Volume 161 — Federal Reporter

<p>1. Collision — Steamships in Fog — Mutual Faults.</p> <p>A finding of the trial court that a collision between the steamships Tromont and llamona off Marrowstone Point near Port Townsend was due to faults of both vessels affirmed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 40.</p> <p>Collision rules. Speed’ of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p> <p>2. Same — Damages Recoverable — Loss of Earnings.</p> <p>In finding the damages recoverable by a vessel injured in a collision as she was starting on a voyage an allowance cannot be made for loss of earnings in carrying the mails on the voyage, which were withdrawn on account of'the delay caused by her injuries, and sent by another vessel where there is no evidence from which it can be ascertained with reasonable certainty what profit she would have made from such carriage.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 282.]</p> <p>8. Same — Expenses During Delay por Repairs — Demurrage.</p> <p>The expenses of a vessel during the time she was delayed in repairing injuries caused by a collision, such as wages of the crew, provisions, and the like are properly allowable as damages resulting from the collision, but insurance premiums and general office and agents’ expenses during that time are not proper elements of such damages. The fixing of the per diem demurrage during such time on the basis, of the vessels average daily earnings during three consecutive voyages held not prejudicial to such vessel.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 283.]</p>

<p>1. Corporations — Suit by Stockholder — Sueficiency of Bill.</p> <p>A bill by a stockholder against the corporation and a railroad company alleged that a contract was entered into between the two companies by which the railroad company agreed to lend to the other a large sum of money, taking as security a pledge of a majority of the latter’s stock, with power to vote the same on default in repayment of any installment of the loan, and an agreement by which it was to name the president and general manager and three of the seven directors of the borrowing company, and which provided that the other directors should not be objectionable to it; that large sums were advanced by the railroad company which were in fact expended for its own benefit, but ostensibly for the benefit of the other company to which they were charged; that by reason of the latter’s control by the railroad company so secured it was wholly unable to extricate itself from its indebtedness, and would be absorbed by the railroad company, as was the fraudulent intention when the contract was made; and that the other stockholders would be deprived of their property. The bill prayed for a cancellation of the contract; that an accounting be had in respect to the advances made and the equities of the parties determined. Held, that such bill was for the benefit of the corporation of which complainant was a stockholder, and that under its allegations he was not required to tender repayment of the sums advanced by the railroad company.</p> <p>2. Same — Contracts—Ultra Vires — Contract.</p> <p>Section 12 of the New Jersey Corporation Act (P. L. 1896, p. 281), in force in 1896, provides that the business of every corporation shall be managed by its directors who shall be stockholders, and shall be chosen annually by the stockholders, and section 13 provides that every corporation shall have a president, secretary, and treasurer who shall be chosen either by the directors or stockholders as the by-laws direct. Held, that a contract made by a corporation organized under such act, by which it agreed to cause three of its seven directors to resign; that, their successors should be named by another corporation, and one of such members should be elected president and general manager; that the other directors should be not objectionable to such other corporation; and that such officers and directors should remain in office until a loan should be repaid to the other corporation which did not all become due for six years — was in violation of such provisions of the stafute and ultra vires and void, and was not validated by the fact that it contained a further provision by which the outside corporation acquired the right to vote a majority of the stock of the New Jersey corporation.</p> <p>3. Same — Surrender of Control to Another Corporation.</p> <p>The purpose of a grant of corporate power is that the corporation shall exercise its powers and carry on its business through its own officers and agents, and an agreement by which it surrenders the management and control of its affairs and business to another corporation organized for a wholly different purpose and carrying on a different business is ultra vires.</p> <p>4. Sam» — Suit by Stockholder fob Cancellation op Ultra Vires Contract —Estoppel.</p> <p>A contract made by a corporation which is ultra vires in the true sense is void, and neither the corporation nor a stockholder is estopped to attack its validity by the fact that the corporation or the other party has acted under it, nor by delay in bringing suit for its cancellation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1556-1564.]</p> <p>Ross, Circuit Judge, dissenting.</p>

