Volume 158 — Federal Reporter

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

<p>1. Courts — Federal Court Jurisdiction — Party may Waive Venue or Suit.</p> <p>The right of a party to suit in the district of the residence of either the plaintiff or the defendant is a personal privilege which he may waive by a trial, demurrer, answer, or a general appearance without making the objection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 810, 815.</p> <p>Of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192.]</p> <p>2. Franchise — License—Certain Bights Which Constitute Respectively.</p> <p>A right or privilege which is essential to the performance of the general function or purpose of the grantee, and which can be given by the sovereignty alone, such as a right or privilege of a corporation to operate a commercial railroad, a street railroad, city waterworks, gasworks, and to collect tolls therefor, is a franchise.</p> <p>A right or privilege not essential to the general function or purpose of the grantee, and of such a nature that a private party might grant a like right or privilege over his property, such as a revocable permission to occupy or use a portion of some public ground, highway, or street, is a license, and not a franchise.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Franchise, § 1.</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2929-2942; Vol. 5, pp. 4133-4141; vol. 8, pp. 7706, 7766.]</p> <p>3. Constitutional Law — Constitution—Construction by First Legislative Body Persuasive.</p> <p>The interpretation given to a Constitution by the first legislative body which acts thereunder is a contemporary construction, which should he treated with great deference.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 14, 15.]</p> <p>4. Same — Sensible Construction Preferred to Impracticable or Unreasonable One.</p> <p>A rational practicable interpretation of a Constitution or statute should be preferred to one which makes it impracticable or unreasonable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 9-11.]</p> <p>5. Municipal Corporations — Article XX or Constitution op Colorado— Charter op Denver — Power op City Council to Grant Revocable Right op Way over Street to Railroad Company.</p> <p>Article 20 of the Constitution of Colorado prohibited the city of Denver from granting any franchise relating to any street, alley, or public place, without an approving vote of the qualified taxpaying electors of the municipality.</p> <p>The charter of Denver adopted pursuant to this article empowered its council to grant a revocable license or permit at any time to any street, alley, or public place in that city.</p> <p>The council of the municipality granted by ordinance to the Union Pacific Railroad Company, a corporation empowered by the laws of a state to construct, maintain, and operate a railroad into and through the city, a revocable permission to lay, maintain, and operate certain spur railroad tracks upon Blake street in that city for the distance of eight blocks to enable those who should own or occupy warehouses and other business houses to be constructed upon that street to transport their commodities to and from these houses in cars. The ordinance provided that this permission was revocable at any time by the city, and that if it revoked it or any part of it the city should pay back to the railroad company such part of the amount which that company had expended, not exceeding $67,000, in paving and sewering the part of Blake street to which the revocation should pertain. Held,:</p> <p>The privilege thus granted was a revocable license and not a franchise. The council of Denver was not prohibited from granting it by article 20 of the Constitution of Colorado, and it was empowered to do so by section 269 of the charter of Denver, and the license was valid.</p> <p>6. Same — Ordinance—Where Divisible, Valid Part may Stand Though Void Part Falls.</p> <p>When a part of a divisible ordinance or statute is within, and another part is without, the power of the body which enacts It, the former is valid and may be enforced, although the latter is void, unless it appears from a consideration of the entire ordinance or statute that it would not have been enacted without the part which is void.</p> <p>This license was to a railroad company, its successors and assigns. If the grant to the successors and assigns was void, that to the railroad company was still valid.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 36, Municipal Corporations, §§ 248-251.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Trover and Conversion — Action eob Trespass and Conversion Identical with Action for Conversion where no Damage to Land Claimed.</p> <p>A cause of action for trespass upon land, and for the taking from it asportation and conversion of coal, timber, or other personal property, wherein the only damage alleged is the loss of the value of the personal property converted, is the same in legal effect as a cause of action for the conversion of the personal property.</p> <p>2. Writ of Error — Review—Error Must be Proved.</p> <p>He who alleges an error in the trial of a cause must establish it by the record or it will be disregarded.</p> <p>[Ed. Note. — Por cases in point, see Cent Dig. vol. 3, Appeal and Error, § 3670.]</p> <p>3. Trover and Conversion — Personal Property — Measure of Damages.</p> <p>One who unintentionally, and in the honest belief that he is lawfully exercising a right he has, enters upon the property of another, and removes his ore, his coal, his timber, or any other valuable appurtenant to his land, is liable in damages for the value of the ore, timber, or other thing in its original place, and for no more.</p> <p>But one who willfully and intentionally takes ore, timber, or other property of another, and appropriates it to his own use, must respond to the owner for the full value of the property at the time he converts it, without deduction for the labor bestowed or expense incurred in removing and preparing it for market.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, §§ 203, 264.]</p> <p>4. Same — Presumption of Intention to Convert.</p> <p>There is a legal presumption that one who takes or converts to his own use the property of another intends so to do, and a jury may lawfully infer that such a wrongdoer had knowledge of the right and title of the owner of the property which he appropriated, and that he intended to convert it to his own use from his reckless disregard of the owner’s right and title, unless the presumption is overcome by evidence of his innocence and good faith.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, § 215.]</p> <p>5. Writ or Error — Review—Presumption or Prejudice.</p> <p>The presumption is that error produces prejudice, and it is only when it is clear beyond doubt that none resulted, or could have resulted, from an erroneous ruling that the judgment may be lawfully affirmed notwithstanding.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4038-4046.]</p> <p>•6. Trover and Conversion — One who Disposes of Property which he Knows was Wrongfully Taken by Another is Guilty of It.</p> <p>The wrongful taking of coal or ore from a mine, or timber from a forest, does not divest the title of the owner, and whoever obtains and disposes of it with knowledge that it was wrongfully taken is liable to the owner for its conversion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, § 173.]</p> <p>Philips, District Judge, dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to the Supreme Court of the Territory of Oklahoma.</p>

<p>1. Raileoadsí — Compelling Switch Connection — Peocedube.</p> <p>The primary purpose of Act Pa. May 5, 1832 (P. L. 501), and its supplements, which provide that if the owner of land, mills, coal mines, or other real estate in the vicinity of any railroad, and not more than three miles distant therefrom, shall desire to mate a railroad thereto “over any intervening lands,” he shall institute a proceeding therefor, and the necessity of the proposed connection and the damages sustained by the intervening owner shall be determined by a jury of six men, is to provide an adverse proceeding by which a siding may be laid over private property, and it does not provide a means of enforcing a right to a switch connection by one whose property is adjacent and contiguous to the railway with which the connection is sought, in which no third party has any interest.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 118.]</p> <p>2. Same — Right of Mine Owneb to Connect Switches — Enfobcement in Equity.</p> <p>In Pennsylvania, where by statute every railroad company is made a common carrier and its railroad a public highway, every such company is in duty bound to permit mill owners, mine owners, and others to construct on their land adjoining its railroad suitable switches for the use of their business, and connect the same with the company’s tracks, subject to reasonable regulations, and to receive and deliver from and to such switches cars and freight on equal terms with other shippers, and such duty may be enforced by a court of equity by a mandatory injunction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 118.]</p>

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

<p>1. Brokers — Contract for Commissions — Evidence—Question for Jury.</p> <p>In an action by a broker to recover commissions on a sale of timber land, evidence held to require submission of the question as to the existence of the contract to pay for his services to the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 128, 129.] '</p> <p>2. Corporations — Representations by Agent.</p> <p>Plaintiff offered certain timber lands to defendant at a certain price per acre net to the owner, plaintiff’s commission to be 5 per cent. Defendant’s president referred plaintiff’s letter to R., who was defendant’s land agent, and he refused plaintiff’s offer at the price specified, but continued negotiations with him, and later a sale was consummated between the owner of the land and defendant’s president. Held, that plaintiff was authorized to assume that R. had authority to contract with plaintiff to pay a commission in case of the consummation of the sale.</p> <p>8. Brokers — Compensation—Revocation of Authority.</p> <p>The owner of certain timber land authorized plaintiff to offer the same for sale at $2.75 per acre net. After plaintiff had offered the land to defendant, the owner’s superintendent wrote defendant that they had decided to keep the lands out of the market until they had made a thorough examination of the lands, and, when that was finished, they would be glad to name defendant a price. Thereafter the matter was again taken up by a letter of one of the owner’s officers to defendant’s president, and subsequent negotiations resulted in a sale, field, that the owner’s letter withdrawing the lands from the market was but a temporary withdrawal for the purpose of examination only, and was not effective to deprive plaintiff of the right to commissions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vo). 8, Brokers, § 45.]</p> <p>4. Same — Commissions on Additional Land.</p> <p>Where the owner of certain timber land empowered plaintiff to sell the same at a specified price net, and gave plaintiff a plat of the land he was authorized to sell, plaintiff could not claim commissions on a sale of additional land not included in such plat.</p>

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

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

The plaintiff in error, B. H. Johnson, E. H. Coleman, and A. F. Mitchell, were jointly indicted for conspiring to commit an offense against the United States.

<p>1. Bankruptcy — Corporations—Suit Against Stockholders — Summary Proceedings.</p> <p>Where the organizers of a corporation fraudulently overvalued its assets in the issuance of stock, and the corporation’s trustee in bankruptcy claimed that H., a nonresident stockholder, who paid substantially all the money which went into the concern, had notice of the fraud, the trustee could not subject her to liability for the debts of the corporation on an order to show cause, issued on a petition in the bankruptcy proceedings, delivered by mail and by publication; such relief being obtainable only in a suit in equity based on personal service in the forum where she was subject to suit.</p> <p>2. Same — Suits by Trustee.</p> <p>A suit by the trustee of a bankrupt corporation to compel a stockholder to pay corporate debts because of her alleged participation in a fraudulent overvaluation of the corporation’s assets in payment for stock was not a case of a preferential or fraudulent transfer within Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Oomp. St. 1901, p. 3418], as amended by Act Cong. Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1907, p. 1024], giving courts of bankruptcy jurisdiction in suits for the recovery of property under sections 60b, 67e, and 70e (30 Stat. 562, 564, 565 [U. S. Comp. St. 1901, pp. 3445, 3449, 3452], 32 Stat. 799, 800 [U. S. Comp. St. Supp. 1907, pp. 1031, 1032]), relating to fraudulent and preferential transfers, but was a suit of a plenary nature, of which the bankruptcy court had no jurisdiction except by defendant’s consent.</p> <p>[Ed. Note. — For cases in.point, see Cent. Dig. vol. 6, Bankruptcy, §§ 410-414.]</p>

<p>1. Damages — Measure of Damages — Breach of Contract to Deliver Bonds.</p> <p>The measure of damages for breach of a contract to deliver bonds of a corporation, the consideration for which has been paid, is the value of the bonds at the time they should have been delivered under the contract, with interest, and such value is prima facie their face value.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 344-350.]</p> <p>2. Evidence — Hearsay—Market Value — Evidence of Sales.</p> <p>Where the bonds of a corporation have been sold in market, or there is an established demand therefor, this may be shown as a means of fixing their value in measuring the damages for breach of contract by nondelivery, but such market value is not conclusive, and it may be shown that their real intrinsic value is either greater or less, and where there is no established market value, the real value is to be ascertained from such elements of value as are obtainable.</p> <p>[Ed. Note. — For cases in point, see Cent, Dig. vol. 20, Evidence, §§ 1214-1216.]</p> <p>3. Damages — Construction of Contract.</p> <p>Where a contract provided that plaintiff should receive for doing certain work “the sum of sixty-five hundred dollars, said sum to be paid * * * in the first mortgage bonds” of a corporation, and there was a failure to deliver the bonds, plaintiff is not entitled to recover, as the expressed value of the work, the sum of $6,500 in money, regardless of the value of the bonds.</p> <p>4. Same.</p> <p>An action to recover damages for breach of a contract to deliver a certain amount in face value of the bonds of a corporation is not one for fraud, and plaintiff is not entitled to recover the face value of such bonds because the defendant may have caused the corporation to issue bonds for an amount largely exceeding the value of its assets, but the only issue, where the nondelivery is admitted, is as to the value of the bonds at the time they should have been delivered.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 344-350.]</p>

<p>Petition for Revision of Proceedings of the Circuit Court of the United States for the Eastern Division of the Southern District of Ohio.</p> <p>On petition for leave to file a bill of review in the Circuit Court.</p>

<p>Tboveb and Conversion — Title—Innocent Purchaser.</p> <p>Plaintiff advanced money for the purchase of certain cattle for plaintiff under an agreement that T. should purchase the cattle with plaintiff’s advances, pasture and care for them at T.’s expense, and when sold, after returning the money advanced by plaintiff without interest, the profits arising should be equally divided between them. Plaintiff left with T. bills of -lading for billing the cattle when they were to be shipped to market, and he, with plaintiff’s knowledge, shipped 50 of the cattle, and accounted to plaintiff for the proceeds. T. thereafter shipped the cattle in controversy, which defendant purchased in good faith in the open market, the proceeds of which T. failed to account for. Held, that T. had an interest in the cattle entitling him to their possession, and that defendant’s purchase thereof did not constitute a conversion of plaintiff’s interest, under the rule that, where one of two innocent parties must suffer, he must bear the loss whose act put it in the power of the third party to commit the wrong.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, §§ 95-98.]</p>

<p>Corporations — Increase of Capital Stock — Wisconsin Statute.</p> <p>St. 1898, Wis. § 1774, authorizes' the stockholders of a corporation to-amend its articles of organization so as to increase or diminish its capital stock, and provides that a certified! copy of the amendment shall be filed in the office of the Secretary of State and also recorded in the office of the register of deeds where the corporation is located, and that “no amendment shall be of effect until so recorded and such amendment shall be void until so filed and recorded.” Held that, under such provision, an amendment increasing the capital stock of a corporation upon being filed did not relate back to the time of its adoption, but that until the date of its filing the capital stock for all legal purposes remained as before it was-adopted.</p> <p>[Ed. Note — For eases in point, see Cent. Dig. vol. 12, Corporations, §§.- 173-180.]</p>

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

<p>1. Master and Servant — Death of Servant — Fellow Servant.</p> <p>Where several crews of switchmen were engaged in switching operations in a railroad yard, the members of the different crews were fellow servants.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 510-514.]</p> <p>2. Same — Negligence—Rules—Question for Jury.</p> <p>Where defendant employed several hundred men in a yard containing numerous tracks on which they were continuously engaged in moving trains and cars, and intestate, a switchman, was killed by the impact given to the cars on one side of him by a train backing in from that direction without warning, whether the railroad company was negligent in failing to prescribe rules for the management of its business in the yards, and in failing to require warning of such operations, was for the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1032-1043.]</p> <p>3. Same — Assumed Risk.</p> <p>Where decedent had worked as a switchman in a railroad yard for eight or nine months prior to his being crushed and killed by the impact given to the cars on one side of him by cars of a train backed in on the-same track without warning, and knew of the manner of switching in the yard during such period, and the absence of a rule requiring warning to be given of such operations, he assumed the risk.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 596.]</p>

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

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

<p>Carriers — Operation of Railroad Trains — Announcement to Passengers of “Next Station.”</p> <p>A statement made by a brakeman to the passengers in a railroad car between stations, giving the name of the “next station,” is merely an announcement, and not a call of the station; and, unless made when the train is immediately approaching a station, passengers for such station are not justified in treating it as an invitation to alight when the train next stops.</p>

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

This is a writ of error to review an order of the Circuit Court for the Northern District of New York holding the plaintiff in error in contempt for disobeying an injunction issued in an action between these parties restraining the defendant Richard Eccles from infringing the claim of letters patent No. 609,928 granted to Christopher C. Bradley for an improvement in thill couplings.

Appeal .from the. Circuit Court of the United States for the Southern District óf New York. This cause comes here upon appeal from a decree dismissing a bill for infringement of U. S. patent No. 304,539, issued September 2, 1884, to Edwin D. McCracken for an electric conductor. No opinion was delivered in the Circuit Court.

<p>Patents — 'Validity and Infringement — Shock Absorber for Spring Vehicles.</p> <p>The Truffault reissued patent, No. 12,437 (original No. 695,508), for a frictional retarding means for spring vehicles, claims 1 to 10, inclusive, are void as not for the same invention claimed in the original patent. Reissued patent No. 12,399 (original No. 743,995), to the same patentee for an antivibration device for vehicles, Jleld, not infringed.</p>

<p>1. Patents — Infringement—1Telephone Transmitter.</p> <p>The Dean patent, No. 687,499, for a telephone transmitter, the essential feature of which is the mounting of a practically weightless transmitter case upon the vibrating or main diaphragm of a telephone, and associating it with a fixed back electrode and a supplemental diaphragm, by which it is claimed that packing of the carbon granules within the chamber is prevented and stronger’ and more distinct tones are produced, although not a great advance upon the prior art, discloses patentable novelty and is valid; also, held infringed.</p> <p>2. Same — Validity—Abandonment.</p> <p>One seeking to invalidate a patent on the ground that the invention had been abandoned has the burden of proof to establish by clear and convincing evidence an intention on the part of the inventor to dedicate the invention to the public.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 112.</p> <p>Abandonment of invention, see note to Hayes-Young Tie Plate Co. v. St, Louis Transit Co., 70 C. C. A. 6.]</p> <p>3. Same — Estoppel—Delay in Applying for Patent.</p> <p>The fact that a patentee, after perfecting his invention, delayed for six years before applying for a patent therefor, does not estop him from claiming priority for such patent over one subsequently issued to another, who had in the meantime conceived the same invention, but who took no Steps to obtain a patent until after the first patentee had filed his application ■ and had introduced his invention into public use.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 115.]</p>

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

<p>Insurance — Shipping—Lien for Freight — Effect of Salving of Cargo of Stranded Vessel by Insurer.</p> <p>Where a portion oí the cargo of a stranded vessel was salved by strangers, under directions, however, of an agent of the insurer which had written a valued policy on the cargo, and with the consent of the agent of the vessel owners, while the master stood by and gave advice, but exercised no control, the operation, was equivalent to an abandonment to the insurer as effecting a surrender of the vessel’s lien for freight which could not thereafter be resumed as to the salved cargo or its proceeds.</p>

<p>1. Removal op Causes — Petitton-»-Noniiesidents.</p> <p>A petition to remove a cause from the state court of California, alleging that when the action was commenced and when the petition was filed petitioner was a resident of New Yorlr, did not allege that he was a “nonresident” of California, as required by Removal Act March 3, 1875, c. 137, I 2, 18 Stat. 470 [U. S. Comp. St. 1901, p. 509], and was therefore insufficient.</p> <p>2. Same — Amendment.</p> <p>Where a removal petition was defective in alleging that, when the action was commenced and when petition was filed, petitioner was a resident of New York, instead of alleging that he was a nonresident of the s'tate in which the action was brought, but it also alleged that petitioner was a citizen of the republic of France, such allegation, coupled with the allegation of nonresidence in the state, gave petitioner the right to remove, and hence entitled him to amend the removal petition so as to correct the allegation of nonresidence.</p>

<p>In Bankruptcy. On exceptions to report of J. E. Vandersloot, referee, sur petition of P. A. Miller, trustee of L. M. Alleman, to turn over funds.</p>

<p>1. Bankruptcy — Accounts ' of Receiver — Appraisal of Property.</p> <p>The fees paid by a receiver in bankruptcy for appraisal of the property, if otherwise proper, will not be disallowed in his accounts merely because the trustee succeeding him deemed the appraisal too low and had a new one made; such proceeding being unwarranted.</p> <p>2. Same — Insurance by Receiver.</p> <p>Insurance on personal property, taken out by a receiver, if paid for by him, is a proper subject of credit in his accounts, but not, if left to be taken care of by the trustee, as a matter inuring to the benefit of the estate.</p>

<p>Gift — Validity.</p> <p>A delivery of bonds by tbe owner to defendant’s husband, since deceased, held, under the evidence, to have been as a lawful gift in prassenti and not in trust, so that a gift of' such bonds by the donee to defendant vested her with an absolute ownership.</p>

Action to Declare Property of Bankrupt Subject to Bien of Judgment.

