Volume 159 — Federal Reporter

Willie C. Bacon, plaintiff in error, brought this action against the Pullman Company, defendant in the court below, claiming $50,000 damages for the loss of certain toilet articles and pieces of jewelry and the hand bag which contained them, the same alleged to have been lost by the negligence of the defendant, or by the theft of its porter, while plaintiff was an occupant of a, stateroom on one of the defendant’s sleeping ears as a passenger between Cincinnati, Ohio1, and…

<p>In Frror to the Circuit Court of the United States for the District of Kansas.</p>

<p>1. Salvase — Nature of Services — “Salvage Service.”</p> <p>The rescue of a vessel already on fire, tied to a burning dock, an immense warehouse, filled with merchandise, giving out such heat as to drive men from decks of ships tied alongside, was a salvage service of a high order.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Salvage, §§ 18-20.</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6316-6318.]</p> <p>2. Same — Value of Services.</p> <p>The Indian, a steam vessel with a gross measurement of 9,191 tons, 4 boilers, twin screws, and triple expansion engines, and a valuable cargo, was set on fire from a burning wharf and large warehouse, to which she was tied. Though the pumps were immediately started and water thrown over the decks and the woodwork within range of the flames, the fire extended rapidly until the woodwork and other inflammable materials on all the after part of the vessel took fire, and as fast as extinguished in one place would break out again. The heat was intense, preventing effectual work whereupon two tugs, one of 569 tons, with an indicated horse power of 2,500, and equipped with pumps of great capacity, and the other of 150 tons, with an indicated horse power of 875, and equipped with good pumping machinery, came to the Indian’s relief, and, after some delay owing to the position of another vessel, succeeded in pulling the Indian away from the burning wharf, when she was burning fiercely from the stern to the main bridge. After some pumping by the heavier tug, her hose was carried by her master and a number of his crew up to and upon the after deck, where they rendered valuable assistance in keeping down the fire and assuaging the heat. Both tugs acted in concert, and succeeded in extinguishing the flames, after which the appraised value of the Indian and her cargo was fixed at $463,229.17. Held, that a salvage allowance of $5,000 to the larger tug, and $2,500 to the smaller one, was inadequate in so far as the larger tug was concerned, and that the award as to it should be increased to $7,500.</p> <p>[Ed. Note. — Awards in federal courts, see note to The Lamington, 30 C. O. A. 280.]</p> <p>3. Same — Voluntary Services.</p> <p>Where the master of a burning vessel was in command, and refused to accept the services of certain voluntary salvors, and ordered them off as soon as he learned of their presence and offered assistance, the fire being then under control of two efficient tugs, such voluntary salvors were not entitled to an allowance for services rendered'.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Salvage, § 28.]</p> <p>4. Appeal — Costs—Review.</p> <p>A decree in the exercise of discretion, declaring that each party should pay his own costs, cannot in general be made the subject of appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 823-825.]</p> <p>5. Salvage — Allowance—Division.</p> <p>Where a tug and crew were entitled to $7,500 for salvage services the amount was distributable — $4,500 to the owner of the tug, and $3,000 to the crew.</p>

<p>1. Trial — Reception of Evidence — Effect of Verdict on Ruling.</p> <p>The action of a court in admitting or rejecting testimony must be viewed from the standpoint 'of the time when the testimony was offered, and not from that of the verdict, and in an action on the case in the nature of conspiracy against two defendants, in which the gist of the action was the tort, and not the conspiracy, and the acts charged were such that they might have been committed by both or either defendant, so that a judgment against both or either was permissible, evidence that was competent and admissible on the question of conspiracy in the trial of both defendants could not become Incompetent or inadmissible by reason of a verdict against one alone.</p> <p>On Rehearing.</p> <p>2. Fraud — Representations Made to Agent — Liability to Principal.</p> <p>Where, in a transaction involving an exchange of real estate between plaintiff and defendant, plaintiff was represented by an attorney, who personally conducted all the negotiations in her behalf, his knowledge and opportunity to investigate matters of title and statements made by defendant were in law those of plaintiff, and defendant is not liable for fraud and deceit, in the absence of conspiracy between him and the attorney, unless the latter could have recovered on the same ground if ho had been the principal.</p>

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

<p>1. Master and Servant — Injury to Servant — Negligence—Contributory Negligence — Sufficient Evidence fob Jury.</p> <p>Three freight cars had been placed by an engineer on a passing track opposite a platform at a station to be partially unloaded there. There was a public road crossing east of them, and east of this crossing was the forward part of the train which consisted of about 20 freight cars. The engineer was upon the ground by the side of his engine which stood upon the main track near the three cars. The conductor there told the engineer to go up when he got ready, and couple up and back down. The engineer testified that after he climbed into his cab the conductor said to him, “John, I will make the coupling at the crossing when you get ready to back up.” A workman who stood by testified that the conductor said to the engineer at that time, “Look out for us, we may not be done working in the car,” and there was no other testimony to this saying. The hind brakeman was then in the car unloading it. The conductor went to work in one of the three cars to aid the hind brakeman to unload them. The engineer took his engine to the east end of the passing track, coupled it up to the forward end of the train, and without farther signal backed it into the three cars, threw the conductor out of one of them by the impact, and he was killed by the fall. The engineer could not see the three cars or the rear of his train after he 'coupled his engine to it, and he testified that he did not know that the conductor was in one of the cars, and that he relied on the conductor’s statement that he would make the coupling. •</p> <p>Held, there was substantial evidence of the negligence of the engineer, the evidence that the conductor was guilty of contributory negligence was not clear, and these issues were rightly submitted to the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1034, 1051-1067, 1089-1132.]</p> <p>2. Negligence — True Test of Doubtful Act Care Persons of Ordinary Prudence Use under Same Circumstances.</p> <p>An act or omission may be in itself clearly negligent or clearly free of negligence.</p> <p>If its character is doubtful, the test of actionable negligence is the degree of care which persons of ordinary intelligence and prudence commonly exercise in the same circumstances. If the care exercised in such a case rises to or above that standard there is no actionable negligence, if it falls below that standard there is.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 37, Negligence, § 6.]</p> <p>3. Same — Evidence of Ordinary Practice of Reasonable Men in Same Circumstances Generally Competent.</p> <p>In such a case the evidence of the ordinary practice and of the usual custom, if any, of ordinarily prudent and intelligent persons in the performance under the same or like circumstances of the same or like acts is ordinarily competent upon the issue of negligence in the performance or omission of an act.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, § 238.]</p> <p>4. Master and Servant — Evidence of Ordinary Practice Competent Though It Fails to Establish Uniform Custom.</p> <p>There was substantial evidence that the ordinary practice and the general custom of operators op defendant’s railroad was not to move trains, or parts of trains, on verbal orders of conductors without hand signals, but this evidence was not undisputed. There was substantial evidence that it was the common practice of the crew of the train on which the injury was inflicted to move it, and parts of it, on verbal orders of the conductor without hand signals, but this evidence was not without contradiction.</p> <p>Held, a motion to strike out the evidence of the ordinary practice and general custom upon the railroad was properly denied, and a request to instruct the jury that they should disregard that evidence, and that the undisputed evidence was that the common practice of the crew on the train on which the injury was indicted was to move it, and the parts of it, upon the verbal orders of the conductor, was rightly refused, because the latter evidence was disputed, and because the evidence of the ordinary practice of the operators on the railroad was competent and material even if it failed to establish a uniform custom.</p> <p>5. Appeal and Erbor — Pages of Bill of Exceptions in Transcript of Record Where Rulings Challenged Appear, Must be Specified in the Brief.</p> <p>Where counsel do not consider errors assigned of sufficient importance to point out in their brief the pages in the bill of exceptions in the printed transcript of the record, where the rulings of the court challenged with the objections and exceptions to them may be found, the court will not ordinarily deem them of sufficient materiality to search through the record. find, and discuss them.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3095]</p> <p>(Syllabus by the Court.)</p>

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

This cause comes here upon appeal from a judgment entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was upon a policy of life insurance issued to one Charles William Edwards, who died July 2, 1903, of carcinoma of the lung.

Keliler an involuntary bankrupt and dismissing an answer, and an amended answer, filed by H. Franklin Schlegel, committee of said Keliler, alleging that he had been adjudged insane by the court of common pleas of Schuylkill county, Pa. The said answers were dismissed on the ground that they stated no facts which constituted a defense to the petition of tlie petitioning creditors. The opinion of the District Judge is reported in 153 Fed. 235.

This suit was brought January 18, 1907. by Pedro M. Anuondariz, Email L. Beck, George A. Hill, George II.

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

<p>1. Appeal — Decisions Reviewable — Question oe Costs.</p> <p>Where, in a suit for the dissolution of a partnership and an accounting, appellant assailed only those parts of the decree which directed the items for pay roll expended by the receiver, and the receiver’s compensation to be taxed as costs and included in a personal judgment against appellant, the record presented the reviewable inquiry whether such items were taxable costs as'between the parties, and was not objectionable under the rule that an appeal involving a mere matter of costs will not lie.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 823-839.]</p> <p>2. Receivers — Erroneous Appointment-HSxpenses — Payment.</p> <p>Where the appointment of a receiver is determined to be void, or when the fund proves insufficient, the court in the exercise of its equity powers may compel the party who procured the receiver to be appointed to pay into court a sum sufficient to meet the expenses of the receivership.</p> <p>3. Paktneksii tt — Accounting—Costs.</p> <p>Tlie discretion of a court of equity in a suit for a partnership accounting in which a receiver was appointed did not authorize an order requiring the defendant and the sureties on his cost bond to pay to complainant, under the name of costs, items paid from partnership assets Cor services and expenses in administering the fund, nor any other items not within the fee-bill act ¡Jtev. St. §§ 823, 983], providing what shall be included as costs in and form a portion of a judgment or decree against the losing party.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 38, Partnership, $ 820.]</p> <p>4. Same--Fuatjd.</p> <p>Where a bill for a partnership accounting charged defendant with fraud and misconduct, defendant was answerable in that proceeding for all damages sustained by plaintiff on account of defendant’s breaches of duly to the firm.</p> <p>5. Same — Judgment.</p> <p>Where a bill for a partnership accounting charged defendant with fraud and misconduct under which bill a receiver was appointed, who continued the firm’s business, all the breaches of duty for which defendant; was liable up to the appointment of the receiver were merged in a decree of dissolution in favor of plaintiff, and hence the court could not allow further damages for such wrongs by adding to the account as against, defendant the amount the receiver had expended from the partnership fund for conserving and carrying on the partnership business.</p>

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

<p>Petition and Cross-Petition to Review and Revise an Order of the District Court of the United States for the Eastern Division of the Northern District of Illinois, in Bankruptcy.</p> <p>This hearing arises upon a petition and cross-petition to review and revise an order of the District Court, sitting in bankruptcy, in the matter of T. E. Hill Company, alleged bankrupt, upon the final report and petition of the receiver appointed therein, in two particulars: (1) Under the petition of William A. Bither, assignee, etc., for allowing compensation to the receiver iii bankruptcy for his services; and (2) under the cross-petition of William A. Coleman, receiver, for disallowing a claim for compensation to his attorneys. The order thus brought for review recites a hearing upon the receiver’s final report and petition for the allowances in question, report of the referee thereupon under an order of reference, objections to such report filed by tiie receiver, and notice to and appearance of all parties in interest, followed by various provisions not in controversy, together with the allowance and disallowance, respectively, of which review is sought.</p> <p>These are found and ordered substantially as follows: (1) After reciting in tbe orders that the services of the receiver “have been peculiarly and especially beneficial” to the estate and performed partly in the Eastern District and partly' in the Northern District of Illinois; “that large financial benefits have inured to all parties beneficially interested in said estate by reason of” such services; that “it is just and equitable” that he be paid a reasonable fee therefor “out of the assets of said estate remaining in his hands”; and that “$1,500 is a just, fair, and reasonable fee” for such services, such allowance is made, to be paid to himself by the receiver out of the assets in his hands, before paying over to the assignee (Bither), the remaining funds, as further directed by the order. (2) The provision in respect of the. claim for attorney’s services is thus stated: “It is further ordered, that the just and reasonable value of the services of the attorney for said Coleman, as receiver, is $1,000, hut the court orders that the claim for said services is not a proper charge on said trust estate, and the motion of said receiver that he be authorized to pay said sum out of the funds of said estate is denied.”</p> <p>Other matters involved in the consideration are sufficiently mentioned in the opinion.</p>

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

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

<p>Appeal from the District Court of the United States for the Western District of Tennessee.</p> <p>The trustees in bankruptcy of Powell filed a bill in equity in the District Court, whore the proceedings were pending, for the purpose of recovering the sum of .81,061.87, that being the value of certain household furniture and fittings which were sold and transferred by the bankrupt within four months preceding the filing of the petition to the appellant, Warmath, for the purpose of paying a debt which the bankrupt owed him. The bill alleged that at the time of the transfer Powell know he was insolvent and unable to pay his creditors in full, and made the sale, transfer, and payment with the intent to prefer Warmath and to defraud his other creditors; and further alleged that Warmath had reasonable cause to believe and know that Powell was insolvent, and that the transfer, etc., was made with the intention of giving him an unlawful preference over other creditors. The prayer was that the court adjudge that Warmath had obtained an unlawful preference through the said sale and transfer, and that he became liable to the complainants for the value of the property, stated to be the sum of $1,061.87, and that they be allowed a recovery therefor. The defendant appeared and demurred to the bill, and assigned grounds therefor, the first of which was that: “The hill on its face shows no grounds for equitable relief and the equity side of this court has no jurisdiction of the matters complained of in the bill, and if complainants have any rights of action in this court it is purely of a legal cognizance.” The other grounds of demurrer need not, for the present purpose, to be stated. The court overruled the demurrer, and gave leave to answer. The defendant thereupon filed an answer denying the material allegations of the bill. Proofs were taken, and upon the pleadings and proofs the court made a finding and directed as follows: “In this cause I am of the opinion that the allegations of the plaintiffs’ petition are fully sustained by the proof, and the relief prayed for therein should bo granted. I, therefore, direct that a decree be entered, holding that at the time of the sale of the furniture by the bankrupt to Warmath that the bankrupt was insolvent, and that both he and the defendant, Warmath, knew the fact, and that the sale was made for the purpose of giving Warmath a preference as a creditor. A decree will be entered against Warmath for the amount sued for, together with interest thereon from the day of the sale, and against the defendant for the cost.” Thereupon a decree was entered, stating the facts found and ordering and adjudging as follows: “It is therefore ordered and adjudged and decreed that the plaintiffs, Henry O’Daniel and J. A. Alford, as trustees in bankruptcy of tbe said A. D. Powell, bankrupt, have and recover of and from tbe said defendant, Jno. G. Warmatb, tbe stun of $1,061.-87, with $95.56 interest tbereon, in all $1,157.43, and all costs; for wbicb let execution issue.” Tbe trial was bad before tbe judge. Tbe evidence was given by tbe oral examination of witnesses and by depositions. Objections were made and were allowed or overruled. A bill of exceptions was tendered by the defendant and allowed and signed by tbe District Judge. An appeal to this court was then taken by tbe defendant.</p>

<p>1. Writ ott Error — Direction oír Verdict — Review.</p> <p>Where an order directing a verdict for defendant is objected to on a writ of error, the Court of Appeals is required to take the view of the testimony and the inferences to be drawn therefrom most favorable to the plaintiff, the question being, not whether a verdict ought to have been rendered for plaintiff, but whether it lawfully might have been.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 8467-3175.]</p> <p>2. Receivers-Contract — Question iron Jury.</p> <p>Where an alleged personal contract of a receiver to procure the requisite notice of intention to transfer a seat in a cotton exchange, which was sold to plaintiff, was claimed to be established by conversations between defendant and Ihe superintendent of the exchange, and by defendant’s admissions, etc., defendant claiming that they showed nothing inoro than a receiver’s promise in aid of a receiver’s sale, it was for the jury, and not for Che court, to determine what the agreement was.</p> <p>3. Same — Personal Contract.</p> <p>Defendant, one of (lie receivers of a corporation, which he claimed owned a seat in the New York Cotton Exchange, standing in the name of 0., and being desirous of selling ihe seat, communicated with the superintendent of the exchange, and was informed that it was necessary to return a written notice of intention to sell, signed by C. Defendant stated that he would obtain O.’s signature to the required notice, and placed the matter of the sale of the seat in ihe superintendent's hands. The superintendent arranged to sell the seat to plaintiff, but did not inform him of defendant's agreement until after the sale had been closed. Defendant failed to procure C.’s signature, and the sale was not consummated. Hold sufficient to show an agreement on defendant’s part in his individual capacity for the breach of which he was individually liable, under the rule that a personal undertaking by a receiver binds him personally.</p> <p>4. Same — Presumptions.</p> <p>In an action for breach of a receiver’s contract to procure the necessary notice of intention to sell a seat in an Exchange which he sold to plaintiff, ihe presumption that the receive,!’ bound himself officially and not personally, while proper to be considered by the jury in determining whether the receiver was individually liable, was no ground for withdrawing the action from the jury.</p> <p>5. Peincipal and Agent — Acting por Parties Adversely Interested — Knowledge op Principal.</p> <p>A receiver desiring to sell a seat in an Exchange applied to the superintendent of the Exchange who told him it would be necessary to obtain a written notice of intention to sell, signed by the person in whose name the seat stood. The receiver promised to obtain this, whereupon the superintendent arranged to sell the seat to plaintiff. Held, that the superintendent was the agent of both parties, so that his failure to inform plaintiff of defendant’s agreement to obtain such notice until after the sale had been closed did not deprive plaintiff of the right to recover for breach thereof.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 670-679.]</p> <p>Dacombe, Circuit Judge, dissenting.</p>

This cause comes here upon writ of error to review a judgment in favor of the defendant in error, who was defendant below. The judgment was entered upon a verdict directed by the court.

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

The appellants were the defendants below, in a bill filed by the appellees— originally in the Circuit Court of Will county, 111., but removed to the United Stall's Circuit Court, on peiirion by the appellants — seeking equitable relief in respect of a purported agreement in writing between the appellees and the appellant, named as- Missouri Immigration Association, purporting to be a contract for sale and exchange of lands, recorded in the recorder’s office of Will county,…

Plaintiff, Charles L. Denison, was a wholesale coal dealer in Buffalo. On March 13, 1902, one B. E. Cartwright, having charge of the coal sales of defendant, a coal mining company, contracted on defendant’s behalf for the sale and delivery to plaintiff at the mine from April 1, 1902, until April 1, 1903, of the entire output of the Brock Mine operated by defendant in Pennsylvania.

<p>Aliens — Deportation — Expenses — Inland “Transportation” — “Cost oe Transportation. ’ ’</p> <p>Immigration Act March 3, 1903, c. 1012, § 20, 32 Stat. 1218, provides that any alien who shall be found a public charge in the United States from causes existing prior to landing shall be deported at any time within two years after arrival, at the expense, including one-half of the cost of "inland transportation to the port of deportation, of the person bringing the alien into the United States. Held, that the term “transportation,” as so used, should be given its ordinary meaning, viz., carriage from one place to another, and that the phrase “cost of Inland transportation” therefore only included the cost of carrying the alien from the inland place where he was found to the port of deportation, and that the government was therefore not entitled to recover under such section from the steamship company bringing the deported alien into the United States any part of the traveling expenses of an oflicer sent to bring the alien to the port of deportation. " . .</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7075, 7076.]</p>

This is an appeal by the importers from the Circuit Court, Southern District of New York, affirming a decision of the Board of General Appraisers, G. A. 6,281 (T. D. 26,917), which sustained the action of the collector. For decision below, see 152 Fed. 318.

Cross-Appeals from the Circuit Court of the United States for the Southern District of New York. These causes come here upon appeals by the importer and the government, neither of whom appear to be satisfied with the classification of the articles imported which has been approved by the Board of General Appraisers and the Circuit Court. For decision below, see 154 Fed. 93, affirming a decision of the Board of United States General Appraisers, G. A. 6,406 (T. D. 27,536).

<p>1. Master and Servant — Injuries to Servant - — Telephone Lines — Dutt- of Master.</p> <p>Where defendant maintained a telephone line as a part of its factory equipment, it was bound to keep the poles in a reasonably safe condition so as not to be dangerous to an employé required to ascend the same to repair the wires.</p> <p>[Ed. Note. — -For eases in point, see Cent. Dig. vol. 34, Master and Servant, § 173.]</p> <p>2. Same — Question for Jury.</p> <p>In an action for injuries to a servant by the fall of a telephone pole on which he was required to work, whether plaintiff in the exercise of ordinary care knew or should have known that the pole was rotten, and therefore assumed the risk of injury in ascending the same, held for the jury.</p> <p>[Ed. Note. — For ease in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1068-1088.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>3. Trial — Request to Charge — Refusal.</p> <p>It was not error for the court to refuse requests to charge which were covered by instructions given.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]</p>

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

This is a common-law action brought by the plaintiffs in error against the defendant in error upon a policy of accident insurance issued to the late Patrick E. Murphy in his lifetime.

<p>Banks and Banking — Collection oe Leapt when Insolvent — Recovery ok Proceeds — Interest.</p> <p>Where a bank known by its officers to be insolvent collected money for a customer and mingled the same with its own funds which, to an amount larger than the sum received, passed to the bank’s receiver in insolvency, the customer, though unable to trace the identical money into the receiver’s hands, was entitled to recover from the receiver an amount equal to that collected but without interest, the general creditors of the bank not being responsible for the receiver’s error of judgment in refusing to pay the claim on demand.</p>

There was no opinion below. The Circuit Court affirmed 21 decisions by the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Chicago on importations by C. L. Benson.

<p>Collision — 1Tug and Meeting Tow — 'Failure to Allow Sufficient Room.</p> <p>A collision in East river between a descending flotilla in tow and a meeting tug, in which some of the boats in the flotilla, wore injured by being crowded together, held due to the fault of the up-bound tug in failing to allow sufficient room in passing, and not to the crowding of another ,tug and tow bound down on the opposite side of the flotilla.</p>

<p>Customs Duties — Classification—“Undecorated China” — “Decorated.”</p> <p>Construing the provisions 'for china decorated and china not decorated, in Tariff Act' July 24, 1897, c. 11, § 1, Schedule B, pars. 95, 96, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], held, that merely adding a color to white china for utilitarian purposes does not make decorated china, and that china and cooking serving dishes of which the sloping undersides are irregularly colored brown in order to conceal smoke and finger marks, and without decorative effect, are dutiable as undecorated china under the latter paragraph.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, vol. 2, pp. 1904r-1905.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The Circuit Court reversed a decision of the Board of General Appraisers, G. A. 6,157 (T. D. 26,731), which sustained the protest oí the present appellant, an importer.</p>

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

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

<p>Corporations — Suit Against Corporation — Right op Stockholder to Intervene.</p> <p>Where a corporation defendant in a suit in equity is represented by counsel employed by its directors, and also by a committee of stockholders appointed for the purpose under leave of court for intervention, an individual stockholder cannot intervene as matter of right, at least without showing bad faith on the part of those by whom his interests are represented, or a demand and refusal to take such action as he desires.</p>

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

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

<p>1. Trade-Marks — Infringement—Right to Relief — Deception—“Patent.”</p> <p>IVliere complainant sold pills that were not patented under the name “Beeehain’s Patent Pills,” the word “patent” was employed in a mere proprietary sense, to indicate that the pills were made according to Beecham’s secret formula, and not necessarily that they were manufactured under letters patent, and hence did not constitute such a misrepresentation as to preclude plaintiff from relief in equity against the infringement of plaintiff's trade-mark, “Beecham’s Pills.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.]</p> <p>2. Same — Place of Manufacture.</p> <p>False statements as to the place where complainant’s' goods are manufactured may preclude him from relief in a suit to restrain, infringement of his- trade-mark.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.]</p> <p>Í5. Same.</p> <p>Where complainant in a suit to restrain infringement of a-trade-mark, “Beecham’s Pills,” only represented in connection with the sale of the pills that they were prepared and sold by complainant in St. Helens, England, and in New York, a statement that “the pills accompanying this pamphlet are specially packed for U. S. America” was insufficient to show a misrepresentation that the pills were made in England, so as to preclude complainant from equitable relief.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 94.]</p>

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

37,649 granted to Daniel I. Tompkins, November 7, 1905, for a design for bed-springs and assigned to the complainant. The application for the patent was filed May 3, 1905. The opinion below is reported in 154 Red. 669.