<p>1. Taxation — Action to Recover Land Sold for Taxes — Limitation under Washington Statute.</p> <p>Code Wash. 1881, § 2939, limiting the time for bringing suits to recover lands sold for taxes to three years, was a part of Act Dec. 1, 1881, “to provide for the assessment and collection of county and territorial revenue,” and was repealed by Act March IS, 1893, p. 385, c. 124, § 137, which expressly repeals “all acts and parts of acts heretofore enacted by the Legislature of the territory or state of Washington providing for the assessment and collection of taxes in this state.”</p> <p>2. Same — Pleading—Admissions in Bill.</p> <p>In a bill to set aside a tax title, which sets out the proceedings for selling the property, and alleges their invalidity, a statement that a deed was issued, “whereby and by the terms of which said county treasurer granted and conveyed” the property to the grantee, cannot be construed as an admission that the title passed by such deed.</p> <p>3. Same — Right to Maintain.</p> <p>In a suit under Ballinger’s Ann. Codes & St. Wash. § 5521 (Pierce’s Code, § 1156), by one in possession of lands, to set aside a tax title thereon, plaintiff is not required to plead title in himself, nor to prove it even if alleged.</p> <p>4. Trespass — Title to Support Action — Tax Title — Constructive Possession by Purchaser.</p> <p>An invalid tax deed does not give the holder constructive possession of fhe property, so as to render another who enters upon and takes actual possession of it a trespasser, nor does the continued payment of taxes thereon by the holder of such deed.</p> <p>5. Quieting Title — Suit under Washington Statute — Possession to Support.</p> <p>Under Ballinger’s Ann. Codes & St. Wash. § 5521 (Pierce’s Code, § 1156), which authorizes any one in possession of real property to maintain a suit to determine an adverse claim thereto, it is immaterial that possession was taken for the purpose of instituting the suit, if it was not tortious or in violation of the prior possession of another.</p> <p>6. Courts — Federal Courts — Enforcement of Remedy Given by State Statute.</p> <p>A right given by a state statute to one in possession to maintain a suit to quiet title may he enforced in the federal courts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 972, 973.</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>Ross, Circuit Judge, dissenting.</p>

in the superior court of King county, Wash., against F. J. Feidler for the sum of $2,881.75 and costs, upon which judgment execution had been issued, and returned nulla bona. The suit was brought against F. J. Feidler and Edith M. Feidler, as administratrix of the estate of Ed. L. Feidler, deceased.

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

The plaintiff in error was plaintiff in the court below ill an action against the defendant in error to recover damages alleged to have been sustained by the plaintiff by reason of the defendant having constructed a dam across Snake river in Idaho, so as to back the water of the river up stream to and beyond plaintiff’s premises, to the injury and damage of his water right in said stream. Plaintiffs complaint contains three counts.

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

<p>1. Death — Statutory Right oe Action for Wrongful Death — Enforcement in Federal Courts.</p> <p>A right of action for wrongful death, accrued under a statute of one state, may be enforced in a federal court in another having jurisdiction of the parties, at least where such statute is not contrary to the public policy of the state in which the action is brought, without regard to any special rule or statute of such state either authorizing or inhibiting actions in th.e local courts on causes arising elsewhere.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, § 50.1</p> <p>2. Executors and Administrators — Jurisdiction to Appoint — Domicile of Decedent.</p> <p>A probate court, in appointing an administrator, is presumed to have been acting within its jurisdiction; and such presumption is not overcome by the fact that the decedent, shown to have resided in the state and county where the appointment was made for several years, was at the time of his death engaged on construction work on a railroad in another state, where he boarded and lodged during such work, or that an administrator was there appointed after his death.</p> <p>3. Master and Servant — Injury to Servant — Proof of Negligence — Effect of Kansas Employer’s Liability Act.</p> <p>Under the Kansas employer’s liability act (Gen. St. Kan. 1889, § 1251), which as construed by the Supreme Court of the state relieves railroad employes, more or less exposed by their employment to the hazards of railroading, from the common-law rule of assumed risk from negligence of fellow servants, such an employs, injured or killed in a collision between trains while being carried by the company to or from his place of work as required under his contract of employment, stands in the same relation to the company as a passenger, and the happening of the collision is prima facie evidence of the company’s negligence, and casts upon it the burden of proof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Sei> vant, §§ 144-152, 894-906.]</p> <p>4. Death — Condition Precedent to Action — Notice of Claim.</p> <p>The amendment of the Kansas employer's liability act, adopted in 1903. whiclj provides that notice in writing of an injuiw sustained, “stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within 90 days after the occurrence of the accident,” does not require that such notice should have been given by an administrator, suing for an injury which caused the death of his intestate, as a condition precedent to such action.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 15, Death, § 13.]</p>

