Volume 160 — Federal Reporter

<p>Equity — Pt.mading—Multifaiíiousiíess—Cbeditobs’ Bilí,.</p> <p>A bill by a judgment creditor against the debtor and others to set aside various conveyances by which it is alleged the debtor fraudulently transferred ills property to different corporations organized for the purpose and of which he owned the stock, the purpose being to cover it up and place It beyond the reach of execution through which transfers the other defendants have acquired or claim some interest in different portions of the property, has but a single object, which is to reach and subject the property, is based on a series of transactions forming one course of dealing, and is not demurrable for multifariousness, although the interests of the other parties defendant are separate and distinct.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 856.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Michigan..</p> <p>This is an appeal from a decree in a salvage case. The Myrtie M. Ross, a small steamer trading between Lake Erie and Detroit and St. Clair river ports, owned by appellant, laden with coal, was sunk during a gale November 19, 1900, in Lake Erie, about a mile and a balf from the channel toward the Canadian shore. The appellee, McMorran, doing business under the name of the “Port Huron Wrecking Company,” owned a wrecking steamer, the Groh, at Port Huron, together with several pontoons; one Dieffenbach being in general charge of wrecking operations. November 27th (eight days after the Ross was sunk) Nowlin, with one Carry, came to Port Huron to see McMorran about raising the boat. McMorran was away. They had an interview with Dieffenbach, the result of which was that Nowlin offered to pay $800 for- raising the boat, while Dieffenbach refused to take less than $1,000 without McMorran’s approval. The next day (November 28th), •on McMorran’s return, the latter wired Nowlin’s brother (who acted for the latter in receiving the telegram): “One thousand dollars is the lowest.” November 30th appellant replied by wire: “You can have job raising Ross. Letter will follow,” and on the same day wrote as follows: “Telegraphed you this p. m. that I would accept of your offer in raising and delivering the boat.Myrtie M. Ross into port, either at Marine City or Detroit, which will let you know later on which place we wish same delivered at. Will send man to go with you when ready. You to proceed to raise the boat at once. Better wire me as soon as you are ready to start, so I can send man on. We will require you to put three chains under boat when raising her, as we do not wish to have her strained, but I believe this is the understanding with you.” December 1st McMorran replied, as follows: “I have your favor of the 30th relative to raising the Myrtie M. Ross. We will attempt to raise and ■deliver her at Marine City or Detroit, weather and ice permitting, but with the understanding that if the ice is not such that it is safe to go to Detroit that we have the option of taking her to the nearest point of safety and that the money for raising her, namely, $1,000, be paid as soon as boat is raised and delivered at nearest point possible from where she now lays. We will start putting chains under her at once if this is in accordance with your wishes. Please let me know at once.” No reply was made to this letter.</p> <p>The wrecking master, Dieffenbach, got the wrecking outfit ready December 1st and got opposite the wreck at 7 or 8 o’clock the following morning. The wrecking crew immediately made fast to the spar and to the boiler house of the Ross. The latter had then been sunk 13 days. She was in about 20 feet of water, headed about north, sitting on an even keel, and had settled in the bottom about 5 or 6 feet aft and 6 feet forward. Her cabins and smokestack were gone. According to the diver’s testimony the after side of the forecastle, •where the bulkhead was, was out, and a plank was out of the starboard quarter, together with the covering board. Part of her stanchions were afloat. The diver at once went down and began jetting a hole under the wreck. He got one hole through and the chain pipe in place by the evening of December 3d. The chain was put through by noon of the next day. The forward chain was through by 5 p. m. on the 5th. To put the other chain through would require only an hour. The wrecking party at once started for Port Huron, reaching that place about 11 p. m. The entire day and nearly all the night of the 6th was spent pumping out the pontoons and getting them ready for service. The wrecking party left Port Huron with the pontoons •early in the morning of the 7th and got to the dock near the wreck on the •evening of that day, too late to go to work. On the preceding day Nowlin sent one Brown, an experienced wrecker, to act as mate of the Groh during •wrecking operations, with the understanding that Brown was to measurably represent appellant, and was to be paid by the latter in case McMorran refused to pay him. Brown went to Port Huron, was employed by McMorran, joined the wrecking party there and went to the wreck with the pontoons, remaining until the wrecking operations were finished. On December 7th, the day the wrecking party reached the dock with the pontoons, Nowlin wir■ed McMorran: “Unless you receive other instructions from me, deliver Ross to Detroit. Wire progress made.” During the 8th. 9th, and 10th the weather was too rough to work. On the 11th the chains under the Ross were picked up. hooked onto the pontoons and were about ready for a lift. Before the lift was completed a strong wind sprang np, making it impossible to go on with the work. Before the wreck was left, the pontoons were sunk from within 10 inches to 2 feet of their tops. Three days later, and as soon as the storm permitted, the party returned to the wreck and found the pontoons had broken loose, one going far away to the eastward and the other lying near the wreck, tipped over, hut not against the wreck. Ice had already begun to form. It was decided that it was too late in the season to raise the boat, and the pontoons were with difficulty gotten away and into port. Brown made a personal report to Nowlin of the wrecking operations. On December 19th MeMorran wrote Nowlin as follows: “Referring ¡o steamer Myrtie Boss, would say that owing to the constant blowing, the wind and ice going, we aro obliged to discontinue operations on the steamer, and shall not be able to do any more until spring, unless weather should turn warm.” No reply to this letter was made.</p> <p>On June 6th following, the wrecking party, after two days “sweeping,” found the wreck. The bulwarks, rail, deck frames and at'terdeck and the upper works generally were gone. The sl.em was found cut off a foot and a half above the deck at the hawser pipes, the anchor was pulled way out on the chain, and the rudder was about 25 or 30 feet astern, the boat sitting up straight, sunk in the mud, 10 feet aft and 6 feet forward. By June 18th the Ross was raised. In the operation a hole was cut through the deck and a chain put under the deck beam to assist in pulling the boat out of the mud. On June 1Sth MeMorran wrote Nowlin: “Are yon prepared to receive and pay for delivery of tile steamer Myrtie Ross? 1 expect she will be at Marine City today or tomorrow.” Nowlin refused to receive the boat or to pay the contract price for raising her, claiming that MeMorran had not carried out his contract, and demanded damages for the alleged breach. The boat was libeled for the contract price of §1,000, together with $300 additional for six days"' services of the Groh during the time Nowlin was declining to receive the Ross. Pending the libel proceedings, the boat was sold to MeMorran for $900. The appellant's answer to the libel alleged an absolute guaranty by MeMorran to raise the Ross and to deliver her in good condition at Detroit or Marine City during the fall of 1900; alleged that the libelant had abandoned work on the steamer in December, when it was possible by due diligence to raise and deliver her that fall, and admitted a refusal to pay the contract price until the damages wore adjusted. Appellant filed also a cross-libel, setting up the same absolute guaranty to raise and deliver the Ross during the fall of 1900 for the price stated, charging a breach of that agreement, the unnecessary abandonment of work in the fall, and alleging that by reason of defective appliances used and appellee’s negligence, including the leaving of the Ross exposed during the winter to the forces of wind, waves, and ice. the boat had been practically ruined, and appellant damaged to the extent of $6,000.</p> <p>The district judge found that no unconditional agreement was made by Me-Morran to raise and deliver the boat that fall, but that the contract was only to attempt to do so. weather and ico permitting; that MeMorran began and prosecuted the wrecking operations with due diligence and with care and skill, and was obliged to suspend on December 11th, on account of had weather and ice; and that the injuries to the Ross were not occasioned by McMor-ran's negligence or default. Decree was entered in favor of MeMorran for $1,300.</p> <p>Upon this appeal, the errors assigned are these: (1) That the court erred in ordering and decreeing the recovery by libelant of the sum of $1,300 and interest on $1,000 from June 18, 1901. (2) That the court erred in not sustaining appellant’s cross-bill. (3) That the court erred in dismissing appellant’s cross-bill. (4) That the court erred in not awarding damages in favor of the appellant and against libelant, on appellant’s cross-bill.</p>

<p>1. CONTRACTS — INTERPRETATION—RELATION OF PARTIES.</p> <p>In the interpretation of a contract, the court may consider the relation of the parlies, their connection with the subject-matter of the contract, and the circumstances under which it was made, and determine the Intention from the entire agreement.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 752.)</p> <p>2. Same — Impossibility op Performance.</p> <p>Plaintiff agreed to point out public lands to defendant’s timber inspector who would estimate the timber, whereupon defendant would acquire it from the government by selecting the same in lieu of forest reservation lands after acquiring the right to make such selection by purchase from persons holding forest reserve lands as authorized by Act Cong. June 4, 1897, c. 2, 80 Stat. 36, and would pay plaintiff $1 per 1,000-feet of timber on land so pointed out, examined, and estimated, less the cost of purchasing the reservation scrip necessary to acquire such lands. Held that, as such act constituted a standing offer by the government to exchange any of its lands vacant and open to settlement for a like quantity of similar land within a forest reservation, such contract was not objectionable as impossible of performance; the only, lands which defendant could acquire by exchange under such act being lands vacant and open to settlement, the title of any of which defendant could acquire by the exchange of title to forest reserve lands.</p> <p>3. Same — Illegality—Public Policy.</p> <p>A contract by which plaintiff agreed to point out timber lands belonging to the United States, subject to exchange for reservation lands and which defendant agreed to, procure by purchasing the title to reservation lands and exchange the same for the lands pointed out, was not illegal as against public policy because the right of exchange created by Act Cong. .Tune 4, 1897, c. 2, 80 Stat. 36, was not assignable; no assignments being contemplated by such contract.</p> <p>4. Frauds, Statute oe — “Contracts for Broker’s .Services.”</p> <p>A contract for plaintiff’s services in the discovery and pointing out of public timber lands to defendant’s timber inspector, who was to estimate the timber on such lands, and procure title thereto in defendant by exchanging forest reserve lands therefor, and pay plaintiff a certain sum per 1,000 feet of timber on the land, less the cost of reservation scrip-necessary to acquire the lands, was not a contract for brokers’ services In purchasing land within the Montana Code, requiring contracts for-broker’s services to be in writing.</p> <p>5. Master and Servant — Action for Compensation.</p> <p>Where a complaint for timber cruiser’s services alleged that plaintiff was to be paid on certain terms for all land that he should discover and' point out to defendant’s timber inspector, which land was to be acquired by defendant in lieu of forest reserve lands under Act Cong. June 4, 1897, c. 2, 30 Stat. 36, and Act June 6, 1900, c. 791, 31 Stat. 614, which limited’ the land subject to such exchange to vacant nonmineral lands open to settlement, plaintiff’s testimony that the lands included were those open to* entry excluding unsurveyed lands, mineral lands, Northern Pacific Railroad lands, lands appropriated or selected by others, lands not subject to entry under the timber and stone act, and lands not patented to the defendant, did not create a variance between the complaint and the-proof.</p> <p>6. Same.</p> <p>Where plaintiff contracted to point out public timber lands to defendant’s timber inspector who was to estimate the timber thereon and pay plaintiff $1 per 1,000, less the cost of reservation scrip necessary to be purchased in order to obtain the lands pointed out by exchange, the contract excluded lands not accessible or not sufficiently timbered to justify their exchange, and hence there was no variance between the contract pleaded and plaintiff’s testimony that lands that were not estimated by defendant’s timber inspector, and which .were not accessible or not sufficiently timbered to justify their purchase, were to be excluded.</p> <p>7. Same — Question for Jury — Presumptions.</p> <p>In an action for breach of a timber cruiser’s contract only covering lands-sufficiently timbered to justify exchange for reservation lands, whether certain tracts were in fact excluded for failure to contain a sufficient quantity of timber was for the jury, and it would be presumed, when tbe-jury determined that a tract was excluded, it also excluded the testimony, relating to the timber thereon.</p> <p>8. SAME — CONTRACT—BkEAOTT BY DEFENDANT.</p> <p>Where a timber cruiser's contract provided that defendant should pay $1 per 1,000 for timber on land pointed out by plaintiff which defendant would acquire by exchange for reservation scrip, less the cost of purchasing the scrip, etc., plaintiff was entitled to recover for lands pointed out which were subsequently pa halted to another because of defendant’s failure to obtain title from the United States by reason of its delay and without fault on plaintiff’s part.</p> <p>9- Same — Evidence.</p> <p>Where a timber cruiser’s contract required him to point out public timber lands, subject to entry to defendant’s timber inspector,- whereupon such inspector would estimate the timber on the lands according to which estimate plaintiff was to receive payment, and such Inspector, though a witness, testified that he had lost his field book, and liad no estimates* made by him in 1900 which had been sent to defendant’s agent who testified that he did not know what had become ol' them, plaintiff was entitled to prove by another estimator who estimated the timber on the land in that year for another that the 1 and averaged 400,000 feet to each 40-aere tract.</p>

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

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

<p>1. Sales — Breach op Warranty — Action—Mattes to be Proven.</p> <p>In an action for breach of warranty in connection with a sale, plaintiff must show the warranty, a breach, and damages.</p> <p>[ Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 1253.]</p> <p>2. Same — Implied Warranty.</p> <p>That the sellers of a barge agreed to construct four coal bins in it to be loaded and unloaded separately implies a warranty of fitness.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Sales, §§ 772-776.]</p> <p>3. Judgment-Res Adjudicata — Identity op Issues.</p> <p>In an action for breach of warranty respecting a barge sold by defendants, judgment for plaintiff in limitation of liability proceedings brought by plaintiff after an accident, in which one man was killed and others were injured, caused by a defective condition of a bulkhead on the barge, did not establish a breach of warranty on defendants’ part, since the matter before the court in tho limitation of liability proceedings had wholly to do with plaintiff’s liability to the damage to claimants, and had nothing to do with defendants’ liability to plaintiff; any consideration of what defendants did or omitted to do being wholly collateral to the issues, and any finding with respect thereto not being binding upon defendants.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. rol. 30, Judgment, §§ 1244r-1247.]</p> <p>4. Trial — Evidence—Irregularity Admitted — Eppect.</p> <p>Though, in an action for breach of warranty respecting a barge spld by defendants, a judgment in limitation of liability proceedings brought by plaintiff after an accident in which one man was killed and others were injured, caused by a defective condition of a bulkhead on the barge, did not establish a breach of warranty on defendants’ part, as claimed by plaintiff, the entire record of such proceedings, including the stenographer’s minutes, being in evidence, and embracing testimony which, if properly established, would have been admissible independently, and, no objection being made to the irregularity of the proof, the jury had a right to consider such testimony.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 46, Trial, §§ 261-265.]</p> <p>5. Appeal and Error — Review—Directed Verdict.</p> <p>In reviewing an order directing a verdict for defendant, the United States Circuit Court of Appeals must give plaintiff the benefit of all inferences fairly deducible from the testimony.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4024.]</p> <p>6. Sales — Breach op Warranty — Question fob Jury.</p> <p>In an action for breach of warranty respecting a barge sold by defendants, held, under the evidence, improper to direct a verdict for defendants.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 43, Sales, §§ 1303-1308.]</p>

<p>1. Master and Servant — Injuries to Servant — Da ngeeous Maciiineby.</p> <p>Where plaintiff was injured while operating a candy cutter, and it was undisputed that the practical operation of the cutter in admitting the cardboard with the candy thereon to pass under the fender over the knives could not well have admitted of a smaller space than that allowed between the fender and the moving candy, the machine was not defective as not sufficiently safeguarded.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Serv - ant, §§ 228 -231.]</p> <p>2. Same— “Fellow Sekvants.”</p> <p>Where plaintiff employed to operate a candy-cutting machine obtained the candy to be passed through the machine from his foreman, who had no authority to hire or discharge his co-employés, he was plaintiff’s fellow servant, so that plaintiff could not recover for the foreman’s negligence in furnishing him candy which was not sufficiently cooled to be cut in safety by the machine.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 486-492.</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730'; vol. 8, p. 7662.</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668, Flippin v. Kimball, 31 C. C. A. 286.]</p> <p>3. Same — Fellow-Seevant Law.</p> <p>The Missouri fellow-servant law does not extend to the employment of servants in a candy factory engaged in cutting slabs of candy by a machine.</p> <p>4. Wokds and Phrases — “Fixed.”</p> <p>The word “fixed,” as ordinarily used, means securely placed, fastened, settled, immovable, unalterable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2829-2830.]</p> <p>5. Same — ‘ ‘Traverse. ”</p> <p>The word “traverse,” when used as a verb, primarily means to lay In a cross direction, to cross, while the participle “traversing” implies adjustable laterally, having a lateral or swinging motion.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, p. 7083.]</p> <p>6. Master and Servant — Injuries to Sebvant — Statutes—Machines.</p> <p>Mo. Rev. St. 1899, § 6434 (Ann. St. 1906, p. 3217), provides that no minor or woman shall be required to work between the “fixed or traversing" parts of any machine while it is in motion. Plaintiff, a minor, was employed to operate a candy-cutting machine, the knives of which were covered by a hood and protected by wooden guards. The candy was handed to plaintiff in slabs on pieces of cardboard, and he was directed to shove this under the knives by seizing the cardboard with his thumb and first finger, and pressing the candy from the rear with the palm of his hand toward the fender. The cardboard was about 18 inches square, and the candy thereon from 10 to 12 inches square, so that plaintiff had ample opportunity to disengage his hand from the cardboard before any jerking motion of the machine could have drawn his hand under the knives. Held, that plaintiff was entirely outside of and away from the motion of the machine, and was therefore not entitled to predicate an action for injuries to his hand by being caught in the machine on such section.</p>

<p>Appeal from the District Court of the United States for the Southwestern Division, Judicial District of Missouri.</p>

<p>1. Chattel Mortgages — Validity—Statutes—Peoperty Subject to Mortgage.</p> <p>Civ. Code Cal. § 2955, provides that mortgages may be made only on the personal property therein specified. Subdivision 8 includes upholstery, furniture, and household goods; and subdivision 13, the machinery, casks, pipes, tubes, and utensils used in the manufacture or storage of wine, fruit brandy, fruit syrup, or sugar; also wines, fruit brandy, fruit syrup or sugar, with the cooperage in which the same are contained. Held, that neither of such provisions authorized a chattel mortgage on a soda fountain, carbonator, candy machines, tables, chairs, and other utensils in a candy and ice cream store.</p> <p>2. Bankruptcy — Chattel Mortgages — Validity as Against Creditors.</p> <p>Civ. Code Cal. § 2955, provides that mortgages may be made only on certain enumerated personal property, and section 29?'3 declares that mortgages of personal property other than that specified in section 2955 shall be valid between the parties, their heirs, legatees, and personal representatives and persons who, before parting with value, have actual notice thereof. Held, that a chattel mortgage of property other than that specified in section 2955, executed in good faith for a bona fide consideration. was valid against the mortgagor’s trustee in bankruptcy and general creditors.</p> <p>8. .Same — Contract of Bankrupt — Performance by Trustee of — Order of Court.</p> <p>Where a bankrupt had purchased a corn popper under a conditional sale contract with which he had not complied at the time bankruptcy intervened, the trustee was under no obligation to carry out the agreement and pay the balance of the contract price, and having sold the popper with other goods belonging to the bankrupt en masse, without regard to its present worth, he had no power to pay to the seller the balance of the purchase price without an order of court entered on notice to the. creditors.</p>

Writ of error to review a judgment of the Circuit Court 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.

Appeals from the Circuit Court of the United States for the Southern District of New York. In the Rathbun Cases there was no opinion below. The decision in the Villari Case is reported in 147 Fed. 766. The Circuit Court reversed a decision by the Board of United States General Appraisers (G. A. 5,865; T. D. 25,843), which had affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Appeal and Eekob — Review—Findings of Fact.</p> <p>An appellate court on a writ of error cannot weigh the evidence, but must take the facts as found by the court .below, unless there is a total want of evidence to sustain the findings.</p> <p>[Ed. Note. — -B'or cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-39G9.]</p>

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

<p>1. Patents — Invention—Changing Proportions in Allot.</p> <p>A mere difference in the proportions of the constituents of an alloy, however useful the result may be, does not entitle the originator to the monopoly of a patent, where such result was reached gradually by continued experimentation by the patentees and by others, all leading toward the same proportions, and the final product differs from those of the prior art only in degree.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 19.] :2. Same — Allot for Journal Bearings.</p> <p>The Hendrickson & Clamer patent, No. 655,402, for an alloy for anti-friction bearings “consisting of less than seven per cent, of tin and more than twenty per cent, of lead and the balance of copper,” is void for lack of invention in view of the prior art.</p>

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

<p>1. Patents — Invertios—Designs.</p> <p>The mere assembling ol old parts to make a structure of a new design, although new lines and curves and a harmonious and novel whole are produced, does not Involve invention so as to render the design patentable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 33.]</p> <p>2. Same — Monument.</p> <p>The Young design patent. No. 27,315, for a design for a sarcophagus monument, is void for lack of invention, the separate parts of the monument shown all being old in the art.</p>

In Equity. On final hearing. Suit for alleged infringement of claims 1 to 11, inclusivo, and 19, 27, and 35 of letters patent, No. 577,639, issued to Albert J. Bates, February 23, 1897, for a machine for making wire fence, which patent is now owned by the complainant.

In Equity. On final hearing. Suit for an alleged infringement of claims l.and 3 of letters patent, No. 561,193, issued to Albert J. Bates June 2, 1896, from whom complainant derives title, for improvements in woven-wire fence. The application was filed January 6, 1896.