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

<p>1. Patents — Suit fob Infringement — Issues Made bt Pleadings.</p> <p>Where a bill for infringement of a patent against a nonresident defendant alleged infringement in tbe district where the suit was brought, which allegation was denied in the answer, the issue as to infringement is limited to infringement within such district.</p> <p>2. Same — Infringement—Evidence.</p> <p>Evidence considered in a suit for infringement, and held insufficient to establish a prima facie caso of infringement by defendants by a sale of any infringing article.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 549.]</p> <p>3. Pleading — Exhibits—Design Patents.</p> <p>When the question involved is the infringement of a design patent, the court is especially entitled to have put before it exhibits to which the testimony of experts may be referred, and by means of which it may make its own comparisons and deductions.</p>

<p>Appeal from the Circuit Court of the United States for the' Eastern District of Wisconsin.</p> <p>Appellant failed in its suit for alleged infringement of patent No. 412,963, issued on October 15, 1889, to Lowry for a twine for binding grain, and of patent No. 646,123, issued March 27, 1900, to 'Koeck for. a woven fabric.</p> <p>Lowry’s patent describes and claims the twine as follows:</p> <p>“My object is to utilize common farm products — such as grass, hay and straw — for binding grain; and my invention consists in the construction of a twine, as hereinafter described, that is adapted to be wound upon a ball or spool and used in a grain binder on a harvester for automatically binding sheaves as the machine is advanced in a field to cut and bind grain in a common way.”</p> <p>“In the manufacture of my twine I place stems and blades of grass, hay or straw into parallel position with each other and twist them together, and then wrap a thread of cotton or other suitable material around the outside to prevent any ends from projecting, and to produce and maintain a uniform thickness and smooth surface, as required to adapt the twine to slip through the eye of a needle in a binder.”</p> <p>“I claim as my invention—</p> <p>“As an improved article of manufacture, a twine made of grass, hay, or straw, twisted together and wrapped with a thread made of cotton or other suitable material, substantially as shown and described, for the purposes stated.”</p> <p>The Koeck fabric is composed of ordinary twine as warp and the Lowry twine as woof. The claims relied on are these:</p> <p>“2. As a new article of manufacture, a fabric the body of which is composed of stalks of grass twisted together and spirally wrapped to form a continuous strand, said strand bent or doubled back and forth upon itself and having interspersed throughout transverse binding stays or strands interwoven therewith, such binding strands or stays being duplicated along the edges of the fabric, as and for the purpose set forth.”</p> <p>“4. As a new article of manufacture, a fabric consisting of a main body portion formed of parallel layers or strands of twisted grass, each strand being encircled spirally by a thread in combination with transverse binding threads traversing the entire body but alternately under and over adjacent parallel grass strands, as and for the purpose set forth.”</p>

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

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

In Equity. Bill of complaint alleging infringement by defendant of claims 2 and 5 of U. S. letters patent to Gilbert Wright and Christian Aalborg, for “Automatic Circuit Breaker,” No. 633,772, dated September 26, 1899, application filed March 23, 1899.

In Equity. This court being about to sign a decree in favor of the complainant — having found the validity of the patent and infringement by defendant — defendant objects to the insertion of any provision for an accounting by defendant, on the ground .that there was no allegation in the bill and proof of a compliance with section 4900, Rev. St. U. S. [U. S. Comp. St. 1901, p.' 3388], as to notice, etc., to defendant of the patent and of infringement.

<p>Patents — Infringement—Battery Filler.</p> <p>The Richmond and Zeller patent, No. 641,540, for a battery filler, held not anticipated, valid, and infringed.</p>

<p>Patents — iNFKJNoraiENT—Means pok Oi’erating Washing Machines.</p> <p>The Schroeder patent, No. 535,405, for means for operating washing machines, has for the essential element in the combination shown a sliding cylinder on the operating shaft, through which cylinder alone motion is communicated to such shaft, and is not infringed by a machine having no such cylinder, but in which the teeth or cogs are mounted directly on, the shaft.</p>

<p>Patents — Aggregation or Old Devices — Pyrographic Tool.</p> <p>The Tyssowski patent, No. 727,034, for a pyrographic tool, “comprising a combined pyrographic point and a scorcher,” covers a mere assembling in one implement of two distinct devices of the prior art, not callable of conjoint use, and each of which maintains its autonomy and works independently of the other in its accustomed manner, and having no influence on the other or its operation, and is void as a mere aggregation and for lack of novelty. The scorching device, if conceded validity, must in view of the prior art be limited to a tapering nozzle, and is not infringed by one,in which the inner walls are parallel.</p>

<p>Patents — Suit fob Infringement — Injunction.</p> <p>On application for a preliminary injunction to restrain the use of structures alleged to infringe a patent which had imt a few weeks to run denied, and consideration of the claimed right of complainant to a perpetual injunction against, such particular structures on the ground that they were built with knowledge of the patent, and that it had been sustained and were piratical, postponed until final hearing, there being no claim that defendant was insolvent, and it appearing that the injunction would subject it to great inconvenience and loss.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 38, Patents. §§ 489-495.]</p>

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

<p>1. Patents — Infringement—Persons Liable.</p> <p>Where an infringement of a patent is brought about by a concert of action between a licensee and others, all engaged directly and intentionally became joint infringers.</p> <p>fEd. Note. — For cases in point, see Cent Dig. vol. 38, Patents, §§ 457-459.]</p> <p>2. Same — Restrictions on Licenses — Validity.</p> <p>The owner of a patent may fix a minimum price at which his licensees may sell the patented article at retail to the public;, and a violation of the license by the licensee is an infringement.</p> <p>3. Same— Infringement — 'Violation of Restrictions on Sale of Patented AHTtCLK.</p> <p>Comida inant, as exclusive licensee to manufacture and sell a patented article, sold the same only to jobbers under contracts which bound them to sell only at certain prices and only to licensed retail dealers who were required by contract to sell to the public only at certain prices, the license to he forfeited by the breach of such restrictions. Defendant procured another to become a licensee and to purchase the articles and sell the same to him in violation of the license contract, and defendant resold to the public at less than the price fixed by such contract. Held, that such sales were an infringement of the patent.</p>

<p>1. " Negligence — Defective Premises — Statutes—Application—“Neighbors .or Passengers.”</p> <p>Louisiana Rev. Civ. Code, art. 670, provides that every one is bound to keep -his buildings in repair S3 that neither all nor any part of the material composing them may injure the “neighbors or passengers” under penalty of all losses and damages that may result from the owner’s negligence in such respect. Held applicable only to persons “outside” the building, such as neighbors or passers-by injured by the fall of the building or some part thereof, and does not apply to persons lawfully in the building as guests, tenants, etc.</p> <p>2. Same — Assumed Risk.</p> <p>The owner of a building is not liable for injuries to a person by reason of a defect therein where notwithstanding the person injured was warned of the danger, he voluntarily placed himself in a dangerous position, and thereby sustained the injury complained of.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Neligenee, & 86.]</p> <p>3. Same — Statutes—Construction—‘ ‘Ruin. ’ ’</p> <p>Louisiana Rev. Civ. Code, art. 2322, declares that the owner of a building is answerable for the damage occasioned by its “ruin” when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.. Held, that the term' “ruin,” as so used, means the collapse, falling, or giving way of the whole or of some part of the building whereby some person is injured.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 7, p. 6271.]</p> <p>4. Same — Defenses—Contributory Negligence.</p> <p>Contributory negligence of the person injured is a complete defense to the owner of a building sued under Louisiana Rev. Civ. Code, art. 2322, providing that such owner is answerable for the damage occasioned by the ruin of a building caused by his neglect to repair or vice in original construction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, §§: 83-85.]</p> <p>5. Landlord and Tenant — Defective Premises — Injuries to Roomers — Liability of Landlord.</p> <p>Defendant rented a building to certain tenants who used it as a rooming house and rented rooms therein to plaintiff’s husband. Plaintiff who lived with her husband, on one occasion walked to the back gallery on the second floor to throw out some water, and, as she placed her hand on the top rail of the balustrade to steady herself, the rail suddenly gave way because of its rotten and defective condition, and plaintiff was precipitated to the pavement below and injured. Held, that defendant was liable for such injuries under Rev. Civ. Code La. art. 2322, providing that the owner of a building is answerable l'or damage occasioned by its ruin when caused by neglect to repair or vice in its original construction, neither the tenant nor plaintiff’s husband being under any obligation to malee repairs.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, §§ 629-633.]</p>

<p>1. Towage — -Repairs to Tug — Liability op Hires.</p> <p>Where respondent hired a tug, and agreed to pay the cost of shortening its stack in order that it might pass under a certain bridge, whereupon the tug was taken to a shipyard, where repairs were made on her, for which a charge of $30 was made, including the shortening of the stack, and the evidence did not show the value of the separate items, an allowance of $15 only would be made against respondent for shortening the stack.</p> <p>2. Salvage — Pumping Barge — Fault.</p> <p>Respondent negligently sent a barge in an unseaworthy condition on a voyage in tow of libelant’s tug. The barge was saved from sinking during the voyage with the aid of pumps; but when she reached her dock libelant abandoned her, whereupon she immediately sank, and libelant thereafter pumped her out at respondent’s request. Held that, since both libelant and respondent were at fault, libelant was only entitled to charge one-half of the reasonable cost of such service.</p> <p>[Ed. Note. — Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]</p> <p>3. Same — Towing.</p> <p>Where a barge sank because of the negligence of both libelant and respondent, and after libelant had pumped the water from her he towed the barge to a shipyard for repairs, which were needed, before she sank, libel-ant was entitled to recover the cost of the towing.</p> <p>4. Towage — IÍEPAIRS to Ttro — Delay.</p> <p>Where respondent hired a tug and consented that she be sent to a shipyard to have her stack lowered, respondent was entitled to an allowance for delay, both, of the tug and barges, occasioned by other work on the tug, done for the master’s individual benefit.</p> <p>5. Same — Compensation—Improper Navigation.</p> <p>The hirer of a tug is entitled to an allowance for delay caused by the tug’s running aground because of an error in navigation.</p> <p>6. Same — Injury to Barge — Evidence of Damage.</p> <p>The hirer of a tug was not entitled to an allowance for damages to a barge by a collision with the bridge while in charge of the tug, where there was no evidence from which the money value of the injury could be estimated.</p>

Indictment. On motions in arrest of judgment and for new trial. The defendant was tried before Hon. John B. McPherson, at the December sessions of the District Court, upon an indictment containing nine counts, charging him. under Rev. St. §§ 8891, 5467 [U. S. Comp.

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

<p>Customs Durnss — Classification—Cabretta Skins — “Wool.”</p> <p>The growth on cabretta skins is dutiable as “wool,” under Tariff Act July 24, 1897, e. 11, § 1, Schedule K, SO Stat. 182 [U. S. Comp. St. 1901, p. 166-1].</p> <p>LEd. Note. — For other definitions, see Words and Phrases, vol. 8, p. 7515.]</p>

<p>Removal or Causes — Jurisdiction Acquired — Service on Foreign Corporation.</p> <p>A suit against a corporation of another state cannot be maintained in a federal court in the district of the plaintiff’s residence, where jurisdiction depends on diversity of citizenship alone, where service was not made within the district of suit and defendant has no place of business therein, although it may have such place of business and be served in another district in the same state; and where such a suit has been properly removed into a federal court the service will be quashed.</p>

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

Hearing on plea of defendants Samuel Bryant and James B. Yan Woert, as receivers of Holland Trust Company, to part of a bill of revivor and supplement filed by John E. Roosevelt, Robert B. Roosevelt, and Kenyon Fortes-cue, as executors, etc., of Robert B.' Roosevelt, deceased, and also to a part of the cross-bill filed herein by Robert B. Roosevelt in his lifetime, and also on plea of Holland Building Association to such bills.

<p>1. Courts — Federal Courts — Trial—Judgment Non Obstante Veredicto.</p> <p>In trial of an action at law in a federal court, sitting in Pennsylvania, where defendant’s request for binding instructions is refused, defendant may file a motion for judgment non obstante veredicto, under Pa. Act 1905 (P. L. 286), providing that, whenever a point requesting binding instructions has been declined, the party presenting it may move the court for judgment non obstante veredicto on the whole record.</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>2. Insurance — Breach oe Warranty — Serious Illness — Suppression oe Facts — Fraud—Questions eor Jury.</p> <p>In an action on a policy, whether insured ever had any serious illness prior to that which caused his death; whether he suppressed material facts when he made out his application; and whether he fraudulently failed to disclose the existence of any illness or suppressed any information with intent to deceive the insurer- — Jwld for the jury.</p> <p>TEd. Note. — For eases in point, see Cent. Dig. vol. 28, Insurance, §§ 1735, 1738, 1759.]</p> <p>3. Same — Scope of Warranty.</p> <p>Where an application for insurance, in which insured stated that he had not laid any serious illness or disease other than those incident to childhood, was signed by him, and incorporated into the contract, which provided that all statements and answers therein were warranted to he true, insured thereby warranted that he had never had any serious illness or disease except those incident to childhood.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 681-096.]</p> <p>4. Same — “Serious Illness.”</p> <p>The" term “serious illness.” in an application for life insurance means such an illness as has, or ordinarily does have, a permanently detrimental effect on the system, or renders the risk unusually hazardous, but does not include any sickness which may terminate in death, provided its effect on tiie individual has not been such as to permanently impair his constitution.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 687, 689.</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6421.]</p> <p>5. Same — Misstatement—Breach of Warranty — Materiality—Fraud—Statutes.</p> <p>Pa. Act .Tune 23, 188.", § 1 (P. U. 134), provides that, whenever an application for life insurance contains a clause of warranty of the truth of the answers therein contained, no misrepresentation or untrue statement made in good faith by the applicant shall work a forfeiture or be a ground of defense in any suit brought on any policy of insurance issued on the faith of such application, unless such misrepresentation or untrue statement relates to some matter material to the risk. Hold, that where the misstatement is made in bad faith, and for the purpose of misleading the insurer, the policy will he avoided under such section, though the fact inquired about is immaterial; l)ut if the misstatement has been made in good faith, it will not avoid the policy, though untrue, unless it was material to the risk.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 28, Insurance, §§ 548, 549.]</p> <p>6. Trial — Request to Charge — Form—'“I Direct You to Find a Verdict for Defendant.”</p> <p>In an aelion on an insurance policy, defendant requested an instruction that if prior to October 10. 1906, insured had any serious illness or disease of an organic type, accompanied by circumstances which would naturally lead a reasonable man to suppose that lie was afflicted with an illness or disease that might impair his health, and must thereby necessarily have been impressed on his memory, it was his duty to disclose the same to the insurer, and his failure to do so warrants the jury in finding, and “I direct you to find, a verdict for defendant.” Held, that the quoted clause was an implied direction to the jury to make an affirmative finding as to the facts stated in the instruction, which was therefore properly refused.</p>

<p>1. Aliens — Naturalization—Declaration of Intention — “Citizen.”</p> <p>An alien’s declaration of bis intention to become a citizen of the United States did not make liim a citizen, he having never (alien out his naturalization papers.</p> <p>¡Ed. Note. — For other definitions, see Words and Phrases, vol. 2, pp. 1104-3:174; vol. 8, pp. 7002, 7(503.]</p> <p>2. Removal of Causes — Grounds—Petition—Proof.</p> <p>Where a removal petition was based wholly on the ground of diverse citizenship, defendant was not entitled to removal on proof that the plaintiff was an alien, and that the case was removable on the ground that it was an action brought by an alien in a state court against a citizen of another state.</p> <p>3. Same — Amendment.</p> <p>Where a removal petition was based wholly on diverse citizenship, and the proof showed that plaintiff was an alien, the federal court had no Jurisdiction, nor could the defect be cured by amendment which would necessitate the setting up of an entirely new and distinct ground for removal.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 42, Removal of Causes, § 178.]</p> <p>4. “Citizens” — Who are Citizens — Women Married to Aliens.</p> <p>Where a woman was born a “citizen” of the United States, she did not lose her citizenship by marrying an alien, at least so long as she continued to reside in the United States.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Citizens, § 7.</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1104-1174; vol. 8, pp. 7602, 7603.</p> <p>Citizenship of married women, see-note to 65 C. O. A. 5.J</p> <p>5. Removal of Causes — Allegation and Proof of Citizenship.</p> <p>Where a petition to remove a cause filed in a Nebraska state court alleged that plaintiff was a citizen and resident of Nebraska, and that defendant was a corporation organized under the Jaws of Missouri and was a citizen of that state, but the proof showed that plaintiff was a citizen of Louisiana, the removal was erroneous.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. For decision below, see G. A. 6,453 (T. D. 27,645), in which the Board of General Appraisers sustained the protest of W. M. Brownell against the assessment of duty by the collector of customs at the port of New York.

<p>1. Contracts — Construction—Primary Object.</p> <p>In const ruing a contract, the primary object is to discover the intention of the parties.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 11, Contracts, § 730.]</p> <p>2. Same.</p> <p>In construing a contract, the entire agreement must be considered, and, if possible, it should be construed so as to give effect to each of its provisions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voi. 11, Contracts, § 734.]</p> <p>3. Municipal Corporations — Paving—Bid Construed.</p> <p>Where the specifications upon which paving bids were based provided that the city engineer might make certain tests of the brick to be used at any time during the progress of the work, and that if they did no1 stand the tests they should be rejected, and required the bidders to deposit samples of the brick on which their bids were based, such samples to be labeled, showing the commercial name of the brick, a statement in plaintiff’s bid that he proposed to use “Capital” brick, as per samples submitted, did not work a modi flea tiou of his proposal to do the work according to the plans and specifications so as to make the quality of his samples determine the quality of the brick to he used, unaided by the tests provided for in the specifications.</p> <p>4. Same — Failure to Comply with Bid — Reletting of Contract — Effect.</p> <p>Whore plaintiff refused to enter into a municipal paving contract, after having been declared the lowest bidder, the city council, by declaring another bidder to be the lowest bidder, without readvertising for bids, did not rescind its finding that plaintiff was the lowest bidder, so as to release his deposit made to secure his entry into a contract.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 865.]</p> <p>5. Damages — Breach of Contracts — Forfeitures—Construction.</p> <p>Though, generally, courts do not look upon forfeitures with favor, and will, where the contract is susceptible of so doing, construe such a provision as a penalty rather than liquidated damages, such construction should be given as will carry out the intent of the parties, if such intent is clearly ascertainable from the contract.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 15, Damages, §§ 150. 157.]</p> <p>6. Same — Bid for Street Paving.</p> <p>Where, when a bidder for street paving deposited cheeks for $3,700 to secure his entry into a contract on the acceptance of his bids, the damages to the city and the public which would flow from his failure to enter the contract could not be known, on a forfeiture, the deposit must be treated as liquidated damages for plaintiff’s default, and not merely a penalty, though the actual damage, as shown by subsequent events, was only about $2,500.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 170-175.]</p>

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

<p>Bankktjptct — Peocedttbe—Cebtuted Question — Findings—Bjoview.</p> <p>Where a referee’s finding in bankruptcy that no partnership existed between two persons alleged to constitute a bankrupt firm was based on conflicting evidence, such finding will not be reversed on certificate to the district judge, unless it appears from the evidence that the referee was clearly wrong.</p>

<p>In Bankruptcy. On certificate of referee concerning claim of bankxiipt to assets of the estate.</p>

<p>In Bankruptcy. On certificate of referée concerning claim of landlord to priority.</p>

<p>1. Lost Instruments — Actions on — Equity Jurisdiction.</p> <p>Equity courts have jurisdiction to establish lost instruments, not being deprived thereof because law courts have assumed or have been given by statute the same jurisdiction. They have jurisdiction especially in cases of negotiable instruments lost before maturity, and, upon assuming jurisdiction, complete relief will be afforded, even to the extent of authorizing a recovery for principal and interest, upon the execution of an indemnity to secure defendant against further liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Lost Instruments, § 29.]</p> <p>2. Bonds — “Specialty” Defined.</p> <p>A “specialty” Is a bond, or the coupon originally attached to it, though the latter be unsealed and detached for the purpose of demand of payment and action.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 7, pp. 6597-6598; vol. 8, p. 7803.]</p> <p>3. Limitation of Actions — Suit on Bond Coupons.</p> <p>A suit on bond coupons is governed by the statute of limitations applicable to sealed instruments, and not that applicable to simple contract debts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 104, 108-111.]</p> <p>4. Lost Instruments — Bonds—Right to Recover on — Indemnity.</p> <p>Recovery may be had on lost bonds without their production; defendant being properly protected, by the entry of an Indemnity bond against future liability.</p> <p>[Ed. Note. — For case in point, see Cent. Dig. vol. 33, Lost Instruments, §§ 4,1-45.]</p> <p>5. Bonds — Suit on Before Maturity — Right to Bring.</p> <p>Where, before maturity, a total bond Issue, excepting eight lost bonds owned by complainant, has been paid off or exchanged for other bonds, and the mortgage securing the issue has been satisfied, complainant may recover on his bonds, though on their face they are not due; the destruction of complainant’s security by the satisfaction of the mortgage being. in effect, a declaration by the obligor and the trustee that they elected to regard the bonds due and stood ready to pay to them, in which complainant could acquiesce.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Bonds, § 134.]</p> <p>6. Lost Instruments — Recovery on — Interest—Overdue Coupons.</p> <p>In a suit to recover on lost bonds, complainant cannot recover interest on overdue coupons which were not presented for payment and whieli became overdue because complainant’s agent negligently lost them, where so far as the record shows defendants were ready and willing to pay the interest when it was due.</p>

In Equity. This is a suit in equity for unfair competition in trade and the infringement of a trade symbol. The bill was filed in July, 190G. Prayer for injunction and accounting. The complainants are dealers in fish, who reside in the Netherlands, and. ore engaged in importing fish to America.

<p>1. Witnesses — Attorneys—Privilege.</p> <p>An attorney’s privilege only extends to confidential communications between bim and bis client, and does not entitle fbe attorney to refuse to identify documents wbicb be bas witnessed, nor to testify with reference to facts concerning wbicb be obtained knowledge from third persons.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 759, 762.]</p> <p>2. Bankruptcy — Jurisdiction of Referee — Rulings on Evidence.</p> <p>Where, in a proceeding before a referee in bankruptcy, a question arises concerning the competency of a witness or the admissibility of evidence, the referee should decide the question in the first instance, and should not certify the question to the court until requested to do so in a proper manner.</p>

In Admiralty. Proceeding for limitation of liability. On petitions by Mary L,. and- Vernon B. Davenport for leave to file answers and proofs of claim after return day of monition, and on motions by Mary ,D. Davenport to dismiss the proceedings or for modification of restraining order.

