Volume 157 — Federal Reporter

The plaintiff in error, who was the president and managing officer of the Big Bend National Bank of Davenport, Wash., was convicted of violation of certain of the provisions of section 5209 of the Revised Statutes [U. S. Comp. St. 1901, p. 3497] under the fourth, fifth, sixth, and seventh counts of the indictment. The offenses charged against him in those counts consisted of an alleged false entry in a report required by section 5211 of the Revised Statutes [U. S. Comp.

<p>1. Counties — Funding Bonds — Constitutional Limitation op Indebtedness.</p> <p>Const. 111. 1870, art. 9, § 12, which limits the amount of indebtedness which may be lawfully contracted by any municipality to 5 per cent, of the value of the taxable property therein, relates solely to tlie creation of indebtedness thereafter, and neither authorizes repudiation, nor affects the making of terms for payment of existing legal liabilities; hence the funding of such liabilities by a county, authorized by statute and vote, was unaffected by the limitation, and the fact alone that funding bonds issued for that purpose, reciting that “binding, subsisting legal obligations of said county” were thereby funded exceeded such limitation, neither implies nor amounts to a violation of tlie constitutional provision which can only be made to appear by impeaching such recital as to the validity of the indebtedness funded.</p> <p>2. Same — Recitals in Bonds — 'Effect as Estoppel.</p> <p>Rev. St. 111. 188.1, c. .113, authorizes counties and other municipalities to issue bonds for the purpose of retiring outstanding obligations. A county liad an outstanding issue of bonds. After years of litigation in both state and federal courts the liability of tlie county was established in •favor of the holders of a majority of such bonds, and judgments entered against it thereon, while other portions of the issue had been adjudged invalid, and the holders defeated. Others of tlie bonds were in tlie hands of holders whose rights had not been adjudicated. In such state of facts a compromise was effected, pursuant to which the county voted to issue funding bonds under such statute, to be used in settlement of the judgments and tlie outstanding unadjudicated bonds, and they were so used; judgments being entered on tlie unadjudicated bonds by consent, and all judgments satisfied in exchange for the funding bonds. Such bonds recited that they were issued under such statute, and that “binding, subsisting legal obligations of said county” were thereby funded. Held that, under the statute, the county officers, authorized thereto by a vote of the electors, liad power to make the compromise, and for that purpose to determine on behalf of the county that the unadjudieated outstanding bonds were valid and subsisting obligations, and that tlioir recital of such fact estopped the county as against a bona fide holder for value of the funding bonds to deny their validity, on the ground that all or any part of the obligations thereby retired were invalid, either on constitutional or statutory grounds.</p>

<p>Insurance — Suit foe Construction of Life Policy — Jurisdiction to Grant Relief Against Foreign Company.</p> <p>Where a life insurance company incorporated under the laws of one state has subjected itself to suit in another state in which it does business, has agreed in accordance with its laws that service of process may be made upon the insurance commissioner of such state, and has issued policies to its citizens, such a policy holder has the right to maintain a suit against it in his own state in either the state or federal courts for a construction of his policy and a determination of his rights thereunder and the legality of acts of the company as bearing thereon, and such right may not be denied on the ground that such a suit is an. interference with the internal management of a foreign corporation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 33.]</p>

<p>In Error to the Circuit Court of the United States for the Western District of Kentucky.</p> <p>This is ah action brought by the plaintiff in error to recover the contents of certain bonds and coupons alleged to have been issued by the defendant in error in 1872, in payment, with other like bonds, for shares of stock of the Cumberland & Ohio Railroad Company. The plaintiff claims to be the holder for value and owner of the bonds and coupons which are the subject of the controversy. By stipulation, the ease was tried by the court without a jury. The'court made a-finding of facts, and declared its conclusion of law. thereon. The result of its conclusion was that the plaintiff was not entitled to recover, and judgment was entered accordingly. The plaintiff thereupon sued out this writ of error.</p> <p>By an act of the Legislature of Kentucky, ■ passed February 24, 1869, the above-named railroad company was incorporated and authorized to construct a railroad from a point on the Ohio river to a point on the boundary line between Kentucky and Tennessee. Acts of Kentucky 1869, vol. 1, p. 463, c. 1578. In the course of its authorized route was Green county, the defendant in this suit. With a view, apparently, to enable the counties along its route to aid the railroad company in the construction of its road, authority for that purpose was conferred by the act as follows: “Sec. 15. That'any city, town or county through which said proposed road shall pass is hereby authorized to subscribe stock in said railroad company in any amount any such city, town, or county may desire; and that the county court of any such county is authorized to issue the bonds of their respective counties in such amount as thé county court may direct; and the chairman and board of trustees, or mayor and aldermen of any town, and the mayor and aldermen or council of any city, are hereby authorized to issue the bonds of their respective towns or cities in like manner. All said bonds shall be payable to bearer, with coupons attached, bearing any rate of interest not exceeding six per cent, per annum, payable semi-annually in the city of New York, payable at such times as they may designate, not exceeding thirty years from date; but before any such subscription on the part of the city, town or county shall be valid or binding on the same, the mayor and aldermen, or chairman and board of trustees of any town, the mayor and aldermen or council of any city, and the county court of any county having jurisdiction, shall submit the question of any such subscription to the qualified voters of such city, town or county in which the proposed subscription is made, at such time or times as said chairman and board of trustees, or mayor and aldermen of any town, mayor and aldermen or council of any city, or the county court of any county, as aforesaid, may, by order, direct; and should a majority of the qualified voters voting at any such election vote in favor of subscribing said stock in said railroad company, it shall be the duty of such county court, trustees, or other authorities aforesaid, to make the subscription in the name of their respective cities, towns or counties, as the case may be, and proceed to have issued the bonds to the amount of such subscription as hereinbefore directed.” And it was further provided that the application for such proceedings might be made to the judge of the county court instead of the court; whereupon he was vested with the same power. And the railroad. company was authorized to “receive subscriptions of stock to their company by individuals, towns, cities, counties, or other corporations, whether payable in money or other things, with such terms and times of payment, conditions annexed, and kind of payment that may be set forth in the subscription.”</p> <p>On June 17, 1869, upon the request of the commissioners of the railroad company, above named, the judge of the county court entered the order following:</p> <p>“Present, Thos. R. Barnett, Judge.</p> <p>“Whereas the Commissioners of the Cumberland & Ohio Railroad Company, by virtue of the authority delegated to them by the charter of said company, have requested the county court of Green county to order an election in the said county of Green, and to submit to the qualified voters of said county the question whether said county court shall subscribe for and on behalf of said county, two hundred and fifty thousand dollars to the capital stock of the Cumberland & Ohio Railroad Company and payable in the bonds of said county, having twenty years to run, and bearing six per cent, interest from date, and upon condition that said company shall locate and construct said railroad through the said county of Green, and within one mile of the town of Greens-burg, in said county, and shall expend the amount so subscribed within the limits of Green county; and also upon the further condition that said bonds shall not be issued or said county pay any part of the principal or interest on said amount subscribed to said Cumberland & Ohio Railroad Company, until said county of Green is fully and completely exonerated from the payment of the capital stock voted.by said county, and authorized to be subscribed by said Green county court to the Elizabethtown & Tennessee Railroad or any part of the interest thereon. It is therefore ordered by the court that an election by the qualified votes of Green county, at the voting places in said county, be held and conducted by the several officers as prescribed by law for holding elections on the third day of July, 1809, to vote on the question as to whether or not the said county court shall, for, and on behalf of said county subscribe two hundred and fifty thousand dollars to the capital stock of the said Cumberland & Ohio Railroad conditioned and to be paid, as above stated.”</p> <p>The election was held. The vote was in favor of the proposition and was so properly certified. Thereafterwards, and on June 3, 1870, the county judge made an order,' wherein after reciting the proceedings above recited, he says: “I * * * do hereby subscribe for two hundred and fifty thousand dollars of the capital stock of the said Cumberland & Ohio Railroad Company for and on behalf of said county of Green, which subscription is to be paid in the bonds of said county as prescribed in said order of submission, and this subscription is made with the conditions set out in the order of this court ordering said election and now of record in the office of this county.” On October 12, 1871, the county judge ordered the bonds to be printed. The bonds, oí which these in suit were a part, were issued and delivered to the railroad company during the succeeding year, 1872, the bulk of them on or about August 15th, on which day the county judge made the following order:</p> <p>“Present, Thos. R. Barnett, Judge.</p> <p>“Application was this day made to the presiding judge of the county court of Green county, by the president and board of directors of the Cumberland & Ohio Railroad Company to issue the balance of the bonds of said county to the amount of the subscription of said county of Green to said Cumberland & Ohio Railroad Company, and the court being sufficiently advised, it is ordered by the court that the balance of said bonds be and they are hereby ordered to be issued, the same to be signed by the judge of said county court of Green county, and countersigned by the clerk of said court, as required by the charter of said company.”</p> <p>Thereupon the $250,000.00 of the capital stock of the railroad company was delivered to the county, which has since been retained and owned by it. For a time the county raised by tax and paid the interest accruing on the bonds, but thereafter it refused to recognize their validity, and refused to make further payment. The plaintiff is the bona fide holder for value of the bonds and coupons in suit, but had notice that the railroad had not been built further than from the north line of said county to Greensburg, which is about one-quarter of the way. through the county. As to this latter fact, it may be Doted in this connection that only $150,000 of the proceeds of the bonds had béen expended by the Cumberland & Ohio Railroad Company in the construetion of the road, and this was on that part of the road north of Greensburg. This expenditure did not complete that portion of the road, but it was completed by the Louisville & Nashville Railroad Company under the stipulation in a lease to it of its road by the Cumberland & Ohio Railroad Company, but at what cost does not appear. In respect to the conditions of the subscription for stock to pay which these bonds were voted, the facts were these: In 1868 at an election in Green county it had been voted to subscribe for $300,000 of the stock of the Elizabethtown & Tennessee Railroad Company, to be paid for In the bonds of the county. Upon making a record of this election the county court made the following order: “It is now therefore ordered that the clerk</p> <p>of this court, for and on behalf of the comity of Green, make said subscription oobi the terms specified in the order submitting the question to a vote as aforesaid.” But nothing further was ever done in regard to such a subscription either by the county or the Elizabethtown & Tennessee Railroad Company. No stock was issued to the county or bonds issued to the railroad company. Some further incidental facts will be hereafter mentioned in the opinion íd the discussion of the questions involved in the controversy. The bonds in suit, except the numbers given to each bond and the amount therein specified, were In the form following:</p> <p>“United States of America, county of Green, $500.00. State of Kentucky. For the Cumberland & Ohio Railroad.</p> <p>“Twenty years after date, the county of Green, in the state of Kentucky, will pay to the holder of this bond the sum of five hundred dollars with interest thereon at the rate of six per cent, per annum, payable semi-annually upon presentation of the proper coupons hereto attached, for the principal and interest being payable at the bank of America, in the city of Now York.</p> <p>“In testimony whereof, the judge of said county of Green has hereunto set his hand and affixed the seal of said county, on the first day of April, A. D‘. 3871, and caused the same to be attested by the county clerk, who has also signed the coupons hereto attached.</p> <p>“LGreen county seal.] T. R. Barnett, Judge.</p> <p>“D. T. Towles, Olerk.”</p> <p>The conclusion of law by the court below was “that the plaintiff is not entitled to recover, because the conditions upon which the subscription for the capital stock of the Cumberland & Ohio Railroad Company was made, and upon which the bonds sued on were issued, have not been performed or complied with.”</p>

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

<p>1. Frauds, statute of — Contracts Within Statute — Oral Acceptance of Written Offer.</p> <p>A promissory note by which the makers promised to pay a stated sum to the payee on a future date on surrender of certain shares of stock of a corporation, accepted by the payee, is a written contract to take and pay for such shares, and is not within the statute of frauds.</p> <p>2. Bankruptcy — Provable Debts — Debts Owing at Time of Bankruptcy.</p> <p>That a claim arises as a consequence of bankruptcy is sufficient to render it provable as a fixed liability absolutely owing at the date of the filing of the petition, within the meaning of Bankr. Act 1898, § 63a (1), c. 541, 30 Stat. 562 [U. S. COmp. St. 1901, p. 3447].</p> <p>3. Same — Bankruptcy as Anticipatory Breach of Executory Contract.</p> <p>Bankruptcy is such an anticipatory breach of a contract to take and pay for stock of a corporation at a stated price and time, which time was subsequent to the bankruptcy, that a claim for damages for the breach is a provable debt.</p>

<p>Railroads — Accident at Crossing — Contributory Negligence.</p> <p>A street car in Chicago was stopped at a railroad crossing, and the-conductor went forward, as required by the rules, to give the signal to the motorman when the crossing was clear. There were six railroad tracks; the first being a side track on which some freight cars were standing near the crossing, and the second the outbound passenger track. There were two inbound trains approaching on the further tracks, so that the crossing could not then be made, and while waiting the conductor was struck and killed by.the engine of an outbound passenger train on the second track. The tracks were eight feet apart, and, by standing next to the side track in a place of safety, he could have seen approaching trains on any of the other tracks; outbound trains being visible for 600 feet before reaching the crossing. He was familiar with the crossing, and knew that the outbound train was due, and usually waited for it to pass at that time each day. Held, that in unnecessarily going upon-the track while waiting he was guilty of negligence which at least contributed to his death, and precluded a recovery therefor as matter of law, regardless of the question of the negligence of the railroad company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §.1026.]</p> <p>Grosscup, Circuit Judge, dissenting.</p>

<p>1.,Master and Servant — Negligence—Assumption of Risk — Contributory Negligence.</p> <p>The plaintiff, an experienced boilermaker’s helper, was sent to punch some holes in a piece of galvanized iron with a power punch. The die, a piece of tempered steel 2% inches in diameter with a suitable hole in It, lay in a depression in the block so that the punch struck the hole in it true when he went to do his work. This die had been fastened in its place by a set screw which extended through the side of the block and into the die, but this screw had been broken for more than a month, so that the die was loose and there was danger that the punch would raise it from its position and displace it so that the punch would strike the solid steel of the die and injure the operator. The break in the screw and the looseness of the die were not readily observable, and the plaintiff was not aware of them. After he had punched several holes in the iron, and as he was making another, something struck his eye and put it out. After the accident there was a .piece broken off of the point of the punch, and a piece broken off of the side of the hole in the die. Small particles sometimes fly off from galvanized iron when holes are punched in it, but there was no evidence that any serious injury had been known to result from them. Sold:</p> <p>There was substantial evidence of causal negligence of the master. The evidence that the servant assumed the risk or that he was guilty of contributory negligence was not conclusive, and these questions were for the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 958-961, 1005, 1068-1132.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Same — Assumption of Risk — Defect Must be Readily Observable to Raise.</p> <p>The request to charge that if the employe knew or had an opportunity to know of the defect and appreciate its risk he assumed it, or was guilty of contributory negligence, was properly refused because the defect was not readily observable. The true rule is that if the servant knew of the defect, or If It was so plainly observable that he could have seen It by the exercise of ordinary prudence, and if he appreciated that it was dangerous, he assumed the risk of it.</p> <p>Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 584.]</p> <p>3. Same — Contbibutoby Negligence.</p> <p>The servant’s opportunity to know of the defect, which was not obvious or readily observable, was not conclusive evidence of his negligence.</p> <p>The court rightly charged that it was the servant’s duty to use that kind of care for his own safety that an ordinarily prudent man, under similar circumstances with the plaintiff’s experience, would use, and that if he failed to exercise this care and that failure directly contributed to his injury, he could not recover.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 674, 708.]</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>This appeal is from a decree which dismisses for want of equity a bill filed by Citizens’ Savings & Trust Company, as complainant, against the appellee railroad company, upon demurrer to the bill. Tbe suit is for recovery of alleged dividends declared by the appellee upon its stock, -whereof 400 shares were held by it in trust for and equitably the property of the appellant, as adjudicated in a prior suit between the parties. The facts averred in the bill in reference to the stock transactions are substantially the same which are stated, in connection with the opinion of this court, in the above-mentioned prior litigation, reported as Citizens’ Savings & Loan Ass’n et al. v. Belleville & S. I. R. Co., 117 Fed. 109, 54 C. C. A. 495. In reference to the dividends claimed, the averments are in substance: That “on or before the-day of-, 1896,” 4,170 shares of common stock had been issued by the appellee, inclusive of the above-mentioned 400 shares transferred to the appellant under the prior decree, and “on said-day of-, 1896,” a dividend was declared by tbe directors of 19 per cent, upon the common stock, and actually paid upon 3,170 shares; that tbe dividend was not paid upon the appellant’s 400 shares, and payment thereof was demanded and refused on July 28, 1905; that the trust In favor of the appellant existed during the years 1896 and 1897, but it was not notified of such declaration of dividend; that the appellee (railroad company) “concealed the same”; and that your orator exercised reasonable diligence, but did not learn of same “until tbe -day of July, 1905.”</p> <p>This bill was filed March 14. 1906. Nine several grounds for demurrer are stated, namely: (1) The remedy, if any exists under tbe allegations, is complete at law, and jurisdiction in equity does not appear; (2) tbe dividend, as alleged, was payable before complainant became a stockholder; (3) Perry county is a necessary party, and (4) was the stockholder entitled to tbe dividend sued for, if any one -was entitled thereto; (5) the alleged cause of action did not accrue within five years, and is barred by limitation, and (6) did not accrue within 10 years limited by statute; (7) laches appears in delay of suit with no. facts stated to excuse the delay; (8) the prior decree averred in the hill Is res judicata; and! (9) fuli performance thereof appears on the part of defendant. :</p>

<p>1. Bankruptcy — Homestead—Purchase with Nonexempt Funds.</p> <p>In the absence of a local rule to the contrary, the mere use by an Insolvent of nonexempt funds or assets in acquiring a homestead does not make it subject to the claims of his creditors in bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 668-670.]</p> <p>2. Same — Adjudication—Matters Concluded.</p> <p>An adjudication of bankruptcy on a petition charging different acts of bankruptcy, and which does not show upon which one it proceeded, does not render either charge res judicata in the further proceedings.</p> <p>3. Same — Review—Petition to Revise.</p> <p>The decision of a district court reversing that of a referee finding that a bankrupt- was guilty of fraud in a transaction does not necessarily involve a question of law so as to be reviewable on a petition to revise, where, so far as shown by the record, there may have been a conflict of testimony as to the facts.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>4. Same — Rights oe Trustee.</p> <p>There exists no special trust relation between a bankrupt, and his creditors during the four months preceding the bankruptcy which entitles his trustee to avoid his transactions during that time on grounds other than those specified in the bankruptcy act.</p> <p>5. Same — Exemptions—Estoppel to Appeal.</p> <p>The fact that a bankrupt accepted the benefit of an' order of a referee, allowing him certain personal property exemptions, does not preclude him from appealing from a part of the same order relating to his homestead exemption.</p>

<p>1. Writ of Error — Review—Questions Considered.</p> <p>That a verdict is against the weight of the evidence cannot be assigned as error in the federal courts.</p> <p>2. Same — Questions) Presented for Review.</p> <p>To entitle a party to assign as error, in an appellate court, that there was no evidence in support of the verdict rendered, the question must have been presented to the trial court by a motion for direction of a verdict, and due exception taken to its refusal.</p> <p>3. Same — Admissibility of Evidence.</p> <p>To render the rulings of a trial court, admitting or rejecting evidence, reviewable on a writ of error, the record must show an exception, taken to each ruling, assigned as error, and, where an objection was sustained to a question, the answer expected.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 2, Appeal and Error, §§ 1503, 1504.]</p> <p>4. Same — Presentation of Questions to Lower Court.</p> <p>Where it was agreed between counsel that certain printed articles should be taken by the jury, error cannot be assigned because they were not so taken, where no request therefor was made to the court, and consequently no ruling made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, I 1418.]</p> <p>5. Same — Review—Discretion of Lower Court.</p> <p>The refusal of a court to postpone a trial because of the absence of one of a party’s counsel is discretionary, and not reviewable on a writ of error.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3837.]</p>

<p>Evidence — Burden of Proof — Necessity of Competent Evidence to Sustain.</p> <p>In an action by a corporation against its agent to charge him with a balance of money advanced to him to be used for plaintiff and not accounted for, where the receipt of the sums alleged to have been so advanced was put in issue by defendant, the burden of proving such advances rested upon the plaintiff, and was not sustained by the introduction in evidence of defendant’s account as shown on plaintiff’s books, where its secretary testified that many of the debit items in such account were entered by him on hearsay and without any knowledge on his part as to their correctness; nor was the defendant in such case called upon to introduce evidence to impeach the correctness of such entries.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 116, 117.]</p>