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

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

<p>1. Courts — 1Trial to District Court Without a Jury — Review.</p> <p>Where a cause in a District Court, which is triable by jury under Rev. St. § 566 (U. S. Comp. St. 1901, p. 461), is by consent of the parties tried to the court without a jury, no question of fact or law decided upon or in connection with the trial is subject to re-examination in an appellate court.</p> <p>2. Same — Rev. St. §§ 649, 700, Have No Application to the Drs'inrur Courts.</p> <p>Rev. St. §§ 649, 700 (U. S. Comp. St. 1901, pp. 525, 570), which provide for waiving a jury and for the review of judgments rendered in causes where there is such a waiver, relate exclusively to trials in the Circuit Courts, and there are no similar provisions in respect of trials in the District Courts.</p> <p>3. Writ oe Error — Case Submitted Upon Agreed Statement — Review.</p> <p>Where, in a cause-otherwise triable by jury, the parties agree upon a statement of the ultimate facts, and not the evidence of them, and the case is then submitted to the court without a jury for its decision of the questions of law arising upon the facts so stated, the judgment may be reviewed upon a writ oí error; and this, because there the fads are not determined upon a trial by the court, but by the agreed statement, which is spread at large upon the record, as a part of it, as would be a special verdict.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3365.]</p> <p>4. Trial — Trial to Court — Character op Finding — Cannot be Both General and Special.</p> <p>When the trial is to the court, under Rev. St. § 649 (U. S. Comp. SI-1901, p. 525), the finding may he either general or special, but not both, and, where a general finding is made and judgment is rendered thereon, it cannot be regarded as superseded l>y a supposed special finding, which was not entered of record, is only found in the bill of exceptions, and does not purport to qualify or take the place of the general finding.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 929.]</p> <p>(Syllabus by the Court.)</p>

<p>Counterfeiting- — ..Having in Possession Paper Adapted to the Making of Government Securities — Statute Construed.</p> <p>The provision of Rev. St § 5430 (U. S. Comp. gt. 1901, p. 3671), making it a criminal offense for any person to have or retain in his control or possession “after a distinctive paper has been adopted by the Secretary of the Treasury for the obligations and other securities of the United States any similar paper adapted to the making of any such obligation or other security, except under the authority of the Secretary of the Treasury or some other proper officer of the United States,” includes the having in possession without authority of the distinctive paper itself and of similar paper adapted to the making of government obligations and securities ; and it is not sufficient to warrant a conviction thereunder to prove that defendant has in possession paper which might be used to make counterfeit obligations or securities.</p>

<p>In Error to the Circuit Court of the United States for the Eastern; District of Pennsylvania.</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 opinion following the parties are designated as in the court below.

<p>1. Trade-Names — Use oe Name — Fraud.</p> <p>While every man is entitled to use his own name in connection with his business, equity will not permit its use in such a manner as to perpetrate a fraud.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 84.]</p> <p>2. Same — Injunction—Scope oe Reliee — Explanatory Description.</p> <p>Complainant’s president, having built up a business in the manufacture of artificial legs under his own name, which were widely known as “Rowley” legs, transferred his business and good will to complainant, after which defendant, whose name was also Rowley, embarked in the same business, and advertised himself as manufacturing “Rowley” artificial legs. Held, that an injunction restraining defendant from any use of the name “Rowley” in the manufacture of artificial limbs was too broad, and should have been limited to the use of the name without some explanation which would prevent deception.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 84.]</p>

<p>1. Colmston — Steamer and Pilot Boat — Rules Governing Navigation.</p> <p>A steamer and a pilot lioat wliich have agreed to come to a standstill, so that the pilot boat's yawl may bring a pilot to the steamer, are not navigating on independent courses, and the statute creates no presumption that one is the privileged and one is the burdened vessel, and defines no course of navigation to be followed by either. It is a ease of special circumstances in which the vessels are co-operating in an agreed ma/lieuver, and each is bound to act prudently toward the agreed end.</p> <p>2. Same — Negligent Navigation — Mutual Fault.</p> <p>The sinking of a schooner pilot boat at sea in the night by being rim down by a steamer on board which she had agreed by signal to put a pilot held due to the fault of both vessels, neither of which was properly attentive to the piovements of the other. fEd. Note. — For eases in point, see Cent. Dig. vol. 10, Collision, § 52.]</p>