<p>In Admiralty. Proceeding for limitation of liability. On claim for loss, damage, and injury presented by Mary L,. and Vernon B. Davenport.</p>

<p>In Bankruptcy.</p> <p>This is a proceeding to review the order made by the referee in bankruptcy whereby the claim of Mrs. Emma G. Smith was allowed as a preferred claim. There is practically no dispute about the facts. In 1900 Ira B. Smith, then Xiresident of the Smith, Thorndyke & Brown Company, a trading corporation of Wisconsin, was elected treasurer of the National Wholesale Grocers’ Association. At the time of his election it was arranged with the officers and directors of such Grocers’ Association that the funds coming into his hands as treasurer •should be deposited with the Smith,. Thorndyke & Brown Company, and that disbursements from the fund should be paid by the checks of said company. Practically the arrangement was to use the Smith, Thorndyke & Brown Comliany as a bank for the Grocers’ Association. It was supposed on all hands that the Smith, Thorndyke & Brown Company was solvent. Pursuant to such arrangement Mr. Smith indorsed over all checks and drafts received by him as treasurer of the Grocers’ Association to the Smith, Thorndyke & Brown Company, and such moneys were mingled in tl?e general bank account of Smith, Thorndyke & Brown Company. In January, 1907, the Smith, Thorndyke & Brown Company, temporarily embarrassed but suxiposed to be solvent, called in an attorney to look over their affairs, who found the accpunt with Ira B. Smith, as treasurer, had been kept upon the cash book, and advised that such account be transferred to the ledger of Smith, Thorn-dyke & Brown Company under the title “Ira B. Smith, Trustee,” which was done. Such account then showed a balance due the Grocers’ Association of something over $4,000. The attorney testified that such sum was not then imid over to the Grocers’ Association because the company was at that time unable to make such payment. Pursuant to the advice of the attorney a new account was opened in the bank by Ira B. Smith as treasurer, and from that time on all moneys received by him from the Grocers’ Association were deposited to that account. From February, 3907, down to May, 1907, certain disbursements were made upon the cheeks of Smith, Thorndyke & Brown which reduced the balance in that account to $2,156; but no sums were paid over to Smith, Thorndyke & Brown Company after February, 1907. June 10, 1907, bankruptcy proceedings were instituted against Smith, Thorn-dyke & Brown Company. The balance in the general account of Smith, Thorndyke & Brown Company with the National Exchange Bank was appropriated by the bank to satisfy a banker’s lien, which action was ratified and approved by the court, and such bank balance never came into the possession of the trustee. Subsequent to the bankruptcy of the company, Mrs. Smith, the petitioner, who is the wife of Ira B. Smith, borrowed money from her sister to make good the balance due to the Grocers’ Association, and took to herself an assignment of such claim. The petition of Mrs. Smith proceeds upon the theory that this indebtedness of $2,156, due the Grocers’ Association, constituted a trust fund, so that she is entitled as assignee to payment in full out of the assets of the estate. The referee adopted this view, and directed the payment of the claim in full.</p>

<p>At Eaw. Motion for judgment non obstante veredicto.</p>

<p>Customs Duties — Classification—Beaded Leather Bags — “Articles in Part of Beads.”</p> <p>Ladies’ hand bags in chief value of leather and ornamented with beads are dutiable as "‘articles * * * in part of beads,” rather than as “manufactures of leather, finished or unfinished, * * * or of which [leather] is the component material of chief value,” under Tariff Act. July 21, 3897, c. 11, § 1, Schedule N, pars. 408, 450, 30 Stat. .189, 193 [U. S. Comp. St. 1901, pp. 1073, 1678.)</p>

<p>1. Damages — Exemplary Damages — Malicious Breach of Contract.</p> <p>Civ. Code Oal. § 3291, provides that in an action for breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, plaintiff may recover exemplary damages. Held that, under such section, exemplary damages could not be recovered for willful or malicious breach of insurance contracts sued on.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 193, 194, 203.].</p> <p>2. Insurance — Settlement—Damages in Addition to Interest.</p> <p>Civ. Code Cal. § 3302, provides that the detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation, with interest thereon. Held that, under such section, insured could not recover damages in addition to interest fox* the insurer’s alleged willful and fraudulent refusal to settle the loss, except by payment of 50 per cent, thereof in full.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1498.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>3. Fraud — Deceit—Complaint.</p> <p>A complaint in an action on an insurance policy alleging that defendant willfully and fraudulently, with intent to take advantage of plaintiffs’ necessities, x*efused to pay more than 50 per cent, of its liability on plaintiffs' policies, whereby plaintiffs were greatly injured, etc., did not state a cause of action for fraud, deceit, undue influence, or duress, there being no allegation that defendant obtained anything of value by means of the acts complained of.</p> <p>4. Insurance — Payment—Refusal—Willful Breach of Contract.</p> <p>Failure and refusal of an insurance company to settle the loss under plaintiffs’ policies for more than 50 per cent, of the amount due thereon because of a willful desire on defendant’s part to take advantage of plaintiffs’ necessities for ready money wherewith to re-establish their business did^not constitute a tort by reason of the fact that defendant’s breach of contract was willful.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1498.]</p> <p>5. Damages — Breach of Contract — Intent.</p> <p>The measure of damages for a breach of contract is the same whether the breach be by mistake, accident, inability to perform, or be willful and malicious.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 285, 286.]</p> <p>6. Insurance — Action on Policy — Pleading—Complaint—Nonpayment.</p> <p>In an action on certain policies, an allegation that defendant had refused to pay was not the equivalent of an allegation of nonpayment, and rendered the complaint defective.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1607.]</p> <p>7. Same — Amendment.</p> <p>Where an action on a policy alleged that defendant had refused to pay, instead of nonpayment, such defect could be cured by amendment which would be allowed on motion.</p>

<p>1. Carriers — Rates—Discrimination—Interstate Commerce Act — Pleading.</p> <p>Where a count in a complaint against an interstate carrier alleged a discrimination in rates against plaintiff, in that defendant charged plaintiff the full tariff rates and permitted plaintiff’s 'competitors by a device to transport their similar products at a lower rate,., it stated a cause of action for violating Interstate Commerce Act, Act Feb. 4, 1887, c. 104, § 2, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3155], prohibiting discrimination, and was therefore not demurrable, though it also insufficiently attempted to allege a combination or conspiracy, on defendant’s part, with certain other railroads to restrain trade, and to recover treble damages under the Sherman Anti-Trust Act, Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St- 1901, p. 3200].</p> <p>2. Same — Reasonableness of Rates.</p> <p>Where an interstate carrier charged plaintiff the regular posted tariff rates, plaintiff could not maintain an action at law either under the AntiTrust Act, Act July 2, 1890, c. 647, 26 Stat 209 [U. S. Comp. St. 1901, p. 3200], or the Interstate Commerce Act, Act Feb. 4, 1887, c. 104, 24 Stat 379 [U. S. Comp. St 1901, p. 3154], for a readjustment of such rates on the ground that the same were unreasonable or unlawful, its remedy being by application to the Interstate Commerce Commission to have the schedule of tariffs adjusted on a reasonable and lawful basis.</p>

In Bankruptcy. On petition to review referee’s order appointing a trustee upon failure of a majority of creditors (in number and value) to elect such officer.

<p>1. Aliens — Natura lizatio n — M in oes .</p> <p>Rev. St. § 2107 III. S. Coni]). St. 1001, p. 1332], providing that an alien who bad resided in the [Tniled States three years before attaining his majority, might, under specified conditions, he naturalized after reaching his majority, without previous declaration of intention, did not imply that an alien could in no instance make such declaration during minority.</p> <p>2. Statutes — Franchises—Construction.</p> <p>In construing a statute granting a right or privilege in the nature of a franchise, where an ambiguity arises, that construction must be indulged which is most favorable to the persons or class for whose benefit the grant is made.</p> <p>[lid. Note. — For cases in point, sue Cent. Dig. vol. -11, Statutes, § 310.1</p> <p>8. Aliens — Naturalization—Minors.</p> <p>Since at common law a minor could make any contract not expressly prohibited, and if ratified and. confirmed by him at- majority it became binding as of the elate of its execution, and since while a declaration of intention to become a citizen initiates important rights and obligations, they are more or less inchoate, and the declarant is neither required nor permitted to ratify his act until after his majority, there is nothing in the nature of the declaration which on principie a minor should not bo competent to make, if it appears that he is of sufficient age and understanding to appreciate the nature of the act.</p> <p>4. Same — Declaration op Intention — Nature.</p> <p>A declaration of intention to become a citizen is in no sense a completo and binding act, and carries no full rights of citizenship before the final act of admission.</p>

<p>In Bankruptcy.</p>

<p>Customs Duties — Classification—White “Dextrine.”</p> <p>White dextrine, produced by the chemical treatment of starch, while not a dextrine, technically speaking, is «lasslble as “dextrine,” because it is commercially so known, under Tariff Act July 24. 1897, c. 11, § 1, Schedule G, par. 286, 30 Stat. 173 ["O. S. Comp. St 1901, p. 3G53|.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below the Board of General Appraisers, on the authority of a former board decision, G. A. 3,833 (T. D. 25,743), affirmed the assessment of duty by the collector of customs at the port of New York on imported merchandise invoiced as stone lanterns.

On Application for Review of a Decision by the Board of United States General Appraisers. For decision below, see G. A. 6,630 (T. D. 28,277), reversing the assessment of duty by the collector of customs at the port of Philadelphia.

<p>1. Tbade-Marks and Teade-Names — Unfair Competition-Simulation of Dress.</p> <p>The fact that a manufacturer has modified the dress by which its goods had become known to the public, does not justify a rival manufacturer in adopting or simulating the earlier dress, nor relieve it from liability for unfair competition where i.t has done so.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 81.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 O. C. A. 165; Lare V. Harper & Bros., 30 C. C. A. 376.]</p> <p>2. Same — Suit for Unfair Competition — Conclusiveness of Interlocutors Decree.</p> <p>v Where by an interlocutory decree on the merits it was adjudged that a defendant was chargeable with unfair competition in simulating the dress of complainant’s goods, and a reference was directed to take an accounting of profits recoverable, the question of defendant’s liability is concluded, and cannot he reopened before the master.</p>

<p>Customs Duties — Classification—Featherstitch “Braids.”</p> <p>Articles commercially designated as “featherstitch braids,” tbougli produced by a weaving rather than a braiding process, are by reason of such designation dutiable as “braids” under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1602.]</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, p. 856.1</p>

In Bankruptcy. Petition to review order of referee denying the petition of the United States to have awarded to it certain funds in the hands of the trustee in bankruptcy in partial payment of taxes.

<p>1. Post Office — Nonmailable Matter — Corporations.</p> <p>A corporation lias capacity to commit tlie crime of mailing obscene, nonmailable matter, prohibited by Rev. St. § 3893, as amended [U. S. Comp. St. 1901, p. 2058].</p> <p>[Ed. Note. — Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. 79.]</p> <p>2. Same — Knowledge.</p> <p>Rev. St. § 3893, as amended [U. S. Comp. St. 1901, p. 2658], describes certain nonmailable matter, and provides that any person who shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by the section to be nonmailable, shall for each offense be fined, on conviction, or imprisoned at hard labor or both, etc. Held, that such section was applicable to a corporation organized for the purpose of publishing a newspaper, and that proof of the mailing by such corporation of its newspaper, containing obnoxious matter, was sufficient to show that the corporation had knowledge thereof.</p>

<p>1. Bankruptcy — Discharge—Specifications op Objection — Disposal.</p> <p>A motion for a bankrupt’s discharge cannot be granted until specifications of objection have been disposed of.</p> <p>2. Same — Reference—Certipioate of Conformity.</p> <p>Since a referee in bankruptcy has no power to decide any question relating to the bankrupt’s discharge until that subject lias been referred to him by the judge, a certificate of conformity issued by a referee before specifications of objection to the bankrupt’s discharge bad been disposed of was without authority and would be disregarded.</p> <p>3. Same — Specifications op Objection — Sufficiency.</p> <p>Specifications of objection to a bankrupt’s discharge, alleging that the bankrupt bad concealed or failed to have kept books of account or records from which his financial condition might be ascertained, and that while under examination under oath before the referee he failed to show what he had done with money borrowed from his sister-in-law, were sufficiently specific.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 6, Bankruptcy, § 714.]</p> <p>4. Same — Verification—Creditor’s Attorney.</p> <p>Specifications of objection to a bankrupt’s discharge should be verified by the objecting creditor, and not by bis counsel, unless some reason is given why the oath is not taken by the creditor.</p>

<p>Bankruptcy — Discharge—Objections—Larceny by Bankrupt.</p> <p>Under Baiikr. Act July 1, 1898, c. 541, § 34, 30 Stat. 550 [U. S. Comp. St. 1903, p. 3427] proscribing the grounds on which a bankrupt’s discharge may be denied, a creditor cannot procure such denial, because of the alleged offense of larceny or larceny as bailee committed by the bankrupt against the objecting creditor more than a year before the petition was filed.</p>

In Bankruptcy. On certified question of referee. I, George M. Rupert, referee as aforesaid, do hereby certify that in the course of proceedings had before me in the above-stated matter the following question arose pertinent to the proceeding; “Whether or not the minute book of the Pennsylvania Graphite Company should be directed to be put in the hands of James G. Gordon, Esq., for examination thereof.” And the said question is certified to the judge for his opinion thereon.

<p>1. Costs — Nonresidents—Rule for Costs — Affidavit—Necessity fob.</p> <p>Under a United States Circuit Court rule providing that where plaintiff is not a resident of the district when suit is brought, or, being so, afterwards removes from the district, and that in every other case where a defendant makes affidavit that he believes the costs could not be recovered of plaintiff by attachment or execution, a rule for security for costs may be entered, etc., a rule, for costs on a nonresident plaintiff, or one who has removed from the district after bringing suit, need not be founded oil an affidavit.</p> <p>2. Same — Nonresident Trustee in Bankruptcy — Liability to Give Security.</p> <p>A nonresident trustee in bankruptcy may be required to give security for costs under a rule providing for the entry of a rule for costs on nonresident plaintiffs.</p>

<p>1. Arbitration and Award — Acts of Parties — Ineffective Arbitration.</p> <p>Where, as part of a sale of clay works, defendants agreed to take manufactured pipe on hand at specified prices according to certain grades, and, in case of a disagreement as to the grades, arbitrators were to be appointed to determine the matter, any material interference with or disposition of the pipe by defendants by which an arbitration was rendered ineffective would relieve plaintiffs from the necessity of attempting an arbitration as a condition precedent to their right to sue.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 4, Arbitration and Award, § 30.]</p> <p>2. Same — Question for Jury.</p> <p>Where the evidence of defendants’ acts was not such that the court could declare as a matter of law that they absolved the jilainliff from the duty lo have the grades of certain sewer pipe in question determined by arbitration, and there was no request that the court should determine such question as a matter of law, whether such acts were such as to render any arbitration attempted ineffective was properly submitted to the jury.</p> <p>3. Same* — Destruction of Pipe — Quantity.</p> <p>Where a contract for the sale of sewer pipe in connection with a clay works plant provided for an arbitration to determine the grade of the pipe, plaintiff, while entitled to have the pipe kept intact and undisturbed as it lay at the works, if it was to be appraised by the arbitrators, was not relieved of the duty to participa te in such arbitration by the fact that defendants destroyed an immaterial part of the pipe which by no possibility would have come up to the required grades.</p> <p>4. Same.</p> <p>Where, in a suit on a contract for the sale of certain clay works and sewer pipe, defendants relied on provisions for arbitration as to grades of the pipe with which plaintiffs had not complied, as a defense, the court did not err in modifying a request to charge that the burden was on defendants to show that the failure to choose arbitrators was “entirely” the fault of the plaintiffs and not In any way the fault of the defendants, by striking the word “entirely.”</p> <p>5. Corporations — Contract Before Incorporation — AcrroNS—Instructions.</p> <p>Where, after the sale of clay works and manufactured sewer pipe under a contract providing for arbitration as to the grade of the pipe, defendants transferred the plant to a corporation organized by them to operate it, and thereafter certain of the correspondence between the parties was signed by the corporation, and the plaintiff never objected to dealing with (he corporation instead of the defendants until at the trial, file court properly charged that the jury should regard the notices signed by the corporation the same as if they were signed by the defendants.</p> <p>6. New Triait-Objections Not Raised at Trim,.</p> <p>Whore, in a suit on a contract for the sale of clay works and sewer pipe, defendants urged as a defense that plaintiff had failed to perform an arbitration agreement to determine the grades of the pipe, and plaintiff at the trial insisted that a transfer of the works by defendants to a corporation did not relieve defendants from the provisions of the contract with reference to arbitration, but that plaintiff had been relieved by defendants’ acts in destroying and disposing of certain, of the pipe, plaintiff was not entitled to assert for the first time on an application for a new trial that defendants’ transfer of the works put it out of their power to have the pipe appraised, and therefore relieved plaintiff from the arbitration agreement.</p>

In Equity. At a special election duly authorized, and held In the city of Eugene on September 11, 1905, the question whether the city should be empowered to issue city bonds in the amount of $100,000 with which to pay the costs and expenses in the purchase or construction and equipment of a complete electric light and power plant and system for the city was submitted to the qualified voters of the municipality, and it was determined by a majority vote in favor of the…

<p>On Motion to Strike Information.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. For decision below, see G. A. 6,490 (T. D. 27,760), reversing the assessment of duty by the collector of customs at the port of Boston on, importations by Fvan Arthur Leigh.

<p>Bankruptcy — Funds in the Hands op Heceivee — Payment to Trustee.</p> <p>It being impossible, on a motion by a trustee for an order directing a receiver in bankruptcy to pay over money in Ms bands, to determine tbe validity of certain mortgages or to pass on the question whether any claims have been proved before tbe referee, either as general or secured claims, with reference to the fund, on affidavits, or to settle questions of title, if any were raised, the trust.ee being required to participate in further litigation with reference to such mortgages, the fund may be permitted to remain in the hands of the receiver until further proceedings show what conditions should be attached to any disposition of the fund.</p>

<p>1. Contracts — Actions to Enforce — Equity—Adequate Remedy at Law.</p> <p>An action at law cannot be maintained to charge a defendant with liability because of his assumption of a contract to which he was 'not a party, and a suit to enforce such liability is cognizable in equity.</p> <p>2. Courts — Jurisdiction of Federal Courts — Diversity of Citizenship.</p> <p>A federal court has jurisdiction on the ground of diversity of citizenship where the parties designated in the bill as plaintiffs and defendants are respectively citizens of different states, and nothing appears from the bill which requires' their rearrangement.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 855.</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. Bankruptcy — Involuntary Peocefdings — Partnership.</p> <p>To sustain proceedings in involuntary bankruptcy against one as partner, a partnership in tact must be sliown.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 51-53.]</p> <p>2. Same — Insolvency—Question fob Jury.</p> <p>As respondent ill proceedings in involuntary bankruptcy is entitled to go to the jury upon everything affecting the question of his solvency, where a determination of an issue whether lie was a partner as charged decides the question of his solvency, such Issue must be submitted to a jury.</p>

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

<p>1. Trusts- Trustee may Purchase Directly of the Cestui Qtte Trust upon Puli, Disclosure.</p> <p>A trustee or an agent may purchase the trust property directly from his cestui que trust sui juris, or principal, on condition that the latter intends that: the former shall buy, that the former discloses to the latter, before the contract is made, every fact he has learned in His fiduciary relation which is material to the sale, that he exercise's the utmost good faith, that no advantage is taken by misrepresentation, concealment of, or omission to disclose, important information gained as trustee or agent, and that the entire transaction is fair and open.</p> <p>[Ed. Note. — Por cases in p'int, see Cent. Dig. vol. 47, Trusts, § 331.]</p> <p>2. Same — Trustee’s Purouasf, of Cestui Que Trust Voidable for Omission, to Disclose Material Fact.</p> <p>But the foregoing condition is inexorable.</p> <p>, Any omission by the trustee or agent to disclose any fact material to the sale learned by him as trustee, any material misrepresentation, concealment, or other disregard of the condition renders the sale and the contract for it voidable, at the election of the cestui quo trust or principal.</p> <p>[Ed. Note.1 — For cases in point, see Cent. Dig. vol. -17, Trusts, § 331.1</p> <p>3. Same — Facts—Conci.usi ons.</p> <p>A trustee, residing in Arkansas to hold and sell land situated in that state and in Texas for himself and a cestui quo trust residing in Massachusetts, sold a right of way to a railroad company for $725, and without disclosing these facts bought the interest of Ms cestui quo trust for $7,500.</p> <p>Held: The contract of sale was voidable at the election of the cestui que trust.</p> <p>[Ed. Note. — 'For cases in point, see Cent. Dig. vol. 47, Trusts, § 331.1</p> <p>4. Equity — Practice—Settlement of Account before Decree ox? Sale Preferred.</p> <p>Where an accounting and a sale of property are required, a settlement, of the account and a determination of the extent of the rights of tlu; parties in the property under an interlocutory decree before the final decree of sale is made is preferable in ordinary cases to a decree of sale before the accounting, because in that way parties may have the benefit of a knowledge of the extent of their interests before the sale, and because this course permits the review by a single appeal of questions which two appeals are necessary to challenge when the decree of sale precedes the settlement of the accounting.</p> <p>5. Same — A Court of Equity has Power to Sell and Convey Band Beyond its Jurisdiction, to Execute a Trust or Enforce a Contract.</p> <p>A court of chancery has plenary power to affect the title to real estate beyond its jurisdiction by a sale and conveyance thereof by its master in suits to execute trusts, to undo frauds and to enforce contracts regarding such real estate, whenever it lias acquired jurisdiction of the persons of the parties interested in the real estate, because equity acts through the person.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Courts — Federal Courts — Jurisdictional Amount.</p> <p>Where county bonds were owned by the holders jointly, they were entitled to join as plaintiffs in a suit thereon in the federal courts, and the whole sum sued for, and not the value of the interest of each party, constituted the amount in controversy for the purpose of determining the court’s jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 890-890.</p> <p>Jurisdiction of Circuit Courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. O. A. 75; Teunent-Stribling Shoo Co. v. Roper, 36 C. C. A. 459.]</p> <p>2. Jotnt Tenancy — Personal Property — Corporations—Right to Sue — Joinder op Parties — “Joist.”</p> <p>Burns’ Aim. St. 189-1, § 8136, provides that the survivor of persons holding personal property in joint tenancy shall have the same right only as the survivors of tenants in common unless otherwise expressed in the instrument Held, that a corporation may be one of several joint indorsees or bearers of a negotiable instrument using the term “joint” in its general sense, and not in its restricted sense, as when applied to a tenancy of real property, and hence may sue thereon as one of several co-obligees joined as plaintiffs.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 4, pp. 3813, 3814.]</p> <p>3. Parties — Joint Obligees — Joinder—Death op Co-Obligee — Survivors.</p> <p>On the death of a joint obligee of certain negotiable bonds, the right to maintain an action thereon survives to his co-obligee, and all such survivors must join in an action thereon; the personal representative of the deceased being an improper party.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Parties, § 19.]</p> <p>4. Abatement and Revival — Death oe Co-Obligee.</p> <p>If one of several co-obligees of negotiable bonds dies, ponding an action thereon, the action may be continued in the name of the survivor, and, if he recovers, he is entitled to the whole sum due on the obligation, and thereupon holds the part of the recovery representing the interest of his deceased co-obligee in trust for those entitled thereto; the obligor having no interest in the distribution of the recovery.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 315-319.]</p> <p>5. Writ op Error — Parties—Erroneous Joinder — Harmless Error.</p> <p>Since the survivor of several co-obligees of negotiable bonds may maintain an action thereon without joining the representatives of a deceased co-obligee, the presence of the personal representatives of such deceased co-obligees as parties, though erroneous, was harmless.</p> <p>6. Abatement and Revival — Death of Co-plaintiff — Revivor—Statutes.</p> <p>Civ. Code Prac. Ky. § 500, provides that, if the right of action survive to or against the remaining parties after the death of one, the action may proceed without revivor after statement on the record of such death or cessation of power. Section 507 declares that an order to revive an action in the name of the representative or a successor or the plaintiff may be made forthwith, but shall- not be made without the defendant’s consent after one year from the time the order might have been made. Held, that the last section applied to the death of a sole plaintiff, while the former was applicable to the death of one of several coplaintiffs, being substantially identical with Rev. St. § 95G ITT. S. Comp. St. 1901, p. 697], and hence, in the case of the death of one of several coplaintiffs,, no revivor was necessary, a statement on the record being sufficient.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 358-376.]</p> <p>7. Same — Jurisdiction—Waiver.</p> <p>While state statutes with reference to revival of actions on death of parties are applicable to actions in the federal courts, except when Rev. St. § 956 [U. S. Comp. St. 190-1, p. 697], relating to such subject applies, a failure to observe such state statutes in a case where there is a surviving plaintiff does not defeat the court’s jurisdiction, and if the defendant permits the suit to go on without a formal entry of revivor and secures a judgment in -its favor on the merits, it cannot object that the order of revivor has not been made for the purpose of sustaining such judgment.</p> <p>8. Same — Time.</p> <p>Neither Civ. Code Prac. Ky. § 500, nor Rev. St. § 956 [U. S. Comp. St. 1901, p. 697], providing for revival of an action áfter the death of one of several coplaintiffs, requires that such revival take place within a year as required by Civ. Code, Prac. Ky. § 507, relating to revival in ease of the death of a sole plaintiff only.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 429-444.]</p> <p>9. ' Same— Statutes — Compliance—Suggestion of Death.</p> <p>A suggestion on the record either by plaintiffs or defendants that some of the - plaintiffs were dead constituted a substantial compliance with Rev. St. § 956 [U. S. Clomp. St. 1901, p. 697], providing for revival in case of the death of one or more coplaintiffs.</p> <p>10. Writ of Error — Order of Revival — Correction of Record in Trial Court.</p> <p>Where, on the death of one or more coplaintiffs in an action which survived and could be continued to termination by the surviving plaintiffs, the personal representatives of certain of the deceased plaintiffs were erroneously joined, and, though no formal order of revivor was made, defendants permitted the suit to proceed to judgment in its favor, the defect not being jurisdictional, the Court of Appeals could order the making of the proper suggestion and the striking out of the names of such personal representatives to correct the record on remand.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3823-3825.]</p> <p>11. Administrators — Foreign Administrators — Actions—Bonds — Waiver — State Law.</p> <p>Under the law of Kentucky, the statutory bond required of a foreign personal representative of a deceased person, to entitle him to sue in the Kentucky courts, is waived by the defendant’s failure to demand it.</p> <p>Lurton, Circuit Judge, dissenting in part.</p>