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

<p>Appeal from the Circuit Court of the United States for the Northern District of Illinois.</p> <p>.This suit originated at circuit by bill of equity filed by appellee, complainant in the court below, charging appellant, defendant in the court below, with infringement of claim 5 of letters patent of the United States No. 696,940, granted to Marion H. Cazier, April 8, 1902. The opinion of the Circuit Court was to the effect that the claim was not infringed, and a decree was entered ordering that the bill be dismissed for want of equity. Complainant appealed from that decree and the dismissal of the bill, and subsequently, on arguments and brief, this court reversed the decree of the Circuit Court with directions to such court to enter a decree In appellant’s favor for an injunction and accounting. 138 Fed. 654, 71 C. C. A., 104. The case was referred to Harvey W. Booth, Esq., one of the masters In chancery of the Circuit Court for the Northern District of Illinois, to ascertain, take, state, and report to the court the number of infringing articles made by the defendant, and the gains, profits, and advantages which it had received therefrom, together with the damages suffered by complainant by reason of said infringement.</p> <p>After due proceedings had, the master rendered his report, finding that the entire profits which had accrued to the defendant, the Mackie-Lovejoy Manufacturing Company, from the manufacture and sale of said infringing articles amounted to $3,004.11, and awarded all of such profits to the complainant, and, in addition, held the defendant liable to complainant for damages suffered by reason of a reduction in the selling price of his articles on account of said infringement to the amount of $2,092.81, total amount found for complainant being $5,096.92. To this report defendant filed 15 objections, and after due consideration thereof the master, on October 6, 1906, overruled each and all of said objections. On November 14, 1906, the defendant took exceptions to the master’s report — 19 in all — and the court below, after hearing arguments and briefs on behalf of both parties, affirmed said report, ordering, adjudging, and decreeing that the complainant have and recover said amounts as profits and damages from the defendant, and also pay to complainant the costs In said suit to be taxed, etc.</p>

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

<p>1. Injunction — Right to Damages fob Wrongful Injunction.</p> <p>A formal injunction bond is not an indispensable prerequisite to the-assessment of damages on the dissolution of an injunction, but the court has power, on the granting of an injunction, to impose as a condition that complainant shall pay any damages sustained by defendant in case it shall be determined that the injunction should not have issued, and in such case, if complainant avails himself of the writ, he is bound by the condition, and on dissolution of the injunction damages may be awarded the defendant.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 27, Injunction, §§ 397-407.]</p> <p>2. Same — Adjudication of Wrongful Issuance.</p> <p>The dismissal of a bill on the merits for want of equity, and the dissolution of a preliminary injunction issued thereon, is a determination that the injunction was wrongfully issued for the purpose of entitling the defendant to recover the damages thereby sustained, although it may have been properly granted on the showing made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 397-407.]</p> <p>3. Appeal — Final Decree — Reference on Collateral Matter.</p> <p>A decree dismissing a bill for want of equity, dissolving a preliminary injunction previously granted and awarding damages to defendant for-its wrongful issuance, is final, and may be appealed from, notwithstanding the fact that it directs a reference to ascertain the amount of such-damages, which relates to a matter not within the issues.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error,. § 476.]</p>

<p>1. Public Lands — Suit fob Adjustment of Railroad Grant — Equity Jurisdiction.</p> <p>A suit by the United States, brought under Act March 3, 1887, e. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], or Act March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], to recover from a railroad company the price of lands erroneously patented to the company under a grant and resumed by the former act, but which had in. the meantime been sold to bona fide purchasers whose titles are protected by such acts, is within the cognizance of a court of equity, where the sales cover numerous tracts and were made during a series of years, and the bill prays for a discovery and accounting with respect thereto, and, having obtained jurisdiction for such purpose, the court, from the evidence so obtained, may determine the amount due the complainant and render judgment therefor.</p> <p>[Ed. Note. — Jurisdiction of federal courts in suits under public land laws, see note to Bailey v. Mosher, 11 O. C. A. 314.]</p> <p>2. Same — Validity of Statute.</p> <p>Act March 3, 1887, e. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], and Act March 2, 1896, c. 39, 29 Stat. 42 [U. S. Comp. St. 1901, p. 1603], providing for the forfeiture of unearned railroad land grants or lands erroneously patented thereunder, and authorizing suits by the United States to recover the price of such lands which had been sold by the grantee companies to bona fide purchasers, do not purport to alter or repeal the original grants, but are independent acts passed by Congress in the exercise of its constitutional power to protect the property of the United States, and their validity is not dependent on any reservation of the power of repeal in the original granting acts.</p> <p>[Ed. Note — Bona fide purchaser, see note to United States v. Detroit Timber & Lumber Co., 67 C. C. A. 13.]</p>

<p>1. Bankruptcy — Composition—Grounds for Refusal to Confirm.</p> <p>The provision of Bankr. Act July 1, 1898, e. 541, § 12d, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], that the judge shall confirm a composition if satisfied “(1) that it is for the best interest of the creditors,” requires the judge to determine that question independently of the decision of the majority of the creditors; but their decision is prima facie evidence that the composition is for their best interest, and the burden rests upon objecting creditors to show such gross discrepancy between the offer and the amount to be reasonably expected from a sale of the assets as to justify a refusal to confirm.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 591, 592.]</p> <p>2. Same.</p> <p>The liabilities of a bankrupt corporation amounted to $17,079.84 and the claims filed to $10,092.64. The assets as scheduled were $10,753.29, which were appraised at $4,583.45. They consisted chiefly of the stock arid fixtures of a drug store, and included a soda fountain and attachments and other property of considerable value held under contracts of conditional sale and only partially paid for. Held, that an offered composition of 30 per cent., accepted by a majority of the creditors in number and amount, should be confirmed.</p>

<p>Mortgages — Suit for Foreclosure — Necessary Parties.-</p> <p>Where both the bill for the foreclosure of a mortgage against a sole defendant and the answer of such defendant allege that the entire interest of the mortgagor in the property has passed to the defendant, although the bill alleges that it passed by descent on the death of the mortgagor, and the answer that he acquired it by purchase, the heirs of the mortgagor are not necessary parties to the suit.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1272-1287.]</p>

<p>In Bankruptcy. On review of decision of referee.</p> <p>This is a proceeding to review the findings and final order of John S. Maxwell, Esq., referee in bankruptcy, in the matter of the intervention of K. K. Knapp. The entire property of the bankrupt was by it turned over to the receiver, and subsequently to the trustee in bankruptcy, who retained possession of the same until such property was sold free and clear of incumbrances, under an agreement with mortgagee that proceeds should stand in place of property, for the purposes of determining the rights and equities of the parties. The bankrupt, a Wisconsin corporation, under its articles of association, was impowered to manufacture and sell all appliances and apparatus suitable for telephone purposes, and to operate telephone lines and exchanges, and to conduct the business of telephoning in any way. It had established and was, at the time of the adjudication, operating one small telephone exchange at the village of Sheridan, Wis., but its principal business was manufacturing and selling apparatus. Aside from such small telephone exchange, the assets of said bankrupt consisted of a stock in trade and trade fixtures at Milwaukee, Wis., where it had carried on its manufacturing business. One K. K. Knapp, as trustee under certain bonds secured by chattel mortgage upon such stock in trade, etc., intervened and filed a petition in this court, wherein he claimed a first lien by virtue of certain chattel mortgages, executed by the bankrupt to him as trustee to secure certain bonds, praying that the trustee in bankruptcy be required to answer his petition, and that the mortgage be decreed to be a first lien to be first satisfied out of the proceeds of the sale of assets. Thereupon the trustee in bankruptcy, by his answer to the petition, assailed the validity of the mortgage upon three grounds, viz.: First, that the chattel mortgage is fraudulent and void as to creditors, because of the express agreement contained therein that the mortgagor should remain in possession, continue the conduct of the business and sale of the mortgaged property, and apply the proceeds to its own use; second, that the mortgage is void as to after-acquired property; third, that the mortgage is void as to general creditors, and the trustee in bankruptcy, because of the failure to file the affidavit of renewal required, by the Wisconsin statutes, No issue of fact was developed by the proof, and the case must be ruled by the application of legal principles.</p> <p>It appeared that the trustee in bankruptcy represented only general creditors ; that the mortgage was not renewed at the expiration of two years, as required by sections 2315, 2316 of the Revised Statutes of 1898 of Wisconsin; and that no statement in writing was filed of the amount of sales, etc., as required by section 2316b of the Revised Statutes of 1898; that ever since the execution of the chattel mortgage the bankrupt company, in the course of its business, made sales from the mortgaged property and applied the proceeds to its own use; and that said property was at all times in the possession of the mortgagor. The referee finds that said K. K. Knapp at all times knew that the business was being so transacted, and that it was at all times contemplated and understood by and between said parties that the business should be so transacted, and sales of the mortgaged property so made, and the proceeds so applied to its own use. As conclusion of law the referee found that the mortgage was fraudulent and void as to the creditors of the bankrupt, and dismissed the petition. It appears that the original chattel mortgage was supplemented by a new mortgage for the purpose of extending time of payment of bonds, but for the purposes of this discussion it may be treated as a single document. The bank of Wisconsin, a simple creditor, asked to intervene, and the bankrupt also answered the petition, both setting up substantially the same defenses as were interposed by. the trustee.</p> <p>The ruling of the referee was largely based on the following provisions of the chattel mortgage: “Nothing herein contained shall be construed to prevent said first party from carrying on in the due and regular course its said business, and collecting the indebtedness and moneys due or to become due therein, and applying the same to its own use except as hereinafter provided. Said first party further agrees that no dividend shall be declared or paid on its capital stock at any time when any portion of said sinking fund or the interest on said bonds shall not have been duly provided for according to the terms of this indenture.”</p> <p>It is further provided that upon application of the first party the trustee (Knapp) may waive the payment of said sinking fund for any quarter, and in the event of said trustee electing not to require such payment for such sinking fund the moneys which would otherwise have been placed therein shall remain at the disposition of said first party, to be divided as dividends, or to enlarge, extend, improve, and repair such business, etc. No fraud in fact was imputed to the bankrupt company, or to Knapp, the trustee, or to the bondholders. The bonds were executed and delivered for a valuable consideration. Said mortgage provides for a sinking fund of $500 quarterly, $2,000 annually, out of the net proceeds, or, if necessary, out of general resources, and it was stipulated that no dividend should be declared or paid on capital stock, when any portion of said sinking fund, or the interest on said bonds, should not have been duly provided for.</p> <p>The following are the sections of the Wisconsin statutes to which reference will be made:</p> <p>“Section 2310. Every sale made by a vendor, of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor or the creditors of the person making such assignment or subsequent purchasers in good faith; and shall be conclusive evidence of fraud unless ■it shall be made to appear on the part of the persons claiming under such sale or assignment that the same was made in good faith and without any intent to defraud such creditors or purchasers.”</p> <p>“Section 2313. No mortgage of personal property shall be valid against any other person than the parties thereto unless the possession of the mortgaged property be delivered to and retained by the mortgagee or unless the mortgage or copy thereof be filed as provided in the next section, except when otherwise directed in these statutes,” etc.</p> <p>“Section 2315. Every such, mortgage shall cease to be valid, as against the creditors of the person making the same or subsequent purchasers or mortgagees in good faith, after the expiration of two years from the filing of the same or a copy thereof unless within thirty days next preceding the expiration of the two years the mortgagee, his agent or attorney shall make and annex to the instrument or copy on file an affidavit setting forth the interest which the mortgagee has by virtue of such mortgage in the property therein mentioned, upon which affidavit the clerk shall indorse the time when the same was filed.”</p> <p>Section 2316b provides in substance that every mortgagor of any stock of goods, etc., of which he is in possession, and from which he is permitted to make sales and apply proceeds upon the debt, shall file a statement showing amount of sales, amount applied on mortgage, and amount of new stock bought, etc., every 60 days, and upon failure to file such statement the debt shall become immediately due, and after 15 days the mortgage shall cease to be a lien except as between the parties.</p>

<p>Limitation of Actions — Action tjndeb Statute of Anotheb State — Limitation Applicable.</p> <p>Cal. Code Civ. Proc. § 377, gives a right of action for wrongful death without qualification or limitation as to the time within which action must be brought, which is governed by section 340, being a part of the general statute of limitations. Such limitation, therefore, pertains to the remedy and not to the right, and) an action based on such statute brought in another state is governed as to limitation by the law of the forum.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 4, 7.</p> <p>Bar of action as determined by limitations of state other than that in which action is brought, see note to Martin v. Wilson, 58 C. C. A. 186.]</p>

<p>Bankruptcy — Discharge—Grounds fob Refusal.</p> <p>A materially false statement in writing, made by a bankrupt for the purpose of obtaining property on credit, to debar him from the right to a discharge under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Supp. 1907, p. 1026], must have been either knowingly false or made so recklessly as to warrant a finding that he acted fraudulently. Such a statement of assets and liabilities, made by a merchant from his books and believed by him to be correct, will not warrant a denial of his discharge in bankruptcy, although it was in fact materially erroneous, by reason of the failure of his bookkeeper, through illness, to enter on the books certain liabilities which existed at the time the statement was made, and which were in consequence omitted therefrom.</p>

<p>Maritime Liens — Mariners’ Services — Domestic Vessel Not in Commission.</p> <p>Services rendered to a domestic vessel after she has been laid up at a wharf for the winter, in pumping her out, attending to her lines, etc., are not those of a mariner, and cannot be made the basis of a maritime lien.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Liens, § 31.]</p>

<p>1. Maritime Liens — Right to Lien — Construction.</p> <p>An admiralty lien is to be construed strict! juris, and cannot be extended by construction, analogy, or inference.</p> <p>2. Admiralty — Jurisdiction—Maritime Contract — Lease of Wharf.</p> <p>A lease to a steamer and owners of the privilege of running a line of steamers from a wharf for a certain term for a gross rental, which gives the lessee the exclusive right to use the wharf during such term, and contains a covenant on his part to restore it in as good condition as when the lease went into effect, with certain exceptions, and which makes the rent payable, whether or not the wharf is used by the lessee, is not wholly a maritime contract, and cannot be enforced in a court of admiralty, nor can the lessor be permitted to waive the contract and enforce a lien on the vessel named for wharfage for such use as she in fact made of the wharf; the rights and remedies of the parties being governed by the contract as made.</p> <p>[Ed. Note. — Jurisdiction as to matters of contract, see notes to The Richard Winslow, 18 O. O. A. 347; Board of Com’rs v. Howard, 27 C. O. A. 530.]</p>

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

<p>Collision — Tows Meeting — Mutual Faults of Tugs.</p> <p>A collision in upper New York Bay at night between a barge at the tail end of a tow of 13, having three tiers of 4 each ahead of it, being towed down the bay by. the tug Pencoyd, and a mud scow in tow of the tug Gilkinson coming up on a hawser of 40 fathoms, held due to the faults of both tugs; that of the Pencoyd consisting in attempting to navigate so large a tow of vessels, all light, in a 40-mile wind without a helper, in consequence of which her tow sagged to the eastward, and in failing to maintain a lookout, and that of the Gilkinson in not paying' due attention to her tow, and in changing her course to port too soon after passing the Pencoyd.</p> <p>(Ed. Note. — For cases in point, see Cent Dig. vol. 10, Collision, §§ 78, 79.]</p>

<p>In Equity. This was a suit by a trustee in bankruptcy to recover as a preference the amount of two notes of the bankrupt which were paid to defendant bank by his attorneys within four months prior to the bankruptcy and after the debtor had absconded. Three days before such payment, a petition in bankruptcy had been filed against' the bankrupt by the “Middlesex Dry Goods Company,” which was merely a business name adopted by an individual. The adjudication was made upon a petition subsequently filed by other creditors.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>These proceedings relate to an importation into the port of New York by G. W. Faber, with respect to which the Board of General Appraisers affirmed the assessment of duty as made by the collector. The decision of the Board, which is reported as G. A. 6,520 (T. D. 27,847), reads as follows:</p> <p>HAT, General Appraiser. These protests raise a question as to the construction to be placed upon certain paragraphs of the treaty between the United States of America and the Republic of Cuba, as the same was approved by Congress on December 17, 1903 (32 Stat. 4136). The protestant’s contention is that by the provisions of this treaty certain cigars and other commodities imported from Cuba should be admitted into the ports of this country upon the payment of customs duties 20 per cent, less than the rates paid upon like commodities coming from the Philippine Islands, which, under existing laws, pay 75 per cent, of the rates provided for in the tariff act of 1897, and that certain alcohol, by virtue of said provision, should be admitted into the ports of the United States upon-the payment of customs duties of 20 per cent, less than are charged upon like merchandise coming from France, Germany, Italy, or Portugal, which merchandise coming from these countries, under certain reciprocity agreements made and entered into under Tariff Act July 24, 1897, c. 11, § 3, 30 Stat 151 [U. S. Comp. St. 1901, p. 1627], is admitted into this country at the rate of $1.75 per proof gallón. The rates of duty applied to all of such merchandise by the collector in the cases now before us were 20 per cent, less than the regular duty provided therefor by the act of 1897.</p> <p>The stipulations of the treaty .which touch upon the questions here under consideration are contained in articles 2 and 8. Article 2 reads as follows (33 .Stat. 2137): “Art. 2. During the term of this convention, all articles of merchandise not included in the foregoing article 1, and being the product of the soil or industry of the Republic of Cuba, imported into the United' States, shall be admitted at a reduction of twenty:per.centum of the rates of duty thereon as provided by the tariff act of the United States approved July 24, 1S97, or as may be provided by any tariff law of the United States subsequently enacted.” The pertinent part of article 8 reads as follows (33 Stat. 2140): “Art. 8. The rates of duty herein granted by the United States to the Republic of Cuba are and shall continue during the term of this convention preferential in respect to all like imports from other countries, and in return for said preferential rates of duty granted to the Republic of Cuba by the United States it is agreed that the concession herein granted on the part of the said Republic of Cuba to the products of the United States shall likewise be, and shall continue, during the term of this convention preferential in respect to all like imports from other countries.” The remainder of this article relates entirely to the importation of sugar.</p> <p>The contention of the importer is that the stipulation of article 8 that the rates of duty granted to the United States to the Republic of Cuba are' and shall continue during the terms of the convention preferential in respect to all like imports from other countries must influence and control all other stipulations of the treaty, and that the Philippine Islands are another country within the meaning of this article. A question very similar to this was under consideration by this board in the Franklin Sugar Refining Company’s Case, G. A. 5,980 (T. D. 26,180), wherein it was contended that, under the provisions of article 2, sugar coming from the island of Cuba should be admitted at 20 per cent, less than 75 per cent, of the regular rate charged upon like commodities coming from the Philippine Archipelago, by reason of the concluding language of said article, which, after fixing the rate at 20 per cent, of the duty provided in the act of 1897, reads: “Or as may be provided by</p> <p>any tariff law of the United States subsequently enacted.” With reference to that the board in its opinion said: “This clause manifestly refers to any general tariff law which may supersede the present Dingley act, and not to any special law like that governing our tariff relations with the Philippine Islands.” It was pointed out that this conclusion was sustained by the proviso of article 8, which has no bearing upon the case now under consideration, as it refers entirely to sugar. In the case of Fourteen Diamond Rings v. U. S., 183 U. S. 179, 22 Sup. Ct. 59, 46 U. Ed. 138, it was held that when the Philippine Islands ceased to be Spanish they ceased to be foreign country. In De Lima v. Bidwell, 182 ü. S. 180, 21 Sup. Ct. 743, 45 L. Ed. 1041, the definition given years ago by Chief Justice Marshall, that a foreign country' was one exclusively within the sovereignty of a foreign nation and without the sovereignty of the United States, was reaffirmed; and the same doctrine, in a general way, has been announced in a large number of cases. The Ship Adventurer, 1 Brock. 235. Fed. Cas. No. 93; The Boat Eliza, 2 Gall. 4, Fed. Cas. No. 4,346; Taber v. U. S., 1 Story, 1, Fed. Cas. No. 13,722; U. S. v. Recorder, 1 Blatch. 218, Fed. Cas. No. 16,130.</p> <p>So far as it has application to the question involved in these cases, we are unable to see any difference between the librase “foreign country,” as used in these decisions, and the phrase “other countries,” as used in article 8 of the Cuban treaty. “Other countries” means countries other than the United States. To be a country other than the United States, that country must be a country foreign to the United States; that is, a country “exclusively without the sovereignty of the United States.” The Philippine Archipelago is no more another country than Alaska, Hawaii, or Porto Rico. None of them are states of the American Union; but the government under which the people of each live is prescribed by the American Congress, and all are within the sovereignty of the United States. Commodities from Alaska, Hawaii, and Porto Rico are all admitted into the United States free of duty, the same as commodities from Florida are admitted into New York or Pennsylvania. “It would bo as reasonable, therefore, to ask that the commodities of Cuba be admitted at 20 per cent, less than the commodities of Porto Rico, which are admitted free of duty, as that they should be admitted at 20 per cent, less than the products of the Philippine Archipelago, which are admitted at 75 per cent, of the duties prescribed by the act of 1897. This, we think, is conclusive, and it .disposes of the importer’s contention, so far as the same is based upon the preferential Philippine tariff. . ,</p> <p>But there is another aspect of the case which we think not only disposes of that contention, but also of the contention that the alcohol' covered by the protests should. be admitted at 20 per cent, below' the rate charged under reciprocity agreements on alcohol coming to the United States from France, Germany, Italy, or Portugal. Article 2 of the Cuban treaty is specific, and expressly declares that the rates of duty upon certain Cuban commodities shall be 20 per cent of the rates provided by the tariff act of 1897; while article 8 is, to say the least, exceedingly general in its terms. It is a principle of the law of contracts, equally applicable, we think, to a treaty, that where two stipulations of a contract or agreement in writing shall conflict, the one which is the more specific shall control. These provisions of article 8, not being direct in terms, are not and cannot be self-acting. The provisions of article 2 are self-acting. Further than this we do not feel called upon to interpret or express any opinion as to the meaning of the language used in article 8 or the intention of the high contracting parties in adopting it. If we were to hold that it varied the provisions of article 2 to the extent of the importer’s contention, it would follow as a logical consequence that every tariff concession made by the United' States to another country would ipso facto reduce the rate upon like commodities coming from Cuba. We think the question is parallel with that which has so frequently arisen relative to the favored nation clause contained in the treaties between the United States and many of the European countries. In discussing the effect of that clause the Supreme- Court, in Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. 456, 31 L. Ed. 386, said: “It was never designed to prevent special concessions, upon sufficient consideration, touching the importation of specific articles into the country of the other. It would require the clearest language to justify a conclusion that our government intended to preclude itself from such engagements with other countries, which might in the future be of the highest importance to its interests.”</p> <p>The provisions of article 8 do not, in our judgment, in any way vary or affect the clear and express stipulations of article 2. These provisions could not act automatically; and, in the absence of legislation giving force and effect to them, the question as to whether or not the products of the soil or industry of Cuba should, under the language of that article, be admitted at a rate preferential in respect to like imports coming from countries with which we have reciprocal, agreements, reducing the regular rates, is a political one, of which this board and the courts have no jurisdiction, and which can be settled only by the high contracting parties through the channels of diplomacy. Nicholas’ Case; G. A. 5,670 (T. D. 25,260); Bartram v. Robertson, 122 U. S. 116, 7 Sup. Ct. Hi 5, 30 L. Ed. 1118; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. 456, 31 L. Ed. 386.</p> <p>■ The protests are qverruled. .</p>