<p>1 Indians — Introducing Liquors into Indian Country — Police Power op United States.</p> <p>Act Jan. 30, 1897, e. 109, 29 Stat. 506, prohibiting the introduction of intoxicating liquors into the Indian country, is a police regulation; and if it is to apply within a state it must be because of the status of the Indians for whose protection it was enacted, or of the locus of the forbidden act as being on a reservation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indians, § 61.1</p> <p>2. Same — Extinguishment op Reservation — Allotment ce Lands in Sever-alty — “Indian Country.”</p> <p>Since the allotment of lands in severalty to all of the Indians on the Uintah Indian reservation in Utah, subject to the provisions of Act Feb. 8, 1887, e. 119, 24 Stat. 388, and the restoration of the remainder of the lands' of the reservation to the public domain, no part of such lands is “Indian country,” within the meaning of Act Jan. 30, 1897, c. 109, 29 Stat. 506; and a prosecution cannot be maintained thereunder for introducing liquor thereon, even on a portion which was subsequently reserved by executive order for agency and school purposes.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indians, § 61.</p> <p>For other 'definitions, see Words and Phrases, vol. 4, pp. 3545, 3549.]</p>

<p>At L,aw. On motion for new trial.</p>

<p>Application for Naturalization.</p>

On Plea to the Jurisdiction. The following are the facts alleged in the complaint, showing the nature of the controversy: On May 13, 1905, William N. Jennings, of New Haven, was adjudicated a bankrupt on his own petition, and on May 25th the plaintiff was appointed trustee of his estate.

<p>In Equity. On plea.</p>

<p>Monopolies — Interstate Comziiebce — Sugab Tbust.</p> <p>The purchase of a controlling interest in the stock of a sugar refining corporation, to acquire control thereof and prevent the corporation from refining sugar in competition with the purchaser, that the latter might control the business of refining sugar for sale in the United States, does not involve a monopoly or combination' in restraint of commerce within the state, in violation of section 7 of the Sherman act (Act July 2, 1890, c. 647, 26 Stat. 210 [U. S. Comp. St. 1901, p. 3202]), as the manufacture of sugar does not constitute trade or commerce and only incidentally affects it.</p>

At Law. Motion by plaintiff for a new trial on exceptions to rulings in receiving and rejecting evidence; to the charge as made: to refusals to charge; and on the ground that the verdict is contrary to and unsupported by the evidence.

<p>1. Bankruptcy — Discharge of Bankrupt — Prohibition Against — Borrow* ing Money Under False Representation.</p> <p>One borrowing money obtains “property” on credit, within Bankr. Act July 1, 1898, c. 541, § 14, cl. b (3), 30 Stat. 550 (TI. S. Comp. St. 1903, p. 3427), as amended by Act Feb. 5, 3903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), forbidding the discharge of a bankrupt who has obtained property on credit upon a materially false statement in writing, etc.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5603-5728; vol. 8, pp. 7708-7770.]</p> <p>2. Same — Intent to Defraud — Essentiality.</p> <p>Bankr. Act July 1, 1808, c. 541, § 14, cl. b (3), 30 Stat. 550 (U. S. Comp. St. 1001, p. 3427), as amended by Act Feb. 5, 1003, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), forbidding the discharge of a bankrupt who has obtained property on credit upon a materially false statement in writing, does not require a conscious intent to defraud to prevent a discharge; and hence a bankrupt was not entitled to a discharge where he signed a blank statement of his financial condition, which at his direction his bookkeeper filled out and sent to a bank, which lent the bankrupt money on the faith thereof, though, relying on the bookkeeper’s honesty and accuracy, the bankrupt did not actually know of the material falsity of the statement and did not consciously intend to deceive the bank.</p> <p>3. Same — Time oe Loan — Effect.</p> <p>Where a bank lent bankrupt 810,000 on the faith of a materially false written statement of his financial condition, it is immaterial, as affecting the bankrupt’s right to a discharge within Bankr. Act July 1, 1898, c. 541, § 14, cl. b (3), 30 Stat. 550 (U. S. Comp. St. 10O1, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), forbidding the discharge of a bankrupt who has obtained property on credit upon such a statement, that $7,500 of the money was lent more than four months before the petition in bankruptcy was filed, where $2,500 was actually advanced -within such period, though it be necessary, to prevent a discharge, that the property be obtained within such period, which is not decided.</p> <p>4. Same — Burden oe Proof.</p> <p>Though generally the burden is on a creditor to sustain his opposition to the bankrupt’s discharge, the rule does not apply where the question presented is one of law, e. g., the construction of a statute, and not one of fact.</p> <p>5. Same — “False”—Definition—“False Oath.”</p> <p>“False,” as used in Bankr. Act. Act July 1, 1898, c. 541, > § 14, cl. b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), forbidding the discharge of a bankrupt who has obtained property on credit upon a materially “false” statement, means no more than “not true,” though the word is flexible, and sometimes means “incorrect,” and some-t'--'es comprehends wickedness or fraud, as in section 29, where the term “talse oath” means a corruptly false oath, such as would subject affiant to a prosecution for perjury.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2654, 2655.]</p>

<p>1. Evidence — Official Documents — Political .Questions.</p> <p>In a suit involving complainant’s right to certain land in Costa Rico of which complainant had been deprived by that government at the alleged instigation of defendant, a certified copy of a letter written by the United States Secretary of State with reference to Costa Rico’s jurisdiction over the territory, which the United States claimed belonged to Panama, was admissible as an official document constituting a statement of the position of the United States on a political, nonjudicial question.</p> <p>2. International Law — Rights oe Citizen — Governmental Torts — Damages.</p> <p>Where plaintiff, a corporation of the United States, was ejected from certain land and other property over which the government of Costa Rico ' was exercising de facto authority by soldiers and officers of such government, whose acts were subsequently ratified by the government, plaintiff could not maintain a civil suit in the United States against defendant therefor on the ground that such governmental acts were inspired by defendant, since there was but one tort, and, as the government of Costa Rico could not be sued, no action could be maintained against defendant.</p> <p>3. Same — Damages—Prospective Profits.</p> <p>Where, in an action for damages for ejecting plaintiff from a plantation in Costa Rico, the court could not give judgment on the validity of the original taking of plaintiff’s plantation because it was a governmental act, it could not award damages for the loss of prospective profits resulting from such taking.</p> <p>4. Monopolies — Sherman Law — Deprivation oe Profits.</p> <p>Sherman Act, Act July 2, 3890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), authorizing recovery of treble damages, accruing through an unlawful combination in restraint of Interstate and foreign commerce, gives no right of action to one who is not deprived of his existing profits, trade, or commerce by the formation or, action of an unlawful combination or monopoly, but is merely prevented from embarking on a new enterprise by the threatening aspect of an already existing monopoly or combination.</p> <p>5. Same — Acts in Foreign Countries.</p> <p>That the banana market of Central America or some portions thereof has been closed to plaintiff because defendant offered higher prices to producers than did any one else, and so obtained long-term contracts for the exclusive purchase of the producers’ product, did not constitute a violation of the Sherman act prohibiting combinations, monopolies, etc.</p> <p>6. Same — Enticement oe Employes.</p> <p>That defendant had enticed or sought to entice away plaintiff’s employes and to oppress such of defendant’s own employ-Ss as presumed to buy stock in plaifitiff company, its business rival, did not of itself constitute a violation of the Sherman act, prohibiting combinations and monopolies, so as to entitle plaintiff to recover damages on that ground alone.</p> <p>7. Gaekiers — -Duty to Furnish Transportation.</p> <p>Where plaintiff sought to establish his banana business in Central America, and expended considerable money in Ills plant, it was engaged in foreign commerce when it began to move men, material, and supplies to and from the United States and Central American ports in furtherance of its business, and was therefore entilled to compel defendant to furnish transportation facilities on the same terms that defendant furnished such facilities to others.</p> <p>(Kd. Note. — For other definitions, see Words and Phrases, vol. 3, p. 2883.]</p> <p>NOTE. — Upon resumption of the trial on March 9th, plaintiff withdrew its claim for damages arising from defendant’s refusal to transport goods at fair rates, and thereupon judgment dismissing the complaint passed in favor of defendant.</p>

<p>1. Courts — Federal Courts — Ancillary Jurisdiction — Amount in Controversy.</p> <p>Where a federal court had jurisdiction of proceedings for the dissolution of a building and loan association, it had jurisdiction of an ancillary suit by the association’s receiver for an accounting and foreclosure of a deed made to secure a loan to a borrowing member, though the amount due was less than $2,000.</p> <p>[Ed. Note. — For cases point, see Cent. Dig. vol. 13, CCurts, §§ 799-801.</p> <p>Supplementary and ancillary proceedings and relief in federal courts, see note to Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 276.]</p> <p>2. Building and Loan Associations — Borrowing Members — Contracts— Construction — “Loan”—“Installments.”</p> <p>Where the note of a borrowing member of a building and loan association contained the words “monthly installments on said share,” but no reference indicated an agreement to apply such installments on the member’s loan, and the deed to secure the loan was conditioned on the payment of the “loan” and of “installments on certain shares,” referring to the principal debt covered by the note both as a “loan upon 18 membership shares,” the terms “loan” and “installments” were not used synonymously.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 8, Building and Loan Associations, §§ 61, 62.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4196-4200.]</p> <p>'3. Same — Insolvency—Settlement—Application op Payments.</p> <p>Intestate subscribed for $900 of the stock of a building and loan association, and at the samo time obtained by a pledge of the stock a loan equal to the par value thereof, giving a deed to certain real estate as security for the loan. She also agreed to pay interest at 5 per cent, and 5 per cent, premium, the note providing for monthly payments of 5 per cent, per annum, and containing an assignment of the shares of stock as security for the payment “of the monthly installments of said shares, interest and premium required,” and, in case of default in the payment of such installments, interest, premiums, or fines for a period of three months, the association might forfeit the shares. Held, that the contract for the purchase of the shares wq.s distinct from the loan, so that, on the association’s insolvency, intestate’s administrator was not entitled to have all intestate’s payments on her share apply in payment of the loan.</p> <p>4. Same — Accounting—Bill.</p> <p>Where a bill by a receiver of a building and loan association for an accounting against the administrator of a borrowing member showed an indebtedness with interest and premiums due on October, 1902, of $1,605, on which indebtedness the payment of monthly installments of interest and premiums together amounted only to $1,267.50, the bill sufficiently showed an indebtedness to the association, regardless of the question of the application of payments.</p>

In Bankruptcy. Review of order of referee allowing claim of Fannie W. Girvin, wife of the bankrupt, for money loaned at different times, at the sum of $10,630.82. The trustee and objecting creditor denies the indebtedness and says most of it is barred by the statute of limitations.

<p>BANKRUPTCY — Claims—Assumed Debt.</p> <p>Where a bankrupt for a valuable consideration assumed payment of certain notes, his estate was liable for the entire debt, notwithstanding the holder might also have enforced payment against another.</p> <p>[Ed. Note. — For cases in point; see Cent. Dig. vol. 6, Bankruptcy, § , 476.]</p>

At Law. Proceeding in the nature of contempt to compel the defendant, Tom Wah, to be sworn in this proceeding as a witness in behalf of the United States, and to testify and answer questions material to the issue.

<p>In Bankruptcy. In the matter of the Southern Steel Company, bankrupt. Petitions of the Birmingham Coal & Iron Company, the Dubose Brothers Iron Company and others, and the Southern Cement Company and others for appointment of receivers.</p>

<p>1. Death — Action fob Wrongful Death — Right of Administrator.</p> <p>Ky. St. 1903, c. 1, § 6, giving a right of action for negligent death, entitles the duly appointed administrator of one negligently hilled on a vessel owned by a Kentucky corporation while lying in a harbor in Texas-to sue for such death.</p> <p>2. Administbatoes — AppoiNTHENiy-AssETS — Situs — Claim fob Wrongful. Death.</p> <p>A cause of action for wrongful death expressly authorized by Ky. St. 1903, c. 1, § 6, was not insufficient to justify the appointment in another state of an administrator, on the ground that under the statute no right bf action arose in behalf of any one until after the administrator had been appointed, and that hence the appointment was necessarily invalid as needing to sustain it assets in existence before it was made. It is-enough that assets and appointment come into being at the same moment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 24.]</p> <p>8. Removal of Oausks — Waives of Objection to Jurisdiction.</p> <p>The requirement or Act March 3, 1S75, c. 137, IS Stat. 470 (IT. S. Comp. St 1901. p. 508), that an action in the federal court based upon a diversity of citizenship be brought in the district of the residence of either plaintiff or defendant, is waived by defendant’s removal of the cause to the federal court from the state court where it is brought.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 238.]</p> <p>4. Administrators — Api'ointment—Where to be Made — Claim for Wrongful Death.</p> <p>A causo of action for wrongful death warrants the appointment of an administrator in any jurisdiction wherein defendant may he sued.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 24.]</p>

<p>1. Customs Duties — Protest— Sufitomncy.</p> <p>In his protest against the assessment of duty, an importer asserted that the goods were “dutiable under Act July 24, 3807, e. 13, § 1, Miedulo M, par. 400, 30 Stat. 188 (IT. S. Comp. St. 15)01, p. 1072), at the rate or rates therein provided according to thickness, cutting size,” etc. The only articles dutiable under that paragraph according to the conditions thus specified were lithographic prints. Held, that under Customs Administrative Act June 10, 1890, e. 407, § 14, 26 Stat. 137 (TI. S. Comp. St. 390J, p. 1933), the protest was sufficiently specific and distinct, that it should be treated as a reference to the provision for lithographic prints, and 'that, as the collector presumably had samples of the goods and could thereby ascertain their cutting size, etc., it was not necessary to point out the particular rate that was applicable.</p> <p>2. Same — Samples—Peesumptiosí of Retention by Ooixeotob of Customs.</p> <p>Inasmuch as section 2903, Rev. St. (U. S. Comp. St. 1901, p. 1923), provides for an examination of imported merchandise by customs officers, and the customs regulations provide that collectors of customs shall procure samples in cases in which protests are filed by importers, it is to be assumed that the collector complied with these provisions and had samples in such cases.</p>

<p>Street Rait.roads — Receivebs—Necessity eor Sepakate Receiverships.</p> <p>Whore receivers for a system of street railroad lines leased from different owners have been appointed in a suit against an insolvent lessee, to which suit the various lessor companies or their stockholders have, or may, become parties, the fact that there may bo a conflict of interests as to the distribution or application of the earnings of the receivership does not require nor warrant the appointment of separate receivers to operate the property of the several lessors.</p>

<p>Street Railroads — Creditors’ Suits — Intervention bt Stockholders.</p> <p>In such a suit it is not the practice to permit individual stockholders in the various corporations interested to intervene, but such permission will usually be granted to a group relatively large in numbers and holdings and which offers to take in all others having like interests.</p>

<p>In Equity. Petition of state receivers to have turned over to them the property now in the hands of federal receivers.</p>

<p>In Equity. On application of receiver.</p>

<p>Equity-Dismissal or Bin, Without Peejudice — Right or Complainant.</p> <p>A complainant may ordinarily dismiss his bill without prejudice at any time before final hearing, unless such dismissal will cause prejudice to defendant beyond that which arises from flio risk of another suit; and the filing of a so-called cross-bill by defendant praying for a discovery will not prevent such dismissal, where it seeks no affirmative relief and the discovery sought relates solely to matters of defense in the pending suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 749-752.]</p>

<p>Customs Duties — Appeal—Additional Evidence — Failure of Importer to Receive Notice of Hearing.</p> <p>The rule that no evidence may be introduced on appeal from the Board of General Appraisers by the importer, where he offered none before the board, held to apply even though he failed to receive the board’s notice of hearing, where the failure was due to his own fault.</p>

<p>Bankruptcy — Witnesses—Fees—Payment in Advance — Bankrupt’s Husband.</p> <p>Under Bankr. Act July 1, 1898, c. 54i, § 21a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3430], providing that a bankruptcy court may require any designated person, including the bankrupt and Ms wife, to appear for examination concerning the bankrupt’s conduct, etc., a bankrupt’s husband cannot be compelled to testify without payment to him of his lawful fees</p>

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

<p>Shipping — Construction of Charter — Liability for Negligence of Master.</p> <p>Under an oral letting of a scow by the day, including the services of the master who was employed and paid by the owner, the master remained the agent of the owner as to all matters relating to the care of the boat, and the charterer Is not liable for her injury through the master’s negligence in leaving her tied up at a dock by a line which was too short, by reason of which when the tide fell she careened, filled, and sank.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 220.1</p>

<p>1. Action — Equity—Causes of Action — Joinder.</p> <p>Complainant contracted to furnish the material for and install for a specified consideration a hydraulic mining plant on certain claims for defendant and P. Defendant pledged to complainant certain corporate stock belonging to defendant to secure payment of the contract price. After complainant had partially installed the plant, and had incurred a large outlay, a new contract was made, by which, in consideration of complainant’s turning over to defendant the partially installed plant and all materials, etc., defendant would repay complainant with interest to the amount expended by him 'with reasonable compensation for his time, and that the stock previously pledged should be held by complainant as security for the performance of the second agreement. Held, that a bill to enforce complainant’s lien on the stock under such second agreement, and to have the proceeds thereof applied to the payment of such amount as was found due complainant thereunder, was a simple suit for the foreclosure of the lien, and was therefore not objectionable as joining two distinct causes of action, one at law to recover on a simple contract debt, and the other in equity to foreclose a pledge.</p> <p>2. Equity — Jurisdiction—Legal Questions.</p> <p>It is no objection to the jurisdiction of equity that legal questions are presented for consideration which might also arise in a court of law, since, if the controversy is one in which a court of equity only can afford adequate relief, its jurisdiction is not affected by the character of the questions involved.</p> <p>3. Pledges — Contracts—Evidence.</p> <p>After’part performance of a contract to construct a,mining plant, for the consideration of which defendant had pledged certain corporate stock, a new contract was made, by which for complainant’s surrender of the plant in its then condition with the materials defendant agreed to pay the amount of complainant’s expenditures and the value of his time. In the conversation leading up to the second contract defendant stated that complainant was well- secured, and he replied, “Yes; 1 have good security.” Held sufficient, in the absence of evidence tb the contrary, to show that, the stock was also pledged for the performance of the second agreement</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Pledges, § 59.]'</p> <p>4. Contracts — Certainty.</p> <p>Where a contract provided that in consideration of complainant’s turning over to defendant a partially installed plant and the materials, etc., defendant would pay complainant with interest the amount complainant-hád expended, together with reasonable compensation for his time, such agreement was not objectionable for indefiniteness and uncertainty because the precise amount expended by complainant under the original contract could not then be ascertained, 1he amount being capable of being made certain by reference to the complainant’s vouchers and bills.</p> <p>5. Same — Allowasce me Services.</p> <p>Where a contract in consideration of a rescission of a former contract provided that defendants should pay complainant a reasonable compensation for his time, the contract was not objectionable for uncertainty as to tlie amount to be paid therefor, complainant being entitled thereunder to the reasonable value of his services.</p> <p>[Ed. Note. — ‘For cases in point, see Cent. Dig. vol. 11, Contracts, § 18.]</p> <p>0. Same — Reduction to Writing.</p> <p>Where a contract, certain in its terms, was definitely entered into, the fact that there was a purpose in the minds of the parties to reduce it to writing, which through defendant’s failure was never carried out, did not affect its enforceability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 159.1</p> <p>7. Frauds, Statute oe — Executed Contract.</p> <p>The statute of frauds, making oral contracts not to be performed within a year unenforceable, has no application to a contract fully performed on one side.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 23, Frauds, Statute of. § 337.]</p> <p>8. Contracts — Joint Contracts — Rescission—Illegality.</p> <p>Complainant being under contract to defendant and P. jointly to install a mining plant while carrying out such contract, agreed with defendant alone to terminate the same, and turn over to defendant the plant in its unfinished state and all materials, in consideration of defendant paying the amount expended by complainant and compensation for his time. At the time the contract was made, defendant held a general power of attorney from P., which was not shown to have been revoked. Helé, that such new contract would be presumed to have been authorized by P., and was therefore not illegal as permitting one of two joint contractors to terminate the contract without the other’s consent.</p> <p>9. Principal and Agent — Ratification.</p> <p>Tlie subsequent ratification by a principal of tlie acts of his agent is as efficient in law as express antecedent authority.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 682, 663.]</p> <p>10. Dismissal — Motion.</p> <p>In order to sustain a motion to dismiss before trial, defendant is bound to make a case so free from doubt that the court can say there is no reasonable ground on which it can continue to entertain the case or put defendant to his defense.</p>