<p>1. Evidence — 'Weight—Credibility or Witnesses.</p> <p>in the absence of established facts and circumstances with which one’s testimony cannot be reconciled, it cannot be disregarded as incredible.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. voi. 20, Evidence, § 2437.]</p> <p>2. Master and [Servant — Injury to Servant — Res Ipsa Loquitur.</p> <p>Though generally, in actions by employes for negligent injury, the fact of an injury raises no presumption of negligence on the employer’s part, when the character of an accident and the circumstances in which it occurs are such as to point strongly to a condition, which is abnormal and dangerous and to a long-continued existence of such condition, under circumstances indicating that the employer by reasonable care should have known of such condition, and where the evidence shows that tho employe suffered injury through no negligence of his own and through no risk assumed by him, and that such abnormal and dangerous condition was the; proximate cause of the accident, the fact of the relation of employer and empioyé does not forbid an inference of the employer’s negligence from tlie fact of the accident, notwithstanding the absence of direct testimony, by personal observation, of the existence of the specific defect alleged to have caused the accident.</p> <p>[Ed. Note. — For cases in point, seo Cent. Dig. voi. 34, Master and Servant, §§ 831, 898.]</p> <p>3. Same — Fellow Servants — Nature of Common Service.</p> <p>A hydraulic elevator used in a steel works not being a machine whose condition as to safety is constantly changing with its use, so as to require from the persons tending it, as a part of the ordinary use of it, reconstruction or readjustment of parts, as they become worn out or displaced, for materials or new parts supplied by the master for that purpose, the operator of the lever of the elevator and tho millwrights were not, respecting the performance of duties of inspection and repair, fellow servants of one employed to operate an electrical locomotive in. pulling ladle cars onto the elevator.</p> <p>[Ed. Note. — Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 608; Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>4. Same — Evi dence — S deficiency.</p> <p>Evidence in an action for injury to an empioyé caused by the sudden rising of an elevator caused by a defect in the hydraulic cylinder held sufficient if believed, to justify an inference that the sudden rising was due to a defective valve, and that such defect was or should have been known to defendant by ordinary care in inspection; thus meeting the burden of proof imposed apon plaintiff.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 954-977.]</p>

<p>1. Admiralty — Jurisdiction—Statutes—Application.</p> <p>Rev. St. § 566 [U. S. Comp. St. 1901, p. 461], providing that in cases of admiralty and maritime jurisdiction relating to any matter of contract or tort arising on or concerning any vessel of 20 tons burden or upward, enrolled and licensed for tbe coasting trade, and at the time employed in the business of commerce and navigation between places in different states and territories upon the lakes and navigable waters connecting the lakes,' the issues of fact shall be tried by jury when either party requires it, applies only to the Great Lakes and waters connected therewith, and then only to such issues of fact as arise in cases of contract or tort; the statute having no reference to foreign vessels or those trading between ports of the same state.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 595.1</p> <p>2. Same — Effect of Verdict.</p> <p>Where a libel in admiralty was filed by a passenger of a steamboat on the Great Lakes for an assault and robbery on libelant while occupying her stateroom as a passenger by a member of the crew, during which libelant was chloroformed and robbed of her rings, watch, and $38 in money, and a jury summoned' to try the issues of fact as authorized by Rev. St. § 566 [U. S. Comp. St. 1901, p. 461], awarded libelant $15,000,. the district judge properly set such verdict aside on the ground that it was the result of passion and prejudice, or a misunderstanding of his charge, and entered a decree for libelant for $5,000, without reference to whether such verdict was conclusive or merely advisory.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 598.]</p> <p>3. Same — Admiralty Jurisdiction — Transportation Contract — Performance-Negligence.</p> <p>A libel in admiralty in rem was maintainable for injuries to a passenger of a steamboat on the Great Lakes resulting from negligence in the performance of the transportation contract, by reason of which negligence the passenger’s stateroom was entered, and she was assaulted and robbed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 284.</p> <p>Admiralty jurisdiction as to matters of contract, see notes to The Richard Winslow, 18 C. C. A. 347; Boutin v. Budd, 27 C. C. A. 530.]</p> <p>4. Shipping — Carriage of Passengers — Negligence.</p> <p>Where a passenger steamboat on the Great flakes was equipped with 343 staterooms on two decks in two rows, with a passageway between them, the boat was negligent in failing to provide a sufficient watch; one man only being provided for that purpose.</p> <p>5. Same — Negligence of Watchman.</p> <p>Where an oiler on a steamboat was able to leave his quarters below and traverse parts of the boat which were brilliantly lighted, and where he had no right to be, and break into a stateroom, rob a passenger, and' get away without being seen, such facts were sufficient to show that the watchman provided' was negligent.</p> <p>6. Same — Securing .Doors.</p> <p>The vessel was negligent in failing to provide the door of the stateroom with bolts or inside protection .other than a lock which could be operated from outside, and was not excused by the fact that such inside securities might embarrass the passenger in case of fire or sudden danger.</p> <p>7. Admiralty — Appeal—Affirmance.</p> <p>Where, on appeal in an admiralty proceeding from a decree in favor of libelant for $5,000, the Court of Appeals found that the amount awarded would compensate libelant for her injury, the decree would be affirmed villi interest and costs, instead of directing tlie District Court to enter n decree in accordance with the views of the Court of Appeals, which would ho the proper course; the proceeding on apxieal being in the nature of a now trial.</p>

<p>1. Guaranty — Construction and Operation — What Law Governs.</p> <p>A contract' of guaranty made to enable traction companies operating lines in Pennsylvania to buy coal on credit for use on their roads, where - evcr executed, is presumably to be performed in Pennsylvania, and is governed by the law of that state.</p> <p>2. Courts — Federal Courts — Following State Decisions.</p> <p>A contract of guaranty is a well-known form of commercial contract as to the construction and effect of which the federal courts are not bound to follow state decisions not based on a local statute or usage having the force of a local law.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 13, Courts, § 979.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21. C. C. A. 478; Union & Planters’ Bank v. City of Memphis, 49 C. C. A. 468.]</p> <p>3. Guaranty — Remedy op Creditor — Conditions Precedent.</p> <p>The distinction between a general guaranty of payment and a guaranty of collection is well settled; the former being an unconditional, and the latter a conditional, contract. Under a guaranty of payment by a railroad company for supplies, where the company has become insolvent, and its property lias passed into the hands of receivers in a foreclosure suit, the creditor is not compelled to pursue its claim to judgment against the company before resorting to the guarantor; nor is it obliged to unsuccessfully assert a claim to priority over the mortgage debt in the foreclosure suit.</p> <p>[Ed. Rote. — For cases in point, see Cent. Dig, vol. 25, Guaranty, § 89.]</p> <p>4. Same — Amount Recoverable — Interest.</p> <p>Interest is recoverable against a guarantor from the time the debt became due and after demand and notice, although the effect is to increase the judgment beyond the limit fixed by the contract of guaranty.</p>

<p>1. Writ of Error — Former Decisions — Law of Case.</p> <p>Where, on a former writ of error in an action for injuries to a servant, the court reversed a judgment for defendant, and held that the court should have submitted the case to the jury, such determination constituted the law of the case on a retrial, where the evidence was conflicting and much the same as on the first trial.</p> <p>[Ed. Note. — FOr cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4661-4665.]</p> <p>2. Courts — Federal Courts — Submission to’ Juey — State Law.</p> <p>The law of the state with reference to submission to the jury of special interrogatories does not control the federal courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 927.]</p> <p>3. Writ of Error — Review—Matters of Discretion — Submission of Interrogatories.</p> <p>Refusal of the trial judge in the exercise of discretion to submit special interrogatories to the jury because they were not filed until during the argument cannot be assigned as error.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3858, 3859.]</p> <p>4. Same — Invited Error. -</p> <p>Where, in an action for injuries to a servant, defendant’s counsel presented 20 requests to charge with respect to the duties and liabilities of the respective parties, no one of which limited the employer’s duty to provide a safe place to the exercise of ordinary care in that behalf, defendant was not entitled to urge on writ of error to reverse the judgment that an instruction that one of the things which an employer is required under the law to do for the employé is to provide reasonably safe places at which, or on which, or in which the employé is required to work, ote., was defective because an employer was bound only to use ordinary care to provide a reasonably safe place.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3602 -3(504.]</p> <p>5. Master and Servant — Injuries to Servant — Evidence—Usage or Custom.</p> <p>Where, in an action for injuries to a railroad switchman by an alleged defect in an embankment by the side of the track on or over which plaintiff stepped when he left the engine to turn a switch, tlie question arose as to whether the defect was within defendant’s right of way or was on private property adjacent thereto, proof of a custom for switch-men to alight at the place where plaintiff did, and where the defect existed, was admissible to show that though the place may have been private property the defendant by using it for his own purposes, so far as its employes were concerned, was bound to keep it in a reasonably safe condition.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 913-932.]</p> <p>6. Trial-Instructions — Refusal to Request.</p> <p>It was not error to refuse requests to charge, where the instruction? given wore full and fair, and aptly presented the case on the law and the evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]</p>

<p>1. Reformation of Instruments — Mistake—Fraud—Evidence.</p> <p>' Equity has .jurisdiction to reform written instruments where there is a mutual mistake or mistake on one side and fraud or inequitable conduct on the other, but such relief will not be granted unless the evidence is so cogent as to thoroughly satisfy the mind of the court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Reformation of Instruments. § 157.]</p> <p>2. Same — Evidence.</p> <p>Evidence held to sustain finding^ that a note and mortgage had been fraudulently obtained for an excessive amount, and that complainants executed the instruments in good faith under an honest mistake without negligence, and were therefore entitled to reformation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Reformation of Instruments, §§ 157-193.]</p>

The defendant in error was the plaintiff below, and recovered judgment against Southern Railway Company, as defendant, in an action of trespass on the case, from which this writ of error is brought by the railway company. For convenience the parties are hereinafter referred to under the designation of plaintiff and defendant, respectively, as in the trial court.

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

<p>1. Mixes and Minerals — Deeds—'“Coal Bed” — “Coal Vein.”</p> <p>Where a deed conveyed all that certain “coal bed” on Lackawanna creek on lot No. 1, occupied by W., the word “coal bed” was synonymous with “coal vein,” and passed to the grantee the entire bed or vein of coal, and not a parcel or piece thereof.</p> <p>"2. Same — Construction.</p> <p>Where a deed conveyed all that certain coal bed on Lackawanna creek on lot No. 1 now occupied by W„ the expression “all that certain coal bed” was indicative of an entirety; the phrases “on the Lackawanna creek.” “on lot No. 1,” and “now occupied by W.” being merely used to identify the thing conveyed, and not to divide nor define its extent.</p> <p>3. Evidence — Parol Evidence — Varying Written Contract — Deeds.</p> <p>Where the description in a, deed as to the property conveyed was not ambiguous, parol evidence oí an agreement as to the boundaries of the property conveyed to vary the contents of the deed was, inadmissible.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1719-1728.]</p> <p>4. Same — Res Inter Alios Acta.</p> <p>In ejectment to recover an undivided one-half of a vein of coal, certain deeds, in no way connected with the deed under which defendant claimed title, and which also did not tend to maintain plaintiff’s theory, were incompetent for any purpose.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Tennessee.</p> <p>This cause was disposed of in the court below upon a demurrer to the plaintiff's petition. The demurrer was sustained, and the judgment was for the defendant. The opinion of the court by Judge McCall is reported in (C. C.) 149 Fed. 546. The action was for a breach of contract for the use of a sleeping birth in one of the cars of the defendant from Providence, XL I., to Washington, D. C., and an alleged supplementary agreement that he could have a certain railroad ticket, which he liad for transportation from New York to Washington, countersigned in Washington, whereas the railroad company required it to be countersigned in New fork, in cousequonce of which he was refused further transportation by the railroad company at Trenton, N. J., and obliged to return to New York.</p> <p>The petition alleged: “That on the 1st day of September last tlio plaintiff was the holder of a ticket which entitled him to be carried over the Pennsylvania R. R. from New York City to Washington City, and thence over connecting lines to Chattanooga, Tenn., which said ticket be exhibited to the agent of the defendant in Providence, R. I., who informed him that by purchasing a local ticket from Providence to Jersey City he conid soil him and furnish him a lower berth in the Pullman car from Providence to Washington, where lie could get the railroad authorities to fix Ills railroad ticket so that he could go forward on his journey, returning to Chattanooga. The aforesaid agent of the defendant examined the aforesaid railroad ticket, and informed him that it was not necessary for Mm to go to New York for the purpose of having his ticket countersigned. That he could have that done in Washington, and thereupon, and upon the assurance given by the agent of the defendant, tlie plaintiff purchased a local ticket which entitled him to enter upon the train of the connecting railroad company, and to enter a sleeping car thereto attached and to be transported therein over the lines of that carrier to Jersey City and over the lines of the Pennsylvania R. R. from Jersey City to Washington, and haring the assurance as aforesaid, that with the aforesaid railroad ticket and the sleeping car ticket, and upon the undertake ing of the defendant, for the compensation it received for the said sleeping car berth, to furnish the plaintiff the accommodations of the sleeping car from Providence, R. I., to Washington City, and upon the assurance made to him by the agent of the aforesaid defendant, and the warranty that, upon his aforesaid railroad tickets and the sleeping car ticket, he would hare and enjoy the right to occupy the berth he purchased from Providence, R. I., to Washington City, he entered into the aforesaid contract with the defendant company, became a passenger upon the car, occupied the berth assigned to him, and was carried without molestation until the train reached Trenton, N. J., when he was awakened by the porter of the sleeping ear and informed that the train conductor desired to see him. That the train conductor informed him that, notwithstanding the representation and warranty made to him by the-agent of the defendant company, he would not be carried as a passenger, because his ticket had not been countersigned at New York, and that, unless he paid him the local fare, he would be ejected from the car. That the plaintiff thereupon paid to the conductor the local fare to Philadelphia, it being the nearest station at which the train stopped, and then, notwithstanding the assurance and warranty so made by the defendant company as aforesaid, he was ejected by the conductor from the said car, and suffered the humiliation of a public ejection, was necessitated to go back to New York to bave bis ticket countersigned, was delayed upon his trip, subjected to indignities and expense, to his great damage ¡¡510,000, for which he sues and demands a trial by jury.”</p> <p>The demurrer assigned, beside other causes, the following: (1) “Defendant says that as a matter of law the declaration sets forth no cause of action against it, for the reason that there is no allegation that the defendant, or its agents, breached any contract entered into between it and the plaintiff.” (2) “The declaration fails to aver that the Pullman Company failed to furnish the sleeping car accommodations contracted for.” '(3) “The declaration fails to aver that the sleeper upon which plaintiff was being carried was not taken through over the lines of the railroads according to the route indicated by the railroad transportation which the plaintiff alleges he exhibited to the agent of the defendant.” (4) “The declaration does not allege that he was put off the car by the Pullman Company or its agents. On the contrary, it alleges that he was put off by the agents of the railroad company, for a defect in his railroad transportation.” (5) “The declaration alleges that the plaintiff being a holder of a railroad ticket which entitled him to be carried over the Pennsylvania R. R. from New York Cits'- to Washington City, and thence over connecting lines to Chattanooga, Tennessee, and which was required to be countersigned at New York, which ticket he exhibited to the agent of the Pullman Company in order to procure a sleeping car berth; that the agent of the Pullman Company informed him that the railroad ticket could be countersigned at Washington as well as at New York; but said declaration fails to allege any authority upon the part of the agent of the Pullman Company to pass on the regularity of the railroad ticket held by the plaintiff. It fails to allege that it was the duty of the Pullman Company, or its agent, to countersign the railroad ticket, or to pass on its validity.”</p>

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

<p>1. Courts — Federal Courts — Following State Decisions.</p> <p>When the validity, meaning, and effect of a state statute involves no question arising under the Constitution or laws of the United States, a court of the United States should accept the meaning and effect given to such law by the highest court of the state, except in the limited class of cases when rights have vested or contracts have been made under such statute before it has received interpretation by the state court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Courts, §§ 950-957.]</p> <p>2. Same — Construction oe State Statute.</p> <p>The decision of the Court of Appeals of Kentucky construing Act Ky. March, 1906 (Acts 1906, p. 134, c. 22), relating to the taxation of banks and trust companies, which went into effect June 11, 1906, in so far as it holds that such act was intended to and did apply to assessments made in 1906, and that assessments made for that year after it went into effect were lawfully made thereunder, is binding upon a federal court in a suit by a national bank to restrain the collection of taxes based on such assessment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 950-057.]</p> <p>3. Taxation — National Banks — Taxation by State.</p> <p>That the value of the shares of a national bank includes value due to nontaxable United States bonds owned by the bank is no obipction to the validity of an assessment .of such shares for taxation by a state without excluding the value of the bonds.</p> <p>4. Same — Construction oe Kentucky Statute — Validity.</p> <p>Act Ky. 1906, providing the method of taxing state and national banks and trust companies “upon each one hundred dollars of value of the shares” of such banks and companies, as construed by the Court of Appeals of the state, is not invalid as to national banks under the federal law, as imposing the tax upon their capital and surplus, and not on their shares.</p>

Appeals from the Circuit Court of the United States for the Eastern District of Kentucky.

Writ of error to review a judgment of the Circuit Court, Southern District of New York, entered upon the verdict of a jury in favor of the defendant in error who was the plaintiff below. In the following opinion the parties are designated as in the court below.

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

<p>1. Insurance — Payment of Initial Premium — Effect—Forfeitures.</p> <p>On payment of the initial premium on a life policy there is a contract of insurance for the whole life of the insured, and the insurer’s right to terminate such contract for nonpayment of premiums is a forfeiture, which is not favored in law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 891-904.]</p> <p>2. Same — Estoppel.</p> <p>Any agreement, declaration, or course of conduct on the part of an insurance company which leads a party honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting on a forfeiture claimed under the express-letter of the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 941-946.]</p> <p>3. Same — Premiums—Payment—Authority to Receive — Question fob Juby.</p> <p>In an action on a life policy, evidence held to warrant a finding that the insurance company was estopped to deny that its soliciting agent, to whom payment of premium had been made, had authority to receive the same on the company’s behalf.</p>

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

<p>1. BANKEUrTCY — PERSON SUBJECT TO ADJUDICATION — RESTAURATEUR.</p> <p>A corporation engaged in operating a restaurant is not subject to adjudication as a bankrupt, under Banlcr. Act July J, 1898, c. 541, 30 Stat. 544 LU. S. Comp. St. 1901, p. 3418], authorizing an adjudication against any corporation engaged principally in “manufacturing”; a cook not being regarded as a manufacturer within the meaning of the term as so used.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, pp. 434(1-4358.</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank of Mattoon, Ill., v. First Nat. Bank of Mattoon, Ill., 42 C. C. A. 4.]</p> <p>2. Same — “Tbadee.”</p> <p>A corporation engaged in operating a restaurant is not a “trader,” within Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], authorizing an adjudication against a corporation engaged in trading; a '‘trader,” within such section, being a person who buys goods to sell again without change of form or condition by combination and cooking, as in the ease of a restaurateur.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 18.</p> <p>For other definitions, seo Words and Phrases, vol. 8, pp. 7048-7053.1</p> <p>3. Same — ‘‘Mercantile Pursuits.”</p> <p>A Corporation operating a restaurant is not subject to adjudication as a bankrupt under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544 [,U. S. Comp. St. 1901, p. 3418], authorizing an adjudication against corporations engaged in “mercantile pursuits”; the dishes furnished not being merchandise, nor the proprietor a merchant engaged in “mercantile pursuits.”</p> <p>Noyes, Circuit Judge, dissenting.</p>

<p>1. Bankruptcy — Trustee—Accounts—Hearing.</p> <p>Where, after oue qualified as receiver of a corporation in an action in a state court and received and disbursed money, bankruptcy proceedings were brought against the corporal ion, and he qualified as trustee and filed his accounts in the state court to close the receivership, it was improper in the bankruptcy proceeding to summarily order him as trustee to pay into the registry all moneys received by him as receiver in the slate court, since he is entitled to an opportunity to present his accounis to a court and have his claim for credits for payments as receiver passed on.</p> <p>2. Same — Action in State Court — Effect of Subsequent Bankruptcy Proceedings.</p> <p>Though bankruptcy proceedings brought against a corporation in the hands of a state court receiver suspended further administration of the corporation’s estate in the state court, it remained for that; court to transfer the assets, settle the receiver’s accounts, and dose its connection wiih the matter, and any errors committed in so doing could he rectified in due course and in the designated way.</p>

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

<p>Indictment — Aider by Verdict — Good and Bad Counts.</p> <p>Whore accused, a national bank clerk, was indicted under several counts for making false entries in the bank’s books, in violation of Rev. St § 5209 [U. S. Comp. St. 1901, p. 3497], and on conviction on several counts was sentenced to imprisonment for a term less than the maximum provided for a single offense, and at least one of the counts in the indictment was sufficient, the sentence would be applied to such count, and the validity of the remaining counts regarded as immaterial.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 651-654.]</p>

<p>In F,rror to the District Court of the United States for the Southern Division of the Southern District of California.</p>

<p>1. Release — Claim por Personal In.tuby — Admissibility as Evidence.</p> <p>In an action at law for personal injury, it was no valid objection to a wwitten release of liability offered In evidence by defendant that plaintiff did not know, when lie signed it, that it was a general release, or that he had sustained any physical or personal injury; it not appearing that the release was obtained by fraud or misrepresentation, or that plaintiff was not in full possession of his faculties when he executed it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Release, §§ 30-32.]</p> <p>2. Writ ott Ebrob — Harmless Error — Judgment.</p> <p>Since a sealed release of defendant’s liability for injury to plaintiff, not: obtained through fraud nor misrepresentation, nor while plaintiff was not in full possession of his faculties, was a bar to an action for such injury, and entitled defendant to immediate judgment, plaintiff was not prejudiced by a reservation made and considered by the court before entering judgment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4033-4036.]</p>

<p>Bankruptcy — Jurtsbiction—Estoppel to Deny.</p> <p>On a petition to review an order affirming a, referee in bankruptcy’s order bolding tbe title to personalty claimed by bankrupt’s wife to be in the trustee, she cannot question the referee’s jurisdiction to examine into her claim, where she took no steps to review previous orders of the District Court ordering the bankrupt to deliver the property to the trustee, subject to the wife’s right to establish her title thereto, the bankrupt complying with the order, and affirming the referee’s order requiring her to forthwith assert her title, and where she appeared before the referee and answered his order, and much testimony was taken.</p>

Petition for Revision of Proceedings of the District Court of the United States for the Western District of New York, in Bankruptcy.

<p>1. Courts — Circuit Courts of Appeals — Mode of Review — Forfeited Recognizan oe — Certiorari.</p> <p>A judgment at law in a federal court on scire facias on a forfeited recognizance is reviewable by the Circuit Court of Appeals, alike with the Supreme Court, only on a writ of error, and not by appeal.</p> <p>2. Same — Amendment.</p> <p>Where a judgment on a scire facias on forfeited recognizance was sought to be reviewed on appeal, instead of a writ of error, the objection could not be waived by appearance, nor cured by amendment, under Rev. St. § 1005 [U. S. Comp. St. 1901, p. 714], authorizing amendment of a writ of error to cure certain objections therein.</p>

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

Tlie decree appealed from dismissed appellant’s bill for want of equity. Infringement W'as charged of patent; No. 524,423 issued on August 14, 1894, to Lowry for an automatic feeder for twine making machines, and of patent No. 654,991 issued on July 31, 1900, to Lowry for a machine for making grass twine. The following claims of the first patent are relied on: “1.

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

<p>Patents — Invention—Woven Wire Fabric.</p> <p>The Locklin and Fox patent, No. 655,253, for an improvement in woven wire fabrics, which consists of coiled wire springs having the ends flattened to a common plane, and bound by a metallic strip folded longitudinally so as to inclose the ends of the strands and then folded again upon itself, the purpose being to hold the strands in place and to keep the fabric in place under strain, while for a useful improvement, is void for lack of invention in view of the prior art.</p>

<p>1. Evidence — Patents—Suit fob Infringement — Privies—Former Trial.</p> <p>Where the defendants in a suit for infringement of a patent participated in and contributed to the defense in a prior suit on the same patent, which was in fact a test case, they became privies to such suit, and the testimony of a witness therein, since deceased, is admissible against them to establish infringement.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 20, Evidence, §§ 2411-2413.</p> <p>Operation and effect of decision in equitable suit for infringement, see note to Westinghouse Electric Mfg. Co. v. Stanley Instrument Co., 68 C. C. A. 541.]</p> <p>2. Patents — Evidence of Infringement.</p> <p>In a suit for infringement against the Hygienic Chemical Company of New York, where it was shown that defendant was a selling company only, while the Hygienic Chemical Company of New Jersey was a manufacturing company only, the testimony of a witness that he purchased an article shown to be an infringement from the “Hygienic Chemical Company” in New York is sufficient, prima facie, to establish infringement by the defendant.</p>

<p>1. Patents — Anticipation—Prior Application in Patent Office.</p> <p>Statements in a prior application for a patent, relied on as an anticipation of a patent granted while such application was pending, must be so clear and explicit that those skilled in the art will have no difficulty in ascertaining their meaning.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 77.]</p> <p>2. Same — Prior Patent — Accidental Functions.</p> <p>Although a new function appears in a machine made under a patent, if it was accidental, unrecognized by the patentee, and no disclosure thereof made to the public, it is not an anticipation of a subsequent patent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 70.]</p> <p>3. Same — Infringement—Change in Form and Manner of Operation.</p> <p>Although devices may differ in form, in appearance, and in the manner of operation from those combined in a patent, if they combine to do the same work in substantially the same way, they are an infringement.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 380.]</p> <p>4. Same- -Typewriter Escapement.</p> <p>The Hillard patent, No. 530,281 for an Improvement in typewriter escapements, was not anticipated, and discloses an invention of more than ordinary merit, which entitles the patentee to a fair range of equivalents; also held infringed by the machine of the Fisher patent, No. 573,868.</p>

717,490, granted December 30, 1902, to Philip H. Yawman for an improvement in drawers for card indexes, and granting an injunction and an accounting.