<p>Carl Rasch, U. S. Atty.</p>

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

<p>At Law. On rule to show cause why the verdict should not be set aside and' the action dismissed or a new trial granted.</p>

<p>In Bankruptcy. Petition for review of order of referee.</p>

<p>1. United States — Indian Commissions — Employment—Contract fob Services — Construction.</p> <p>Defendant was appointed by the Secretary of the Interior as the disbursing member of a board of three commissioners to negotiate Indian treaties at $8 per day and traveling expenses, exclusive of subsistence, to continue at the pleasure of the Secretary of the Interior for the time be- . ing. Defendant was directed to proceed from his home in Nebraska to the agency in Washington without unnecessary delay, his salary to begiD. on the day of his departure from home. The instructions given- the board required a study of the special needs of the Indians in each case, and the . -formation of agreements which would best promote their welfare and weekly reports. Defendant paid himself and the other commissioners at the rate of $8 a day for the time that they were under instructions, or were holding themselves in readiness to obey instructions on vouchers reciting actual employment during such period. These vouchers were uniformly accepted without question, except for periods during which the commissioners were absent from their post on leave. Held, that, under the rule of contemporaneous construction, the phrase “actually employed” should not be construed as equivalent to “actively employed,” and hence the salary was not limited to days on which the commissioners were actually engaged in the performance of active duty.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, p. 172.]</p> <p>2. Same — Accounting.</p> <p>Where a contract for the employment of Indian commissioners provided for a salary of $8 per day and traveling expenses, exclusive of subsistence during the time the commissioners were actually engaged in the performance of their duties, the disbursing officer of the commission was bound to account to the government for charges paid on the account of one commissioner for subsistence and for salary paid to such commissioner during leave of absence from the field, but which was returned to such disbursing officer by the commissioner’s heirs after his death.</p>

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

<p>1. Admiralty — Jurisdiction—Restrictions in Bilí, of Lading.</p> <p>A court of admiralty of the United States bas jurisdiction, of a suit against the charterer of a foreign vessel to recover for damage to cargo where it obtains jurisdiction over the defendant, notwithstanding a provision of the bill of lading that any disputes arising thereunder shall be determined by the law of a foreign country and in a court thereof.</p> <p>2. Shipping — Damage to Caego — Peril op the Sea.</p> <p>Damage to cargo caused by sea water which entered through a hatch during a voyage across the Atlantic by a new steamer held not due to the unseaworthiness of the vessel or any defect in the hatch covers, but to perils of the sea, for which the vessel and owners were not liable under the bill of lading; it being shown that the tarpaulin hatch covers were new and sufficient and properly secured, but that the one above libellant’s goods was injured by a cut through the breaking loose of a derrick at night during a very severe storm.</p> <p>[Ed. Note. — Loss by perils of the sea, see notes to The Dunbritton, 19 O. O. A. 465; Southerland-Innes Co., Limited, v. Thynas, 64 C. C. A. 118.J</p>

<p>1. Shipping — Short Delivery op Cabgo — Evidence Considered.</p> <p>The prima facie case made by a bill of lading signed by the master of a vessel as to the number of bags of coffee received on board at a loading port, corroborated by the testimony of the charterer’s agent and others having occasion to keep track of such number, held not overcome by testimony from the ship as to a mistake in the bill of lading, or that she delivered all taken on board so as to exonerate her from liability for an apparent shortage in delivery.</p> <p>2. Same — Damage to Cargo — Improper Stowage.</p> <p>A vessel held liable for damage to a cargo of coffee resulting from its having been by the master’s orders stowed on the bottom of a hold without dunnage, and from a leaky water tank.</p>

<p>Salvage — Amount or Compensation — Rescue op Disabled Schooner in Lake Superior.</p> <p>The schooner Pelican bound down Lake Superior in tow with a cargo of ore on the night of November 18th, broke her tow line in a gale, and, the towing steamer being unable to find her because of the darkness, she continued on under sail until the 21st, when, owing to the continued bad weather, she anchored to the north of Cariboo Island, 20 miles to the north of the usual course of vessels at that season. Late on the afternoon of the 24th her signal of distress was seen by the steamship Pope, also to the northward of her course, and the Pope started to her assistance, but, owing to a snowstorm, was compelled .to lie by until the next day, when at the request of the master of the Pelican she was taken in tow and safely delivered that night at Sault Ste. Marie. The Pelican was partially disabled, and partly covered with ice, and, owing to her position and the lateness of the season, was in considerable peril. Her crew were also practically out of provisions. She was worth with her cargo and freight about $1(3,000. The Pope with her cargo was worth about $325,000. Her earnings were about $700 per day gross, and her expenses about $180 per day. She was subjected to no great danger, but, by reason of the service, was subjected to an additional delay of half a day in waiting her turn to pass through the lock, and also to an extra expense on account of insurance which expired on the 30th. Held that, in determining the1 amount of salvage to which she was entitled, her time should be taken into account from the time she started to the assistance of the Pelican, and also the time lost in waiting to pass through the locks which might properly be considered as a proximate result of the service, and that under all the facts she was entitled to an award of $1,300.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, §§ 57-66.</p> <p>Salvage awards in federal courts, see note to The Lamington, 30 O. G. A. 280.]</p>

<p>1. Judgment — Default—Vacation—Time—Terms.</p> <p>Where judgment had been entered against defendant by default, the court had power to set aside the judgment and fix a time within which an answer might be served, on terms under Code Civ. Proc. §§ 783, 784, providing that after the expiration of the time within which a pleading, must be made, or any other proceeding in an action after its commencement must be taken, the court for cause may in its discretion, and on such terms as justice requires, relieve the party from the consequences of the omission to do the act and allow it to be done, except as otherwise prescribed by law, on such terms as justice may require, at any time within one year after notice thereof, and may open the judgment taken against the party for his mistake, inadvertence, or excusable neglect.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 262-264.]</p> <p>2. Removal 'ox Causes — Time to Answee — Vacation oe Default.</p> <p>• The New York Code of Civil Procedure requires the filing of an answer ■, or pleading to. be served within 20 days from the service of the summons and- complaint, and authorizes the court by order to extend the time to answer. The statute regulating removal of causes provides that, whenever any party entitled to remove may desire to remove the suit to the Circuit Court of the United States, he may make and file a petition in such suit in the state court at the time or at any time before the defendant is required by the laws of the state or rule of the state court in which such suit is brought to answer or plead to the declaration or complaint. Judgment having been entered against defendant by default on December 12, 1906, more than 20 days after service, defendant on April 2, 1907, applied for an order opening his default, and vacating the judgment, tendering a proposed answer, which motion was brought on for hearing on April 13th, and the court ordered that the motion be granted, and that the answer tendered stand as defendant’s answer in the action as served on the date of the service of the motion papers, on condition that defendant pay certain costs and disbursements within 15 days from the date of the order. Held, that the time to answer under such order within the removal act, expired on April 2, 1907, and that defendant after having complied with the conditions of the order was not then entitled to remove the cause.</p>

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

<p>GARNISHMENT — PERSONS SUBJECT TO GARNISHMENT — PUBLIC CORPORATIONS.</p> <p>“The Regents of the University of Idaho,” created a corporation by the laws of the territory and the Constitution of the state, is a public corporation and an agency of the state, and as such is not subject to garnishment in the absence of a statute clearly evincing the purpose of the Legislature to subject public corporations to such process; and the general provision that any “person” may be garnished is not sufficient for that purpose, although the word “person” is expressly defined by the statutes as including a corporation; such provisions being generally construed as restricted to private or business corporations.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5323-5385; vol. 8, pp. 7752-7753.]</p>

<p>In Admiralty. Suit to recover demurrage and expenses incurred in discharging.</p>

<p>1. Indians — Aiaottees—Citizenship—Effect—Offenses—Jurisdiction.</p> <p>Where lands have been allotted to Indians in severalty, as authorized by Act Cong. Feb. 8, 1887, c. 119, 24 Stat. 388, the Indians cease to be wards of the government, and become citizens of the United States and of the state in which they reside, and are therefore amenable to the criminal laws of the state and triable in the state, and not in the federal courts, unless the offense charged was committed within territory over which the United States has reserved the exclusive jurisdiction to its courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indians, §§ (¡3-66.]</p> <p>2. Habeas Corpus — Scope of Writ — Judgment—Conct.usiveness.</p> <p>Act Cong. March 3, 1885, § 9, c. 341, 23 Stat. 385, declares that all Indians committing certain crimes within any territory of the United States, and either within or without any Indian reservation, shall be subject to the laws of such territory relating to the crime specified, and shall be tried therefor in the same courts and. in the same manner and be subject to the same penalties as all other persons charged with the commission of such crimes, and all Indians committing such offenses within any state and within the limits of any Indian reservation shall be subject to the same penalties as are all other persons committing any of the crimes within the exclusive jurisdiction of the United States. Held, that where petitioner was indicted in a federal court within the district of Oregon for an offense committed on an Indian reservation, and he was convicted and sentenced on a plea of not guilty, the judgment constituted a conclusive adjudication that petitioner was a nonallotted Indian, and therefore triable in the federal court, and hence he could not obtain his discharge on habeas corpus on the ground that both he and his victim were allotted Indians, and that the federal court had no jurisdiction to try him.</p>

<p>1. Guaranty — Discharge of Guarantor — Alteration of Contract.</p> <p>Pending performance of a contract for the construction of a schooner, the dimensions were changed by increasing the depth of the hold six inches in the shallowest place, and by increasing the price $300. Held, that such changes in the contract were material, and, having been made without the consent of the contractor’s guarantor, he was discharged.</p> <p>(Ed. Note. — For cases in point; see Cent. Dig. vol. 25, Guaranty, § 64.]</p> <p>2. Same — Advance Payment.</p> <p>Where plaintiff made an advance payment on the purchase price of a schooner without the consent of the contractor's guarantor to enable the contractor to procure additional help to hasten the work, so that there was not enough of the last instállment of the price retained to finish the vessel, the guarantor was discharged.</p>

<p>Removal op Causes — Residence—Jurisdiction.</p> <p>Complainant, a corporation and citizen of Kentucky, sued defendant, a corporation and citizen of Maryland, in a Georgia state court. Defendant removed the cause to the United States Circuit Court for diversity of citizenship, where the cause was permitted to remain more than five years, during which complainant had the cause set down for hearing on demurrer, and twice filed amendments to its pleadings, and then moved to remand the cause to the state court on the ground that neither complainant nor defendant was a resident of the district. Helé, that such objection had been waived by both parties, and that the court had jurisdiction.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 42, Removal of Causes, § 216.]</p>

<p>1. Bonds — Actions—Pleading—Allegations as to Seal — Township Rail-eoad Aid Bonds.</p> <p>Where a declaration on certain railroad aid bonds of a township alleged that the bonds were made by and under the hands and seals of the commissioners of the township, the declaration was not demurrable, in that it appeared thereby that the bonds were not sealed, as directed by the act authorizing them, though the declaration also averred that, when suit was brought, there was no formal seal or scroll on the bonds, but that they contained a recital that the commissioners had set their hands and seals thereon on a specified date, and that the township might not have had a seal, and that the individual seals of the commissioners would have had no legal efficacy, etc. '</p> <p>2. Towns — Bonds—Execution—Seals—Aid to Railboads.</p> <p>Act N. J. April 9, 1868 (P. L. p. 915), authorizing the issuance of township bonds in aid of a railroad company, and providing that township commissioners should execute the bonds “under tbeir hands and seals respectively,” did not require that the bonds be sealed with the corporate seal of the township.</p> <p>3." Bonds — Actions—Pleading—Allegations as- to Seal — Township Bonds.</p> <p>An averment in a declaration on certain railroad aid bonds, executed by township commissioners, that the individual seals of the commissioners would have had no legal efficacy, was the expression of a legal conclusion, and not the averment of a fact, and therefore did not destroy the effect of a previous allegation that the bonds were executed by and under the hands and seals of the commissioners.</p> <p>L Pleading — Declaration—Duplicity—Mode of Making Objection.</p> <p>An objection to a declaration for duplicity should be taken by motion to strike out, and not by a general demurrer.</p>

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

In Admiralty. Ribel to recover for repairs. The steamer Mt. Desert, while under charter to the Tidewater Navigation Company for service on the Chesapeake Bay and tributaries for the transportation of passengers to and from the Jamestown Exposition, collided with the steamer Woodbury of the Old Dominion Line, necessitating the taking of the Mt. Desert to the shipyard of libelants for repair. This libel was filed to recover for the amount of such repair.

<p>In Equity. Suits for injunction. On final hearing.</p>

<p>Exceptions to Master’s Report.</p>

In Bankruptcy. Upon petition of receiver for an order requiring the sheriff of the county of New York to show cause why he should not deliver 386 garments to petitioner, and that pending the determination of the application the sheriff be stayed from delivering said property to any person other than petitioner, and from otherwise interfering with the same except for the preservation thereof.

<p>1. Courts — Jurisdiction of Federal Courts — Amount or Value in Controversy.</p> <p>In a suit to enjoin the maintenance of a nuisance, the matter in dispute, for tlie purpose of determining the jurisdiction of a federal court, is not the damage resulting to complainant from the alleged nuisance, but the right of defendant to maintain the same, and the value of such right determines the amount in controversy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 890 - 897.</p> <p>Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Temient-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 376; vol. 8, p. 7574.]</p> <p>2. Nuisance — Suit to Abate — Defense.</p> <p>In a suit to enjoin the continuance of a business as a nuisance, it is not a defense that the business is in the best place possible for the defendant, or that it is conducted in a proper manner with the latest devices, where the evidence shows that when so conducted it still results in very great damage to, if not the total destruction of, the property of complainants, who reside in the vicinity, and is a menace to health ; the rights of habitation being superior to the rights of trade.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Nuisance, §§ 5, 6. 60-63.]</p> <p>3. Injunction — Objections to Relief — Comparative Injury.</p> <p>The fact that the actual injury resulting from the violation of a right is small, and the interest to be affected by an injunction is large, should not, as a rule, weigh against the interposition of preventive power in equity, when it is clear that on one hand a right is violated, and on the other a wrong committed; and, in a suit for an injunction to abate a nuisance, the question of the comparative injury to the parties from the granting or refusing of an injunction will not be considered on final hearing, where the existence of the nuisance is undoubted, unless in extreme cases.</p> <p>4 Nuisance — Injunction—Utah Statute.</p> <p>The statute of Utah (Laws 1903, p. 521, c. 58), authorizing a court in its discretion to refuse an injunction in a suit to abate a nuisance, on defendants giving a bond tb pay all damages recovered, applies only to preliminary injunctions, and cannot be construed to confer upon a court the power to perpetuate for all time a nuisance, which would amount to the taking of private property merely upon the giving of a bond to pay damages.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 37, Nuisance, §§ 55-58.]</p> <p>5. Same — Suit by Landowners — Proof of Ownership.</p> <p>In a suit by alleged landowners for abatement of a nuisance, where complainants testify without objection to their ownership as well as possession and occupancy of their lands, such testimony, although to a legal conclusion as to ownership, cannot be disregarded, and is sufficient to support the suit.</p> <p>6. Same — Equity Jurisdiction — Irreparable Injury.</p> <p>The injury to owners of land, on which they reside and have fruit and ornamental trees, from a nuisance which endangers their health and destroys their trees is irreparable, and a court of equity is not without jurisdiction to protect them by an injunction merely because they might recover damages in actions at law.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 37, Injunction, §§ 55-57.]</p> <p>7. Same — Right to Injunction.</p> <p>Complainants to the number of over 400, owning farms in the same vicinity aggregating over 9,000 acres, on which they resided, brought suit to enjoin the operation of smelters owned by different corporations as nuisances. The evidence showed that in the smelting of sulphide ores sulphur dioxide and also arsenical fumes were discharged into the air by the smelters, and that those from the different smelters mingled and settling upon the lands of complainants destroyed their trees and crops, poisoned their stock, and endangered the health of themselves and families, rendering their farms in a large measure valueless. Held, that equity had jurisdiction on the ground of irreparable injury, and also on the ground of preventing a multiplicity of actions at law against the several defendants, in which it would be difficult or impossible to ascertain the damage committed by either defendant singly, and that on such evidence complainants were entitled to an injunction, regardless of the otherwise lawful character of defendnts’ business or the amount of their investments.</p>

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

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

<p>1. Negligence — Proximate and Remote Causes.</p> <p>The philosophy of the responsibility for a negligent act is that the wrongdoer is answerable only for such consequences as flow directly from the act and are such as a reasonable man should anticipate would probably result from the act first committed. Where a negligent act of the defendant is not wanton, the law attaches responsibility to it for all the consequences which ensue directly therefrom and for such effect as in the natural order of sequence follows therefrom, no matter how remote in point of time or distance, limited by the requirement that the ultimate result must be such as that a reasonable person should anticipate that in the natural order of things would probably ensue. Whenever this causal connection between the negligent act and the ultimate injury is interrupted by reason of the interposition of some independent force or human agency acting independently of the first negligent act, but for which the ultimate injury would not have come, the former is the remote and the latter is the proximate cause.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 37, Negligence, §§■ 69-82.]</p> <p>2. Master and Servant — Injury to Servant — Proximate Cause oe Injury.</p> <p>Plaintiff while employed in defendant’s mine was overcome by gas, and' was afterward found by a searching party lying on the ground unconscious. He was taken to the surface by such party on the elevator cage which was 6% feet square, two sides being inclosed and two open, and by reason of the projection of one of his feet beyond an open side of the cage it was caught by the timbers of the shaft and his leg broken. Held, that the negligence of defendant in permitting a dangerous quantity of gas in the mine, if conceded, while a remote, was not the proximate, cause of the injury to plaintiff’s leg, which was the negligence of those who placed him on the cage, and that, under the rule that one committing an act of negligence is responsible only for such consequences as would naturally and probably result and as should reasonably have been foreseen, defendant was not liable for such injury.</p> <p>3. Triat, — Direction of Verdict — Undisputed Facts.</p> <p>Where -the facts of the particular case are disputable and are of such, character that different minds might reasonably draw different conclusions therefrom, it presents a question of fact properly determinable by tlie jury; but, where there is no dispute about the facts and the law pronounces the judgment on the facts established, it is the province and duty of the court to direct the verdict.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 376-380.]</p>

In the state of Minnesota there are large quantities of swamp lands which, left to natural law, would be quite useless to man and highly deleterious to the health of those living contiguous to the marshy region. When drained these lands become valuable for' agricultural purposes.

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

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

<p>Bankruptcy — Acts of Bankruptcy — Transfers with Intent to Prefer Crebitors.</p> <p>Where a corporation, at a time when its assets were much less in value than the amount of its debts, and its insolvency was or should have been known to those in charge of its business and within four months prior to the filing of a petition in bankruptcy against it, made payments to certain creditors under circumstances which indicated a probability that they would result in preferences, a finding by a referee, approved by the District Court, that such payments were made with intent to prefer the creditors receiving them, and constituted acts of bankruptcy within Bankr. Act July 1, 1898, c. 511, § 3a (2), 30 Stat. 546 [U. S. Comp, St. 1901, p. 3422], will not be revérsed on appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 929.]</p>

<p>1. Master and Servant — Injuries to Servant — Defective Machinery — Knowledge.</p> <p>Rev. St. Ohio 1906, § 4364-89c, makes it the duty of factory owners to countersink or cut off bolt heads and set screws on revolving machinery which might otherwise project beyond the surface of the revolving part, and Act April, 1904 (97 Ohio Laws, p. 547), provides that knowledge by an employé that the machinery of his employer is not guarded as required by statute, shall not be a defense, but that a continuance in service with such knowledge shall prevent a larger recovery in case of death than $5,000 or $3,000 when there is injury without death. Held, that where an employ? was injured by a projecting set screw on a shaft which had not been countersunk, but there was no evidence that he knew the screw projected, the court properly refused to charge that if they found plaintiff knew of the projecting set screw they could not return a verdict for more than $3,000.</p> <p>2. Wbit of Error — Instructions—Prejudice.</p> <p>Where the court charged that if plaintiff knew of a projecting set screw from a shaft by which he was injured while in defendant’s employ he could not recover at all, defendants could not object to the refusal of an instruction that if plaintiff had such knowledge he could not recover more than $3,000.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4056-4058.]</p> <p>3. Same — Defective Machinery — Negligence of Master — Delegation of Duty.</p> <p>The duty of a master to prevent danger from projecting set screws or bolts on a revolving shaft by countersinking or cutting off the bolt heads as required by Eev. St. Ohio 1906, §■ 4864-89e, is one which the master cannot delegate to another servant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 392-396.]</p> <p>4. Same — Assumed Risk — Scope of Employment.</p> <p>If an employe without the direction of the employer engage in a dangerous work outside the scope of his employment and is injured, he cannot recover therefor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 654.]</p> <p>5. Same — Fellow Servants.</p> <p>A superior servant in a factory designated as “inside foreman,” with authority to direct plaintiff to leave his accustomed work to assist in replacing a belt, the entire operations of the factory being under the control of the superintendent, was plaintiff’s fellow servant in respect to any question of the liability of the master for the negligent injury of one by the other.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 449-455.]</p> <p>6. Same — Volunteer.</p> <p>Where defendant’s inside foreman, having control over plaintiff, directed him to suspend his employment, which was not dangerous, and assist in replacing a belt, in doing which plaintiff was injured by the negligence of the master in failing to remove a projecting set screw from a revolving shaft, as required by Rev. St. Ohio 1906, § 4364-89c, plaintiff in obeying the command of his superior did not become a mere volunteer, so as to preclude his recovery.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 655-658.]</p>