<p>1. Contracts — Default in Completion oe Work — Provision fob Dtquidated Damages.</p> <p>A provision in a contract for making alterations in a ship for liquidated damages for failure of the contractor to complete- the work by Ibe time fixed is not waived nor modified by a further agreement for changes in the specifications or extra work not necessarily requiring additional time, and when none was at the time asked or provided for.</p> <p>2. Same — Contract foe Alteration of Vessel — Effect of Owner’s Delay in Furnishing Machinery.</p> <p>Under a contract for making alterations in a vessel containing a provision for the payment by the contractor of liquidated damages for each day’s delay in completion of the work beyond the time fixed, and wbicli required the owner to furnish certain machinery to be installed, where it was furnished so late that the contractor could not have completed the work in time, the owner cannot insist on a strict enforcement of the contract by claiming that its own default made no difference, but the contract time for completion must be treated as extended for a sufficient length of time to permit the installment of the machinery after it was furnished, even though the contractor could not have installed it before if it bad been delivered in time, and damages can be recovered only for delay beyond such extended time.</p>

<p>Collision — Tugs with Tows Meeting — Mutual Faults.</p> <p>The tug Beard, passing eastward through the channel between Shooter’s Island and Staten Island with a dredge In tow on a hawser, and the tug Winnie, passing westward with two canal boats on her port and one on her starboard side, both field in fault Cor a collision between their tows; the Beard for failing to keep near the right-hand side of the channel, which is 600 feet wide, and the Winnie for inattention to a meeting schooner and for failure to give the bend signal required by rule 5 of the inland navigation rules (30 Stat. 90, c. 5 [U. S. Comp. St. 1901, p. 2882]).</p> <p>[Ed. Note.- — For eases in point, see Cent. Dig. vol. 10, Collision, §§ 40, 200-202.</p> <p>Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.]</p>

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

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

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

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

<p>1. Patents — Infringement—Workman's Time Recorder.</p> <p>The Dey patent, No. 321,102, for a workman’s time recorder, is for an improvement only, and entiiled only to a narrow construction; as so construed held not infringed.</p> <p>2. Same — Construction of Claims.</p> <p>When a claim of a patent is explicit, the courts cannot alter or enlarge it.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 38, Patents, § 241.]</p>

In Equity. Suit to restrain alleged infringement of United-States letters patent No. 759,928, dated May 17, 1904, application filed February 27, 1903, for circular-knitting machines, and for an accounting.

<p>3. Patents — Suit in Equity to Obtain Patent — Presumption from: Refusal.</p> <p>In a suit under Rev. St. § 4915 (U. S. Comp. St. 1903, p. 3392), to obtain tbe issuance of a patent denied by tbe Patent Office and tbe Court of Appeals of tlie District of Columbia after a hearing in interference between the same parties, tbe decisions of such tribunals adjudging priority of invention to the defendant, are presumptively correct only, and that presumption is destroyed by proof that they were based on false and perjured: evidence.</p> <p>2. Same — Persons Entitled to Patent — Priority of Invention.</p> <p>Under our patent system, he who first arrives at a complete conception of an invention is entitled to a patent therefor, unless the interest of tlie public is compromised by his lack of diligence in demonstrating that his invention is capable of useful operation. As between two inventors of the same thing, the one who first reduces the discovery to practical operation is deemed prima facie the true inventor without regard to the date of his conception, but the earlier inventor may overcome such presumption by satisfactory evidence that he used due diligence to perfect and utilize-the invention, and actual reduction to practice is preferable to that which-is constructive merely.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 113-123.</p> <p>Priority and continuance of public use of inventiou as affecting patent-ability. gee note to Eastman v. Mayor, etc., of City of New York, 69 C. C. A. 646.]</p> <p>3. Same — Reduction to Piiacttce..</p> <p>When the inventor who is first to conceive is also the first to reduce to practice within the statutory period, he is entitled to priority^ although a junior inventor may anticipate him by an earlier application for a patent, and may have secured such patent.</p> <p>[Ed. Note.- — Por cases in point, see Cent. Dig. vol. 38, Patents, §§ 1J3-123.]</p> <p>4. Same.</p> <p>In reducing an invention to practice, it is not necessary to prolong the test until its commercial value has been established, but, if it accomplishes the end desired, it is a perfected invention, although it may prove of little or no commercial value.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 38, Patents, §§ 113-323.]</p> <p>•ó. Same — Pauson Entitled to Patent — Rail Anchoe.</p> <p>Priority of invention of the device covered by the Laas and Sponenberg patent, No. 757,754, for a rail anchor or anti-creeper, designed to prevent the longitudinal movement of the rails of a railroad track, adjudged in favor of defendant John M. Scott, on evidence showing that he was not only tho first to conceive the invention, but also the first to reduce it to practice.</p>