This cause comes here upon appeal from a decree dismissing the bill in a suit for infringement of U. S. letters patent, No. 453,032, granted May 26, 1891, to Harry II. Blades for automatic elcctricswitch mechanism.

<p>Patents — Invention—Process and Apparatus for Treating Sewage.</p> <p>The Cameron, Coinmin and Martin patent No. 034,423, for a process of and apparatus for treating sewage as to the process claims, the essential feature of which is the securing of the separate and successive action of anaerobes and aerobes on the organic matter of the solids in a Rowing current of sewage by secluding it before its passage into the aerating tanks in a septic tank, where it is excluded from light, air, and agitation until by tile anaerobic action generated therein all organic mailer is dissolved aiid the entire current liquefied, was not anticipated and discloses patentable invention in the discovery and utilization of a process of nature for a practical purpose. The apparatus claims, which cove'' the construction and arrangement of the series of tanks, disclose nothing broadly new and are void for lack of novelty. The process claims also held infringed.</p>

This cause comes here upon cross-appeals from a final decree of the Circuit Court, Northern District of New York, which held one claim of a patent valid and infringed, and dismissed the bill as. to four other claims. The patent is No. 528,223 granted October 30, Í894, to D. M. Cooper for Improvement in Workman’s Time Recorder. The opinion of the Circuit Court is reported in 152 Red. 717. .

<p>In Equity. Suit to enjoin alleged infringement of United States letters patent No. 743,114, of November 3, 1903, application filed September 22, 1902, to Sieber & Trussell, assignee of Emory A. Trussell, for a temporary binder.</p>

<p>1. Patents — Suits fob Infringement — Effect oe Prior Decisions.</p> <p>An interlocutory decree adjudging infringement of a patent is not conclusive between the parties in another suit iu a different court, and the question must be given independent consideration therein.</p> <p>2. Same — Infringement—Oan Opener.</p> <p>The Cleveland patent, No. 727,905, for a can opener, which consists of a lever device for attachment to cans or boxes having tight fitting covers to pry off the covers, was not anticipated and discloses patentable invention, but i.s limited by the prior art to the specific construction described and claimed. As so construed, hold not infringed by a device which lacks an offset in the body of the can between that and the cover in which the lever is to lie, which is an element of the third claim; and in which the outside handle does not lie substantially parallel to the surface of the receptacle as required by the other two claims.</p>

<p>Patents — BvnnmoN—Blank Rook .</p> <p>The Bowman patent, No. 468,780, lor a blank book, claim 2, in view of the prior art, is void for lack of patentable invention.</p>

<p>In Equity. On motion to punish for contempt for violation of injunction, and on motion to set aside default.</p>

<p>Patents — Seamless Lace-Fbont Stocking — Nonpatentable Abstbaction.</p> <p>The Blood patent, No. 743,231, claims 3 and 4, being for the mere conception or idea of a machine-knit seamless single-feed stocking having open or lace-work meshes on the front of the leg and foot, to say nothing of its being merely a putting together of old features, is an abstraction, which is not patentable.</p>

<p>Patents — Suit for Infringement— Substitution of Parties.</p> <p>Where a complainant assigns his right under a patent pending suit for its infringement and after the expiration of the patent, his assignee is entitled to be substituted as complainant and to file an original bill in the nature of a supplemental bill, and the filing of such bill is not the institution of a new suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 472.]</p>

<p>In Equity. Suit for infringement of patent. On demurrer to bill.</p>

<p>Application for Naturalization.</p>

<p>1. Corporations — Consolidated Corporations — Receivers.</p> <p>Where one of the main purposes of a receivership was to enable all tbe parties in interest to save a concern which was a consolidated corporation, at least one of the receivers should be chosen from the management, because of his familiarity with its history and the transactions of the organization.</p> <p>2. Receivers — Nonresidents—Bonds.</p> <p>Where one of the receivers of a corporation was a nonresident, his bond should be conditioned that he would appear when required by the court, either on notice to him within or without the state, or on notice to the counsel for the receivers.</p>

<p>Bankruptcy — Restraining Order — Enforcement op Attorney’s Lien.</p> <p>A court of bankruptcy will not by a restraining order interfere with the carrying into effect of a valid order of a state court, based on a finding that attorneys for a bankrupt are entitled to a lien on a judgment recovered for him prior to the bankruptcy.</p>

In Equity. On motion for preliminary injunction. Complainant, a Wyoming corporation, owns mines in the Goldfield Mining District, and also owns about 97 per cent, of the capital stock of the Goldfield Mohawk Mining Company, Red Top Mining Company, Goldfield Mining Company, and Laguna Goldfield Mining Company. It operates all of its own mines, as well as the mines of said companies, as one property for the use and benefit of itself and other stockholders.

<p>1. Judgment — Conclusivenessi—Issues.</p> <p>Where proceedings by defendant water company to condemn all the water of a stream for public use as against complainants, lower riparian proprietors owning a mill on the stream in another state, wei’e dismissed on the ground that the state’s right of eminent domain had no extraterritorial force, and that the compensation to be awarded for the taking of complainants’ rights could not be determined in a state in which they did not reside, such judgment of dismissal was not conclusive against defendant’s right to take a fair proportion of the stream for public use which was not in issue in a prior suit.</p> <p>2. Eminent Domain — Remedies oe Owners op Property — Interstate Waters and Water Courses — Injunction—Laches.</p> <p>Defendant was incorporated in July, 1903, under the laws of Pennsylvania to furnish water for public purposes with the right of eminent domain, and on July 24th decided to appropriate the whole of a stream on which complainants, who were lower riparian proprietors, operated a paper mill in Maryland by water power from such stream. In October, 3903, complainants were aware of defendant’s intent to appropriate water from the stream, and employed an attorney to protect their rights. I-Ie at first insisted that defendant should cither desist from its intent to take water from the stream or purchase complainants’ plant at a specified price. Defendant declined either, but offered to pay complainants 85,000 for the privilege of taking five to six million gallons daily which was declined. Nothing was done until January, 1904, when complainants’ counsel threatened an injunction, but finally admitted that this would be dissolved on the filing of a bond to pay damages sustained, it being then agreed that 60 days’ notice should be given before defendant began to pump. • This notice was given in December, 1904, but nothing further was done until June, 1905, when defeudant attempted to condemn complainants’ rights which proceeding was dismissed April 14, 190G, prior to which, on January (5, 190(5, complainants, by now counsel, filed a bill to restrain the diversion of the water from the stream, defendants in the meantime having made large expenditures in the furtherance of their undertaking. Held, that complainants were barred by laches from insisting on their right to restrain defendant’s appropriation of so much of the stream as had been taken, and were at most only entitled to compensation for the damages sustained.</p> <p>3. Equity — TUij.—Kki extiox.</p> <p>Where, in a suit to restrain an upper riparian proprietor from withdrawing water from a stream, it was held that complainants were barred by laches from objecting to such withdrawal, and were only entitled to damages for the injury sustained, compensation will be allowed according to the water so far taken, the bill being retained as a pending case so that further compensation might be awarded in case of a further taking thereafter.</p>

<p>1. Contracts — Iij.bgai.ity—Public Poxjcy.</p> <p>Under tlie Georgia law, contracts to corrupt legislation or the judiciary, contracts in general restraint: of trade, contracts to evade or oppose the revenue laws of another country, wagering contracts, and contracts of maintenance or champerty are contrary to x>nblie policy and unenforceable.</p> <p>2. Gaming — Gaming Contracts.</p> <p>Gaming contracts, and all evidences of debt, incumbrances, or liens on property executed on a gaming consideration, are void in the hands of any person.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Gaming, § 39.]</p> <p>3. Same — Broker’s Services — Losses.</p> <p>A broker, who is privy to a wagering contract for the purchase or sale of futures, cannot recover either for his services or losses.</p> <p>[Ed. Noto. — For eases in point, see Cent. Dig. vol. 24, Gaming, §§ 73-75.]</p> <p>4. Same — 'Validity of Contract — '“Gambling Contract.”</p> <p>An agreement for tlie sale of any commodity lor future delivery is void as a “gambling contract,” whore neither party intends an actual delivery of tlie property purchased or sold; but if one of the parties in good faith coniempl¡tied an actual delivery, and not a mere settlement by a payment of differences in the rise and fall of the market price, the contract was valid and enforceable.”</p> <p>[Ed. Note — -For cases in point, see Cent. Dig. vol. 24, Gaming, §§ 22-27.</p> <p>For other definitions, see Words and Phrases,' vol. 4, pp. 3028-3029.]</p> <p>5. Brokers — Employment—Implied Contract.</p> <p>'The employment of a broker to buy or soil a commodity for future delivery implies, not only an undertaking to indemnify the broker in respect to tlie oxeeulion of his agency, but also a promise on tlie principal’s part to repay or reimburse the broker for such losses or expenditures as may become' necessary or result from the performance of the agency.</p> <p>6. Gaming — Dealing in Futures — Burden of Proof.</p> <p>Where, in an action for broker’s commissions and losses in the purchase and sale of cotton for future delivery, defendant pleaded that the contract was a gaming agreement, the burden of proof that neither party intended an actual delivery, but a mere settlement of differences in the market price, was on defendants.</p>

<p>1. Shipping — Proceeding por Limitation op Liability — Procedure.</p> <p>In a proceeding by the owner of a vessel for limitation of liability op account of a collision, where an answer is tiled by the owner of the other vessel setting up a claim for damages, the question of the knowledge or privily of the petitioner, though jurisdictional, and the question of liability for the collision, where both are put in issue by the pleadings and are io be determined largely upon the same evidence, may properly be beard at the same time as a matter of convenience, and the court is not required to hear and dispose of the jurisdictional question sepa rately.</p> <p>[Ed. Note. — Limitation of liability of vessel owner, see note to The Longfellow, 45 (\ C. A. 387.J</p> <p>2. Gom.ision — Vessel Adrift — Defenses.</p> <p>If damage is done by a vessel adrift, her owner is allowed to show affirmatively, if he can, that her drifting was the result of inevitable accident or a vis major which human skill and precaution and a proper exercise of nautical skill could not have prevented; and such proof establishes a defense, even in a suit in ran against the vessel herself.</p> <p>3. Same — Permitting Scow to go Adrift — Negligence op Watchman.</p> <p>Petitioner, a corporation, left two of its mud scows overnight made fast to a permanent mooring near the shore in accordance with its custom. They were fastened to the mooring by pennants and to each other by a cross-line, and at C o’clock lights were set on each. During the evening one wont adrift, and at 10 o’clock claimant’s ferryboat came into collision with it and was so injured that she sank. At that time there was no light on the scow, and when found the next morning there were no lines on her bitts and no lights on board, although there had been two the evening before. The pennant was found attached to the mooring and intact. Petitioner kept no watchman on board the scows, but kept one on a dredge, which was moored near by, whose duty it was to care for the scows and see that their lights were kept burning. During the evening in question he was part of the ‘time below, and once went on shore. He saw the lights on the scows in the earlier part of the evening, but when he went to the mooring at 9 o’clock found that one scow was gone; but, supposing that it had been taken by a towboat, he paid no further attention to it. The night was clear, with little wind. Held, that the uncertainty as to the manner in which the scow went adrift and lost her lights did not relieve her from fault for the collision; the watchman having clearly been negligent.</p> <p>4. Shipping — Limitation of Liability foe Collision — Privity or Knowledge of Owner.</p> <p>The precautions taken by the petitioner, however, to secure and care for the scow, were sufficient; and, it appearing that none of its managing officers had knowledge of her going adrift or of the negligence of the watchman, it was not chargeable with privity or knowledge which precluded it from limiting its liability.</p> <p>5. Collision — Duty to Maintain Anchor Watch on Scow — Massachusetts Statute.</p> <p>St. Mass. 1848, p. 800, c. 314, § 4, requiring every vessel anchoring in Boston Harbor to keep an anchor watch at all times, does not apply to a mud scow having no accommodations for a watchman, when made fast to a permanent mooring near a dredge, in connection with which she is used and on board of which a watchman is kept to look after both vessels.</p> <p>6. Same — Ferryboat and Drifting Soow — Lookout.</p> <p>A ferryboat, which came into collision at night with a mud scow drift- - ing without lights, held not chargeable with contributory fault because she had no lookout in the bow; a lookout having been kept from the pilot house, which was sufficient in respect to any other vessel carrying proper lights.</p>

In Admiralty. On petition of Mary E. and Vernon B. Davenport for leave to file answers and proofs of claim after return day of monition.

<p>In Admiralty. Libel to recover damages for personal injuries.</p>

<p>Motion to Annul Order of Reference.</p>

<p>1. Bankruptcy — Diens—Attachment—Vacations.</p> <p>An. adjudication in bankruptcy discharges any attachment pending against property of the bankrupt, and releases the property therefrom, unless the bankruptcy court orders that the lien be preserved for the benefit of the bankrupt’s estate, under the express iirovisions of Bankr. Act July 1, 1898, e. 541, § 67f, 30 Stat. 561 [U. S. Comp. St. 1901, p. 34501.</p> <p>2. Same — Seizure oe Property.</p> <p>An adjudication in bankruptcy, after the attachment of certain of the bankrupt’s property, operates as a seizure of the property by the bankruptcy court from the date of the adjudication, and on the appointment and qualification of a trustee the title and right thereto passes to tin' trustee, who becomes the legal custodian of the property until it shall be awarded to whomsoever it rightfully belongs.</p> <p>3. Same — Possession oe Sueriee.</p> <p>Where a sheriff, after having attached property of a bankrupt, was informed of the adjudication and requested by the referee to hold the property for the referee until a trustee could be appointed, the attachment having been dissolved by the adjudication, the sheriff was in possession as custodian of the bankruptcy court, so that a seizure from the sheriff on writs of replevin consatniod a direct interference with tlio court’s custody of the property.</p> <p>4. Same- -Contempt.</p> <p>Where attorneys for tlie sellers of personal properly to a bankrupt had knowledge of the bankruptcy adjudication against the buyer at the time they sued out writs of replevin, under which they took the property from the'possession of the sheriff, who was holding it under attachment, which had been vacated by tlio bankruptcy adjudication, and such attorneys, claiming that their clients were entitled to rescind the sales for fraud, shipped the property out of the state and the jurisdiction of the bankruptcy court, they were guilty of contempt equally with their clients, which could he purged only by their returning the property, paying its value to the trustee, or executing bonds to pay the value to the trustee, on its being finally determined that the trustee was entitled to the property.</p>

<p>1. Insurance — Mutual Companies — Meetings—Notice.</p> <p>The by-laws of a mutual insurance company contained no provisio’n for notice of a special meeting at which amendments of the by-laws might be adopted, but declared that notice of annual meetings should be given by publication for three consecutive days, at least five days prior thereto, in two daily newspapers published in New York. Insurance Law N. Y., Laws 1892, p. 2013, c. 690, § 209, requires every mutual insurance company to cause amendments proposed to any by-laws to he mailed to Its members, so as to give them not less than five days’ notice of the time and place where they are to be considered. Held, that such article amounts to a requirement- that reasonable notice should be given, and that five (lays' notice was not sufficient, where the mnendnients proposed were complicated and the members were scattered over the United States and foreign countries.</p> <p>2. Same — Misapprication of Funds — In,tunot ion — Suit iiy Members.</p> <p>A, bill by the holder of an assessment policy in defendant company, on behalf of himself and all others similarly situated, charging that defendant had fraudulently misapplied a fund collected as a reserve fund from assessments for the benefit of the owners of such policies, and had fraudulently charged liens against them to the amount of about 30 per cent, of their face value, had fraudulently assessed the assessment policy holders for the purpose of maintaining a reserve required by law for the level premium insurance, in which the assessment; policy holders wore not interested, and that the officers of defendant company had wasted and misapplied its assets, so that it was insolvent, stated a ground for equitable relief, in so far as it prayed for an accounting for the cancellation of the liens, and the ascertainment of the amounts of the assessment policies.</p>

<p>Discovery — Books and Papers — Inspection—Photographic Copies.</p> <p>Rev. St. § 721 [U. S. Comp. St. 1901, p. 5831, provides that the courts of the United States in actions at law may require production of writings containing evidence pertinent to the issue in cases and under circumstances where they may be compelled to produce the same by the ordinary chancery rules. Held, that where plaintiffs sued on a document alleged to have been signed by defendants’ decedent, which defendants claimed was a forgery, and defendants alleged that plaintiffs had in their possession letters purporting to have been signed by deceased, written in the same handwriting as the document sued on, in which reference was made thereto, defendants were entitled to an order under such section requiring plaintiffs to produce such letters for defendants’ inspection and to permit photographic copies to he made thereof under proper restrictions.</p> <p>[Ed. Note.--For cases in point, see Cent. Dig. vol. 10, Discovery, § 118.].</p>

<p>1. Writ of Error — Final Judgment — Vacation of Judgment.</p> <p>An order setting «sido « Judgment and dismissing the complaint is a final order, to review which a writ of error Lies.</p> <p>2. Same — Circuit Court of Appeals -Jurisdiction — Matters of Discretion.</p> <p>The Circuit Court of Appeals has no power to review matters of discretion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, Ü 3811.</p> <p>Jurisdiction of Circuit Court of Appeals in general, see notes to Ban Ow Bow v. United Stales, 1 C. C. A. 6; United States Freehold Band & Emigration Co. v. Gallegos, 32 C. C. A. 475.]</p> <p>3. Judgment — Orders—Vacation.</p> <p>Where an order was entered by the trial judge setting aside a judgment and. dismissing the complaint, an application to vacate such order should be made to the judge who made the original order.</p>

<p>Towage — Loss of Tow — Liability of Tug.</p> <p>Libelant engaged respondent tug to tow a scow from New York to Larebmont Harbor, Long Island, where her cargo of dirt was to be delivered to a dredge. The scow was taken in tow about noon, but did not reach the harbor until after dark, and -was then anchored by the tug, which proceeded with another tow, and then to her anchorage. During the night a hurricane arose, and the scow dragged her anchor and was wrecked on the shore. Libelant alleged that the loss was due to the fault of the tug in not starting with the tow earlier, in leaving her anchored outside the harbor in a dangerous place, and in failing to stand by or come to her assistance. The claimant claimed, on the other hand, that the scow was left inside the harbor at the place called for by the contract and that the towage was finished. Held, on" conflicting evidence, that the burden of proof resting on libelant was not sustained on either ground; it further appearing that when the scow was loft the weather was fine, and there were no indications of a storm, and no warning of it had been given by the Weather Department when the towage was begun, and that after the storm commenced the tug could not have gone to the assistance of the scow.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 30.]</p>

<p>1. Habeas Corpus — Federal Courts — Review of State Court’s Judgment.</p> <p>The United States Circuit Court will not, on application for a writ of habeas corpus, review a judgment of a state court convicting one of crime on an objection that the judgment is void and that his detention thereunder is a deprivation of liberty without due process of law, in violation of the federal laws and Constituííod, the judgment having been affirmed by the state appellate court, where the remedy by .writ of error from the United States Supreme Court to review the judgment of the state court has not been exhausted.</p> <p>lEd. Note. — For cases In point, see Cent. Dig. vol. 25, Habeas Corpus, §§ 38-45.</p> <p>Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C. C. A. 4.]</p> <p>2. Courts — Writ of Error from Federal Supreme Court — Application—'To Whom Made.</p> <p>Under Rev. St. U. S. § 999 [U. S. Comp. St. 1901, p. 732], providing that, when a writ of error is issued by the United States Supreme Court to a state court, the citation shall be signed by the Chief Justice, etc., of such court, rendering the judgment complained of, or by a justice of the United States Supreme Court, etc., one's remedy to review a state court judgment in the United States Supreme Court is not exhausted by a refusal of his application to a justice of the state court for a writ of error from the United States Supreme Court; but, on such refusal, application must be made to a justice of the latter court before the remedy is exhausted.</p>

<p>Collision — Steamship and Babk Meeting in Fog — Violation op Rules.</p> <p>A collision off tbe New Jersey coast at niglit in a dense log between a steamship south-bound and a meeting bark hold due solely to the fault of the steamship; the evidence showing that she was going at an excessive speed, not less than eight knots an hour, and that on hearing the foghorn of the bark on her starboard bow, instead of stopping and navigating with caution, as required by article 16 of the International Rules [U. S. Comp. St. 1901, p. 2869], her master, misunderstanding the number of blasts, ported the helm and proceeded without reduction of speed across the course of the bark, which was sailing free at a speed of about four knots and giving three blasts of her foghorn, properly indicating her course, which was not changed.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 43, 51.</p> <p>Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

<p>1. Shipping — Liability op Vessel por Causing Dangerous Swell — Injury to Smaller Vessels.</p> <p>Tliere is no distinction between harbor and river navigation in respect to the liability of a large vessel for causing dangerous swells by which other lawful and properly handled vessels are injured; nor is it any defense against such liability that the larger vessel' was proceeding on her ordinary course and at her customary speed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 44, Shipping, § 34Ó.</p> <p>Liabilities of vessels for injuries caused by creation of swells, see note to The Asbury Park, 78 C. C. A. 3.)</p> <p>2. Same.</p> <p>While a canal boat was lying at a dock at a narrow and deep place on the Hudson river loading with ore, the large steamer Hudson, running between New York and Albany, passed at a speed of about 18 miles an hour, causing such heavy swells as to dash the canal boat against the pier with such, force as to canse a leak. She was then removed to a bulkhead, where she was improperly and insufficiently fastened and left without attention, and during the night she filled and sank on the shelving bottom near the edge of the deep channel. When the Hudson passed on the next day, her swell caused the canal boat to break her lines and slide off into the deep water, and she became a tolal loss. Another boat, properly moored near by, was not injured. Attempts were made to signal the Hudson as she approached; but they were ineffectual, and not seen. Held, that she was liable for the injury caused on the first day, which was the direct result of the swell, when the canal boat was in a proper place and properly cared for, but that she was not the proximate cause of the sinking of the boat on the next day, which was due to the negligence and inattention of those in charge, and was not liable for the loss of the boat or her cargo.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 44, Shipping, § 345.]</p>

<p>1. Literary Property — Subjects of Ownership — Actors’ Methods.</p> <p>A theatrical manager, claiming the exclusive right to produce an opera, has no literary property in the manner in which actors appearing in it dance or posture; they, if any one, having the right to complain of an imitation.</p> <p>2. Copyright — Abandonment of Bights.</p> <p>A notice, printed on the face of a publication of the songs and pianoforte score of an opera, that they could not be used for stage performances except with the consent of the owners’ agents, even if a valid reservation in Germany, where the publication was made, does not prevent the publication being by the law of the United States an abandonment of the words of the songs.</p> <p>3. - Same — Motion for Preliminary Injunction — Evidence.</p> <p>On a motion to temporarily enjoin a vaudeville performer from singing a soDg from an opera which complainant claims the exclusive right to produce, the court may consider the fact that the songs and pianoforte score of the opera had been published, as showing an abandonment of the words of thfe songs, though there is no proof that the publication was authorized by the composer and the authors of the opera, as would be necessary on final hearing.</p> <p>4. Same — Reliance on Copyright — Effect on Common-Law Rights.</p> <p>Where one takes the benefit of the copyright law to protect his rights in literary property, he cannot rely upon his common-law right.</p> <p>[Ed. Note. — For cases.in point, see Cent. Dig. vol. 11, Copyrights, § 1.</p> <p>Rights of authors to control of publication, disposition, or use of their productions independent of statutory copyright, see note to Bobbs-Merrill Co. v. Straus, 77 C. C. A. 620.]</p> <p>5. Same — Preliminary Injunction — Proof—Sufficiency.</p> <p>Since a preliminary injunction should only be granted on a perfectly clear case, the District Court will not temporarily enjoin a vaudeville performer from singing a song from, and using the orchestration of, an opera which complainant claims the exclusive right to produce, where his title is doubtful.</p>

<p>1. Bankruptcy — Preferred Claims — State Taxes — Cigarette “Tax.”</p> <p>Code Iowa, § 5006, provides a penalty by fine and imprisonment for selling cigarettes in violation of its provisions; and section 5007 imposes an annual tax on every cigarette dealer, which tax is declared to be in addition to all other taxes and penalties, and shall constitute a perpetual lien on all property used in connection with the business, hut that payment of the tax shall not he a bar to prosecution under any law prohibiting the manufacture and sale of cigarettes. Held, that such imposition constituted a “tax,” within Bankr. Act July 1, 1898, c. 541, § 04a, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], providing that the bankruptcy court shall order the trustee to pay all taxes legally due by the bankrupt, in advance of the payment of dividends to creditors; the word “tax” in the latter section not being used in any restricted sense, but broadly to include all obligations imposed by the state and general governments under their respective taxing or police power for governmental or public purposes.</p> <p>[Ed. Note. — For other definitions, see AVords and Phrases, vol. 8, pp. 6867-6886, 7813.]</p> <p>2. Courts — Jurisdiction of Federal Court — Construction of Bankruptcy Act.</p> <p>The -meaning of the word “tax,” as used in Bankr. Act July 1, 1898, c. 541, § 64a, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], is for the ultimate determination of the federal courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1331.]</p>

<p>1. Courts — 'United States Courts — Jurisdiction—Action Against Alien-Attachment.</p> <p>Where the United States Circuit Court had jurisdiction of a suit by plaintiffs against the R. & M. Co., in which a claim owing to the latter by defendant was attached, and would have had jurisdiction of such a suit by plaintiffs against defendant, the fact that the R. & M. Co. could not have sued the defendant in the United States Circuit Court, because both wore aliens, did not deprive such court of the power to attach the debt owing from defendant to the It. & M. Co.; the R. & M. Co. being entitled to sue defendant in the state court.</p> <p>2. Attachment — Action in Aid oe Attachment.</p> <p>Where a debt is attached under the Codes of New York or California, judgment cannot be issued against the debtor attached in the original action, as in case of garnishment; but a new action must bo brought against the person attached, to enforce the attachment lien.</p> <p>3. Same — Jurisdiction.</p> <p>Where a debt owing by a nonresident was attached in a suit in California, an action to enforce the attachment lion was not inquired to be brought in the court out of which the attachment issued, but might be properly brought and prosecuted in any other competent jurisdiction.</p>

<p>Bankruptcy — Peeve heed Claims — Rent—Costs.</p> <p>A landlord’s claim for rent of the premises where the bankrupt’s goods were lodged at the time of his bankruptcy is a preferred claim, which is payable in full out of the proceeds of such goods, undiminisked by anything except the costs of sale.</p>

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

This was an action by W. W. Alston to recover damages from L. A. Tooker, D. B. Loy, and C. A. Reed for their fraud and deceit in inducing hinj to purchase interests in a mining lease. A trial to a jury resulted in a verdict and judgment for $6,500 against Tooker and Loy, who for convenience will be referred to in the opinion as the “defendants.” There was no evidence that Reed participated in the conduct complained of, and the jury found in his favor.