<p>1. Evidence — Relevancy—Action foe Beeach of Contract.</p> <p>Where a contract in suit, which was for the sale and purchase of lumber, was clear and explicit in its terms, evidence as to the nonperformance by plaintiff of a previous contract between the parties, not in suit, was properly excluded as irrelevant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 388-415.]</p> <p>2. Logs and Logging — Sale of Lumber — Evidence to Explain Terms Used in Contract — Usages of Trade.</p> <p>In an action on a contract, by which plaintiff agreed to deliver as ordered by defendants for a stated price lumber of the width of “10" and up,” where a question at issue was as to whether defendants were justified in giving orders for lumber limited to certain widths above 10 inches, it was not error to admit evidence showing the meaning of the phrase “10" and up” as used in the lumber trade, and that it was more expensive in view of the local practice in stacking lumber at the mills to fill orders for special widths than for widths as they ran.</p> <p>3. Same — Performance of Contract: — Party in Default.</p> <p>Under a contract by which plaintiff agreed to ship lumber to defendants as ordered, not less than a certain quantity each month if requested, it was the duty of defendants to take the first step in performance by giving the necessary shipping orders within a reasonable time, and until such orders were given plaintiff was in no default nor under any duty to tender shipments.</p> <p>4. Trial — Instructions.</p> <p>Abstract propositions of law In instructions, when not pertinent and necessary to the case as made, tend rather to confuse than aid the jury, and it is the better practice to reduce the issue of fact to as limited a compass as is consistent with full instruction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 582-586.]</p> <p>5. Sale — Breach of Contract — Measure of Damages.</p> <p>In an action to recover damages for the refusal of defendants to order and take lumber under a contract of sale, where there was proof of the market value of the lumber at the time and place of delivery, the jury were correctly instructed that, if plaintiff was entitled to recover, the measure of damages was the difference between such value and the contract price of the lumber, and it was not error to refuse further instructions on the subject.</p>

<p>1. Patents — Designs—Evidence of Patentable Novelty.</p> <p>The fact that articles when made after a patented design were more salable and in greater demand is evidence that such design possesses the qualities of novelty and attractiveness to the eye, which rendered it patentable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 52.</p> <p>Utility, extent of use, and commercial success as evidence of invention, see note to Doig v. Morgan Mach. Co., 59 C. C. A. 620.]</p> <p>2. Same — Infringement—Ornamental Head for Brooches.</p> <p>The Frenot design patent No. 35,922 for a design for an ornamental head for brooches, etc., discloses patentable novelty. Also held valid as against the defense of public use for more than two years and infringed.</p>

<p>P a.texts — Invention—Instep Suppokt.</p> <p>The Arrowsmith patent, No. 748,553, for an Instep support or arch prop, claims 3 and 4 are void for lack of novelty and patentable invention, in view of the prior art.</p>

<p>Patents — Inb’etngement—Taxking Machines.</p> <p>Tbe Berliner patent, No. 534,543, for an improvement in talking machines, claims 5 and 35 held valid and infringed on a motion for preliminary injunction on prior adjudications of the validity and scope of such claims.</p>

<p>1. Maritime Liens — Repairs Ordered by Charterer — Provisions of Charter Party.</p> <p>A steamer owned by a nonresident was chartered for a number of months by a corporation and used to carry passengers between Norfolk and the Jamestown Exposition. The charter party required the charterer to make all repairs and to return the vessel in as good condition as when received. During such time libelant, doing business in Norfolk, made repairs on the vessel on order of the charterer, having knowledge that it was not the owner and being chargeable with such knowledge as proper inquiry would have disclosed as to the terms of the charter. The evidence, moreover, indicated that credit was given to the charterer and not to the vessel. Held, that libelant was not entitled'to a lien for such repairs.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 5, 12.]</p> <p>2. Seamen — Lien for Wages — Effect of Provisions of Charter Party.</p> <p>The provisions of a charter party cannot deprive a seaman of his right to a lien on the vessel for his wages.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Seamen, §§ 157-164.]</p>

<p>1. Conspiracy — Conspiracy to Defraud United States — Securing Title to Public Lands.</p> <p>A conspiracy to induce the Land Department of the United States by fraudulent means to dispose of public lands in a way not authorized by the statutes is one to defraud the United States, within the meaning of Kev. St. § 5440 [U. S. Comp. St. 1901, p. 3670], although it receives payment for the lands and suffers no pecuniary loss, and, if accompanied by an overt act, is indictable under said section.</p> <p>2. Statutes — Construction of Penal Statutes.</p> <p>Although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of Congress, and this intention is to be collected from the words employed in the statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 322, 323.]</p> <p>3. Conspiracy — Conspiracy to Defraud United States — Entry of Coal Lands.</p> <p>Under the coal land statute (Rev. St. § 2350 [U. S. Comp. St. 1901, p. 1441]), which expressly provides that only one entry of coal lands shall be allowed to the same person or association of persons, and that no association of persons, any member of which shall have taken the benefit of the statute, either as an individual or as a member of any other associa-tlon, shall enter or held any other lands under its provisions¡ any agreement, the purpose of which is to evade such provisions and to secure indirectly lands which could not be secured directly thereunder, constitutes a conspiracy to defraud the United States, within the meaning of Eev. St. § 5440 [U. S. Comp. St. 1901, p. 3676],</p> <p>4. Public Lauds — Equitable Title — Effect of Fraudulent Entry.</p> <p>The rule that where one has lawfully and in good faith made an entry of public lands and has obtained his final receipt he is vested with the equitable title thereto, and may mate a valid conveyance thereof, is not applicable where the entry was not in good faith, but in fraud of the law, since in such case the equitable title did not pass to the entryman.</p> <p>5. Conspiracy — Conspiracy to Defraud United States — Unlawful Entry of Coal Lands.</p> <p>Defendants entered into an agreement, the purpose of which was to ob- • tain title to a large tract of coal lands from the United States and to vest such title in a company organized by them for the purpose. Pursuant to such agreement, they procured third persons to make individual entries under the statute which were secured by false testimony. Defendants furnished the money to pay for the lands, and, when final receipts were obtained, they took the same, paid small sums to the entrymen, and took deeds from them to the company. Held, that such agreement was a conspiracy to defraud the United States, within the meaning of Eev. St. § 5440 [U. S. Comp. St. 1901, p. 3676].</p> <p>6. Criminal Law — Limitation of Prosecutions — Commencement of Period of Limitations.</p> <p>The offense in such case was not complete until the final receipts held by defendants were surrendered and patents obtained, from which time only the statute of limitations began to run.</p> <p>7. Same — Homestead Entry of Coal Lands.</p> <p>A conspiracy to secure the title to coal lands from the United States through a homestead entry may constitute a conspiracy to defraud the United States, within Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], although such lands are not subject to lawful homestead entry, where the title is secured by means of false proofs.</p>

<p>1. Bankruptcy — Transfers by Bankrupt — Assignments—Parol Agreement.</p> <p>An oral contract made and performed in Michigan, by which a bankrupt assigned the outstanding accounts of his business to claimant in consideration of claimant’s indorsement of the bankrupt’s paper, which claimant ’ performed more than four months prior to the institution of bankruptcy proceedings, was valid, though some of the accounts had not yet accrued.</p> <p>2. Same — Delivery.</p> <p>It was no objection to the validity of an equitable oral assignment of certain accounts that actual possession thereof was not transferred.</p> <p>8. Assignmentsi — “Equitable Assignments.”</p> <p>An equitable assignment, is an assignment of a portion of a debt which a court of equity will recogfiize and a court of law will not.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2434-2437; vol. 8, p. 7652.]</p> <p>4. Same — Record.</p> <p>A parol equitable assignment of accounts made and to be performed in Michigan was not objectionable because it was not recorded, such assignment not being an agreement to which the Michigan statute, requiring record of chattel mortgages, is applicable.</p> <p>5. Evidence — Best Evidence — Declarations.</p> <p>Parol evidence of financial statements alleged to have been made by a bankrupt was properly excluded in the absence of nonproduction of written statements.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 556.]</p> <p>6. Bankruptcy — Transfers by Bankrupt.</p> <p>Where a bankrupt orally agreed to assign certain accounts to claimant in consideration of the latter’s ■ indorsement of the bankrupt’s paper in Michigan, and stated to claimant that he had assigned such accounts to him, the bankrupt being under no legal or equitable obligation to give notice of the agreement, it was not void because he did not put it in writing, for the reason that he considered if he did so he would not be able to retain the money he collected on the accounts, and apply it according to the exigencies of his business.</p> <p>7. Same — Executory Contract.</p> <p>A bankrupt orally contracted to assign the accounts of his business to claimant in consideration of the lattor’s indorsement of his paper for $15,000, and told claimant that he had assigned the accounts to him, whereupon claimant indorsed the bankrupt’s paper to the amount specified, but no written assignment was ever made. Held, that the agreement was not objectionable as an executory agreement to assign the accounts in futuro.</p>

<p>1. Shipping — Injury op Vessel at Unsafe Dock — Liability of Charterer.</p> <p>The charterers of a vessel who were charged by the charter party with the duty of discharging her and with furnishing her with a suitable berth are liable for her injury while lying in a dock to which they assigned her, and which was not used by vessels of her size, by reason of the dangerous condition of the bottom where they failed to exercise reasonable care, or, in fact, any care, to ascertain its condition.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 219-221.]</p> <p>2.' Same — Liability of Consignees and Assignees of Bills of Lading.</p> <p>Assignees of the bills of lading of the cargo of a vessel are under the : same duty as the .original consignees with respect to furnishing the vessel with a suitable place at which to discharge, and are liable for damages sustained by her by reason of their having assigned her to an unsafe berth.</p> <p>8. Same.</p> <p>The master of a vessel In placing her for discharging in a dock designated by the consignee of the cargo, with which he was unacquainted, had a right to assume that such dock was a suitable and safe place and to rely upon the performance by the consignee of his duty to exercise reasonable care to know that it was so, and he did not assume the risk nor waive any right as against the consignee by refusing to take- the responsibility of moving his vessel on hearing a rumor that the dock was unsafe, where he communicated such rumor to the consignee, and was told by him that it was unreliable, and that the dock was all right.</p> <p>4. Same — Demurrage—Lav Days for Discharging Under “New Bill or Lading.”</p> <p>Where a charter party provided that the terms of the “new bill of lading” should govern as to the receipt and discharge of the cargo of a schooner, which was less than 400 tons of coal, the lay days for discharging began 24 hours after the vessel arrived at the port of discharge and notice of her arrival was given to the consignee, whose duty it was to designate a suitable berth for unloading within that time; but, where a berth was so designated, the docking of the vessel devolved upon the master, and any delay in docking is to be deducted.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 44, Shipping, § 576.]</p> <p>5. Same.</p> <p>A vessel is entitled to recover demurrage for delay beyond the lay days allowed by the contract for discharging caused by her sinking at the dock through the negligence of the consignees.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 576.]</p> <p>6. Same — Notice to Consignee of Arrival of Vessel — Sufficiency.</p> <p>No particular form is required for a notice to a consignee of the arrival of a vessel to be discharged by him, but it is sufficient if he actually receives such notice from a third person, and a notice given on Sunday is also sufficient.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 579.]</p>

In Equity. This is a suit by minority stockholders of the Highland Gold Mines Company (the complainant, Schultz, being a citizen and inhabitant of the state of Washington, Mrs. Marion B. Cleveland a citizen of California, and the remaining complainants citizens of North Dakota) against the Highland Gold Mines Company and others.

<p>Application to Vacate Order Granting Discharge.</p>

On Motion to Remand. This is a suit brought in the state court by the state to cancel a contract entered into between itself and the defendant, the Three Sisters Irrigation Company, with reference to the reclamation of certain desert lands situated in Crook county, Or., in pursuance and by authority of Act Cong Aug. 18, 1894, c. 301, 28 Stat. 422 [ü. S. Comp. St. 1901, p. 1554], known as the Carey Act, and Act June 11, 1896, c. 420, 29 Stat. 433 [U. S. Comp.

In Bankruptcy. Appeal from order of referee in bankruptcy disallowing the claim of John B. Pilling of $6,252.63 on three promissory notes alleged to have been made by the bankrupt.

<p>1. Trade-Marks — Identification of Product — Post Cards.</p> <p>Uncopvrighted post cards are not entitled to protection as trade-marks either singly or collectively, as they do not identify and distinguish the product of the manufacturer, but constitute the product itself.</p> <p>2. Same — Unlawful Competition.</p> <p>The manufacturer of uncopyrighted post cards having no legal right to the exclusive production and sale thereof, the manufacture and sale of like cards by a rival manufacturer may not be restrained as unlawful competition.</p> <p>3. Literary Property — Uncopyrigiited Publication-Exclusive Property.</p> <p>Neither a hook nor a photograph can continue to-be the author’s exclusive property after it has been printed and offered to the public for sale without being copyrighted.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Literary Property, § 4.]</p>

<p>In Admiralty. Dibel to recover salvage.</p>

<p>PARTNERSHIP — ASSO OTATES WHO ARE NOT IN PACT PARTNERS — INABILITY TO Third Persons Who Know the Pacts.</p> <p>An owner of an undivided interest in property who with the other owners transacted business with reference to such property under a company name, where there was in fact no partnership between them, cannot be held liable as a partner on a note given by the others in the naipe of such company, but for which he refused to assume personal liability, to one who had been their legal adviser, and was fully acquainted with all the facts as to their relationship.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Partnership, § 52.]</p>

<p>BANKRUPTCY — ASSETS—RECOVERY—CONSIDEBATION FOB ANNUITY.</p> <p>A bankrupt, while insolvent, on January 2, 1901, purchased for $2,830 a deferred annuity from defendant, a mutual life insurance company, defendant agreeing to pay the bankrupt $1,000 a year for the rest of his life, beginning July .1, IMG. Held, that as the defendant’s contract was wholly executory, so far as it was concerned, and as the defendant was benefited and not harmed by a termination thereof in 1907, the bankrupt’s trustee was entitled to elect to cancel the contract and recover the consideration paid by the bankrupt therefor, for the benefit of creditors.</p>

<p>1. Replevin — State Law — Jurisdiction—Nature op Proceeding.</p> <p>Under the Rhode Island law, an action of replevin is so far a proceeding in rem that, unless the res has actually been taken possession of by the officer, the court is without jurisdiction to determine the question of title.</p> <p>[Ed. Note. — 'For cases in point, see Cent. Dig. vol. 42, Replevin, § 118.</p> <p>Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 C. C. A. 513.]</p> <p>2. BANKRUPTCY — RECEIVERS—ApPOINTMENT>-TlME.</p> <p>Where an order appointing a receiver in bankruptcy directed that he was appointed receiver of all goods, chattels, property, and effects of the bankrupt corporation, his appointment on his subsequent qualification dated from the entry of the decree.</p> <p>3. Same — Receivers—Right to Possession.</p> <p>Where a seller of property to a bankrupt sought to recover the properly in replevin,, but the writ was not served until after an order of the ■ bankruptcy court -had been entered appointing a receiver prior to adjudication, a subsequent levy was void as an infringement on tbe jurisdiction ■of tbe bankruptcy court; tbe seller not being entitled to ignore tbe receiver’s right, of possession, as tbe sale, even tbougb voidable, vested title in tbe bankrupt, and title was still in tbe bankrupt at date of tbe appointment of a receiver. •</p>

<p>In Bankruptcy. Petition for review of order of referee allowing exemptions.</p>

<p>1. Commerce — Interstate Commerce.</p> <p>Complainants operated a store in New York City, from wliieh they sold goods for delivery to customers in Atlantic Highlands, N. J. These goods in original packages were to be sent by boat or express to Atlantic Highlands, where complainants’ employes put them into complainants’ wagons and delivered them at the residences of the customers. Held, that the entire transaction, from the purchase of the goods to the delivery to the purchasers, constituted interstate commerce.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Commerce, § 31.]</p> <p>2. Same — Interference by State — Police Powers.</p> <p>Where goods are brought from another state into New Jersey under contract of sale, and delivered there in their original packages to the purchasers, the transit may not be interfered with by the state or any of its municipalities, except for proper .police purposes.</p> <p>3. Same — Ordinances—Revenue—License Fees.</p> <p>Gen. St. N. J. p. 2236, § 532, grants to the common council of any borough power to enact ordinances to license and regulate cartmen, carriages, and vehicles used for the transportation of goods and chattels, and to fix rates of compensation to be paid for such licenses, for purposes of revenue. The borough of Atlantic Highlands passed an ordinance imposing an arbitrary annual license tax of $10 on every two-horse truck or vehicle engaged in the transportation of merchandise, and a tax of $7.50 on every one-horse vehicle similarly engaged. Held, that such ordinance was not an exercise of police power, but a revenue measure, and was inapplicable to interstate commerce, though it operated equally on both interstate and domestic commerce; interstate commerce, not being subject to taxation by the states.</p>

<p>In Bankruptcy.</p>

<p>1. Admiralty— Obder Dividing Costs — Proctor’s Fee.</p> <p>Where the libelant is the prevailing party in a suit in admiralty, but the costs are divided, the fee of $20 to libelant’s proctor should also be divided.</p> <p>2. Same — Premium on Surety Company Bond.</p> <p>The premium paid by a libelant to a surety company for entering a stipulation for costs required by a rule of court is taxable as costs where reasonable in amount.</p>

<p>1. Shipping — Injury to Stevedore — Duty of Owner — Safe Place to Work.</p> <p>Tlte owner of a vessel must furnish a stevedore employed thereon a safe place to work in so far as the construction of the vessel and its various parts is concerned, and also render such inspection that no hidden defect which should have been known to the officers of the vessel can exist and continue without warning.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, $ 350.]</p> <p>2. Same — Assumed Risk.</p> <p>Libelant, a stevedore, was injured by falling through a hatchway on a vessel caused by an alleged defective hatch cover. It was charged that the cover was improperly constructed, in that it was too short, and a longshoreman who replaced it the night before testified that he noticed the defect, and had introduced wedges at each end so as to equalize the bearing surface, and prevent its displacement. The cover was in place at the time of the accident, but, when libelant stepped on the end thereof, his weight caused the cover to revolve, and he fell with the cover into the hold below. Helé, that the defect, if it existed, was open and apparent, and that libelant assumed the risk thereof.</p>

<p>Bankruptcy — CORPORATIONS Subject to Law — Trading—Mercantile Pursuits.</p> <p>A corporation organized to conduct a general livery and boarding stable business, and engaged in buying, keeping, and hiring its horses and vehicles for profit and keeping, feeding, and caring for the horses and vehicles of others for hire, not being engaged in buying and selling horses and vehicles or feed as a business, is not a trading corporation or one engaged chiefly in mercantile pursuits within Bankr. Act July 1, 1898, c. 541, § 4, cl. “b,” 30 Stat. 547 [U. S. Comp. St. 1901, p. 34231, providing that such corporations may become bankrupt.</p> <p>[Ed. Note. — What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

In Equity. This was a suit brought by the plaintiff to obtain a decree enjoining the defendants from doing certain of the acts set forth in the findings of the court.