<p>1. Patents — Suit por Infringement — Estoppel.</p> <p>The salo by a partner to his copartner of his interest in the firm, without warranty, does not estop him, on subsequently acquiring a patent covering articles of the kind manufactured by the firm, to maintain a suit against his former partner for infringement not committed during the partnership term.</p> <p>2. Same — Infringement—Electric Flash Signs.</p> <p>The Sinclair & Goltz patent, No. 566,874, for an electric distribution machine for operating electric flash signs, discloses invention and is valid, although narrow in scope; also held infringed.</p> <p>3. Same.</p> <p>The Dull patent, No. 780,641, for an automatic electric switch, held not infringed.</p>

<p>In Equity. Suit for infringement of letters patent No. 774,490 for a metallic ring packing, granted to Jedediah C. Paine November 8, 1904. On final hearing.</p>

<p>1. Municipal Corporations — Contracts—Water Supply — Power of City.</p> <p>Cities in Georgia, under the “general welfare” clause in tlieir charters. hare power to contract for water supply for their inhabitants and for fire protection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Municipal Corporations, § 720.]</p> <p>2. Samf — Creation of Debt.</p> <p>Whero a city having power to contract for water supply granted a franchise to a water company to use its streets, and made a contract for a supply of water for a term of years, obligating itself to pay the water company a certain sum annually for the use of water for fire purposes, such contract did not create a debt in violation of the state Constitution.</p> <p>3. Contracts — Construction—What Law Governs.</p> <p>A contract will be construed according to the law of the state as interpreted by its courts at the time the contract was made, and not in accordance with subsequent contrary decisions.</p> <p>4. Municipal Corporations ■-Contract for Water Supply — Exclusive Franchise — 'Violation—Competition by a City.</p> <p>Where a city had power to contract with a water company for water supply for a term of years, it was no objection to such contract that it provided that the water company should have an exclusive franchise, which provision precluded the city from entering into competition with the waterworks company by the erection of works of its own.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 36, Municipal Corporations, § 757.] 1</p> <p>5. Waters and Water Courses — Public Water Supply — Contract—Performance — Evidence.</p> <p>Evidence held to sustain the findings of a master that a water company • had -failed to comply with a contract with the city to furnish its inhabitants with sufficient and wholesome water, etc.</p> <p>6. Same — Forfeiture—Injunction.</p> <p>A city granted a water company an exclusive franchise to use its streets to furnish water to the city and its inhabitants for a term of years. The service being unsatisfactory, steps were taken by the city to construct and operate an opposition plant, when the bondholders of the original corporation, which was in the hands of a receiver, sued to restrain the city’s operation, whereupon the city filed a cross-bill for a decree annulling the contract and restraining complainants from setting up any right or interest thereunder. Sold, that the city, not being entitled to enter into competition with the water company under its exclusive franchise, was only entitled to a denial of the injunction prayed by complainants in order to provide the city with adequate water facilities on electing to purchase so much of the existing system as was available for use by the city at its fair value.</p>

<p>1. Post Office — Maid Matter — Government as Baidee.</p> <p>The government in the operation of the post office department is in law a bailee of the mail matter intrusted fo it for transmission.</p> <p>2. Samf — Action on Bond.</p> <p>Where mail matter is stolen by government clerks, the government’s moral obligation to pay over to the bailors the amount recovered on the bond of ihe clerks in default is sufficient to enable the government to maintain an action on the bond, though the government Is under no legal obligation to the senders or addressees of ordinary unregistered mail lost or stolen in iransit.</p> <p>3. Triad — Prayer for Peremptory Instruction — Evidence.</p> <p>On a prayer for a peremptory instruction in a federal court, the question is not whether there is literally no evidence, but whether there is any evidence, on which a jury can properly proceed to find a verdict for the party producing it, on whom the burden of proof is imposed, and whether a verdict on the evidence submitted by plaintiff would be clearly wrong in the judgment of the great majority of ordinarily reasonable and fair men.</p> <p>4. Same — Direction of Verdict.</p> <p>Where tlie evidence given at the trial with all legal inferences that the jury could justifiably draw therefrom is insufficient to support a verdict for plaintiff so that such verdict, if returned, must be sot aside, the court is not bound to submit the case to tbe jury but may direct a verdict for defendant.</p> <p>5. Evidence — Weight of Evidence — Conflicting Theories.</p> <p>When plaintiff produces evidence that is consistent with a hypothesis that the defendant is not liable and also with one that he is, the evidence tends to establish neither hypothesis.</p> <p>6. Post Office — Railway Postal Clerks — Bonds—Actions.</p> <p>Evidence of the guilt of a postal clerk of stealing certain letters from the mails held insufficient to establish a breach of his fidelity bond.</p>