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

<p>Petition to Superintend and Revise Proceedings of the District Court of the United States for the Western District of Texas.-</p>

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

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

<p>1. Receivers — Claims of Others to Property — Practice—Intervention.</p> <p>One who claims to be the owner of personalty taken from his possession by the receiver in an action against the seller properly presents a petition pro interesse suo, asserting such claim, in the proceeding in which the receiver was appointed.</p> <p>2. Mortgages — Default—Rents.</p> <p>A real estate mortgage carries with It, in equity, a right to the accruing rents, when there has been a default, and the security is inadequate, and the debtor insolvent; and in such a case the court will appoint a receiver to hold them until the event is ascertained. The mortgage is thus made to operate as an equitable assignment of the rents.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1374, 1375.]</p> <p>3. Same — Purchaser of Growing Crops — Pending Suit — Rights.</p> <p>Where the bill of complaint in a mortgage foreclosure proceeding charged that the property was of insufficient value to secure the debt, and that defendants were insolvent, the court could enjoin defendants from disposing of the property and appoint a receiver thereof and of the rents, etc.; and hence petitioner who knew of the pendency of the action, could not, while the petition for the appointment of a receiver was pending, defeat plaintiff’s rights to subject growing crops to the mortgage by buying the crops, though he did not know what the prayer of the complaint was, nor of the order to show cause why a receiver should not be appointed, knowledge of the pcndencyo of the suit being sufficient to put him on inquiry as to the nature of tho° relief demanded and as to all proceedings had in the action. As against one having such notice, the receiver’s title and right of possession relates back to the date of the application for his appointment.</p> <p>4. Receivers — Expenses—Liability oe Pkopeett.</p> <p>Where the court in a mortgage foreclosure proceeding acted within its jurisdiction in appointing a receiver, he could resort to the property in his possession as such receiver for the payment of expenses in connection with the property and his compensation, though after his appointment the mortgaged property was sold under decree of foreclosure for an amount sufficient to pay the debt and costs.</p>

<p>1. Trade-Names — Name of Copyrighted Book — Expiration of Copyright-Effect.</p> <p>On the expiration of tlie copyright on the name “Webster,” used in connection with dictionaries, the name became public property; though such name as applied to the dictionary published by the owner of the copyright had acquired a secondary meaning, indicating a particular book published and sold by such owner.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 16.J</p> <p>2. Same.</p> <p>The right to use a copyrighted name upon the expiration of the copyright becomes public property, subject to the limitation that the right shall be so exercised as not to deceive members of the public and lead them to believe that they are buying the particular thing which was produced under the copyright.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 16.]</p> <p>3. Same — Use of Name — Advertising—Injunction.</p> <p>A publisher, whose copyright on the name “Webster” as used in connection with dictionaries has expired, may be enjoined by a competing publisher of dictionaries from issuing circulars to the effect that it has the exclusive right to use the name in such connection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 86.]</p> <p>4. Same.</p> <p>The copyright on “Webster’s Unabridged Dictionary” having expired, a competing publisher of “Webster’s Dictionary” or “Webster’s Imperial Dictionary” may be enjoined by the original jmblisher from issuing misleading and deceptive circulars and advertisements which show an intention to trespass upon the reputation of the original publishers, and deceive purchasers into buying the competing publisher’s dictionary, on the supposition that it is one of the series published by the original publisher.</p> <p>{Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 86.]</p> <p>5. Same.</p> <p>The M. Co.’s copyright on the name of “Webster,” as used in the title Of dictionaries, having expired, O. published dictionaries bearing that name, with the evident purpose of leading the public into supposing that they were buying Webster’s Dictionary as improved by M. Important work of Noah Porter for M. is prominently referred to in its title pages. O.’s title page reads, “Being the authentic unabridged dictionary of Noah Webster, LL. D. * * * prepared under the direction of Noah Porter.” On the backs of some of his publications O. printed “The latest complete authentic Webster’s Dictionary,” the word “authentic” being plainly borrowed from the backs of M.’s publications. Held that, though O. printed his name on the back or cover and on the title page of his dictionaries, and used “Imperial” and “Universal” in the title, and not “International,” as used by M., be was guilty of unfair competition.</p> <p>6. Same — Intent.</p> <p>The presence of an inequitable purpose is an element of great weight in determining a question of fairness in trade.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 80.]</p> <p>7. Same.</p> <p>Where one avails himself of the principle of public dedication of a name, he must in good faith fully identify his production, and clearly disassociate it from that of one who has given significance to the name, and sufficiently direct the mind of the trading public to the fact that, though the thing is of the same name, it is something produced and put upon the market by himself.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 86.]</p>

<p>1. Telegraphs — Messages—Delay in Transmission — Contract.</p> <p>Where plaintiffs wrote a message on a blank reciting that the message was received by the telegraph company subject to tile terms and conditions on the back of the blank, which were agreed to, plaintiffs were charged with notice of such conditions, though they were not read and plaintiff’s’ attention was not called to them. '</p> <p>['Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 45.1</p> <p>2. Same — Negligence.</p> <p>Plaintiffs, before sending a telegram from Tacoma to Alaska with reference to a proposal for a government contract, explained tbe importance of tbe message to tbe manager of the sending office, and be, after satisfying himself of bis ability to transmit it promptly, undertook to do so. Within 10 or 15 minutes after starting tbe message such agent knew that tbe transmission would be interrupted, and, though be knew that it was essential that it be delivered before noon of the succeeding day in order to be of avail, did not notify tbe senders of such interruption, and the message was not delivered until eight days thereafter. If notice of the interruption had been given, the senders might have protected themselves by communicating with the War Department at Washington, which was known to the agent at the sending office. Held, that the telegraph company was negligent in failing to notify the senders of the interruption, against which it could not contract for immunity from liability.</p> <p>[Ed. Note.' — Dor cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 39.</p> <p>Delay in transmission of message — failure to disclose that line was not in working order, see note to Pacific Postal Telegraph Cable Co. v. Fleisehner, 14 C. C. A. 177.]</p> <p>3. Same — Damages.</p> <p>Where plaintiffs, discovering a mistake in certain proposals for government work, telegraphed the government officer in charge of the bids to add 5 per cent, to their proposal, but such message was not received in time because of the telegraph company’s negligence, and plaintiffs were compelled to do the work at the original price, and the government officers would have added the 5 per cent, if the telegram had been received prior to the opening of the bids, the telegraph company was liable for such additional amount.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 64-08.]</p> <p>4. Same — Notice of Claim.</p> <p>Where a telegram was filed for transmission on June 12, 1903, but the senders had no knowledge, prior to July 11th following, of the telegraph company's negligent failure to deliver the same, and notice of claim for damages was filed on August 17, 1903, the claim was in time, under a rule requiring claims for damages to be presented within 60 days after the message is filed for transmission.</p>

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

<p>1. Waters and Watee Courses — Appropriation—Statutes.</p> <p>Act Wyo. Ter. March 11, 1886 (Laws 1886, p. 294, c. 61), provide that one claiming a tvater right shall file in the office of the clerk of tlie proper county and in the office of tlie clerk of the district a notice of such claim, and that in any controversy concerning water rights no evidence shall be received in behalf of any claimant until such statement or claim is filed by him. Held, that such act was not intended to provide an exclusive method of appropriation; its only effect being to take from an appropriat- or who failed to file such notice the right to claim an appropriation prior to the time when the water was actually supplied and used.</p> <p>2. Same — Source oe Water — Indian Lands.</p> <p>Where complainants appropriated in Wyoming waters from a creek rising in the Crow Reservation in Montana, complainants' appropriation attached eo instante on the reservation being thrown open to settlement, and became prior to the rights of subsequent appropriators settling on such reservation lands.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 48, Waters and Water Courses, § 11.]</p> <p>3. Same — Interstate Streams.</p> <p>Complainants, by a prior appropriation or diversion in Wyoming of the waters of a nonnavigable stream rising in Montana, acquired the right to continue the diversion of such waters as against a junior appropriator of the waters in Montana; the rights of appropriation not being affected by the interstate character of the stream.</p>

Writ of error,to review a judgment of the -Circuit Court, entered upon the verdict of a jury in. favor of the defendants in error, who were the plaintiffs below. In this opinion the parties are designated as, in the court below.

<p>1. Teial — Instructions—Excluding Issues.</p> <p>In an action for the death of a pedestrian struck by an automobile, an instruction that if, when he first saw the automobile he was in a position of imminent danger from it, the doctrine of contributory negligence did not apply to the case, was erroneous, as withdrawing from the jury the question whether the pedestrian was negligent in getting into the place of danger.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 613-62.1.]</p> <p>2. Negligence — Contributory Negligence.</p> <p>One may be excused for making a mistake when suddenly confronted with imminent danger only when he is without fault in getting into the dangerous situation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Contributory Negligence, §§ 99, 100.]</p> <p>3. Trial — Cuke oe Ereor — Instructions.</p> <p>In an action for the death of a pedestrian struck by aa automobile, an instruction that if, when he first saw the automobile, he was in a position of imminent danger from it, the doctrine of contributory negligence did not apply, being erroneous as withdrawing from the jury the question whether the pedestrian was negligent in getting into the place of danger, the error was not cured by instructions in other parts of the charge dealing at length with the question of contributory negligence.-</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.J</p> <p>Coxe, Circuit Judge, dissenting.</p>

<p>Cross-Appeals from the Circuit Court of the United States for the District of Maryland.</p>

<p>1. Collision — Steamer and Anchored Barge — Negligent Navigation.</p> <p>A finding of tlie trial court that a collision between a steamship starting down the Delaware river and a barge anchored within the anchorage grounds at Philadelphia was due to the fault of the steamship, and that the barge ivas not in fault, affirmed.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 10, Collision, § 101.]</p> <p>2. Same — Suit tor Collision — Defense—Pleading.</p> <p>In a suit in personam against the owners of a vessel for collision, the defense that the vessel was being navigated by a licensed pilot, whose taking was compulsory under the law, cannot be availed of, unless pleaded in the answer with due certainty and precision.</p>

This action was brought by the United States against O’Brien, successor of Perkins & O’Brien, contractors, and the City Trust Company, surety under a contract for dredging Narragansett Bay and' Providence river. Recovery was had for amounts earned, but not paid, and for what the work actually cost the government after O’Brien was put off it, as against O’Brien $73,578.76 and as against the company $27,242.45. Each defendant sued out a writ of error.

<p>1. Insurance — Payment of Loss — Subrogation.</p> <p>Where policies insuring certain cotton provided that the insurance company on payment of loss should be subrogated to that extent to assured’s right to recover for any act of negligence claimed to have caused the loss, the insurance company, on paying for the cotton destroyed by fire from sparks thrown out by defendant railroad company’s locomotive, was subrogated to the rights of the owners of the cotton against the railroad company.</p> <p>[Ed. Note. — For cases in point, -see Cent. Dig. vol. 28, Insurance, § 1500.]</p> <p>2. Bailment — Obligation of Partif.s.</p> <p>Where cotton was delivered to a compress company for compression for hire, the transaction constituted a bailment, in which the compress company was to do work for the owners of the cotton; the obligations of both bailor and bailee being mutual, but several.</p> <p>3. Same — Loss of Goods — Liability of Bailee.</p> <p>A bailee is liable to the bailor for injury to or the destruction of the property caused by the bailee’s negligence, both under the common and civil law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 0, Bailment, §§ 33-d.G.]</p> <p>4. Negligence — Pestiutction of Ubofebty — Concurrent Negligence.</p> <p>Where property held by a bailee is deslroyod by the concurrent negligence of the bailee and a third person, the bailor may sue either or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, §f 74, 75.]</p> <p>5. Same — Imputed Negligence.</p> <p>Where cotton was delivered by the owner to a compress company for compression for hire, neither the relation of master and servant nor that of principal and agent existed between the owner and the compress company, or its servants; and hence the negligence of the la tier, contributing to the destruction of the cotton by tire alleged to have been set out by a railroad company, could not be imputed to the owner.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 87, Negligence, §§ 74, 75.]</p>

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

The action is in ejectment, and relates to the legal title to premises known as No. ■208 Fifth avenue and No. 1128 Broadway, in the city of New York. The action was first tried in March, 1906, upon substantially the same evidence as in the present record. At the close of that trial both parties moved for a direction, and the court directed a verdict in favor of the defendánts. On writ of error to this court, the judgment of the Circuit Court was affirmed.

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

<p>1. Bankruptcy — Suits Against Bankrupts — Injunction.</p> <p>Bankr. Act July 1, 1898, e. 541, § 11a, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426], provides that a suit founded on claims on which a discharge will be a release, and which is pending against a person at the time of filing a petition against him shall be stayed until after an adjudication or the dismissal of the petition, and, if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or if within that time such person applies for a discharge, then until the question of such discharge is determined. Held, that such act only authorizes the restraining of suits founded on claims from which a discharge will be a release, so that the bankruptcy court has no control over a suit on a nonprovable claim.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 649, 651.]</p> <p>2. Same — Provable Claims — Unliquidated Demands — Torts.</p> <p>Bankr. Act July 1, 1898, c. 541, § 63, par. “a,” 30 Stat. 562 [U. S. Comp. St. 1901, p. 3447], enumerates the debts which may be proved against the bankrupt’s estate, including debts founded on judgments and written instruments, taxation of costs, open accounts, or express or implied contracts, and certain judgments rendered subsequent to bankruptcy. Paragraph “b” declares that unliquidated claims against the bankrupt may be. liquidated pursuant to an application to the court in such a manner as it shall direct, and may thereafter be proved and allowed against the bankrupt’s estate. Held, that paragraph “b’’ relates to the procedure, and provides for the liquidation of such claims enumerated in the preceding paragraph as might require such process, and that neither authorized proof of unliquidated demands against the bankrupt for wrongful death, and this notwithstanding section 17, Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], as amended by Act Feb. 5, 1903, e. 487, § 5, 32 Stat. 798 [U. S. Comp. St. Supp. 1907, p. 1026], providing that a discharge shall release the bankrupt from his provable debts except liabilities for frauds, for false pretenses or false representations, and for willful and malicious injuries to the person or property of another, as such negative provision was not effective to make all other noneiramerated tort liabilities provable debts.</p> <p>[Ed. Note. — For cases in point, see Cent. Big. vol. 6, Bankruptcy, § 480.1</p> <p>S. Same — Petition tor Review — Scope oe Review.</p> <p>Where petitioners in bankruptcy on a petition to the court of appeals to review restraining and reference orders enjoining prosecution of suits against a bankrupt in a state court for wrongful death, and referring such claims to a special master for liquidation, petitioner could not obtain a review of the district court’s jurisdiction of the entire bankruptcy pro feeding.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

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

<p>1. Carriers — Bill op Lading — Stipulations—Application.</p> <p>A bill of lading provided that property not removed within 24 hours after arrival at destination may be kept in the car, depot, or place of delivery of the carrier at the owner’s risk, or may at the carrier’s option be stored at the owner’s risk and cost, subject to the carrier’s freight lien. Held, that such clause was only applicable to property after it had reached its destination, and did not apply to hay transported under a contract requiring delivery at ship’s side within lighterage limits of the port of New York, which had only reached the rail terminal at the time it was stored and destroyed.</p> <p>2. Same — Fire Exemption.</p> <p>A clause in a bill of lading, providing that no carrier or party in possession of all or any of the property shall be liable for any loss thereof or damage thereto by fire, was applicable only in case the carrier at the time of the fire which destroyed the goods' was “in possession” thereof.</p> <p>3. Same — State Statute — Application.</p> <p>3 Starr & C. Ann. St. Ill. 1896, p. 3285, c. 114, par. 102, providing that, whenever any property is received by any railroad corporation to be • transported, it shall not be lawful for the corporation to limit its common-law liability safely to deliver such property at the place to which the same is to be transported by any stipulation or limitation expressed in the receipt given for the safe delivery of such property, as construed by the courts of that state, does not apply to restrictions contained in that part of the bill of lading which constitutes a contract.</p>

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

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

<p>Bankruptcy — Petition to Revise — Sufficiency op Record.</p> <p>A Circuit Court of Appeals cannot act on a petition to superintend and revise the proceedings of a District Court in bankruptcy, where the record does not contain a statement or finding of facts, nor show whether the court determined the question sought to be reviewed as one of fact or law.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

<p>Habeas Cobpus — Aemt—Enlistment—Mxkoes.</p> <p>Where the record in a habeas corpus proceeding to procure the discharge from the army of an enlisted soldier does not show, except by ex parte affidavit attached to the petition, that he was a minor when he enlisted or that his enlistment was without his parents’ consent, and where the return of the military commandant, alleging due enlistment for an unexpired term, desertion, surrender, commitment to the commandant, and confinement under pending charges for the desertion, was not. traversed, the writ was properly denied.</p> <p>I Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Habeas Corpus. I 70.]</p>

<p>Sunday — Contracts—Validity—Public Amusement.</p> <p>Under Pen. Code Tex. art. 199, forbidding the keeping open of places of public amusement on Sunday, and defining such places to mean theaters, etc., and such other amusements as are exhibited and for which an admission fee is charged, a contract providing for the appearance and exhibition of persons as performers in places of public amusement on Sunday in theaters, for admission to which a fee is charged, cannot be enforced in the courts of that state, in so far as it includes Sunday exhibitions.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5389-5390.]</p>

<p>Bankruptcy--Appeal — Decisions Appkat.able.</p> <p>Under Bankr. Act July 1, 1808, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1001. p. 3432], restricting appeals in bankruptcy proceedings to .-judgments adjudging or refusing to adjudge bankruptcy, granting or denying a discharge, and allowing or rejecting a debt or claim of §500 or oyer, an appeal will not lie to the Circuit Court of Appeals from a decree of the District Court reversing a referee’s judgment requiring a trustee to account to Hie creditors in specified sums as the rental value of property, of which he permitted the bankrupt to retain use and possession.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggerf, 43 C. C. A. 9.']</p>

<p>1. Courts — Federal—Jurisdiction—Diverse Citizensiiip — Pleading—Sufficiency.</p> <p>A pleading averring that plaintiff’s assignor was a corporation, with its principal office in Florida, and that defendant resided in Alabama, insufficiently shows the citizenship of the assignor and of defendant, and hence is insufficient to show jurisdiction in the federal Circuit Court on the ground of diverse citizenship.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol 13, Courts, §§ 876-881.</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 O. C. A. 298.]</p> <p>2. Writ of ErroEt-Disposition of Cause. x</p> <p>In a suit on an assigned contract, no objection was made in the federal Circuit Court, nor on writ of error in the Circuit Court of Appeals, to-the fact that defendant’s citizenship was not shown, but objection was made to the fact that it did not appear that the suit might have been prosecuted in the Circuit Court on the contract, if no assignment had been made; and, a general demurrer being sustained, plaintiff refused to further amend. Held, that the Circuit Court of Appeals is bound to affirm the judgment of dismissal for want of jurisdiction in the. Circuit Court.</p>

<p>Appeal from 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, holding United States patent, No. 727,905, for an improvement in can openers, issued May 12, 1903, to Newcomb Cleveland, valid and infringed.

<p>1. Patents — Anticipation and Infringement — Abdominal Pad and I-Iose Supporter.</p> <p>Tile Young patent, No. 638,540, for a combined abdominal pad and hose supporter, was not anticipated and discloses invention; also held infringed.</p> <p>2. Same.</p> <p>In accordance with tbe practice in this circuit, the decision of the Circuit Court of Appeals in Young v. AYolfe, 130 Fed. 891, 65 C. C. A. 199, followed.</p>

<p>1. Patents — Assignments—Contracts—Construction—‘ ‘Completed.’’</p> <p>Where an assignment of certain patents included all inventions of like nature or similar thereto which might thereafter be completed, the word “completed” was not used in the sense of “conceived,” but should be construed to mean the finishing or perfection of something already commenced other than the bringing into existence of a new thing, and the assignor having testified that it was only desired that he should assign the invention for which applications for patents had been filed and those he was working on at the time, the word “completed” could not be given a broader signification so as to include inventions which had not been conceived at the time the assignment was executed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 328.</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 13GG-1368.]</p> <p>2. Same — Bona Fide Purchaser.</p> <p>Where a contract for the assignment of certain patents included inventions of a similar nature which the patentee might thereafter complete, the assignee of a subsequent invention not conceived by the party at the time such contract was executed, though with actual knowledge of such previous assignments, was not chargeable with notice that the word “complete” was intended to be given an extraordinary interpretation to include inventions not then conceived.</p> <p>3. Specific Performance — Contract—Certainty.</p> <p>If a contract is so uncertain or ambiguous that it requires testimony of subsequent dealings to make its meaning clear, it may not be specifically enforced in equity against a purchaser for value whether with or without notice of its provisions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. ii, Specific Performance, § 61.]</p>

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

<p>1. Patents — Infringement.</p> <p>Plagman’s patent, No. 008,220, August 2, 1898, for an improvement in mechanical movements, especially for use in washing machines, is not infringed by a machine constructed in accordance with the specification oí patent No. 740,868, October 6, 1903, to Johnson.</p> <p>A slidable cylinder is an essential mechanical element of each of the combinations claimed by Plagman, and it is absent from the machine of the defendants.</p> <p>2. Same — Absence of One Element of Combination Avoids Infringement.</p> <p>The absence from an alleged infringing device of a single essential mechanical element of a patented combination is fatal to a claim of infringement.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 88, Patents, § 387.] (Syllabus by the Court.)</p>

In Equity. Bill for the infringement of letters patent, No. 623,933, issued April 25, 1899, to W. H. Wiggins, for a howling alley; and also of letters patent. No. 554,611, issued February 11, 1896, to the same, for a ball runway for such alleys. On final hearing.

In Equity. Suit to restrain alleged infringement of United States letters patent No. 490,877, dated January 31, 1893, to Charles W. Lovell and Alfred Bredenberg, and No. 734,907, dated July 28, 1903, to Charles W. Lovell, as inventor and assignee of David Williamson, his co-inventor, both for book-trimming machines.