<p>1. Words and Phrases — '“Wages”—1“Earnings.”</p> <p>The term “wages,” as distinguished from salary, is commonly understood to apply to compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month, season, or piece, bvf not by the job. The term does not include profits on the services of others, and it is not so broad as “earnings,” which comprehends returns from skill and labor in whatever way acquired.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp 7309-7373, 7646, 7831; vol. 3, pp. 2302-2304.]</p> <p>2. Sake — 1“Salary.”</p> <p>“Salary” refers to a superior grade of services and implies a position or office, and suggests something higher, larger, and more permanent than “wages.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 7, pp. 6287-6291; vol. S, pp. 7792, 7793.]</p> <p>8. Same — “Hike.”</p> <p>The word “hire” la associated with the act of employment rather than reward for services, and in the latter connection is more on the plane of wages than of salary, though in a sense it comprehends both, and is also applied to engaging the use of property. One “hires” 'a coachman, a gardener, or a cook, or a carriage, and may be said to hire a superintendent, a bookkeeper, or a clerk, though it seems better in such instances to say engage or employ. The term is improperly applied, to the securing of professional services — e. g., a lawyer’s or a doctor’s.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 4, pp. 8309-3311; vol. 8, p. 7679.]</p> <p>4. Bankruptcy — Exemption prom Involuntary Proceedings — Wage-Earner —Music Teacher Not.</p> <p>A music teacher giving lessons at so much an hour is not comprehended by the bankruptcy act provision that wage-earners whose compensation does not exceed $1,500 a year shall not be subject to Involuntary bankruptcy.</p> <p>[Ed. Note. — For other definitions, see Words and, Phrases, vol. 8, p. 7365.</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. O. A. 4.]</p> <p>5. Bills and Notes — Alteration of Note — Release op Accommodation In-dorser.</p> <p>Under Act Pa. May 16, 1901, § 124 (P. L. 211), providing that where a negotiable instrument is materially altered without the assent of all parties liable thereon it is avoided, etc., and section 125 (P. L. 211), making any alteration which changes the place of payment a material alteration, where bankrupt, for the accommodation of his brother, indorsed blank notes which specified a certain bank as the place of payment, he could not thereafter object, as to a holder in due course, to the blanks having been filled out in whatever way his brother chose, and he must be held to have given his unqualified consent to the supplying of the essential terms. But he was released by his brother’s unauthorized act in striking out the name of the bank where the notes were payable and inserting another, although the alteration was made in the brother’s handwriting, the same as the rest of the written parts. The provision of section 124 that when a materially altered instrument is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor does not save the bankrupt’s liability, because, under the express terms of section 52 (P. L. 202), having notice of the infirmity in the notes, the discounting banks cannot claim to be holders in due course.</p>

<p>1. Judgment — Res Adjudtcata — Adjudication on Merits — Necessity fob. A judgment, to be res afljudicata, must be on the merits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 30, Judgment, § 1009.]</p> <p>2. Aliens — Chinese—Right to Enter — Burden op Proof.</p> <p>Where the United States denied a Chinese person’s right to enter, the burden was on him, to prove such right, to show that he was bom in the United States; there being no claim bis alleged right rested on any other basis.</p> <p>[Ed. Note. — Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]</p> <p>3. Same — Proceeding fob Deportation.</p> <p>Where the United States seeks to deport a Chinese person found therein, the burden is on it to show that he is not a citizen and not of the exempt class; but the burden is met by showing that he is a Chinese person and not of the exempt class, and the rebuttable presumption then arises that he was not born in the United States and is not entitled to remain.</p> <p>4. Same — Evidence—Admissibility.</p> <p>Where a Chinese person, in applying to an inspector for admission to the United States, relied on a commissioner’s judgment discharging him on a former charge of having been unlawfully in the United States as conclusively showing his right to be therein, if evidence of annotations on the evidence taken by the commissioner tending to show that such person was discharged because of sickness was competent at all, it should have been given in his presence and that of his counsel before the inspector, since he had the right to controvert it.</p> <p>5. Judgment — Conclusiveness—Chinese Immigration — Effect of Commissioner's Judgment.</p> <p>A United States commissioner’s judgment, made in 1903, on a hearing of a charge that a Chinese person was unlawfully in the United States, that upon a full hearing upon such charge such person was discharged on consent of the assistant United States attorney (a statement in the judgment that the commissioner found and adjudged that such person was not guilty and that he had a lawful right to remain in the United States being stricken out before the judgment was signed), is not on its face an adjudication that such person was born in the United States, and was therefore a citizen thereof and entitled to enter in 1907, since, as far as it appears, the judgment may have been based on the ground that he was “then” a member of the class exempt from deportation, and since the recital that he was discharged by consent implies that he was not discharged on a determination on the merits. The judgment was equivalent to a nonsuit, or to a dismissal by consent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1009.]</p>

<p>1. Master and Sebvant — Injuries to Servant — Railroads.</p> <p>A railroad being under no common-law duty to its servants to fence its tracks, a declaration alleging that plaintiff’s intestate, a locomotive engineer employed by defendant, was killed by the derailment of his engine in a collision with a cow which had strayed on defendant’s tracks owing to its negligence in failing to maintain sufficient fences along its right of way, etc., stated no cause of action against the railroad company at common law.</p> <p>2, Same — Statutes.</p> <p>Acts Tenn. 1891, p. 220, c. 101, § 2, makes all persons or corporations owning or operating railroads in Tennessee absolutely liable for all live stock killed or injured on or near their tracks by a moving train, subject to the defense of contributory negligence, and section 3 exempts railroad companies from such liability if the track 'is inclosed by a lawful fence and good and sufficient cattle guards. Held, that such act imposes no duty on railroad companies to employSs to fence their tracks, and hence a cause of action for death of an engineer in a collision with a cow, which strayed on the track where it was unfenced, could not be predicated thereon.</p>

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

<p>1. ADMIRALTY — PLEADING—SET-OFF.</p> <p>A respondent in admiralty cannot set up an independent claim as a defense by way of set-off.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 327.]</p> <p>2 Shipping — Demurrage—Unavoidable Delay in Discharging.</p> <p>A consignee of cargo cannot be held liable for demurrage because of delay in discharging, due to the inability of-the vessel to reach the dock designated for discharge, owing to obstruction by dredges engaged in improving the waterway, in the absence of a contract covering such situation, and where the obstruction was not known when the dock was designated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 576.]</p>

<p>Teade-Makks — Subjects—Novelty Ribbons.</p> <p>The words “Merrie Christmas” printed on or woven in ribbons at intervals are not the subject of a trade-mark, the words being an integral part of the ribbon, which was evidently designed for use in tying Christmas packages, and not merely a mark to identify the manufacturer.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, §§ 1-12.</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 823.]</p>

<p>1. Customs Duties — Weight—China Clay — Allowance foe Moisture.</p> <p>Under Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 93, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1632), making china clay dutiable by the-ton, duty may properly be laid upon the actual weight of the clay and the moisture therein, if the moisture is not more than is ordinarily found; but duty should not be exacted on an abnormal amount of moisture.</p> <p>2. Same — Actual Weight — Trade Custom.</p> <p>Under Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 93, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1632), making china clay dutiable by the ton, the duty on china clay in casks may properly be based on the actual •weight of the importation, regardless of the custom of the trade to consider a cask as half a ton and to pay for it on that basis.</p>

<p>GUARDIAN AND WARD — DISABILITY—NATURE AND EXTENT.</p> <p>The disability of a person under guardianship is a creature of statute,, and does not follow the ward when he removes to another state, hut only affects the rights of parties within the territorial limits of the application of the statute under which the guardianship proceedings were had.</p> <p>2. Administrators — Foreign Administrator — Right to Sue.</p> <p>Courts will take ho notice of the right of a foreign administrator to sue; but, before he can he recognized as the personal representative of the deceased, he must be clothed, with authority from the laws of the state in whose courts he desires to appear.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 22, Executors and Administrators, § 2330.]</p> <p>8. Guardian and Ward — Foreign Guardian — Right to Sue.</p> <p>A foreign guardian cannot sue, unless authorized to do so by the laws of the state in whose courts the suit is brought.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. rol. 25, Guardian and Ward, § 570.]</p> <p>4. Bankruptcy — Venue—Ward—Change of Domicile.</p> <p>Where a ward under guardianship in New Hampshire changed his domicile with the consent of the guardian to Vermont, and there resided for six months prior to the filing of his voluntary bankruptcy petition, the court of bankruptcy in Vermont had jurisdiction, notwithstanding the New Hampshire guardianship, and the fact that proceedings were-there pending for the settlement of the bankrupt’s estate in insolvency.</p>

<p>BANKRUPTCY — Claims—Filing—Time.</p> <p>Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3444), provides that claims shall not be proved against the estate after a year from the adjudication, or if in litigation, and final judgment is rendered, then within 60 days after the rendition of judgment, except that the rights of infants and insane persons without guardians, without notice of the proceedings, may continue 6 months longer. Held, that the court had no power to permit proof of a claim after the expiration of the time so fixed, though the creditor’s failure to make proof within the time specified arose solely through accident and mistake.</p>

On Application for Review of Decisions by the Board of United States General Appraisers. For decisons below, see G. A. 6,492 (T. D. 27,762) and G. A. 6,670 (T. D. 28,447), relating to importations at the port of New York. The former reversed the assessment in the Rusch Case, and the latter affirmed the assessment in the Blatter and Quaintance Cases.

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

<p>On Application for Review of a Decision of the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 6,614 (T. D. 28,231), in, which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. On the ground of an alleged clerical error, the importers sought to he relieved from the payment of additional duties accruing for undervaluation, under Tariff Act July 24, 1897, c. 11, § 32, 30 Stat. 211 (U. S. Comp. St. 1901, p. 1892), amending Customs Administrative Act June 10, 1890, c. 407, § 7, 26 Stat. 134 (U. S. Comp. St. 1901, p. 1892).</p>

<p>tn Admiralty. On exceptions to report of commissioner.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The importers applied for a review of that decision as prescribed in Customs Administrative Act June 10, 1890, c. 407, § 15, 26 Stat. 138 (U. S. Comp. St. 1901, p. 1933), and an ex parte order for additional evidence was procured in their behalf under the following provision in said section: “The court may, upon the application of * * * the importer, refer [the case] to one of said general appraisers, as an officer of the court, to take and return to the court such further evidence as may be offered, * * * in such order and under such rules as the court may prescribe. * * * ” Under this order the importers took evidence as to items of the merchandise in respect to which no samples or evidence of any kind had been produced before the Board of General Appraisers; but offered none as to the items passed upon by the board. The government reserved the objection that the evidence was inadmissible, and at the hearing in the case argued in support of this objection.</p> <p>This argument, as outlined in the government’s brief, is that it was the duty of the importers, on appealing from the collector’s assessment of duty, to submit evidence in support of their contentions to the board, and not to seek to litigate in the present court, for the first time, some of the questions of fact involved in the case; that there would be no hardship in requiring importers to first submit their cases to the board in the manner provided by law; and that a contrary practice would be farcical, resulting in making the proceedings before the board a useless informality, and in a nullification of the statutory provision for speedy resort to the board in order that the issue should at once be investigated when the proof is available and accessible, and the matter fresh in the minds of those in charge of 'it. The case of United States v. China & Japan Trading Co., 71 Fed. 864, 18 C. O. A. 335, was cited as a controlling authority. In this case it was stated by the Circuit Court of Appeals, Second Circuit: “The whole scheme of the customs administrative act would be defeated, if the importer who complains of the action of the collector obtained a review of that action by the Circuit Court without first resorting to the Board of General Appraisers and obtaining its decision upon the facts and the law of the case.”</p>

<p>Customs Duties — Classification---“Ckepe Papke.”</p> <p>In Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 397, 30 Stat. 188 (U. S. Coinp. St. 1901, p. 1071), providing for “crepe paper,” the term quoted is a descriptive term referring to the process of manufacture, and paper which has been subjected to a creping process is within the provision.</p>

<p>On Motion for Judgment for Want of Sufficient Affidavit of Defense.</p>

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>For decision below, see G. A. 6,387 (T. D. 27,442), reversing the assessment of duty by the collector of customs at the port of New York on merchandise imported by Albert Eckstein. The importer contends here for a lower rate than that allowed by the Board of General Appraisers.</p>

The following is the opinion of SAUNDERS, District Judge, in the District Court: This is a suit for damages caused by a collision that took place on October 26, 1905, between the steamship Esparta and the lighthouse tender Magnolia, owned by the libelant, at that time carrying the President of the United States from New Orleans to the mouth of the river. 1.

<p>1. Evidence — Extrinsic Evidence to Explain Deed — Identification of Subject-Matteb.</p> <p>Where a deed made in 1840 purporting to convey land certificates issued by the Land Commissioners of a Texas county was inexact and ambiguous in its description, external evidence was admissible to identify a certificate intended to be conveyed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2116, 2117.]</p> <p>2. Public Lands — Disposal of Texas Lands — Validity of Gbant.</p> <p>The Texas statute of August 28, 1856 (Pen. Code 1857, art. 244), prohibiting any district surveyor from “being concerned in the purchase of any right, title or interest in any public land in his own name or in the name of any other person” under penalty of removal from office, a fine, and exclusion from subsequently holding office, did not invalidate the title to lands so acquired by a surveyor in violation of its provisions.</p> <p>3. Adverse Possession — Title by Prescription — Texa's Statute.</p> <p>Under Rev. St Tex. 1879, art. 3198, actual and visible possession of land only can afford a basis for title by prescription.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 77-81, 123.]</p> <p>4. Execution — Sale—Conveyance to Purchaser — Construction and Effect.</p> <p>A sheriff’s deed executed in 1848 purporting to be based on a judgment, execution, levy, and sale, and to convey a Texas land certificate, may be received in evidence as proof of title, although the record of the suit has been lost or destroyed, and is presumptive evidence of the regularity of the proceedings, and under the decisions of the Supreme Court of the state passes title to the certificate if such title could have been conveyed by the judgment defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 21, Execution, §§ 935-939.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 O. C. A. 478; Union Planters’ Bank v. City of Memphis, 49 C. C. A. 408.]</p> <p>5. Same —Texas Band Certificate — Nondelivery — Sale on Execution Against Vendor.</p> <p>Under the law of Texas a land certificate issued by authority of the state until located is personal property which may be transferred, and» where a purchaser of such a certificate left it in the possession of his vendor, a levy upon and sale of the same as the property of such vendor eight years afterward passed title thereto as against the prior purchaser.</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>6. Trespass to Try Title — Evidence of Title — Questions for Jury.</p> <p>Evidence introduced by both plaintiff and defendants in an action of trespass to try title considered, and held such as to require the submission of the question of title to the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trespass to Try Title, § 66.]</p>

This was an action to recover statutory penalties under chapter 60, § 11, p. 122, Acts Tenn. 1885.

<p>In Error to the District Court of the United States for the District of Kansas.</p> <p>Plaintiff in error as trustee in bankruptcy of the estate of W. H. Pendleton, a bankrupt, brought this suit at law in the court below against Miller & Co., for the purpose of recovering the sum of $1,860 the alleged value of 400 cases of eggs which the petition alleged had been transferred by Pendleton to Miller & Co., under such circumstances as to render such transfer voidable under section 60b of the bankruptcy law, or under such circumstances as to render such transfer null and void under section 67e of said law (Act July 1, 1898, c. 541, 30 Stat. 562, 564 [U. S. Comp. St. 1901, pp. 3445, 3449]). The case came on for trial before the court sitting with a jury, and at the close of the plaintiff’s evidence a demurrer was interposed thereto and sustained by the court, whereupon a verdict was directed by the court in favor of the defendants. An exception, was taken to the ruling of the court on the demurrer to the c videnee and the only question for review is, did the court err in making said ruling?</p> <p>The uncontradicted evidence introduced on the part of the plaintiff at the trial showed the following facts: W. H. Pendleton was adjudged a bankrupt by the United States District Court for the District of Kansas, June 6, 1904, and July 15, 1904, plaintiff in error was appointed trustee of his estate. Pen-dleton was insolvent on April 23, 1904, and continued so to be until the date of Inis ad judication in bankruptcy. On May 4, 1904, Pendleton made, executed and delivered to H. S. Clark of Lawrence, Kan., a deed of general assignment for the benefit of his creditors which was duly accepted by Clark and filed for record as required by law on the same day at 9:30 a. in. In regard to tills assignment Pendleton testified: “Q. Now at the tinie you made this exchange of bills of lading for the two cars of eggs, state whether or not you had executed this deed of assignment to Mr. Clark? A. I do not think it had been executed. It was very near the time, possibly within an hour either way. Q. You may state what, if anything, had been done preparatory to making a deed of assignment before you delivered the bill of lading to Mr. 'Miller? A. I think probably I had been working on it some; I had been trying to get money. Q. I am asking about the execution of this deed of assignment. What had been done about that, if anything? A. I don’t remember just what had been done, but I must have been working on it; the list must have been worked on. Q. How many creditors were there at that time, during these days, pressing for payment of their debts? A. I understood there were six or eight. Q. I will ask you if it is not a fact that drafts drawn upon you by your various creditors were being presented during this time and going to protest in the banks in Lawrence? A. Yes, sir. Q. Was there anything said by you to Mr. Miller in regard to -your financial condition? A. I told Mr. Miller I was short of funds; yes, sir. Q. At that time? (May 4, 1904.) A. Yes, sir. Q. What efforts did you make, if any, to keep out of Mr. Miller’s way? A. I was being pressed at that time for money, and I was milking an effort to get it, and was not at my office very much.”</p> <p>April 23, 1901, Miller & Co., shipped to the order of Pendleton to be delivered to him at Chicago, one car of eggs, upon payment of a draft for the amount due on the car, said draft being attached to the bill of lading. Except for the incident of the draft being attached to the bill of lading, tiie sale of tiie eggs was intended to be a cash transaction by Miller & Co. On April 27 or 28, -1904, tiie car load of eggs above mentioned reached Chicago. Pen-dleton sold this car of egg's to J. Dixon Avery & Co. of Chicago, and in some way obtained the same from the railroad company without payment of the draft drawn by Miller & Co. The draft was subsequently protested for nonpayment and returned to Miller & Co., at Hanover, Kan., together with the bill of lading. Pendleton lived at Lawrence, Kan. The proceeds of the car of eggs amounting to §1,930 or §1,940 was received by Pendleton and went into his general estate. On May 4, 1904, Mr. Miller of the firm of Miller & Co., was at Lawrence, Kan., for tiie purpose of getting payment for tiie car of eggs shipped Pendleton. Pendleton had on Slay 2, 1904, shipped a car of eggs to Chicago for which he had still the bill of lading and as. he could not pay Miller & Co., the money for the car of eggs sold Mm by Miller & Co., Miller & Go. and Pendleton agreed to exchange bills of lading, Pendleton taking the bill of lading with the protested draft attached, and Miller taking the bill of lading for the car shipped May 2d. The car of eggs for which Miller on May 4th received the bill of lading was worth §1,800. There was no evidence sufficient to sustain a finding by the jury that Miller & Co. knew that Pendleton was insolvent on May 4, 1904, or that Miller & Co. had reasonable cause to believe that Pendleton intended to prefer them as creditors, or that Pendleton was about to make a deed of assignment for the benefit of creditors. It is to recover the value of the car load of eggs that this suit was brought. There was proof of demand upon Miller & Co. by the trustee, and that the assets in the hands of the trustee would not pay the debts of the estate.</p>

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

<p>In Error to the Circuit 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 Eastern District of Tennessee.</p>

This is an appeal from an order which granted a temporary injunction against the prosecution by certain judgment creditors of a suit in the chancery court of Crittenden county, in tho state of Arkansas, to subject a railroad and its appurtenances, which were owned by the complainant, the Choctaw, Oklahoma & Gulf Railroad!