<p>1. Partnership — Contract Creating — Construction.</p> <p>Complainant, having initiated water rights in a stream believed to be valuable, entered into a written contract with another who, as a promoter, undertook to obtain capital to construct a dam and develop a water power. Each was to devote his best efforts to securing funds, and each was to own one-half interest in the property, with a proviso that in case the second party did not make satisfactory progress within a year he should retire from the enterprise, and assign all of his rights and interest to complainant. Reid, that the contract was one of partnership, and any property acquired by either, in furtherance of the joint enterprise so long aa it continued, was held in trust for the joint benefit of both.</p> <p>2. Same — Relations of Partners» — Duty of Good Faith.</p> <p>The first and highest duty which partners owe to each other is perfect good faith; each is under obligation to do what he can to promote the success of the partnership, and in every purchase or bargain each is under a duty to use the property of the concern fo.r the benefit of all.</p> <p>3. Same-Real Estate Acquired by Partner — Trust.</p> <p>Equity will apply its broad principles to secure ail partners their rights in real estate which equitably belongs to the firm by regarding the legal title if in one partner as held on an implied trust for partnership purposes.</p> <p>4. Same — Rights of Purchaser from Partner.</p> <p>One who, knowing that real estate is the property of a partnership, pays for and takes title to it from one partner alone, without the knowledge or consent of the other, takes the title that he gets at his peril and on the responsibiliy of the person with whom he deals.</p> <p>5. Specific Performance of Partnership Contract — Purchaser with Notice.</p> <p>Complainant and another formed a partnership, the purpose of which was to form a corporation to develop a water power, the right to which complainant owned. The contract provided that each should own a half interest in the property, but that, if the second party should not succeed in obtaining capital within a year, complainant might at his option dissolve the partnership, and should receive from his partner an assignment of all his rights and interest in the property. It being thought necessary to acquire certain land for a dam site, the partner obtained a warranty deed therefor from the owner to himself, agreeing to pay for the same when the corporation was organized. lie afterward, without complainant’s knowledge, acquired a half interest in the grantor’s equitable title. Some time after the expiration of the year, nothing further having been done, complainant dissolved the partnership, and demanded a transfer of his partner’s interest, but the latter claimed that so far as the dam site was concerned he took the deed which had not been recorded in trust, and that it never became operative because the project was not carried through. In such belief complainant bought the land from the grantor in such deed, talcing a quitclaim, which he recorded, and entered into possession. Subsequently his partner sold and conveyed a half interest in the property to another, who sold to defendant, both of whom had knowledge of the partnership and of complainant’s claim and possession. Reid, that the original deed conveyed the full legal title for the benefit of the partnership, and that on the dissolution complainant became entitled under the partnership contract to a conveyance to himself, and that he could enforce such right by suit for specific performance against defendant who took subject thereto.</p> <p>6. Same — Nature oe Suit.</p> <p>Such a suit was not one for a forfeiture of rights on the termination of the partnership agreement, but to enforce a specific performance of its terms.</p> <p>T Forfeitures — Defined.</p> <p>“Forfeiture” usually signifies loss of property by way of compensation' for injury to the person to whom the property is forfeited, as well as punishment.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>For decision below, see 154 Fed. 174, reversing a decision of the Board of United States General Appraisers (G. A. 5,929; T. D. 26,-063), which had affirmed the assessment of duty by the collector of customs at the port of New York.</p>

For decision below, see 159 Fed. 591, affirming a decision of the Board of United States General Appraisers (G. A. 5,875; T. D. 95,-965), which had followed the decision by the Circuit Court for the Southern District óf New York in U. S. v. American Express Co., 147 Feci. 894, and was rendered before the contrary decision by the Circuit Court for the Southern District of Ohio in Smith v. Computing Scale Company, 147 Fed. 890.

This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (152 Fed. 573), reversing a decision of the Board of General Appraisers (G. A. 6,338; T. D. 27,-288), which modified the decision of the collector of the port of New York.

<p>1. Bankruptcy--Discharge — Objections—Statute — Construction — “Property.”</p> <p>Bankr. Act July 1, 1898, c. 541, § 14, 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], provides that the court shall discharge the applicant unless he has obtained property on credit from any person on a materially false statement made in writing to such person for the purpose of obtaining such property on credit. Held, that the word “property,” as there used, meant “anything of value,” “anything that might be owned or possessed,” “anything having a debt paying or a debt securing power,” including money, so that an objection that the bankrupt obtained a loan of money by making a materially false statement in writing constituted a valid objection to his discharge.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5603-5728; vol. 8, pp. 7768-7770.]</p> <p>2. Same — Discharge—Vacation—Jurisdiction.</p> <p>Where the attorney for an objecting creditor was unavoidably absent when the hearing of an application for a bankrupt’s discharge was had, and another attorney, who had been requested to appear and oppose the discharge on a valid ground, failed to do so, the court, after granting a discharge, had jurisdiction to consider and determine the creditor’s motion to set it aside.</p> <p>[ Ed. Note. — For cases in point, see Gent. Dig. vol. 6, Bankruptcy, § 869.]</p> <p>3. Same — Denial—Writ of Review.</p> <p>Denial of a creditor’s application to set aside a bankrupt’s discharge on the ground that, if the facts claimed by the creditor were established, they would not warrant the court in refusing a discharge, was reviewable by the Circuit Court of Appeals on a petition for review.</p>

<p>1. Customs Duties — Clerical Error — Mistake as to Abbreviation.</p> <p>An importer in giving the invoice value of his merchandise stated It in dollars, instead of rupees, having mistaken the rupee abbreviation for the dollar mark. Hold, that this constituted a clerical mistake.</p> <p>2. Same — Appraisement—Failure to Appraise True Value.</p> <p>Merchandise having been erroneously invoiced at an excessive value, the appraiser merely accepted that value as being sufficiently high, without making any effort to ascertain the true value, as required by Customs Administrative Act June 10, 1890. c. 407, § 10, 26 Stat. 136 [II. S. Comp. St. 1901, p. 1922], Held, that the appraisement was therefore invalid.</p> <p>3. Same — Invoice Value — Assessment on Less Amount.</p> <p>The provision in Customs Administrative Act June 10, 1890, c. 407, § 7, 26 Stat. 134 [U. S. Comp. St. 1901, p. 1892], that duly shall not be assessed on less than the invoice value, does not require that the collector should take as the dutiable value an excessive sum erroneously given in a pro forma invoice, when bo has before him a consular invoice giving the correct value. lie conforms to the statute if he assesses on the basis of the value in the latter invoice.</p>

This cause comes here upon appeal from a decision of the Circuit Court reversing a decision of the Board of General Appraisers (G. A. 6,283; T. D. 27,086), which sustained the action of the collector of the port of New York in classifying certain articles for duty under the act of 1897. The opinion below is found in (C. C.) 154 Fed. 171.

For decision below, see 152 Fed. 657, reversing a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by William Seyd.

<p>Appeal — Dismissal—Patents—Appeal from Decebe Awarding Injunction —Expiration of Patent Pending Appeal — Moot Question.</p> <p>On the expiration of a patent while an appeal from a decree awarding a perpetual injunction against its infringement, but not ordering an accounting, is under advisement by the appellate court, the case becomes one not involving any subsistent right, and the appeal will be dismissed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122; vol. 38, Patents, § 603.]</p>

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

<p>In Error to the District Court of the United States for the Western District of North Carolina, at Asheville.</p>

<p>Patents — Action fob Infringement — Pleading—Complaint— Sufficiency.</p> <p>A complaint in an action to recover damages for the fraudulent procuring of a patent by defendants in the name of one of them for an invention alleged to have been made by plaintiff held to state a cause of action on demurrer.</p>

In Equity. On final hearing. Claims 1 and 6 are as follows: “1. A railway switch structure, which consists of a metallic structure provided with a pocket in which a plate, which is grooved so as to form the flangeway and point, is removably secured; the rails of the remainder of said switch being secured to said metallic structure.” “6.

In Equity. On rule to show cause why defendants should not be adjudged guilty of contempt in disregarding an injunction restraining infringement of a patent.

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

In Equity. On the master’s report and exceptions thereto, the complainants move to confirm the report, overrule the exceptions, and treble the amount awarded under section 4921 of the Revised Statutes of the United States [U. S. Comp. St 1901, p. 3395], while defendant moves for the allowance of its exceptions, and prays no decree for a money judgment be made or any master’s fee or costs be allowed.

<p>' In Equity; ■ Suit in equity to restrain alleged infringement of' claim 6 of United1 States letters patent No; 661,447, dated November 6, 1900, to’ Henry J." Gaisman, for “Apparel Belt.”'</p>

<p>In Equity. Suit in Equity to restrain alleged infringement of Í United States letters patent No. 653,400, dated July 10, 1900, to ! John. W. Rapp, for “fireproof door.” • ¡</p>

In Admiralty. Suit in rem to recover damages for injuries to a steam tug caused by coming in contact with a mooring line extended across a slip between two wdiarves, and for personal injuries suffered by the captain of the tug. Decree for libelants.

<p>Shipping — Stranding of Vessel — Liability fob Negligence in Cabe of Passengers.</p> <p>Where a steamer ran upon a rock in the night, it was negligence for those in charge to permit passengers to leave in a small boat without a competent seaman in charge, which rendered the vessel liable to one of such passengers for the loss of his effects, and for physical injuries resulting from his exposure for several hours in the open boat, with only his underclothing to protect him from the cold.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 538-552.]</p>

In Admiralty. On final hearing. Libelant was a seaman on the Drumelton, bound from New York to South Africa. On the voyage a wooden donkey engine cover weighing over 200 pounds fell from the forward deckhouse to the spar deck, breaking Lincoln’s leg. He was cared for as well as the conveniences on the ship permitted, and his leg set by one of the officers.

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

A petition in bankruptcy was filed against Schindler October 23d. On the previous September 21st he obtained from Dommerich & Co. certain goods “on memorandum,” and in like manner obtained certain other goods on September 30th. By this motion Dommerich & Co. seek to recover the merchandise, alleging that when the petition was filed the title to the same was in them.

<p>Receivers — Interest on Bonds — Accounting.</p> <p>Where, on an application to require receivers of a railway company to pay interest on certain bonds, a report of assets and liabilities had been made on behalf of the bondholders, but no accountant had been applied for on behalf of the stockholders, and the report made might not be correct in all respects, a master would be appointed to take evidence with reference to the account and report the same to the court.</p>

<p>Trade-Marks and Trade-Names — -Infringement—Preliminary Injunction.</p> <p>Where, in a suit to restrain defendant from using the name “Muresco” to indicate a wall finishing product sold in competition with complainant’s product, called “Murafresco,” defendant submitted affidavits claiming a prior use of defendant’s word in the trade for a similar product and a general use of combinations of the stem of the Latin word “murus” with various terminations, no adjudication having been had in favor of complainant, a preliminary injunction would be denied under the rule that such a writ will not be granted except when the papers present a clear case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 108.1</p>

<p>In Equity.</p> <p>This is a suit, in effect, to annul an assessment which is alleged to be illegal, null, and void. The New York Life Insurance Company, a New York corporation, seeks herein to have annulled, as illegal and void, an assessment against it for property taxes for the year 1906, made by the board of assessors for the parish of Orleans, state of Louisiana. The Louisiana statute requires every taxpayer to make annually in January a written and sworn return of all the taxable property owned by him in the state. When the board of assessors are satisfied that such return is incorrect or untrue, they are given authority to disregard it, and, from the best information they can obtain, to make such assessment of the taxpayer as in their judgment is right and fair. If the taxpayer objects to the assessment thus made by the board, he must make to them a written application to cancel their assessment and adopt his own return. When the board refuses this application, the taxpayer must then seek relief, before the committee of review of the city council, and, if that committee also denies his request for the reduction or cancellation of the board’s assessment, he is then permitted to bring suit against the board of assessors to demand the reduction or cancellation of the assessment complained of. The right to bring this suit is conditioned upon the taxpayer’s prior compliance with the statutory requirements, first, to make a written and sworn return to the board of his taxable property; second, to apply to the board for the relief he claims; and, third, if the board refuses such relief, then to apply for it before the committee of review of assessments of the city council.</p> <p>On January 25, 1906, complainant made in proper form and filed with the board of assessors its written and sworn return of its taxable property in Louisiana, as follows;</p> <p>Money in possession, on deposit, or in hand.$1,000 00</p> <p>Furniture .. 500 00</p> <p>$1,500 00</p> <p>The hoard of assessors declined to accept the above as a correct return of complainant’s taxable property in Louisiana, and proceeded to enter in lieu thereof the following assessment against complainant on the assessment rolls for 1906, viz.:</p> <p>Money loaned on interest, all credits, and all bills receivable for money loaned or advanced for goods sold. .$568,900 00</p> <p>Money in possession, on deposit, or in hand. 51,700 00</p> <p>Furniture .. 500 00</p> <p>$621,100 00</p> <p>The board’s assessment includes complainant’s return of $1,500 and adds thereto the further sum of $619,600. The tax due on the assessment shown by complainant’s return is $42. The tax due on the assessment as made by the board of assessors would be $17,890.80. The complainant tendered the tax admitted to be due on its own return ($42) and brought this suit to enjoin the collection of the remainder of the tax ($17,348.80), calculated on the board’s added assessment of $619,600. The bill herein alleges that the complainant complied with the three statutory requirements and then tendered the tax admitted to be due. It is conceded that these averments are true and that the complainant is, therefore, properly before the court. The bill then alleges:</p> <p>First. That the item on the board’s assessment reading, “Money loaned on interest, all credits, and all bills receivable for money loaned or advanced for goods sold, $568,900,” is based wholly on the board’s conclusion that certain arrangements between complainant and its Louisiana policy holders made complainant the creditor of such Louisiana policy holders in the sum of $568,900. And it is alleged in the bill or urged in oral argument that this conclusion of the board was erroneous for two reasons, substantially a:s follows: (a) That the said arrangements were not in fact or in law loans by complainant to its Louisiana policy holders, but were in reality partial and advanced settlements made by complainant with these policy holders, pursuant to stipulations in the policies, of sums already earned under the policies, and it is claimed that the terms of these arrangements do no more than provide for crediting the complainant in its final settlement of the policies with the amounts so paid in advance to the policy holders, and at the same time secure to complainant the right to make this compensation, (b) That the arrangements in question, if held to be loans, were negotiated and made payable in the state of New York, and were evidenced by written instruments always kept in the state of New York, and which were never intended to be sent, nor ever by any business exigency, required to be sent, nor ever in fact sent for any purpose, to the state of Louisiana.</p> <p>Second. The bill alleges that the increase made by the board in the item reading “Money in possession, on deposit, or in hand, $51,700,” is based on an attempt by the board" to tax money belonging to complainant while in transit or process of remission, from Louisiana to New York; the facts being as follows : Complainant keeps two bank accounts in the city of New Orleans, La., known as “No. 1 Account” and “No. 2 Account.” In No. 1 account are deposited all premiums collected for complainant in Louisiana. Complainant’s cashier in New Orleans mails every evening to complainant in New York a statement of the deposits on that day in this account. Complainant’s treasurer in New York on Thursday of each week draws for the entire amount of the No. 1 account, as shown by the daily statements for the past week. The deposits in the No. 1 account are, so the bill alleges, solely for the purpose of transmission to New York, and no person in Louisiana has, or ever has had, the right to draw against this account or to make” use of it for any purpose, and as a matter of fact the money in this account never has been drawn against or used in Louisiana, and no use has ever been made of the account, except for remission to New York in the way just stated. In No. 2 account •money is deposited to an amount never to exceed $1,000 to pay the current expenses and disbursements of the New Orleans office, and the cashier in New Orleans has authority to draw on this No. 2 account. The board of assessors insist that complainant is taxable on the No. 1 account, as well as on the No. 2 account, and accordingly raised the assessment so as to include the average balances in the No. 1 account, thus making the item now in .question $51,700, instead of $1,000. The bill claims that the money in the No. 1 account is money in transit, or in process of transmission, from Louisiana to New York, and is not taxable in Louisiana.</p> <p>The answer admits, first, that complainant is a New York corporation, organized and domiciled as alleged in the bill, and generally engaged in the life insurance business in the manner stated in the bill, and that it has duly paid all license taxes imposed upon it by the Louisiana law; second, that the increase in complainant’s assessment was made as alleged in the bill. But the answer insists, (a) that complainant had, within the state of Louisiana, during the year 1906, credits to an amount much greater than $568,900; (b) that the amount on deposit in No. 1 account was properly and legally assessed, “for the reason that it is money in this jurisdiction, and enjoys the protection of this government, and is in no wise distinguished from any other taxable property so situated.” It is conceded that complainant has no credits in Louisiana, unless such credits, if any, as arise from the arrangements between complainant and its policy holders hereinafter to be considered; and there is no dispute as to the facts of these arrangements. All the evidence respecting them was that given by complainant’s own officers and witnesses, and no attempt was made to contradict or vary the account of the transactions as given by them.</p>

<p>1. Courts — United States — District in which Suit Must be Brought.</p> <p>A bill for infringement of a patent filed against a foreign corporation, in order to confer jurisdiction on tbe court, must allege both acts of infringement in tbe district where filed, and that the defendant has at the time of suit a regular and established place of business there.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. yol. 13, Courts, § 814.]</p> <p>2. Same.</p> <p>To confer jurisdiction in such suit 'it is not necessary that the defendant should have had1 a regular and established place of business within the district at the time the alleged acts of infringement were committed therein, but it is sufficient if it had such place at the time of bringing suit.</p> <p>[Ed. Note. — Por cáses in point, see Cent. Dig. vol. 13, Courts, § 814.]</p> <p>3. Equity — Pleading—Plea to the Person.</p> <p>An order of court permitting a corporation not a party to enter a special appearance and plead to the jurisdiction as the successor of the defendant sued, a copartnership alleged to have ceased to exist before suit, does not authorize a plea by the defendant “by” such corporation which is inconsistent with the claim of dissolution, but. the corporation must itself enter its appearance and plead, and must allege in its pleading that it is the defendant’s successor.</p> <p>4. Patents — Infringement—Sufficiency of Plea.</p> <p>In patent eases, pleas should not be allowed unless they reduce the controversy to a single point or issue, except in very special cases, nor should the question of infringement be tried on a plea, even though it goes to the jurisdiction in the case of a suit against a nonresident, since that question can be raised on a motion to dismiss at the close of complainant’s proofs.</p>

<p>1. Juey — Waiver of Right to Juey Trial — Reference—Findings of Referee — Power of Court to Find Facts.</p> <p>An agreement in, open court by the parties to an action at law in a federal court that the cause may be referred to a referee to make findings of fact is a waiver of the right to a jury trial only on condition that the facts be found by a referee, and confers no power upon the judge to ignore such findings, and himself determine the issues of fact, and the judge has no such power unless by consent, but can only confirm or reject the findings of the referee, and in case they are set aside the cause stands for trial precisely the same as though it had never been referred»</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 81, Jury, §§ 194, 195.]</p> <p>2. Reference — Review by Court — Idaho Statute.</p> <p>Under Rev. St. Idaho 1887, §§ 4414, 4419-4421, authorizing a reference by consent in actions at law, which, by virtue of the federal conformity statute (Rev. St. §• 914 [U. S. Comp. St. 1901, p. 684]), are applicable in actions in the federal courts, or at least may be made so by consent of the parties, and which provide that in case of such reference the referee shall try all the issues whether of fact or law, and “report a finding and judgment thereon,” which must stand as the finding of the court, and “may be excepted to and reviewed in like manner as if made by the court,” the court has no power on exceptions filed to a referee’s findings of fact to review the evidence, but can only do so on a motion for a nfew trial, as in case of a finding by the court or the verdict of a jury; the office of the exceptions provided for being merely to bring in question the conduct of the referee, the regularity of the proceedings, or the sufficiency of the findings under the order of reference or to meet the issues.</p> <p>[Ed. Note. — Following state practice, see note to Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p> <p>S. Same — Common-Law Reference.</p> <p>In case of a common-law reference, if it appears that the referee has exercised his honest and incorrupt judgment in finding the facts, after a full and fair hearing of the parties, the court cannot decline to accept the report upon the ground that the referee has erred in his judgment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Reference, § 167.]</p>

<p>In Equity. Suit to restrain unfair competition in trade, and for an account.</p>

Motion by defendant to set aside the verdicts in this case in favor of the plaintiffs, and for new trials on exceptions to the charge of the court.

