before the hearing as required by the rules of court in case of ordinary motions in suits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 622.]</p> <p>S. Bankruptcy — Involuntary Proceedings — Dismissal by Petitioners.</p> <p>The only issues triable in a contested bankruptcy proceeding are those of insolvency and whether the alleged act of bankruptcy has been com-mittecl, and the court is not required to deny a motion by the petitioning creditors for a dismissal of the proceeding, if satisfied that it is made in good faith, because of other issues sought to be raised by the answer and which it has no power to try.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 6, Bankruptcy, § 136.]</p>

The Aachen & Munich Eire Insurance Company, a foreign corporation doing business in Michigan, insured against loss by fire a certain hotel building and furniture therein situated in that state, and owned by a Michigan corporation Known as the “St. Joseph Hotel Company.” This contract of insurance bore, date of July 17, 1897, and covered the risk for one year, unless sooner terminated by cancellation, as provided by the policy.

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

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

<p>Injunction — Preliminary Injunction — Review on Appeal.</p> <p>A preliminary injunction, restraining the enforcement of a state grain inspection law in respect to interstate shipments pending a final hearing as to its constitutionality, held not improvidently granted upon the facts shown, and sustained, without consideration of the case on its merits.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. voi. 27, Injunction, §5 305, 306.]</p>

<p>1. Patents — Infbingement—Knitting Machines.</p> <p>The Hurley patent, No. 572,679, for improvements in. circular knitting machines used for knitting ribbod fabrics which employ two revolving needle cylinders, one above the other, describes as the substantial improvement intended to be covered such a construction of the machine as to enable the finished work to be taken up either above or below the cylinders, and an essential feature of such construction is the making of the two cylinders of the same size and form. As so construed the patent held not infringed by a machine in which the cylinders were not of the same size nor form.</p> <p>2. Same — Cams fob Knitting Machines.</p> <p>The Barratt patent, No. 601,108, for an improved cam for circular knitting machines, strictly construed as required by the prior art, held not infringed.</p>

<p>Patents — Invention—Regtoxatob fob Electric Moto'rs.</p> <p>The Pieper patents, No. 704,099 and No. 721,229, for improvements In electric-motor regulation, are void for lack of invention, the only novel feature being a permanent shunt around the armature in an alternating current motor to control the motor at any speed and maintain a uniform speed, which device had previously been used in direct current motors, and the transfer from one class to the other not involving invention. The second patent is also void for anticipation by the first.</p>

<p>In Equity. On petition for leave to file supplemental bills.</p>

<p>Tbade-Mabks and Trade-Names — Unfair Competition — Imitation or Patented Article.</p> <p>Complainant, as exclusive licensee, manufactured a hose supporter having a rubber button for attachment to the hose which was protected by a patent, and advertised and sold its supporters under the trade-name of “Velvet Grip.” Defendant made and sold wooden buttons or collets intended for similar use, colored in imitation of rubber, and used on hose supporters which were sold by dealers as rubber button supporters, and sometimes as “Velvet Grip” supporters. Held,, that such sales constituí-ed unfair competition, and that defendant was chargeable as a contributor thereto and would be enjoined.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 78-86.</p> <p>Unfair competition, see notes to Seheuer v. Muller, 20 C. G. A. 165; Dare v. Harper & Bros., 80 O. C. A. 376.]</p>

In Admiralty. L,ibel in rein against the Ask and in personam against her owner for breach of contract Libelant was time charterer of the Ask for fojir round trips from North Atlantic ports to the West Indies and/or any Central or South American port (with some trifling exceptions) north of the River Plate.

<p>1. Bankruptcy — InvoiuntaRy Petition — Sufficiency.</p> <p>The statements made in a petition in involuntary bankruptcy in accordance with the form prescribed by the rules in bankruptcy, in which the petitioners “represent” certain facts to be true, are of matters which must necessarily be alleged on hearsay, and do not purport to be of facts to which the petitioners make oath as personal witnesses, and hence the statement in the petition that if is made on information and belief does not add to nor detract from the strength of the allegations made, nor is a statement, in the verification, that affiants believé the matters so alleged on information and belief to be trué, ground for dismissing the petition, although improper in form.</p> <p>% Same — Acts ott Bankbuptcy — Payments Made With Intent to Peeper Geeditoks.</p> <p>A petition in involuntary bankruptcy is not demurrable because the alleged acts of bankruptcy consisted of the making of numerous small payments to creditors by the defendant while insolvent, since the effect of such payments was to give preferences, and such effect must have been known and intended by the debtor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 72-74.]</p>

<p>RANKltVPTOY- -B'EYjS OF REEEBEE — SeBVICES RENDERED ON APPLICATION FOE DISCHARGE.</p> <p>Under Hauler. Act July Í, 1898, as amended in 1809 by adding section 72 (Act Feb. 5, 1003, 32 Stat. 800, c. 487, § 18 [U. S. Comp. St. Supp. 1907, p. 30331), providing that “noiilier the rei'erce nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized and prescribed in this act.” the court has no power to allow special compensation to a referee for services rendered on a reference to him of a contested application for discharge as authorized by general orders In bankruptcy No. 12.</p>

<p>Woods and Fobests — -Forest Reservations — Violation of Regulations.</p> <p>The pasturing of live stock on a forest reservation of tile United States without a permit, in violation of the regulations of the Secretary of the Interior and the Secretary of Agriculture, is punishable as a criminal offense under Act June 4, 1897, c. 2, § 1, 30 Stat. 35 [U. S. Comp. St. 1901, p. 1540], which authorizes such regulations, and prescribes the punishment for their violation.</p>