<p>1. Courts — Conflict of Jurisdiction — Court Which First Acquires Custody Excludes Jurisdiction of Others.</p> <p>The lawful custody of specific property by a court of competent jurisdiction withdraws that property, so far as necessary to accomplish the purpose of that custody and until that purpose is accomplished, from the jurisdiction of every other court.</p> <p>The court which first acquires the lawful jurisdiction of specific property by the seizure thereof, or by the due commencement of a suit, from .which it appears that it is, or will become, necessary to a determination of the controversy involved or to tlie enforcement of its judgment or decree therein for the court to seize, to charge with a lien, to sell, or to exercise other lilce dominion over it, thereby withdraws that property from the jurisdiction of every other court so far as necessary to accomplish the purpose of the suit, and entitles that court to retain the control of it requisite to effectuate its final judgment or decree therein free from the interference of every other tribunal.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Courts, § 1386.]</p> <p>%. Same — Conflict of Dominion to be Avoided, bct Cask to Proceed.</p> <p>When a court of co-ordinato jurisdiction secures by proper process the custody or dominion of specific property, which it is one of the objects of a suit in a federal court to subject to its judgment or decree, the latter suit should not be dismissed, but should be stayed until the proceedings in the court which has obtained the prior custody or dominion are concluded, or ample time for their termination has elapsed, or the custody or dominion is released.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 1386.]</p> <p>á. Same — Federal Court Declines to Appoint Receivers oe, ob to Interfere with, Property in Custody of State Courts — Facts.</p> <p>After two suits by different holders of contracts of an insolvent company for a receiver, an injunction, the sale of its property, and the distribution of the proceeds thereof among its creditors and contract holders had boon brought in two state courts, respectively; after a receiver had been appointed, and an injunction had issued in the first court; after that receiver had taken possession of property of the company worth 860,000, had been removed, and another receiver had been appointed in his place; after the order appointing the second receiver had been challenged by an appeal and a supersedeas bond had been given; after process had been served in the second suit, and the second state court had issued a restraining order which had been served upon the defendants, and that court had been temporarily restrained from proceeding further by an order of the Supreme Court of Missouri — a third suit for the same purpose was brought by two contract holders of the company in the United States Circuit Court for the Eastern District of Missouri, and that court appointed a receiver of the property and issued an injunction.</p> <p>Held, the properly of the company was temporarily withdrawn from the jurisdiction of the federal court by the custody and dominion of one of the sta te courts over it, and the order of the federal' court appointing its receiver and enjoining the defendants was erroneous.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 1407-1409.</p> <p>Jurisdiction of federal courts as dependent on possession of subject matter, see note to Adams v. Mercantile Trust Co., 15 O. C. A. 6.]</p> <p>(Syllabus by the Court.)</p>

<p>PRINCIPAL AND Agent — CONTRACTS—LIABILITIES OP AGENT.</p> <p>Defendants were real estate agents, and in the belief that they were authorized by the nonresident owner to sell a farm they wrote out a form of temporary contract for its sale to plaintiff, naming themselves as vendors. The paper was not signed, but was taken by plaintiff to his home in another state as he still had the purchase under advisement. A correspondence followed between the parties, in which defendants continually referred to the fact that they were acting as agents, and spoke of the necessity of the concurrence of their principal if certain suggested changes should be made in the contract. They forwarded an abstract of title which was approved by plaintiff's attorney, and plaintiff then signed and forwarded the contract with some changes made by him to a bank with a first payment to be delivered to defendants when they signed and recorded the contract. This they did not do because of its having been altered, but they procured deeds to be executed by their principal, and sent to the bank from which they were accepted by plaintiff and full payment made, the money being disbursed by the bank under direct instructions from the vendor, and defendants receiving only their commission. It was subsequently ascertained that the vendor had no title, the apparent conveyance to him being fraudulent. Held, that defendants having acted only as agents for a known principal, and in good faith were not liable to plaintiff for the damages sustained by him, through the failure of his title, not having signed any written contract valid under the statute of frauds binding themselves as vendors.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §| 476-479.]</p>

<p>1. INSURANCE — WARRANTIES—REPRESENTATIONS—WARRANTIES MATERIAL TO Risks.</p> <p>Sections 7973, 7974, and 7975, Rey. St. Mo. 1899 (Ann. St. 1906, pp. 3791, 3792), provide that warranties of facts or conditions in certain applications for and in certain policies of insurance shall, if not material to the risks insured, he deemed representations only.</p> <p>Warranties of facts or conditions in the applications for or in the policies of insurance specified in these sections which are material to the risks thereunder are unaffected by these provisions of the statutes.</p> <p>2. Same — Materiality of Warranty when Question for Court and when foe Juey.</p> <p>The materiality of any such warranty to the risk taken under it is a question for the court as a matter of law in every case where the character of the warranty or the entire evidence relative to the materiality is such that a decision but one way may be lawfully sustained by the court.</p> <p>It is for the jury when all the admissible evidence is such that a decision either way may be lawfully sustained by the court.</p> <p>[Ed. Note. — For cases in point, see Cent. .Dig. vol. 28, Insurance, §§ 1735, 1758.]</p> <p>3. Same — Warranty Regarding Incumbrance Material as a Matter of Daw.</p> <p>A warranty regarding the existence or the amount of the incumbrance upon the property insured thereunder is material to the risk as a matter of law.</p> <p>Knowledge by the underwriter whether or not there is an incumbrance upon the property he insures and of the amount of any existing incum-brance thereon is always material to the risk.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 636-651.]</p> <p>4. Same — Facts—Conclusion.</p> <p>One of the conditions of a policy was that “if the interest of the assured be or become other than the entire unconditional, unincumbered and sole ownership of the property, * * * this policy shall be void, unless otherwise provided by agreement indorsed hereon.” It was not otherwise provided by agreement indorsed thereon, and there was an in-cumbrance of $400 and interest upon the property. Conceding, as counsel for the plaintiff claimed, that this condition constituted a warranty, it was material to the risk as a matter of law, and- the court erred in submitting the question to the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 636-651.]</p> <p>(Syllabus by the Court)</p>

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

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

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

<p>In Error to the United States Court of Appeals in the Indian Territory.</p>

On appeal by the United States from a decision of the Circuit Court, reversing a decision of the Board of General Appraisers, which affirmed the decision of the collector, assessing an ad valorem duty of 35 per centum upon Gerome’s statue “La Bellona,” as a manufacture of metal and ivory, ivory chief value, under Act July 24, 1897, c. 11, § 1, Schedule N, par. 450, 30 Stat. 194 (U S. Comp. St. 1901, p. 1678).

<p>Appeal from the District Court of the United States for the District of Nebraska.</p> <p>On December 15, 1902, Knapp & Spencer Company, the appellant, joined.two other creditors of Harry Eullen in a petition filed in the court below to adjudicate him a bankrupt. Shortly thereafter the petitioning creditors secured the appointment of a receiver to take charge of the property of the bankrupt pending the proceedings for adjudication and appointment of a trustee. He took into his possession as such receiver, among other items, about $4,000 in money belonging to the bankrupt. Subsequently in bringing about a settlement with the bankrupt the appellant and others availed themselves of the fact that the receiver had given no bond as required by law, and secured an order for his discharge and for the return of the money in his hands to -the bankrupt. The settlement was then consummated, by which it is claimed the bankrupt paid most of his creditors, including appellant, 40 per cent, of their respective demands; but the bankruptcy proceedings against him had not been dismissed. Other creditors not included or provided for in the settlement intervened, as they had a right to do under the provisions of the bankruptcy act, and secured a final adjudication against the bankrupt. The appellee, Gerald M. Drew, who was subsequently appointed trustee, filed a petition setting forth the above facts, and, amongst other things, averred that appellant had received money belonging to the estate which the receiver had turned back to the bankrupt, and asked for a summary order upon appellant to show cause why it should not turn the same over to him. The referee issued an order to that effect. Appellant appeared to the petition, and filed a response denying that it had received any of the money in question from the bankrupt. It made no objection to the proceeding on the ground that it was of a summary nature. After several continuances a hearing of the petition was had before the referee and resulted in a finding that appellant had received from the estate of the bankrupt subsequent to the filing of the petition in bankruptcy the sum of $2,15418, and that it was so done “without color or right.” He concluded the findings with an order in the following words: “It is therefore considered, ordered, and adjudged by the court that said Gerald M. Drew as trustee have and recover of said Knapp & Spencer the sum of $2,154.18. and interest thereon from November 20, 1903, at the rate of seven per cent, per annum and the costs of this proceeding.” In due time a petition 1'or a review of that judgment was presented to the judge of the District Court. He, after hearing the same, made the following order: “That the judgment entered by the referee in favor of the trustee herein and against Knapp & Spencer Company be, and the same hereby is, vacated and set aside, and said cause is remanded to the referee for further proceedings in accordance with law.” Simultaneously the court handed down an opinion in which, after reciting the. fact that the referee rendered a personal judgment against appellant, said: “I am not aware of any provision of the bankruptcy law which authorizes a referee to render a personal judgment. It is quite probable that the referee had authority to investigate the subject-matter and to make an order for Knapp & Spencer Company to pay over to the trustee the money, which the evidence shows had been received by them from the bankrupt after the institution of the bankruptcy proceedings. If this order was not complied with, it would be the basis for a proper and appropriate proceeding to recover said money. Certainly the referee has no authority to render a judgment or issue an execution or other proceedings thereon, for its enforcement. It follows that the judgment of the referee thus entered must be vacated and set aside, which is accordingly done.” Soon thereafter the trustee filed a motion before the referee asking for an order requiring appellant to forthwith turn over to him the sum of $2,15418 and notice was served upon appellant that the same would he taken up for a hearing on a given date. Appellant appeared and objected to the jurisdiction of the referee to hear and determine the motion. Upon this objection being overruled appellant asked leave to amend the answer originally filed. The referee refused leave to amend and ordered appellant to turn over to the trustee the sum of $2,15418 so originally found to have been received by it. Appellant refused to obey this order; secured a certificate from the referee, and presented the question involved to the District Judge for review. From his decision affirming the order of the referee, appellant duly appealed to this court</p>

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

<p>Maritime Liens — Repairs in Foreign Poet — Contract with Owner.</p> <p>One who makes repairs on a vessel in a foreign port under a contract with the known owner, then present, is not entitled to a maritime lien therefor in the absence of a contract for a lien, express or implied, or a mutual understanding that the repairs were furnished on the credit of the vessel, and the burden of proving such contract or understanding rests upon the libelant asserting the lion.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Lions, §§ 7-13.]</p>

On April 28, 1905, appellees brought a suit in equity against appellants in the circuit court of Pemiscot county, Mo., for the purpose of obtaining an accounting between the J. F. Smyth Mercantile… Held: and that certain insurance policies assigned to secure said loan be delivered by appellants to appellees, and that a money judgment should be rendered in favor of appel-lees for any balance found due said mercantile company on said accounting.

<p>1. Criminal Law — Federal Prisoners--Proceeding for Removal — Evidence —Probable Cause.</p> <p>On an application to remove persons to another federal district where they were charged with violating Rev. St. § 5440 (U. S. Comp. St 1901, p. 3676), by conspiring to defraud the United States of public lands subject to entry under Timber and Stone Act of June 3, 1878, c. 151, § 1, 20 Stat. 89 (U. S. Comp. St. 1901, p. 1545), certified copies of General Land Office records showing that all the entries of public lands mentioned in the indictment were perfected and issued therefor prior to all the alleged overt acts under the alleged conspiracy, and more than three years before the indictment was filed, were admissible on the question of probable cause of the charge.</p> <p>2. Same — Commissioner’s Commitment.</p> <p>Since proceedings before a United States Commissioner on the arrest of persons indicted in another district were preliminary only, for the apprehension of and to hold accused either for recognizance or pending application for removal, the commitment had completely served its purpose when such application was denied, and accused became entitled to their discharge, for which an order was needful.</p> <p>3. Conspiracy — Criminal Conspiracy — Essentials.</p> <p>The offense of conspiracy, under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), providing punishment where persons conspire either to commit any federal offense or to defraud the United States, etc., consists in the conspiracy alone, and not in both the conspiracy and the acts done to effect its object.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, pp. ■ 3454-1461; vol. 8, p. 7613.]</p> <p>4 Criminal Law — Conspiracy—Limitations—Commencement of Period.</p> <p>Under an indictment charging a violation of Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), providing a penalty where persons conspire to defraud the United) States, and one of them does any act to effect the object of the conspiracy, by conspiring to defraud the government of public lands subject to entry under Timber and Stone Act of June 3, 1878, c. 151, § 1, 20 Stat. 89 (U. S. Comp. St 1901, p. 1545), an averment of payment, on certain dates within three years of the filing of the indictment, to procure false application, final proof and entry for the lands, does not charge overt acts within section 1044 (U. S. Comp. St. 1901, p. 725), limiting certain federal prosecutions to three years from the commission of the offense. Any violation of section 5440 was complete before certificates of purchase covering the lands were issued, though such payment was made subsequently.</p> <p>[Ed. Note. — Commencement of period of limitations against continuing offenses, see note to Ware v. United States, 84 C. C. A. 519.]</p> <p>5. Same.</p> <p>To constitute a violation of Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), providing a penalty where persons conspire to defraud the United States and one of them does any act to effect the object of the conspiracy, by conspiring to defraud the government of public lands subject to entry under Timber and Stone Act of June 3, 1878, c. 151, § 1, 20 Stat. 89 (U. S. Comp. St. 1901, p. 1545), it is not essential that a patent for the lands be issued and delivered; a violation of the section not depending upon the success of the conspiracy, and becoming complete when” the final step was taken by the conspirators in inducing fraudulent entries and the issuance of certificates of purchases.</p>

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

<p>1. Courts — Appeal and Error — Right to Review as Affected by Motion for New Trial — Court Rules.</p> <p>Where an appeal to the Court of Appeals in the Indian Territory was perfected, and rulings to which exceptions were properly reserved upon the trial of the case were assigned as error, in conformity with rule S of the rules of that court then in force, which declared, inter alia, that such rulings would be considered “whether * * * set out especially in the motion for a new trial or not.” Ind. T. Ann. St. 1899, p. 937, It was error for that court to decline to consider them on the ground that they had not been set out with sufficient detail or precision in the motion for a new trial in the trial court</p> <p>2. Appeal and Error. — Adherence to Theory Pursued in Trial Court.</p> <p>When the parties, with the assent of the court, unite in trying a case on the theory that a particular matter is within the issues, they will not be permitted to depart therefrom when the case is brought before an appellate court for review.</p> <p>3. Master and Servant — Negligence—Nonoocurrence of Prior Accident no Bar to Liability.</p> <p>In an action to recover for injuries produced by a hand car upon which the plaintiff was riding, which was alleged to have been negligently permitted by the defendant to remain out of repair for a considerable time, by reason of which it jumped the track a.nd produced the injuries in question, the fact that it had not jumped the track before, and that no other accident had happened to it, is not an answer to the charge of negligence or a bar to liability.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 84, Master and Servant, § 210.]</p> <p>4. NEGLIGENCE.CONTRIBUTORY NEGLIGENCE- -BURDEN OP PROOF — INSTRUCTION.</p> <p>In an action for personal injuries where there is a defensive plea of contributory negligence, an instruction that the defendant has the burden of proving the plea, and is required to establish it by a preponderance of the evidence, is unobjectionable when other portions of the charge make it pi a in that the truth of the plea is to be resolved according to the preponderance of the whole evidence, effect being given to every part of it, regardless of who produced it.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 37, Negligence, §§ 220-234.]</p> <p>5. Master and Servant — Assumption op Bisk in Respect op Appliances Provided by Masteb.</p> <p>Primarily, the servant has a right to assume that the master will exercise reasonable care in providing him with reasonably safe appliances with which to do his work, and he does not assume the risk of injury in cident to the master’s failure to discharge that duty; but this rule is subject to the exception that where an appliance provided by the master is defective and its condition is known to the servant, or is so patent as to be readily observable by him, he cannot then continue to use it without objection', without assuming the risk of injury incident thereto.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 584-592.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Go. v. Hennessey, 38 O. C. A. 314.]</p> <p>6. Same — Defective Appliance — Servant Not Required to Exercise Care to Discover Defects.</p> <p>In determining whether a servant assumed the risk of injury incident to his use of a defective appliance negligently furnished by the master, the true test is not whether the servant exercised care to discover defects, but whether they were known to him, or were so patent as to he readily observable by him.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-592.]</p> <p>7. Same — Instructions must be Applicable to Evidence.</p> <p>When, in an. action by a servant to recover for injuries sustained by using a defective appliance negligently provided by the master, there is evidence i>ersuasively tending to show that the defects were known to the servant, or were so patent as to be readily observable by him, and that, in these circumstances, he continued to use the appliance without objection, it is error to charge, without qualification, that the servant had a right to assume that the master had used reasonable care in providing a reasonably safe appliance, and that the servant had a right to use the appliance relying on its safety.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 34, Master and Servant, § 1175.]</p> <p>(Syllabus by the Court.)</p>

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

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York.</p>

This cause comes here upon appeal from a decision of the Circuit Court reversing a decision of the Board of General Appraisers (G. A. 6,220 ; T. D. 26,887), which sustained the action of the collector in assessing duty upon certain articles imported under the tariff act of 1897.

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

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal from a decree in favor of the libelant entered June 15, 1907, awarding $1,335 against the claimant, as owner of the tug Hercules, for negligently towing the libelant’s boat Darwin into the ice at Bay Ridge, South Brooklyn.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>There was no opinion below. The Circuit Court affirmed a decision by the Board of United States General Appraisers (G. A. 6,845; T. D. 27,295), which had reversed the assessment of duty by the collector of customs at the port of New York. The facts of the ease appear from the following extract from the opinion filed by the Board of General Appraisers:</p> <p>“Ficher, General Appraiser. The merchandise involved in these two pro-rests is described on the respective invoices as ‘steel cylinders.’ Duty was assessed thereon at the rate of 45 per cent ad valorem under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 193, 30 Stat. 1(57 (U. S. Comp. St. 1901, p. 1815); and the importers now claim that the articles are "lubes,’ dutiable properly at 35 per cent, under paragraph 152 of said act (30 ntat. 103 [TJ. S. Comp. ñt. 1901, p. 1041]), which reads as follows: ‘152. Dap welded, butt welded, seamed or jointed iron or steel boiler tubes, pipes, Hues or stays, not thinner than number sixteen wire gauge, two cents per pound: welded cylindrical furnaces, made from plate metal, two and one-half cents per pound; all other iron or steel talies, finished, not specially provided for in this act, thirty-five per cenijim ad valorem.’ w The importers of ¡he goods covered by protest 179,518, in a letter dated November 1, .1905, which is a part of the record, expressly waived their eight to put in testimony, and submitted their protest for consideration, referring to T. D. 22,718. in which the Treasury Department announced its acquiescence in the decision of the Circuit Court of Appeals in Downing’s Case, 104 Fed. 1005, 44 O. O. A. 688, affirming without opinion Downing y. U. S. (0. O.) 99 Fed. <12;!, and to G. A. 4,898 (T. D. 22,932), a board decision following ¡he judicial rulings above. As the government desired to introduce some testimony, the ease was set for hearing on February 20, 1908, and a number of witnesses wore examined. * $ #</p> <p>“The goods are bottle-shaped vessels of steel, about four feet in length and eight inches in diameter, with a steel cap fitted over and shrunk on one end, thus permanently closing it, and with the other end tapered to a neck. There is a thread cut on the outside of this nock for the purpose of screwing oil a cap for the protection of the contents of the cylinder, and on the inside of the neck for the purpose of a valve connection. The articles are used for transporting carbonic acid gas, with which they are filled at a very high pressure. As has been said, no testimony was introduced by the importers; but the witnesses for the government, ten in number, were evidently well qualified, and their testimony as to the method of manufacturing the cylinders may bo accepted as accurate. According to these witnesses there are two methods. In the first, a seamless tube of the required length is taken, and one end is drawn in and welded to a hemispherical shape; and the other end is ‘necked down’ to a bottle-neck shape, leaving an orifice for the insertion of a valve, as above referred to. In the other process a flat plate is sheared into a circular form, and then placed over a circular die, which is forced down upon the plate, causing it to assume a cup or bucket-like form. The cup is then placed in the end of a round mandril with a spherical end, and mandril and cup are then forced through a series of circular dies, elongating the cap and reducing the thickness of the lateral walls, but preserving the original thickness of the material in the spherical end. The other end is then necked as described in the previous process. It would appear to one approaching this question de novo, and with only common understanding to guide him, that neither one of these processes produces tubes, but rather that the products of the process first described are articles made from tubes, while those made by the second process were stopped just short of the stage of manufacture where they would have become tubes. The witnesses were unanimous and emphatic in their declaration that these gas holders are not tubes within the understanding of anybody; and that this pronouncement is in accord with ordinary usage of words is signally corroborated by evidence from the importers themselves, as exhibited by the bills of lading, entries, and invoices, which all designate the goods as steel cylinders, and particularly by a copy of the Protestants’ own catalogue, that was admitted in evidence and which throughout invariably refers to the articles as drums or cylinders, never as tubes.</p> <p>“If the question raised by this protest 179,518 were before us for the first time, we have no hesitation in saying that we should reach a conclusion adverse to the contention set up by the importers. We feel, however, that we are concluded in the consideration of the question by the decision in the Downing Case, supra. The goods are practically alike, and while, in the present case, the government has introduced much and satisfactory testimony that the term ‘tubes’ does not include these gas cylinders, it is also true that there was testimony to the same effect in the case passed on by the court, although the five-line opinion of Wheeler, J., reversing G. A. 8,362 (T. D. 17,571), fails to disclose the character of the impression made on the judicial mind by the testimony presented by the record, which comprised over 1Q0 printed pages. Protest 179,518 is therefore sustained, and the decision of the collector thereon reversed.” * * *</p>

Cross-Appeals from the Circuit Court of the United States for the Eastern District of Louisiana. There was no opinion below. The Circuit Court reversed a decision by the Board of United States General Appraisers (G. A. 6,431; T. D. 27,586), which had affirmed the assessment, of duty by the collector of customs at the port of New Orleans on importations by Frank Davies.

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

<p>1. Shipping— Charters — Loss of Vessel — Negligence- Burden of Proof.</p> <p>Where a pile driver was chartered by respondent from libelant, and was lost while in respondent’s exclusive possession as it was being towed up the North river, the burden was on respondent as a bailee to show that tlie loss was caused without any negligence on its part.</p> <p>2. Appeal and Error — Findings—Review.</p> <p>Where, on appeal from a decree in favor of libelant in a proceeding to recover for the loss of a pile driver from the charterer, the trial judge found that the charterer had failed to show thnt it was free from negligence, and the appellate court is unable under the evidence to hold that the charterer has sustained the burden of proof on, such issue, the decree will be affirmed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3953-3969.]</p>

Appellant was adjudged to be an infringer of certain claims of patent No. 558,610, granted to Powers on April 21, 1896.

For opinion below, see 149 Fed. 434. Appellants’ bill on account of alleged infringement of patent No. 771,426, issued to Harder on October 4,1904, for metal sheet-piling was dismissed for want of equity.

500,073, for an improvement in the art of cash-registering, and account-checking, granted to John Tyler Hicks, June 20, 1893. The opinion of the Circuit Court is reported in 155 Fed. 298.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On appeal from a decree entered May 21, 1907, dismissing the bill of complaint and holding invalid letters patent No. 702,158, granted to complainant June 10, 1902, for a “combined bustle and hip-form.”'</p>

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

<p>In Equity. Suit to restrain alleged infringement of United States letters patent to complainant, as assignee of R. M. Dixon, for car heating apparatus, No. 457,706, dated August 11, 1891, applied for November 26, 1888, and United States letters patent to John Q. C. Searle, Julia E. Searle, executrix, etc., for railway car heating apparatus, No. 707,361, dated August 19, 1902, and applied for March 23, 1888, renewed August 26, 1898, and for an accounting.</p>

<p>In Equity. Suit to restrain alleged infringement of United States letters patent, No. 622,190, issued March 28, 1899, to Thompson and others, as assignee of Charles O. Seavey, for “saw-guide for sawing material for forming miter-joints.”</p>

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

<p>1. Patents — Infringement—Grain Drams.</p> <p>The Packham patent, No. 557,808, for an improvement in grain drills, held not anticipated, and to disclose patentable invention, but, as construed by the Circuit Court of Appeals in a prior suit, not infringed.</p> <p>2. Same.</p> <p>The Van Brunt patent, No. 659,881, for an improvement in grain drills, discloses invention and is valid, but is for a highly specialized combination of old elements in a fully developed art, and is limited by the prior art to the specific combination shown. As so construed, it is not infringed by the machine of the Davis patents, Nos. 830,044 and 830,645.</p>

In Equity. On final hearing. The complainant, on May 21, 1901, was granted a patent for an invention described as “a certain new bucking roll to be used on stock or Mexican saddles.” In further description the inventor specifies as follows: “My invention relates to bucking rolls attached on a stock or Mexican saddle, as used by stockmen on the range, ‘cowboys,’ ‘rough riders,’ and men of like occupation, for giving the rider a better hold and preventing him from being bumped…

On Application for Review of a Decision by the Board of United States General Appraisers. The decision of the Board of General Appraisers followed a previous decision reported as G. A. 6,472 (T. D. 27,684), and sustained protests of W. B. Sellers against the assessment of duty by the collector of customs at the port of New York.