<p>1. Removal oe Causes — Petition—Citizenship.</p> <p>Where a removal petition based entirely on diversity of citizenship was filed by one of the defendants alone, and wholly failed to disclose the fact that the other defendant was merely a nominal or formal party to the action, and such fact did not sufficiently appear elsewhere in the record, the petition was fatally defective, since, for the purpose of removal, the parties must be considered collectively.</p> <p>[Ed. Note. — For cases in point, gee Cent. Dig. vol. 42, Removal of Causes, § 170.</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>2. Same — Amendment.</p> <p>Where a removal petition ig defective for failure to state the necessary jurisdictional facts, the omission is fatal to the right of removal, and cannot be settled or cured in the federal court by amendment.</p>

<p>Customs Duties — Classification—Chloeophyll—“Comb.”</p> <p>Chlorophyll, a coloring matter used in staining oils and foodstuffs, is not a “color,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 58, 30 Stilt. 151 [C. S. Comp. St. 1901, p. 1630], but is dutiable as an unenumeratod manufactured article under section 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693],</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, vol. 2, p. 1262.]</p>

<p>1. Bankruptcy — Insolvency—“Market Value” oe Assets — What Constitutes.</p> <p>The fair “market value” of a corporation's assets, for the purpose of determining its solvency when it committed an alleged act of bankruptcy, was the value which the corporation might have realized on them for itself.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 84.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4583-4388; vol. 8, p. 7717.]</p> <p>2. Same.</p> <p>Where, on creditors’ petition in bankruptcy, issues as to the alleged bankrupt’s solvency and indebtedness to petitioners have been found in their favor by a special commissioner, though the excess of liabilities over assets were not large at the time of the alleged act of bankruptcy; through disagreements between 1he bankrupt corporation’s stockholders and outstanding judgments a forced sale would not have produced proceeds sufficient to meet the corporation’s obligations; since the filing of the petition rent, receivership expenses, etc., have accrued, while the property has deteriorated; it appears that a refusal to confirm the commissioner’s report would not put the corporation upon its feet, or bring about any benefit equitably; and some timo has been given the parties to effect a satisfactory arrangement, and nothing has been done — a decision in favor of the creditors, and directing that an adjudication be had, will be entered.</p>

<p>Bankruptcy — Possession op Property — Recovery—Jurisdiction.</p> <p>Where a complaint alleged that the bankrupt’s receiver occupied the premises in controversy under a lease held by the bankrupt for the month of August, 1906, and that defendant wrongfully dispossessed such receiver in September under a warrant issued by a magistrate without jurisdiction, and had since been in possession, the bankruptcy court had jurisdiction of the suit by the bankrupt’s trustee to recover possession of the property under the lease; the property having been once in the possession of an officer of such court.</p>

<p>1. Towage — Injury to Tow — Liability of Tug foe Want of Proper Skill.</p> <p>Where the master, in charge of the operations of two tugs engaged io tow a loaded barge down the Kennebec river, at the request of the master of the barge delayed starting until the tide had passed the most favorable stage, and also placed the' tugs alongside on either quarter of the barge, although he had never towed down the river in that way before and disapproved of it, he became responsible for such method, in the absence of an agreement to the contrary, and bound to the exercise of reasonable care and skill; and the tug owner was liable for a grounding of the bar;» through improper handling by the tugs, due to the failure to appreciate the effect of the currents on a tow so made up, although, if they had been allowed to tow in the usual way, the injury would probably have besen avoided.</p> <p>[Ed. Note. — Eor cases in point, see Gent. Dig. vol. 45, Towage, § 15. ]</p> <p>2. Same.</p> <p>Evidence considered, and held insufficient to sustain an allegation that the injury of a barge by striking some rocks outside the channel while being towed by two tugs down the Kennebec river was due to any negligence or want of skill on the part of the tugs, which were towing in the customary manner and kept the channel, but rather to show that the sheering of the barge was despite the efforts of the tugs to prevent it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 30.]</p>

<p>1. Criminal Law — Failure of Proof and Variance — Manner of Raising Questions.</p> <p>A failure of proof and a variance between the allegations and proof are questions properly raised by a motion for a new trial, and not by motion in arrest.</p> <p>|Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2161.]</p> <p>2. Same — Arrest of Judgment — When Proper.</p> <p>A criminal judgment will only be arrested for matter appearing of record which would render the judgment erroneous if given, the evidence being no part of the record for such purpose. The rule in civil cases that the matter alleged in arrest must be such as would have been sufficient upon demurrer to overturn the action or plea applies, also, to criminal cases.</p> <p>ÍEd. Noto.- — For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2423.]</p> <p>3. Same — New Trial — Unfair Newspaper Articles Read by Jury.</p> <p>Though one accused of conspiring to use the mails in carrying out a scheme to defraud would have been entitled to the withdrawal of a juror .where it appeared that jurors had read newspaper articles charging him with having lived in luxury while a fugitive from justice; containing illustrations evidenOy intended to belittle and place him in a mean light before the jury and in the community; representing him as hardened and indifferent to the sufferings of his victims; referring to his associate's conviction oí a similar offense, and asserting that accused was joined with him in the scheme to defraud, set forth in the case on trial and in others: connecting accused with alleged swindlers and criminals; referring to his demeanor in court in a contemptuous way: charging that his witnesses were of bad character, unreliable, •‘bartenders, bank cashiers, waiters, and rounders of many types,” etc. — lie is not entitled to a new trial, he having directed his counsel not to insist upon the withdrawal of a juror, after an examination of the jurors as to whether they had read the articles, and having expressed a willingness to proceed with the trial.</p> <p>4. Post Office — Unlawful Use of Hails — Proof.</p> <p>Where one was tried for conspiring to use the mails to carry out a ' scheme to defraud, under Rev. St. § 5440 [U. S. Comp. St. 1901. p. 3676], making it an offense to conspire to commit an offense against the United States, and under section 5480 [page 3696], making it an offense to use the mails to carry out a scheme to defraud, it was sufficient for the government to show that written or printed matter about the scheme charged was mailed to one of the three persons named in the indictment as the persons defendant planned to defraud, and that copies of the same printed matter was sent through the mails to a mailing list throughout the United States.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 40, Post Office, § 86.</p> <p>Use of mails for frauds and counterfeiting, see note to Timmons v. United States, 30 C. C. A. 86.]</p> <p>5. Same.</p> <p>In an indictment for conspiring to use the mails to carry out a scheme to defraud, under Rev. St..§ 5440 [U. S. Comp. St. 1901, p. 3676], making it an offense against the United States, and under section 5480 [page 3696], making it an offense to use the mails to carry out a scheme to defraud, the names of as many persons defendant planned to defraud may be used in the indictment as the pleader may know, and all mail connected with the scheme, shown to have passed through the post office to any person whether named in the indictment or not, is evidence upon the question of the existence of the scheme.</p> <p>6. ’ Criminal Law — Writ of Error — Presumptions.</p> <p>Where, in a trial for conspiring to use the mails in carrying out a scheme to defraud, on an indictment charging a scheme to defraud named persons and others whose names were unknown to grand inquest, there was no showing that any other persons than those named were known to the grand inquest, it must be presumed on writ of error that the indictment in this regard truthfully states the fact.</p> <p>7. Post Office — Conspiracy—Unlawful Use of Mails — Evidence.</p> <p>In a trial for conspiring to use the mails in carrying out a scheme to defraud, the cashbook, checks, and entries of cash in defendant’s deposit book in a trust company, made during the continuance of the scheme, were properly admitted to show the conspiracy.</p>

<p>1. Corporations — Mortgages—Foreclosure — Proceeds op Sale — Persons Entitled.</p> <p>Property of a corporation having been sold in receivership proceedings, an order was passed directing the payment of SS.Gl^ on each $100 bond, of the corporation, and that there should remain in court for the holders of outstanding bonds amounting to $84,200 the sum of $3,043.83, and that each bondholder on surrendering his bonds into court l'or cancellation should be entitled to withdraw his pro rata of that sum. All of the money was paid out except $1,140, which had remained in the registry of the court since 1894. Held, that the money paid into court was a trust fund for the benefit of the bondholders, and, if not claimed by the holders of the outstanding bonds, was subject to redistribution, either to the other bondholders whose claim had not been paid in full or to general creditors, if any, and, if none, to the holders of the corporation’s capital stock.</p> <p>2. Constitutional Law — Due Process op Law — Deposits in Court — Statutes.</p> <p>Rev. St. § 905 [U. S. Comp. St. 1901, p. 711], requires money paid into courts of the United States, or received by its officers, to be deposited with the treasurer or assistant treasurer of the United Stales, or a designated depositarv, to the credit of the court, and section 99G, as amended by Act Feb. 19, 1897, c. 2G5, § 3, 29 Stat. 578 [U. S. Comp. St. 1901, p. 711], declares that no money so deposited shall be withdrawn except on order of the judge, and that it shall be the duty of the judge or judges of such courts to cause any money so deposited which has remained in the registry unclaimed for 10 years or more to be deposited in a designated depository of the Uniled States to the credit of the United States. Held, that section 990, in so far as it required money deposited in a federal court unclaimed for ]0 years to be turned over to the United States, was unconstitutional, as depriving the owners thereof of their property without due process of law.</p> <p>3. Escheat — Personal Property — Parens Patriad -Federal or State Government.</p> <p>Where money has been deposited in a federal court, and remains unclaimed for a long period, such money, if subject to escheat, belongs to the state, and not to the federal government, as parens pal rúe.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Escheat, §§ 18-20.]</p>

In Bankruptcy. The facts shown by the referee’s report with reference to the alleged objectionable communications written to creditors to obtain proxies to be voted in the election of a trustee were as follows: Charles E. Duryea. who had been an officer of a bankrupt corporation wrote a letter to the attorneys for certain creditors in which he asserted that his desire to have the affairs of the corporation wound up in bankruptcy was for the jJurpose of determining whether…

<p>Collision — Moving and Anchoked Vessel — Eog.</p> <p>A collision off the Massachusetts coast, near Pollock Rip Slue, at night, in a dense fog, between the steamship Persian, going northward, and the steamship Hesperides, which had anchored in the open ocean on account of the fog, held due solely to the fault of the Persian, which, after stopping, on hearing the fog bell of the Hesperides and seeing one of her anchor lights, started ahead again at greater speed, in violation of article 1G of the international navigation rules [U. S. Comp. St. 1901, p. 28G9], which required her under such circumstances to navigate with caution until danger of collision was over.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 10, Collision, § 101.</p> <p>Collision rules — speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p>

In Equity. Suit against trustees appointed by the will of James Osborne, deceased, to recover his estate, on the alleged grounds that the complainants are his legal heirs, and that the attempted disposition of the estate by the will contravenes the rule against the creation of estates in perpetuity and is unlawful. Hearing on the merits. Bill dismissed for failure of proof to establish the right of the complainants as heirs of the deceased to contest the will.

In Equity. On demurrer to bill. The ob.iect of the bill was to recover money alleged to have been paid by the bankrupts to the defendant American Woolen Company and the value of woolens taken away by the American Wooleu Company from the bankrupts’ possession immediately prior to the filing of the petition. Both of the defendants were corporations organized under the laws of New York, and the complainant is the trustee in bankruptcy of Philip Horowitz & Son.

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

<p>Admiralty — Jurisdiction op Courts — Suit by Alien Against Foreign Ves'SEL.</p> <p>The right to object to the assumption of jurisdiction by a court of admiralty of the United States in a suit by a foreign subject against a vessel of his own country is waived by a general appearance and the filing of an answer by the claimant.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 1, Admiralty, §§ 200-204.]</p>

<p>1. Banks and Banking — National Banks — Offenses—Conversion of Funds —Indictment—1 ‘Convert. ’ ’</p> <p>An indictment alleging dial F., as cashier of a national bank, unlawfully “converted” certain “moneys, funds, credit and credits” to the use of D. sufficiently charged the maimer in which the misapplication was effected.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Banks and Banking, § 973.</p> <p>For other definitions, see AVbrds and Phrases, vol. 2, p. 1570.]</p> <p>2. Criminal Daw — Evidence—Objections—Review.</p> <p>AVhere evidence of guilty knowledge was material and admissible under an assurance that it would be connected, its admtssibilty could not bo reviewed on a writ of error on objection taken at the trial that it was immaterial or remote, not sufficiently connected with defendants, or with the transactions complained of, etc., it being impossible to tell from the record whether it was connected or not.</p> <p>3. Banks and Banking — National Banks — Offenses—Evidence.</p> <p>In a prosecution for misappropriation of the funds of a national bank, a letter written by certain of the directors of the bank to tho comptroller of the currency, after tho misappropriation, was inadmissible either as showing the state of mind of the directors after the offense, or a ratification of the misappropriation.</p> <p>4. Jury — Right of Juey Trtal — Number of Jurors — 'Waiver—Misdemeanors.</p> <p>AATiile a person accused of an infamous crime, though not a felony, may waive the disqualification of jurors, or even their impartiality, such person cannot waive his right to a trial by a jury of 12 by consenting, after a legal jury had been impaneled and two had been excused, to continue the trial and abide by the verdict of the remaining 10.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 31, Jury, §§ 197-203.1</p> <p>Aldrich, District Judge, dissenting.</p>

<p>1. Writ of Error — Objections in Trial Court — Pleading—Variance.</p> <p>Where, in an action for damages for inducing another to break a contract between plaintiff and W. & Co., the complaint throughout alleged that W. & Co. were the principals, and were induced by defendant not to furnish certain machines to plaintiff, while the proof showed that W. & Co. in selling the machines acted as agents for the H. Co., and that the latter was the person induced not to fill plaintiff’s order, such variance could have been corrected by amendment; and where the variance was not taken advantage of at a long trial, except by defendant’s- requests for instructions, there was ground on which the court in its discretion might have held that the variance had been waived at the time such requests were made, and the court’s action in disregarding it will not be reviewed on a writ of error.</p> <p>2. Torts — Pleading—Issues.</p> <p>Where a declaration was expressly limited to plaintiff’s right to recover damages sustained by defendant’s act in inducing the seller of certain machines to refuse to deliver the same to plaintiff, in accordance with the contract, the compiaint did not present any issue under the Sherman trust act, though there was evidence of an agreement between manufacturers of such machines, including defendant and the seller, to protect each other, and for each to notify the other if a man did not pay his hills, the person notified being then at liberty to sell him goods or not, according to his own judgment.-</p> <p>3. Same — Inducing Breach of Contract.</p> <p>Where defendant corporation induced another to break a contract to furnish certain machines, plaintiff was entitled to recover from defendant damages sustained thereby, without proof that defendant was actuated by actual malice or ill will.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 45, Torts, § 13.]</p> <p>4. Corporations — Acts of Officers — Ratification—Question for Jury.</p> <p>In an action against a corporation for inducing another to break a contract to furnish plaintiff certain machines, evidence hold to require submission to the jury of the question whether defendant corporation approved, acquiesced in, and adopted its officer’s construction of a letter written to the seller which was claimed to have induced a violation of the contract.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, § 1738.]</p> <p>5. Courts- -Federar Practice — But, of Exceptions — Setting Forth Exceptions.</p> <p>A bill of exceptions referred to alleged errors in refusing to comply with certain requests to charge, by stating “the court refused to give the instruction requested, except so far as the instructions contained in the extract from the charge set out totidem verbis in connection with a request numbered,” etc., included it. One of such references contained an extract from the charge, covering more than, two printed pages. Held, that the practice in the federal courts did not permit the setting out of exceptions in such maimer.</p> <p>6. Damages — Inducing Breach of Contract--Damages Avoidable.</p> <p>In an action to recover damages for inducing a third person not to comply with a contract to furnish plaintiff certain machines, an instruction that defendant was not liable for damages that would have been avoided by plaintiff’s using defendant’s machines was properly refused, defendant' having no right to shut plaintiff out of every other market, and force it to purchase machines from defendant.</p> <p>7. Writ of Error — Review.</p> <p>Where on a writ, of error there were numerous requests for instructions. and many alleged errors assigned, the Court of Appeals will not develo]) topics not specially brought to its attention at the bar.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error. §§ 4250-4261.]</p>

<p>1. Writ of Error — Record—Jurisdiction—Review.</p> <p>Where the state court in which an action against an insurance companj' was brought would have had jurisdiction under the service made, if defendant was an insurance company not on the assessment plan, and the record on a writ of error did not show that it was made to appear on the hearing of a plea of abatement raising an objection to the jurisdiction that the insurance company did business on the assessment plan, error in overruling the pica was not shown.</p> <p>2. Insurance — Foreign Insurance Company — Service on Insurance Commissioner-Acceptance of Service.</p> <p>Under Acts Tennessee 3895, p. 322, c. 360, providing that any process issued by any court of record in the state against a foreign insurance company may be served on the insurance commissioner, such commissioner need not require that the process be served on him, but he may accept service.</p> <p>3. Same — Power to Accept Service — Revocation—Withdraw at, from State.</p> <p>Where a foreign insurance company, doing business in Tennessee, filed a power of attorney authorizing the insurance commissioner to accept service for it, under Acts Tennessee 1895, p. 322, c. 160, requiring the power to authorize such service, so long as any liability remains outstanding against the insurance company within the state, the company’s withdrawal from the state did not revoke the insurance company’s power to bind it by an acceptance of service in an action on an outstanding policy within the state.</p> <p>4. Same — Premiums.</p> <p>Though a policy provides that premiums shall be paid at the insurer’s home office by a certain time, if, after issuance of the policy, the insurer authorizes or acquiesces in the sending of the premiums by mail, a. deposit thereof in the mail, in time to reach the home office by the time the premium is due, will prevent forfeiture, though the premium does not in fact reach such office until after the due date.</p> <p>5. Same — Failure to Pay Premiums at Maturity — Forfeiture—'Waiver.</p> <p>Where a policy provided that premiums should be paid at the insurer’s home office, and if any payment was not made on or before the date of maturity the policy should expire and become void, and all payments forfeited, if insured failed to mail a draft for the premium until after the date on which it fell due, the policy was forfeited in accordance with its terms, but if, notwithstanding such forfeiture, the insurer on receipt of the draft applied the proceeds to the premium due, without more, such action would constitute a waiver of the forfeiture and reinstatement of the policy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1041-1045.]</p> <p>6. Same — Conditional Receipt.</p> <p>Where a draft to pay a premium on a policy was not mailed until after the premium matured, insurer, not being hound to accejit the draft and waive the forfeiture was entitled to impose such terms on its consent to waive the forfeiture as it might dictate, and if it accepted the premium on condition that insured was then in good health, etc., a breach of such conditions, nothing else appearing, would constitute a defense -to an action on the policy.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 28, Insurance, §<i 1041-1045.]</p> <p>7. Same — Waiver—Subsequent Premiums — Acceptance.</p> <p>Where a forfeiture of a policy was incurred by nonpayment of premium at maturity, which forfeiture the insured waived, on conditions that the insured was then in good health, etc., which were broken when made, the conditions were not waived by the insurer’s subsequent acceptance of premiums under the policy, unless such acceptance was with notice of the breach of the conditions.</p> <p>8. Same — Instructions.</p> <p>Insured having failed to pay a premium in time, the premium was accepted subject to the condition that insured was then alive, of temperate habits, and in good health, etc., which condition insured was not then able’to fulfill. Bold, that an instruction that the insurer's acceptance of subsequent premiums, notwithstanding the conditional acceptance of the premium paid after due estopped insurer from saying that the policy had lapsed, was erroneous.</p> <p>9. Same — Penalty—Demand.</p> <p>Acts Tennessee 1901, p. 248, e. 141, provides that an insurance company refusing to pay a loss within 00 days after a demand by the policy holder shall be liable for a penalty not exceeding 23 per cent, of the liability, provided it shall appear that the refusal to pay was not in good faith, and- inflicted additional expense on the plaintiff. Held, that no penalty could be recovered under sucb section in the absence of a formal demand for payment of the loss under the policy, in addition to the commencement of a suit thereon.</p>

States for the Southern District of New York. On writ of error to the Circuit Court for the Southern District of New York to review a judgment entered upon the verdict of a jury finding the • defendant guilty under the third count of the indictment which charges him with misconduct, negligence and inattention to duty under section 5344 of the U. S. Revised Statutes (U. S. Comp. St. 1901, p. 3629), while acting as master of the steamer General Slocum.

<p>1. Master and Servant — Injury to Servant — Assumed Risk.</p> <p>Plaintiffs’ intestate and another were employed by defendant as lea.dsmen in operating a pile driver mounted on the end of a flat ear, their duty being to fasten the end of a rope by means of a hook around the large end of a pile lying beside the railroad track and guide it into its place between the leads as the rope was drawn up over a pulley at their top by an engine, and to fix it in position to be driven. On one occasion, when the hammer was raised alongside of the pile, which had been drawn up, it slipped the rope over the top, and the pile fell and struck and killed plaintiffs’ intestate, who was in front, of it. The deceased was a young, intelligent, and active man, with all of his faculties, who had worked with the pile driver in the same capacity for several months, and knew of the danger that a pile might fall. The apparatus was the same and was used in the same manner as usual. Held, that such danger was one of the risks of the occupation which he assumed.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Same — Contributory Negligence.</p> <p>Deceased had been warned of the danger that a pile might fall, and had been cautioned to keep watch of it, and not to turn his back to it, and places for the leadsmen to stand had been provided on the ear at the sides of the leads, where there was no danger. A pile had actually fallen in a similar manner a few days before. At the time he was killed deceased was not in his proper place, but was walking on the track ahead of the car, with his back toward it. Held, that he was guilty of such contributory negligence as precluded a recovery for his death.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 706-709.]</p> <p>-3. Same — Pleading.</p> <p>In an action against a master to recover for the death of a servant, an allegation in the answer that, if the deceased received the injuries alleged, the same were sustained as a direct result of his own negligence and want of care, and not of the negligence of defendant, is a sufficient pleading of the defense of contributory negligence, after verdict and judgment, where its sufficiency was not attacked by demurrer or motion.</p> <p>[Ed. Note. — For casfes in point, see Cent. Dig. vol. 34, Master and Servant, § 859.]</p>

<p>Appeal from the District Court of the United States for the Western Division of the Western District of Washington.</p> <p>Upon Petition for Revision under Bankr. Act July 1, 1898, c. oil, § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3431].</p>

<p>1. Master and Servant — Injuries to Servant — Railroads—Assumed Risk.</p> <p>Intestate at the time he was killed was foreman in defendant’s switching yard, and was engaged in cutting out and transferring the cars to different tracks. While the train was moving he walked along the side thereof, and, desiring to detach two of the cars, took hold of the lever of the safety appliance brake to uncouple them, but discovering that the brake was not in working order, stepped between the cars while in motion to disengage the pin, when the heel of one of his shoes caught in the frog of the rails, and he was run over and killed. He was well acquainted with the condition of the frog and track, and acted in violation of a known rule forbidding coupling by hand. There was no emergency requiring him to’ go between the ears, and he could have uncoupled the cars in safety either by signaling the engineer to stop and then passing to the other side and reaching the brake lever on the other car, or he could have waited until the cars had passed him and gone to the opposite side without passing between the cars, both of which were equipped with automatic couplers. Held, that intestate, in undertaking to .uncouple the ears by hand with knowledge of the situation, was guilty of -contributory negligence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>2. Same — Contribt/jcoby Negligence.</p> <p>Intestate was also grossly negligent precluding a recovery for Ms death.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant,-^ 701-709.]</p> <p>3. Same — Custom—Kv edence.</p> <p>Where intestate was killed while attempting to uncouple certain cars by hand, evidence of a witness of very limited experience, and only a sl'iort time in defendant’s service, that he had known brakemen to go between the cars to couple or uncouple when safety brakes were out of order, without any proof of knowledge or acquiescence on the part of 1he managers of the railroad company of such conduct, was inadmissible.</p>

<p>ISankkdptcy — Assets—Pboceeds—■I- ’lumnxvr Conveyances — Application.</p> <p>Bankrupt Ad July 1, 1898, p. 511, <>§ (50a, 00b, .30 Stat. 502 [U. S. Comp. St. 1901, p. 3445], contain special provisions with respect to preferred creditors and sections 07a-07o relate to preferences or liens taken within four months prior to the filing of a bankruptcy petition, in ail of which cases it is declared Ihni; file property covered by the conveyance and lien shall pass to the trustee “for (lie benefit of the estate,” and section 70 provides that the trustee shall be vested by operation of law with the bankrupt's title io all property transferred by him in fraud of his creditors. Ohio Rev. fit. 1892. § 03-13. declares that every sale or transfer by a debtor with intent to defraud his creditors shall be void as to creditors of the debtor at the suit of any (‘¡'editor or «’editors “as hereinafter provided,"’ and shall inure to tlio euual benefit of sueli creditor or creditors in proportion to the. amount of their respective demands, and section G341 provides that any creditor as to whom any of the actions prohibited by section 6343 are void may commence an action to have the same vacated, and to administer the property for the “equal benefit of all creditors.” Held that, where a bankrupt while insolvent transferred property to his wife without consideration, and his indebtedness continued steadily to increase until he was adjudged a bankrupt, the proceeds of a settlement of a suit brought by creditors who were such at the time the transfer was made to vacate the same were distributable, both under the bankrupt act and under the state law among all the creditors, and not only among those who were creditors at the time of such transfer.</p>

<p>In Error to the District Court of the United States for the Northern Division of the Western District of Washington.</p> <p>Action oil the part of the United States to recover penalties for refusal 1o return an alien to the country from which he came;, under Act March 3, 1903, c. 1012. § 19, 32 Stat. p. 1218. The British ship Olivebank arrived at Port Townsend, in the state of Washington, on the 28Ui day of October, 1906. Among the crew on board this -vessel was a boy named William Schmitz, who Had shipped on board the vessel at Hamburg, Germany. The voyage of the vessel, as shown by the shipping articles, was from Hamburg, Germany, to Tacoma, on Pnget Sound, and thence to any port or ports, and to terminate in the United Kingdom or the continent of Europe within the limits of 75 degrees north and 65 degrees south latitude, the maximum time of the voyage to be three years. The boy, Schmitz, signed as a member of the crew for the voyage, and was desigual ed on the articles as a deck boy. The vessel having arrived at Port Townsend, the crew was inspected by Dr. Lyle, Acting Assistant; Surgeon of the Marino Hospital Service. Schmitz was a member of the crew at that time, and the surgeon found him apparently sound mentally and physically. The vessel proceeded to Seattle, and on the night of October 30th Schmitz deserted. This fact was reponed by the master to the Britisli consul at Seattle. On November 30th Schmitz was arrested at Aberdeen, in tile state of Washington, and taken to Port Townsend. Dr. Lyle again saw him on December 4th and found him in a nervous and excited condition. 'Pile doctor saw Schmitz again on December 7th. In the afternoon of that day Schmitz was very much excited, and in the evening he had an acute attack of mania. On December 9th Schmitz was removed to Seattle on account of his insane condition. Thereafter lie was removed to the insane asylum at Steiiaeoom. The immigrant inspector at Seattle, on a warrant issued by the Secretary of Commerce and Labor, notified the officers of the Olivebank and Frank Waterhouse & Co., the agent of the vessel at Seattle, to return Schmitz to the country from which lie came. This they refused to do.</p> <p>A complaint was thereupon filed in the United States District Court at Seattle by the United States Attorney, charging, in substance, that Frank Waterhouse & Co. and John Doe (the master) did, on the 18th day of December, 1906, knowingly, unlawfully, and willfully bring into the United States at the port of Port Townsend, by water, upon the vessel Olivebank, from a foreign port and place, to wit, from the port of Hamburg, Germany, an alien by the name of William Schmitz, he, the said William Schmitz, being an insane person and epileptic, and being then and there a pauper and liable to become a public charge, which facts were then and there, during all the times mentioned in the information, well known to said Frank Walerhouse & Co. and said John Doe, the master of said vessel; that the Secretary of Commerce and Labor had ordered, directed, and decided that the said William Schmitz should return to the country from whence he came, and that he was not entitled, to land or remain in the United States; that the said William Schmitz should be deported by the vessel, and' by the owners, agents, and master thereof, upon which the said William Schmitz arrived in the United States; that the said Frank Waterhouse & Co. and the said John Doe, master of said vessel, had refused to deport the said William Schmitz, and refused to take him upon board of said vessel for any purpose whatsoever, and had refused and declined to take, receive, or deport the said William Schmitz from the United States to the port of Hamburg, Germany, and had refused to take the said William Schmitz from the United States to any foreign port or place. James Carse appeared as the master of the vessel, and his name became substituted for that of John Doe as representing the vessel, together with Frank Waterhouse, representing Frank Waterhouse & Co., the agent of the vessel. By stipulation of counsel on both sides the case was tried by the court without a jury. The court found the defendants guilty, as charged in the information, for violation of section 19 of the Act of March 3, 1903 (32 Stat. p. 1218, e. 1012), and defendants were then lined in the sum of $300 and costs. The case has been brought here upon writ of error.</p>

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

This is an action by the plaintiff in error to recover damages for personal injuries occasioned by the alleged negligence of the defendant in error. The court directed the jury to find a verdict for the defendant, and plaintiff assigns this direction as error.