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

<p>In Bankruptcy. On motion for injunction.</p>

<p>1. Maritime Liens — State Statute Creating Liens — Constitutionality.</p> <p>Where a vessel is used on waters navigable only between different places In the same state, a proceeding in rem to enforce a lien thereon created by a statute of the state may be prosecuted in a state court as authorized by such statute, although, where it is used on waters navigable between any point in that state and any other state or country, a lien for repairs or necessaries, though created by the state statute and not by the general maritime law, is enforceable by a proceeding in rem only in the admiralty courts. Therefore a state statute providing for liens on vessels for work, materials, or necessaries furnished for the same is not unconstitutional because it prescribes a procedure in rem in a state court for the enforcement of such lien, which provision must be construed as applicable only In case of vessels used wholly in domestic waters.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 34, Maritime Liens, § 22. '</p> <p>Created by state laws, see note to The Electron, 21 C. O. A. 21.]</p> <p>2. Same — Repairs on Domestic Vessel — Statutory Lien.</p> <p>Under the New Jersey statute (Act March 20, 1857 [P. L. p. 382]) as amended by Act April 24, 1884 (P. L. p.. 248), which gives a lien on a ves-' sel for repairs made thereon under contract with the owner, a libelant Is entitled to a lien enforceable in a court of admiralty for repairs made in that state on a domestic vessel under charter, where It appears that they were ordered by an authorized agent of the owner, and not by the charterer.</p> <p>[Ed. Note. — -For eases in point, see Cent. Dig. vol. 84, Maritime Liens, § 46.J</p>

<p>1. Courts — Jurisdiction of Federal Court- Ancillary Suit by Receiver.</p> <p>Where a federal court has appointed a receiver for an insolvent corporation, a suit brought by such receiver for the collection of an assessment made by the court on stockholders of the corporation to pay its debts Is ancillary to the main suit, and is cognizable by a federal court, regardless of the citizenship of the parties or the amount in controversy.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 801.</p> <p>Suits by or against receivers of, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. 49.1</p> <p>2, Corporations — Insolvency Proceedings.Oonclusiveness of Orders on Stockholders.</p> <p>An order made by a court of equity in a suit for winding up the affairs of an insolvent corporation levying an assessment on stockholders of the corporation who are indebted on unpaid subscriptions for the payment of the debts of the corporation is within its jurisdiction, and is binding on the stockholders without notice to them.</p> <p>8. Equity — Jurisdiction—Preventing Multiplicity op Suits.</p> <p>A receiver of an insolvent corporation may maintain a suit In equity to collect an assessment made against the stockholders, joining a number of stockholders as defendants, on the ground of preventing a multiplicity of suits, and the inadequacy of the remedy at law, where the defendants are numerous, the assessments are less than the full legal liability of the defendants, and are comparatively small, so that the cost of separate actions would be disproportionate to the amount recovered in many cases, and where from all the circumstances it appears that a single suit will best subserve the substantial interests of all parties.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 167, 168.]</p> <p>A Corporations — Statutory Proceedings in Insolvency — Effect of Bankruptcy Law.</p> <p>■ The provisions of section 65 of the Now Jersey corporation act (Laws 1896, e. 185, p. 298), authorizing proceedings in a court of equity against insolvent corporations and the appointment of receivers therein, were not superseded by the national bankruptcy law.</p>

Action in Ejectment. On motion to instruct the marshal as to execution of writ of possession. Held: but required them to convey back this parcel to Lewis, and such proceedings were had finally in these suits that the heirs of Lewis, who died pendente lite, became purchasers of and reinvested with the lands. One of these heirs was Mary D. Dickenson.

<p>t, Appearance — Waiver op Objections — Jurisdiction op Federal Court-District op Suit.</p> <p>Where the requisite diversity of citizenship exists between both the assignor and assignee of a chose In action, and the defendant sued thereon by the assignee, to give a federal court general jurisdiction of the suit, the objection that such court in the district where the suit is brought, and in which the plaintiff resides, is without jurisdiction, because the assignor eould not have sued in that district, is waived by the defendant by entering a general appearance and filing a demurrer which goes in part to the merits.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appearance, §§ 70-75.]</p> <p>2. Assignments — Rights Assignable — Partial Assignment op Chose in Action.</p> <p>The owner of a chose in action may assign a part thereof, and the assignee may enforce his rights under such assignment by a suit in equity in which both the debtor and the assignor are made defendants.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4, Assignments, §§ 55-60.]</p>

<p>Instteance — Marine Insurance — Defenses Against Liability — Deviation from Voyage.</p> <p>Respondents severally insured parts of the cargo of a sailing vessel against sea perils on a voyage from Seattle to Alaskan ports. After reaching the port which was the termination of the voyage, and discharging a part of the cargo for that port, the vessel again went to sea for the purpose of discharging cargo at another port which she had passed without stopping owing to unfavorable weather, and before reaching it was wrecked. Held, that the voyage covered by the insurance terminated when the vessel reached her port of final destination, and that respondents were not liable for cargo lost after she had voluntarily left such port.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 329, 379-381.]</p>

<p>In Bankruptcy. On review of referee’s decision on claim of W. M. Frizzell as a preferred creditor.</p>

<p>In Bankruptcy. On certificate of referee concerning landlord’s claim to priority.</p>

<p>1. BANKRUPTCY -APPOINTMENT OR TRUSTEE — REVIEW BY COURT.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 38a, 30 Stat. 555 ¡U. S. Comp. St. 1901, p. 3435], which provides that the action of a referee shall be “subject always to a review by the judge,” and rule 13 in bankruptcy (89 F'ed. vii; 32 O. C. A. xvii), which provides that the appointment of a trustee by the creditors shall be subject to be approved or disapproved by the referee, the appointment of a trustee by creditors, approved by the referee, to subject to review by the judge,</p> <p>2. Same — Appointment Procured by Bahkbtjpt.</p> <p>The appointment of a trustee in bankruptcy brought about by the active interference and procurement of tha bankrupt will be disapproved by the court.</p>