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

<p>1. Release — Release as Defense — Fraud Which Will Avoid Release at Law.</p> <p>The only fraud which may be availed of in an, action at law in a federal court to avoid a formally executed release of the claim sued on is misrepresentation, deceit or trickery practiced to induce the execution of a release which the signer never intended to execute and upon which the minds of the contracting parties never met, and .does not include any of those misrepresentations of fact which may have been resorted to in order to persuade the claimant to agree to the release as actually máde. In such respect it is immaterial whether the release is or is not under seal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Release, § 32.]</p> <p>2. Courts — Federal Courts — Equitable Defense in Action at Law.</p> <p>In the federal courts, the rule subsists that the distinction, between legal and equitable defenses is always recognized, and such rule cannot be affected by state legislation or practice permitting equitable defenses in actions at law.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, §§ 912, 913.]</p> <p>3. Release — Defense in Action at Law — Pleading in Avoidance — Fraud.</p> <p>In an action on an accident insurance policy in which a formal release of the claim executed by defendant for a stated consideration was pleaded as a defense, a replication which in effect denied that plaintiff executed a release but alleged that if she did it was procured by fraud and deceit in that defendant’s agents represented to her that defendant was not liable on the policy and read affidavits to her purporting to state facts, known to them to be untrue, in support of such representation, whereby she was induced to accept a sum of money from defendant which purported to be a gift, does not state such a case of fraud as would avoid the release at law.</p>

<p>L Corporations — Foreign Corporations — Liability of Directors Under Montana Statute.</p> <p>Civ. Code Mont. § 451, as amended by Act Feb. 26, 1903 (Laws 1903, p. 45, c. 32) providing that “every corporation having a capital stock” shall annually, and within 20 days from and after the 31st day of December, make a report, which shall state the amount of its authorized capital, and what portion has been paid, and the amount of its debts, and that, if any such corporation shall fail to make such report, its directors shall be jointly and severally liable for all debts of ’ the'corporation then ■existing or which may be thereafter contracted until such report shall be made and filed, being general in its language and having been changed into its present form after the adoption of the state Constitution, article 15, § 11, of which provides that no foreign corporation “shall have or be allowed to exercise or enjoy within this state any greater rights or privileges” than those possessed or enjoyed by domestic corporations, applies alike to domestic and foreign corporations doing business within the state, and the failure of such a foreign corporation to make the required report renders its directors liable for the existing debts of the corporation.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 12, Corporations, §§ 2529, 2530.]</p> <p>2. Constitutional Daw — Retbospective Daws — Amendment of Statute.</p> <p>The amendment of such section of the statute by Act Feb. 26, 1903 (Daws 1903, p. 45, c. 32), which merely changed the time when the report is required to be filed, does not render it a retrospective law, within the prohibition of Const. Mont. art. 15, § 13, as applied to debts of a corporation contracted before , its enactment.</p> <p>3. Appeal and Ebbob — Review—Excessive Judgment.</p> <p>That a judgment is excessive cannot be assigned for error in the Circuit Court of Appeals.’</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3944-3947.]</p>

<p>1. Railroads — Injury of Person at Crossing — Contributory Negligence-</p> <p>Question for Jury.</p> <p>Where plaintiff,-who was driving upon a city street in the evening, on approaching a railroad crossing having four tracks, stopped on signal of the flagman before reaching the first track, and waited until some engines had passed, and then in. obedience to a signal of the flagman started on after first looking and listening,. and was struck by a train on the second track, the question whether or not he was guilty of contributory negligence in failing to continue to lobk and listen after starting across was not one of law but of fact, to be determined by the jury, in view of the circumstances of the particular case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 1187.]</p> <p>2. Same — Duty to Look and Listen — Signal from Flagman.</p> <p>The placing of gates or the stationing of flagmen at railroad crossings In a city are not duties imposed by statute or municipal ordinance on railroad companies, or voluntarily assumed by them, for the purpose of relieving the traveler on the street from taking those precautions for his own safety required by the long-settled rule of law, but as additional precautions to meet the increased peril resulting from local conditions In cities; and open gates, or a signal from a flagman to cross, do not relieve a traveler from the duty to look and listen before entering upon the tracks.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 1072.]</p>

<p>Internal Revenue — Distiller's Bond — Liability of Surety for Tax.</p> <p>Where the government made an assessment against a distiller of the tax on spirits made from material used and not reported, and a portion of such spirits were found seized and sold, and the tax on such part paid from the proceeds, the surety on the distiller’s bond, when charged with liability for the assessment, is entitled to credit for the part of the tax so paid, but not for the remainder of the proceeds of the sale.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Internal Revenue, §§ 64, 65.]</p>

<p>1. Master and Servant — Assumption of Risk.</p> <p>An employs who was at work in a tunnel from 5]/> to 7 feet in height, repairing the track of a railroad operated by electricity by means of a trolley which ran on a wire suspended 5 or 6 inches beneath the right side of the roof of the tunnel, who had been warned to look out for the wire, that contact with it might kill him, and who had been once knocked down by electricity from it, stopped from his work of driving a wedge under a rail beneath the wire, arose from his stooping position until his neck struck it and was killed by the electricity therefrom. Reid:</p> <p>The employs assumed the risk of injury from the wire by entering and continuing in the employment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]</p> <p>2. Same.</p> <p>A servant, by entering or continuing in the employment of a master, assumes the risks and dangers of the employment which he knows and appreciates, and those which an ordinarily prudent and careful person of his capacity and intelligence would have known and' appreciated in his situation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]</p> <p>3. Same — Defects Arising from Negligence of Master.</p> <p>Among the risks and dangers which the servant assumes by entering or continuing in the employment without complaining of them are those which arise from defects that are obvious or readily observable through the failure of the master to completely discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and with reasonably safe appliances to use.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 610-624.]</p> <p>4. Same — Estoppel from Denying Appreciation.</p> <p>An employe cannot be heard to say that he did not appreciate or realize the risk or danger where the defects were obvious, and the dangers would have been apparent to an ordinarily prudent person of his intelligence and experience in his situation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 610-624.]</p> <p>5. Same — Peremptory Instruction when Próper.</p> <p>Where the uncontradicted evidence discloses the fact that the defects in the place or machinery or method of operation were obvious, and the danger from them apparent to an ordinarily prudent person of the intelligence and capacity of the servant, and that the servant entered upon or continued in the service without complaint of them, the defense of assumption of risk is conclusively established, there is no question for the jury, and the court should instruct them to return a verdict for the master.</p> <p>[Ed. Note. — Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>(Syllabus by the Court)</p>

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

<p>1. Copyrights — Infringement—Action foe Statutory. Penalty.</p> <p>Strict construction and proof are required In an action under Rev. St. § 4965 [U. S. Comp. St. 1901, p. 3414], to recover the penalty thereby authorized for infringement of a copyright.</p> <p>2. Same — Common Law and Statutory Copyright.</p> <p>The common law gives the author of a painting the exclusive right to reproduce the same so long as he does not make publication, but on publication such right is lost, and he can only acquire the right to further protection by a statutory copyright.</p> <p>[Ed. Note. — For cases in paint, see Cent. Dig. voi. 33, Literary Property,’ § 4.</p> <p>Rights of authors to control of publication, disposition, or use of their productions independent of statutory copyright, see note to Bobbs-Merrill Co. v. Straus, 77 C. C. A. 620.]</p> <p>3. Same — Validity—Double Copyrighting.</p> <p>But a single valid copyright can be obtained upon the same subject-matter ; and an artist by depositing the name and description of a painting in the prescribed office did not acquire a copyright thereon, where he had previously deposited a photograph of the same painting under a different name and description for the purpose of obtaining a copyright, unless it is shown by proof that such prior deposit was inoperative.</p>

<p>1. Limitations of Actions — Colorado Statute Bars Three Years after Discovert of Facts Which Would Awaken Inquiry.</p> <p>The statute of Colorado (section 2911, Mills’ Ann. St.), which requires bills for relief on the ground of fraud to be filed within three years after discovery of the facts constituting the fraud, bars such suits three years after the discovery of facts which would awaken a person of ordinary prudence to an inquiry, which, if pursued with reasonable diligence, would lead to a discovery of the fraud.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 480-493.] ■</p> <p>2. Equity — Laches—Applied in Analogy to Statute — Burden on Complainant to Prove Diligence after Statutory Period.</p> <p>The federal courts, sitting in equity, are not bound by, but they apply the doctrine of laches in analogy to, the statute of limitations of actions at law, and, in the absence of extraordinary facts and circumstances, decline to sustain suits commenced after the statutory period.</p> <p>If a complainant would maintain a suit instituted after the expiration of the statutory limit, he must plead and prove especial facts or circumstances which show that he was not guilty of laches which take his case out of the ordinary rule and make it equitable to allow its maintenance after the statutory period has expired.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 19, Equity, §§ 242-244.]</p> <p>3. Same — Failure to, Discover Fraud — Pleading and Proof Requisite to Excuse.</p> <p>If he failed to discover the fraud within the statutory limit, he must plead and prove the time when he discovered it, the means by which he found it out, the impediments which prevented its earlier discovery, and the diligence he exercised.</p> <p>If by the exercise of ordinary ,,diligence he could have discovered it in time to have brought his suit within the limit fixed by the statute, he was guilty of laches, and his suit cannot be maintained.</p> <p>| Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 242-244.]</p> <p>4. Same — Laches—Facts—Conclusion.</p> <p>Complainant had a judgment against T. in 1885 which he could not collect. In January, 1889, two tracts of land were conveyed to S., a sister of T., who in February, 1889, conveyed them to Thomson, who in November, 1895, conveyed them to Mrs. T. and Mrs. C., the wife and daughter of S., respectively. T. died on March 14, 1896, and the deeds were first recorded on March 16, 1896. Complainant brought suit to subject the property to the payment of the judgment more than five years after the deeds were recorded. The statutory limitation was three years after discovery of the fraud. The complainant first discovered in January, 1901, by inquiry among the friends and neighbors of T. that S. was his sister, and by search in the indices of the records, the conveyances in question, and no reason why an earlier discovery was not made, except the pendency of a suit to cancel the judgment, was shown. Held:</p> <p>Complainant failed to establish any sound reason in equity why the doctrine of laches should not be applied in analogy to the statutory limitation, and he could not recover.</p> <p>Ordinary diligence required him to examine the records in the name of T., at least once in three years, and if he had exercised the same diligence in 1896 or 1897 that he used in 1901, he would have discovered the fraud.</p> <p>(Syllabus by the Court.)</p>

<p>Internal Revenue — Action on Distiller’s Bond to Recover Taxes — Defenses.</p> <p>Rev. St. § 3221, as amended by Act March. 1, 1879, c. 125, § 6, 20 Stat. 341 [U. S. Comp. St. 1901, p. 2087], which provides that when any distilled spirits deposited in warehouse are destroyed by accidental fire or other casualty without fraud, collusion, or negligence of the owner thereof no taxes shall be collected on such spirits, confers on such owner a legal right which is enforceable in the courts, and is not dependent on the discretionary action of the Secretary of the Treasury, and such destruction of spirits in a warehouse by accidental fire may be set up as a defense to an action by the government on a distiller’s bond to recover tile taxes thereon.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 29, Internal Revenue, § 70.]</p>

<p>1. Fraud — Action for Deceit — Grounds.</p> <p>An action for fraud and deceit must be predicated on existing facts and not of matters possible to arise, and the plaintiff's pleading must allege that the representations were false and that plaintiff was misled thereby to his injury.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 23, Fraud, §§ 37, 40, 41.]</p> <p>2. Same — False Representations — Nature.</p> <p>Allegations in the complaint in an action for fraud and deceit that plaintiff was induced to buy certain bonds of a corporation by false representations are not supported by a letter, written by defendant to plaintiff, in which he gave her the numbers of the bonds to be sold, stated that the bond issue was arranged so that one-tenth would fall due each year and the maturity of each bond was stated on its face, that the bonds offered came in before those owned by defendant and his associates, and that, “indeed, you may be said to hold the preferred place on the list”; the only representation made which could in any event be actionable being that as to the preferential character of the bonds offered, which, construed in the light of the other statements, clearly meant no more than that they matured before those bearing higher numbers in the series, and which was not shown to be untrue, there being no allegation in respect to any bonds owned by defendant and his associates.</p> <p>3. Same — Construction of Writing.</p> <p>Where no other means were employed to induce a plaintiff to accept a proposition for a sale of bonds than the language contained In a writing, plaintiff cannot be heard to say that, because of his or her inaptness In comprehending on examination the ordinary import and common acceptation of the terms employed, they must be made to mean more or other than what they express.</p> <p>4. Same — Evidence—Relevancy to Issues.</p> <p>Where the complaint in an action for fraud and deceit alleged that the representations made were in writing and made to plaintiff, oral statements made by defendant to a third person are not admissible in support of such complaint.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Fraud, §§ 44, 45.]</p>

<p>1. Mines and Minerals — Mining Claims — Public Lands — Asphaltum in Veins Locatable by Lode Claims, but not by Placer Claims.</p> <p>Asphaltum in lodes or veins in rock in place may be entered and patented by means of lode mining claims under section 2320, Rev. St. [U. S. Comp. St. 1901, p. 1424], and it may not be-secured by means of placer claims under section 2329, nor under Act Feb. 11, 1897, c. 216, 29 Stat. 526 [U. S. Comp. St. 1901, p. 1434], regarding the entry of lands containing petroleum or other mineral oils.</p> <p>2. Same — Lode and Placer Claims — Distinguishing Test, Form or Character of Deposits — Whether in Lodes or Not.</p> <p>The distinguishing test which determines whether or not a valuable mineral deposit may be secured by a lode claim or by a placer claim is the form and character of the deposit. If it is in a vein or lode in rock in place, it may be secured by a lode claim, and it may not be by a placer claim. If it is not in a vein or lode in rock in place, it may be secured by a placer claim, and may not be by a lode claim.</p> <p>3. Same — Construction—“Other Valuable Deposits” in Section 2320, Revised Statutes, Includes Nonmetallifebous Deposits.</p> <p>The words “other valuable deposits” in the clause “mining claims upon veins or lodes of quartz, or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits” in section 2320, Rev. St. [U. S. Comp. St. 1901, p. 1424], includes nonmetalliferous, as well as metalliferous, deposits.</p> <p>(Syllabus by the Court)</p>

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

<p>Trial — State Statutes as Evidence — Presentation to Jury.</p> <p>Plaintiffs, claiming a lien thereon for wages under the statutes of Vermont, and also a general indebtedness, attached certain logs and pulp wood in the possession of a contractor, who had agreed to sell and deliver the same to defendants in New Hampshire, and had given them a mortgage thereon. Pursuant to some agreement made between one of the plaintiffs and one of the defendants, plaintiffs released the attachment, and the property was delivered to defendants. Having obtained a judgment against the contractor, plaintiffs demanded payment of the same from defendants, and, being refused, brought suit in a federal court, alleging that defendants had promised to pay such judgment when the attachments were released. This was denied by defendants, who claimed- that their agreement was to account for the logs in case plaintiffs established a lien thereon. The only witnesses upon the issue were the two persons between whom the agreement was made, who contradicted each other. Under the laws of Vermont, defendants would have had the right to contest the validity of plaintiff’s lien. Held, that such laws were material as bearing upon the disputed question of fact as to the actual agreement made, and that it was error for the court to refuse defendant’s request to present them to the jury in its charge.</p>

<p>1. Trade-Marks and Tbade-Names — Words Subject to Appropriation—</p> <p>“Sterling.”</p> <p>Although the word “sterling” is ordinarily descriptive of quality, and is not popularly used in connection with ale, one who adopted it to identify a particular manufacture of ale may be entitled to protection against its use by another in such manner as to create confusion as to the origin or identity of the two products.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 6, 12.</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6658.]</p> <p>2. Same — Suit for Infringement — Right to Accounting — Laches.</p> <p>Under the circumstances of this case, complainant, although it may be entitled to an injunction, is barred by its laches from the right to an accounting for profits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 112. "</p> <p>Laches as defense in suit for infringement, see notes to Taylor v. Sawyer Spindle Co., 22 C. C. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p>

<p>Collision — Steam Vessels Meeting.</p> <p>Libelant’s tug Patton, coming up the Delaware river at night with a> tow on her starboard side, came into collision with the tug Cahill, passing down with a similar tow. The master of the Patton testified that shortly before the collision he saw the white towing lights of a vessel a half mile ahead, of him, but seeing no side lights he was unable to tell which way it was going. He gave a signal of one whistle and ported his helm, and receiving no answer he signaled again and again, ported and still received no answer, and shortly afterwards the Patton was struck on the port bow by the tow of the Cahill. Held, on the evidence, that the lights seen by the Patton were not those of the Cahill, but of another tug going up the river with a car float which passed on the starboard side of the Cahill and was between her and the Patton until the latter ported'; that the Patton was in fault and responsible for the collision in violating rule 3 of the Inland Navigation Rules, Act June 7, 1897, c. 4, 30 Stat. 100 [U. S. Comp. St. 1901, p. 2882], which requires a vessel when approaching another whose course she fails to understand to signify such fact by several blasts, or rule 8, which prohibits an overtaking vessel from passing without the consent of the vessel overtaken.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 10, Collision, §§ 33-42. Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p>

<p>1. Insurance — Accident Insurance — Construction of Contract.</p> <p>An agreement to insure one against bodily injuries, except injuries sustained, while entering or leaving, or trying to enter or leave, any moving conveyance, and except injuries fatal or otherwise caused by intoxicants, anaesthetics, etc., excepts from the promised indemnity fatal injuries sustained while trying to enter a moving passenger car.</p> <p>[Risks and causes of loss under accident insurance policies, see note to National Acc. Soc. v. Dolph, 38 C. C. A. 3.]</p> <p>2. Same — Contracts Construed like other Contracts.</p> <p>Agreements of insurance are to be construed like other contracts, according to the sense and meaning of the terms which the parties use, taken in their plain and popular sense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, f 292.]</p> <p>3. Same.</p> <p>The natural and obvious meaning of the terms of a contract must be preferred to any curious hidden sense evolved by the ingenuity of a trained and acute intellect and the exigencies of a hard case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 292.]</p> <p>(Syllabus by the Court)</p>

<p>Sales — Validity oe Contract — False Representations by Seller.</p> <p>Defendant corporation, through its manager who was a man of large experience, ordered from plaintiff’s agent certain steel bars for making tools, the number of bars, dimensions of each kind, and price per pound being specified. Before the order was written out for signing, plaintiff’s agent, in answer to an inquiry, stated that the cost would be about $200, but when the steel arrived it amounted to more than $2,100. There was no claim that the steel shipped was not in all respects in accordance with the order. Held, that such statement as to the cost did not constitute a fraudulent representation which invalidated the contract; the means of ascertaining the weight of the bars being equally well known and available to both parties so that defendant had no right to rely on such statement.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Sales, §§ 79-83.)</p>

<p>1. Criminal Law — Trial—Direction of Verdict.</p> <p>The evidence in every criminal ease should be sufficient to warrant a reasonable conclusion of the defendant’s guilt, otherwise it is the duty of the court to instruct a verdict in his favor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1727-1729.]</p> <p>2. Larceny — Sufficiency of Evidence.</p> <p>A verdict of conviction in a prosecution for larceny held not supported by any legal evidence.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 32, Larceny, §§ 164-169.]</p>

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

This case was 'heretofore before this court, and Is found reported in 145 Fed. 466, 76 O. O. A. 236. The original case involved the question of whether a certain trust deed made by the Augusta Pottery Company was Invalid because the same constituted a preference of certain creditors over others of said corporation.