<p>1. Street Railroads — Franchises—Contract—Modification.</p> <p>Where an ordinance granted a right to construct a street railroad on certain streets and avenues of a city, and provided that the railroad company should be liable for, and pay into the city treasury, $50, and no more, as an annual license fee for each and every car used by the company, a contract executed by the corporation and the mayor on behalf of the city, to induce the mayor to sign the ordinance, providing that the railway company should pay $50,000 in installments within 20 years for the right secured, constituted such a modification or amendment of the ordinance that both could not be executed as a whole.</p> <p>2. Municipal Corporations — Ordinances—Amendment—Contracts.</p> <p>Under Chicago City charter, providing that an ordinance must be agreed to by the concurrence of a majority of all the members of a city council elect, and that the yeas and nays must bo taken, and a rule that a city ordinance can only be amended or repealed by an act of equal dignity and formality, and not by a mere resolution, a contract between a street railway company and the mayor acting on the city’s behalf, by which the railway company agreed to pay the city $50,000 to induce the mayor to sign a franchise ordinance, which contract was informally accepted by the city council and ordered filed, was ineffective as an amendment of the ordinance.</p> <p>3. Same — License to Use Streets — Necessity oe Ordinance.</p> <p>Ill. Const. 1870, art. 11, § 4, prohibits any law granting a right to construct a street railroad within a city without requiring the consent of the local authorities. Held that, though the right to construct a street railroad comes from the state as a “franchise,” and the consent and designation of streets to be occupied comes from the municipality as a “license” or contract right, such license must be by ordinance of the city council passed by the yeas and nays concurred in by the majority of the members elect and approved by the mayor under the city’s charter, providing that ordinances must be so adopted.</p> <p>4. Street Railroads — Grant of Rights in Streets — “Local1 -Authorities” —“Corporate Authorities.”</p> <p>Ill. Const 1870, .art. 11, § 4, prohibits the granting of a right to construct a street railroad in a street without the consent of the “local authorities” and street railway act (2 Starr .& C. Ann. St. 1896, p. 2110, c. 66, par. 3) requires the consent of the “corporate authorities.” Held, that the terms “local authorities” and “corporate authorities” were synonymous, and used to indicate those representatives either directly elected by the people or appointed in some mode to which the people had given their assent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. .44, Street Railroads, §§ 69-76.</p> <p>For other definitions, see Words and. Phrases, vol. 5, p. 4205; vol. 2, pp. 1602-1603.]</p> <p>5. Municipal Corporations — Governmental Powers» — Granting- Licenses.</p> <p>The granting of licenses to a street -railway company to construct a street railway in a street by a city is the exercise of governmental power, in which the municipality acts as the agent or representative of the state, and not in a private- capacity.</p> <p>6. Street Railroads» — Grant of Rights in Streets — Contracts—Validity-Estoppel to Deny.</p> <p>Where a street railway company, in order to induce the mayor of a city to sign a franchise ordinance, executed a contract which was void in its inception, by which the. railway company agreed to pay the city $50,-000 in installments for the rights granted under the franchise, and after executing the contract the railway company proceeded to construct and operate its road on one of the streets under a permit issued by the commissioner of public works pursuant to such franchise and contract, the railway company was thereafter estopped to deny that the contract was valid.</p>

<p>Uemoval of Causes — Action Between Nonresidents.</p> <p>An action pending in a state court of competent jurisdiction in Delaware, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, brought by a citizen of Pennsylvania against a citizen and resident of New Jersey, is not removable to the Circuit Court of the United States for Delaware; and the doctrine of waiver is inapplicable to the case.</p> <p>„ [Ed. Note. — Por cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 35.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Carriers — Violation of Interstate Commerce Act — Indictment of Shipper for Receiving Rebates.</p> <p>In the prosecution of a shipper for receiving rebates or concessions in violation of section 1 of the Elkins Act of Peb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Conip. St. Supp. 1907, p. 880], which forbids the granting or receiving of any rebate or concession whereby property shall “by any- device whatever” be transported in interstate commerce at a less rate than that named in the tariffs published and filed by the carrier, where it is averred that there was an established through rate between the terminal points of the shipment to which the carriers concerned were parties, the indictment need not aver the route over which the shipment was actually made.</p> <p>2. Same.</p> <p>Such an indictment need not specifically charge the actual payment of the unlawful lower rate conceded which is not an essential element of the offense, although proof of such payment may be given on the trial.</p> <p>3. Commerce — Subjects of Regulation — Transportation Charges.</p> <p>The fact that a concession from the published and filed through rate on an interstate shipment over the lines of connecting carriers was given entirely by the initial carrier for transportation over its own line wholly within one state does not relieve the shipper receiving such concession from liability to prosecution therefor under the Elkins Act of Peb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880].</p> <p>4. Carriers — Violation of Interstate Commerce Act — Separate Offenses —Successive Shipments.</p> <p>Under the Elkins Act' of Peb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880], which makes it unlawful for a shipper to receive “any concession” from the published and filed rate for the interstate transportation of property; where the published rate relates to transportation In car load lots and the shipments are so made, concessions received and accepted on such shipments were upon the property transported, and not upon the conceded rate, and each shipment on which a concession was given constitutes a separate offense.</p> <p>5. Same — Elkins Act — Constitutionality.</p> <p>The Elkins Act of Feb. 1*9, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880], is not unconstitutional as in violation of the fifth amendment because it subjects a shipper to criminal prosecution for accepting a concession from a rate published and filed without permitting him as a defense to show that the established rate was extortionate and unreasonable. and that the rate paid was reasonable.</p>

<p>1. Injunction — Right to Relief — Property Rights.</p> <p>To justify the exercise of the injunctive powers of a court, the unlawful interference or threatened interference with complainant’s property rights must be shown.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 27, Injunction, §§ 9, 10.]</p> <p>2. Master and Servant — Termination of Employment — Right to Quit.</p> <p>Workmen may strike or quit their employment at pleasure, either singly or in concert, even though it be in violation of their service contract.</p> <p>3. Trade Unions — Strikes—Advice of Officers.</p> <p>Workmen are not forbidden by law from seeking, taking, or following the advice of the officers of their union or labor organization, with reference to the advisability of a strike.</p> <p>4. Injunction — Conspiracy—Inducing Strike.</p> <p>Where the by-laws of a labor union provided that no strike could bo declared on any railroad system unless two-thirds of the members on such system first voted for the same, and that members were not permitted to engage in a strike or encourage any other member to strike without the consent of two-thirds of the members employed on that system, and of the international president of the union, a poll having been taken resulting in favor of a strike, the consent of the president of the union did not constitute such an incitement or inducement to strike as would justify the continuance of a strike injunction, there being no proof of an intention on the part of defendants to conspire to inflict a wrong on complainant, nor to induce others to strike.</p> <p>5. Conspiracy — Evidence—Weig ut.</p> <p>Where a circular inducing a strike was promptly repudiated by the labor union involved, and its origin and authorship was not proved, it was not entitled to probative weight to prove a conspiracy to induce and intimidate members of the union to strike.</p> <p>6. Trade Unions — Officers—Committees—Conference.</p> <p>Members of a labor union were entitled to select a committee to request a conference with their employer and to delegate an officer of the union to represent them and advocate an adjustment of their differences with a view of effectuating an amicable arrangement.</p>

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

<p>Counts — Federal and State Cotjkts — Priority op Jubjsdiction.</p> <p>A federal court cannot entertain and proceed with a suit to foreclose a mortgage on the property of a railroad company while it is in the actual custody of a state court through its receiver, appointed in a prior suit to foreclose a junior mortgage, nar has the federal court power to remove the state receiver or to interfere in any manner with his management of the property.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § M08.</p> <p>Conflict of jurisdiction with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 C. C. A. 356.]</p>

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

<p>1. Bankruptcy — Preferential Claims — Classification.</p> <p>The claim oí a landlord for rent of premises occupied by the receiver and trustee of a bankrupt is entitled to rank as a preferred claim under Bankr. Act July 1, 1898, c. 541, § 64b (1), 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], as a necessary cost of preserving the estate. The trustee’s commissions rank under subdivision 3 as a cost of administration. An allowance made to the attorney for the trustee for services ordinarily falls within the same subdivision,'although, when such services were necessary to preserve the estate, such claim may be classified under subdivision 1.</p> <p>2. Same — Adjustment of Preferential Claims to Meet Insufficient Assets.</p> <p>Where the estate of a bankrupt is insufficient to pay in full the claims entitled to preference, the court may, where equity requires it, scale a claim which would ordinarily be entitled to priority over others.</p>

<p>Admiralty — Costs—Action in Poema Pauperis — Stipulation for Costs on Appeal.</p> <p>Where, in a suit in admiralty brought in forma pauperis, a decree was entered dismissing the libel, from which an appeal was taken, and a surety entered into a stipulation conditioned that appellant should “answer all damages and costs” if he failed to make his plea good, on an affirmance of the decree by the appellate court, “with costs,” the respondent is entitled to a decree against the libelant and the surety for his costs in both the appellate and district courts.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, p. 163G.1</p>

<p>CaReiees — Interstate Commerce — Receiving Rebate — “Common Arrangement.”</p> <p>Defendant as shipper made an agreement with the Mutual Transit Company, which was a carrier by water only on the Great Lakes, by which the transit company agreed to protect a rate of 45 cents per hundred on a shipment of iron pipe from Philadelphia to Winnipeg, Man. The transit company routed the shipment over a railroad to a port on Lake Erie, thence over its own water line to West Superior, Wis., and from there over two railroads to Winnipeg. The shipment was made on through bills of lading issued by the receiving railroad carrier, in which a rate of 49-*4 cents was charged, that being the sum of its own published through rate to West Superior and the published rates of the other two railroad companies from there to Winnipeg, and such rate was paid by defendant. Prom the portion of such rate received by the transit company it refunded to defendant 4% cents per hundred on the shipment. The transit company had not published nor filed any schedule of rates under the interstate commerce law. Held, that its participation in the transportation of the property under the through bills of lading and in the rate charged therein was not under a “common arrangement” between the carriers with respect to such shipment within the meaning of the act so as to make such rate the lawful rate as against the shipper, nor to render the latter subject to criminal prosecution for receiving a rebate under the Elkins Act of Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880].</p> <p>Buffington, Circuit Judge, dissenting.</p>

This cause comes here upon writ of error to reyiew a judgment of the Circuit Court, Southern District of New York. The plaintiff in error, a bankrupt, was indicted for the commission of willful and corrupt perjury before a special commissioner in bankruptcy while giving testimony upon oath as to certain of his transactions. He was convicted on two counts, and sentenced to two years’ imprisonment and to pay a fine of $1.

<p>.1. Customs Duties — Classification—Glass Articles — Microscope Slides.</p> <p>In Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 100, 30 Stat. ■ 157 (U. S. Comp. St. 1901, p. 1633), providing for “vessels or articles of glass, * * * all the foregoing, filled or unfilled, and whether their contents be dutiable or free,” the reference to the filling of such articles does not, in view of the history of the legislation, imply that only articles capable of being used as containers are covered by the paragraph; and microscope slides cannot for that reason be excluded.</p> <p>2. Same — Statutory Construction — Catch-All Clauses.</p> <p>In enacting tariff laws it has evidently been the intention of Congress that the enumeration of dutiable articles should be as nearly exhaustive as possible; and imported articles should therefore not be classified under clauses for articles “not otherwise provided for,” if by fair construction they can be embraced within a specific enumeration of dutiable articles.</p>

<p>Petition to Superintend and Revise from the District Court of the United States for the Northern District of Alabama.</p>

<p>Bankruptcy — Corporations Subject to Act — “Engaged Principally in Manufacturing. ’ ’</p> <p>A corporation, the principal business of which is the building and construction of concrete arches, bridges, buildings, walls, and other structures in situ, the concrete being mixed as used in the structure which when completed became a part of the realty, is not one engaged principally in manufacturing, within the meaning of Bankr. Act July 1, 1898, § 4b, e. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], and is not subject to adjudication as an involuntary bankrupt.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7650, 7651.</p> <p>What persons are subject to bankruptcy law, see note to Matoon Nat. Bank of Matoon, Ill., v. First Nat. Bank of Matoon, Ill., 42 C. C. A. 4.]</p>

<p>IBankeottcy — Exemption—Homestead—“Unmarried Female.”</p> <p>Rev. St. Ohio 1906, § 5441, authorizes an allowance in lieu of a homestead to a widow, or to an unmarried female, having in good faith the care, maintenance, and custody of any minor child or children of a deceased relative, resident of Ohio, and not the owner of a homestead. Held that, since under the decisions of Ohio, the words “having, in good faith the care, maintenance and custody of any minor child or children of a deceased relative” qualified the word “widow” as well as the words “unmarried female,” where a bankrupt was a divorced, woman, who supported her two minor children, she was entitled to an exemption in lieu • of homestead, as an “unmarried female” having the custody, etc., though she might not be regarded as a widow.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. -7196, 7197.]</p>

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

<p>In Error to and Appeal from the Circuit Court of the United -States for the Middle District of Tennessee.</p>

<p>Bankruptcy — Examination or Witness Concerning Acts ob Property op Bankrupt — Production op Documents.</p> <p>On the examination of the president of a bank in a bankruptcy proceeding concerning the “acts, conduct, or property” of a bankrupt corporation in aid of a suit brought by the trustee against the bank to recover sums alleged to have been taken by it from the corporation when insolvent, and applied on a personal indebtedness of the bankrupt’s president, a private memorandum book of the witness, and which he testified was kept by him during the time the payments were being made, and contained entries of such payments as made, is competent evidence, and the witness may properly be required to produce the same.</p>

of Connecticut. This cause comes here upon a writ of error to review a judgment of the District Court, District of Connecticut, entered after trial by the court without a jury.

This cause comes here upon writ of error to review a judgment of conviction under indictment for receiving stolen goods, viz., four pigs of tin alleged to have been stolen from the United States Navy Yard at Brooklyn.

<p>Bankruptcy — Prior Levy — Foreclosure Decree — Sale—Injunction—Jurisdiction. °</p> <p>A court of bankruptcy has no jurisdiction to enjoin the sale of property on judgment rendered in a state court enforcing mortgage liens of date long prior to four months preceding the filing of the petition or adjudication of the mortgagor a bankrupt.</p>

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

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

This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, dismissing bill for infringement of complainant’s patent, No. 430,868, granted June 24, 1890, to Cyprien O. Mailloux, for regulation system for electric circuits. The opinion of the Circuit Court is reported in 148 Fed. 695.

This cause comes here upon appeal from a decree of the Circuit Court, Southern District of New York, dismissing a bill in equity for injunction and accounting upon the ground that the articles manufactured and sold by defendant did not infringe the patents sued upon. 'The opinion of the Circuit Court is reported in 141 Ted. 989.

<p>Patents — Invention—Hot Air Furnace.</p> <p>The Kelsey patent No. 476,230, for a hot air furnace, claim 5, Is void for lack of patentable invention as covering merely an aggregátion of old elements, each performing its old function independently of the others- . and producing no new result, although their aggregation in the same structure may produce an improved result.</p>

In Equity. Suit to restrain alleged infringement of United States letters patent, No. 535,465, dated March 12, 1895, to John Schroeder for “means for operating washing machines,” application filed October 23, 1891, and for an accounting.

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

<p>1. Trade-Marks and Trade-Namesi — 'Unfair Competition.</p> <p>The name of a patentee of an article of a new and original type, by which such type becomes known or distinguished in the trade, after the expiration of the patent may lawfully be used by any maker or dealer to designate articles of that type, and such use is not within the rule of unfair competition.</p> <p>[Ed. Note. — Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Same — Marking op Patented Article — Expiration op Patent.</p> <p>An arbitrary symbol or device stamped by the manufacturer only on articles made under certain patents on the expiration of such patents becomes public property, and its use by others does not constitute unfair competition.</p> <p>3. Same — Descriptive Name — “Stud.”,,</p> <p>The word “stud,” used to designate-a belt fastener which is in fact a stud, is descriptive merely, and cannot be exclusively appropriated by a single manufacturer,</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 6.]</p>

<p>Admiralty — Costs—Premium Paid eoe Bond to Release Vessel.</p> <p>Where the claimant of a libeled vessel has prevailed on the trial, and the libel is dismissed, he is entitled to tax as a part of his costs the premium paid by him to a surety company for a bond to obtain the release of the vessel, where it is reasonable in amount.</p>

<p>1. Bankruptcy — Attorney’s Lien — Vacation.</p> <p>The institution of bankruptcy proceedings will not invalidate an attorney’s lien on securities belonging to the bankrupt in possession of the attorney.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 286,. 287.]</p> <p>2. Same — Possession op Securities — Rights op Receiver.</p> <p>Where certain chattel mortgages belonging to a bankrupt corporation were delivered to the corporation’s attorney prior to the filing of a bankruptcy petition against the corporation, it was the duty of the attorney to-turn over the securities to the bankrupt’s receiver, though the attorney was-entitled to have his alleged lien thereon determined either in the bankruptcy proceedings or in any court having jurisdiction of the subject-matter in which a lien arose, or in which the claim for services might be determined.</p> <p>3. Same — Summary Proceedings.</p> <p>Where a bankrupt’s receiver asked to have-certain chattel mortgages- and assignments made to a creditor turned over to him but the creditor had possession and claimed title thereto, the receiver’s right could not be-determined in summary proceedings on affidavits, though the transfers-might have constituted a preferential payment or might be set aside for-fraud.</p>

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>The case involves consideration of the following provisions of law:</p> <p>“If any package be found by the appraisers lo contain any article not specified in the invoice, and they * * * shall be of opinion that no * * ® fraudulent intent existed, then the value of such article shall be added to the entry, and the duties thereon paid accordingly.” Extract from section 2901, Rev. St. (U. S. Comp. St. 1901, p. 1921).</p> <p>“The duty shall not, however, bo assessed in any case upon an amount less than the invoice or entered value.” Extract from Customs Administrative Act June 10, 1890, c. 407, § 7, 20 Stat. 134 (U. S. Comp. St. 1901, p. 1892).</p> <p>The opinion of the Board of General Appraisers reads as follows :</p> <p>SHARRETTS, General Appraiser. We find as facts in this case:</p> <p>1. That the appellants imported into the port of New York certain oil paintings in frames, contained in 12 cases covered by three invoices and one entry.</p> <p>2. That the frames were not separately specified in the invoices, but were included in the term “paintings;” and the invoice value of the paintings included the value of the frames.</p> <p>3. That the local appraiser valued the oil paintings at the invoice value of the oil paintings and frames, and returned the frames as articles in excess of the invoice quantity, and placed a value thereon.</p> <p>4. That the appellants made application for reappraisement of the merchandise, in accordance with the provisions of section 13, Act of June 10, 1890, c. 407, 26 Stat; 136 [U. S. Comp. St. 1901, p. 1932], which application was granted as to the merchandise covered by two of the invoices but denied as to that covered by the third invoice.</p> <p>5. That the General Appraiser holding the reappraisement (except as to some few articles of little value in excess of invoice quantity and not covered by protest) found the invoice value of the merchandise correct, and segregated the value of the paintings and frames for purposes of classification and assessment of duty.</p> <p>6. That the collector declined to accept the decision of the General Appraiser on reappraisement as conclusive, for the reason, as stated by him, that the value specified in the invoices was for the oil paintings alone, and that in accordance with the provisions of section 7, act of June 10, 1890, c. 407, 26 Stat. 134 [U. S. Comp. St. 1901, p. 1892], duty could not be assessed, on less than the invoice value thereof.</p> <p>7. That, although oil paintings and frames are separate articles of merchandise in trade, it has long been the practice, both in this country and abroad, to include both paintings and frames in the term paintings, and also to include the value of'the frames in the selling price of oil paintings framed.</p> <p>8. The packages in question contained no articles subject of protest not specified in the invoices.</p> <p>On these findings we think that the importers are entitled to the relief asked for. If the local appraiser intended to advance the value of the merchandise and added a sum equal to the estimated value of the frames to make market value, then the importers properly asked for reappraisement of the merchandise, in accordance with the provisions of section 13, and the decision of the General Appraiser (no appeal having been taken therefrom) was final and conclusive against all parties.</p> <p>Regarding the merchandise covered by the third invoice, reappraisement of which was not allowed by the collector, we find that the local appraiser did not add to it an amount to make correct market value thereof, but he added to the invoice value the value of goods alleged by him to be in excess of the invoice quantity. Inasmuch as the packages contained no articles not specified in the invoices, duty was, in our opinion, improperly exacted on the alleged excess’.</p> <p>The principle upon which we base our conclusions herein would seem to be approved by the United States Circuit Court of Appeals for the Second Circuit in Re Crowley (55 Fed. 283, 5 C. C. A. 109), wherein the court decided that the value of certain merchandise invoiced as an entirety, but found to consist of two distinct articles separately provided for in the tariff, should have been segregated by the appraiser and duty assessed on the value of the several kinds of goods by the collector at the respective rates applicable thereto.</p> <p>Following the ruling of the court in that case, we hold the claim of the appellants in this case to be well founded. The protest is sustained, and the collector’s decision is reversed.</p>

<p>Bankruptcy — ,Tungment Avoided by Proceedings — Enjoining Sale — Saxe Under Foreclosure Decree.</p> <p>Where foreclosure proceedings were instituted prior to the bankruptcy of the mortgagor on a mortgage given more than four months before, and a receiver was appointed who was in possession of the property at the time of bankruptcy, a sale of the property under the decree in such suit cannot be stayed by the bankruptcy court.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below affirmed the assessment of duty on an importation into the port of New York, on the authority of U. S. v. Shaw, 144 Fed. 329, 75 C. C. A. 291, U. S. v. Wile, 130'Fed. 331, 64 C. C. A. 577, and Richard v. U. S. (C. C.) 151 Fed. 954.</p>

<p>At Raw. On motion to strike out paragraph of complaint.</p>

<p>1. Mines and Minerals — Location or Minino Claims — Necessity of Recording ClCBTIFICATE.</p> <p>Comp. Laws Nev. 1900, § 210, providing for the recording of certificates of location of mining claims, is directory only, and, where the doing of the acts required to make a valid location is fully proved by other testimony, it will not be invalidated by a failure to record a certificate thereof.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 34, Mines and Minerals, §§ 45-50.)</p> <p>2. Same — Forfeiture of Claims — Burden oe Proof to Establish.</p> <p>The burden of proof is always upon the party seeking to establish the forfeiture of a mining claim, and the proof must be clear and convincing that the owner has failed to comply with the law.</p> <p>3. Same — Assessment Work — Character of Work Required.</p> <p>Rev. St. § 2324 [U. S. Comp. St. 1901, p. 1426], which requires that not less than $100 worth of labor shall be performed or improvements made on a mining claim during each year, does not specify the kind of labor, and labor expended in extracting ore from the claim is within the requirement. It is only when labor is performed without the boundaries of the claim that its character becomes material, and in that case it must tend to the development or improvement of the claim or it will not count.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, §§ 51-55.]</p> <p>4. Same — Claim Owned by Corporation — Work Done by Stockholder.</p> <p>A stockholder in a mining company has such a beneficial interest in the corporate property that any mining work done by him on unpatented claims of the company must be counted as representation work, and if sufficient in amount, and done at the proper time, will prevent a forfeiture of the claims.</p> <p>5. Fraudulent Conveyances -Suffering Loss of Property — Mines—Relocation to Defraud Creditors — Effect in Equity.</p> <p>On December 29th, defendant obtained a judgment against a mining company, and on the next day an execution was issued and levied on un-patented mining claims of the company, under which the claims were sold and purchased by defendant. On January 1st, following the levy, complainant, at the instance of one of the stockholders of the company and with the connivance and assistance of others, relocated such claims, claiming that they had been forfeited by the failure of the company to do the required assessment work for the preceding year. In fact a sufficient amount of work had been done on some of the claims by the stockholder procuring the relocation, and his purpose was to defeat the collection of defendant’s judgment, of which purpose complainant had actual or constructive knowledge.- Held that, under Comp. Laws Nev. § 2708, which provides that all conveyances with intent to hinder, delay, or defraud creditors are void as against such creditors, as well as under the common law, the attempted relocation was fraudulent, and that a court of equity would not grant complainant relief by quieting his title as against defendant.</p>

<p>On Application by Petitioning Creditor for an Order for Examination of Alleged Bankrupt.</p>

<p>, ; On Request by Certain Creditors for the Call of a Meeting to Consider Acceptance of .a Composition Offer. • -</p>

In Equity. Suit for infringement of trade-mark. This was a proceeding in equity brought to restrain infringement of trademark and unfair competition.