<p>In Bankruptcy. On exceptions to confirmation of sale.</p>

<p>S. Bankbuptoy — Exceptions—Verification.</p> <p>Exceptions to the account of a receiver in bankruptcy should be verified, but the omission of a verification is a defect which is amendable.</p> <p>2. Same — Receives—Allowance of Attokney’s Fees.</p> <p>Attorney’s fees for .services rendered to a receiver in bankruptcy should be allowed from the estate only to the extent that the services were rendered for the direct benefit of the entire estate, and not of any particular creditor.</p>

<p>1. Perjury-Indictment for Subornation — Sufficiency.</p> <p>An indictment for subornation of perjury in procuring another to make a false oath or affidavit before the receiver of a land office to secure an entry of land, which avers that' such oath or affidavit was made in support of “a certain application in writing to enter under the homestead laws of the United States, subject to entry at said land office,” certain land described, is sufficient after verdict as showing that the land described was at the time public land of the United States subject to homestead entry at such land office.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Perjury, § 95.]</p> <p>2. Indictment — Objections to SiiiTrciHNCY — ITow Taken.</p> <p>Objections to the sufficiency of an indictment cannot be raised by objecting to the introduction of any evidence thereunder. ,</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 402.]</p> <p>3. Perjury — Homestead Entry — False Oath to Support.</p> <p>To support an indictment for subornalion of perjury based on the alleged procurement of the making of a false affidavit or oath before the receiver or register of a land office in support of an application to enter land under the homestead law, it is not essential that 1he affidavit should have been subscribed as well as sworn to before such officer.</p> <p>4. Same — T rt al — E vi den cte.</p> <p>On the trial of such an indictment, the tract book kept by the register of the land office is admissible in evidence to establish the fact that the lands to which the application related were public lands subject to homestead entry at such office, and it is competent for the register as a witness to explain the meaning of abbreviations used therein.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Perjury, §1 113, 114.j</p> <p>5. Criminal Daw — Evidence—Department Regulations.</p> <p>A general regulation promulgated by the General Dand Office respecting homestead entries of public land, for the government of the officers of local land offices, pursuant to authority given by Rev. St. § 2478 [IT. S. Comp. St. 1901, p. 1586], becomes a part of the body of public laws of which the courts take judicial notice, and, where such a regulation was pertinent to the issue as to the criminal intent of a defendant charged with a criminal offense under the land laws as corroborating bis testimony as to his understanding of the requirement of the law, by showing that such understanding was in accordance with that of the Land Department until after the alleged offense, he was entitled to have such regulation placed before the jury as a matter of evidence, and its exclusion was error.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 706.</p> <p>Judicial notice of public laws and regulations, see note to 44 C. C. A. 4.]</p> <p>6. Same — Appeal — Review — Discretion of Court — Permitting Leading Questions.</p> <p>While the permitting of leading questions is a matter resting in the sound discretion of the trial court, allowing a district attorney in a criminal case to ask questions of his own witnesses, who are not unwilling or unfriendly, which are leading and in a form to suggest the answer desired and call for a mere conclusion of the witness, is an abuse of discretion, and is prejudicial error.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, { 8064.]</p> <p>7. Perjury — Trial fob Subornation — Evidence.</p> <p>On the trial of a defendant charged with subornation of perjury in procuring homestead entrymen to make the required oath that the entry was not made for the benefit of any other person, when in fact they bad agreed to convey the land to defendant for a stipulated price as soon as they obtained title, it was error to refuse to permit defendant to testify that he made no such agreements, but that the agreements actually made, as he understood them, left the conveyance optional with the other parties or to other facts, which tended to show that his act was not willful nor corrupt, as required by the statute to constitute the crime charged.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Perjury, § 115.]</p> <p>8. Same — Instbuctions.</p> <p>Instructions, given on the trial of a defendant charged with subornation of perjury in procuring homestead entrymen to make false oaths, ¡held erroneous and misleading, in that they authorized the jury to convict in case they found that any statement made by affiants in their affidavits was false and was intentionally sworn to, when there was evidence tending to show that some of the recitals in the affidavits respecting the intention to reside on and improve the land as affiants understood the law were not applicable to their entries, and' that their act in swearing to the same was not therefore willful and corrupt, as required by Kev. St., § 2291, as amended by Act March 3, 1877, e. 122, § 2, 19 Stat. 404 [U. S. Comp. St. 1901, p. 1391], to constitute the crime of perjury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Perjury, § 135.]</p> <p>Hook, Circuit Judge, dissenting.</p>

This writ of error is from a final judgment against the plaintiff in error, as plaintiff below, upon demurrer sustained to the declaration, as finally amended, and election to stand by such declaration.