<p>Courts — Circuit Courts op Appeals — Rules of Decision as Between Two Circuit Courts of Appeals in Different Circuits.</p> <p>In accordance with the practice in this circuit to follow the decisions of ether Circuit Courts of Appeals whenever they may properly form a precedent Eidman v. Tilghman, 136 Fed. 141, is followed on a question of the •construction of the statutes with reference to the war revenue tax on legacies.</p> <p>IEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 327, 328.]</p>

<p>Patents — Invention—Type Block — Enlargement in Degree.</p> <p>The Force patent, No. 705,228, for a handle for a type block, consisting of a metallic handle with two flanges at the lower end having gripping edges, between which is held a rubber type block, the claimed invention being in the use of the flanges, instead of glue or cement, to fasten the rubber block to the handle, is void on its face for lack of invention.</p>

<p>Patents — Suit on License Contract — Equity Jurisdiction.</p> <p>A bill alleged that complainant, who was the grantee of certain patents, assigned the legal title to the same to defendant under contracts by which he reserved the equitable title and was to receive royalties and commissions on the articles made and sold thereunder by defendant; that defendant pretended to make such articles as it sold under a later patent to another, and refused to account for and pay royalties thereon, but that such later patent was in fact an infringement of complainant’s and such articles within the contracts, and1 it prayed for a discovery and an accounting. Held,- that it was cognizable in a federal court of equity under the patent law, the right to the relief sought being dependent upon whether or not the device of such later patent was an infringement of complainant’s patents.</p>

<p>In Equity. Suit for infringement of letters patent No. 555,893, for a centrifugal apparatus, granted to Gustaf M. Andersson March 3, 1896. On final hearing.</p>

<p>1. Patents — Suit for Infringement — Preliminary Injunction.</p> <p>A preliminary injunction against infringement of a patent will usually be denied, where its validity is denied and has not been established by prior adjudication or by long acquiescence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 474-477.</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Poos Mfg. Co., 72 C. C. A. 123.]</p> <p>2. Same — Prior Adjudication — Consent Decree.</p> <p>A decree adjudging the validity and infringement of a patent signed by the judge without a hearing or reading of the evidence, by consent of the parties, is not such an adjudication as constitutes a proper foundation for the granting of a preliminary injunction in a suit against a different defendant.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 38, Patents, § 487.]</p>

<p>Bankruptcy — Acts op Bankruptcy — Corporation—Power op Directors.</p> <p>Under B. & C. Comp. Or. § 5070, as amended by Sess. Laws 1903, p. 41, § 3, which provides that the stockholders of a private corporation may authorize its dissolution and the settling of its business and the disposition of its property, the directors of such a corporation do not possess such power; and in the absence of express authority conferred by the stockholders they cannot on behalf of the corporation commit the act of bankruptcy specified in Bankr. Act July 1, 1898, c. 541, § 3a (5), 30 Stat 546 [U. S. Comp. St.. 1901, p. 3422], by the passage of a resolution admitting its inability to pay its debts and its willingness to be adjudged a bankrupt.</p>

<p>Courts — Jurisdiction of Federal Courts — Proceeding for Mandamus.</p> <p>A circuit court of the United States has power, under Rev. St. § 716 [U. S. Comp. St. 1901, p. 580], to issue a writ of mandamus only when ancillary to a jurisdiction already acquired, and is without jurisdiction of a proceeding for such a writ as an original remedy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 803. Supplementary and ancillary proceedings and relief, see note to Toledo, St L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.]</p>

<p>1. Judgment — Judgments Operative as Bar — State Courts and Federal Courts.</p> <p>It is the rule of the federal courts to give a prior decision of a state court, where the parties and the cause of action were the same as in a case before it, the same force and effect as a prior adjudication as would be given it by the courts of the state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1504-1509.</p> <p>Conclusiveness of judgments as between federal and state courts, see notes to Kansas City, Ft. S. & M. K. Co. v. Morgan, 21 C. C. A. 478, and Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>2. Same — Identity of Questions Involved.</p> <p>Where an ordinance of the city of Buffalo, prohibiting the erection or maintenance of fences or billboards more than seven feet in height, and directing the abatement of any structure erected in violation of its provisions by the fire department as a common nuisance, was sustained by a state court in an action against the city as a reasonable and valid exercise of the police powers conferred on the city by statute, such question is res judicata as between the parties, and the judgment on the merits in such action is a bar to a subsequent suit, by the same plaintiff, against the city in a federal court to restrain the enforcement of such ordinances, in so far as the structures involved in the two suits are of the same character.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1244-1246.]</p>

<p>Collision — Tugs with Tows Meeting — Navigation in Naebow Channel.</p> <p>A collision in the evening between the tows of the tugs No. 32 and Transit, each having a number of boats in tow, in the channel between the Kills near the Corner Stake Light, held due solely to the fault of tug No. 32, which was proceeding westward with her tow light in passing beyond Shooter’s Island without ascertaining the presence of the other tow, her signal then given not having been heard on account of the wind which blew from, the north and which also prevented her from keeping her light tow on the right-hand side of the narrow channel in passing.</p> <p>[Ed. Note. — For eases in point, see Cent Dig. vol. 10, Collision, $ 78.]</p>

In Equity. On final hearing. The complainant, a corporation of British Columbia, seeks an accounting and the recovery of money deposited for it with the defendant bank in the name of “EL. C. Miller, Tr.

<p>On Demurrer to Indictment and Motion to Quash.</p> <p>The indictment in this case attempts to charge a conspiracy, and Is bottomed upon Rev. St. U. S. § 5440 [U. S. Comp. St. 1901, p. 3676], and the second clause thereof, to wit: “If two or more persons conspire * * * to defraud the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy,” etc. The indictment charges that the defendants Biggs, Freeman, MePhee, and Mc-Ginnity “on the twenty-fifth day of August in the year eighteen hundred and ninety-nine, and at the several times of the committing of the several overt acts hereafter in this indictment mentioned, and continuously at all times betwéén the said twenty-fifth day of August in the year last aforesaid and the day of the presenting of this indictment, unlawfully, corruptly, wickedly, and maliciously did conspire, combine, confederate, and agree together, and with divers other persons to the grand jurors unknown, indirectly to obtain from the said United States for a certain corporation, to wit, the New Mexico Dumber Company, a large quantity of land, to wit, eleven hundred and Severn teen acres of timber lands, in excess of the quantity of such lands which the said corporation could lawfully, obtain directly from the United States”; that these lands were subject to entry at the Durango land office under the laws pertaining to the sale of timber lands and under the regulations made 'in pursuance to law by the Commissioner of the General Dand Office. It is then charged that a description of the lands is set forth in that part of the indictment which subsequently charges the commission of overt acts in procuring the execution and verification of certain documents, each entitled “Testimony of Claimant.” It is then charged that the lands were to be obtained as aforesaid from the United States for said corporation in the following manner: “By the said defendants soliciting and procuring the persons aforesaid (presumably those theretofore charged as unknown to the grand jurors), for hire and under agreements with them separately to that end, to pay to the receiver of the said land office, with moneys to be furnished to them by the said corporation, the price fixed by law therefor, make entries as individual entrymen at the land office aforesaid with the said receiver of tracts of such lands in quantities, respectively, not exceeding the' quantities allowed by the said laws and regulations, secure patents from the said United States for the said lands to themselves as such entrymen, and make conveyances of the title to the said lands to one William Barth, an agent and trustee for the said corporation, and by the said defendants requiring the said William Barth to convey such title to the said corporation.” After setting forth eight overt acts done in furtherance of said conspiracy, the indictment then concludes: “And so the grand jurors aforesaid, upon their oath aforesaid, do say that [the defendants, naming them] on the said twenty-fifth day of August in the year eighteen hundred and ninety-nine, and from thence hitherto and at the several times of the committing of the said several overt acts in this indictment charged (the said unlawful, corrupt, wicked, arid malicious conspiracy, combination, confederation, and agreement during all the time from the said day when the same was originally entered into, to wit, the said twenty-fifth day of August in the year eighteen hundred and ninety-nine to the date of the presenting of this indictment being still continuing and in existence) in manner and form in this indictment aforesaid, unlawfully, corruptly, wickedly, and maliciously did conspire,” etc., indirectly, deceitfully, and fraudulently to obtain from the United States, for the said corporation, certain of the public lands and property of the United States in quantity greatly in excess of the quantity which the said corporation could lawfully obtain directly, and in that manner defraud the United States of its valuable property in such lands, and of its governmental functions in disposing of the same.</p> <p>The indictment charges overt acts in furtherance of said conspiracy as follows : First, that the defendant Freeman, on the 25th day of August, 1899, unlawfully did, by solicitation and promise of reward to her in some small sum of money, the amount whereof is to the grand jurors unknown, induce and procure one Jennie Culbertson to execute and verify by her oath before the said register a certain document in the form prescribed by law and entitled “Testimony of Claimant,” for presentation by the said Jennie Culbertson to the said register, and through the said register to the Commissioner and the said Secretary, in connection with the entry of the said Jennie Culbertson of the timber lands described, containing 160 acres. The second and third overt acts as charged are identical with the first in time, character of affidavit, and amount of lands, and differ only as to name of entryman. The fourth, fifth, sixth, and seventh overt acts charged are identical with the first, except that they all charge the overt acts therein specified to have been done on October 11, 1899. They differ, however, as to the name of entrymen. The eighth overt act as charged is to the effect that the defendants McPhee and McGinnity, on May 15, 1906, unlawfully did request and require said William Barth to sign and execute a certain quitclaim deed conveying the title to all the lands described in the overt acts to the corporation as grantee. The indictment then sets forth the deed in hose verba, the closing paragraph of which, in the testimonial clause thereof, is as follows: “This deed is given as correction for deed made June 1, 1900.”</p> <p>The lands' described in this indictment were it is claimed acquired from the government under Act June 3, 1878, e. 151, 20 Stat. 89, as amended by Act Aug. 4, 1892, c. 375, § 2,'27 Stat. 348 [U. S. Comp.'St. 1901, p. 1547], and known as the “Timber and Stone Lands Act.” This act in its first section specifies the qualifications of purchasers or entrymen thereunder and limits the amount of land which each may acquire to 160 acres. The second' section provides that the applicant, at the time of his application, shall file a written statement in duplicate under oath with the register, describing the land which he desires to purchase and its quality, that he has made no other application under this act, and that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit, and that he has not, directly or indirectly, made any agreement or contract in any way or manner with any person or persons whatsoever by which the title which he might acquire from the government of the United! States should inure in whole or in part to the benefit of any person except himself. It then provides that if he swears falsely he shall be guilty of perjury and forfeit the money which he paid for said lands, and all right and title to the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void. The third section provides that on the filing of the applicant’s statement the register shall post a notice of the application in his office for a period of 60 days, and that the applicant shall publish the same notice in a. newspaper nearest the location of the premises for a like period of time, and after the expiration of said 60 days, if no adverse claim shall have been filed, the party desiring to purchase shall furnish to the register of the land office satisfactory evidence, “first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements,” etc., “and upon payment to the proper officer of the purchase money of said land together with the fees of the register and receiver,” etc., “the applicant may be permitted to enter said land,” and a patent shall issue thereon. It further provides that any person having a valid claim to any portion of the land may object in writing to the issuance of the patent, and evidence shall be taken thereon as to the merits of said objection.</p> <p>By referring back to the charging part of the indictment, it will be observed that it is not charged that the defendants conspired to procure others to make applications to purchase said lands. The charge is that the conspiracy consisted in hiring others, “and under agreements with them separately to that end to pay to the receiver of the said land office with money to be furnished them by the said corporation the price fixed by law therefor, make entries as individual entrymen at the land office aforesaid,” etc. From this it is evident that the certain documents described as “Testimony of Claimant” in the several overt acts had reference to an affidavit required by the land office officials when the claimant appeared at the office after the 60 days’ publication, as provided in section 3 of the act. Indeed, this was not denied by counsel for the government on argument.</p> <p>Defendants demur and move to quash.</p>

<p>Negligence — Use of Unsafe Appliances — Liability.</p> <p>A derrick company employed by a contractor to lift a piston weighing 4,400 pounds from the engine room of a steamship made fast to two eye-bolts which were designed for use in moving the piston inside the engine room and which were sufficient for such purpose. They had been screwed into the piston by the contractor, and used In moving it in the room, and had been left there and the derrick company made fast to them without change, although they were not designed for such use, and were not screwed home, by reason of which when subjected to a lateral strain owing to the triangular form taken by the sling they both broke, permitting the piston to fall and resulting in damage to the other machinery. Different and safer means of attaching the sling were known and in common use. Held, that the damage was due to the negligence of the derrick company, which, was liable therefor.</p>

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

<p>At Law. Charge to the jury.</p>

<p>1. Carriers; — Interstate Commerce — Rebates—“Given” Defined.</p> <p>A railroad company subject to the interstate commerce laws, which paid rebates to a shipper in 1904, is subject to prosecution therefor under the Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]), although the agreement therefor was made before the passage of such act. Such agreement was unlawful and unenforceable under the original interstate commerce law, and the rebates cannot be said to have been “given,” within the meaning of the Elkins act, until their actual payment; and, as so construed, the act as applied to such a case is not an ex post facto law.</p> <p>2. Same — Elkins Act — Effect of Repeal.</p> <p>The Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]) is in full force as to offenses created thereby committed prior to the time it was superseded by the Hepburn act (Act June 29, 1906, e. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1907, p. 892]).</p> <p>3. Same — Published Rates — Through Rates.</p> <p>A carrier which accepts and carries an interstate shipment on a through bill of lading, openly charging the sum of the published local rates between the points named therein, thereby creates a through rate and accepts the published aggregate as the lawful through charge; and any rebate given therefrom is a violation of the Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]).</p> <p>4. Indictment — Duplicity.</p> <p>Under the provision of the Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]) making it an offense for an interstate carrier to “offer, grant, or give” rebates, where the transaction is completed, the substantive offense is the payment and receipt of the rebate; and an indictment therefor is not bad for duplicity because it also avers the offer or agreement pursuant to which the payment was made.</p> <p>5. Constitutional Law — Elkins Act — Due Process of Law.</p> <p>The Elkins act (Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S’. Comp. St. Supp. 1907, p. 880]) is not unconstitutional as depriving shippers or carriers of property rights without due process of law.</p>

<p>. On Demurrer to Indictment for Giving Rebates in Violation of the Elkins Act.</p>

<p>On Demurrer to Indictment for Granting Rebates in Violation of the Provision of the Elkins Act.</p>

<p>Bankruptcy — Corporations—'“Manufacturing” Defined.</p> <p>An allegation in a petition in bankruptcy against a corporation that it “is engaged in the business and was incorporated for the purpose of building houses” as against a demurrer is sufficient to bring the corporation within the scope of Bankr. Act July 1, 1898, § 4b, c. 541, 30 Stat. 547 [U.'S. Comp. St. 1901, p. 3423], as one engaged in “manufacturing.” [Ed. Note. — What persons are subject to bankruptcy law, see Mattoon Nat. Bank of III. v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>In Bankruptcy. On motion to vacate receivership.</p>

<p>1. Bankruptcy — Corporations Subject to Act — Nature of Business</p> <p>The jurisdiction of a court of bankruptcy to adjudicate a corporation a bankrupt as one engaged principally in manufacturing, trading, or mercantile pursuits, etc., within the meaning of Bankr. Act 1898, § 4b, c. 541, 30 Stat. 547 I.U. S. Comp. St. 1901, p. 3423], is to be determined by the business in which the corporation was actually principally engaged at the time of the filing of the petition, and it is not a defense to the proceeding that such business was ultra vires.</p> <p>2. Same — “Trading” and “Mercantile Pursuits” Defined.</p> <p>The terms “trading” and “mercantile pursuits” as used in, Bankr. Act 1898, § 4b, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], are not confined to chattels, but may include dealing in real estate; and a corporation, organized for “purchasing, holding, improving by grading, paving, sewering, and construction of houses and other bnildings, and the selling and leasing of real estate” which carried on all of such business, and also incidentally manufactured building materials which it both used and sold, is within the statute and may be adjudged an involuntary bankrupt.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, pp. 4477, 4478; vol. 8, pp. 7053, 7054.</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>In Bankruptcy. On petition for reclamation of property.</p>

<p>Shipping — Demurrage—Delay in Discharging.</p> <p>Where, by the terms of bills of lading for a cargo to be delivered at Takao, Formosa, the ship was entitled to commence discharging immediately on being ready and to proceed continuously at all such hours as the custom house or port authorities might- give permission, the chartered owner was entitled to recover demurrage for delay caused by the failure of the consignee to furnish sufficient lighters or men; also, held, that the days of discharge were not confined to custom house hours where such hours were not, in fact, observed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 576. Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman. v. Norton, 46 C. C. A. 4.J</p>

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

<p>1. Bankruptcy — Partnership—Surviving Partners.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 5, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3424], a partnership after its dissolution by the death of one partner may be adjudged a bankrupt, and in such a case the proceedings are not invalidated by the fact that the petition did not refer to the deceased partner nor disclose that the partners named were surviving partners, where the business was being continued as provided in, the partnership articles;</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Bankruptcy, § 57.]</p> <p>2. Same.</p> <p>Where the widow and executrix of a deceased partner had actual knowledge of the institution of bankruptcy proceedings against the partnership after the testator’s death, she is not entitled to have the adjudication set aside after a composition has been confirmed merely because her testator was not named as a partner.</p>

<p>1. Libel — Right of Action of Corporation — Nature of Charges.</p> <p>A defamatory publication regarding the acts of a corporation does not give it a right of action for libel, unless the words, import an indictable offense involving moral turpitude, or such malevolence, misconduct, or obloquy as affects the financial standing of the corporation or occasions a pecuniary loss. It is not sufficient that it attacks the rectitude of the officers or members of the corporation on account of acts done in their official capacity, or charges acts which render them liable to criminal prosecution.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 174.]</p> <p>2. Same — Sufficiency of Complaint.</p> <p>The complaint in an action by a corporation for libel held to state a cause of action.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 186-213.]</p> <p>3. Same — Necessity of Alleging Special Damages.</p> <p>Where the language of an article published relating to a corporation was libelous per se, and such as to naturally affect its credit and occasion it pecuniary loss, a complaint for libel based thereon need not allege special damages.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 213.]</p>

<p>Shipping — Injury to Tow from Swell of Steamer — Negligent Make-Up of Tow.</p> <p>Injury to a scow in tow, caused by the swell from a meeting steamship in the ship channel in lower New York Bay, held not to have been due to the excessive speed or negligent navigation of the steamship, but to the way in which the tow was made up, by fastening two scows within 18 Inches of each other, which was negligent, in view of the probable meeting of vessels which would causé swells.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 345.</p> <p>liability of vessel for injuries caused by creation of- swell, see note to The Asbury Park, 78 C. C. A. 3.1</p>

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

<p>Equity — Grounds for Relief — Fraud—Pleading.</p> <p>A bill by one corporation against another held to state a cause of action for equitable relief, where it prayed for an accounting and alleged, fraud by the president of defendant, who was also general manager of complainant, which fraud was known to defendant and by which it benefited, but which was concealed from complainant through the dual relationship of defendant’s president to the parties.</p>

<p>In Equity. On motion to set aside service of process.</p>

<p>Removal or Causes — Citizenship op Dependants.</p> <p>An action by a citizen of another state against citizens of the state in which it is brought and aliens is not removable.</p> <p>LEd. Note. — Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.]</p>

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

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

<p>Evidence — Expert Witnesses — Cross-Examination.</p> <p>In a suit for infringement of a patent, where complainant confined its direct testimony to the making of a prima facie case, the defendant is not entitled to go into matters of defense on cross-examination of complainant's experts.</p>

The Colorado & Northwestern Railroad Company, a corporation of Colorado, owned and operated a narrow gauge railroad, which consisted of a main line about 10 miles long from Boulder to Sunset, and two branches, each about 18 miles in length to Eldora and Ward, respectively. This entire railroad was within the state of Colorado.