<p>1. Salvage — Suit for Cohipensation — Effect of Excessive Claims.</p> <p>False allegations in a libel for salvage as to the service rendered and excessive claims for compensation may determine a doubtful case against the libelant, or may justify the denial of any compensation for services rendered, or the reduction of the amount.</p> <p>2. Same — Towing Vessel from Fire at Wharf — Absence of Master.</p> <p>A tug tendered a line to a steamship which was lying at a wharf and in imminent danger of taking fire from a burning building near by, and such line was accepted by those on board in the absence of the master, • and the vessel towed out of danger. Held, that the action of the tug was meritorious and proper, and she was entitled to a salvage award therefor, and that the master of the steamer on arriving and terminating the service could nót repudiate that already rendered on the ground that it was not requested nor desired.</p> <p>■ • [Ed. Note. — For cases in point, see Cent. Dig. yol. 43, Salvage, § 28.]</p> <p>3. Same — Amount of Award.</p> <p>A tug which towed a steamship, worth $65,000 from a wharf when she-was in danger of fire with apparently no other means of assistance at hand,' the service lasting -about' 20 minutes, held entitled to a salvage award of $1,200.</p> <p>■ [Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, § 76.</p> <p>Award in federal courts, see note to The Damington, 30 H C. 4. 280.].'</p>

<p>On’Motion to Quash Service of Summons. ■</p>

Petition for Naturalization. This petition was filed in this court on the 20th day of November, 1907, and was apparently verified by Giuseppe Silvestri and Alberto Ventri, who made affidavit that they were citizens of the United States and that they had personally known the petitioner to be a resident of the United States for a period of at least five years continuously immediately preceding the date of filing his petition, and of the state of New York for a period of seven…

Petition for Naturalization. The petition came on for final hearing in open court at the expiration of the 90 days prescribed by the statute, when the petitioner represented to the court that he was unable to produce one of the original verifying witnesses, Michael O’Dea, and asked permission to substitute a new witness,- named Frank Curran, who was believed to have the requisite qualifications.

<p>1. Courts — Priority of Jurisdiction — Appointment of Receiver.</p> <p>Where the relief in aid of which the appointment of a receiver is sought is such as cannot be obtained except by an actual seizure of the property, as the enforcement of a lien thereon, the actual seizure is not necessary to give the court jurisdiction over the property to the exclusion of all other courts, but an order appointing the receiver is an assumption of possession by the court equivalent to an actual seizure.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 1345-1347.]</p> <p>2. Same — Federal and State Courts.</p> <p>In cases where a state court and a United States court may each take jurisdiction of property, the one which first gets jurisdiction holds it to the exclusion of the other until its duty is fully performed and the jurisdiction invoked is exhausted.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 1345-1355.</p> <p>Conflict of jurisdiction with state courts, see note to Louisville Trust Co. v. City of Cincinnati, 22 C. C. A. 356.]</p> <p>3. Same — Effect of Supersedeas.</p> <p>A district court of Texas appointed a receiver for all the property with-, in the state owned by a foreign corporation, on application of the state, which had recovered judgment against the corporation for penalties for violation of a statute, and also enjoined the defendant from removing any of its property from the state. The receiver qualified and gave bond, but did not take actual possession of the property; the defendant appealing at once from the order, as permitted by Rev. St. Tex. 1895, art. 1383, and giving a supersedeas bond as provided for by article 1404. Held that, under such statute as construed by the highest courts of the state, the super-sedeas did not operate to vacate the appointment of the receiver, but merely to suspend his functions, nor to deprive the state courts of their • exclusive jurisdiction over the property of the corporation, which was only transferred from the district court to the appellate court pending the appeal, and that a federal court was without jurisdiction to appoint a receiver for the same property at suit of a stockholder pending such appeal.</p>

This is an appeal from a decree of the court below that an order of the Board, of Railroad Commissioners of South Dakota, that the United States Express Company! an association of New York, receive at its offices in Aberdeen, S. D., from the Aberdeen National Bank, all moneys, specie, and currency tendered to it by that bank for carriage on certain trains which leave Aberdeen at (tolo, 7:00, and 7:45 a. in., during all reasonable business hours of the day preceding the…

<p>1. Bankruptcy — Petition por Review — Issues Reviewable.</p> <p>On a petition to review the judgment of a district court in bankruptcy, the respondent may rely upon any ground disclosed by the record to support the judgment, although upon such ground the decision may have been adverse to him.</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 — Validity op Conditional Sale Contract — Daw Governing.</p> <p>The validity of a conditional sale contract by which title was reserved in the seller as against the trustee in bankruptcy of the purchaser depends upon the law of the state in which delivery of possession thereunder was made. .</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 275.]</p> <p>3. Same.</p> <p>Under the law of Pennsylvania, the title reserved by a seller tinder a contract of conditional sale until full payment of the purchase money in the absence of actual fraud is valid as against the purchaser and all others except creditors who have acquired a lien by attachment or execution, and in such respect a trustee in bankruptcy of the purchaser succeeds only to his title and rights.</p> <p>LEd. Note. — For cases in point, see Cent Dig. vol. 6, Bankruptcy, § 275.]</p> <p>4. Same — Levy by Judgment Creditor — Discharge by Bankruptcy Proceedings — Subrogation of Trustee.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], providing that all levies or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt, and the property affected shall be deemed wholly discharged and released from such levy or lien “unless the court shall on due notice order that the right under such levy, judgment, attachment or other lien shall be preserved for the benefit of the estate,” where a receiver in bankruptcy obtained a restraining order from the court and took possession of property of the bankrupt from the sheriff who held it under a levy, the lien of such levy was wholly discharged, and the trustee could not thereafter assert rights thereunder as against an adverse claimant of the property.</p>

<p>i.' Bills and Notes — Foreign Exchange — What Law Governs.</p> <p>Where drafts were payable at Paris, the law of France determined what constituted payment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, ,§§ 248-254.]</p> <p>2. Same — Drafts Deawn in Sets.</p> <p>Where two sets of drafts, original and duplicate, were drawn by New York bankers on a bank in Paris, the duplicate to be paid only in case the original was unpaid, the two sets constituted in law but one draft, so that when the holder produced the duplicates duly protested, with notice of demand given, he made out a prima facie case, as no duty devolved on him to account for the originals, payment of which was a matter of affirmative defense.</p> <p>3. Judgment — Foreign Judgments — Res Judicata — Merits.</p> <p>The original of a set of drafts was indorsed by the payee when it was stolen, and paid under a forged indorsement of the name of the indorsee. The duplicate, having been similarly indorsed by the payee, was received by the indorsee, and, on payment being refused because of the payment of the original, suit was brought against the drawee by the indorsee, in which judgment was rendered against him on the ground that since his name was not on the original he had no standing to criticise the payment thereof, and that the payee was discharged by the law of France where the draft was payable by the payment of the originals, and that the claim was therefore dismissed “entirely,” and “as in all respects inadmissible and ill founded.” Held, that such judgment was not a mere dismissal on the ground that the indorsee had no standing alone, the second ground being treated as obiter, but that the decision should bo considered as resting on both grounds, and was therefore a judgment on the merits.</p> <p>4. Same — Foreign Judgment — Conclusiveness.</p> <p>Whore a judgment of the French court dismissing a suit by an indorsee of a bill of exchange against the drawee was on the merits, it was not subject to re-examination in a suit in the federal courts of the United States by the payee against the drawer, in the absence of proof of fraud or want of jurisdiction of the French court, or that France so treats the judgments of the courts of the United States, but plaintiff, if bound by such French judgment at all, was estopped to question its grounds either in law or fact.</p> <p>5. Courts — Decisions as Peecedents — Laws oe Foreign Countries — Proof.</p> <p>A finding of the French law with reference to the conclusiveness of the judgments of American courts is not binding on different parties to another action involving the same question, it being necessary that the foreign law be proved in every case as a fact.</p> <p>6. Judgments — Foreign Judgments — Conclusiveness—Parties.</p> <p>The indorsee of a bill drawn' on bankers in France sued them on a duplicate of the set, the original having been paid under a forged indorsement, in which action a judgment was rendered against the indorsee, whereupon the payee took up the duplicates from the indorsee and sued the drawers in the federal court of the United States, who pleaded payment of the originals in defense. Held that, since neither the drawers nor the payee were parties or privies to the French judgment, it was not conclusive against the payee that the payment of the original by the drawee was sufficient to discharge the bills.</p> <p>7. Same — Foreign Judgment — Findings—Construction—“Ordinary Course oír Business.”</p> <p>In an action in France on a foreign bill by the indorsee against the drawee, the original of which the latter had paid under a forged indorsement, the court found that the drawee made such payment in the ordinary course of business over the counter, and without notice that the original bills had been lost, and without opposition or objection to such payments, and that there was no evidence that the payments were made in bad faith. Held, that the use of the phrase “paid in the ordinary course of business” construed with the balance of the finding merely meant that payment was made to the holder of the original drafts against their surrender at the drawee’s bank- on a business day, in banking hours, in the same way it usually paid drafts, and was insufficient to exclude an inference of negligence in the drawees, arising from their failure to detect a variance in the indorsement which was.forged.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, p. 5042.]</p> <p>8. Same — Fobeign Judgment — Foreign Law — Conclusiveness.</p> <p>A foreign judgment against an indorsee of a foreign bill of exchange, in' an action against the drawee holding that the latter was discharged by a payment of the original under a forged indorsement, was not conclusive evidence of the law of France, as applied.-to the facts that the drawee was not .negligent in paying the bill as to persons who were neither parties nor privies to such judgment. ■ .</p> <p>9. Bills and Notes — Foreign Bills — Forged Indorsement — Payment—Negligence — Foreign Law. ,,í! -</p> <p>Evidence held to.--justify a finding that the failure of the drawee of a bill payable in France to observe that the chain of indorsement was broken by an indorsement which obviously did not correspond to the name called for in the prior indorsement, and which was in fact a forgery, was such negligence as to deprive the drawee under the French law of the protection of the French Code de Commerce, art. '145, providing that a party who pays a bill of exchange at maturity without receiving notice of op- . position [objection] is presumed to be legally discharged.</p> <p>. Noyes, Circuit Judge, dissenting in part.</p>

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

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

<p>1. Cemeteries — Power to Regulate — Pennsylvania Borough Act.</p> <p>An ordinance passed by a borough council in Pennsylvania prohibiting the enlargement of existing cemeteries “by adding thereto or using for purposes of interment ground not now owned by the owners of such cemeteries,” and prohibiting the interment of any human body in any place within the borough “except in ground now used as a cemetery or burying ground,” is within the power conferred upon boroughs by Act 1851 (P. L. 322) to prohibit within the borough all interments or within partial limits, and such act is within the undoubted power of the Legislature.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 9, Cemeteries, § 1.]</p> <p>2. Same — Lands Constituting Cemetery.</p> <p>Evidence considered and held insufficient to establish that either of two tracts of land were owned by the owners of a cemetery or used as a cemetery or burying ground within the meaning of such ordinance at the time of its passage, because of an option for their purchase then outstanding through which they were afterward acquired by the owner of another tract which was then so used.</p> <p>Gray, Circuit Judge, dissenting.</p>

<p>1. Railroads — Highway Crossings — Mutual Rights of Railroad and Public.</p> <p>By a grant of a right of way to a railroad company, through the exercise of the right of eminent domain or otherwise, to lay its tracks and operate its road' across an established highway, the state has necessarily declared that the use of the highway for these purposes is a public use consistent with the other uses to which it is ordinarily subject in favor of the traveling public; neither the public nor the railroad company has the paramount right in such use, but each may use the portion of the highway affected by the grant for all proper purposes subject to proper consideration for the concurrent rights of the other.</p> <p>2. Same — Frightening Animals — Removal of Hand Car Upon Highway.</p> <p>The removal of a hand ear from a railroad track upon a highway at a crossing, for a sufficient time to permit the passing of an approaching 'train, by a section foreman who was using such “car in the course of his duty, was a reasonable and permissible use of the highway incidental to - the enjoyment by the railroad company of the right to operate its road over the same, and not an invasion of the rights of the general public, and created no liability on the part of the railroad company for the injury of a traveler on the highway whose horse became frightened at the hand car.</p>

<p>1. Bankruptcy — Pkoceeding Against “Adverse Claimant” — Jurisdiction.</p> <p>A surety on a bail bond of a bankrupt with whom the bankrupt, before the commencement of the bankruptcy proceedings, deposited money to indemnify him against liability, is an adverse claimant of such money, within the meaning of Bankr. Act July 1, 1898, c. 541, § 23, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431], and the court of bankruptcy is without jurisdiction to proceed against him summarily therefor without his consent.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, p. 7567.]</p> <p>2. Same — Consent.</p> <p>An adverse claimant brought into a court of bankruptcy by citation and ordered to turn over property, and who before entry of final decree against him specially objects on the ground that the court is without jurisdiction, cannot be held to have consented to such jurisdiction.</p>

* ■ Plaintiff in error, defendant below, seeks a reversal of a judgment for damages on account of the personal injury of the plaintiff by the alleged negligent acts of the defendant.

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

<p>1. Bankruptcy — Rights op Trustee — Enforcement op Trust Agreement.</p> <p>A trustee in bankruptcy has no interest which he can enforce for the benefit of general creditors in an arrangement between the bankrupt and certain creditors by which money deposited with one, which was a bank, was to be held in trust and distributed pro rata between them, and which was not prohibited by the bankruptcy statute.</p> <p>2. Same — “Voidable Preference.</p> <p>The fact that accounts assigned by a bankrupt to a creditor as collateral security more than four months prior to the bankruptcy were collected within the four months period does not entitle the trustee to recover such collections as preferences.</p> <p>3. Same — Banks—Right op Set-Off — “Preferential Transfer.”</p> <p>New York Bank v. Massey, 192 U. S. 138, 24 Sup. Ct. 199, 48 L. Ed. 380, applied.</p> <p>[Ed. Note, — For other definitions, see Words and Phrases, vol. 0, pp. 5498, 5499; vol. 8, p. 7759.]</p>

<p>Bankruptcy — Debts Provable — Implied Contract — “Warranty.”</p> <p>A good faith “representation and warranty” made by one joint purchaser of timber to his co-purchasers as an inducement to the purchase, as to the quantity of lumber which could be cut from such timber, is not within the rules as to “warranties” in sales of property or insurance contracts to the extent of implying a promise to reimburse his co-purchasers for loss on account of the failure of the tract to cut as much as represented, so as to create a liability therefor on an implied contract provable against his estate in bankruptcy under Bankr. Act July 1, 1898, c. 541, §' 63a (4), 30 Stat.. 502 [ü. S. Comp. St. 1901, p. 3447].</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7396-7404, 7833.]</p>

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Missouri.</p> <p>The case as presented on this appeal involved consideration of No. 11 of the rules of the United States Circuit Courts of Appeals, 150 Fed. xxvii, 79 C. C. A. xx,vii, the pertinent part of which reads as follows:</p> <p>“11. Assignment of Errors. The * * * appellant shall file * * * an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. * * * Errors not assigned according to this rule will be disregarded, but the court, at its option, may notice a plain error not assigned.”</p>

<p>1. Witnesses — Disqualification by Perjury — Construction of Statute.</p> <p>Under Rev. St. § 5392 [U. S. Comp. St. 1901, p. 3653], which, after defining the crime of perjury and prescribing the punishment therefor, provides that the person committing the offense “shall moreover thereafter be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed,” the incapacity attaches only to persons who have been convicted under that section.</p> <p>[Ed. Note. — FOr cases in point, see Cent. Dig. vol. 50, Witnesses, §§ ■ 108-114.]</p> <p>2. Criminal Law — Review on Appeal — Rulings on Admission of Evidence.</p> <p>The action of a trial court in admitting testimony over objections will not ordinarily be reviewed by an appellate court, where neither the purpose of the testimony nor the ground of the objections is shown by the record.</p> <p>3. Criminal Law — Instbuctions—Applicability to Issues.</p> <p>On a trial for perjury, the refusal of the court to state in its charge the rule requiring two witnesses, or one witness and corroborating cir-o cumstances, to ¿stablish the material facts charged, was not error, where the only facts averred, not established beyond controversy, related to the question of intent; the only real issue being as to whether defendant testified knowingly and intentionally or through mistake, to which issue the rule could not apply.</p>

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

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from a decision affirming a decision of the Board of General Appraisers — G. A. 6,298 (T. D. 27,157) — which affirmed the action of the collector.</p>

<p>1. Customs Duties — Classification—Rooted Rose Cuttings — “Plants”— “Cuttings of Shrubs or Plants.”</p> <p>Under Tariff Act July 24, 1897, e. 11, § 1, Schedule G, par. 252, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1650], relating (1) to “rose plants,” and (2) to.“cuttings” of “shrubs” and of “plants,” rooted rose cuttings that have been placed in sand to facilitate handling, but have never been in soil, fall within the latter provision as cuttings of shrubs or plants.</p> <p>2. Words-and Phrases — “Seedlings.”</p> <p>The word “seedlings” includes all trees or plants grown from seed, irrespective of their age.</p>

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

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

This is an appeal from a decree of the Circuit Court for the Southern .District of New York dated April 5, 1907, dismissing the bill with costs.' No opinion was written, as the Circuit Court followed the decision of the Circuit Court of Appeals of the Sixth Circuit (Milloy Case, 148 Fed. 843, 78 C. C. A. 533) holding the .patent -void because of laches in applying for the reissue.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On petition of Sterling-Meaker Company to intervene.</p>

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

<p>Patents — Invention—Tile Floors and Walls.</p> <p>The Furness patent No. 527,961 for a tile floor or wall composed of tiles of yielding material with interlocking joints is void for lack of invention in view of the prior art which showed interlocking wall tiles of nonyielding material, and floor tiles of rubber not interlocking.</p>

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

<p>1. Specific Performance — Unauthorized Contract by Trustee.</p> <p>Where a patent was assigned to D. in trust, without power to sell or incumber the same, for the benefit of three persons named, and D. became the owner of a one-third interest therein, whereupon he contracted to sell all right, title, and interest in the patent, together with all claims for damages for past infringements — the purchaser having full knowledge of the condition of the title — such purchaser was entitled to enforce specific performance on its agreement to accept whatever title D. was able to convey.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 44, Specific Performance, §§ 20-23.]</p> <p>2. Patents — Assignments—Effect.</p> <p>A patentee conveyed it with other interests to S., “his assignees and successors in trust.” and directed that S. and his successors should have and hold the patent in trust, without power to sell, incumber, or otherwise dispose of the patents, etc., for the benefit of three persons, S. being one of them. S. thereafter assigned the same interest, so far as he had any right to do so, to D., trustee. Held that, by such transfer, D. acquired title in trust for himself, and for the two other persons, for whose benefit S. had held the title, so that D. was entitled to convey a one-third interest in the patent, of which he was the absolute owner.</p> <p>3. Specific Performance — Partial Failure of Title — Abatement of Price.</p> <p>D. having agreed to convey the whole title to a patent for $20,000, when he was unable to convey but a ono-third interest therein, the purchaser, on electing to take specific performance of such title as D. was enabled to convey, was entitled to an abatement of two-thirds of the price.</p>

<p>Trade-Marks amd Trade-Names — Words Subject to Appropriation — ■ “American.”</p> <p>The “American Wine Company” cannot be exclusively appropriated as a trade-marlr or trade-name, the word “American” being broadly geo- ' graphical, and its use as a name by a second corporation is not an infringement of trade-mark rights of a prior user, nor does it constitute unfair competition unless it is used fraudulently with the intent and the effect of deceiving the public to the injury of the first user.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 13, 82.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>On Motion to Retax Costs.</p>

At L,aw. This case involves the following provisions of law: “Sec. 25.