This is an action brought by Charles A. Goss, a citizen of the state of Nebraska, against O. M. Carter, a citizen of the state of… Held: be determined; that the entire amount of the indebtedness of said company, in so far as the same might be represented in said suit, and. the dates of the accrual thereof, and the names of the several stockholders at such dates, together with the amounts of such holdings, be determined; that the plaintiffs and such other creditors as…

<p>Appeal from the United States Court for China.</p>

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

<p>Contracts — Action foe Breach — Proof of Breach.</p> <p>Defendant and others, as members of a syndicate, contemplating the formation of a corporation to sell an enamel paint, entered into a contract with plaintiff to manufacture the same. The contract recited that it was assumed that the product could be made with the plant and equipment then in use by plaintiff, but provided that, if the development of the business showed that additional equipment and machinery were required, the members of the syndicate should provide satisfactory security for the necessary outlay. After the enamel company was formed and the syndicate merged therein, it was found that a new plant would be required to make the enamel, and plaintiff -entered into a contract with the company to erect the plant at the company’s cost. Held,, that the money expended in such erection was not under the syndicate contract, but under that with the corporation, and that defendant could not be held liable therefor.</p>

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

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

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

<p>1. Patents — Infringement—Combination op Old Elements.</p> <p>Where a patent is not for a pioneer invention, but for a combination of ' old elements, the range of infringing equivalents is restricted to those which perform the same functions in the same way.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 386.1</p> <p>2. Same — Can-Heading Machine.</p> <p>The Wheaton patent, No. 477,584, for a can-heading machine, is for a combination of old elements, and each claim has as an essential element, either expressly or by necessary reference to the specification and drawings, a mold made in two parts, one for each end of the can, and each part having two jaws, one of which opens, to receive the can body and heads, by turning on an axis which is at right angles to the axial line , of the jaws. As so construed, it is not infringed by the machine of the McGinnis. patent, No. 796,928.</p>

<p>PATENTS — INFRINGEMENT—WTIEET, TIRES.</p> <p>The Schrader patent, No. 466,577, for Improvements in wheel tires, has for its essentia] feature an interna] clamping' device for securing a U-sbaped tire to the rim of the wheel whether used as a cushion tire, or as inclosing an inflated tube making it pneumatic, and is not infringed by the modern form of “clincher tire,” in which the shoe or U-shaped outer tire is held in place by the pressure caused by the inflation of the inner tube, although such method is supplemented by stay-bolts or lugs.</p>

<p>Patents — Invention—Contkolmbs fob Ele&erio Motoes.</p> <p>The three claims of the Cutler patent, No. 6(58,140, and claims 1, 6, and 11 of the Leonard patent, No. 678,274, both for circuit controllers for electric motors, are substantially identical, and such claims, as well as claims 7 and 10 of the Leonard patent, are too broad, and, in view of the prior art, are void for lack of invention.</p>

<p>Bankruptcy — Jurisdiction of Court — Property Claimed as Exempt.</p> <p>Where a creditor of a bankrupt prior to the filing of the petition in-bankruptcy obtained a judgment against him on a note waiving • exemptions, and after the filing of such petition levied on and sold property claimed by the bankrupt therein as exempt and received the proceeds thereof, the court of bankruptcy cannot adjudicate his right thereto at the instance of the trustee subsequently appointed, even though the bankrupt, after the sale, attempted to waive his claim of exemption with respect to such property; the claim of the creditor in any (went being adverse to the trustee, and one which can only be determined in a plenary suit.</p> <p>[Ed. Note. — Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. O. A. 813.J.</p>

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

In Equity. On motion for temporary restraining order. This is an application for a restraining order, to restrain the respondents, and each of them, and their officers, servants, and employés, and all persons acting through or under them, from interfering with or obstructing the transaction of the business of the complainant, the Rocky Mountain Bell Telephone Company, in Livingston, Mont., or from persuading others so to interfere, or from interfering with any person who may…

<p>1. TEI.EGKAP.nS AND TELEPHONES — STATE REGULATION — POWERS OF RAILROAD Commission of Louisiana.</p> <p>Const. La. art. 283 et seq., creates the Railroad Commission of Louisiana, and coniers upon it authority to adopt, change, or make “reasonable and just rates, charges and regulations” to govern railroad telegraph and telephone service, etc., “to adopt such reasonable rules, regulations and modes of procedure as it may deem proper for the discharge of its duties * ■* * and to regulate the mode and manner of all investigations and hearings of railroad companies and other parties before it in the establishment of rates, orders and charges.” It is given power to summon and compel the attendance of witnesses and the production of books and papers, and its decisions are made rovlewablc by the courts. Held, that such provisions did not confer arbitrary power on the commission to make rates, but by necessary implication required it to fix rates or charges only after a full investigation into the facts without which it could not determine what rates, charges and regulations were just and reasonable.</p> <p>2. Same — Manner of Exercising Powers.</p> <p>The fixing by a state commission of rates of charge to govern a telephone company based solely on the value of the company’s property in the state as returned for taxation and its net earnings as shown by its annual reports, is a merely arbitrary act, and not a valid exercise of the power to establish “reasonable and just rates.”</p> <p>3. Same -Review of Orders by Court — Scope.</p> <p>Under the provisions of articles 283-286 of the Constitution of Louisiana which create the Railroad Commission of Louisiana, with power to make “reasonable and just rates, charges and regulations,” governing public service corporations, and provide that its orders may be reviewed by the courts in an action brought against it by any party affected thereby, and which may be dissatisfied, as such provisions are 'construed by the Supreme Court of the state, such an action is of a plenary character, and the court may not only determine the legality ana regularity of the action of the Commission in making the order, but may also upon evidence introduced before if determine the reasonableness and justness of the rate, charge or regulation made by the order.</p> <p>4. Samf — Order Made by Commission — Presumption of Reasonableness.</p> <p>There is no presumption that rates of charge for a telephone company fixed by a state commission are reasonable and just, where it is shown that they were adopted arbitrarily without any investigation of the facts necessary to enable the Commission to form an intelligent judgment as to their reasonableness.</p> <p>5. Same — Basis of Order Fixing Rates — Value of Property.</p> <p>The value of the property of a telephone company within a state while a factor to be considered is not the sole, nor probably the most important, factor in determining what would be reasonable and just rates for it to charge for service between points in the state.</p> <p>6. Same — Order Reviewed.</p> <p>An order made by the Railroad Commission of Louisiana reducing the rates to be charged by a telephone company for' service between points within the state held illegal and null, because adopted arbitrarily on conjecture, and not based on investigation or the exercise of judgment and discretion as required by the state Constitution; and also because the rates so established were not reasonable and just, it being shown that the rates previously in force were reasonable and just to the public, and that under them the company could not earn as much as 7 per cent, net profit on its Louisiana investment</p>