<p>1. Commerce — Interstate Commerce — Safety Appliance Acts — Transporta-</p> <p>tion of Articles in Interstate Commerce for Independent Express Company is Engaging in such Commerce.</p> <p>The transportation by a common carrier by railroad of articles of interstate commerce for an independent express company is “engaging in interstate commerce by railroad” within the meaning of the safety appliance acts (Act March 2, 1893, c. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]; Act April 1, 1896, c. 87, 29 Stat. 85; and Act March 2, 1903, c. 976, § 1, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 885]).</p> <p>2. Same — Safety Appliance Acts — Independent Intrastate Railroad Companies are Subject to.</p> <p>A common carrier which operates a railroad entirely within a single state, and transports thereon articles of commerce shipped in continuous passages from places without the state to stations on its road, or from stations on its road to points without the state, is subject to the provisions of the safety appliance acts (Act March 2, 1893, c. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]; Act April 1, 1896, c. 87, 29 Stat 85; Act March 2, 1903, c. 976, § 1, 32 Stat. 943 [U. S. Comp. St Supp. 1907, p. 885]), although it carries the property free from a common control, management or arrangement with another carrier for continuous carriages or shipments of the articles.</p> <p>[Ed. Note. — Duties of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 O. O. A. 8.]</p> <p>Philips, District Judge, dissenting.</p> <p>(Syllabus by the Court.)</p>

District of Missouri. This is an action for personal injury, growing, substantially, out of the following state of facts: The defendant in error, hereinafter for convenience designated the plaintiff,, was in -the employ of the plaintiff in error, hereinafter for convenience designated the defendant, as fireman on passenger train known as the “Katy Flyer.” He had been in the employ of the defendant as fireman for about 15 months prior to the accident, and had for a…

<p>On Petition for Review.</p> <p>On November 13, 1905, the court below 'found that B. F. Masterman, C. C. Surber, and Charles Joyce, doing business as the Opera House Drug Company, made an assignment for the benefit of their creditors, and upon that ground alone “adjudged that said B. F. Masterman, C. O. Surber, and Charles Joyce, partners doing business as the Opera House Drug Company, be adjudged bankrupts,” and added: “It is further ordered that this adjudication binds only the partnership entity and not the partners as individuals.” None of the partners was found to be insolvent or adjudged to be bankrupt. The trustee chosen by the creditors of the partnership collected the partnership property, converted it into money, and paid the expenses of the proceedings. He then had remaining $213.35 to be distributed among the creditors and the indebtedness of the partnership to them was $4,180.66. Thereupon he filed a petition in the court below for an order upon C. C. Surber, one of the partners, that he should turn over to him certain real estate which did not belong to the partnership and which he owned individually, to be applied to the payment of these debts. Surber answered that this real estate was his individual property, that he had not been and was not insolvent, and that he had not been adjudged a bankrupt. The referee found the facts to be as Surber alleged, and denied the prayer of the petition, on the ground that the real estate of an unadjudicated solvent partner was not subject to administration in bankruptcy upon a simple adjudication of the partnership and the court upon a proper certificate affirmed this ruling. The trustee presents this decision for revision and reversal by a petition under section 24b of the bankruptcy law. Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432].</p>

<p>1. Aliens — Regulation of Immigration — Matters Subject to Judicial Inquiry.</p> <p>Congress has plenary power to exclude aliens from entry into the United States, or to provide for their admission subject to such restrictions as it may prescribe; and, where it has given discretionary power to executive officers or agencies to determine the right of entry under such restrictions, the ground of such determination cannot be inquired into by the courts in habeas corpus proceedings instituted by an alien, who is restrained of his liberty for the purpose of deportation by such officers. The question, however, whether the law does vest such officers with power of final decision is necessarily one for judicial inquiry, and an alien given by the law a right of appeal may invoke the powers of a court for the enforcement of such right.</p> <p>2. Same — Construction of Statute — “Final” Decision.</p> <p>In the provision of section 10 of the immigration act (Act March 3, 1903, c. 1012, 32 Stat. 1216), making the decision of the board of special inquiry based upon the certificate of the examining medical officer final as to the rejection of aliens affected with a loathsome or dangerous contagious disease the word “final” is not used in such broad sense as to deprive an alien so rejected of the right of appeal unqualifiedly given by section 25 of the act, or of the right to invoke the provisions of section 37, relating to the wife and children of a naturalized alien, in a case to which such section is applicable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, p. 2772; vol. 8, p. 7663.]</p>

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

<p>Collision — Tugs with Tows Meeting — Unavoidable Accident.</p> <p>Tbe sheering of a tug having a car float on her side, causing the float to come into collision with and sink a vessel in a meeting tow, which sheer was caused by a collision between the tug and an overtaking schooner on the other side, whose duty it was under the rules to keep out of the way, held due to inevitable or unavoidable accident or to the initial fault of the schooner, which in either ease did not render the tug liable for the collision.</p> <p>TUd. Note. — Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.]</p>

619,567 and granting am injunction and accounting. An action was commenced on this patent several years ago by the complainant against J. W. Stolts and the Circuit Court dismissed the bill, holding the patent void for lack of-novelty and invention. 127 Fed. 159. On appeal to this court the decree was affirmed on the ground that no act of infringement by the defendant, in his individual capacity, was proved. 135 Fed. 534, 68 O. C. A. 84.

<p>In Equity. On exceptions to report of special master.</p>

On Motion to Quash Indictment. The indictment, in its first count, charges that the defendant F. W. Keitel, ■and his 10 codefendants, on June 11, 1904, in the county of Garfield, in the county of Routt, in the county of Denver, and within the district of Colorado, did unlawfully, etc., conspire, etc., together and with divers persons, some of whom are named and! some whose names are to the grand jurors unknown, to make false, fictitious, feigned, illegal, forged, and…

<p>1. Creditors’ Suits — State Statute Extending Remedy — Enforcement in Federm, Court.</p> <p>St. Wis. 1898, § 3029, which authorizes the filing of a creditors’ bill upon every judgment for the payment of money after an execution has been returned nulla bona whether the original cause of action was in contract or tort, gives a remedy which will be administered by the federal courts.</p> <p>2. Same — Corporations—Distribution of Assets Among Stockholders.</p> <p>Where all the property of a corporation has been sold and the proceeds distributed to stockholders, such proceeds constitute In their hands a trust fund for the payment of the debts of the corporation which may be reached by a creditors’ bill, whether the distribution was actually fraudulent or not.</p> <p>:3. Same — Defenses—Suit by Assignee of Judgment.</p> <p>In a creditors’ suit by an assignee of a judgment against a corporation, which has ceased to be a going concern, to reach its assets in the hands of stockholders to whom they have been distributed, it is not a defense that the assignment of the cause of action which then rested in verdiet after a fourth trial of the cause was in consideration of a small payment by complainant and of other sums previously advanced by him to assist the plaintiff in the cause in carrying on the litigation, nor that such plaintiff was so financially exhausted by the litigation that, but for the assignment, no further action would have been taken to obtain or enforce-a final judgment, neither of which facts raises any equities in favor of defendants, or renders the enforcement of the judgment unconscionable.</p> <p>4. Same — Impeachment op Judgment — Collateral Attack.</p> <p>Nor does an averment in the answer in such suit that the judgment against the corporation was procured by means of the perjured testimony of the plaintiff therein state a defense, such averment of perjury being merely a conclusion of law, and, if true, having no relation to any extrinsic or collateral fraud for which alone a court of equity could enjoin the collection of the judgment even in a direct proceeding therefor.</p> <p>5. Equity — Pleading—General Averments.</p> <p>Vague averments on information and belief and deductions of the-pleader cannot properly be accepted in an equity pleading as a substitute for facts which are within the pleader’s knowledge, and which would enable the court to arrive at an intelligent conclusion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 323, 337.]</p> <p>6. Champerty and Maintenance — Acts Constituting — Aiding Litigant.</p> <p>To give financial aid to a poor suitor who is prosecuting a meritorious cause of action does not constitute maintenance, in the absence of any bargain to share the recovery, and is not violative of law or public policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Champerty and Maintenance, §§ 3-8.]</p>

<p>Habeas Corpus.</p>

<p>Habeas Corpus.</p>

<p>On Application- for Order Requiring Respondents to Answer- Certain Questions Propounded by Petitioner.</p>

<p>In Equity. On application by receivers for instructions.</p> <p>On application of Metropolitan Street Railway Company to be made party defendant.</p>

On Application for Writ of Habeas Corpus. The petitioner, Jong Jim Hong, a Chinese person, seeks his discharge from imprisonment or detention at the Detention House at Malone, N. Y., having applied for and been refused admission into the United States; his detention being for the purpose of returning him' to China, whence he came. He claims that he was born in the United States, and that he is a citizen thereof, and as such entitled to enter.

<p>Collision — Steamer and Sailing Vessel Crossing — Navigating in Fog.</p> <p>A collision occurred near the Sandy Hook Lightship in a- dense fog between a schooner and a steamship on crossing courses. The schooner was sailing on the port tack at a speed of five or six knots and sounding proper fog signals. These were not heard by those on the steamer until immediately before the collision, and were then understood as being one blast, instead of two; but the steamer at once reversed. Held, that she was in fault for not hearing and understanding them before, it being shown that the horn was new and of proper kind; and held, also, that the schooner was also in fault for going at excessive speed in the fog.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 52, 152-176.</p> <p>Collision rules, speed of sailing vessels in fog, see note to The Mount Hope, 29 C. C. A. 368.]</p>

<p>1. Carriers — Interstate Commerce — Statute Regulating Carriage of Dive Stock.</p> <p>An “accidental or unavoidable cause which cannot be anticipated or avoided by the exercise of due diligence and foresight,” and which will legally excuse an interstate carrier of live stock for confining such stock in cars for a period longer than 28 consecutive hours without unloading for rest, water, and feeding, under Act June 29, 1900, e. 3594, § 1, 34 Stat. 607 [U. S. Comp. St. Supp. 1907, p. 918], is one which cannot be avoided by that degree of prudence, foresight, care, and caution which the law requires of every one under the circumstances of the particular case, and as would have been exercised by a man of ordinary prudence under such circumstances. An accident occurring to a train through the negligence of the transportation company is not such a cause; nor is mere press of business, or the sidetracking of the train to allow for the passing of other trains, the meeting or passing of which could have been anticipated when tile transportation was begun, or the lack of facilities for unloading or feeding.</p> <p>2. Same — Knowing and Willful Violation of Statute.</p> <p>A railroad company is subject to the penalty imposed by Act June 29, 1906, c. 3594, § 3, 34 Stat. 60S [U. S. Comp. St. Supp. 1907, p. 919], for knowingly and willfully failing to comply with its provisions as to the uidoading of live stock for rest, water, and feeding, where its servants or employés in charge of its train knowingly keep such stock confined in ears for more than 2S consecutive hours without any lawful excuse, as prescribed by the act.</p> <p>3. Same — Connecting Carriers.</p> <p>Under Act June 29, 1906, e. 3594, § 1, 34 Stat. 607 [U. S. Comp. St. Supp. 1907, p. 9.18], prohibiting interstate carriers of live stock from keeping the same confined for a period longer than 28 consecutive hours without unloading for rest, water, and feeding, a railroad company which delivers the cars containing such stock to a connecting carrier or to the consignee within the prescribed time is relieved from further responsibility.</p> <p>4. Same — Action to Kecovee Penalty — Burden and Measure of Proof.</p> <p>In an action by the United States against a railroad company to recover the penalty imposed by Act June 29, 1906, c. 3594, § 3, 34 Stat. 608 [U. S. Comp. St. Supp. 1907, p. 919], for knowingly and willfully failing to comply with its provisions requiring the unloading of live stock for rest, water, and feeding, the government is required to establish its case only' by a preponderance of the evidence.</p> <p>5. Same — Separate Offenses.</p> <p>In case of thé violation by a railroad company of Act June 29, 1906, c. 3594, § 1, 34 Stat. 607 [U. S. Comp. St. Supp. 1907, p. 918], by keeping live stock confined in cars longer than the time therein prescribed without unloading for rest, water, and feeding, each independent shipment or consignment of stock constitutes the basis for a separate charge, and each separate confinement of the same stock for longer than the prescribed time, although during the same continuous transportation, also constitutes a separate offense.</p>

<p>At Law. Action for wrongful death.</p> <p>On the 13th day of December, 1906, the plaintiff, Mrs. J. L. Hall, filed1 a suit in the circuit court of the First judicial circuit of the state of Florida against the Louisville & Nashville Railroad Company, claiming the sum of $40,-000 damages for the death of her husband, J. L. Hall, by the negligence of the defendant railroad company; said Hall at the time of his death being in the employment of the defendant as locomotive engineer. The suit as filed in the circuit court of Florida was brought in the name of the plaintiff as “widow of J. L. Hall, deceased.” In due time this cause was removed by petition from the circuit court of Florida to the Circuit Court of the United States for the Northern District of Florida. It is averred in plaintiff’s original complaint that her husband, J. L. Hall, died on the 18th day of October, 1906, from injuries received while in the discharge of his duties as locomotive engineer on, that same day. After the removal of the cause to this court, the defendant railroad company on the 5th day of March, 1907, filed a plea of the general issue to the original complaint. On the 26 th day of October, 1907, the plaintiff asked leave to file in this court an amendment to her original declaration as follows: “That wherever the words ‘Mrs. J. L. Hall, wi'dow of J. L. Hall, deceased,’ appear in said declaration or any count thereof, omit same and insert ‘Johnnie R. Hall, administratrix of the estate of J. L. Hall, deceased, duly appointed administratrix of the estate of J. L. Hall, deceased, by the county judge of Escambia county, Florida, on the 16th day of January, 1907, for the benefit of his widow, Johnnie R. Hall, and his children, Etta L. Hall, Tama Bell Hall and J. L. Hall, Jr.” The defendant objected to the allowance of this amendment, and, without waiving this objection, filed a plea of the statute of limitations of one year to the various counts as amended. To this plea the plaintiff filed a demurrer. In order to present all the questions raised by the record, it is agreed that the court may take up and consider the objections to the amendment, the plea of the statute of limitations and the demurrer thereto in the order of their filing.</p>

<p>In Bankruptcy. On petition for review of order of referee disallowing claims of William A. Norton.</p>

In Equity.' This is a final hearing in a suit in equity for an injunction, accounting, and damages based on defendants’ use, on silk dress goods in the piece, of the word “radium,” which complainant Gilbert Manufacturing Company claims to have adopted, used, and registered as a trade-mark, and thereafter to have assigned to the firm of Eiseman & Co., also complainant.

<p>In Admiralty. Suit against tug for injury to tow.</p>

<p>1. Wharves — Injury of Vessel — Obstruction in Slip.</p> <p>A railroad company, which leased a wharf and required its use con- . stantly by vessels for delivery of goods, was under the duty of knowing the character of the slips used and whether obstructions existed which would endanger a vessel assigned by it to a berth therefor unloading. [Ed. Note. — Eor cases in point, see Cent. Dig. vol. 48, Wharves, § 42.]</p> <p>2. Same.</p> <p>The sinking of a vessel by reason of a hole broken through the bottom while she lay at a wharf held, on the evidence, to have been caused by an obstruction some distance beneath the surface of the water in the slip, upon which the vessel settled with the falling tide, and for which, the lessee of the wharf was responsible.</p>

<p>In Admiralty. On exception to libel.</p>

<p>1. Salvage — Compensation—Elements in Determination of Amount.</p> <p>The important considerations affecting an award for salvage service are whether the aided vessel could have saved herself or was in probable danger of destruction or serious injury, and, if so, her value, the degree of her danger, and what was saved; also whether the service was rendered with promptitude, skill, vigor, and energy, and was successful, the danger and hazard in rendering the service, the value so risked, the time spent and its value, and the damage or loss to the vessel by which tlie service was rendered. The award should also be made with reference to the rule that remuneration should be liberal, to encourage similar services in other cases.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, §§ 57-66.]</p> <p>2. Same — Rescue of Stranded Steamer in Lake Superior.</p> <p>The steel freight steamer Western Star, without cargo, stranded on the south side of Lake Superior on November 29th during a very severe gale. On the next day, after the storm was over, a passing steamer was signaled for assistance, but continued on her course. The following day, when the master and a part of the crew had gone on shore for assistance, the steamer Viking sighted the Star, came near, and offered her services, which were accepted by the officer in charge. A line was passed to the Star, and after some hours of work, during which the Viking also became stranded on a newly formed bar, where she remained for half an hour, she succeeded in pulling the Star off, and the latter proceeded to port alone. The Viking, with cargo and freight, was worth $88,000. She was detained eight hours by the service, suffered some damage, and ran a considerable risk of further injury by stranding. The Star was worth $265,000, and was damaged by the stranding to the extent of $8,-000. She was covered with ice, and, although not in immediate danger, was in considerable peril, owing to the uncertainty of the weather at the season and her exposed position, and her ability to extricate herself was doubtful. The master, while on shore, had hired a tug at $250 per day, which had started for the Star and was paid for three days’ service. There were many other disasters on the lake, due to the storm, and it was difficult to secure wrecking vessels. After the service was rendered the owners of the Star offered to pay the Viking $1,000 therefor, which was not accepted. Held, that the service was a salvage service of merit, skillfully and successfully performed, and that the Viking was entitled to an award of $5,000 therefor, including therein $150 for damage to her equipment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, §§ 72, 73.</p> <p>Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p>

<p>Bankruptcy — Action Against Trustee — Injunction.</p> <p>The landlord of a bankrupt, who presented no claim against the estate for the use and occupancy of the demised premises by the bankrupt’s receiver or trustee, is not entitled to maintain an action in a state court against the trustee as such to recover for such use, although it is nominally an action in tort to recover damages, and such action will he enjoined by the court of bankruptcy.</p>

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

<p>1. Appeal — Review—Presumption in Favor op Correctness op Decree Below.</p> <p>The judgment of a court of equity on the disputed facts of a case must be taken as presumptively correct, and should be followed by an appellate court, unless an obvious error has occurred in the application of law, or a serious and Important mistake has been made in the consideration of the proof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3970-3978.]</p> <p>2. Cancellation op Instruments — Fraud—Measure op Proop.</p> <p>Evidence adduced to set aside a written instrument for fraud must be clear, unequivocal, and convincing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, §§ 102, 103.]</p> <p>8. Deeds — Validity—Impeachment op Fraud.</p> <p>A conveyance secured through the influence of an agent of the grantor who has been secretly corrupted by the grantee by the promise of an interest In. the property conveyed is voidable for fraud by the principal, although no active fraud or misrepresentation was practiced by the agent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 165-182.J</p> <p>4. Evidence — Presumption—Spoliation of Documents.</p> <p>The rule as to the presumption arising from the spoliation of documents is applicable only where the element of intentional fraud or wrongful conduct is involved, and the presumption is one of fact, which may be overcome by explanation of the circumstances.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 98.]</p> <p>5. Deeds — Evidence—Validity—Fraud—Sufficiency of Evidence.</p> <p>Evidence considered, and held insufficient to show that an agent through whom a lease and sale of mining property were made by the owner had a secret interest in the purchase by proof so clear, unequivocal, and convincing as to warrant the cancellation of such lease and deed for fraud.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 16, Deeds, § 645.]</p>

<p>In Error to the Circuit Court of the United States for the District of Nebraska.</p> <p>This was a suit instituted by the Omaha Electric Light & Power Company against the casualty company to recover on an employer’s indemnity contract issued by defendant to plaintiff’s assignor, the New Omaha Thomson-Houston Electric Light Company, hereinafter called the Thomson Company, to indemnify it for the period of one year against loss for damages sustained by its employés and caused by its negligence. While the policy was in force one Dent, an employe, was accidentally injured and died. The administratrix of his estate brought an action in the district court of Nebraska against the Thomson Company, claiming that the injury and death resulted from Its negligence. The action resulted January 3, 1902, in a judgment against the Thomson Company for $5,000 and costs. This was taken by petition in error to the Supreme Court of Nebraska, where, on, April 22, 1903, the judgment was affirmed. Later a rehearing was granted, and on June 8, 1905, the judgment was again and finally affirmed. After the rendition of the judgment and its first affirmance in the Supreme Court, when the corporate existence of the Thomson Company was about to expire by limitation,, the plaintiff in this action, the Omaha Electric Light & Power Company, was incorporated to take over its assets, assume its liabilities, and succeed to its business. As contemplated, it took over by assignment, amongst other assets, the claim against the casualty company on its polity of indemnity, and assumed1 the liability of that company on the judgment obtained by Dent’s administratrix. These things it did without consent of the casualty company. After this reorganization on June 8, 1905, the Supremo Court finally affirmed the Dent judgment, and the casualty company requested the Thomson Company to pay the same, and recognized its obligation to reimburse it. The successor of the Thomson Company, the plaintiff herein, pursuant to that request upon its assignor, and pursuant to its agreement with its assignor to pay all its liabilities, on July 21, 1905, paid the judgment, amounting in principal to $5,000, in interest from January 3, .1902, to July 21, 1905, to $1,320.10, and in costs $115.30, making an aggregate of $6,441.40, and presented a receipt to the defendant and demanded to be reimbursed in that sum. The casualty company denied liability totally (1) because its contract was not with the plaintiff but only with its assignor, the Thomson Company, and because it had never consented to an assignment of the claim against it by the Thomson Company to the plaintiff, and (2) because the Thomson Company had not itself ever paid the judgment debt,, and denied liability partially on the ground that in any event the limit of its liability for the death of any one person was $5,000, and that it was not liable for the interest which accrued between the date of the rendition of the original judgment, January 3, 1902, and the date of the payment by the plaintiff, July 21, 1905, or for the costs of the suit of Dent against the Thomson Company.</p> <p>The rights of the parties upon the issues joined between them depend upon the application of the following provisions of the policy of indemnity: (1) “Any assignment of interest under this policy shall be void unless the written consent of the company is indorsed hereon by one of its officers.” (2) “No action shall lie against the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him and in satisfaction of a judgment after trial of the issue.” (3) “The company’s liability for an accident resulting in injuries to or in the death of one person is limited to $5,000 and subject to the same limit for each person. The total liability for any one accident resulting in injuries to or in the death of any number of persons is limited to $10,000.” (4) “If any suit is brought against the assured to enforce a claim for damages on account of an accident covered by this policy immediate notice thereof shall be given to the company and the company will defend against such proceeding in the name and on behalf of the assured or settle the same at its own cost unless it shall elect to pay the assured the indemnity provided for in clause A of the special agreements as limited therein.” (Clause A there referred to is the third provision of the policy just quoted.)</p> <p>On the foregoing facts the court below rendered a judgment for the full amount paid by plaintiff in satisfaction of the Dent judgment, including the-interest of $1,326.10 and costs, $115.30, as well as for interest which accrued after plaintiff paid the judgment. The defendant brings the case here by writ of error, and assigns error in the rendition of any judgment against it on the-foregoing facts, and also that the court erred in awarding to the plaintiff any sum in excess of $5,000, with interest from the date of payment thereof by the-plaintiff.</p>