<p>!. Sales — Conditional Sales — Validity— Statutes.</p> <p>Code Ga. 1895, § 2776, provides that whenever personal property is sold on condition that the title shall remain in the vendor until paid for, such sale in order to be valid as against third parties shall be in writing and executed in the same manner as mortgages of personal property, but as between the parties the contract as made shall be valid whether written or not. and section 2777 declares that conditional bills of sale must be recorded within 30 days from date, and in other respects shall be governed by the laws relating to the registration of mortgages. Held, that, where there is a mere oral reservation of title and no writing, the title will be so fixed in the buyer that the rights of third persons obtaining judgments or liens antedating the sale may be enforced against the vendor’s claim of iitle, but if the reservation of title is in writing, though not properly executed and recorded, the reservation is good as between the parties and as against general creditors and creditors with liens antedating the sale, and is only subject to such liens as are obtained or debts arising from credit given in good faith by reason of the buyer’s apparent ownership of the property.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 43, Sales, §§ 1366-1371.]</p> <p>2. Same — Reservation op Title — Validity—Contract—Construction.</p> <p>A bankrupt, having purchased a three-deck newspaper press under a written contract providing that the title should remain in the seller until the price was paid, subsequently telegraphed the seller’s representative ordering a fourth deck for the press, “according to the original agreement.” and on the same day wrote a letter confirming the telegram, containing the words “Your comjiany retaining title to the fourth deck until the notes are paid.” Held, that a sale of the fourth deck pursuant to such correspondence constituted a written contract oí conditional sale, which though not executed or recorded as prescribed by Code Ga. 1895, §§ 2776, 2777, was valid as against the bankrupt, its general creditors, and those not having given credit to the bankrupt on the- faith of the, ownership of the property.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 43, Sales, § 1353.]</p> <p>3. Bankbuptcy — Division op Machines — Conditional Sales — Liens.</p> <p>Where a printing press was subject to a mortgage on the plant of the bankrupt at the time the bankrupt purchased a fourth deck therefor under a valid conditional sale, the seller was entitled to recover such fourth deck from the bankrupt’s trustee, the bankrupt having failed to pay the price before bankruptcy, provided such fourth deck was such a separate and distinct part of the press that it could be taken off and leave the remainder intact.</p> <p>4. Same — Contribution to Subsequent Liens — Payment.</p> <p>Where intervener sold a bankrupt a fourth deck to a printing press under a conditional sale, and on nonpayment of the price before bankruptcy claimed the right to recover the proceeds of a sale of such fourth deck from the bankrupt’s trustee, it could only do so after paying such proportion of the liens that attached to the property of the bankrupt after the fourth deck became part of the plant and before bankruptcy, as the amount realized from the sale of such fourth deck bore to the amount realized from the bankrupt’s entire plant, and this though such liens had been paid off, the court of bankruptcy having jurisdiction to recharge such liens against the property to which they belonged, regardless of their prior payment.</p>

<p>1. CARRIERS — Transportation op Live Stock — Confinement—Action fob Penalty — Exceptions.</p> <p>Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibits confinement of live stock in transit for more than 28 hours, unless unloading is prevented, by storm or other accidental or unavoidable causes, which cannot be anticipated or avoided by the exercise of due diligence and foresight. The act also imposes penalties recoverable by a civil action in the name of the United States. Held that, though the exception is contained in the enacting clause of such act, the act created a general offense, and not one limited to particular conditions; and hence a complaint to recover penalties imposed was not defective for failure to negative the exception.</p> <p>2. Same. •</p> <p>Act Oong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibits the confinement of live stock in transit for more-than 28 hours, unless unloading is prevented by storm, accidental and unavoidable causes, and section 3 declares that every carrier who knowingly and willfully fails to comply with its provisions shall be liable to a penalty. Held that, if a complaint thereunder contains the necessary allegation that the carrier acted “willfully,” such allegation in itself is sufficient to negative the exception.</p> <p>3. Same — Burden op Pboop.</p> <p>In. an action against a carrier for confining stock in transit more than 28 hours, in violation of Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), the burden is not on the government to show that the carrier was not prevented by storm or other accidental' or unavoidable cause, which it could not have anticipated by the exercise of diligence and foresight, within the exception from liability created by such act.</p> <p>4. Same — Construction.</p> <p>Under Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp.. St. Supp. 1907, p. 918), prohibiting confinement of live stock in transit for more than 28 hours, it is immaterial that a part of the period of confinement elapses while the stock is in possession of a connecting carrier; the carrier having possession of the stock being required to unload, feed, and water them as soon as the time limit is reached.</p> <p>5. Same — Actions—Elements—Willfulness.</p> <p>Act Cong. June 29, 1906, e. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibits the confinement of live stock in transit for more than 28 consecutive hours, and section 3 provides that any common carriei-who “knowingly and willfully” fails to comply with the law shall be subject to a penalty. Held, that a complaint under such act, failing to charge that defendant carrier “knowingly and willfully” restrained stock in its possession, which had been confined for a period longer than 28 hours, was fatally defective.</p> <p>NOTE. — “That at the time said animals were so received by said Oregon Short Line Railroad Company at Green River, as aforesaid, the same had been continuously confined in cars without unloading for a period of 1914 hours, or from 8:30 o’clock in the forenoon of September 12, 1907, and the said swine were further, and without unloading, feeding, watering, or resting the same, and while so in transit over said defendant’s railroad, between Green River, Wyo., and Montpelier, Idaho, knowingly and willfully, by said defendant company, confined in said cars until half past 11 o’clock, post meridian of the said 13th day of September, 1907.”</p>

In Equity. On final hearing. Suit to require the defendant to convey to complainant the legal title to certain land in O’Brien county, this state, which it is alleged the defendant holds in trust for him. The complainant claims the right to the land under the homestead laws of the United States.

In Equity. On final hearing. The land involved in this suit is the S. E. % of Sec. No. 29, Tp. 96, R. 42, in O’Brien county, this state, and is a part of the 85,457.41 acres patented to the state of Iowa under the act of Congress of May 12, 1864, c. 84, 13 Stat. 72, for the benefit of the Sioux City & St. Paul Railroad Company, but never patented to that company, for the reasons stated in Sioux City & St. Paul R. R. Co. v. United States, 159 U. S. 349, 16 Sup.

<p>Public Bands — Homestead Entet.</p> <p>Where at the time complainant attempted to move on public land in controversy he knew that defendants were then in open and undisturbed possession thereof and had been for several years, claiming to own it under a contract of purchase from a railroad company, complainant was not entitled to enter the land as a homestead, nor did his entry create any rights therein.</p> <p>[Ed. Note.- — Rights acquired by homestead entries on public lands, see note to McOune v. Essig, 59 C. O. A. 434.]</p>

<p>Public Rands — Homestead Entby — Pbiob Possession.</p> <p>A homestead entry on public land Ilion in the open and undisturbed possession of another constituted an unlawful trespass on such possession, and save the entryman no rights or interest in the land as against a bona fide purchaser from such prior possessor to whom a patent had been duly issued.</p> <p>LEd. Noie. — Rights acquired by homestead entries and settlements oil public lands, see note to AXcCune v. Essig, 59 C. C. A. 434.)</p>

In Equity. This suit was commenced July 25, 1901, to require defendant to convey to complainant the legal title to the E. % of the N. E. % of section No. 11, Tp. 96, R. 42, in O’Brien county, this state, which it is alleged the defendant holds in trust for complainant.

<p>Post Office — “Money Order Funds” — Embezzlement.</p> <p>Rev. St § 4045 (U. S. Comp. St. 1901, p. 2751), defines “money orcter funds” to consist of “all money received for the sale of money orders, including all fees thereon, all money transferred from the postal revenues to the money order funds, all money transferred or paid from the money order funds to the service of the Post Office Department,” and declares that all money order funds transferred from one postmaster to another shall be deemed and taken to be money order funds and money in the treasury of the United States. Section 4040 declares that every postmaster, assistant, clerk, or other person employed in or connected with the business or operations of any money order office, who converts to his own use, in any' way whatever, any portion of the “money order funds,” shall be deemed guilty of embezzlement, etc., and that it shall be prima facie evidence of a balance against him to produce a transcript from the money order account books of the Sixth Auditor. The post-office regulations authorize rural letter carriers to take and receipt for money from patrons of their routes and to purchase and forward money orders to the persons or corporations for which they are designed. Held, that money received and receipted for by a rural letter carrier from patrons of his route, to be used in the purchase and forwarding of money orders, while in the possession of such carrier and before surrender at the post office, did not constitute “money order funds,” for the embezzlement of which the carrier could be prosecuted under section 4046.</p>

<p>Wharves — Injury to Vessel-Obstructions on Bottom.</p> <p>The owner of a lighter, which sank by the stern and dumped her deck load while lying at respondent’s wharf, held, on the evidence, to have failed to establish the allegations of its libel that the accident was the result of injury received from obstructions on the bottom at the berth; there being no evidence of a hole or leak in the bottom ol’ sufficient size to account for her sinking.</p>

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

<p>' Aliens — Statutes — Reveal — Saving Clause — Effect—Exclusion—ProstiTUTES.</p> <p>Act Cong. March 3, 1903, c. 1012, § 2, 32 Stat. 1214, and Act Feb. 20,1907, c. 1134, § 2, 34 Stat. 898, provide for the exclusion of alien prostitutes. Section 21 of the 1903 act (32 Stat. 1218) provides for the deportation of aliens found in the United States “in violation of this act” within three years of their landing. Section 21 of the 1907 act (34 Stat. 905) provides for the deportation of aliens subject to deportation under that act or “any” other federal law within the same period. Section 28 of the 1907 act (34 Stat. 907) provides that such act shall not affect any prosecution, suit, action, or proceeding brought, or any “act, thing or matter, civil or criminal, done or existing at the time of the táking effect of” the act, and that as to all such “acts, things or matters,” etc., the laws or parts of laws repealed or amended are continued in force. Held, that section 28 con-tiiraes in force the 1908 act as to the exclusion of alien prostitutos, and saves the government's right to deport one who landed in 1900, though no proceeding was brought for that purpose until 1908.</p>

<p>1. Appeal and Ereos — Mode of Review — Nature of Suit.</p> <p>The difference between causes of action at law and in equity is matter of substance and not of form, and the fact that a suit based upon a legal right of action is brought in equity in a state court, for the purpose of obtaining an attachment under a state statute, does not make it an equitable cause after its removal into a federal court, and the judgment therein is reviewable on error and not by appeal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, 10-14, 17.]</p> <p>2. Attachment — Foreign Attachment — Jurisdiction.</p> <p>Civ. Code Prac. Ky. § 194, which gives a plaintiff the right to an attachment at or after the commencement of an action for the recovery of money against a nonresident defendant, does not create a new right of action, and one who would not otherwise be subject to suit in the courts of the state, if personally present or personally served with process in the state, is not made so subject by such statute.</p> <p>TEd. Note — Federal courts following state practice as to attachment, see notes to O’Coimoll v. Reed, 5 C. C. A. 606; Nederland Dlfe Ins. Co. v. Hall, 27 C. C. A. 393.]</p> <p>S. Executors and Administrators — Suit against Foreign Executor — Jurisdiction.</p> <p>It is the general rule that, in the absence of any statute,so providing, an executor or administrator cannot be sued in his representative character on an indebtedness of his testator or intestate, either at law or in equity, in the courts of auy state or country other than that in which he received his appointment, and such is the rule in Kentucky, subject to the exception, that a foreign executor or administrator may be there sued where he has removed to and settled in the state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 2344.]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Missouri.</p> <p>The appellants, who by consent and on one record prosecute .joint appeals to this court, were separate holders of preferred stock in the Tennent Shoe Company, a manufacturing and business corporation, organized under and pursuant to the general laws of the state of Missouri. The shoe company originally had a capital stock of $400,000. It undertook to comply with the provisions of the statutes of Missouri to increase its capital stock to $800,000, and to make $300,000 thereof preferred stock and $100,000 common stock. At a meeting of the stockholders called for the purpose, pursuant to the provisions of section 1329, Rev. St. Mo. 1899 (Ann. St. 1906, p. 1072), a resolution was adopted providing for the increase. Subsequently a statement of the proceedings of the meeting, showing compliance with the provisions of the statute, was duly signed, verified, acknowledged, and recorded in the recorder’s office of the city of St Louis, as required by law, and a certified copy of the same was filed in the office of the Secretary of State on December 28, 1903. Upon that day a certificate was issued by the Secretary of State, to the effect that the corporation had complied with the lqw for the increase of its capital stock, and that the same had been increased to the extent of $400,000; $300,000 preferred, and $100,000 common stock. The instrument so recorded and filed contained the statement that the amount of capital stock of the company paid up was $400,000, that the amount of assets of the company was $1,387,066.82, that the amount of its liabilities was $501,460.99; that the amount to which the capital stock was increased was $800,000, and that all said increase of capital stock had been actually paid up in lawful money of the United States, and was in the hands of the board of directors of the company. Ootemporaneously with securing this certificate the officers of the company arranged with the Little & Hays Investment Company of St. Louis for the sale oí the preferred stock, and placed in their hands, at the time, a written statement, over the signature of the corporation by its president, John H. Torment, to the effect that S.'!00,000 of preferred stock had just been issued in strict conformity with the laws of Missouri; that all the common and part of the preferred stock was owned by the officers and directors of the company; that the total net earnings available for annual dividends would not be less than five times the amount required for dividends on the preferred stock. They also gave the investment company a written statement, falsely setting forth in detail the assets and liabilities of the company, and that it had received paid subscriptions to its increased capital stock amounting to $400,000, which made its capital and surplus $885,605.83. Those statements, together with others of* similar character, were delivered to the investment company for the purpose of having them exhibited to the public, to bring about sales of the preferred stock. The investment company, making use of them for the intended purpose, in the course of a year sold some over 2,000 shares of the stock, accounted to the shoe company for about 00 per cent, thereof, and retained the balance as its commission. The appellants, Scott, Martin, and Gauss, were among the purchasers. The shoe company, through sales made by the investment company and others, making use of the same statements, realized about $300,000 from the total sales of all stock. Soon after receiving the certificate of increase the shoe company commenced pitying quarterly dividends on the preferred stock so sold, at the rate of 7 per cent, per annum, and continued so doing during the years 3904 and 3905, the last payment being made on January 1, 1906. In January, 1906, an examination of the books of the shoe company was made at the instance of the preferred stockholders, and disclosed the fact that the company was insolvent, and had been, so for tyears, and was so when its capital stock was increased; that the statements made by the company to secure the increase of capital and otherwise to influence purchasers were false and fraudulent, and that the evidence of their falsity had been concealed from the stockholders and public by the president of the shoe company. It further turned out that the increased stock had not been subscribed or paid for at the time the statement was made for securing the increase, and never had been paid for, except as the investment company and others sold the same and turned over the proceeds to the shoe company. The appellants bought their stock upon the faith of the representations made in the statements so made and uttered by ¡he shoe company and repeated by the invesiment company. Investigation into the affairs of the company proceeded during the months of January and part of February when, upon the advice of counsel, the appellants repudiated their contract of purchase, and tendered back the slock and dividends which they had received from the shoe company. About that time, on February 10, 1906, a petition in bankruptcy was filed against the shoe company, which was afterwards confessed by the company, and an adjudication followed on March 2, 1S06. Appellants undertook to prove claims against the estate in bankruptcy for the amount of money paid by them, respectively, for their preferred stock less such dividends as they had received thereon. Their claims were disallowed by the referee, and his action was approved by the district court on proper proceedings bringing it there for review. The present appeal challenges the rulings so made.</p>

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

<p>1. Appeal así» Error — Review—Findings op Fact — Confi icting Evidence.</p> <p>Where there is abundant evidence from which a fact found by the trial judge may have fairly been found, such finding will be sustained on appeal, unless an obvious error has occurred in the application of the law or a serious mistake in the consideration of the proof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, H 3983-3989.]</p> <p>2. Estoppel — Consent to Delay — Penalty.</p> <p>Where complainants in any manner secured defendant’s consent to complainants refraining from shipping logs under a logging contract for five days to enable complainants to change certain spur tracks, and complainants acted on such consent, defendant was estopped to claim a contract penalty for such delay.</p> <p>3. Logs and Logging — Contract—Construction.</p> <p>Where a logging contract provided that complainants should have the right to log certain land except the west half of township 60 north, of range 18 west, “unless railroad spur is built to Sand Lake,” such provision contemplated a spur which, whether built by complainants or some one else, should be one which complainants could lawfully use as a matter of right to execute their contract, and hence the construction of such spur by a private corporation as a private enterprise to log other lands in the vicinity was insufficient to entitle complainants to log the west half of such township.</p> <p>4. Contracts — Mutuality.</p> <p>Where a contract to log certain land excepted the west half of a township, unless a railroad spur was built to a certain lake, the contract, in so far as the excepted tract was concerned, was unenforceable for want of mutuality.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 1, Adverse Possession, §§ 21-40.]</p> <p>5. Same — Construction.</p> <p>Under the rule that a contract should receive a reasonable construction to execute the real in ten (ion of the parties, if a given act is not within such intention, it should not be held to be so merely because it is within the letter of the written instrument.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 730.]</p> <p>6. Account Stated — Objection to Charge.</p> <p>Defendant claimed a charge against complainants for demurrage by letter dated May 19, 1903, to which complainants replied on May 23, 1903, objecting to such charge, and asserting their right to cease loading the cars in question during the time in April for which the demurrage was charged. Held, that such charge did not constitute an account stated so as to estop complainants from thereafter contesting the same.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Account Stated, § 21.]</p> <p>7. Damages — Future Profits.</p> <p>Future profits on an alleged breach of contract are recoverable only when they are the result of special circumstances known to the parties at the time the contract was made, and when they are the natural and direct result of a breach and can be ascertained with reasonable ae-eurracy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 74-76.]</p> <p>8. Same — Evidence.</p> <p>On a cross-bill for alleged breach of a logging contract, evidence held to sustain a finding that complainants at the time the contract was made were not informed that their failure to get out the required quantity of logs each season would result in special damage to defendant, so as to entitle the latter to recover for loss of future profits.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol.' 15, Damages, § 513.]</p>

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

<p>3. INTEKNAT, REVENUE — BEALSES IN OUEOMABGAKINE — ACTION TO RECOVER TAX Paib.</p> <p>The provisions of the general internal revenue legislation do not apply to Oleomargarine Act Aug. 2, 1880, c. 840, 24 Stat. 209 (U. S. Comp. St. 1901, p. 2228), except those sections expressly made applicable by section 3 thereof (24 Stat. 209 [U. S. Comp. St. 1901, p. 2229]); and one assessed with a special tax as a dealer under such law, who, before paying the tax at the suggestion of the collector, made application to the Commissioner for an abatement of the same, stating the facts, which application was refused, is not required to again appeal to the Commissioner under Rev. St. § 3228 (TJ. S. Comp. St. 1901, p. 2088), after he has paid under protest, before ho can maintain a suit to Recover his payment hack as illegally imposed.</p> <p>2. Same — What Constitutes Deauek.</p> <p>Plaintiff was a retail grocer, who, prior to the passage of Act Aug. 2, 1880, c. 810, 24 Stat. 209 (U. S. Comp. St. 1901, p. 2228), had' sold oleomargarine. After that he ceased handling it; but having two or throe customers who desired it, at their request and for their accommodation he sent orders in their respective names to the manufacturer for 10-pound packages at a time, to be shipped to each customer in his care. The manufacturer shipped the same to its local branch house, addressed and billed to the customers. The branch house, which did not deliver to retail customers, left the packages at plaintiff’s store, and he delivered the same, with other groceries. The customers returned the bills to him, and he remitted for the same to the manufacturer each month, charging the customers with the cash so sent. There was no fraud, nor attempt at concealment, and plaintiff made no profit whatever on the transactions. Held, that suc-h transactions were not sales of the article by plaintiff, and did not render him subject to tax as a wholesale dealer.</p>

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

<p>1. JlTD GM ENT — A NNUXMENT — FaAUD.</p> <p>The fraud for which a suit may bo maintained to annul a judgment or decree between the same parties must he extrinsic or collateral to the matter tried in the court rendering the judgment, and not one that inhered in the issues of the prior suit.</p> <p>[Ed. Note. — For casos in point, see Cent. Dig. vol. 30, Judgment, §§ 830-840.]</p> <p>2. Same — Res Judicata.</p> <p>Where a suit in the federal courts to annul a judgment of the probate court of F. county, Ark., allowing certain claims against a decedent’s estate for fraud, was between the same parties as a prior suit in an Arkansas chancery court to set aside the allowance of such claims, and all the allegations of fraud charged were necessarily involved in such prior suit, in which an adverse decree was rendered, such decree was res judicata of complainant’s right to a retrial of such issue in the federal court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 80, Judgment, §§ 1248-1250.]</p>