<p>In Equity. On application for temporary restraining order.</p>

<p>Collision — Evidence—Mutual Fault.</p> <p>A collision having occurred between a naphtha launch proceeding up the Christiana river on the right side, and a tug, with a barge in tow, proceeding down the river on the same side, held, that the tug was at fault for being on the wrong side of the river, and for not seasonably signaling, and the launch in fault for stubbornly holding her course after learning that the tug had a tow and that a collision would be inevitable, unless the launch changed her course.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 52, 73-77, 187-192.</p> <p>Signals of meeting vessels, see note to The New York, 30 C. O. A. 630.]</p> <p>(Syllabus by the Court.)</p>

<p>Shipping — Limitation of Liability — Loss of Vessel at Sea.</p> <p>Evidence considered, and held to entitle the owner of the Danish steamship Norge to a limitation of liability on account of her loss at sea while on a voyage from Copenhagen to Now York through striking a derelict or unknown obstruction under the surface of the water to the southward of Rockall Rock, by which she was so Injured that she sank in 20 minutes, and a number of persons lost their lives; It being shown that she was seaworthy and properly manned and equipped, that she was on an approved route with a, lookout properly stationed, and that there was no fault or negligence in her management. Claims made by representatives of persons who lost their lives by the disaster also dismissed.</p> <p>lEd. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 644, 645.</p> <p>Limitation of liability of vessel owner, see note to The Longfellow, 45 G O. A. 387.]</p>

<p>Shipping — Damage to Cargo — Liability op Ship.</p> <p>A claim that shipments of tobacco from Holland ports to New York, made on two different vessels, were damaged by sea water on the voyages through the unseaworthiness of the vessels or negligent stowage, held not sustained by the evidence, which tended to show that the tobacco was delivered in the same condition in which it was received, and that it was probably damaged previously on its shipment from Sumatra to Holland.</p>

<p>1. Bakkbuptcy — -Courts op Bankruptcy — Power to Appoint Emkrees.</p> <p>Where there are two district judges of a federal district, having equal and concurrent authority, one of such judges, sitting in bankruptcy within the district, the other judge being absent from the district, constitutes the court of bankruptcy, and has power to make a valid and binding appointment of a referee in bankruptcy, and the absent judge cannot subsequently come into the district, while the judge making the appointment is holding court therein, and without the latter’s concurrence, set aside such appointment and remove the appointee from office.</p> <p>2. Courts — Concurrent Jurisdiction — Improvident Order —Void Act op Judge.</p> <p>Where there are two district judges of a federal court having equal and concurrent authority, and one judge, who is not within the district at the time an order appointing a referee in bankruptcy is made by the other judge sitting in bankruptcy within the district, goes into the district in which the order was made for the sole purpose of setting aside said order, and makes an order setting same aside, said order so made Is without authority, and will be set aside as improvidently made and absolutely void.</p>

Criminal Action. Indictment for buying and receiving in pledge government property from a soldier in violation of section 5438, Rev. St. [U. S. Comp. St. 1901, p. 3674]. Evidence offered by the government to prove admissions by the defendant in giving testimony before a court-martial on the trial of the soidier for selling or pawning the property was excluded. The defendant was convicted and sentenced to pay a fine of $1,200 and costs.

In Bankruptcy. On review of decision of referee. On October 11, 1904, J. P. Ansley deposited a chock with D. C. Kenyon, the active member of the banking firm of D. O. & F. T* Kenyon, doing business as the Rushsylvania Bank, for which check he received a small sum in cash and the bank’s certificate of deposit for the residue, which certificate Ansley expected to cash early in the week following.

<p>1. Shipping — Proceeding fob Limitation of Liability — Jurisdiction.</p> <p>A tug, which, in the pursuit of her business, was frequently within the Southern district of New York, and was there in a regular way at the time of the filing of a petition for limitation "of liability by her owner, was within the district for the purpose of giving the court jurisdiction, under admiralty rule 57, although the domicile of the owner was elsewhere.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 648, 649.</p> <p>Limitation of owners’ liability, see note to The Longfellow, 45 C. O. A. 387.]</p> <p>2. Same.</p> <p>Where a District Court has obtained jurisdiction of a proceeding for limitation of liability on a claim for "which the owner has been sued, the claimant cannot defeat such jurisdiction after the vessel has been appraised by reducing his claim below the appraisal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 648.]</p> <p>3. Towage — Injury of Scowman on Tow — Liability of Tug.</p> <p>The injury of a scowman, in charge of a scow being towed behind another to the dumping grounds, whose leg was caught and cut off by a line while he was attempting to lengthen the towing hawser, held on the evidence to have been due to his own negligence, and not to any fault of the tug.</p>

<p>In Admiralty. Suit for injury of tow.</p>

<p>In Bankruptcy. On motion to punish for contempt.</p>

<p>In Bankruptcy. On application to vacate order of sale.</p>

<p>OoepoeatioNs — Pkocekdings ns Insolvency-Claims of Customers of Bucket Shop.</p> <p>In the settlement of the estate of an insolvent corporation engaged in conducting a bucket shop, receiving money from customers which it purported to invest in stock deals, but did not, In fact, so invest, a customer may prove his claim for the amount paid to the company, regardless of the purported transaction as on a rescission, or at his option, where the transaction as reported to him by the company showed a profit, and no collusion is shown, for the amount thus shown to be due him and which he could have recovered in an action at law.</p>