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

<p>1. Pilots — Negligence—Collision—Steamer and Schooner Crossing.</p> <p>A pilot, employed to take a steamer Into port and in charge of her navigation, held in fault for a collision with a crossing schooner in keeping his course and speed and attempting to cross ahead of the schooner, in violation of articles 22 and 23 of the inland .navigation rules (30 Stat. 401 [U. S. Comp. St. 1901, p. 28831), which required him to avoid passing ahead and to stop and reverse, if necessary. ■</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Pilots, § 19.]</p> <p>2. Same — Liability to Vessel — Damages Caused by Negligence.</p> <p>A licensed pilot, enjoying the emoluments of compulsory pilotage, Is in a different class from an ordinary employe, and may be held liable over to the vessel for damages which she has been compelled to pay for a collision occurring through his neglect or want of skill while in charge of her navigation.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 39, Pilots, § 19.]</p> <p>3. Same — Suit Against Pilot — Peoof of Damages.</p> <p>That a vessel settled a claim for damages against her for collision without suit does not preclude a recovery over of the amount paid from the pilot who was in charge of her navigation, where it is satisfactorily proved that he was solely in fault for the collision, and the amount of the damages sustained by the injured vessel is fully proved and exceeds the amount paid in settlement.</p> <p>4. Same — Defenses—Laches.</p> <p>Failure to give the respondent notice of such proposed settlement or delay in bringing the suit are not defenses to such suit, where he has suffered no injury therefrom.</p>

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

This is an appeal by William Openhym & Sons from an order denying allowance of a claim, as preferred, against the estate of the Walkeen-Lewis Millinery Company, bankrupt. Appellants were importers and manufacturers of silks and ribbons at New York City. The millinery company was engaged in the wholesale millinery business at Kansas City, Missouri.

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Western District of New York in Bankruptcy.</p>

This cause comes here upon a writ of error to review a judgment entered upon a verdict of a jury in favor of the defendant in error, who was the plaintiff below.

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

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

<p>1. Patents — License Contract — Construction.</p> <p>An agreement made by the owner of a patent for a hose clamp, in settlement of a suit for infringement, that he would not trouble the defendant so long as it made only brass clamps, the complainant being-then making them of steel, must be construed to apply only* to clamps covered by the patent; and the making by the defendant of steel clamps of a different kind, not within the patent, was not a violation of the license which would render a user of its brass clamps subject to a suit for infringement.</p> <p>2. Same — Jurisdiction of Suit for Infringement — Defense of License.</p> <p>Where a suit between citizens of the same state was for infringement of a patent, and was so tried and decided by the Circuit Court, the Circuit Court of Appeals has jurisdiction of an appeal therein, notwithstanding the fact that one of the defenses, upon which the case turns in that court, depends upon the construction of a contract of license.</p> <p>[Ed. Note. — Jurisdiction of federal courts in suits relating to patents, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p>

<p>Patents — Infringement—Blotter Bath.</p> <p>The Fairbank & Cantril patent, No. 603,841, for a blotter bath, while it shows only a slight advance over the prior art, covers a device more simple and effective than any previously used, and discloses invention; also held infringed. '</p>

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

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

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

<p>Carriers — Safety Appliance Act — Action foe Violation.</p> <p>If diligence on the part of an interstate carrier to provide and maintain its equipment in accordance with the requirements of Safety Appliance Act March 2, 1893, c. 196, § 6, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3175], be recognized as a defense to an action to recover the prescribed penalty for operating a car not so equipped, it must be the highest form of diligence and care; and where a defendant railroad company received a car, and moved it over its line but a few miles, when the coupler was found to be inoperative, it has the burden of proof to show that it made proper inspection of the car when received, and that the defect did not then exist.</p>

<p>1. Bankruptcy — Appellate Jurisdiction — Act op 1867.</p> <p>A circuit court lias jurisdiction of a petition to revise the action of a district court under Bankr. Act 1867, c. 176, 14 Stat. 517, by virtue of the supervisory power given it by Rev. St. § 4986, the Circuit Courts of Appeals being vested wiili jurisdiction only as to such matters as may be brought up by a technical appeal or writ of error.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Same — Assignees—Purchase op Claims.</p> <p>An assignee or trustee in bankruptcy cannot be permitted to make a proiit out of his trust, and where he has purchased a claim against the estate for less than its face value dividends will be allowed thereon only to the extent of the amount paid therefor with interest, even though he has transferred the claim to another.</p>

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

On Demurrers to Bill. Complainants, in their bill, allege: That they are commission merchants in Chicago, and that under the express terms of their articles of copartnership each and every member of the firm is expressly prohibited, both upon an individual account and in the name of the firm, from engaging in any manner whatsoever, directly or indirectly, in speculative dealings relating in any way to the business of the firm and in any and all the articles of trade or…

<p>Commerce — Carriers—Interstate Commerce — Power of Court to Enjoin Enforcement of Schedule Rates.</p> <p>Under Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], as amended, including the amendatory act of June 29, 1906 (34 Stat. 584, c. 3591 [U. S. Comp. St. Supp. 1907, p. 892]), a court of equity is without jurisdiction to enjoin a railroad company from charging the rates fixed by its schedule of rates duly published and filed with the Interstate Commerce Commission,- and which has gone into effect, pending a proceeding before the commission to determine its lawfulness.</p>

At Law. Action on fire insurance policy. This cause has been submitted to the court, a jury having been waived in writing, and from the evidence submitted the court finds the facts to be as follows: (1) That the plaintiff is the duly appointed and qualified trustee in bankruptcy of Oliver O. Kendall, bankrupt, and a citizen of the state of Iowa, residing in the Northern judicial district thereof, and that he and the said Oliver O. Kendall were citizens and residents of said…

<p>In Bankruptcy. On Application for Extension of Receivership.</p>

<p>1. Carriers — Interstate Commerce — Safety Appliance Act.</p> <p>The effect of the amendment of Act March 2, 1903 (32 Stat. 943, c. 976 [U. S. Comp. St. Supp. 1907, p. 885]), to the original safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), as amended in 1896 (Act April 1, 1896, c. 87, 29 Stat. p. 85), is to leave no room for distinction between hauling a car actually engaged in interstate commerce and hauling one that is generally used in moving interstate traffic, although not actually so engaged at the time when the offense is charged as being committed.</p> <p>2. Statutes — Construction.</p> <p>The court, in construing a statute, may consult the history of the act, and the reports of committees having it in charge.</p> <p>3. Carriers — Interstate Commerce.</p> <p>The mere hauling of an empty car from one state to another, even though it may be for. the purpose of repairing a defect, is engaging in interstate commerce.</p> <p>4. Same — Safety Appliance Act.'</p> <p>As an engine is a ear within the safety appliance statute (Johnson v. Southern Pacific Company, 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363; United States v. Colorado & Northwestern Railway Company [Circuit Court of Appeals, Eighth Circuit, November 25, 1907], 157 Fed. 342) when such engine is engaged in interstate commerce, any car or cars attached to that engine are used in connection with a car which is engaged in interstate commerce, and consequently come within the amendment of March 2; 1903 (32 Stat. 943, c. 976 [U. S. Comp. St. Supp. 1907, p. 885]).</p> <p>(Syllabus by the Court.)</p>

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

<p>On Motion to Dismiss for Want of Jurisdiction.</p>

<p>1. Insurance — Marine Insurance — Admiralty Jurisdiction.</p> <p>Sums paid out to avert a loss, which, if it had occurred, would have fallen upon the underwriter, may fairly be regarded as in the nature of salvage expenses, and may be brought within the meaning of the sue and labor clause of a marine policy; and the fact that there were expenses incurred to save the cargo alone, and that these expenses were incurred on land, cannot defeat the jurisdiction of a court of admiralty of a suit for their recovery under the policy.</p> <p>2. Same — Sue and Labor Clause — Expenses oe Salvage of Cargo.</p> <p>Respondent issued a marine policy insuring libelant on a cargo of perishable goods which were to be shipped from Tacoma to Dawson, Yukon Territory, in vessels having refrigerating compartments. The policy insured against ordinary sea perils, including stranding or collisions with any other vessel or with ice, and contained the usual sue and labor clause. The cargo was shipped in one vessel to St. Michaels, and there transferred to another, both owned by the libelant, for transportation up the Yukon river. The latter vessel was delayed several days by stranding, and, owing to the very low stage of water and the lateness of the season, the master telegraphed libelant’s manager at Dawson, and had a light draft steamer sent down, to which a portion of the cargo was transferred. On reaching Circle City in October, the river above had become partially closed by ice, and navigation was dangerous. After consultation between libelant’s master and manager, the refrigerating vessel was there laid up and the lighter one proceeded until frozen in 70 miles from Dawson. The latter vessel had no refrigerating plant. Both vessels wore in danger of being crushed or disabled when the ice broke up in the spring, and in that event both cargoes would have been lost, owing to the nature of the goods and the impossibility of transporting them at that season, without refrigeration, even if not destroyed. After consultation between libelant and a representative of respondent, with the latter’s consent, both cargoes were transported to Dawson by land during the winter. Held, that the cargo was in a position of peril from risks insured against, and that the expense of such transportation was within the sue and labor clause of the policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1255.]</p> <p>3. Same.</p> <p>In such case libelant was not required to jettison a part of the cargo for the purpose of lightening the vessel, instead of transferring a part to another vesselthe latter course not being in violation of any provision of the policy.</p> <p>4. Same — Peril to Cargo Through Delay — Stranding.</p> <p>The vessel used for the Yukon voyage having been seaworthy when such voyage commenced, the fact that her boilers afterward developed leaks owing to her frequently stranding, by reason of which she was somewhat delayed, did not invalidate the policy, where hut for the delays caused by stranding, which was a peril insured against, she would have completed the voyage in safety.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1111. Marine insurance. — Perils of the sea, see note to 19 C. C. A. 465.]</p> <p>5. Same.</p> <p>The fact that respondent dealt with libelant with knowledge that It was the owner of both the cargo and vessel did not warrant the claim that it was its duty to deliver the goods at their destination at its own expense, which could not have been required of it as carrier after the continuance of the voyage became impossible.</p> <p>-6‘. Same — Adjustment op Loss.</p> <p>While an adjuster of a ■ loss under an insurance policy cannot- decide questions of law where they are the sole questions in controversy, he is required to pass on such as are incidentally necessary to a determination of the items which are within the terms of the policy.</p>

<p>1. Negligence — Action foe Negligence — Proximate Cause of Injury.</p> <p>In order to render negligence actionable, it must be the proximate cause of the alleged injury for which the damages are claimed, and although the defendant in an action may have been guilty of a breach of duty which in law amounted to negligence, yet if the plaintiff, by doing that which a reasonable and prudent person would ordinarily have done under the circumstances, could have prevented the injury, and he failed to do that, he cannot recover, because his negligence was the proximate cause of the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 90-92.]</p> <p>2. ' Master and Servant — Injury to Servant — Contributory Negligence.</p> <p>Plaintiff, who was an adult employs in defendant’s cotton mill, was set to run a machine called a “picker,” with which he was unacquainted. The machine was 40 feet long, and had 5 covered cylinders which revolved and had knives at their surface. The machine became choked in one of the cylinders a few minutes after starting, and another employe threw off the belt, and told plaintiff to go for the superintendent of the room, who came and unchoked it by opening a door and inserting his hand. When it again became choked plaintiff threw off the belt, and, being unable to find the superintendent, undertook to unchoke the cylinder as he had seen it done by inserting his hand, without knowing the nature of the machinery or whether it had stopped running. In fact, the cylinder was still revolving and his hand was torn off. Held, that if defendant was negligent in failing to properly instruct plaintiff, such negligence was not the proximate cause of the injury, which was due to plaintiff’s own negligence, and that the court erred in not directing a verdict for defendant, the material facts not being in dispute.</p> <p>Waddill, District Judge, dissenting.</p>

William T. Hardin brought his suit in the circuit court of Cleburne county, Ala., claiming $20,000 damages of the Southern Railway Company for personal injuries received by the plaintiff while in the defendant’s employ. On the petition of the defendant, the cause was removed to the Circuit Court of the United States for the Eastern Division of the Northern District of Alabama. The complaint is framed under the employer’s liability act of Alabama.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon a writ of error to review a judgment of the Circuit Court for the Southern District of New York, entered upon a verdict convicting the defendants under section 5440 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3676] of a conspiracy to violate subdivision “b” of section 29 of the bankruptcy act of July 1, 1898 (30 Stat. 554, c. 541 [U. S. Comp. St. ,1901, p. 3433]). ' '</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>This cause comes up upon a writ of error to review a judgment entered upon the verdict of a jury in favor of the plaintiff, defendant in error here. In this opinion the parties are designated as in the court below.</p>

<p>1. Evidence — Judicial Notice — Patents—Prior Art.</p> <p>Where neither the pleadings nor proof in a suit for infringement of a patent bring into the record the prior art, the court cannot take judicial notice of it on the question of the validity of the patent, except as to matters of general knowledge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 23.]</p> <p>2. Same — Invention—Burden oe Proox.</p> <p>Whether a patent for a cement lining for wood pulp digesters in which the sulphite process is used, which are large closed receptacles of iron subjected during the process to great heat and very high temperature and to the actions of sulphurous gases to protect the metal shell from injury from such gases and acids, is void for lack of invention, because of the admitted use of such linings in the open vessels to protect them from the action of acids is not so obvious that the court can so determine without proof, and the burden of proof rests upon one asserting its invalidity.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 35, 36.]</p> <p>3. Same — Infringement.</p> <p>The Russell reissue patent, No. 11,282 (original No. 445,235), for a wood pulp digester having a cement lining of the metal shell, held, on the record, to disclose invention, and its claims to be entitled to a 'liberal construction to' cover any homogeneous structural linings composed of adhesive acid resisting materials in the nature of cement; also held infringed.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>On writ of error to review an order of the Circuit Court for the Southern District of New York, dated November 26, 1906, holding the plaintiff in error in contempt of court for failing to appear on June 27, 1906, as directed, and continue his cross-examination in an interference proceeding then pending in the Patent Office.</p>

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

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

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy. This is a petition to review an order affirming an order of a referee approving the final account of a trustee in 'bankruptcy.

<p>Bankruptcy — Failure to Apply fob Discharge — Second Proceeding.</p> <p>A bankrupt who has failed to apply for his discharge within the time limited by Bankr. Act 1898, e. 541, § 14a, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], cannot thereafter file a second petition, and obtain a discharge from the debts which were scheduled and provable in the previous bankruptcy.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Virginia, at Lynchburg.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. ;</p> <p>This cause comes here upon appeal from an order for preliminary injunction entered in the Circuit Court for the Southern District of New York, The operation of the injunction was, by a subsequent order, suspended until after' the hearing and determination of this appeal upon defendant giving a bond in the amount of $10,000.</p>

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

The bill is in the usual form, charging infringement by the defendants (respectively, user and manufacturer) of complainant’s patent No. 645,026, issued to one Woods March 6, 1900, for an improvement in lubricators.

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

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

<p>Corporations — Foreign Corporations — Right to Maintain Suit in Federal Court.</p> <p>The fact that a foreign corporation has done business in a state without complying with a state statute, which in such case subjects it to a fine, and provides that it shall not maintain any suit or action in any court of the state, but does not undertake to invalidate its contracts, does not preclude such corporation from maintaining a suit in a federal court within the state upon a' cause of action arising under a federal statute, and, so far as appears from the pleadings, having no relation to its doing business in such state contrary to law.</p>

In Equity. Action to enjoin the defendants from interfering with the construction and operation by complainant of an elevated crossing at and over that part of Schuyler street known as “the extension of' Schuyler street,” if such extension be a street or part of a street, or, if it be not a street, then from interfering with the erection and operation of such elevated structure or tracks which leads into complainant’s coal pockets on its own lands, and which tracks are used…

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

<p>3. Judgment — Vacation—Mode of Proceeding.</p> <p>Where a federal court had jurisdiction of the subject-matter of an action, and its judgment recites service of process on the defendant, such judgment cannot be set aside on a motion made after the term, but the remedy of the defendant, if he desires to assail the truthfulness of such recital, is by a suit for injunction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 668.]</p> <p>2. Bail — In Criminal Prosecutions — Nature and Effect of Recognizance.</p> <p>A recognizance in a criminal case is in the nature of a judgment confessed'of record, and a proceeding thereon by sci. fa. after .forfeiture is merely to confirm such judgment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 5, Bail, § 372.]</p>

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

<p>Removal op Causes — Jurisdiction op Federal Court — Enjoining Further Proceeding tn State Court.</p> <p>Where, upon the face of the record, including a petition for removal duly filed a cause appears to be removable, on the filing of such record and the docketing of the case In the federal court that court acquires jurisdiction at least for the purpose of determining that question, and, as ancillary to such jurisdiction, may enjoin the plaintiff from proceeding in the state court until it shall hear and determine the question of Its own jurisdiction.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 42, Removal of Causes, fi 192.</p> <p>Legal and equitable remedies and proceedings on removal from state court, see note to Utah-Nevada Co. v. De Lamar, 75 C. C. A. 4.]</p>

■ ■ • The following is the opinion of the Circuit Court, by Thompson, District Judge: The bill shows that the complainant owns certain wells or springs in the city of Buda-Pesth, Hungary, the water of which possesses valuable medicinal properties, and that she sells this water, a bitter water, throughout the world under the trade-mark or trade-name of “Hunyadi Janos,” and she complains: (1) That the defendants are wrongfully selling an artificial bitter water of their own…

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The plaintiff in error was convicted in the District Court under an indictment in several counts, charging violations of section 3893, Rev. St. [U. S. Comp. St. 1901, p. 2658], in sending nonmailable matter through the mails, and brings this writ of error from the judgment thereupon., The indictment contains five counts, of which the first and second charge the mailing of publications entitled “Sexual Debility, Its Cause and Cure,” alleged to be “obscene, lewd, lascivious, and indecent”; the third charges mailing a publication of like nature entitled “Syphilis and Gonorrhea, Their Origin, Effect, and Cure”; and the fourth and fifth charge the mailing of a publication entitled “A Guide to Full Pockets,” containing information where the “obscene, lewd, lascivious, and indecent” publications mentioned in the prior counts could be obtained. Numerous errors are assigned upon rulings in the admission and rejection of testimony, inquiries and remarks on the part of the court in the course of the trial, instructions given and requests denied, and denial.of motions to direct a verdict of acquittal under each of the counts. These assignments do not require specification under the view upon which the decision rests, and the nature and matter of the publications involved are sufficiently described in the opinion.</p>

<p>Carriers — Ejection of Passenger — Action for Damages — Question for Jury.</p> <p>In an action by a passenger against a sleeping car company for damages for being ejected from a sleeping ear, there was evidence tending to show that defendant sold plaintiff accommodations between two points in a car over a route not wholly covered by her railroad tickets, and that the conductor put her off without her consent before reaching the point where the railway lines diverged. Held, that such evidence was sufficient to warrant the court in submitting the case to the jury.</p> <p>[Ed.- Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1492-1496.]</p>

<p>Wbit or Error — Questions Review able — Trial to Court.</p> <p>"Where an action at law was by stipulation tried in a Circuit Court without a jury, and a general finding was made and judgment rendered for defendants on conflicting evidence, the previous overruling of a motion to find for plaintiff cannot be assigned for error in the Circuit Court of Appeals, since it involved the decision of questions of fact as well as law, and the appellate court can look into the evidence only to ascertain whether there is any substantial evidence to sustain the judgment rendered.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3979-3989.]</p>

For decision below, see 154 Fed. 752, affirming decisions of the Board of United States General Appraisers which had sustained the importers’ protests against the assessment of duty by the collector of customs at the port of New York. • The case involves consideration of the following provisions of Tariff Act July 24, 1897, c. 11, § 1 (Schedule J, par. 346; Schedule K, par. 366; and Schedule L, par. 391, 30 Stat. 181, 184, 187 [U. S. 'Comp.