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

<p>In Error to the Circuit Court of the United States for the Eastern District of New York.</p> <p>Writ of error to review a judgment entered upon the verdict of a jury in favor of the defendant in error, who was the plaintiff below. In the opinion the parties are designated as in the court below.</p>

<p>1. Bankruptcy — Appeal—'Time fob Taking.</p> <p>Where a pelilion for a-, rehearing was filed within 10 days after an order was made sustaining' a demurrer to a petition in involuntary bankruptcy, an appeal taken within 10 days after the petition was disposed of and the judgment of dismissal became final was in time.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.]</p> <p>2. Same — Partnership.</p> <p>Under Bailin'. Act .Tuly 1, 1898, <;. till, 30 Stat. 544 [IT. S. Comp. St. 1901, p. 3418], a partnership is a distinct entity, and may he adjudged a bankrupt, irrespective of any adjudication against its individual members ; but, when there is no adjudication against the firm, the partnership assets Cannot he administered, if there be one member not adjudicated, unless he consents.</p> <p>3. Same — “Act oe Bankruptcy.”</p> <p>It is not an “act of bankruptcy,” for which a firm may be adjudged a bankrupt, that one of its members, out of his individual estate, prefers one of his own, or one of the firm’s, creditors.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, p. 118.]</p> <p>4. Same — “Act of Bankruptcy” of Partner — Preference of Firm Creditor.</p> <p>One member of a partnership, which is insolvent and without assets, who applies his whole separate estate to the payment of a creditor of the firm, thereby gives such creditor a preference over others of the same class, and commits an “act of bankruptcy,” which may he made the basis of a petition by other firm creditors to have him individually adjudged a bankrupt</p>

<p>Appeal from, and Petition for Revision of Proceedings of, the District Court of the United States for the Southern District of New York.</p> <p>This cause comes, here upon an appeal and petition to review (consolidated by order of this court) an order and decree denying petitioner’s motion to dismiss a petition in involuntary bankruptcy against the Munger Company, and an adjudication of bankruptcy thereon. The petitioner, Charles A. White, is a creditor of the bankrupt in the sum of $50.</p> <p>The following is the opinion of Hough, District Judge, in the District Court:</p> <p>This is a very interesting proceeding in more ways than one. The party who moves to vacate is a creditor in the sum of $50, who has not proved his claim. His own personal interest in this matter must he microscopic. The moving papers largely consist of exemplifications of the New Jersey proceedings of January, 1907, and of certain laws of that state, and most of the exemplifications are dated on December 8, 1905, or upwards of a year prior to the filing of the petition in bankruptcy herein. Evidently somebody had an interest in watching and making a record of the negligence or misfortune of the Munger Vehicle Company. The trustee declares that the only asset of the bankrupt consists of a cause of action which will he barred in a few weeks by tbe statute of limitations. On examining the schedules it appears that the only asset therein revealed is a cause of action against the Rubber Goods Manufacturing Company for a large sum of money. Obviously, if this proceeding in bankruptcy is utterly wiped out on jurisdictional grounds, a condition of confusion will ensue very detrimental to the interests of the creditors of the Munger Vehicle Company, and highly beneficial to the person against whom the cause of action exists, and who (it is impossible to resist a suspicion) may be the same person who took such precautions with regard to procuring exemplifications of the- New Jersey proclamation in December, 1905. I therefore doubt the good faith of Mr. Charles A. White.</p> <p>• If, however, there was no corporation when a petition herein was filed on January 23, 1907, it necessarily follows that there could be no adjudication. The proceedings under the New Jersey act of 1884 must be read in the light of chapter 130, p. 319, P. D. 1900, which is an amendment to the act of 1884, in force at the time of the proclamation against the Munger Company. Neither the act of 1884 nor any supplement thereto declares what shall become of the property which the delinquent corporation may have had at or after the date of such proclamation. Certainly something must be done with that property, and it is equally clear that proceedings may be just as necessary to collect assets of a corporation proclaimed for taxes as in the case of any other moribund incorporated concern. Evidently the executive of New Jersey feels this, for his proclamation of January 3, 1905, is said to declare “null and void certain charters of incorporations for unpaid taxes of 1902, under chapter 187, p. 319, P. L. 1896, and chapter 130, p. 319, P. D. 1900.” Chapter 185, p. 277, P. L. 189(5, is the general corporation act passed subsequent to the act of 1884, and declares (section 53) that all corporations, “whether they expire by their own limitation or be annulled by Legislature or otherwise dissolved,” shall he continued bodies corporate for certain purposes. It appears by affidavits herein that for a long time prior to 1905 the Munger Company had been “inactive.”</p> <p>Upon tbe whole I have no doubt that under the statutes referred to by the moving papery the Munger Company continued to be a species of body corporate. capable of being proceeded against and of certain forms of corporate activity. Tlie sit nation is not different from that shown in lie Storck Lumber Company (I). C.) 8 Am. Bankr. It. 87, 114 Fed. 360. It there appeared that prior to the filing of the petition in bankruptcy proceedings had been taken under the statutes of Maryland which resulted in a decree of the court of competent .jurisdiction “that the corporation was dissolved and that it be deemed to have surrendered its corporate rights, privileges and franchises.” Nevertheless the adjudication in bankruptcy was sustained. In this opinion I concur. As loug as there is a legal entity, capable of owing money, and of collecting money, and of paying debts with that money, something exists capable of being adjudicated a bankrupt, if otherwise entitled. If a legal entity is capable of being adjudicated a bankrupt, it is necessarily capable of committing an act of bankruptcy.</p> <p>The other defects in the proceedings alleged in the moving papers are not jurisdictional, and upon the motion of Mr. White at all events are not worthy of further consideration.</p> <p>The motion is denied.</p>

This bill was dismissed upon motion of the defendants, because it did not present a matter cognizable in equity; it being, in the opinion of the learned trial judge, nothing more or less than a simple ejectment suit and the remedy at law plain and adequate. The complainant is a feme covert and brings this bill by a next friend. Her husband is made a defendant, along with a number of corporations and individuals.

<p>Carriers — Lien—Freight Advanced.</p> <p>An owner of lumber delivered it at a lake port to a lumber company under an agreement that the latter should ship the same to another port and market it, advancing freight and the expenses of loading, unloading, piling, and reshipment, for which it was to reimburse itself when the lumber was sold. The company shipped the lumber to Sandusky, and on its arrival procured a railroad company to receive it, pay the lake freight, and transport it to its yards, where it was piled for reshipment as sold. Held, that the railroad company, having acted in good faith in receiving the lumber as a connecting carrier, was subrogated to the lien of the lake • carrier for the freight advanced as well as to the rights of the lumber company as agent for other advances.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Carriers, § 897.].</p>

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

<p>In Error to the District Court of the United States for the Western District of Pennsylvania.</p> <p>Defendant’s ninth point, referred to in the opinion, was as follows:</p> <p>“Ninth. The burden of proof is on the government, and the defendant is entitled to the benefit of a reasonable doubt: and, when testimony contradictory or explanatory is introduced by tbe defendant, it becomes a'part of the burden resting upon the government to make the case so clear that there can be no reasonable doubt as to the inferences and presumptions claimed to flow from the evidence presented by the government.”</p> <p>The part of the charge complained of under defendant’s fifteenth assignment of error is as follows:-</p> <p>“As I have said before, the question of intent is one that is hard to establish directly, because grown persons do not always disclose the object they have in view in any acts in which they may indulge, and you have to gather the intent from the character of the act, the circumstances surrounding it. and from conduct of a like character which may appear as tending to aid you in finding and discovering it Tint in connection with all this, unless the tesamon.v satisfies you of something else, you are warranted in holding a party responsible for the natural and probable and legitimate consequences of lii's act. I have said that is what is presumed in every case a man means.”</p>

<p>1. Courts — Federal Courts — Jurisdictional Facts — Record.</p> <p>The facts on which the jurisdiction of the courts of the United States rest must appear in the record of all suits prosecuted before them.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 816 818. J</p> <p>2. Same — Amount in Controversy.</p> <p>Act Cong. Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St 1901, p. 508j, provides that the Circuit Courts shall have original cognizance of all suits of a civil nature where the matter in dispute exceeds the sum or value of $2,000, exclusive of interest and costs, and arising under the statutes or laws of the United States, or in which there shall be a controversy between citizens of different states, etc. Held, that tbe Circuit Court is without jurisdiction unless the matter in dispute, exclusive of Interest and costs, exceeds the sum or value of $2,000, whether jurisdiction is based on diverse citizenship or a controversy arising under the Constitution or laws of the United States.</p> <p>[Ed. Note. — Jurisdiction of Circuit Courts as dependent on amount in controversy, see notes to Auer v. Lombard, 19 O. O. A 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. 0. A. 459.]</p> <p>3. Same — Nature of Action.</p> <p>Where suit was brought against a tax collector alone to enjoin the collection of certain taxes amounting to $1,724.24, on the ground that such taxes were illegal and in violation ol' complainant’s constitutional rights, and an amended bill was filed after sale of the land for taxes, but while it was still subject to redemption for $1,857.51, alleging that such sale cast a cloud on complainant’s title, the bill was not one to remove a cloud on title, but to enjoin the taxes, the amount of which, and not tho value of the laud, constituted the amount in controversy; and, this being under $2,000, the suit was not within the jurisdiction of the federal court.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. yojL 13, Courts, §§ 890-896.]</p>

<p>Courts — Federal Courts — Amount in Controversy.</p> <p>Where suit was brought against a tax collector to enjoin tne collection of certain taxes, the amount of which was less than $2,000, the case was not within the jurisdiction of a federal court.</p> <p>[Ed. Note. — Jurisdiction of Circuit Courts as dependent on the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p>

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

<p>1. Sales — Contract—Construction—Certainty—“Another Cargo.”</p> <p>Plaintiff, having sold to defendant a cargo of ties, by certain telegrams offered to sell defendant “another cargo” on certain terms, which offer defendant accepted. Held, that the contract was not objectionable for failure to fix the amount of ties to be furnished; the words “another cargo” being construed to mean another cargo of the same quantity as the former one.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig.- vol. 43, Sales, §§ 189-196.]</p> <p>2. Evidence — Parol Evidence — Pleading.</p> <p>Where .plaintiff sued for breach of a contract for the sale of “another cargo” of ties, plaintiff was entitled to introduce parol evidence, without further proof of the quantity of ties contained in the preceding cargo.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, § 2083.]</p>

<p>1. Public Lands — Patents—Fraud—Equity Jurisdiction.</p> <p>The public laud belongs to the government, and it may impose such conditions upon its alienation as to it seems best; and when, through fraudulent representations or practices, a patent has been wrongfully secured equity, as long as the title remains in the patentee at least, affords ample redress.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 41, Public Lands, § 332.]</p> <p>2. Same — Cancellation of Patent — Evidence—Sufficiency.</p> <p>Under the principles that the law deals tenderly with one who in good faith goes upon public lands to make his home thereon, and that proof to set aside a written instrument for fraud must be clear, unequivocal, and convincing, equity will refuse to cancel a homestead patent on the ground of fraud where the patentee was a cripple; had an invalid wife and one child; went upon land shortly after making entry; built a house and barn; cleared land for a garden, and planted a small orchard; undertook to organize a homestead; his wife’s illness and his father’s illness and death required his occasional absence; the infertility of the soil required him to work elsewhere part of the time to raise money for necessary expenses ; after a severe, drought he remained away for a year with the local land officer’s consent, hauling freight and doing any other work he could secure to provide a living; when away from home he had others care for his stock and household goods which he left there; he never left home with intent to abandon his entry; though witnesses for the government stated that they had not seen him on his place at certain times; that they did not know of his cultivating the homestead; that he lived at other places during part of the five years’ period during which the statute required his residence on the land, and though some of the witnesses gave opinions that he had not resided on and cultivated the homestead for such period.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public Lands. 5 332.]</p>

<p>Patents — Invention—Akmatuke Cokes.</p> <p>The Reist patent, No. 508,637, for an armature core, is void for lack of invention.</p>

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

This is an appeal from a decree of the Circuit Court dismissing on demurrer appellants’ bill as amended, because, as the Circuit Court held, it was brought prematurely. Held: it was brought prematurely. The question relates entirely to the Patent Office practice as to appeals in interference cases. The action was brought to rescind a contract for the sale of rights claimed under applications for patents for inventions in friction draft and buffing apparatus.

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

<p>Patents — iNiairNGiojnoNT—Ex.isCTBio Controllers.</p> <p>Tho Knight & Potter patents, No. 587,443, for an apparatus, and No. 587,442, lor a method for regulating electrically driven mechanisms relating mainly to the regulation of speed and power in operating electric cars by means of controllers, construed, and held not infringed.</p>

<p>1. Bankruptcy — Equity—Pleading—Rules—Demurrer—'Waiver.</p> <p>General bankruptcy order 37 (89 Fed. xiv) declares that in proceedings in equity instituted to carry into effect the provisions of the act, or to enforce the rights and remedies given thereby, the rules of equity practice shall be followed, and equity rule 37 declares that no demurrer or plea shall be held bad and overruled on argument only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. Hold, that rule 37 only covers cases where the demurrer and answer each attacked only part of the bill and overlapped, and did not apply where a demurrer and answer to an involuntary bankruptcy petition were filed together, and both attacked the whole petition, in which case the demurrer would be regarded as waived.</p> <p>2. Same — Pleading—Time.</p> <p>In a bankruptcy proceeding, defendant will be protected, notwithstanding his demurrer is filed too late, if it is not for delay only; and in proper cases time to plead or answer may be extended under Bankr. Act July 1, 1898, c. 541, § 18b, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3429], providing that five days after return shall be allowed within which the bankrupt or creditors may appear or plead, or within such time as the court may allow, and authorizing the judge to consider a meritorious pleading, though filed late.</p>

<p>Stbeet Railkoaijs — Receivers—Suit to Foreclose Mortgage.</p> <p>The bondholders of a street railroad company in a suit by the trustee to foreclose the mortgage held, on the face of the bill, entitled to the appointment of a temporary receiver.</p>

<p>Actions for Damages upon Contracts.</p>

In Equity. This is a proceeding by writ of mandamus to require the defendant railroad company to furnish ears for the transportation of grain for the relator in proportion to the number of cars furnished for a like service for the use of relator’s competitors engaged in the same business. The relator’s business consists in buying grain for export, and to some extent in'storing the same for hire.

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

<p>1. Insurance — Fire—Action on Policy — Answer— Sufficiency.</p> <p>Under general rules of pleading, in an action on a fire policy exempting insurer from liability for loss caused directly or indirectly by earthquake, an answer is sufficiently definite and certain where it alleges (1) that the fire and the loss thereby caused, were caused directly by earthquake, and that hut for such earthquake the fire and loss would not have occurred; and (2) that the fire and loss thereby were caused indirectly by such earthquake, and that but for such earthquake the fire and loss would not have occurred.</p> <p>2. Constitutional Law — Equal Protection of the Laws — Fire Insurance-Action on Policy — Pleading.</p> <p>Code Civ. Proc. Cal. § 437a, Act Cal. March 21, 1907, St. 1907, p. 830, c. 447, providing that in an action on an insurance contract wherein defendant claims exemption from liability because, though the proximate cause of the loss was a peril insured against, the loss was remotely caused by or would not have occurred but for a peril excepted in tbe contract, defendant must specify in his answer the peril which was the proximate cause of the loss, in what manner the peril excepted contributed to the loss or itself caused the peril insured against, and, if he claims that the peril excepted caused the peril insured against, upon what premises or at what place the peril excepted caused the peril insured against, does not compel a disclosure of defendant's evidence in advance of the trial so as to deprive him of the equal protection of the laws, on the theory that other litigants are not compelled to disclose their evidence.</p> <p>3. Constitutional Law — Equal Protection of the Law — Fire Insurance— Action on Policy.</p> <p>But the section is unconstitutional as depriving defendant of the equal protection of the law, in that it discriminates against a particular class of actions and against defendants therein, without apparent reason for the distinction.</p> <p>4. Courts — Federal Courts — Actions on Insurance Contracts — Pleading.</p> <p>The section is not inapplicable to the federal courts in actions at law, as compelling a disclosure of evidence in advance of the trial, while Rev. St. § 801 [U. S. Comp. St. 3901, p. C61], provides that the mode of proof in the trial of actions at common law shall he by oral testimony and examination of witnesses in ojien court, except as thereinafter provided.</p> <p>5. Statutes — Special Laws — Pleading—Constitutional Law.</p> <p>The section is also invalid as violating Const. Cal. art. 4, % 25, subd. 3, prohibiting special laws regulating the practice of courts.</p> <p>6. Words and Phrases — “Evidence”—Definition.</p> <p>“Evidence” is the means by which a fact is proved.</p> <p>[Ed. Note. — For other definitions, sec Words and Phrases, vol. 3. pp. 2521-2524; vol. 8, p. 7655.]</p> <p>7. Statutes — “General Law” — What Constitutes.</p> <p>An act applying uniformly to the whole or any single class of individuals or objects, whore the classification is founded upon some natural intrinsic or constitutional distinction, is a “general law.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 70-76.</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3065-3071; vol. 8, pp. 7660-7670.]</p> <p>8. Same — Glassification.</p> <p>To make a law applying to a class of individuals or objects general, the classification must not be arbitrary, but must be founded upon some natural intrinsic or constitutional distinction, and some reason must appear why the act is not made to apply generally to all classes.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 70-76.]</p> <p>9. Same.</p> <p>Although a law is general when it applies equally to all individuals of a class founded upon a natural intrinsic or constitutional distinction, it is not general if it confers particular privileges or imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a class arbitrarily selected from tile general body of those who stand in precisely the same relation to the subject of the law.</p> <p>iEd. Note. — For eases in point, see Cent. Dig. vol. 44, Statutes, § 72.j</p>

<p>Trade-Marks and Trade-Names — Unfair Competition — Imitation of Labels.</p> <p>Complainant, as proprietor of a spring from which it and its predecessors in business had for many years sold water throughout the United States and foreign countries under the name of “White Rock Lithia Water” in bottles having distinctive body and neck labels, held, entitled to an injunction to restrain defendants from putting up and selling city water in competition under the name of “High Rock Lithia Water” in bottles similar to those of complainant, having body and neck labels of the same coloring and style of lettering, and so nearly resembling complainant’s in general appearance as to be likely to deceive purchasers using ordinary care, and as to indicate beyond reasonable doubt to a person comparing them that the simulation was intentional.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, I 81.</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>In Admiralty. On exceptions to libel.</p> <p>This is a libel in rem to recover against the steamship George W. Elder ■ — the averments showing, in effect, that the libelant is a municipality, with power to sue and be sued, and with power, among other things, to operate a dry dock within-the limits of the port of Portland; that the George W. Elder is a vessel plying the waters of the United States; that between May 29 and September 38, 3906, at the instance and request of her owner, and upon the faith and credit of the vessel, the libelant lifted the vessel upon its dry dock, and furnished “dry dockage” therefor for the period of time intervening said dales, and performed extra labor, and suffered damages, the reasonable value of which services and the amount of damage being set out; that by the statute of the state of Oregon a lien is created upon the vessel enforceable in admiralty, and that demand for payment has been made and payment refused.</p>

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

<p>1. Aliens — Naturalization—Vouchers—Competency.</p> <p>Naturalization Act June 29, 1906, c. 3592, § 4, subd. 2, par. 3, 34 Stat. 597 [U. S. Comp. St. Supp. 1907, p. 421], provides that the petition shall he verified by the affidavits of at least two credible witnesses, who are citizens of the United States, and who shall state in their affidavits that they have personally known the applicant to be a resident of the United States for at least five years continuously, and of the state, territory, or district in which the application is made for a period of at least a year immediately preceding the date of the filing of the petition. Held, that a voucher who had not known the petitioner for five years continuously immediately preceding the filing of the petition was disqualified, though he had known the petitioner for such period at the timé of the hearing.</p> <p>2. Sawe -Witnesses — Disqualification.</p> <p>Such witness was also disqualified as a witness at the final hearing, even though the petition was supported by qualified vouchers under Act June 29, 1006, c. 3592, § 4, subd. 4, 34 Stat. 598 [ü. S. Com]). St. Supp. 1907, p. 422!, providing that it shall be made to appear to the satisfaclion of the court admitting the alien to citizenship that immediately preceding the date of the application he had resided continuously within the United States; the date of the application being fixed by subdivision 2, par. 3, 34 Stat. 597 [U. S. Comp. St. Supp. 1907, p. 421], as the date of filing the same.</p>

<p>Towage — Breach of Towage Contbacx^-Executory Contract.</p> <p>Libelant engaged, respondent tug to tow three barges, which, were then anchored together, to a port. The tug proceeded to the place where the barges were, reaching there in the morning and, although they were ready to be towed, she went into a harbor and remained until the next day. In the meantime one of the barges slipped her chain and drifted on shore and was injured. On the next day the tug took the remaining two barges and towed them to the port agreed upon. Held that, when the tug went to the place where the barges were for no other purpose than to take them in tow, she entered upon performance of the contract, and having subsequently performed it in part it was not executory, and that a suit in rem could be maintained against her to recover damages for its breach in negligently failing to take the barges in tow when she should have done so.</p>

<p>Petition for Leave to Enter Security for Stay of Execution,</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 Eastern District of New York.</p>

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