<p>Petition for Naturalization.</p>

At Law. On demurrer to defendant’s plea in abatement and to the jurisdiction of the court.

<p>1. Principal and Surety — Discharge op ' Surety — Making New and Different Contract.</p> <p>The surety on a contract for the construction of a railroad for a lump sum, which.' contract the principal wholly failed to perform, is discharged from liability by the making of a new contract by the railroad company with another contractor, which, as a whole, differed materially from that on which the surety was bound.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Surety, §§ 162-165.]</p> <p>2. Same.</p> <p>Plaintiff, a railroad company, contracted for the construction of a line of road, and defendant became surety on the contractor’s bond. The con- ’ tract was for a lump sum, and the contractor failed wholly to perform, whereupon plaintiff entered into a contract with another for the construction of the road, which differed from the first, inter alia, in that under the first the road was to be a steam road only, while under the second it was to be equipped for both steam and electricity; the specifications of the two contracts differed materially as well as the time given for completion of the work, and the method and means of payment differed so largely that they could not well bé compared. Meld,, that such differences were material, and their effect'was the same as though they had been introduced into the original contract without defendant’s con- ■ sent, and released him from liability. ■ . .</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Surety, §§ 162-165.]</p> <p>3. Damages!- — Certainty— Evidence — Sufficiency.</p> <p>Evidence of the damages sustained by plaintiff from a breach of contract helé too uncertain to sustain a recovery.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, § 5.]</p>

In Bankruptcy. Application by the Pontiac Buggy Company for an order directing the receiver of the Camden Wagon & Sleigh Company, bankrupt, to deliver certain buggies in his possession and which were in the possession of the bankrupt when the petition was filed, receiver appointed, etc.

<p>At Law. On motion by defendants for judgment notwithstanding the verdict.</p>

<p>At Daw. On mptions by defendants for new trial and for judgment notwithstanding the verdict.</p>

<p>COURTS — FEDERAL COURTS — JURISDICTION—DISTRICT.</p> <p>Interstate Commerce Act, Act Feb. 4, 1887, c. 104, § 1, par. 3, 24 Stat. 379 I'U. S. Comp. St. 1901, p. 3155], provides that all charges made for any service rendered or to be rendered in the transportation of passengers or property shall be reasonable and just, and any unreasonable charge is prohibited and declared to be unlawful. Held, that an action by certain shippers to restrain an interstate carrier from enforcing a reconsignment charge of $5 per car, as unreasonable, though maintainable at common law, was nevertheless a suit within the interstate commerce act, so that federal jurisdiction was not alone dependent on diverse citizenship, and hence couid be brought only in the district of which the defendant was an inhabitant, as provided by Judiciary Act March 3, 1887, c. 373, § 1, 24 Stat. 552, as amended by Act Aug. 13, 1888, c. 866, 25 Stat. 434 [U. S. Comp. St 1901, p. 508].</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 13, Courts, §§ 806-815.</p> <p>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>1. Limitation of Actions — Accrual of Right of Action — Action for Flow-age of Lands.</p> <p>A complaint alleging that defendant built and operated ore reduction works from which large quantities of waste material were discharged into a stream which in times of high water was carried down, obstructed the stream, and caused it to overflow plaintiff’s lands lying on the stream below, and that poisonous matter contained in such material poisoned the soil and destroyed trees and vegetation on such lands, states a cause of action for recurrent flowage which did not accrue on the construction of defendant’s works, but as to any particular injury at the time such injury was sustained.</p> <p>fEd. Note. — For cases in point, see Cent Dig. vol. 33, Limitation of Actions, § 305.]</p> <p>2. Same — Statute Governing — Idaho Statute.</p> <p>Such an action is not one of trespass but on the case, to recover incidental and consequential damages resulting from the unlawful or negligent operation of defendant's works, and is not governed as to limitation by Rev. St. Idaho 1887, § 4054, subd. 2, which limits the time for bringing an action for trespass to three years.</p>

<p>R. Bankeuptov — Conditional Sales — Tkatvseeks to Debtob — Statutes.</p> <p>Sanborn’s Supp. St. Wis. 1906, § 1693c, provides that a voluntary as-signee shall represent the rights and interests of creditors as against all transfers and conveyances of property, and all liens and charges thereon, which would be fraudulent or void as to creditors. Bankr. Act July 1,1898, c. 541, §§ 70, 70e, 30 Stat. 565, 566 [U. S. Comp. St. 1901, pp. 3451, 3452], vests title in the trustee to all property transferred in fraud of creditors, and gives the trustee the right to avoid such transfers; and sections 67a, 67b, 30 Stat. 564 [U. S. Comp. St. 1901, p. 3449], apply to liens created by the debtor. Helé, that neither the state statute nor such sections of the bankrupt act relates to property transferred to the debtor by a conditional sale reserving title until the property is paid for.</p> <p>2. Same — Conditional Sale Contract — Validity—Filing.</p> <p>Rev. St. Wis. 1878, § 2317, provides that no contract for the sale of personal property, by the terms of which the title is to remain in the vendor and the possession thereof ini the vendee until the purchase price is paid, shall be valid as against any other person than the parties thereto or those having notice thereof, unless the contract shall be in writing, subscribed by the parties, and the same or a copy' thereof filed in the office of the clerk of the town, city, or village where the vendee resides; etc. Held, that such section did not invalidate an unfiled conditional contract of sale, as between the parties, so as to entitle the vendee’s trustee in bankruptcy to any greater rights than those possessed by the vendee.</p> <p>3. Sales — Conditional Sale — Statutes—“Personal Property.”</p> <p>The words “personal property” as used in Rev. St. Wis. 1878, § 2317, providing that no contract for the sale of personal property by the term's of which the title is to remain in the vendor and possession in the vendee until the purchase price is paid shall be valid against any other person than the parties, without filing, is not limited to property sold to be used and not resold.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1353.</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5346-5358; vol. 8, p. 7753.]</p> <p>4. Same — Reservation of Title.</p> <p>A contract for the sale of certain merchandise provided that the title should remain in the seller until the price was fully paid in cash, and if payment was not made when due, or if at any time before payment the buyer should become insolvent, or in the opinion of the seller be in danger of insolvency, or the seller in its judgment, for any reason, should deem itself in danger of losing the price of the goods, then the seller at its' option might reclaim and take possession of so much of the goods as then remained in the hands of the buyer unsold, provided that such provision should not affect the liability of the buyer for the payment at the prices agreed for such goods as were not recovered, etc. Held, that such contract was a valid contract of conditional sale, so that the title did not pass to the buyer until payment of the price, as between the parties.</p>

<p>In Tort. On rule to show cause.</p>

<p>Habeas Corpus — Extradition—Mexican Treaty — Detention oe Prisoner to Await Documents.</p> <p>Under the treaty of February 22, 1899, 31 Stat. p. 1825, between Mexico and the United States, providing that on proper notification through the diplomatic channel either country shall cause the arrest of any alleged fugitive criminal from the other, and “keep him in safe custody for such time as may be practicable, not exceeding forty days, to await the production of the documents upon which the claim for extradition is founded,” the prescribed 40 days is the limit of time during which a prisoner so arrested may be detained, unless the documents have been produced.</p> <p>NOTE. — Between the date of filing the above opinion and the date of signing an order discharging the'prisoner, the documents upon which the claim for extradition was founded arrived from Mexico. Immediately upon signing the order of discharge a new complaint was presented to the United States district judge, upon which a new warrant of arrest was issued returnable before the judge. Under this warrant the prisoner was rearrested, a hearing had, a motion to dismiss the proceedings refused, and the prisoner committed for extradition. Thereafter the proceedings were certified to the Secretary of State, pursuant to the provisions of section 5270 of the Revised Statutes, and the prisoner was surrendered to the Mexican authorities.</p>

<p>■*- Bankruptcy — Acts of Bankrupt — Receivership Under State Daws — “Act of Bankruptcy.”</p> <p>Georgia Code 1895, § 2716, provides that in case any corporation, not municipal, shall fail to pay at maturity any one or more matured debts, payment of which has been properly demanded of such debtor and by him refused, and shall be insolvent, a court of equity shall have power under a creditor’s petition to appoint a receiver, etc. Reid,, that where, in proceedings in a state court for the appointment of a receiver for an alleged insolvent corporation, receivers were appointed by consent of both parties, such proceedings constituted an “act of bankruptcy” within Bankrupt Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1907, p. 1024], declaring that acts of bankruptcy by a person shall consist of having a receiver or trustee put in charge of his property under the laws of the state because of insolvency.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, p. 118; vol. 8, p. 7562.]</p> <p>2. Same — Insolvency Daws — Suspension.</p> <p>Georgia Insolvent Traders Act 1880-81 (Ga. Code 1895, § 2716 et seq.), providing for the administration of the assets of an insolvent corporation or trader, etc., was superseded by National Bankruptcy Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St 1901, p. 3418].</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 8.</p> <p>Effect of national bankruptcy act on state insolvency laws and on assignments for benefit of creditors, see note to Carling v. Seymour Dumber Co., 51 C. O. A. 11.]</p> <p>3. Same — Insolvency—Hearing- in Bankruptcy Proceedings.</p> <p>Bankrupt Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], as amended by Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St Supp. 1907, p. 1024], provides that acts of bankruptcy by a person shall consist of his being insolvent and applying for a receiver or trustee for his property, or, because of insolvency, a receiver or trustee has been put in charge of his property under the laws of the state, etc. Reid, that since, in order to obtain a bankruptcy adjudication on an issue of insolvency, insolvency must be shown at the time the petition was filed, an alleged bankrupt corporation was not concluded by proceedings in a state court in which a receiver was appointed for its property, which was claimed to constitute an act of bankruptcy, but was entitled to a hearing in the bankruptcy proceedings on the question of its solvency at the time the bankruptcy petition was filed.</p>

On Petition of Trustee in Bankruptcy for Restoration of Property and for Rule for Contempt. The trustee of W. 10. Thurmond filed a petition for the recovery of certain personal assets of the bankrupt, alleged to be unlawfully in the possession of W. I. Shi, deputy sheriff of the city court of Forsyth, Ga. It was alleged that this property had been taken by the officer of the state court while in custodia legis under the authority of the receiver of the bankruptcy court.

<p>On Information for Forfeiture of Imported Goods. Motion to set aside verdict and for new trial.</p> <p>On June 30, 1907, the claimant in this case, a dressmaker, entered the United States after a trip abroad. Before leaving the steamer she made the usual baggage declaration and entry, omitting, however, any mention of certain model gowns of foreign origin which she had in her possession, and which were valued at more than $100; and, in addition, she denied the possession of such goods, both orally and in the declaration. After they had been discovered in her baggage, they were found to have domestic labels, and she alleged that they were domestic goods which she had herself taken abroad. Subsequently she admitted that they had been bought in Paris, and that she had caused the false labels to be attached. The goods were sent to the public stores for examination and appraisal, and the claimant was permitted to make a lawful entry and to pay the proper duty. They were afterwards seized, and an information for forfeiture was filed. Soon after they were released under bond, pursuant to section 938, Rev. St. [U. S. Comp. St. 1901, p. 090], the pertinent portion of which ,is as follows:</p> <p>“Sec. 938. Upon the prayer of any claimant to the court, that any * * * merchandise, seized and prosecuted under any law respecting the revenue from imports * * * should be delivered to him, the court shall appoint three proper persons to appraise such property. * * * If on the return of the appraisement, the claimant shall execute a bond to the United States for the payment of a sum equal to the sum at which the property prayed to be delivered is appraised, and produce a certificate * * * that the duties * * * have been paid, * * * the court shall, by rule, order such * * * merchandise to be delivered to such claimant.”</p> <p>The seizure and information were based on Customs Administrative Act June 10, 1890, c. 407, § 9, 26 Stat. 135 [U. S. Comp. St. 1901, p. 1895], and section 2802, Rev. St. [U. S. Comp. St. 1901, p. 1873]. The pertinent portions of these laws read as follows:</p> <p>“Sec. 9. That if any * * * person shall make or attempt to make any entry of imported merchandise * * * by means of any false statement, written or verbal, or by means of any false or fraudulent practice or omission whatsoever, such merchandise shall be forfeited.”</p> <p>“Sec. 2802. Whenever any article subject to duty is found in the baggage of any person arriving within the United States, which was not, at the time of making entry of such baggage, mentioned to the collector before whom such entry was made, by the person making entry, such article shall be forfeited.”</p> <p>On trial of the case before a judge and jury October 4, 1907, the court directed a verdict in favor of the government, whereupon counsel for the claimant moved for a new trial. The grounds for this motion were (1) that the declaration made on shipboard was an irregular and improper means of entering merchandise, and was superseded by the formal entry made later, and (2) that the government, by permitting the claimant to make such entry and to pay the duties, waived every right to a subsequent seizure. The following decisions, which were rendered by the Circuit Court of Appeals, Second Circuit, were cited in support of the first point: United States v. One Pearl Necklace, 111 Fed. 164, 49 C. C. A. 287, 56 L. R. A. 130, and One Pearl Chain v. United States, 123 Fed. 371, 374, 59 C. C. A. 499. The government argued that the claimant’s contentions were opposed to the provisions of section 938, quoted above, and cited United States v. Six Packages, 6 Wheat. 520, 5 I/. Ed. 321; United States v. One Pearl Necklace, 111 Fed. 164, 169, 49 C. C. A. 287, 56 Zi. R. A. 130; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987; United States v. Boyd (C. C.) 24 Fed. 690; United States v. Gray (D. C.) 107 Fed. 104; United States v. Cargo of Sugar, 3 Sawy. 46, 25 Fed. Cas. 288; United States v. Segars, 3 Phil. 517, 522, 27 Fed. Cas. 1015; and Hoyt v. United States, 10 How. 137, 13 L. Ed. 348, 576. The matter was submitted on briefs without oral argument.</p>

At Daw. Action for damages. On demurrer to declarations. This suit was brought by the plaintiff against the defendants to recover damages for certain injuries alleged to have been received by the plaintiff while endeavoring to alight from a moving train of the defendant companies, as it was slowing down preparatory to stopping at the station in Atlanta.

In Equity. Upon motion of Evelyn Bird et al. to consolidate the suit of the American Trust & Savings Bank against the People’s Gas & Electric Light Company et al, with the suit of Evelyn Bird et al. against the People’s Gas & Electric Light Company et al., and upon the motion of the American Trust & Savings Bank et al. to consolidate the latter suit with, the former; also the motion of the American' Trust & Savings Bank et al. for the appointment of a receiver or the…

<p>On Motion for Eeave to File Petition for Naturalization.</p>

<p>1. Equity — Bin,—Exceptions—Impeet£nkkce.</p> <p>Where a bill and answer are in the files, it is not proper practice on exceptions to the answer for impertinence for complainant to restate the allegations of the answer, and then add “in all which particulars plaintiff excepts to said answer” as impertinent, and insists that the allegations should' be expunged, but the particular matters excepted to should be stated in Hie exceptions as required by Equity Rules 27, 61.</p> <p>2. Same.</p> <p>Exceptions to an answer must lie definite and exact, and cannot be founded on general objections to an answer, part of which is clearly good.</p> <p>(Ed. Note. — Por cases in point, see Cent. Dig. vol. 19, Equity, § 527.]</p> <p>3.. Same — “Impertinence.”</p> <p>“Impertinence” in a pleading in equity consists in the introduction of any matter into the pleading which is- not properly before the court for ■' decision at the particular stage of the suit.</p> <p>[Ed. Note. — For cases in point, seé Cent. Dig. vol. 19, Equity, § 434.</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3423.]</p> <p>4j Same — Exception—Demurrer.</p> <p>An exception for impertinence is not equivalent to a general demurrer.</p> <p>, [Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 521- : . ; 525.] ■</p> <p>■5.'Same — HEARING on Pleadings.</p> <p>‘ ’ Where complainant in equity desires to rest his case on the allegations of the answer, the matter should be set down for hearing on the bill and answer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol, 19, Equity, §§ 710-712.]</p> <p>6. CORPORATIONS — TRANSFER OF STOCK — PLEDGES—ACCOUNTING—LACHES.</p> <p>Complainant delivered certain stock to defendant to secure a guaranty of certain indebtedness which defendant was afterwards required to pay, whereupon, about December 10, 1904, defendant appropriated-the stock, and claimed the same as his absolute property. Complainant filed a bill October 2, 1907, for an accounting, claiming that the transaction constituted a pledge, and not a conditional sale. Held, that, in the absence of anything to explain complainant’s delay, complainant on the face of the pleadings was guilty of laches.</p>

<p>In Equity. On exceptions to answer.</p>

<p>At Law. On motions by plaintiff for new trial and for judgment notwithstanding the verdict.</p>

<p>In Admiralty.</p> <p>On the final hearing of this action in admiralty, brought to recover for damage to cargo laden upon the steamship, it appeared that the injury arose from one of the causes excepted in the bill of lading. Libelant having rested, claimant moved to dismiss on the ground that libelant had not affirmatively shown that the injury was caused by the ship’s negligence. This motion was denied t at the close of the court’s morning session. At the opening of court in the afternoon claimant rested without offering evidence; and thereupon the cause was. fully argued by counsel. At the close of argument, libelant moved for leave to introduce in evidence on his own behalf certain depositions de bene esse taken by the claimant five months before the trial.</p>

In Equity. Bills by the Guaranty Trust Company of New York against the Chicago Union Traction Company and others against the North Chicago Street Railroad Company and others and against the West Chicago Street Railroad Company and others.