<p>1, Coubts — Federal Courts — Injunction—“Courts of a State.”</p> <p>The South Carolina Dispensary Commission created by Sess. Laws 1907, p. 835, No. 402, for the purpose of winding up the South Carolina State Dispensary, disposing of its property, and paying its debts, is not a “court of a state” within Rev. St. § 720 (U. S. Comp. St. 1901, p. 5811, providing that an injunction shall not be granted by any court of the United States to stay proceedings in any “court of a state” except in cases where such Injunction may be authorized by any law relating to proceedings in bankruptcy.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, vol. 2, pp. 1689-1690.]</p> <p>2. States -Off-Iceks — -Commission—“Officers of the State.”</p> <p>The members of the South Carolina Dispensary Commission created by Sess. Laws 1907, p. 835, No. 402, with power to wind up the South Carolina Stale Dispensary, are not “officers of ihe state” within ihe ordinary acceptation of the term, and, if officers at all, are officers appoinied solely for the performance of specific duties.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, vol. 7, pp. 6635 6638; vol. 8, p. 7804.]</p> <p>3. Intoxicating Liquors — Regulation—Departments—Dispensary Funds.</p> <p>All dispensary funds collected by and deposited to the credit of the Stale Dispensary Commission in ihe course of the winding up of the affairs of (he State Dispensary under Sess. Laws 1907, p. 835, No. 102, requiring payment of the State Dispensary indebtedness from such funds, and the remaining surplus, if any, into the State Treasury, constitutes a trust fund for the payment of the claims of dispensary creditors.</p> <p>4. Courts — Action Against Officers --Achton Against State — “Suit Against the State.”</p> <p>A suit to compel the Stale Dispensary Commission appointed to wind up the affairs of the State Dispensary under Soss. Laws 1907, p. 835, No. 402, to pay a dispensary creditor from the trust funds held by the Commission for the liquidation of dispensary indebtedness, was not a suit against the state within Const. TJ. S. Amend. 11, providing that the judicial power of the United Slates shall not extend to any suit at law or equity commenced or prosecuted against one of the United States by citizens of another state.</p> <p>[Ed. Note. — Federal jurisdiction of suits against state, see note to Tindall v. Wesley. 13 C. C. A. 165.</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 6778; vol. 8, p. 7809-1</p> <p>5. Same — State as Party.</p> <p>The state of South Carolina was not an indispensable party to a suit by a state dispensary creditor to compel the South Carolina Dispensary Commission to pay complainant’s claim from trust funds in the hands of such Commission.</p> <p>6. Equity — Matters of Discretion — Abuse.</p> <p>A court of equity has power to prevent an abuse of discretion by a state hoard, and require that the board’s power be exercised according to law and in such a maimer as not to unjustly injure property rights.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 89-92.]</p> <p>7. Intoxicating Liquors — Regulations—Dispensary Commission--Mandatory Duties.</p> <p>Under Sess. Laws 1907, p. 833, No. 402, creating the South Carolina Dispensary Commission, and directing it to pay all just liabilities of the State Dispensary, the Commission had no discretion as to the allowance of claims, its duty to allow and pay all just claims being mandatory.</p> <p>8. Courts — Acts of State — Sovereignty.</p> <p>The decision of the South Carolina Supreme Court that the act authorizing the establishment of the State Dispensary and the purchase and sale of whisky by the state was constitutional did not constitute a decision that (lie slate in so acting ivas performing governmental functions, and therefore could not be sued by creditors for the price of goods sold to such dispensary.</p>

<p>Courts — Federal Courts — Following State Decisions.</p> <p>A federal court in a suit before it involving rights of the complainants under a state statute is not bound to adopt a construction placed upon such statute by the Supreme Court of the state after complainants’ rights had accrued, and subsequent to their determination by the federal court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 976, 977.</p> <p>Conclusiveness of judgment between federal and state courts, see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union Planters’ Bank of Memphis v. City of Memphis, 49 C. C. A. 468.]</p>

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

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

At Law. Action upon an insurance policy insuring the steamship Tacoma against' war risks only, the steamship having been captured by the Japanese and condemned as a prize during the recent war between Japan and Russia. Tried before the court, a jury having been waived. Findings and judgment in favor of plaintiff.