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

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

<p>1. Statutes — Rtjt.es of Consteoction — Compilations.</p> <p>In cases of doubt and uncertainty as to the meaning of a compiled or revised statute, resort may properly be had to the original enactments.</p> <p>[Ed. Note. — For cases in point, seo Cent. Dig. vol. 44, Statutes, § 3.12.]</p> <p>2. Oonspieacy — Fedeeai. Statute — Cqnstbuotion.</p> <p>In Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3076], relating to conspiracies, tho words “offenses against the United States” have the same meaning as the words “offenses against the laws of the United States” in the original act of March 2, 1867 (14 Stat. 484, c. 169) the change being merely one of phraseology made by the revision commission, and such section denounces conspiracies to commit offenses created by any of the statutes of the United. States.</p> <p>S, Same.</p> <p>A defendant may be prosecuted under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], for a conspiracy to violate a criminal or penal statute of the United States, notwithstanding the fact that the punishment prescribed for the offense created by such statute is less than that prescribed for conspiracy; the conspiracy in itself being a distinct and substantive offense.</p> <p>4. Same — Conspibaoy to Violate Intebstate Commerce Act — Giving ob Receiving Rebates.</p> <p>A conspiracy to induce the giving or receiving of rebates in violation of the Elkins act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 8S0j), is punishable under Rev. St. § 5440 LU. S. Comp. St. 1901, p. 3676], where the persons charged are not limited to the giver and receiver of the rebate alone.</p> <p>E. Same — Indictment—Desobiption of Offense-.</p> <p>In an indictment under Rev. St. § 5440 [U. S. Comp. St. 3901, p. 3676], for a conspiracy to commit an offense against the United States, all facts necessary to constitute the conspiracy, including the overt act, must be averred with all the particularity required in criminal pleadings, but no high degree of particularity is required in describing the offense to which the conspiracy relates which is necessarily defined by the statute. So, where an indictment charged a conspiracy to induce a shipper to receive rebates from railroad companies in violation of the federal statute, it was not esseniial to aver the names of such railroad companies which were not known to the grand jury.</p> <p>E. Criminal Daw — Evidence—Acts op Go-Oonspibatobs.</p> <p>On the trial of defendants charged with having conspired with a person named and with others to the grand jurors unknown to induce a partnership to accept rebates from railroad companies on shipments in violation of (lie interstate commerce law, where there was evidence tending to establish the conspiracy, and that the arrangement for the illegal rebates was made between defendants and one member of such partnership, entries in a private memorandum book kept by such partner, showing sums received as “freight commissions” and distributed between the partners individually, which transactions did not appear on the books of the firm, wore admissible in evidence.</p> <p>[Ed. Note. — Admissibility on trial of joint indictments of acts and declarations of conspirators and codefendants after accomplishment of object, see note to Sorenson v. United States, 74 G. G. A. 472.]</p> <p>7. Same — Proof of Intent — Similar Transactions.</p> <p>On such trial also evidence of contemporaneous contracts made by defendants with, other large shippers, similar in all respects to that made with the partnership named, and that such shippers also received sums of money indirectly which they understood to come from defendants, and to be in fact rebates, was admissible on the question of intent and motive in the transaction charged in the indictment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 830-834.]</p> <p>8. Conspiracy — Elements of Offense.</p> <p>One who conies into a conspiracy after it has been formed, with knowledge of its existence, and with a purpose of forwarding its designs, is equally as guilty as though he had participated in its original formation.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 10, Conspiracy, § 76.]</p> <p>9. Criminal Law — Former Jeopardy — Identity of Offenses.</p> <p>The acquittal of defendants on one of two indictments consolidated for the purpose of trial is not a bar to a conviction on the other where the offensés charged are distinct in point of law, although the same facts may have been relied on to a great extent in each case.</p> <p>10. Same — 1Trial—Instructions.</p> <p>In a criminal case, the refusal of a requested instruction that defendant is presumed innocent, and that such presumption remains until over-comá by the proof, is reversible error, notwithstanding the giving of a proper instruction on the subject of reasonable doubt.</p>

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

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

<p>Appeals from the Circuit Court of the United States for the Dis-' trict of Utah.</p>

<p>1. Bankruptcy — Appellate Jurisdiction — Mode op Review. -</p> <p>Where an appeal taken in a bankruptcy proceeding under Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432J, involves only a question of law, it may be treated by the appellate court as a petition to revise.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 929.]</p> <p>2. Same — Ltens—Enforcement in Bankruptcy Court — Costs Chargeable to Proceeds.</p> <p>The proceeds of property of a bankrupt, covered by valid liens and sold by the court of bankruptcy by request or consent of the lien holders, who subsequently filed their claims in such court, which were allowed as secured claims in an amount in excess of such proceeds, are properly chargeable with the costs of such court appropriate to the enforcement of the. liens, but not with general costs of the administration of the estate, such as the general fees of the trustee and his attorney, or for the services of a receiver in carrying on the business of the bankrupt and his attorney, or for the expenses and losses of such business.</p>