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

<p>L Bankruptcy — Right to Reclaim Property — Contract of Bailment fob Sale.</p> <p>A contract under which a company delivered machinery to a bankrupt for sale, which provided that the title to the machinery and its proceeds when sold should remain in the company, that the bankrupt should receive, keep, and insure the property, pay all charges thereon, and sell the same at certain prices and on stated terms only, and remit the proceeds to the company less a commission which was to be the difference between the invoice and selling price, and gave him an option to pay for or return such as remained unsold at the close of the selling season, was one of bailment for sale, and not of sale, and the company may reclaim such of the property as passed into the hands of the bankrupt’s trustee.</p> <p>2. Same — Estoppel.</p> <p>The action of a creditor of a bankrupt in petitioning the court of bankruptcy for the appointment of a receiver to take charge of and protect the bankrupt's property, which petition set forth that certain of the property in the bankrupt’s possession was owned by the petitioner, and that the bankrupt was also largely indebted to it, did not estop it to assort its ownership of such property.</p> <p>3. Same — Petition to Reclaim Property — Sufficiency of Description.</p> <p>A petition to a court of bankruptcy to reclaim property which was in the bankrupt’s possession but which the petitioner claims to own need not describe the property with the degree of definiteness and particularity required in a complaint in replevin.</p>

In Equity. Bill in equity to restrain alleged infringement of United States letters patent No. 630,037, dated August 1, 1899, and granted to Brackett G. Corser for “buckle for overalls.”

<p>Collision — Suit foe Collision — Pboof of Indemnity of Vessel.</p> <p>Evidence considered in a suit against a British steamer for collision with a baric on a foggy night, some 60 miles southeast of Cape Henry, and held insufficient to sustain the burden of proof resting on libelant to prove the identity of the vessel in view of the testimony of the witnesses from the steamer, consisting of more than half of the officers and crew, all of whom positively denied that she was in any collision, although she was admitted to have been within a few miles of the place of collision at the time, no one on the bark having been able to make any positive identification of the steamer on the night of the collision.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 266-279.]</p>

<p>In Admiralty. Suit in rem, and in personam, against the schooner Charles E. Ealk and her several owners to recover money advanced to disburse the ship on her arrival in port, which was not necessary, nor used for that purpose, but was appropriated by the master. He being a part owner, but not the managing owner, the court rendered a decree against him and his interest in the vessel, and dismissed the other respondents.</p>

<p>Injunction by the Chicago, Rock Island & Pacific Railway Company, and by six .other railway companies, against John Swanger, as Secretary of State of the state of Missouri, and others, to restrain defendant, as Secretary of State, from enforcing Act Mo. March 13, 1907, Laws 1907, p. 174.</p>

<p>In Equity. On motion for removal of receiver.</p>

<p>In Equity. On bill of discovery and answer.</p>

<p>Release — Liability of Vessel fob Injuby to Stevedobe — Settlement with Joint Tobt-Eeasok.</p> <p>Libelant, while in the employ of stevedores engaged in discharging a vessel, was injured by the falling upon him of a bale of goods being hoisted by the winch, caused by the slipping of the gear of the winch, which was furnished by the vessel, but was being operated by the stevedores. There was testimony tending to show that the slipping was the result of using a rusty nail to hold the lever in place, instead of a proper pin, and that the nail was jarred from its place. Such testimony also showed that the nail was observed by the winchman on the day before. Libelant settled with the stevedores for his injury and gave them a release. Held that, accepting such testimony as true, the vessel and the stevedores were joint tort-feasors, the one for furnishing, and the other for knowingly using, an unsafe appliance, and the release of one released both from liability and precluded recovery against the vessel for the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Release, §§ 64^71.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at Wilmington.</p>

<p>1. Equity — Jurisdiction—Waiver oe Objection.</p> <p>The objection that equity is without jurisdiction because the complainant has an adequate remedy at law should be taken at the earliest opportunity ; and, if the subject-matter belongs to the class over which a court of equity has jurisdiction, it is too late to make such objection after the defendant has answered, and there has been a hearing before a master.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 174.]</p> <p>2. Principal and Agent — Accounting—Jurisdiction.</p> <p>A suit to recover on a contract by which complainant was to render services to defendant in buying, renting, and selling lands, and was to receive as part compensation a share of the profits made, in which it was necessary to state an account between the parties covering the transactions during several years, was properly cognizable by a court of equity.</p> <p>3. Appeal — Review—Submission oe Issues to Jury — Weight oe Finding.</p> <p>A special finding of a jury on an issue of fact submitted in a suit in equity must be taken by an appellate court as presumptively correct; and, so far as it depends on conflicting testimony or upon the credibility of witnesses or so far as there is any testimony consistent with the finding, is conclusive.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 3, Appeal and Error, §§ 3928-3943.]</p> <p>4. Same — Reference Without Consent — Weight of Findings.</p> <p>A finding of fact by a master on a reference made without consent does not have the weight of a special verdict of a jury, or of a finding where-the reference Is by consent of parties, but is advisory only, and the question must be determined on the evidence where exceptions are taken both in the trial court and the appellate court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3996-4012.]</p> <p>5. Equity — Decree—Nature and Extent of Relief.</p> <p>In a suit for a settlement between the parties to a contract, by which complainant was to buy and sell lands for defendant, and to receive half of the net profits made thereon, where the contract has been terminated, leaving lands so bought undisposed of, it is competent for the court to direct such lands to be sold by the master, and the profits divided.</p>

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

<p>In Error to the Circuit Court of the United States for the District of Minnesota.</p> <p>Writ of error by the railway company to review a judgment obtained by Donaldson’s administrator.</p>

This was an action by Owen Bros, against Giles and Glassie to recover moneys paid other parties to complete contracts which defendants had undertaken to perform. The trial resulted in verdict and judgment for defendants, which this writ of error is brought to review. The material facts are as follows: The Chicago, Milwaukee & St. Paul Railway Company contracted with McIntosh Bros., railroad contractors, for the construction of a line of road in Iowa.

<p>1. Carriers — Interstate Commerce — Debates.</p> <p>It is not essential to the commission of the offense of giving a concession from a through rate over connecting lines of railroad, under the Elkins Act of February 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880], that the .rate be a joint one established by all of the carriers and published and filed with the Interstate Commerce Commission. If an initial carrier accepts traffic for transportation, and issues its bill of lading over a route made up of connecting roads for which no joint through rate has been published and filed with the commission, the lawful rate to be charged is the sum of the established local rates published and filed by the individual roads; or if there is a local rate over one road and a joint rate over the others for the remainder of the route, all published and filed with the commission, the lawful through rate to be charged is the sum of the local and joint rates.</p> <p>2. Same — Connecting Carriers — Common Arrangement for Through Shipments.</p> <p>In the concert of action, in the successive receipt and movement of traffic by connecting carriers under through bills of lading for continuous carriage, is manifested the common arrangement contemplated by the interstate commerce laws, and no previous formal contract is necessary to bring the carriers under the provisions of the law.</p> <p>3. Same — Indictment for Giving Debates — Sufficiency.</p> <p>An indictment charging an interstate carrier with giving a concession whereby a shipper secured through transportation of property between two points at less than the lawful rate is not insufficient because it does not aver the through rate, where it states the amount of the concession and that it was given from the lawful rate over a certain part of the route, which rate is also given.</p> <p>4. Same — Debates—Effect of Contract with Shipper for Stated Time.</p> <p>The acceptance by an initial carrier of a through shipment to be carried at less than the lawful rates is not rendered lawful by the fact that such carrier had a contract with a connecting carrier whose line formed a part of the through route that the latter would not increase its rate during a certain time and on the faith of such contract made a similar contract with the shipper, where in the meantime the connecting carrier had in fact published and filed with the commission a new schedule increasing the rate.</p>

<p>Bankruptcy — Sale of Pledge — Power of Court to Enjoin.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 67d, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], which provides that liens given in good faith and for • a present consideration shall not be affected by the act, a court of bankruptcy is without power to restrain the sale by a pledgee of property held by him under a valid agreement of pledge in accordance with the terms of the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 323.]</p>

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

<p>ín Error,to the Circuit,Court of the United States for the Northern District of Alabama.</p>

<p>Patents — Suit foe Infringement — Laches.</p> <p>Defendants obtained a patent and entered into an arrangement with complainants by which the latter, as well as defendants, manufactured under it for several years, and then complainants purchased a prior patent for a similar article. After the lapse of two years more, and within less than a year prior to the expiration of their patent, complainants brought suit against defendants for infringement. Relé that, the delay having been with full knowledge of defendants’ device, they were barred by laches from maintaining such suit</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §5 467-469.</p> <p>Laches as a defense in suits for infringement, see notes to Taylor v. ■Sawyer Spindle Co., 22 C. O. A. 211; Richardson v. D. M. Osborne & Co., 36 C. C. A. 613.]</p>

<p>Patents — Infringement—Wall Supports.</p> <p>. The Breuehaud patent No. 563,130, for improvements in the construction of supports for walls, which relates especially to the construction of subbases for old walls when excavations are made adjoining, was not anticipated, and discloses invention and a meritorious advance in the art; also held infringed.</p>

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

In Equity. Bill alleging the unconstitutionality of certain statutes of the state of New York, and of a certain order passed by the “Commission of Gas and Electricity”- for the said state, pursuant to statutory authority.

<p>1. Trade Unions — Committees—Poweb to Contbaot.</p> <p>The 1904 convention of tbe International Printing Pressmen and Assistants’ Union instructed its board of directors to “negotiate” with the Typothetse for an eight-hour workday. The convention of 1905 instructed its board of directors to secure “if possible” a workday of eight hours; and the convention of 1906 instructed its board of directors “to secure a renewal of tbe agreement” then existing, which provided for a nine-hour day “with the declaration as to whether the eight-hour day would be agreed to." The directors under this authority executed a contract with the Typothetse renewing the existing contract, and providing for a nine-hour day until January 1, 1909, and an eight-hour day thereafter during tlie life of the contract. The convention of 1907 refused to ratify this contract until the provision for an open shop Was stricken out, and an amendment was inserted providing for nine hours’ pay for the eight-hour day, to which the Typothetse refused to agree. Held, that the board of directors of the union under the instructions given them by the convention of 1906 had no power to determine within what time after the expiration of the existing contract the eight-hour day should be inaugurated, and that the agreement so made was not binding on the union unless ratified.</p> <p>2. Same — Stbike Benefits — Payment—Injunction.</p> <p>Where a contract between the International Printing Pressmen and Assistants’ Union and the United Typothetse of America attempted to regulate the length of the work day, but did not fix the term of service nor prevent the members of the union from withdrawing from the service of the Typothetse at any time whether with or without cause, the contract having been repudiated by the union, the courts had no power by injunction to restrain the officers of the union from paying strike benefits to members from a fund raised for that purpose in order indirectly to compel enforcement of the contract, and prevent the success of strikes inaugurated to compel the granting immediately of an eight-hour day.</p>

<p>1. Criminal Law — Removal of Prisoners for Trial — Indictment—Certified Copy — Probable Cause — Prima Facie Case.</p> <p>In a proceeding for the removal of prisoners indicted in the district of Idaho from the district of Wisconsin for trial, a certified copy of the indictment is sufficient to make out a prima facie case of probable cause.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 510.]</p> <p>2. Conspiracy — Indictment—Overt Acts — Limitations.</p> <p>Where an indictment for conspiracy to defraud the United States in violation of Rev. St. § AMO [U. S. Comp. St. 1901, p. 3676], alleged the formation of the conspiracy on September 1, 1901, and that on April 10, 1905, within the period of limitation, defendants, in furtherance of the conspiracy and to carry out and effect its object, performed certain overt acts specified, each being alleged to have taken place within three years prior to the indictment, the indictment sufficiently charged that the original conspiracy was continuously in existence, and was not defective as indicating that the overt acts only, and not the conspiracy, had been committed within three years, though It did not in terms allege a new or renewed conspiracy.</p> <p>3. Indictment — Construction.</p> <p>In construing an indictment, reasonable implication from facts clearly alleged may be properly made in determining the true meaning of the accusation, the indictment being sufficient if it apprises defendant of what he must be prepared to meet, and defines the offense with sufficient accuracy to bar a subsequent prosecution.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 27, Indictment and Information, § 310.]</p>

<p>There was verdict of guilty on each count.</p>

<p>Discovery — Requiring Production of Books — Federal Statute.</p> <p>Rev. St. § 724 [U. S. Comp. St. 1901, p. 583], confers authority on a federal court to require a party to produce books or papers for inspection before trial in an action at law, where they apparently contain material facts which are essential to enable the other party to prepare for trial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 16, Discovery, § 115.]</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Pennsylvania.</p>

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

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

<p>Bankruptcy — Reclamation of Property by Seller — Passing of Title.</p> <p>Title to a car load of lumber shipped by petitioners to a bankrupt shortly 'before the bankruptcy, held not to have passed so as to vest in the trustee, where on its receipt the bankrupt claimed a shortage and also a variance in quality from that bought, piled it separately, and refused to settle for the same except at a reduction in price which had not been agreed to at the time of the bankruptcy.</p>

The bill was by appellant, trustee in bankruptcy of Marie Muller, bankrupt, to require appellees to turn over to appellant as such trustee, certain stock in trade, goods, wares and' merchandise of the value of six thousand dollars (or in lieu thereof the sum of six thousand dollars) said to have been unlawfully taken by said appellees from the goods, wares and merchandise belonging to the bankrupt estate, in pursuance of a conspiracy to conceal and put beyond the reach of…

<p>Patents — Infringement—Steam-Heating Apparatus.</p> <p>The Donnelly patent, No. 670,893, for an improvement in steam-heating apparatus, consisting of a water valve for automatically controlling the discharge of the air and water of condensation from the radiators, which valve is operated by the difference in steam pressure between the inlet and outlet side, held not infringed by a device operated by a float actuated by hydrostatic pressure alone.</p>

<p>Patents — Invention—Stocking.</p> <p>The Shaw patent, No. 460,037, claim 2, for a seamless stocking having a divided foot, one part knit with one yarn or set of yarns, and the other with a different yarn or set of yarns, with the edges reciprocally inter-looped, is void for lack of patentable invention in view of the prior art.</p>

<p>Patents — Infringement—Ball Retainer.</p> <p>The Keiper patent, No. 686,617, for a ball-retaining device for ball bearings, as limited by the prior art, held not infringed.</p>

On Motion for Judgment. The plaintiff was a timber inspector in the employ of the Missouri Pacific Railway Company, and the defendant a contractor, who had a contract to sell and deliver, on board of the cars of the railway company, certain timbers to it.

In Bankruptcy. On petition of 'bankrupt for review of order of referee restraining him from further prosecution of the bankruptcy proceedings, and dismissing said proceedings.

<p>Aliens — Naturalization—1Time_ fob Filing Petition.</p> <p>The provision of the naturalization act of .Tune 29, 1906, c. 3592, § 4, 34 Stat. 596 [U. S. Comp. St. Supp. 1907, p. 421], requiring a petition for naturalization to be filed not less than two nor more than seven years ' after the declaration of intention is in the nature of a statute of limitation, and since it contains no language indicating a contrary intention. must be so construed as not to cut off the privilege of aliens who had made declaration of intention prior to its enactment to become citizens, but in such cases to give them seven years thereafter within which to file their petition.</p>

<p>In Equity. On exceptions to report of special master.</p>

<p>Shipping — Charters—Construction- -Day Days.</p> <p>A charter party provided that lay days should commence at 12 o’clock noon after the steamer was entered at the customhouse, Sundays and holidays excepted, the steamer being in every respect ready to load and discharge and in free pratique, of which the captain was to give notice in writing to shippers and consignees, and that dispatch money at the rate of £15 per day should be paid for time saved in loading and discharging. Held, that where the steamer was not ready to receive cargo until after 12 o’clock noon on June 11, 1903, and was not ready to discharge until after 12 o’clock noon on June 20th thereafter, the lay days for loading did not begin until June 12th at 12 o’clock noon, and the days for discharge until June 22d at 12 o’clock noon, June 21st being Sunday, and this though the shippers actually began loading on the 11th at 1:3Q o’clock p. m., and began the discharge at 2:50 o’clock p. m., on the 20th, and continued the same continuously thereafter until the loading and discharging was completed.</p>