<p>Habeas Corpus.</p> <p>The petitioner, a Japanese, shows that he is detained in custody by J. H. Barbour, inspector in charge of the immigration service at Portland, Or., by virtue of a certain telegram from the Secretary of the Department of Commerce and Babor, and a letter from the Commissioner General of the Bureau of Immigration and Naturalization of the United States; the detention being for the purpose of deporting petitioner to the Empire of Japan. Upon an order to show canse why a writ of habeas corpus should not issue as prayed, the inspector in charge, excepting to the petition for insufficiency, was permitted, by leave of court, to return and show orally why he detains petitioner in custody. From the showing, it is made to appear that on February 3. 1908, the inspector received from the Acting-Secretary of Commerce and Babor a telegram, as follows: “Arrest Nobusaburo Hamaguchi, and bring before yourself for hearing; forwarding record of the proceedings to the Department. Entered the United States without inspection. Expenses execution, conveyance Portland, and detention authorized.” A hearing was had on the following day, which is exhibited by the inspector’s report to the Acting Secretary, as follows: “In re Nobusaburo I-Iamagnchi, native of Japan, aged 18 years, male, arrested on warrant of the Secretary of the Department of Commerce and Babor for having entered the United States without inspection. Examination conducted by Inspector in Charge J. I-I. Barbour. Counsel Walter H. Evans, appearing for alien.”</p> <p>Then, after setting out the testimony as given by petitioner before the inspector, the report concludes: “I transmit herewith record of hearing before me in the ease of Nobusaburo Hamaguchi, arrested upon the Department’s telegraphic warrant, dated the 3d instant, for entering the United States without inspection. It will be noted that in his sworn testimony the alien confesses to having entered the United States without inspection, crossing the international boundary near Blaine, Washington, during the night of October 5, 1997. In view of said admission, I would respectfully recommend that Nobusaburo namaguchi be deported to Japan,”</p> <p>Based upon this report, the Acting Secretary of Commerce and Babor transmitted, on February 9, 1908. to the inspector in charge, the following letter and directions: “Sir: The Department is in receipt of your letter of the 7th instant. No. 1349-1, 'with accompanying papers relating to the case of Nobusaburo Hamaguchi, charged with having entered the United States without inspection. As a result of the evidence presented it satisfactorily appears that the said alien is in this country in violation of law, and warrant of deportation has issued to the inspector in charge at Seattle, Washington, authorizing the return of the said person to Japan, at the expense of the immigrant fund. * * * You are instructed to detail an officer or employe to take charge of Nobusaburo Hamaguchi and convey him to Seattle, Washington, for deportation.” The inspector further returns that the petitioner is being held for deportation in pursuance of such directions from his superior officer.</p> <p>From the testimony of the petitioner, it appears that he came from Vancouver, B. 0., into the United States by way of Blaine, Wash., on October 5, 1907; that he was alone, and came in on foot; that he crossed the boundary at Blaine, in the nighttime, and was not inspected; that he had a passport to Vancouver, but not to the United States; that he obtained the.passport to the Hawaiian Islands, then “transferred to Vancouver”; and that he left the passport in a hoarding house in Vancouver. It is conceded that the occupation of the petitioner is that of laborer.</p>

<p>1. Collision — Steajieb and Dbedge in Tow — Deedge Navigating Without Running Eights.</p> <p>The government lighthouse tender Manzanita passing down the Columbia river from Portland after dark came into collision with the dredge Columbia and was sunk. From the Waterford light on the north side the Manzanita took a southwesterly course across toward the Westport light on the south shore, which was the usual course. The dredge which had been at work near Puget Island on the north side of the channel was taken in tow by a tug, made fast to her starboard quarter, and started up the river, as indicated by the evidence, gradually working across toward a point on the south shore some distance above the Westport light. She had 27 pontoons trailing behind extending about .1,000 feet and some carrying lights. She had no lookout and carried1 no running lights, and owing to her height those of the tug could not be seen from her port side. She had also lowered her cutter which extended under the water 30 feet in her front. The tow moved very slowly against the ebb tide which lasted until about the time of collision, its speed being not more than from 1 to 1(4 miles an hour. The Manzanita not being able to see the lights of the tug, and seeing no running lights on the dredge, supposed her to be stationary, and ns the evidence tended to show kept a course toward her intending to, pass on her starboard side. When within half a mile or loss the Manzanita gave a signal of two whistles and stopped. She received no answer, and started ahead at slow speed, starboarding to pass the dredge’s bow. but when so passing was rammed by her cutter apd sunk. Held that the tug and tow were in fault for navigating at night with no lookout nor running lights on the dredge, for not answering the Manzanita’s signal, and for keeping the dredge’s cutter lowered and projecting beyond her bow; that under the rule that where the fault of one vessel was gross and sufficient to account for the collision any doubts as to the management of the other should be resolved in her favor there was a lack of the clear and convincing evidence required to establish contributory fault on the part of the Manzanita. the long line of pontoons extending toward the north side of the river apparently justifying her in attempting to pass on the other side of the dredge which appeared from her lights to be stationary.</p> <p>[Ed. Note. — Signals of meeting vessels, see note to The New York, 30 O. C. A. 030.]</p> <p>2. Same — Narkow Channel Rule — Columbia Riveb.</p> <p>The Columbia river, in the vicinity of the Westport light, is a narrow channel, and subject to article 23 of the Inland Navigation Rules (Act June 7, 1897, e. 5, SO Stat. 101 [U. S. Comp. St. 1901, p. 2883]), requiring steam vessels when safe and practicable to keep to the side of the fairway which lies on their starboard side.</p> <p>3. Same — Damages Recoverable — Loss oe Seamen’s Effects.</p> <p>The United States is entitled to recover as collision damages against a vessel through whose fault a government vessel was sunk for loss of personal effects of its seamen, it appearing that it is its policy and practice to make such loss good to the seamen.</p> <p>[Ed. Nóte. — For cases in point, see Cent. Dig. vol. 10, Collision, § 291.]</p>