<p>1. Customs Duties — Classification—Silk and Wool Goods.</p> <p>In Tariff Act July 24, 1897, e. 11, § 1, Schedule L, par. 391, 30 Stat 187 [U. S. Comp. St 1901, p. 1670], the proviso that “all manufacturers, of which wool is a component material, shall be classified and assessed for duty as manufactures of wool,” is not limited to the goods containing silk which are the subject of said paragraph, but extends to all silk and wool goods; and dress goods in chief value of silk, but in part of wool, become by virtue of this proviso subject to the duty on wool goods, rather than that on silks.</p> <p>2. Statutes — Proviso—Extent of Scope.</p> <p>The scope of a proviso is to be determined by its words and import, rather than by its connection with subdivision of the statute; and a proviso contained in a paragraph of a tariff act may be construed to relate to other provisions also.</p>

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

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

<p>Appeal from United States Court for China, and Upon Return to Mandate of United States Circuit Court of Appeals.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Alabama.</p> <p>Petition for Mandamus to the Circuit Court of the United States for the Northern District of Alabama.</p>

<p>Appeal and Eeeoe — Review—Questions Considered.</p> <p>A question not put in issue by the pleadings, nor covered by the decree of the court below, and tbe determination of which was not necessary to the decision made, will not be determined by the appellate court, although the trial court may have made a finding thereon.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3331, 3341.]</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. These are appeals by Rudolph Schroeder and Charles Engelhard from a decision of the Circuit Court, affirming decisions of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion rendered in the Circuit Court is as follows: HOUGH, District Judge.

<p>Customs Duties — Classification—Finished Castings.</p> <p>Iron castings, which by careful additional work have been fitted as parts of machines, are no longer dutiable as “castings,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 148, 30 Stat. 162 [U. S. Comp. St. 1901, p. 1640], but have been advanced to the condition of “articles * * * of iron * * * partly * * * manufactured,” under paragraph 193, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645].</p>

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p> <p>There was no opinion below. The Circuit Court affirmed a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Philadelphia.. The subject of the controversy consisted of sulphur, which was shown by chemical analysis to contain in one instance .0015 per cent, of nonvolatile impurities, and in another instance .00437 per cent, of ash.</p>

The appellants brought suit in the court below to enjoin the alleged infringement of two letters patent issued to E. A. Hardison on May 22, 1900, and November 12, 1901, numbered respectively, 650,318 and 686,691, for improvements in automatic casing perforators for deep wells.

<p>1. Patents — Interference Suits — Scope oe Decision.</p> <p>In a suit under Rev. St. § 491S [U. S. Comp. St. 1901, p. 3394], for relief against an alleged interfering patent, upon tbe establishment of an interference, it is the duty of the court to investigate and decide any question concerning the validity of either of the patents raised by the pleadings in the ease.</p> <p>2. Same — Interference—'Validity of Reissue.</p> <p>The Blaekmore reissue patent, No. 11,995 (original No. 686,022), for a process of making sulfuric anhydrid, claims 6 to 11, inclusive, which were added to those of the original patent, cover the prior invention disclosed by the Knietseh patent, No. 652,119, and are void for interference as against such patent. Such reissue is also wholly void as not authorized by Rev. St. § 4916 [U. S. Comp. St. 1901, p. 3393], because the original patent was not invalid for defective or insufficient description or claims, and because the reissue, moreover, seeks to cover an entirely different alleged invention, namely, that of the Knietseh patent.</p>

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

<p>Death — Statutoky Action fok Whongful Death — Limitation.</p> <p>Tile right to recover for a wrongful (loath occurring in Maryland Is governed by Code Pub. Gen. Laws Md. 1904, pp. 1553, 1554, art. 67, §§ 1, 2, which provides that an action thereunder must be brought within 12 months, and such an action cannot be maintained in a federal court in another state after such time, though the defendant may not have been suable in Maryland.</p> <p>[Ed, Note. — What law governs actions, see note to Burrell v, Fleming, 47 C. C. A. 606.]</p>

<p>1. CREDITORS’ Suit — Eqtjity Jurisdiction — Adequate Remedy at Law.</p> <p>A creditors’ bill against a corporation, which shows that complainant is merely a simple contract creditor, being the owner of a note given by the defendant, and which further discloses that such note is indorsed by a third party, without showing that either maker or indorser is insolvent, does not state a case within the jurisdiction of a federal court of equity.</p> <p>(Ed. Note. — for cases in point, see Cent. Dig. vol. 14, Creditors’ Suit, i§ 6-8.]</p> <p>2. Corporations — Receiver—Power of Officer to Consent to Appointment.</p> <p>In a suit against a corporation, a consent to the appointment of a receiver, signed by the president, will not be recognized, where it appears from the pleadings that he has an interest adverse to the corporation, and no authority from the directors to give the consent is shown.</p>

<p>In Admiralty. Suit for loss of cargo.</p>

<p>Insurance — Construction of Accident Policy — Person Riding as Passenger.</p> <p>A provision of an accident policy insuring against accidental death or injury of the person insured “while actually riding as a passenger in or on any regular passenger conveyance provided by a common carrier” is to be construed in accordance with the ordinary meaning of its terms, and the indemnity applies only to the case of a passenger in the ordinary, common, everyday use of the word, and to an injury received while such-person was in or on a regular passenger conveyance. As so construed, the . insurer is not liable for the death of the insured resulting from the wrecking of a railway postal ear in which he was riding in the performance of his duties as a postal clerk.</p> <p>[Ed. Note. — Accident insurance, risks and causes of loss, see note to National Accident Soc. of City of New York v. Dolph, 38 C. G. A. 3.]</p>

<p>Shipping — Injury op Vessel by Swell — Identification op Offending Steamer.</p> <p>Evidence held insufficient to establish the claim that a steamer which, in passing through a narrow channel in East river at a high rate of speed, created a swell by which libelant’s lighter lying at a wharf was injured, was one owned by respondent; it being shown affirmatively that none of its vessels was in the vicinity at the time of the injury.</p> <p>[Ed. Note. — Diability of vessel for injuries caused by creation of swell, see note to The Asbiiry Park, 78 O. C. A. 3.]</p>