• Appeals from the Circuit Court of the United States for the Northern District of Illinois. Held: negotiated or sold by said Chicago Railways Company or in accordance with the provisions of said section 7 of said ordinance, a lien in accordance with the provisions of said ordinance shall exist upon all of the said property constituting the said system of street railways embraced in said lease in favor of the said Chicago Railways…

<p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p> <p>This is an action in which the plaintiff, Delk, sought to recover damages for a personal injury suffered by him, as he alleges, in consequence of the negligence of the railroad company in failing to. provide that protection for his safety which the law requires, while he was engaged in coupling freight cars in Its yard at Memphis. At the trial he obtained a verdict, and judgment was entered in his favor. The cause was brought here on writ of error ; and upon the suggestion of the Interstate Commerce Commission that the-Safety Appliance Act of March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], was involved, and upon its request, and the assent of the defendant in error, this court permitted special counsel for the government to-participate in the argument at the hearing and be heard upon the question of the construction and application of the act. This is the principal question in the case, and is the one upon which the judgment of the court is turned. The-statement of the facts made by the special counsel in his brief is, with some-slight additions, adopted as correct, and is this:</p> <p>“The car alleged to be defective was what is known as K. C., F. S. & M. No. 21,696. The car was loaded with lumber consigned from Giles, Ark., to Memphis, Tenn. The ear arrived in Memphis September 28, 1906, at 4:30 p. m., and was delivered by the plaintiff in error to the Union Railway Company of Memphis, commonly called ‘The Belt Line,’ October 2d, for delivery to the-consignee. The car was returned to the plaintiff in error by the Union Railway Company of Memphis, October 3d, at 7:30 a. m., on account of there being a defect in the coupling and uncoupling appliance on one end of the car. The-car was in a string of nine cars on what is known as the ‘dead track’ in defendant’s new yard. This dead track was a team track; that is, the track was so arranged that teams might load from or into the ear into or from, wagons hauled alongside the car.</p> <p>“On the morning of October 4, 1906, defendant in error, acting under instructions of the plaintiff in error, undertook to switch certain' cars out of the string of nine cars so as to get two empty cars and three coal cars for removal to some other portion of the defendant’s line. The ears were on a track extending in the general direction of east and west, the engine being on the western end of the nine cars. The nine cars were drawn off this team track onto the lead track. The easternmost two cars, being empties, were left on the lead track. The remaining seven cars- were then pushed back on the team track. The easternmost two cars of the seven cars, loaded with brick, were left on the team track. The remaining five cars were again drawn onto the lead track, and three cars loaded with coal were left thereon. The engine, with the remaining two cars, again went upon the team track, and defendant in error undertook to couple the eastern end of the two ears attached to the engine to the western end of the two cars just left on the team track, but, owing to a defect in the coupler on the eastern end of the two cars attached to the engine, the coupling could not be made without a man going between the ends of the cars. The defect on car K. C., F. S. & M. No. 21,696 was this: The chain connecting the uncoupling lever to the lock pin or lock block was disconnected, owing to a break in the lock pin or lock block. The drawbar also had a lateral motion of four inches. Defendant in error undertook to hold the drawbar away with his foot from the side upon which he stood, so that the two couplers would couple by impact. In so doing, his foot was- badly injured. Plaintiff in error had what is known as a car inspector or light repair man in the new yard. It was his duty to make repairs of the kind necessary on this car whenever found by him. When the car was returned by the Belt Railway on account of the defect in the coupler, plaintiff in-error’s inspector placed a red card about three inches by six inches upon the car, and with a blue pencil wrote on said card, ‘Out of order.’ This card is what is commonly known as a ‘bad order’ card. The car had been on this-team track from 7:30 a. m., on the 3d until 10 or 11 o’clock on the 4th, when the accident to defendant in error occurred.</p> <p>“There was evidence tending to show that -the inspection1 was made in the latter part of the 3d, and that the inspector thereupon ordered an employs to go to the repair shops which were some two and a half miles distant and get the material for repairing the coupler, but that the employé did not return until after the accident. The trial court held that the safety appliance act applied to the car with the defective coupler, and that by virtue of section 8 of said act plaintiff in error was denied the defense of assumption of risk on. the part of defendant in error, and stated the language of the act to the jury.”</p>

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

<p>Appeal from the Circuit Court of the United States for the Southern Division of the Western District of Michigan.</p> <p>This bill was filed by Charles F. Buggies against Edward Buckley et al., to wind up an alleged partnership business between the complainant, Buggies, and the defendant Buckley. Prior to 1875, and for many years thereafter, both Buggies and Buckley (hereinafter called complainant and defendant, respectively) resided in Manistee, Mich. The complainant was a successful business man at the date mentioned, dealing principally in buying and selling timber lands. The defendant, who was a hardware, dealer, liad failed in business and was a bankrupt.- These parties were brothers-in-law. the defendant’s wife being complainant’s sister. In 1875 they entered into a business relation wherein the defendant was to render1 certain services in the timber land business of the complainant, and the latter was to furnish the capital and to manage the business. The complainant was to be paid out •of the business, as a preferred profit, 10 per cent, interest annually on the money he advanced, and the defendant was to withdraw $1,200 per annum from the business, and pay 10 per cent, interest annually thereon. Complainant was to have two-thirds and defendant one-third of any profits of the business that remained. In 1878 they also engaged in the lumber manufacturing business, to which the defendant principally gave his attention, while the complainant exercised a general management of all the business, including the lumber business. In 1880 they decided to interest in this business a Mr. Douglas, who was a logger, and the firm of Buckley & Douglas was formed, in which Buckley was to have three-fourths of the profits, and Douglas one-fourth. From 1875 down to, and including, 1880, the business transacted by complainant and defendant was entered on the books of the complainant, used by him prior to 1875. To distinguish Buggies’ former business from this joint business, the latter was designated new business. No firm name as between the complainant and the defendant was ever adopted. Their business relation was not made public. The profits of the business down to, and including, 1880 were divided in the proportion as before stated. Soon after the firm of Buckley & Douglas was formed, the open accounts of the business of complainant and defendant from 1875 down to that time were transferred from Rug-gles’ books to new books labeled “Edward Buckley,” on which thereafter the business of Buckley & Douglas was also entered. At the time the firm' of Buckley & Douglas was formed, complainant and defendant agreed to divide the net profits of their business thereafter equally. In 1887, in order to reach a large body of timber, the Manistee & North Eastern Railroad Company was organized, and a railroad 18 miles long was constructed, known as the Manistee & North Eastern Railroad, at a cost of more than $65,000, which’ was largely furnished by complainant. Buckley took three-fourths and Douglas one-fourth of the stock of this railroad company, of which the defendant was president, complainant vice president, and Douglas secretary. The road has been extended until now it is more than 100 miles, long. In 1892, the firm of Buckley & Douglas was incorporated under the name of “The Buckley & Douglas Lumber Company.” Buckley took three-fourths and Douglas one-fourth of its stock. Down to this time, 1892, the complainant had furnished practically all the money that had been used by Buckley in these enterprises, and had been constantly consulted and advised with about the conduct and management of these different businesses, and largely controlled them. In, September, 1891, complainant left Manistee on account of certain troubles wholly unconnected with his business, and remained away until 1900 at which time he returned to Manistee. Until just prior to complainant’s return to Manistee, his personal relations with the defendant had been of a most cordial and confidential character. During the latter part of complainant’s absence from Manistee, he became dissatisfied with defendant’s conduct in relation to their joint business, which culminated in the filing of the bill in this case in August, 1900. .During his absence he was often visited by defendant and their business affairs were discussed, and he continued to participate in directing and managing the business. On October 2, 1891, while complainant was sojourning in Canada, he transferred and delivered all of his property and holdings to the defendant. These transfers were made to cover complainant’s property, in consequence of his troubles at Manistee, and the property was afterwards retransferred to complainant. On April 22, 1893, at Clifton, Canada, complainant and defendant entered into a written agreement, which is known in the record as the “Clifton Agreement.” It is in the following words and figures, to wit:</p> <p>“That the business and property represented by and in the books labeled Charles F. Ruggles, is and always was the property of Charles F. Ruggles, individually.</p> <p>“That the business and property represented by and in the books labeled Edward Buckley, and also the books labeled Minnesota Land business, is the property of said Buckley and Ruggles, jointly, each owning one undivided half interest.</p> <p>“That the three-quarter interest of Edward Buckley in the business and property represented in and by the books of Buckley and Ruggles, and the Buckley & Douglas Lumber Co., and the Manistee & North Eastern R. R. Co., belongs to and is the property of said Buckley and Ruggles jointly, each owning one undivided half.</p> <p>“That upon the commencement of the business represented in all the books above mentioned — excepting the books labeled Charles F. Ruggles — it was agreed by and between the parties hereto, that the time of Edward Buckley and his whole and undivided attention should be used in attending to and promoting all the business above referred to, and protecting and caring for the property above represented, regardless of to whom it belonged, including the individual property of Charles F. Ruggles, and that said Buckley was and is to make no charge for his time and services. Further, that said Buckley was to keep the whole of said Ruggles’ money invested in the above business, and to allow interest at the rate of 10 per cent, per annum, payable annually the 31st day of, December of each and every year, on the money of said Ruggles, so invested, and on the dáily balance of said Ruggles, both in his own (Rug-glos’ books) and all the other books, until said money, together with interest thereon, was fully returned to said Ruggles, after which one half of the surplus and profits should go to said Buggies, and the other half to said Buckley, in full for his services, time and profits, for managing the whole business, including the private business of said Buggies, in which said private business said Buckley is at no time to have any interest in or any profit from.”</p> <p>Defendant’s wife, who was complainant’s only sister, died, and in March, 1894, he married the second time. In June, 1894, defendant executed a last will and testament in which complainant was made the residuary legatee. After deducting the special bequests provided for therein, there was left for the residuary legatee, property about equal in value to complainant’s interest in the business, as is shown by an inventory of the joint business of December 31, 1893, and also as is shown by the Clifton agreement of 1893. A copy of this will defendant sent to complainant. The Clifton agreement contains several clauses, setting out the business relation between complainant and defendant, and the interest each had in the business. On February 3, 1896, in Chicago, Ill., a second written agreement was entered into between complainant and defendant, in which was incorporated the Clifton agreement, and the same reaffirmed. In the Chicago agreement it is agreed that the amount due complainant on December 31, .1895, from the business on account of the capital and advances he had invested in. said business, including interest thereon, is the sum of $881,525.05. It is further agreed that the amount due from defendant to said business on December 31, 1895, for money withdrawn by him from the business, including interest thereon, over and above the amount of capital and advances made by him to said business, is the sum of $226,253.72, and that of this amount, $77,412.79 was drawn by the defendant in excess of the amount that he should have drawn. On this last amount, defendant was to pay additional interest at the rate of 5 per cent, per annum. The remainder of this last agreement refers to questions of interest and application of payment, and the securing of certain indebtedness, not necessary to mention here. It was evidently intended as a starting point from which to begin to bring the business to a close.</p> <p>The defendant does not deny the execution of either the Clifton or the Chicago agreements, but insists that they are not true, and do not correctly state the relation between him and the complainant. The bill alleges that they are and have been partners since 1875, the answer admits that they were partners from 1875 down to 1880, but denies they were partners after 1880, except in the buying and selling of timber land, and sets up that since that date complainant has had no interest in the lumber or railroad business, and that the money advanced by complainant to him was a loan to him, and that for such money the relation between himself and complainant is that of debtor and creditor. The bill prays that the partnership existing between them be dissolved, and the business wound up, and for that purpose that a receiver be appointed to take charge of all the partnership property, that the case be referred to a special master for an accounting between the complainant and defendant, and for general relief.</p> <p>An interlocutory decree was pronounced in the case on, December 12, 1903. Therein it was decreed: (1) That complainant and defendant were partners. (2) That said partnership be dissolved. (3) That the cause be referred to a special master for an accounting with reference to said partnership, with full directions for taking and stating the account. (4) That Jno. Patton be appointed receiver of all the property and assets of the partnership (with certain exceptions). (5) That a preliminary injunction as prayed for in the bill be granted.</p> <p>The case was finally heard upon its merits on March 15, 1906, and the decree of March 12, 1903, approved, except as to one or two matters relating to the question of interest. The special master was spared a vast deal of labor by the parties agreeing in writing as to the condition of the account between them, assuming that the court below was correct in holding that they were partners. It was, however, expressly provided in this agreement that nothing in the language or terms used therein should be construed as an admission, by the defendant of the existence of a partnership between Chas. F. Buggies and Edward Buckley, nor of the validity or effectiveness of the contracts of 1893 and 1896.</p> <p>, The complainant and the defendant Buckley excepted to the decree of the Circuit Court, assigned errors, and haye appealed.</p>

of the United States for the Southern District of New York. Writ of error to review a judgment entered upon the verdict of a jury in favor of the deféndant, in an action brought by plaintiff to recover damages resulting from the death of her husband, Frank W. Wyman, while in the defendant’s employ as a brakeman.

<p>1. Master and Servant — Duty oe Master — Safe Place to Work.</p> <p>The duty of a master to provide' a safe place for the servant to work does not extend to a place made dangerous by the very work in which the workmen are engaged, whether by its inherent character, or resulting from negligent performance by the workmen or those who stand in law in the relation of fellow servants to them.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 171-174, 179, 205, 209.]</p> <p>2. Same — Injury to Servant — Negligence of Fellow Servants.</p> <p>Plaintiff’s decedent, while in the employ of defendant and engaged in digging a pit in a building, was killed by the falling of a pile of iron plates which had been stacked near the side of the pit and by their weight caused the earth to cave in. Defendant was a contractor engaged in making repairs in a manufacturing plant, the floor of which was covered with iron plates. It became necessary to make a pit under the floor, and the plates were taken up by deceased or his fellow workmen and piled in the place from which they afterward fell. Held, that the place being safe when the workmen were placed there to work, the negligence, if any, in piling the plates too near where the excavation was to be made was not that of defendant, it not being shown that it directed such piling, nor was it under duty to warn the decedent of the danger, which was as obvious to him as to any one.</p> <p>[Ed Note. — Por cases in point, see Cent Dig. vol. 34, Master and Servant, §§ 310-316%.]</p>

. ’' In describing the property in dispute, the judge at circuit stated that it consisted of bristles in small bunches, with a string tied around the ends of' each bunch to hold them together; that in these bunches the butt ends and the flag ends are not mixed indiscriminately, but substantially all the butt ends lie together; and that they are in a partial state of preparation for the brush-maker.

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

This cause comes here upon appeal from a decision affirming a decision of a board of three General Appraisers, G. A. 6,069 (T. D. 26,477), which sustained the action of the collector of the port of New York in classification for duty of certain imports under the tariff act of 1897.

<p>1. Customs Duties — Forfeiture—Fraudulent Invoice — Guilty Scienter of Eorfeitob.</p> <p>Customs Administrative Act June 10, 1890, c. 407, § 9, 26 Stat. 135 [U. S. Comp: St. 1901, ,p. 1895], provides for the forfeiture of imported merchandise when entered “by means of any fraudulent or false invoice, * * *. false statement, * * * or false or fraudulent practice or appliance.’' ■ Held th¿t, to 'incur this penalty, there must be a guilty scienter and' intent on the part of the forfeitor, and that where entry was made on an invoice falsely made out by the foreign shipper, but there was an entire absence of fraudulent intent on the part of those concerned in making the entry, there could be ho forfeiture, though the shipper had a financial. interest in defrauding the revenue.</p> <p>2, Same — Construction.</p> <p>Under Customs ¡Administrative Act June 10, 1890, e. 407, § 9, 26 Stat. 135 [U:. S. Comp.‘St. 1901, p,.-1(595], which.defines various offenses against -the customs revenue,' and prescribes two penalties — forfeiture of the goods in question, and criminal conviction of the offender — the same guilty intent must be shown for the former penalty as for the latter.</p>

This cause comes here on appeal from a decision of the Circuit Court, Southern District of New York, sustaining a decision of the Board of General Appraisers which affirmed the action of the collector of the port of New York in classifying certain imported merchandise for duty under the tariff act of 1897.

<p>T. Patents — Infringement—Oil Burners.</p> <p>The Jeayons patent No. 475,401, for an oil burner, claim 1, was not anticipated, and, construed in the light of the specification and drawings ' ■ is valid for the apparatus therein described, the essential feature of which is “a vapor holder constructed for the free and. uniform distribution of the vapor therein by gravity,” the dominating idea of the invention being ' • to vaporize the liquid used on its entrance into the vapor holder by the heat of the metal, and to cause the vapor to flow around the burner in a trough by gravity. The invention is not a pioneer one, however, and the patent must be limited in construction to substantially the means described. As so construed, it is not infringed by a burner in which the trough contains a circular flat asbestos wick standing vertically which carries up the oil from the trough; vaporization and combustion, in part, taking place at its upper edge.</p> <p>2. Same — Construction of Claims — Limitation by Proceedings in Patent Office.</p> <p>An applicant for a patent, who trims away, modifies, and otherwise defines his specification and claims to meet references made by the Patent Office, must be deemed to have surrendered and disclaimed what he conceded, and to have imposed such definitions upon the language of the patent as he attributed to it in order to secure the grant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 244.]</p> <p>3. Trial — Number or Witnesses — Testimony of Experts in Patent Causes.</p> <p>The practice of introducing a large number of expert witnesses in patent causes is not to be commended, one competent witness on each side being usually sufficient to insure a full and fair elucidation of what is recondite in the case. .The province of such witnesses is to instruct, and not to decide questions in issue, nor to advocate the cause of the party Who calls them.</p>

<p>Patents — Invention and Infringement — Fastening Means for Core-Plates.</p> <p>The Nolan patent, No. 582,481, for fastening means for core-plates of electrical machines, claims 2 and 4, disclose invention, and are valid. Also MM infringed.</p>

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

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

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

<p>1. Courts — Federal Courts — Following Decisions op State Courts.</p> <p>The rule established by .decision of the courts of New Jersey that an engrossed act of the Legislature duly approved, signed, and filed is conclusive evidence of its contents, and cannot be contradicted by any evidence whatever, is one relating to the construction of the state statutes and is binding on the federal courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 957.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. O. A. 478; Union & Planters’ Bank v. • City of Memphis, 49 C. C. A. 468.]</p> <p>2. Forgery — Subjects op Forgery — '“Character”—Corporate Seal.</p> <p>The seal of a corporation is a “character” within the meaning of section 197 of the New Jersey crimes act (P. L. 1898, p. 848), and the forgery of such seal with intent to injure any person or corporation constitutes a crime thereunder.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Forgery, § 18.]</p> <p>3. Indictment — Demurrer—Grounds.</p> <p>Under the practice of the federal courts, the defense of limitation cannot be raised by demurrer to an indictment.</p> <p>4. Criminal Law — Limitation op Prosecution — Federal Statute — Adoption op State Law.</p> <p>Act July 7, 1898, c. 576, § 2, 30 Stat. 717 [U. S. Comp. St. 1901, p. 3652], providing that when any offense is committed in any place, jurisdiction over which has been retained by, or ceded to, the United States the punishment for which is not provided for by any law of the United States, the offender shall receive the same punishment as the laws of the state provide for the like offense, does not incorporate into the federal law the general statute of limitations of the state relating to crimes, but a prosecution thereunder is governed as to limitation by the federal statute.</p> <p>[Ed. Note. — State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>5. Same — Federal Jurisdiction — Crime Committed in Post Oppioe Building.</p> <p>Under such statute a federal court has jurisdiction to prosecute and punish for a crime denounced by the state law committed in a post office building owned and occupied by the United States within a state over which legislative jurisdiction has been ceded by the state.</p> <p>[Ed. Note. — Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 O. O. A. 513.]</p> <p>6. Forgery — Indictment—Sufficiency.</p> <p>An indictment under section 197 of the New Jersey crimes act (P. L. 1898, p. 848), making it an offense to forge any instrument, etc., or any character, with intent to injure any person or corporation, which charges the forgery of a character meant to represent the seal of a corporation with intent to injure the corporation, is not insufficient because it fails to allege facts showing in what manner the corporation could have been injured thereby.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Forgery, § 78.J</p>

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

<p>1. Witnesses — Oeoss - Examination — Evidence.</p> <p>Where, in an action against a railroad company for the alleged destruction of plaintiff’s mill by fire from sparks, plaintiff sought to establish by a process of exclusion that there was no possible way by which the fire could have been communicated except from a spark negligently emitted from a passing engine, and nearly all of plaintiff’s employés testified that smoking was not permitted in the building, and that none of them smoked in violation of the order, defendant was entitled to show on cross-examination of a witness interested in plaintiff company that there had been a fire in the building within a year prior to its destruction, which was reported to witness as having been caused by a lighted cigarette, in order to show that plaintiff’s rule against smoking was not observed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 60, Witnesses, §§ 931-936.]</p> <p>2. Evidence — Experts—Questions Calling for Opinion.</p> <p>In an action against a railroad company for the destruction of plaintiff’s mill by fire from sparks, a question “how far would a spark on a windy day going through the mesh of the size used by the railroad company carry and be capable of setting fire to paper or other objects of that character” was objectionable for failure to embody the conditions existing at the time of the fire.</p> <p>3. Railroads — Fires—Evidence.</p> <p>In an action for damages from fire alleged to have been set by sparks from defendant’s engines, evidence of a witness that engineers sometimes punch holes in the spark arresters to make the engine steam better was inadmissible, there being no evidence that such practice existed on defendant’s road.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 1718.]</p> <p>4. Witnesses — Competency—Knowledge.</p> <p>Where a witness had only been on two of the engines of defendant company for a short time, he was incompetent to testify as to the practice of defendant’s engineers with reference to punching holes in spark ar-resters to make their engines steam better.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 80, 81.]</p> <p>5. Railroads — Fires—Evidence.</p> <p>Where plaintiff proved that a number of defendant’s engines had passed plaintiff’s mill between certain hours on the morning the mill was burned, as the alleged result of sparks thrown from such engines, it was proper for defendant to identify the engines passing at that time and show that the spark arresters on each were of the most approved kind, and in good condition at the time.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 1727.]</p> <p>6. Evidence — Train Sheets.</p> <p>A train dispatcher’s train sheet, though made up from telegraphic information received from operators along his division, was admissible to identify trains passing plaintiff’s mill during a specified period of time, in an action for destruction of the mill by fire from sparks alleged to have- been emitted from defendant’s engines.</p> <p>7. Railroadsi — Fires—Action—Instructions.</p> <p>An instruction that, in ascertaining the cause of the fire, the jury might, under the evidence that sparks may be emitted from locomotives without negligence, consider the evidence of the way in which plaintiff used its property, and peculiarly the evidence of a cellar door being open Just prior to the fire, and the existence of waste in and about a bin and baling press near the door at the point where the fire was claimed to have been started,, was properly given, because, if the railroad company was not negligent, it was proper for the jury to consider the condition of the property burned to ascertain whether it was not possible for it to have been ignited by an accidental spark from a locomotive having proper spark arresters.</p>

<p>On Petition of Chicago Railways Company.</p>

<p>At Raw. On motion by defendant for judgment on reserved point notwithstanding the verdict.</p>

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

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

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

<p>Appeal from the 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 Texas.</p>

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

<p>Appeal from the Circuit Court of the United States for the District of Maryland, at Baltimore.</p>

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

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

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

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

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

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

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>There was no opinion below in the Austin Case.</p>

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

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

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

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

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