<p>1, Oontbacts — 'Legality.</p> <p>A coni nut to violate the law, or to do that which is immoral or contravenes the settled public policy of the state or nation, is void, and no right of action can he predicated thereon.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 408-476.]</p> <p>2. Same — Public Lakds — Inclosubu.</p> <p>Act Cong. Feb. 25, 3885, c. 149. 23 Stat. 321 (ü. S. Comp. St. 1901, p. 3524), prohibits inclosure of lands of the United States by persons having no claim or color of title in good faith, and no asserted right in view of entry under the general laud laws, and makes violation of the act a misdemeanor. A contract for the leasing of grazing lands consisted of two writings embracing lands owned by plaintiff in fee, and lands leased by him from the states. It recited that its purpose was to give defendant all rights and privileges that might be derived from the use of the government lands adjoining those mentioned and which were theretofore used by plaintiff, and also embraced all plaintiff’s fencing in two counties, and imposed on defendant the duty to maintain and keep it in repair. In one of the repair clauses, the fencing on a tract described as the S. range was mentioned, with a provision that if the government wished it taken down, plaiutiff was to attend to it, it appearing that the lands included in such range, which were a part of the leased premises, comprised a large ■tract of public lands unlawfully inclosed by plaintiff, which fence the contract required plaintiff to maintain. Held, that such instruments having been executed at the same time and as a part of the same transaction, constituted a single contract, contemplating the violation of the laws of the United States, and, being,, indivisible, no action for damages could be maintained for breach of the contract with reference to the lands of which plaintiff was in lawful possession at the time of the lease.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

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

<p>1. Courts — Federal Courts — Jurisdiction—Amount in Controversy.</p> <p>Whether a suit in a federal court jnvolvos the necessary jurisdictional amount is not a local question controlled by the statutes of the state or the rulings of its Supreme Court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 901.</p> <p>Jurisdiction of Circuit Courts as dependent on the amount in controversy, see notes to Auer v. Lombard, 19 C. O. A. 75; Tonnent-Stribling Shoe Co. v. Iloper, 36 C. C. A. 459.]</p> <p>2. Same — Separate Obligation.</p> <p>In an action in a federal court on several notes, the jurisdictional amount in controversy is the aggregate of the judgment prayed for.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 890 - 897.]</p> <p>3. Factors -Consignment of Goods por Sale — Directions—Lien.</p> <p>Where there is a simple consignment of goods to a factor for sale on Commission, the directions of the consignor, communicated either at the time or before sale as to when or how the goods should be sold and the proceeds applied, must be respected by the consignee who holds no other interest in tlie property as such, but if the factor has advanced money for the purchase of the goods consigned to the extent of his advancements or liabilities incurred on account of the goods, he acquires a special interest therein in the nature of a lien for his indemnity in the absence of a special contract varying the right, in which caso neither tlie consignor, nor any one claiming under him, can maintain an action against the factor (o recover the property or its proceeds without tendering the amount due him.</p> <p>[,Ed. Note. — For cases in point, see Gent. Dig. vol. 23, Factors, §§ 70, 71. i</p> <p>4. Same.</p> <p>if a consignor of goods to a factor contemporaneously with an advancement by tlie factor and the consignment gives the fací or directions respecting the time and maimer of sale which are assented to by the factor’s; acceptance of tlie goods, he may not disregard such directions or condition in selling the goods for his reimbursement, provided the consignor stands ready or offers to reimburse the factor for his advances and liabilities.</p> <p>[Ed. Note.- For cases in point, see Cent. Dig. vol. 23, Factors, §§ 23-25. |</p> <p>5. Same — Subsequent Directions.</p> <p>Where a consignment of goods to a factor for sale on which the factor has made advancements is received without directions as to the time or manner of sale or disposition of the proceeds, the factor may hold and dispose of the goods in the customary method of trade and reimburse himself out of the proceeds for his advances and liabilities and commission, the consignor being without power by any subsequent direction to the factor or conditions imposed to suspend or affect Ihe factor's lien or right of sale to the extent necessary for his reimbursement and compensation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Factors, §§ 23 -25.¡</p> <p>6. Same — Arria cation for Proceeds — Solvency of Principal.</p> <p>Where a factor without any new considera!ion ¡issonied 1:o ills consignor's demand that if he sold the goods on which advances had been made the proceeds should be applied on certain notes held by the factor against the consignor and not on the consignor’s open account snob assent by the factor was subject to ihe implied condition that the consignor should keep up the required margins and continue solvent and sho having become bankrupt tbe factor, after notice, was entitled to sell tbe goods for tbe best market price and credit tbe proceeds against tbe open account and commissions before applying any part thereof to tbe notes.</p>

The decision of the court below affirming the master’s report, which was opposed on behalf of claims disclosed in the Payne & Joubert intervention, is shown in the record which is quoted as follows: “In the Matter of the Intervention of Payne & Joubert. “This cause came on to be heard upon exceptions to the master’s report on the intervention of Payne & Joubert, claiming a resolution of the sale of certain supplies furnished to the water plant on the Belle Alliance…

<p>1. Banks and Banking — Certified Checks — Nature of Bank’s Liability.</p> <p>The certification of a check by a bank, like the acceptance of a draft, creates an original, actionable liability against the bank, and implies that, when the check is certified, the drawer has sufficient funds with the bank, and that they have been set apart and will be retained for the holder whoever he may be, and whenever the check may be presented.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, §§ 419, 421.]</p> <p>2. Same — National Banks — Guaranty of Checks — Notice of Invalid Transaction.</p> <p>A state bank was chargeable with notice that the credit and resources of a national bank were being unlawfully used, barring recovery against the national bank’s receiver on checks on the national bank by a corporation, where the national bank’s president had written the state bank obligating his bank unconditionally to pay all checks of the corporation, not aggregating more than $5,000 weekly, and the national bank after-wards wired that it would “protect” the corporation’s cheeks for $5,000 weekly in excess of “present guaranty,” and later that the state bank would pay checks in excess of “guaranty” drawn during the current week.</p> <p>3. Same — Power of National Banks.</p> <p>A national bank may warrant the title to property it conveys, or become liable as an indorser or guarantor of obligations which it redis-counts or sells, but it cannot lend its credit to another by becoming surety, indorser, or guarantor for him, such an act being ultra vires, and, when its true character is known, no rights grow out of it, though it has taken on in part the garb of a lawful transaction.</p> <p>4. Same — Ultra Vires Act — Estoppel.</p> <p>An act of a national bank, void because ultra vires, cannot be made good by estoppel..</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 6, Banks and Banking, §§ 991-1009.]</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The material in controversy was classified as composed chiefly of cotton and in part of silk under paragraph 311, tariff act of July 24, 1897, c. 11, § 1, Schedule I, 30 Stat. 178 (U. S. Comp. St. 1901, p. 1659). The importer contended that it should have been assessed “at 60 cents per pound (or 50 per cent, ad valorem) under the first clause of paragraph 388, same act, being woven fabrics in the piece, dyed, weighing not less than 1% ounces nor more than 8 ounces per square yard, and containing not more than 20 per cent, in weight of silk.”</p> <p>The board held that the mention of paragraph 388 should be construed as a reference to paragraph 387, as the language of the protest indicated that intention. The first and second clauses of paragraph 387 read as follows:</p> <p>“387. [1] Woven fabrics in the piece not specially provided for in this act, weighing not less than one and one-third ounces per square yard, and not more than eight ounces per square yard, and containing not more than twenty per centum in weight of silk, if in the gum, fifty cents per pound, [2J and if dyed in the piece, sixty cents per pound.”</p> <p>On the authority of Leerburger v. United States (C. C.) 130 Fed. 1022, af-Armed 137 Fed. 1020, relating to similar goods, the board held that the fabrics involved were dutiable under the Arst clause of paragraph 387, at 50 cents per pound, as being “in the gum.” The board further held that the importer was not entitled to a decision in his favor, because his protest, claiming the goods to be dutiable at “60 cents per pound,” as being “dyed,” “failed to point out the provision of the statute which actually controls,” and was therefore insufficient. Section 14, Customs Administrative Act of June 10, 1890, e. 407, 26 Stat. 137 (ü. S. Comp. St. 1901, p. 1933), requires that protests shall point out “distinctly and speciAcally” the importer’s objections to the assessment in question.</p> <p>On appeal by the importer, the decision of the board was reversed by the Circuit Court (155 Fed. 146, T. D. 28,262), the protest being held sufficient</p>

This case arose out of an action brought by Gustavo Preston against Geo. R. Bidwell, formerly collector of customs at the port of New York. The opinion rendered in the court below is as follows: HOLT, District Judge.

<p>1. Replevin — Natube of Action — Possession.</p> <p>Though the question of title to personal property may be litigated in replevin, if properly brought, the action independent of statute is a pos-sessory one brought by complainant to recover possession of personal property.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Replevin, § 1.]</p> <p>2. Same — Statutes—Bond.</p> <p>Acts Pa. 1901 (P. L. 88, No. 61, § 1), declaring that plaintiff in replevin shall give bond, with condition that if he fails to maintain title to goods or chattels he will pay to the party entitled their value and legal costs, etc., does not authorize the giving of such bond in any case in which plaintiff is in possession of the property, title to which he seeks to establish in replevin.</p> <p>3. Same — Plaintiff in Possession.</p> <p>Plaintiff may not maintain replevin to establish title to chattels of which he is in possession at the time suit is brought either at common law or Acts Pa. 1901 (P. L. 88, No. 61), regulating procedure in such action.</p>

This is an action to recover damages for an injury to plaintiff in error caused by the falling of an elevator in the packing house of defendant in error. The trial court sustained a motion to direct a verdict for defendant, and the record is brought hero for review by writ of error.

<p>Towage — Stranding of Tow — Liability or Tug.</p> <p>A finding affirmed that a tug was liable for damages resulting from the stranding of a barge which she was towing from anchorage in New Haven Harbor, and that the evidence did not sustain the defense that the barge struck an unknown obstruction on the anchorage grounds, hut rather indicated that through an error of the master the tug and tow were outside the dredged basin used as the anchorage grounds.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, §S 11-20.J</p>

<p>■Customs Duties — Payment Without Protest — Payment under Mistake o» Law.</p> <p>Importers paid an internal revenue tax on their importations under a mistake of law, without protest of any kind, written or oral. Held, that they were not entitled to relief.</p>

14, 190?, dismissing the bill, which was filed for the infringement of letters patent No. 605,94? granted to Charles W. Davies for an improvement in neckties. The opinion below is reported in 153 Fed. ?59.

This cause comes here upon appeal from a decree dismissing a-bill of complaint in a patent infringement suit. The patent involved is No. 812,183, issued February 13, 1906, on application filed January 11,1904, to William O. Coffe for improvement in telegraph keys. The claims in controversy are 11, 12, 13, 16,18,19, 21, 23, 25, 26, 27, and 28.

This cause comes here upon appeal from a decree for injunction and accounting in a suit on patent 767,303 granted August 9, 1904 (application filed May 7, 1904), to Horace G. Martin for a telegraph transmitter, or key.

<p>Patents — Infringement—Cream Separators.</p> <p>The Andersson patent, No. 555,893, for an improvement in centrifugal cream separators, which consists essentially in the use of an eccentrically pierced rotable plug through which the cream flows after being separated from the milk, was not anticipated, and discloses invention, but is restricted by the prior art within very narrow limits. As so construed held infringed by one .device used by defendant, but not by others.</p>

This cause comes here upon appeal from a decree for injunction and accounting under certain claims of United States patent No. 677,308, issued to the executors of Rudolph Eickemeyer, June 25, 1901, for an alternating current motor. The patent was granted upon division of an application filed July 6, 1894.

<p>Patents — Infringement—Use of Articles Purchased in Foreign Country.</p> <p>A citizen of the United States, Who, being in a foreign country, there purchases, solely for his personal use, an article protected in the United States by a patent granted to an assignee of the inventor, which the maker and seller in the foreign country had the right from the inventor to there make and sell, does not become an infringer of the United States patent by bringing such article home with him and using it here personally, and not for commercial purposes or profit.</p>

<p>Patents — Invention—Method of Finishing- Canes.</p> <p>The Eisenstein patent, No. 797,505, for a method of finishing canes of bamboo, tonquin, and reed, by coating them with a baking varnish paint and subjecting them to a temperature of 200 to 300 degrees as set forth in one claim and 240 to 300 degrees in the other for not less than three hours, is void, both because the limits of temperature stated are so wide apart as to be misleading and impracticable, and for lack of invention, the process being the same as that previously used in japanning articles of different material.</p>

<p>Patents — Validity—Peocess fop. Duplicating Typewbitten Woek.</p> <p>The Dick patent, No. 466,557, for a process of duplicating typewritten work, which consists of introducing into a typewriter a stencil sheet, coated with wax or similar material, with other sheets in front and rear of it and after the typed impressions have been made thereon, peeling off the outer sheets, and with them the adhering wax where the types have struck so that the middle sheet may be used as a stencil for duplicating the typewriting, is void in view of the patent to Fuerth who was adjudged priority over Dick as the inventor of the combination of the three sheets so used, leaving only the function or work of the typewriting machine to be covered by the Dick patent, which is not a patentable process.</p>

<p>Patents — Infringement—Ladies’. Garment.</p> <p>The Critcher patent, No. 781,035, for a combined skirt- and drawers, held valid and infringed by one style of garment made and sold by defendant, but narrowly construed as required by the prior art, not infringed by other and different styles.</p>

In Equity. On demurrer to bill. Paragraph 8 of bill of complaint is as follows: “(8) And your orators further show on information and belief that the defendants now have on hand, ready for sale in the city of Hartford, state of Connecticut, in said district of Connect)out, and is uow advertising and soliciting sales, and is offering and exposing for sale, largo numbers of antiskidding devices embodying the inventions, discoveries, and improvements set forth and claimed in…

<p>At Law.</p> <p>This was an action brought by the United States to recover three penalties of $100 each alleged to have been incurred by the defendant in hauling on November 12, 1906, Lehigh Valley car No. 83,759, November 13, 1906, Lehigh Valley car No. 69.609, and on September 26, 1906, its own No. 49,786, from -Allentown, Pa., with the coupling and uncoupling apparatus on one end of each car in a defective condition, in that the lock pin or lock block was disconnected from the uncoupling lever. Two government inspectors of safety appliances found these cars in the defendant’s yard at Allentown, and after at least half an hour's interval the defendant hauled the cars in the defective condition. The defendant offered evidence that in the ordinary course of its business it had inspectors whose duly it was to inspect cars moved by it, and if any defects were found such defects were noted in an inspection book kept for that purpose; that it had examined these books, and found no entry of any defect having been found or repaired.</p>

<p>1. Post Office — Mails—Power of Congress.</p> <p>U. S. Const, art. 1, § 8, authorizing Congress to establish post offices and post roads, authorises all measures necessary to secure the safe and speedy transmission of the mails and a prompt delivery of their contents, and also grants power to prescribe what shall be carried and what shall be excluded.</p> <p>[Ed. Note. — For cáses in point, see Cent. Dig. vol. 40, Post Office, § 1.]</p> <p>2. Words and Phrases — “Public Policy.”</p> <p>The “public policy” of the government is not limited to such matters as are universally considered as injurious to the public interests, but any acts reasonably tending to have that effect may be prohibited by statute,, and thereupon they are against public policy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5813-5814; vol. 8, p. 7773.]</p> <p>3. Statutes — Unambiguous Statutes — Judicial Duty.</p> <p>Where a statute is clear and unambiguous, a court is bound to enforce it as it is.</p> <p>4. Post Office — Mails—Obscene Matter — Statute Construed.</p> <p>Rev. St. § 3893, as amended by Act Sept. 26, 1888, c. 1039, § 2, 25 Stat. 496 (U. S. Comp. St. 1901, p. 2058), forbidding the mailing of obscene, lewd, or lascivious books, etc., prohibits the use of the mails to all persons for the transmission of matters which are lewd, lascivious, or indecent, regardless of the relationship between sender and addressee — e. g., husband and wife — and regardless of the effect of the receipt of the article sent may have on the mind of the particular addressee.. If it is of such nature that the reading would, in the'opinion of reasonable persons, or the jurors selected to try one charged with violating the section,'tend to deprave or corrupt the morals of reasonable persons, and would suggest to the minds of either sex thoughts of an impure or libidinous character,, it is within the prohibition of the statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Post Office, § 50;</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. 79.]</p>

On Motion to Quash Summons, and Return of Service Thereon. Plaintiff instituted this suit to recover damages for personal injuries alleged to have been sustained by her at the hands of defendant’s employes while she was a passenger on one of its cars between Maricopa. Ariz., and St. Louis, Mo. She alleges herself to be a citizen of Mineral county, W. Va., and the defendant to be a corporation under the laws of the state of Illinois.

<p>1. Criminal Law — Trial—Instructions as to Reasonable Doubt.</p> <p>In a prosecution by tbe United States for a misdemeanor, the failure to charge the jury as to' the right of the defendant to the benefit of a reasonable doubt is not ground for a new trial, where such instruction was not requested, nor any exception taken to the omission. .</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 1996.]</p> <p>2. Navigable Waters — Obstruction by Bridges — Power oe Congress to Control and Regulate Delegation to Secretary oe War oe Authority to Pass on Obstruction and Order Removal.</p> <p>The authority given to the Secretary of War by Act March 8, 1899, c. 425, § 18, 30 Stat. p. 1153 (U. S. Comp. St. 1901, p. 3545), to order the alteration or removal of a bridge found to be an unreasonable obstruction to the navigation of any of the navigable waterways of the United States, is witliin the constitutional powers of Congress, and the determination of the Secretary in the due exercise of such authority that a bridge is such an obstruction is conclusive.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, § 2.]</p> <p>3. Eminent Domain — Bridges Over Navigable Waters — Taking oe Private Property — Constitutional Daw- — Right to Compensation.</p> <p>A bridge over a naturally navigable stream, which has not been authorized or sanctioned by Congress, may be required to be changed so-that it will not be an unreasonable obstruction to navigation without compensation first being made therefor, even though the changes required will result in a virtual destruction of the bridge, amounting to an appropriation of it within the provisions of the Constitution, which forbid the taking of private property for public use without just compensation being first made.</p> <p>4. Same — Stream Aetieicially Navigable — Reasonable Ground to Apprehend Improvement of — Notice.</p> <p>The same is true where the stream, even though not naturally navigable at the time the bridge was built, has been made navigable artificially by means of locks and dams, if from conditions existing at the time the improvement of it in this way was to be reasonably apprehended.</p> <p>5. Same — Property Affected with a Public Servitude.</p> <p>In every such instance property in the bridge is subject to a servitude-in favor of the public, which may be asserted by the general government, acting for the common good; and, being affected with an inherent infirmity of this kind, it cannot be said to have any value which calls for compensation when so lawfully appropriated.</p> <p>6. Navigable Waters — Prosecution for Failure to Alter Bridge — Sufficiency of Evidence.</p> <p>A verdict of guilty against a bridge company in a prosecution under Act March 3, 1899, c. 425, § 18, 30 Stat p. 1153 (U. S. Comp. St. 1901, p.. 3545), for failure to comply with an order of the Secretary of War requiring defendant to alter a bridge over the Monongabela river at' Brownsville, 50 miles above Pittsburgh, held sustained by the evidence,, where it appeared that, prior to the time the bridge was built in 1832. the river had been declared a navigable stream by the Legislatures of both Pennsylvania and Virginia, and was to a small extent then navigated at that point; that surveys looking to its improved navigation as It has since been improved had been made by both the state and federal governments, and that defendant’s charter granted by the state of Pennsylvania expressly provided that the bridge to be erected should not obstruct the navigation of the river.</p> <p>7. Same — Defenses—Authorization of Structure.</p> <p>It is not a defense in such a prosecution that the bridge was adopted and recognized by the execntive department of the government as an integral part of the national pike and post route over which the mails were carried.</p>

<p>1. Removal or Causes — Federal Question — How Pact must Appear.</p> <p>It is settled law that ordinarily to warrant the removal of a cause into a federal court on the ground that it is one arising under the Constitution or laws of the United States that fact must appear from the plaintiff’s petition or pleading, and that the ease must be one which could have been originally brought in the Circuit Court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 58, 50.]</p> <p>2. Courts — Jurisdiction op Federal Courts — Allegations op Pleadings.</p> <p>Jurisdiction of a federal court cannot he invoked by averments in plaintiff’s pleadings anticipatory of the defense and allegations that such defense is based on tho Constitution or laws of the United States.</p> <p>3. Removal op Causes — Federal Quf.stions — Defense Based on Laws of United States.</p> <p>An action for libel against individuals is not removable upon averments in the petition for removal that the action complained of was taken by defendants as officers of the United States, and that such fact was fraudulently omitted from plaintiff’s petition for the purpose of preventing a removal, since such fact if it had been pleaded would not have conferred original jurisdiction on the federal court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 58, 59.]</p> <p>4. Same — Cause Improperly Removed — Remand.</p> <p>A cause improperly removed under the removal act cannot be retained by the federal court on the ground that it is an action against revenue officers of the United States which might have been brought into that court by certiorari under Rev. St. § 645 (U. S. Comp. St. 1901, p. 521).</p> <p>[Ed, Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 218.]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below is reported as G. A. 6,643 (T. D. 28,321). The majority and dissenting opinions filed by the board are as follows: “HAY, General Appraiser. Certain coal was transferred from the steamship Anselma de Larrinaga to the steamship Mercedes de Larrinaga, belonging to the Larrinaga Line, while the vessels were lying alongside of each other in the port of Galveston.