<p>Internal Revenue — Legacy Taxes — Wtu. or Decedent.</p> <p>Whore a writing offered as the will of a decedent W'as not admitted to probate, but contested proceedings therefor were compromised, as authorized by the statutes of Massachusetts, and the estate was distributed in accordance with the compromise decree, such compromise must be deemed the will under which the property passed, for the purposes of War Revenue Act June 13, 1898, c. 148, §§ 29, 30, 30 Stat. 464, 465 [U. S. Comp. St. 1901, pp. 2307, 2310J, and the tax due thereunder determined accordingly.</p>

<p>¿rasa — Offenses Against Chinese Exclusion Acts — Li ability os’ Martes os Vessel.</p> <p>An indictment charging the master of a vessel with a violation of Act Sept. 13, 1888, c. 1015, § 9, 25 Stat. 478 [U. S. Comp. St. 1901, p. 1316], which makes it a misdemeanor if the master of any vessel “shall knowingly bring within the United States on such vessel and land, or attempt to land, or permit to be landed any Chinese laborer or other Chinese person in contravention of tho provisions of this act,’' must aver that defendant “knowingly” permitted such Chinese person to be landed.</p>

<p>Corporations — Ancillary Receiverships.</p> <p>Where a Circuit Court of the United States for the district in which a corporation has its domicile has, in accordance with the local statutes, acquired jurisdiction of a bill in equity to wind up the affairs of 'the corporation, and has appointed a receiver thereon, the Circuit Court of the United States for the District of Maine will assist by the appointment of an ancillary receiver, first, unless for special reasons, requiring public notice of the application therefor. Hutchinson v. American Palace Car Co. (C. C.) 104 Fed. 182, and Conklin v. United States Shipbuilding Company (C. O.) 123 Fed. 913, applied.</p>

In Equity. On demurrer to bill of review. On June 36, 1906, in term, the Western Pocahontas Corporation presented its bill in tliis court against Abraham Acord and some 71 others, in which it alleged itself to be a corporation under the laws of Virginia and the defendants named to be citizens and residents of West Virginia; that it was the owner of 28,113 acres of land, situate in Wyoming and Raleigh counties, derived by it through mesne conveyances from two patents issued…

<p>1. Process — Substituted Service — Power of Federal Court to Authorize.</p> <p>On motion to vacate an order for substituted service made in a suit purporting to have been brought under Federal Judiciary Act March 3, 1875, c. 137, § 8, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], which authorizes such service in local actions relating to property within the district, the court must examine the bill, and the order should be set aside unless the bill affirmatively shows sufficient grounds for relief under such statute and complainants’ right to maintain the suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Process, § 221.]</p> <p>2. Corporations — Equity—Jurisdiction—Administration of Estate of Corporation.</p> <p>A court of equity can administer the property of a corporation as a trust fund for the benefit of stockholders and creditors only when the corporation is insolvent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1574, 1575.]</p> <p>3. Process — Substituted Service — Construction of Statute.</p> <p>Statutes authorizing substituted service are to be strictly construed.</p> <p>4.'Cancellation of Instruments — Pleading—Sufficiency of Bill.</p> <p>A bill in equity for the cancellation of a trust deed and mortgages, on the ground of fraud and conspiracy, held not to allege sufficient facts to authorize such relief.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, §§ 66-81.]</p> <p>5. Corporations — Stockholders’ Suits — Failure to Comply with Equity Rule 94.</p> <p>Without a compliance with equity rule 94 a stockholder can no more maintain a suit in equity in a federal court founded upon rights which may properly be asserted by the corporation, than an entire stranger to the corporation and its property; and a failure to comply with the rule is available against an order for substituted service on defendants, as well as on the merits, where it affects the alignment of the parties, and in that way the court’s jurisdiction. ,,</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 12, Corporations, §§ 777, 778.]</p> <p>6. Courts — Jurisdiction of Federal Court — Diversity of Citizenship.</p> <p>To confer jurisdiction on a federal court, where there are several plaintiffs and defendants, all necessary parties on one side must be citizens of a state, and all on the other side must be citizens of another state or foreign country.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Courts, § 855.]</p> <p>7. Same — Suit Between Aliens.</p> <p>The federal courts are without jurisdiction of a suit between aliens, where no federal question is involved.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, § 847.]</p> <p>8. Same — Alignment of Pasties.</p> <p>In determining the question of federal Jurisdiction, whore it depends solely on diverse citizenship, it is the duty of the eourt to arrange the parties on the one side or the other according to their interests of the facts, regardless of the places they occupy in the pleadings as plaintiffs or defendants.</p> <p>9. Same — Stookkoldebs’ Suit.</p> <p>In a stockholders’ suit in a federal court to remove an alleged fraudulent lien from the property of the corporation, where the complainant has not, complied with equity rule 94, the corporation will be aligned on the side of the complainant.</p> <p>10. Dismissal — Want of Jubisdiotion.</p> <p>Where the jurisdiction of a federal court of a suit in equity depends alone on diversity of citizenship, and a proper realignment of parties discloses its want of jurisdiction, it is the court’s duty to dismiss the suit on its own motion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 17, Dismissal and Non-suit, § 160.]</p>

<p>In Bankruptcy. Petition in involuntary bankruptcy. On exceptions to report of special master.</p>

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

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

<p>On Motion to Strike Papers from Record for Final I Tearing.</p>

<p>In Admiralty. Suit for damage to cargo.</p>

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

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

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

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

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

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

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

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

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

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