<p>In Equity. On motion for preliminary injunction.</p> <p>The Louisville & Nashville' and other railroad companies filed their .original bills here on. March 30, 1907, against the-Railroad. Commission and Attorney General of Alabama to restrain the enforcement of certain legislation fixing the maximum freight and passenger rates on intrastate business, which the defendants were under duty to enforce, and also to restrain the enforcement of the statute which ipso facto forfeits the right of complainants to do intrastate business, if they brought bills in the federal court to test the validity of the rate legislation. A preliminary injunction as prayed was issued May 8, 1907, the respondents making no resistance, and filing neither plea, answer, nor affidavit in contradiction of the sworn bills. At the same time the court under the authority of the state statute providing a judicial mode for the review of the rates and foi the suspension of the rate legislation, pending final determination, made an order suspending the rate statutes until final hearing. The cases are reported Seaboard Air Line Railway Co. et al. v. Railroad Commission of Alabama et al. (C. C.) 155 Fed. 792. On the 14th of August, 1907, the Louisville & Nashville Railroad Company and the South & North Alabama Railroad Company obtained leave to amend their original bills. As both cases present the identical features, the report of the cases will bo confined to the amended bill of the Louisville & Nashville Railroad Company, in which the amendment, so far as material to the present posture of the cases, is contained in the following paragraphs:</p> <p>“Paragraph 27. Complainant further shows to your honor that in and by an order in said cause by this honor-able court made on the 30th day of March. 1907, the rates prescribed by the several acts of the Legislature of the state of Alabama complained of in the bill of complaint in this cause have been suspended; that is to say, the rates prescribed by an act approved March 2, 1907, entitled ‘An act to fix and establish maximum rates to be charged by railroads now operating or which may hereafter operate as common carriers in whole or in part in the state of Alabama for transportation, originating and terminating within the state of certain articles, and for this purpose to classify said articles and said railroads,’ and by an act approved February 14, 1907, entitled ‘An act to proscribe and regulate rates on all railroads, other than street railroads, carrying passengers between points within the state of Alabama,-' and by an act of the state of Alabama approved February 9, 1907, entitled, ‘An act to make the railroad rates of freight in force January 1, 1907, for the transportation, originating and terminating within this state, the maximum rates.’ Said order further restrains and enjoins the original defendants in this cause from enforcing the observance of said several rates prescribed by said several statutes, and to that end restrains and enjoins the Railroad Commission of Alabama, Charles Henderson, president, William D. Nesbitt and John G. Harris, associate members, of the Railroad Commission, and each of them separately and individually, from putting into effect the maximum o-r other rates upon passengers prescribed and authorized by said act of the Legislature of Alabama approved February 14, 1907, and from putting into effect the maximum or other rates prescribed and authorized by said act of the Legislature of Alabama approved March 2, 1907, and from putting into force and effect the maximum or other rates prescribed by the act of the Legislature of Alabama approved February 9, 1907, so far as said rates or any of them so prescribed and authorized relate to the complainant’s railroad or any part thereof within the state of Alabama, and from ordering, recommending, instituting, or bringing, or causing to be instituted or brought, through Alex M. Garber. Attorney General of the state of Alabama, or through any attorney or attorneys employed or appointed by themselves or any of them, or by any officer or officers of the state of Alabama, or through any person or persons whomsoever, any civil action or proceeding of any nature or kind whatever, or prosecution by indictment or otherwise against the complainant or any of its officers, agents, or employes, for damages, penalties, or fines, or for any cause whatsoever for failure to continue in force or effect complainant’s tariffs or rates of January 1, 1907, or for charging, demanding, or receiving for the transportation of freight over complainant’s railroad more than the tariff rates of freight in force upon complainant’s railroad on January 1,1907. and also from putting into force and effect upon any of said lines of railroad of complainant in Alabama the passenger tariffs or rates prescribed in said act approved February 14. 1907. and also from putting into force and effect the classification of freight and schedules of rates prescribed or authorized in said act of March • 2, 1907, and also from Instituting or bringing, or causing to be instituted or brought, any suit at law or in equity against complainant, or any officer, agent, or employe of complainant to put in force or effect or to observe the provisions of said act, approved February 9, 1907, or of the said act approved February 14, 1907, or said act approved March 2, 1907, and also from instituting or bringing, or causing to be instituted or brought, any suit or proceedings, either at law or in equity, civil or criminal, or any of its officers, agents, or employes, for failing to observe any of the tariffs or rates prescribed or authorized by said .acts, or either of them, or for charging more for passengers or freight transported than is provided or authorized by said acts or either of them, and also from instituting or bringing, or causing to be instituted or brought, any suit or proceedings, either at law or in equity, civil or criminal, for penalties •or otherwise against complainant or any officer, agent, or employé of the complainant for having increased its prior to March 25, 1907, above the maximum of its schedules of freight charges of January 1, 1907, and in and by said order this honorable court further restrained and enjoined the original defendant, Alex M. Garber, Attorney General of the state of Alabama, and each and every .attorney at law that may be employed or appointed by said Railroad Commis;Sion of Alabama, or by Charles Henderson, president, or William D. Nesbitt, and John G. Harris, associate railroad commissioners of Alabama, or either of them, or by any other officer of the state of Alabama, and all individuals, persons, and corporations, were thereby enjoined and restrained from instituting or prosecuting against complainant or any of its officers, agents, or employes any action or proceedings, civil or criminal, for damages, penalties, or fines, •or for any cause of action whatever for failure to continue or put into force or effect on any of the lines of complainant in Alabama any of said tariffs, passenger or freight, or for charging, demanding, or receiving for transportation of passengers or freight more than the rate or rates prescribed in said •several acts of the Legislature-of Alabama, or any,of them, or for continuing in the conduct of its business in the transportation of passengers and freight between points in the state of Alabama, notwithstanding the bringing by complainant of this suit in this court. It is the purpose and intention of his excellency, Braxton B. Comer, the Governor of the state of Alabama, to cause .-said order of this honorable court to be frustrated and rendered ineffectual by requiring and instructing the various solicitors and other prosecuting officers in the several counties through which the complainant’s railroads or any parts thereof are operated to cause complainant, its officers, agents, and employes, to be arrested, indicted, prosecuted, and imprisoned should they or either of them, under the protection of the said order made by this honorable court, .and pursuant to its terms, charge, demand, or receive for the transportation of passengers or freight more than the several rates fixed by said several statutes, •or either of them, or should they or either of them refuse to receive any article when offered for transportation at the rate of compensation established by -statute.</p> <p>“Paragraph 28. His excellency, the said Braxton B. Comer, was at the time that the bill of complaint was filed in this cause the Governor of the state •of Alabama, and is still such Governor, and as such Governor he is charged with the duty of seeing that the laws of the state of Alabama are enforced. He knows of the bill of complaint filed in this honorable court in this cause, and is familiar with the allegations contained therein, and also with the object and purposes thereof, and knows of the restraining order heretofore made by this honorable court in this cause, and "of the terms thereof, and as the •Governor of the state of Alabama he has employed special counsel to assist the defendant, Alex M. Garber, the Attorney General of the state, in defending the cause, and the Attorney General of the state of Alabama and said special counsel have appeared in said cause under such employment, and are representing the defendant herein; and yet his excellency, the said Braxton B. •Comer, Governor aforesaid, has recently on various occasions and in varying language since the filing of the bill of complaint in this cause, and since said -order suspending said rates and restraining said parties, and all other officials of the state as aforesaid, openly and publicly repudiated the right of this honorable court to make said order, and declared that said order does not ■operate to suspend the several rates fixed by said several statutes, and has openly and publicly declared that the making of said order by this honorable court is in violation of the sovereign rights of the state of Alabama, and declared, in spite of the suspension of said rates by said order of this court in this cause, and the fact that the enforcement of said rates has been restrained and enjoined as aforesaid, that every time a railroad has, since said order was made, charged a greater rate than that prescribed by either of said acts, and its officers, agents, and servants by charging, demanding, or receiving such greater rates have committed a criminal offense, and that every time any such railroad or either of its officers, agents or servants hereafter makes such charge it and they are guilty of a criminal offense, and that for each of said offenses they, the said railroads, their officers, agents, and employes, should he arrested, indicted, convicted, and punished by the courts of the state, and that it is the duty of the solicitors and other prosecuting officers of the various counties in which any of said railroads, including that of the complainant, is operated, to indict and prosecute said railroads and their officers, agents, and servants for making said charges in excess of said rates, and that it is the duty of the several courts of the state of Alabama to convict and punish such railroads, their officers, agents, and servants therefor without regard to, or respect for, the order of this honorable court made in this cause suspending and restraining and enjoining the enforcement of the several rates prescribed by said several statutes, and he has openly and publicly declared his purpose to advise and instruct the several solicitors and other prosecuting officers in said several counties to ignore the said order of this court in this cause suspending and restraining and enjoining the enforcement of said rates, and to cause to be arrested, indicted, and prosecuted said several railroads, including complainant, and their officers, agents, and servants, for each charge made by them, or any of them, in excess of any of the rates prescribed by said several acts. Among other things, his excellency, the said Braxton B. Comer, lias declared that every time a ticket is sold for more than 2% cents a mile the railroads violate the law, and the person selling the ticket commits a misdemeanor, and it is the duty of every court to so charge the jury, and the duty of every solicitor to make out a case. * * *</p> <p>“The Southern Railway Company filed in this court its bill of complaint, making allegations similar to that made by complainants in the above-entitled cause, and obtained from this honorable court a restraining order identical in purpose, effect, and scope with that obtained by complainant, in so far as said order relates to said freight and passenger rates and the suspension thereof, and in so far as said order restrains and enjoins the prosecution of the railroads for charging rates in excess of those prescribed by said order, but, after said order had been made, the Southern Railway Company agreed with his excellency, the said Braxton B. Corner, to put into force and effect on September 1, 1907. the rates prescribed by said several statutes pending said litigation, and, referring to said settlement, his excellency, said Braxton B. Comer, openly and publicly said, in substance: T think the Southern Railway management was very wise in accepting in good faith the recently enacted laws of the state, and give them a fair trial, and it is difficult to understand how any corporation, whether domestic or foreign, can see it for their business interest to place themselves crosswise of the expressed will of the people, and place themselves in defiance of the laws of the state, and seek by injunction of the federal court to place themselves outside of the sympathy of the laws of the state. I wish to thank the Southern Railway officers for their accession to what I am sure is a just demand from the people, and agreement to obey our laws, and will simply add that a negro crap shooter would be arrested in a minute for any violation of the law, and I shall charge every officer of the state that any violation of our criminal laws, whether by individuals or trusts, no matter how small the individual nor how great the trust, is a violation of the law, and must be so charged and alike made amenable. I am afraid that some of our public service corporations do not fully understand that Alabama is a sovereign state, and must dominate its intrastate affairs. I am sure that there is scarcely a citizen of Alabama so scallawag in his views as to wish or help secure the contrary to this. I am sure that the people of Alabama practically as a unit demand that the state shall govern its own affairs, and that whenever any of our laws, civil or criminal, are violated, the offender must pay the penalty.’ He further said, in substance, as follows: T can conceive of no greater mistake than for a public service corporation to attempt to ignore through an injunction of the federal courts the state’s right to regulate their business within the state. ' I think it is a great mistake for the local federal courts to attempt to set aside the state’s jurisdiction of its own affairs.’</p> <p>“Paragraph 29. The complainant further shows 'to your honor that it is the purpose and intention of his excellency, the said Braxton B. Comer, in accordance with his said publicly expressed views, to instruct the said several solicitors and prosecuting officers in the several counties through which complainant operates its railroad, ór any part thereof, to ignore and defy the order of this court in this cause suspending and enjoining the enforcement of said several freight and passenger rates, and to cause to be arrested, indicted, and prosecuted in their respective counties the complainant, its officers, agents, and servants, for every charge made, whereby a rate in excess of those prescribed by said statutes is demanded or received, and for every refusal by it or them, or any of them, to receive any article when offered for transportation at the rate of compensation established by statute, and that he so intended at and before the bill of complaint was filed in this cause, and that said several solicitors and other prosecuting officers will, under said instructions and directions, cause complainant, its officers, servants, and agents, to be arrested, indicted, and prosecuted for each of said charges or refusals, and that the sheriffs of each of said counties will, in person or through their deputies or assistants, arrest and imprison the officers, agents, and servants of complainant upon said charges or indictments, unless a further and additional order is made by this honorable court restraining and enjoining them from so doing. And complainant shows to the court that, by said several prosecutions, it will, in spite of the order heretofore made by this honorable court suspending and restraining and enjoining the enforcement of said rates, be compelled to desist entirely from doing any intrastate business in the state of Alabama pending this cause, unless it shall charge for the transportation of freight and passengers not more than the said several rates fixed by said several statutes, and in either of said events it will suffer and sustain irreparable loss and injury. * * *</p> <p>“Complainant further states that many of its agents and servants at its stations on its lines in Alabama are telegraphers) and engaged daily and hourly in communicating by telegraph to other agents of complainant the facts concerning the movements and operations of freight trains carrying both intrastate and interstate traffic, and of passenger trains carrying both intrastate and interstate passengers, as well as the United States mails, and are engaged also in charging and receiving freight and passenger rates as allowed by the order of the court herein, as well as in the discharge of other necessary duties connected with the transportation of both intrastate and interstate commerce on such trains; and many of complainant’s agents and servants are conductors on complainant’s passenger trains which carry daily both intrastate and interstate passengers and said mails, and among their several duties is that of demanding and collecting cash fares of passengers who have failed to purchase tickets at the stations where they boarded such trains; and should complainant’s said agents and servants be arrested from day to day and from time to time, and thus prevented from discharging their several duties to the public, as well as to complainant, and which they are employed by complainant to perform, as is threatened to be done by his excellency, said Braxton B. Comer, the public at large, as well as the complainant, will suffer and sustain great and irreparable loss and damage, and not only complainant’s intrastate freight and passenger trains, but its interstate freight and passenger trains, as well as the United States mails, which are daily carried thereon, will be greatly delayed and interfered with, if not stopped altogether, and complainant will be thereby rendered unable to keep its said agents and servants in the discharge of their several duties, or to employ and keep in the discharge of their several duties other competent agents and servants to take the places and discharge the duties of those thus arrested at the instigation and under the instructions of his excellency, said Braxton B. Comer. * * *</p> <p>“Complainant further states that, by reason of the arrest, indictment, and imprisonment of its officers, agents, and servants threatened and about to be done as aforesaid, its railroad properties in Alabama will be ruined and destroyed, and the carrying of the United States mails and interstate commerce over its lines in Alabama will be prevented, unless the restraining order and injunction hereinafter prayed for he immediately granted.”</p> <p>The amended bill makes the sheriffs and prosecuting officers in each of the «counties through which complainant’s road is operated defendants to the bill, and prays that they be enjoined from instituting, “prosecuting, or aiding in the prosecution or causing to be prosecuted, any proceedings, civil or criminal, of any kind or description whatsoever against complainant, or against its officers, agents, or servants, or any of them, for or on account of the matters aforesaid, or for or on account of their violation, or the violation by complainant of the provisions of said several acts of the Legislature of the state of Alabama fixing the maximum rate upon passengers and freight transported between points in said state, or either of them, and causing them or any of them to be indicted or aiding in indicting them, and from causing them or any of them to be arrested or imprisoned, or otherwise detained, under any indictment or warrant or otherwise, for or on account of any charge based upon the violation or alleged violation by complainant or any of its officers, agents, or servants, of any of the terms of said several acts of the Legislature of the si ate of Alabama fixing the maximum rates upon passengers and freight to be transported between points in said state”; and also that the sheriffs and their successors in office and their deputies be enjoined “from executing or serving upon complainant or upon any of its officers, agents, or servants any summons and complaint, or other process in any civil suit or proceedings had or instituted during the pendency of this cause upon or against the complainant, its officers, .agents, or servants, or either of them, and from in any manner interfering with or molesting complainant, its officers, agents, or servants, or any of them, for or on account of the violation or alleged violation by them or any of them of any of the terms of the said several acts of the Legislature of the state of Alabama, and from arresting, taking into their custody, or the custody of either of them, or otherwise restraining or detaining the complainant, its officers, agents, or servants, or either of them, in the jail or jails of any of the counties of the state of Alabama, or elsewhere, under any warrant, indictment, or otherwise, for or on account of the violation or alleged violation by complainant, its officers, agents, or servants, or either of them, of any of the terms of the provisions of said several acts of the Legislature of the state of Alabama fixing the maximum rates upon passengers or freight transported between points in said state, or either of them, and restraining and enjoining the said last-named defendants, or their successors in office, and each of them, by themselves or •their deputies, or the deputy or deputies of either of them, from demanding or collecting on execution or other process from complainant, its officers, agents, or servants, or either of them, any fine or penalty whatever, or any part thereof, inflicted or adjudged against them, or either of them, for any violation or alleged violation of any provision of the acts of the Legislaiure of Alabama, fixing or prescribing the maximum rates for freight or passengers transported between points in said state.”</p> <p>On the filing of the bill the court set the 24th day of August, 1907, for hearing the motion for an injunction pendente lite as to these matters, and in the meanwhile issued a restraining order as prayed. All the solicitors who appeared filed answers, which are verbatim copies of the answer filed by the solicitor of Bibb county, who objected to the relief asked against him on the following grounds:</p> <p>“(1) There is no equity in the bill so' far as the same seeks relief against him.</p> <p>“(2) It would be a violation of the Constitution and statutes of the United States-to grant the injunction prayed for against him, or to extent! said injunction as prayed for to him.</p> <p>“(3) It would be a violation of the eleventh amendment of the Constitution of the United States and also of section 15 of the Constitution of Alabama to maintain the bill as amended against him, or to extend the injunction prayed for, since the bill as amended, in so far as he is made a defendant thereto, is, under its averments, in reality a suit against the state of Alabama.</p> <p>“(4) The court has no jurisdiction to restrain criminal prosecutions in the same of the state of Alabama, as the amended bill seeks to do.</p> <p>“(5) The defendant Is not specially charged by the state of Alabama, or by its statutes, with the execution of or with the performance of any special duty with reference to the several statutes, concerning railroad, freight, and passenger rates in the amended bill referred to, and hence he is not a proper defendant to said amended bill.”</p> <p>_ The sheriffs who appeared filed answers setting up verbatim the same objections as the solicitors. In view of the great excitement then prevailing in the state, the court deemed it best, in granting the orders, to discuss somewhat fully the principles by which it was guided in issuing them. The opinion thereon stated that heretofore the court had “necessarily” decided all the questions of law involved in the amended bills, and reserved all other questions until the coming in of the answer to the rule to show cause.</p>

<p>1. Courts — Jurisdiction of Federal Courts — Suit Against State.</p> <p>Where a state statute provides that suits to recover penalties for its violation shall be brought in the name of the state by direction of the Governor, the Governor acts thereunder officially as executive officer of the state having a discretionary power, and a suit to enjoin him from exercising such power is one against the state, of which a federal court is without jurisdiction under the eleventh constitutional amendment.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Courts, § 844%.</p> <p>Federal jurisdiction of suits against state, see note to Tindall v. Wesley, 13 C. C. A. 165.]</p> <p>2. Carriers! — State Regulation — Suit to Enjoin Enforcement — Parties.</p> <p>Where the relation of the Attorney General of a state to a state Railroad Commission and the enforcement of its orders is simply that of his general official relation as the principal law officer of the state, he is not a necessary nor proper party to a suit to enjoin the enforcement of an order made by the commission.</p> <p>8. Same — Jurisdiction of Federal Court.</p> <p>Where a state Railroad Commission is given continuing power of supervision over the matter of compliance with its orders and regulations, with power to change or repeal the same, and is made suable by statute, a suit may be maintained against it and its several members and officers in a federal court to enjoin the enforcement of an order it has promulgated on the ground that the same is confiscatory.</p> <p>4. Same — Preliminary Injunction — Estoppel.-</p> <p>In á suit by a railroad company to enjoin the enforcement of an order of a state Railroad Commission fixing rates, complainant’s right to a preliminary injunction or to relief on the merits is not prejudiced by the fact that, being denied a preliminary injunction on its ex parte application, it put into effect the rates prescribed by the order, being constrained thereto by the statutory penalties to which it would otherwise be liable.</p> <p>5. Same — Pleading.</p> <p>In a suit by a railroad company to enjoin the enforcement of an order of a state Ráilroad Commission fixing rates, allegations in the bill, filed before the order has gone into effect, that the new rate is unreasonable and if enforced will result in a large loss of revenue to complainant, are not admitted by a demurrer.</p> <p>6. Same — Prelimi-nary Injunction — Unreasonableness op Rate.</p> <p>On a motion for a preliminary injunction to restrain the enforcement of an order made by a state Railroad Commission reducing passenger rates within the state, on the ground that the rate therein fixed is unreasonable and confiscatory, the showing held insufficient to warrant the granting of such injunction, in that.it did not enable the court to determine in advance of an actual trial that the effect of the enforcement of the order would be to lessen complainant’s net earnings from that part of its business.</p>

<p>1. Carriers — Interstate Carriers of Live Stock — Twenty-Eight Hour Law.</p> <p>Act June 29,1906, c. 3594, §§ 1-4, 34 Stat. 607, 608 [U. S. Comp. St. Supp. 1907, pp. 918, 919], commonly known as the “28 hour law,” which prohibits interstate carriers of live stock from confining the same in cars or vessels for more than 28 consecutive hours without unloading them for feed, water, and rest, and which imposes a penalty for its violation, is a criminal statute, and in a proceeding to enforce the penalty, although the action is civil in form, the defendant is presumed innocent until every essential element of the offense is proved beyond a reasonable doubt.</p> <p>2. Same — Action fob Penalty — Sufficiency of Evidence.</p> <p>In an action under such statute against a railroad company to recover the penalty imposed thereby for “knowingly and willfully” failing to comply with its provisions, based on the failure of defendant to unload a car load of cattle until nearly six hours after their receipt from a connecting road, by which they had been loaded 24 hours previously, the government is not entitled to recover on proof merely of such facts; there being no evidence that they were not unloaded and fed during such time, or that defendant had knowledge of the time when they were loaded.</p>

<p>Towage — Injury to Tow at Pier — Liability of Tug.</p> <p>A tug held not liable for the injury of a scow and loss of her cargo by her overturning while moored to a bulkhead on Harlem river; the evidence showing that the tug, which had her in tow, left her at the place directed, which was ordinarily safe, and with sufficient depth of water, and that the accident was in no way due to any fault on the part of the tug.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 23.]</p>

<p>Carriers — Delivery or Goods — Goods Ordered Under Fictitious Name.</p> <p>Where a transportation company delivered goods received for shipment to the person who ordered the same from the shipper, it cannot be held liable to the shipper for their value, although such person may have ordered and received them under a fictitious name.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 9, Carriers, § 306.]</p>

<p>On motion to take money out of court.</p>

<p>On Petition of the Bankrupt for Review of Order of Referee Denying his Claim to Exemptions.</p>

<p>1. Public Lands — Coal Lands — Acquisition—Conspiracy.</p> <p>Where defendant conspired to obtain large tracts of coal land by procuring others to enter the land in separate parcels as cash purchasers and pay for it with money furnished by defendants, and to hold the land in secret trust for them, whereby defendants expected to obtain title to land which they could not have obtained in their own names, the transaction was illegal, and the title acquired by the entrymen was subject to vacation in equity.</p> <p>2. Conspiracy — Statutes—Construction.</p> <p>Rev. St. 5440 [U. S. Comp. St. 1901, p. 3676], prohibiting conspiracy to defraud the United States, must be strictly construed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 60; vol. 44, Statutes, §§ 322, 323.]</p> <p>3. Same — Scope op Conspiracy — Fraud.</p> <p>Defendants entered into a conspiracy to defraud the United States of title to and the possession of large tracts of coal land by procuring others to enter the land in separate parcels as cash purchasers; defendants furnishing the money, and the entryinen holding the land in secret trust for defendants. Held that, the gist of the conspiracy being the intent to give . such entries a false appearance for the purpose of misleading the United States, it eonsituted a conspiracy to defraud the United States, prohibited by Rev. St. § 5440 [U. S. Comp.' St. 1901, p. 3676], though defendants did not stand in such a position to the government as to require a disclosure of the true facts.</p> <p>[Ed. Note. — For cases In point, see Cent Dig. vol. 10, Conspiracy, § 60.]</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 152 Fed. 65S, affirming a decision of the Board of United States General Appraisers (G. A. 6,290; T. D. 27,113), which had affirmed the assessment of duty by the collector of customs at the port of New York.</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 152 Fed. 589, affirming a decision of the Board of United States General Appraisers (G. A. 6,335; T. D. 27,277).</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 152 Fed. 486, affirming a decision of the Board of United States General Appraisers (G. A. 6,307; T. D. 27,180).</p>

For decision below, see 154 Fed. 734, in which the Circuit Court reversed a decision of the Board of United States General Appraisers (G. A. 6,268; T. D. 27,021), which had reversed the assessment of duty by the collector of customs at the port of New York.

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

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

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

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