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

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

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

<p>United States — Defaulting Officers — Imprisonment—Statutes—construction.</p> <p>Rev. St. § 3625 (U. S. Comp. St. 1901, p. 2418), provides that whenever any collector of the revenue, receiver of jiublic money or other officer who- has received the public money before it is paid into the treasury of the United States, fails to render his account or pay over the same, as required by law, a distress warrant shall be issued against the officer and Ills sureties, which section 3627 provides shall be levied on the officer's property, and if the same is insufficient to satisfy the warrant it may be levied on the officer’s person, who may be committed to prison, there to remain until discharged by due course of law. Held, that such act was applicable only to persons holding office under the government at the time the writ was issued, and that a defaulting officer could not be imprisoned thereunder, where his government service had terminated prior to the issuance of the writ.</p>

<p>Public Rands — Desert Rands — Entry—Statutes — Constbuction — “CONSTRUCTED.”</p> <p>Act Cong. Aug. 30, 1890, c. 837, 26 Stat. 391 (U. S. Comp. St 1901, p. 1553), provides that all patents for lands thereafter taken up under any of the land laws of the United States on entries or claims validated by the act, west of the one hundredth meridian, should reserve a right of way for ditches or canals, “constructed” by authority oí the United States. Held, that the word “constructed,” as so used, did not limit the reservation to a right of way for ditches already constructed, but extended as well to those “to be constructed” by the government in furtherance of Its irrigation scheme for the reformation of arid lands.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, vol. 2, ,p. 1468.]</p>

<p>In Bankruptcy. Petition to review ruling of referee, denying a homestead to the bankrupt, on account of waiver.</p>

<p>Stbeet Railroads — Mortgages—Foreclosure—Preferred Claims.</p> <p>Where receivers were appointed for two traction companies in mortgage foreclosure proceedings, and the property brought less than the mortgages, but a fund was provided to pay preferred claims, and it appeared! that one-fourth of an expenditure for repairs to a bridge were necessary for the continued operation of the roads, and had been performed on the credit of the earnings within six months prior to the appointment of the receivers, and that three-fonrths of the work was unnecessary, the claimant was entitled to a preference only to the extent of one-fourth of the amount due.</p>

<p>1. BANKRUPTCY— ClAIMS-REJECTION — RJillBAEING.</p> <p>Where a referee’s order disallowing claims in bankruptcy on the solo, ground that the claims were not offered for proof within the time required was sustained on a petition for review, and shortly thereafter the Circuit Court of Appeals in another case so construed the bankruptcy act that such claims would not have been barred, claimants were entitled to a rehearing, though no appeal was claimed.</p> <p>'2. Same — Jurisdiction—Orders in Bankruptcy — Review.</p> <p>In bankruptcy proceedings, the court’s power to reconsider and revise its orders and decrees does not expire with the term at which they were made.</p> <p>3. Same — Claims—'“Liquidated by Litigation.”</p> <p>After bankruptcy, certain proceedings were brought in the state court to set aside a conveyance of property from the bankrupt to claimants before adjudication. If the conveyance had been held good, the claims would have been satisfied from the property conveyed, which claimants sought to hold as security for their claims, in which they were unsuccessful. Held that, though such litigation did not in terms relate to the amounts due claimants, the question, litigated necessarily involved a determination of the net amount for which their claims should be finally allowed, and hence such claims should be regarded as “liquidated by litigation,” within Bankr. Act July 1, 1897, c. 541, § 57n, 30 Stat. 561 (TJ. S. Comp. St. 1901, p. 3444), providing that if claims are liquidated by litigation, and final judgment therein is rendered within 30 days before or after the expiration of a year from the adjudication, they shall be proved within 60 days after the rendition of such judgment.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, p. 4175.]</p>

<p>BANKRUPTCY— RIGHT TO DlSCIIAR&E — EVIDENCE CONSIDERED.</p> <p>Evidence considered, and held insufficient to warrant the denial of a bankrupt’s discharge on the ground of concealment of assets, or failure to keei> books with intent to conceal his true financial condition.</p>

<p>On Motion to Discontinue.</p>

<p>1. JudgmeNT — Persons Concluded — Effect as Bak to Subsequent Proceeding.</p> <p>The judgment of a federal court in a mandamus suit brought by a coal company operating mines on the line of a railroad against the railroad company to compel a fair distribution of cars, upon an allegation of discrimination in violation, of the interstate commerce law, does not inure to the benefit of any other operator not a party to the suit, nor bar an independent suit or proceeding by such operator on its own behalf in court or before the Interstate Commerce Commission to secure similar relief; nor is it estopped to maintain such independent suit or proceeding by the fact that it aided the relator in the prior suit or contributed to the expense thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 30, Judgment, §§ 1190, 1191.]</p> <p>2. Carriers — Interstate Commerce Act — Cumulative Remedies for Violation.</p> <p>An action in a federal court for a mandamus, under Act March 2, 1889, c. 382, § 10, 25 Stat. 862 [U. S. Comp. St. 1901, p. 3172], amendatory of the interstate commerce act, which authorizes such action by a shipper against an interstate carrier to compel a compliance with the act, and further provides that “the remedy hereby given by writ of mandamus shall be cumulaiive, and shall not be held to exclude or interfere with other remedies provided by this act or the act to which it is a supplement,” does not preclude the relator or others from proceeding in respect to the same matter by petition to the Interstate Commerce Commission under section 13 of the original act of Feb. 4, 1887, c. 104, 24 Stat. 383 [U. S. Comp. St. 1901, p. 3104], and the court in the mandamus suit is without power on an ancillary bill to enjoin such proceeding.</p>

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

<p>1. Limitation op Actions — Decision op Plea — Necessity op Finding op Facts.</p> <p>Where, on the argument of a plea of the statute of limitations, the parties made an agreed statement of facts, setting forth every fact necessary to the determination of such plea, which was taken under advisement until the whole case should be heard, it was not error for the court to then determine such plea, upon the agreed statement without making a special finding of facts.</p> <p>2.' Courts — Federal Courts — Following State Decisions.</p> <p>The courts of the United States follow the construction of the Constitution and laws of a state placed upon them by its highest court except in cases wherein the laws of a state are in conflict with some provision of the federal Constitution or a federal statute passed in pursuance of the same, or a rule of commercial law.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 13, Courts, § 957.</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.] ,</p> <p>3. Same — State Statutes op Limitation.</p> <p>The courts of the United States, in the absence of legislation on the subject by Congress, recognize the statutes of limitation of the- several states, and give them the same construction and effect as given by the local tribunals.</p> <p>4. Limitation op Actions — Action . to Recover Real Property — Law op South Carolina.</p> <p>Code Civ. Proc. S. C. 1872, § 111, as amended in 1873 (15 St. at Large, p. 497), provided that actions for the recovery of real property must be commenced within 10 years, but in case the plaintiff was a minor he was given 5 years after his disability ceased. The law was again-amended by Code Civ. Proc. 1882, § 108, by changing the 10-year period to 20 years and the 5-year period to 10 years. Section 93 of the latter Code, which is a part of the same title, provides that “the provisions of this title shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statutes now in force shall be applicable to such cases.” Held that, under such statutes as construed by the Supreme Court of the state, an action in a federal court by the devisees of a testator who died in 1874, at which time the plaintiffs were infants, to recover lands sold as a part of the estate of the testator in 1875 and 1876, since which time they had been in the possession of the purchasers and their grantees, was governed by the law of 1873, although plaintiffs did not attain their majority until after 1882, and that the action was barred in five years after their disability ceased.</p>

<p>Appeal from tlie Circuit Court of the United States for the District of Colorado.</p> <p>In January, 1001, Edward B. Stanehfield, of Denver, Oolo., borrowed 37,500 from the appellant, Elmira Mechanics’ Society of New York (hereinafter called the complainant), for whicli he and Ms wife executed a note due January 35, 1906, with 6 per cent, interest, payable semiannually. To secure this debt, they executed to the complainant a mortgage on various lots of ground in the city of Denver, and in Arapahoe county, Colo. Three of the lots were subject to a prior mortgage of $8,500, which would mature about the 1st of April, 1906, other lots were subject to a prior mortgage of §2,050, and one of the lots was subject to a prior mortgage of $1,000. Some of the lots embraced in the complainant’s mortgage were unincumbered, but of comparatively small value. On April 15, 1903, the complainant, at Stanchileld’s request, re-leasefl its mortgages on the lots in East Denver (which will hereinafter be called “the Flint-Lomax Lots”), on which, at that time, was a matured prior mortgage of $8,500. This was done to permit Stanchfield, through the Brooklyn Realty' & Investment Company, organized by him, to place a new first mortgage for said sum on the lots; the complainant then taking a second mortgage from said Brooklyn Realty & Investment Company for its said debt of $7,500. In and by this arrangement the complainant released one S. S. Kennedy, who had assumed the $7,500 mortgage, and by that release it placed the Flint-Lomax five-year lease on the property ahead of the complainant’s mortgage. After Stanchfield had thus obtained said money from the complainant and induced it to postpone its mortgages to others on his assurance of the amplitude of the security, he evidently became much embarrassed financially, and became the active promoter and organizer of various corporations, to wit, the Highland Foundry Company, the Pittsburg Foundry Company, the Brooklyn Realty & Investment Company, the Quaker City Investment Company, and the Highland Park, Inn & Sanitarium Company. The legal title of Stanchfield in the property in question, was convoyed to the first of these corporations and by each of the corporations successively to the subsequent. organization. The Brooklyn Realty & Investment Company, as a part consideration of the conveyance to it, assumed to pay the antecedent mortgages thereon, and in the deed from the Quaker City Investment Company to the Highland Park, Inn & Sanitarium Company, the latter assumed the payment of said indebtedness. Neither Stanchfield, nor said grantee corporations kept the taxes on the property paid, but suffered them to become delinquent, and part of it sold for taxes. To protect the complainant's junior mortgage, it had to redeem from said taxes. After Stanchfield fell behind in the payment of the accruing interest on his debt to the complainant, and failed to keep the taxes paid, he was urged and pressed by the complainant to make payment of these arrears and protect the property against the overlying mortgages. By deceitful arts and persuasion, he lulled the complainant into indulgence and inactivity by assurances that he was about to effect arrangements by which he could discharge the debt. Failing in this, he dismantled part of the buildings on some of the property of fixtures and appurtenances to the amount of over $1,300, which he sold and po'cketed the proceeds. In order to render whatever apparent interest the grantee corporation had in said property available, he negotiated with one William B. Felker, defendant herein, for the purchase of an automobile at the price of $1,650, in the name of the last grantee company, and executed to Felker its note therefor; and to secure the same, on the-day of December, 1905, the company executed to him a deed of assignment of the rentals of said Flint-Lomax lots until said note should be paid. In January, 1906, the complainant instituted this suit to foreclose its mortgage, alleging the facts aforesaid, charging that said Stanchfield and companies were insolvent; that the property was an inadequate security for the debts; that the same was being wasted, etc.; and prayed for a receiver to take charge of the property and administer it under the court for the protection of the interests of the parties concerned. A receiver was appointed, took charge of the property, collected the rents therefrom, and applied the same toward the payment of insurance and taxes through the year 1906. There was a decree of foreclosure and sale, at which the complainant became the purchaser, and afterward obtained a deficiency judgment against said Stanchfield for something over $1,200. The order of sale was confirmed December 5, 1906. The deficiency judgment was rendered March 27, 1907. On the 26th day of March, 1907, the complainant presented its petition to the court for rule on the receiver to pay the taxes, insurance, and to make certain repairs on the building. It was also, by this application, represented and shown to the court that, by reason of an excavation being made on the lots adjoining the Flint-Lomax property, for the purpose of erecting a building thereon, the foundation and building on the Flint-Lomax property was seriously endangered, and, unless protected, the building wouldi be exposed to destruction, etc. Notice had been given to the receiver pursuant to the provisions of an ordinance of the city to make said repairs forthwith. The prayer was that the receiver be required to pay therefor the sum of $500, the reasonable cost of the work. This application showed that there was then in the hands of the receiver the sum of $000. A few days after this application was made, to wit, April 15, 1907, the receiver i>resented his report, with his resignation, which report was approved, and the receiver was discharged. But the court contiuued the receivership as to the other property by appointing another receiver therefor. It covered into the registry of the court the unexpended amount of rentals collected by the first receiver; and in. its final decree directed the payment of the balance of said rentals to said Felker. From this action of the court, the complainant appealed.</p>

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

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

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

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

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

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p> <p>The appellee, in his petition for a writ of habeas corpus, alleged that he is a subject of the Emperor of Japan, but that he is, and has been for four years and more, a resident of the United States, having in May, 1902, come from the empire of Japan to the territory of Hawaii as an immigrant; that he resided in that territory for about 1% years, working there as a drayman, and that while there he married; that from Hawaii he and his wife went to San José, in California, where he established a home for himself and wife, and where he remained working at his. trade of bricklayer until November, 1904, when he was called upon to return to Japan to serve in the army, as he was a reserve soldier; that he left his wife in San José, went to Japan, served in the army of that empire through the war with Russia, and upon his discharge proceeded to return to his home in San José; that on his way lie arrived in Honolulu, where he desired to stop en route to visit a brother and sister who resided there; that he has no other home or place of residence than at San José; that before departing for Japan, as aforesaid, he procured from the Japanese consul at San Francisco a certificate showing that he was a resident of San José, and that his intention was to return there and make his home there. These facts were not denied. In addition thereto an agreed statement of facts was made on the trial had upon the return to the writ, which was in substance as follows: That the appellee arrived at Honolulu on the steamship Kasato Maru, having sailed from Kobe on August 26, 1906; that in compliance with the act of Congress approved March 3, 1903, a manifest of alien passengers was delivered to 'the United States immigration inspector at Honolulu, which manifest contained the name of the appellee and the statement that he was of Japanese nationality and that he had never before been in the United States; that thereafter the appellee was questioned by an immigration inspector at the port of Honolulu relative to the statements set forth in the manifest, whereupon he stated that his occupation was that of a laborer, and that he had been in San José in 1903 and 1904; that thereupon the manifest was amended accordingly; that on September 19, 1906, an examination of the physical and mental condition of the appellee was made by an officer of the United States Marine Hospital service, located at Honolulu, and upon the completion of such examination that officer certified in writing that the appellee was afflicted with a dangerous contagious disease, to wit, trachoma; that at that time there was at the port of Honolulu a duly appointed, qualified, and acting board of special inquiry, consisting of three persons, to which board the certificate of the medical officer was delivered, the board having been called together for the purpose of giving the appellee a hearing; that such hearing was had, and as the result thereof said board determined that the appellee was afflicted with a dangerous contagious disease, and ordered that he be deported to Japan; that on September 20, 1906, the appellee appealed from the decision of the board, and on October 8, 1906, the Secretary of the Department of Commerce and Labor of the United States dismissed the appeal, holding that no appeal was permissible. Upon the hearing on the return to the writ of habeas corpus the court below held that the provisions of Act Cong. March 3, 1903, c. 1012, 32 Stat. 1213, “An. act to regulate the immigration of aliens into the United States,” applied to alien immigrants only, and not to aliens domiciled in the United States who mav have temporarily gone abroad and are returning thereto.</p>

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

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>The defendant in error, a corporation organized under a general corporation act, assumed in its articles the following, among other powers: “To sell, furnish and deal in electric light, heat and power, and to dispose of such portions thereof, as may not be used by the corporation, to cities, towns, villages, public and private corporations, political subdivisions and individuals; to locate, claim, divert, and otherwise acquire water and water rights under the laws of the state of California, and under tho laws of any other state or territory of the United States for any and all purposes; to construct, acquire and maintain ditches, dams, pipes, pipe lines, tunnels, levees, viaducts, bridges, embankments, and excavations, to, across, and from any water course, lake, stream, or waterway, and to sell, lease, grant, or otherwise dispose of so much of Hie water or water rights thus secured, controlled, or appropriated, as may not be used by this corporation, to oilier persons or corporations by special contracts or otherwise.” Prior to the organization of the defendant in error, Joseph A. Rossi had posted and filed notices of the appropriation of water.; of Hat creek, Lost creek, and Rear creek, all in Shasta county, Cal., and thereafter Rossi conveyed his rights in said water to the corporation, and the corpora Hon commenced to construct and continued to construct, ditches, flumes, and other works necessary to divert and appropriate the water. A i>art of the work was the construction of a ditch and flume more than 32 miles long, the line of which crosses a portion of tho lands of tho plaintiff in error. The defendant in error obtained from the city of Redding, a city of more than 5,000 Inhabitants, and from the county of Shasta, licenses to erect poles, stretch wires, and other appliances for the purpose of conducting and transmitting electricity for power, light, and other necessary and useful purposes, over, along, and upon the streets, alleys, and avenues of the city of Redding, and the roads, bridges, and public highways of Shasta county. It constructed a power house and installed therein machinery sufficient to generate electricity by the use of the water to the extent of more than 2,000 horse power, and constructed a pole line about 27 miles in length for ihe purpose of transmitting the electricity thus generated to a substation which it had constructed in the city of Redding. In the substation it had installed machinery ana had extended pole lines therefrom throughout tho city of Redding for tho purpose of distributing electricity. It commenced the present suit for tho purpose of condemning a right of way for its ditch and flume o\er the lands of the plaintiff in error. It alleged in the bill that its purpose was to supply by means of electricity and electric power the necessary public needs in the county of Shasta and elsewhere in the state of California for light, heat, and power, and to supply a necessary public use as aforesaid; that it would be impossible xo utilize its water for said necessary public use except by taking the same out of Bear creek, and conducting the same, by means of its ditch, along its surveyed and established ditch lino, over and across tho land of the plaintiff in error, and further alleged that a large part of the public In general and a large proportion of the Inhabitants and citizens, residents, householders, and freeholders within the county of Shasta and elsewhere in the state of California, are not supplied with electricity or electric current for heat, light, or power, and the supplying of electricity and electric current for heat, light, and power to the public in general, and to the inhabitants, citizens, residents, householders, and freeholders within tho county of Shasta and elsewhere in tho state of California, is and was at all of Hie times therein mentioned a public necessity, and that the right of way over the said land of said defendant T. B. Walker sought to be condemned is necessary for said public use. Tho answer denied on information and belief that the defendant in error was or ganized for the purpose set forth in the complaint, and denied upon information and belief that Its purpose was “to generate or transmit or furnish electricity or electric current to the public in general or to all inhabitants or persons within the county of Shasta or elsewhere in the state of California for the necessary public use or use of light or power or heat,” and alleged that the plaintiff in error “believes, and upon information and belief alleges, that it is the purpose of the corporation to sell electricity and electric current to such persons as the board of directors shall deem proper,” etc.; “that it is not the purpose of said plaintiff to furnish electricity or electric current to every individual member of the community in the county of Shasta, or any community, who shall demand or request the delivery thereof, but that said corporation only proposes to deliver electricity and electric current which it does not use itself, and to deliver such portions which it does not use itself only to such persons and in such locality and in such manner as the board of directors of said plaintiff shall deem proper.” Upon the issues and evidence the court found as facts, among others, that the defendant in error, immediately after its organization in 1904, acquired the right to divert and use 3,000 inches measured under a four-inch pressure of the waters of Hat creek and other creeks in the county of Shasta, and commenced the construction of its ditches as alleged in the bill, and as set forth in the statement of the facts ; “that said plaintiff is not engaged in any private business, nor has it for its own private purposes any use for any of said electricity except such as may be necessary for the heat and light of its said works, which are incidental to the said public use aforesaid; that it is necessary for said plaintiff to conduct water by means of said ditches, flumes, and pipe lines at large expense as above found to its said water house, and to use the said water to operate such machinery for the purpose of supplying the public of said Shasta county as hereinbefore found, and for such public uses as hereinbefore found.” Tho court decreed to the defendant in error a right of way for its ditch across tho lands of the plaintiff in error upon payment to him of the sum of $742.30 and the costs of suit.</p> <p>The final order of condemnation recites: “It is hereby ordered, adjudged, and decreed that the strip of land hereinafter described being the land described in the complaint herein as sought to be taken by the plaintiff be and the same is hereby finally condemned for the use of plaintiff for a right of way for the ditch described in the complaint herein, and for the purpose of construction, maintenance and operation thereon of said ditch and the running of water therein, and for the purpose of using the same by plaintiff in the construction, maintenance of said ditch, and the running of water across the said land of said defendant in the said ditch, solely for the public use described in said complaint and the findings and judgment heretofore made and entered herein.” Upon the trial there 'was no evidence showing, or tending to show, that the defendant in error was engaged in any private business or intended to engage therein. It offered to prove as part of its case that it did not intend to engage in any private business, and it adduced testimony that it had not erected any works or engaged in any private enterprise to use any portion of the power, light, or heat. On the trial, for the purpose of showing that it had deprived itself of the power to engage in the private enterprise permitted by its articles of incorporation, it offered in evidence amended articles of incorporation which it had adopted since the commencement of the suit, in which it had eliminated from its powers the power to engage in any private enterprise whatever. Objection to such evidence was made on the ground that the amendment was made subsequent to the commencement of the-suit, and the objection was sustained. The allegations of the bill that a large part of the public in general, and a large portion of the citizens, residents, householders, and freeholders within the county of Shasta and elsewhere in the state of California, were not supplied with electricity or electric current for light, heat or power, and that the supplying of the same for such purposes-to the public in general and to the inhabitants, citizens, etc., within the county of Shasta and elsewhere in the state of California, was at all of the times, mentioned a public necessity, was denied in the answer.</p>

<p>1. Counties — Actions—Pleading—Issues—Matters to be Proved.</p> <p>Where, in an action on county warrants given for the construction of certain jail cells and not paid for want of funds, the complaints alleged that the warrants were payable out of a fund raised from the sale of bonds, and that though the money raised from the bonds was authorized to be used for other purposes than for the payment of the courthouse and jail, none of it had been paid out in refunding prior indebtedness, the county having denied its possession of any of the money, it would be presumed that it was paid out for other proper purposes, and hence defendant’s admission that it had received the money did not shift the burden of proof to defendant to show what disposition had been made thereof.</p> <p>2. Pleading — Form oe Denial — Construction.</p> <p>A general denial followed by a specific denial of the same fact is improper, and, when pleaded, the general denial may be disregarded, or one of the denials stricken on motion, or defendant may be required to elect on which he will stand.</p> <p>3. Same — Inconsistent Allegations.</p> <p>In an action on county warrants, payable out of the proceeds of county bonds, a specific denial that defendant had on hand the sum mentioned in the complaint from the proceeds of the sale of the bonds was not inconsistent with a general denial of the allegation that it had not applied any part of such amount to the payment of prior indebtedness of the county.</p> <p>4. Counties — Warrants—Special Funds.</p> <p>Where county warrants drawn for the construction of jail cells directed the treasurer to pay the payee the sum specified out of county funds not otherwise appropriated, the fact that the warrants also contained the words “for jail cells” did not make them payable from a special fund.</p> <p>5. Same — Assent oe Payee.</p> <p>Where county warrants for jail cells payable out of funds of the county not otherwise appropriated were accepted by the payee with full knowledge of their terms and of the fact that there were no funds to pay them, the payee would be held to have assented, and agreed to look to the general funds of the county for payment.</p> <p>6. Same — “County Warrant” — Definition.</p> <p>A “county warrant,” undej.’ the statute of Washington, is a promise by the county to pay it when money applicable thereto comes into the treasury, its maturity by analogy to a note being the time when the county treasurer gives notice of his readiness to pay it and stop the running of interest.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, p. 1668.]</p> <p>7. Same — Right oe Action — Condition Precedent — Demand and Refusal.</p> <p>Where county warrants payable out of funds not otherwise appropriated were presented for payment, and stamped “not paid'for want of funds,” and there had been no refusal to pay out of a fund available therefor, the holders were not entitled to judgment against the county, the claim being liquidated, and the holders being entitled to resort to mandamus to compel payment out of funds applicable thereto.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Counties, § 256.]</p>

<p>Appeal from the Circuit Court of the United States for the District of Montana.</p> <p>The appellant was the defendant in a suit brought by the United States to enjoin him from driving, conducting, or causing or permitting to be driven or conducted, his live stock on the Little Belt Mountains Forest Reserve, and permitting the same to remain there. The bill alleged that during the month of December, 1904, and at divers times prior thereto, tho appellant “wrongfully and unlawfully, and without right or authority, and without tho consent and against the wishes of the complainant, the United States of America, and its officers and agents, and without having obtained a permit from the Secretary of the Interior or the Commissioner of the General Land Office or any officer or agent of complainant, and in violation of law, and in ntter disregard of the rules and regulations of the Secretary of the Interior, did drive and conduct, and cause to be driven and conducted, and permitted, suffered, and allowed to go onto and upon the said reserve, three hundred head of cattle,” and the bill proceeded to allege that said acts would be continued unless enjoined, and would result in permanent and irreparable damage and injury to said reserve and be destructive of the objects for which the reserve was created. Upon the filing of the bill, a citation was issued requiring the appellant to show cause why an injunction pendente lite should not issue against him. On the hearing a temporary injunction was ordered as prayed for. From that order the present appeal is taken.</p> <p>The Little Belt Mountains Forest Reserve was created by the proclamation of the Prfesident on August 16, 1902. The appellant is in the possession of a tract of 320 acres, which adjoins that part of the reserve known as Lone Tree ¡Park, of which 320 acres he acquired 160 acres under the homestead, law, and the remaining 160 acres he holds by a lease from one Peterson, the owner who acquired the same under the desert land act. The grazing privileges on ¡the reserve are divided into districts. Lone Tree Park is in District No. 4. It contains about 1,000 acres. On September 3, 1902, shortly after the reserve had been established, the appellant obtained his lease of Peterson’s 160 acres. As soon as he had obtained the lease, he turned from 3,000 to 3,500 head of sheep into the 320-acre tract, and later took them out and turned in cattle. When the appellant leased the land from Peterson, Peterson’s land and his own were inclosed, but the appellant made openings in the Peterson fence on the side toward the reservation, for the purpose of letting stock through on the reserve. The evidence shows that the fence was down in 7 places, and that the gaps were from 30 to 90 feet wide. In some places the wires were weighted down with poles, in others with rocks. In other places the wires were raised, and placed on top of posts, so as to enable the stock to pass underneath. The evidence shows, moreover, that if the fence were maintained in good condition, stock could not obtain access to Lone Tree Park, because of the natural barriers which surround it. Every year since 1902, the appellant has thus grazed his cattle upon the reserve, without any permit, and has disregarded the rules governing the use of the reserve, and ignored the notices to keejl his cattle off the reserve, given him by the forest ranger. The evidence shows that the appellant’s tract of 320 acres would not furnish pasture to more than 50 head of cattle, and that there is no water on it, and that he would turn the cattle into the inclosure, and leave them there to drift over onto the reserve where there was pasture and water.</p>

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

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

<p>1. MASTER AND SERVANT — NEGUTOENCE—ASSUMPTION OE RISK — NUMBER OE SEEV ANTS — F A OTS.</p> <p>The deceased and two follow servants had been operating a hand hoist and lowering timber with it into the shaft of a mine for about a month, when the master directed him to operate it with one co-workman, and he did so without objection. The hoist consisted of a chain attached to a rope which ran over a pulley suspended to a tripod above the shaft, and the other end of the rope was attached to a drum by which the rope was wound up by the use of adjustable cranks on the ends of the drum, and the descent of the load was controlled by a friction brake applied to the drum by a lever. After the chain was fastened around the load, it was necessary to wind the rope up until it was taut, and to apply the brake upon a signal from the chainman before the load slid or swung into the shaft, because it was so heavy that tho workmen could not hold it up with the cranks. After six or seven loads had been safely lowered by the two men, the deceased, who was acting as chainman, directed his fellow workman to continue to wind np the rope so long that it slid the load into the shaft before the brake was applied. Held, the deceased/ assumed the risk of operating the machine in this way with but one assistant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 559-566.</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. Saids — Evidence oe Change after Accident Inadmissible.</p> <p>Evidence that after an accident a master employed more men, repaired his machinery, or adopted a different method in the conduct of his business, is inadmissible to prove .his negligence at the time of the accident.</p> <p>[Ed, Note. — For cases in point; see Cent. Dig. vol. 31, Master and Servant, § 918.]</p> <p>3. Evidence — Opinion Evidence When Inadmissible.</p> <p>When an issue, its subject-matter, and the facts which condition its decision are simple and open to the common understanding so that no special skill or experience is requisite to form a correct judgment upon it, the opinions of witnesses regarding it are not admissible.</p> <p>4. Negligence — True Test op Doubtful Act Cake Persons op Ordinary Peudence use under Same Circumstances.</p> <p>An act or omission may be in itself clearly negligent or clearly free of negligence. 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 Cent. Dig. vol. 37, Negligence, §§• 1-7.]</p> <p>5. Same — Evidence op Ordinary Practice op 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>(Syllabus by the Court.)</p>

Albert Walker sued Fairbanks, Morse & Co., a corporation, for damages for personal injuries sustained in its service. The negligence charged was that defendant failed to provide a sufficient number of workmen to do the work in which plaintiff was engaged when injured. It was averred that the service reasonably required “the active work of at least four men or more.” The defense was. a general denial, contributory negligence, and assumption of the risk.

<p>1. Courts — Jurisdiction op Circuit Court of Appeals- — Jurisdictional Questions.</p> <p>Where a judgment of a Circuit Court is taken by writ of error to the Circuit Court of Appeals for review on the merits, that court may certify the question of the jurisdiction of the Circuit Court to the Supreme Court for decision, or it may itself determine such question.</p> <p>2. Same — Failure to Allege Jurisdictional Facts — Effect of Admissions on TRIAL.</p> <p>An admission made on the trial of an action in the Circuit Court of “the liability of defendant in this ease and everything as alleged except the measure of damages” does not cure the omission of the declaration to allege facts giving the court jurisdiction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 816.]</p> <p>3. Death — Action—Damages—Evidence.</p> <p>Upon the question of the damages sustained by the wife and children of a person killed by reason of his death, it was not error to permit the health, character, and earning capacity of the deceased to be shown for the period extending back from the time of his death to his young manhood ; and in such connection evidence showing his earnings during the time of a partnership formed for carrying on his trade as a skilled workman 15 years before his death was admissible.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 35, Death, § 88.)</p> <p>4. Witnesses — Cross-Examination—I/imitation to Subject of Direct Examination.</p> <p>The sustaining of an objection to a question asked on cross-examination of a witness, relating to a matter gone into only on such cross-examination, held not error.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 50, Witnesses, §§ 949-954.)</p> <p>5.Appeal and Error — Reversal—Remand to Try Question of Jurisdiction.</p> <p>Where a cause has been properly tried on the merits in a Circuit Court and a judgment rendered for plaintiff, on a reversal because of the fail-are of the declaration to allege the requisite diversity of citizenship between the parties to give the court jurisdiction, it is competent for the appellate court to remand with leave to permit an amendment, and to try the question of jurisdiction alone, if issue is taken thereon according to the practice with respect to pleas in abatement</p>

<p>Petition to Review Order of the District Court of the United States for the Southern District of New York, in Bankruptcy.</p> <p>On petition to review an order directing the sheriff of New York county to deliver to the receiver in bankruptcy merchandise seized by said sheriff by virtue of a writ of replevin in an action duly commenced in the City Court of New York wherein Simon and Lewis Brinn (the petitioners for review herein) were plaintiffs and the bankrupt was defendant.</p>

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

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

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

<p>Shipping — Demurrage—Liability op Charterer por Delay in Discharging.</p> <p>The owners of a schooner held, entitled to recover demurrage from a charterer for delay in discharging a cargo of lumber in New York under a charter providing for customary dispatch where the vessel was required by the charterer to discharge portions of the cargo at different docks, and the delay resulted from her detention at the first for a longer time than was anticipated through no fault of the vessel, which threw her behind in reaching the others, and in consequence the berths reserved for her there were occupied and she was obliged to wait, the charterer being bound by the custom of the port to furnish her berths when ready.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 576.</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall V. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p>

Petitions for Revision of Proceedings of the District Court of the United States for the Eastern District of New York, in Bankruptcy. This cause comes here upon petitions to review two orders of the bankruptcy court. The facts are sufficiently set forth in the opinion.

<p>Equity — Jubisdiction—Review ojt Action of Special Tbibunax — Awabd by Exposition Juby.</p> <p>Under the rules and regulations adopted and promulgated by the Louisiana Purchase Exposition Company for the government of exhibitors and the mailing of awards, which created a superior jury, with power to finally pass upon the recommendations of department and group juries and to make awards after notice to exhibitors affected and an opportunity to be heard, an award so made after a full hearing is conclusive, and cannot be reviewed by the courts, unless some ground of equitable jurisdiction, such as fraud, accident, or mistake, is shown; nor can the company be compelled to change its records or enjoined from publishing the true purport of its proceedings at suit of an exhibitor.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Eastern District of Washington.</p> <p>In a petition of the creditors of the firm of C. H. Holmes & Co., filed on August 18, 1906, praying that the firm and each member thereof be adjudged bankrupt, it was alleged that the said partnership and each of its members are and have been insolvent since May 1, 1906, that the said firm committed an act of bankruptcy in permitting one of its creditors to obtain a preference through legal proceedings against the firm, resulting, on July 12, 1906, in a judgment upon which execution was issued and levy made on the stock of goods of the said firm, which goods were advertised to be sold by the sheriff on August 21, 1906, and that neither the firm nor any of its members have done aught to vacate or discharge said preference. The appellant, C. H. Holmes, who was one of the members of said partnership, answered the petition, alleging that on March 27, 1906, for a good and valuable consideration he had sold and transferred to his copartner Park all his interest in the firm -and severed his connection with the same and its business. On these pleadings and the stipulation that at the time of its dissolution on March 27, 1906, the partnership was insolvent, the said partnership and each member thereof was adjudged bankrupt.</p>

<p>AI'PEAL A5D ERROR— EFFECT OF Al'PEAL — CORRROTION 03? .1 UDGailiNT— CLERICAL Errors.</p> <p>Where, a decree, enjoining defendant therein from diverting water from a river so that it should flow on complainant's land, by clerical error failed to describe the land, the court, after the term and after an appeal had been taken, had power to correct the mistake, and, having done so pursuant to a stipulation of the parties, had no power thereafter to vacate the corrected order.</p> <p>■ [Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2201.]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from a decision of the Circuit Court, affirming a decision of the Board of General Appraisers, G. A. 6,411 (T. D. 27,541), which sustained the action of the collector.</p>

<p>Insurance — Accident Policy — Construction—“Riding as Passenger in Regular Passenger Conveyance.”</p> <p>Where a beneficiary in an accident policy was a United States railway mail clerk, and was killed while riding in a mail car in the performance of his duties, he was not “actually riding as a passenger in or on "'any regular passenger conveyance provided by a common carrier,’’ within an accident policy insuring the person named as beneficiary under certain circumstances against loss by accident while actually riding as a passenger in or on any regular passenger conveyance.</p> <p>[Ed. Note. — Accident insurance — risks and causes of loss, see note to National Acc. Soe. of City of New York v. Dolph, 38 O. O. A. 3.]</p>

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

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

This cause comes here upon appeal from a decree dismissing the bill in an equity suit brought for infringement of two patents. One patent is No. 704,099, issued July 8, 1902 (application filed March 24, 1899) to complainants for “electric motor regulation.” The other is 721,229, issued February 24, 1903 (application filed September 20, 1901), to complainants for a “motor.” The opinion of the Circuit Court will be found in 156 Eed. 672.

<p>1. Patents — Invention—Evidence of Invention.</p> <p>When the court has to deal with a device which has achieved an undisputed success, and accomplishes a result never attained before, which is new, useful and in large demand, it is generally safe to conclude that the man who made it is an inventor.</p> <p>[Ed. Note. — f or cases in point, see Cent. Dig. vol. 38, Patents, § 89.)</p> <p>2. Same- — Infringement—Air Dock for Caissons.</p> <p>The Moran patent, No. 500,149, for an air lock for caissons in which work is carried on under an air pressure greater than that of the atmosphere, by means of which a bucket can be lowered into and hoisted from the working chamber by a continuous movement, whereas previously two hoists and two sets of tackle had been necessary, discloses Invention, and covers a device of great merit and utility. Claim 2. in specifying a valve “closing against” the fall rope, does not include by implication as a necessary part a stuffing box or packing on the vaive or a stuffing box on the rope. As so construed, claim 2 held infringed. Claim 3 held void for lack of invention, and, if conceded, validity not infringed.</p> <p>8. Same — Suit for Infringement — Pleading.</p> <p>That a bill for infringement of a patent alleged infringement in a certain district only, omitting the usual words “and elsewhere,” will not prevent the consideration of evidence of infringement outside of such district, where the answer denied infringement in such district or elsewhere, and the pleadings were treated as presenting such issue.</p> <p>4. Same — Invention—Air Locks eob Caissons.</p> <p>The Barr patent, No. 514,843, for an air lock for caissons, held void for lack of invention as to claims 1, 3, 4, 6, and 8.</p>

<p>Patents — Ineeingement—Sepabable Button.</p> <p>The Pringle patent, No. 720,016, for the stud member of a separable button or fastener, construed, and held not infringed.</p>

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

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

<p>1. Patents — Interfering Patents — Suits to Declare Void.</p> <p>To make out a case under Rev St. § 4918 (II. S. Comp. St. 1901, p. 8894), for adjudging a patent void for interference, there must be an actual conflict and not mere infringement, and in determining whether there is an interference the court cannot go beyond the claims as to which it is charged so as to consider the patent as a whole.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 88, Patents, §§ 146, 147.1</p> <p>2. Same — Infringement—Rolling Black Plate.</p> <p>The Donner patent, No. 620,541, for a method and mechanism for rolling black plate by means of a set or sets of rolls arranged in continuous train, to which the sheets are successively fed on a moving table or conveyor, the sheets being matched or made into packs in the course of the process, and reheated between the sets of rolls as required, while no one of the claims alone may express the full invention, as a whole was not anticipated, and discloses invention. Claim 5, for pinch rollers to hold the matched sheets in place and shape while being fed into the rolls, is Void for anticipation, but claim 4, covering mechanism for matching the sheets without interrupting the continuity of the operation, discloses novelty and invention. Such claim also held infringed.</p>

<p>Post Office — Fraud Obdees — Suit to Enjoin Enfoeoement — Sufficiency of Bill.</p> <p>A bill in equity cannot be maintained in a federal court to enjoin tlie enforcement of a fraud order made by tbe Postmaster General unless it makes a clear prima facie case that the facts adduced before him could not possibly support such order, or that complainant’s legal or constitutional rights have been violated, and such a bill is insufficient where it shows a hearing upon due notice on charges of fraud clearly within the statute, but does not show what proofs were adduced.</p> <p>[Ed. Note. — Nonmailable matter, see note to Timmons v. United States,. 30 C. C. A. 86.]</p>

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

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The following is the opinion of the board:</p> <p>SOMERVILLE, General Appraiser. These protests cover the importation of cherries in spirits, assessed for duly at the rate provided for fruit in spirits in paragraph 263 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651]). The importers ask that they might be given the benefit of the German reciprocity agreement, and entry be allowed at $1.75 per proof gallon. In our judgment there is no-merit in this claim. In re Rheinstrom, G. A. 4,368 (T. D. 20,761), affirmed in Rheinstrom v. United States (C. C.) 118 Fed. 303.</p> <p>The protests are overruled and the decision of the surveyor affirmed.</p>

<p>Injunction — 'Wkonoful Injunction — Extent op Liability.</p> <p>Whore, on the granting of a temporary restraining order by a federal court, a bond is required as authorized by Itev. St. § 718 (U. S. Comp. St. 1901, p. 580), the amount of such bond is the limit of complainant’s liability for damages on the dissolution of such order.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, § 401.]</p>

<p>On Application for Review of Decisions by the Board of United States General Appraisers.</p> <p>The two decisions below, which are reported as G. A. 6,394 (T. D. 27,457) and Abstract 12,233 (T. D. 27,493), affirmed the assessment of duty by the collector of customs at the port of Boston on imports of Charles H. Wood, which were found by the Board of General Appraisers to consist of cotton and jute threads mixed in about equal proportions.</p>

<p>In Bankruptcy. On exceptions to specifications of objection of bankrupt’s discharge.</p>

At Law. Motion by defendant for a new trial on minutes of the court, on grounds the verdict is contrary to the law and the evidence and unsupported thereby, and on exceptions to the charge and admission and rejection of evidence.

In Equity. On motion for preliminary injunction. Suit to restrain infringement of complainant’s trade-mark, “Porosknit,” for underwear, registered in the United States Patent Office January 2, 1906, numbered 48,473. Both complainant and defendant are corporations organized under the laws of the state of New York, and are citizens of said state.

<p>1. Aliens — Deportation of Immigrants — Conolusiveness of Decision of Immigration Officers.</p> <p>The determination of the immigration authorities on all questions of fact affecting the right of an alien to enter or remain in the United States is final, even if made on incompetent or inconclusive evidence, but, when the proceedings before them show indisputably that they are acting without jurisdiction, relief may be had by writ of habeas corpus'.</p> <p>2. Same — Right of Deportation — Conviction of Crime after Admission.</p> <p>While the immigration acts of March 3, 1891, c. 551, 26 Stat. 1084 (U. S. Comp. St. 1901, p. 1294), and of March 3, 1903, c. 1012, 32 Stat 1213, both excluded aliens who had been convicted of a felony or other crime or misdemeanor involving moral turpitude, and authorized the deportation of aliens who had obtained entry in violation of their provisions, within one year under the former and three years under the later act, there is no jurisdiction in the immigration officers under either to deport an alien on account of his conviction of a crime in the country from which he came after his admission into the United States.</p>

<p>Collision — Steam Vessels Crossing — Fog.</p> <p>A collision at night in a dense fog near Marrowstone Point between the large steel steamship Tremont starting on a voyage from Seattle to the Orient, and the steamship Ramona, on a crossing course, which struck: the Tremont on the starboard side, held due to the fault of both vessels, the Tremont in going at a rate of speed which under the existing conditions, her size, the dense fog, and the number of other vessels in the vicinity was excessive, and in not stopping and waiting fbr the Ramona, whose fog signals were heard', to pass before changing her course to enter Pt.<Townsend Harbor; the Ramona for not stopping and navigating carefully as required by article 16 of the Inland Rules (U. S. Comp. St. 1901, p. 2880) on hearing the fog signals of the Tremont forward of her-beam, instead of assuming, as her master did, that the Tremont was a meeting vessel on her port side, and keeping on at a speed of five or six knots per hour.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 10, Collision, §§ 170-175.</p> <p>Collision rules. ' Speed of steamers in fog, see notes to The Niagara, 28 C. C. A. 532.]</p>

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

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

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

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

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