<p>Habeas Cprpus. Application for a writ in behalf of a person of Chinese parentage, claiming to be a citizen of the United States whose right to return after a visit to the Empire of China has been denied by officers of the Immigration Bureau and by the Secretary'of Commerce and Labor. Hearing on the merits. Case dismissed.</p>

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

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

<p>On Review of Decision of Referee.</p>

<p>Aliens — -Natuhaltzatiox—Son of Alien I’akex'ts — Declakatton of Intentj ox — Stati ites.</p> <p>Rev. St. § 2168 [U. S. Comp. St. 1901, p. 1332], provides that, when any alien who had complied with the first condition specified in section 21.05 died before be had been actually naturalized, his children should be considered as citizens and entitled to all rights and privileges as such on taking the oath prescribed by law; section 2172 [page 1334] provided that the children of persons who had been duly naturalized, or who previous to the passing of any law on that .subject by the. United States had become citizens of any one of the states, being under 21 at the time of the naturalization of their parents, if dwelling in the United States, should be considered as citizens; and Naturalization Act June 29, 1906, § 4. subd. 6, 34 Star. 596, c. 3592 [U. S. Comp. St. Supp. 1907, p. 422], declares that, when an alien who has declared his intention to become a citizen dies before he is actually naturalized, the widow and minor children of such alien may by complying with the other provisions of the act be naturalized without making any declaration of intention. Held, that where petitioner’s father declared his intention to become a citizen in 1895, when sections 2168, 2172, were in force, but died before he obtained his final papers, petitioner was entitled to naturalization on complying with the other provisions of the law, without making a declaration of intention.</p>

<p>Shippinc — Supplies Fuknisiik» to Yacht-Liability op Owner.</p> <p>Libelants furnished certain supplies to a yacht owned by respondent, preparatory to her going into commission under a charter. The supplies-were ordered hy the master, wlio was engaged by a broker, in whose hands respondent had placed the yacht for sale under an agreement between the broker and respondent that the latter should be at no expense in outfitting' the vessel. By the terms of the charter the charterer was to pay for the supplies used, but after trial he refused to accept the yacht because of her unseaworthy condition. Libelants liad no notice of the arrangement for a charter, but charged the supplies to the yacht and respondent, as owner. Held, that they were entitled to recover for the same from respondent.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 328-825.]</p>

<p>Admiralty — Costs—Docket Fee and Disbursements on Accepted Offer of Judgment.</p> <p>Where an offer of judgment made by a respondent under admiralty rule 36 of the Southern district of New York is accepted, and there is no hearing by the court upon the merits of the case, the libellant is not entitled to tax a docket fee, but is entitled to tax disbursements necessarily made in order to avail himself of the offer.</p>

<p>Petition for Naturalization.</p>

<p>Death — Action for Wrongful Death — Construction of Statute.</p> <p>The AVashington statute, giving a right of action to recover damages ior wrongful death for the benefit of the widow and children of the deceased, cannot be made the basis of an action where the widow and children are aliens not within the state nor inhabitants thereof.</p>

<p>1. Bankruptcy — Grounds por Refusing Discharge — Failure to Keep Books.</p> <p>When a bankrupt was an employs and not engaged in any business of his own, his failure to keep books showing his financial condition does not indicate a fraudulent intent which justifies the refusal of his discharge.</p> <p>2. Same — Making False Oath.</p> <p>The fact alone that a bankrupt failed to schedule an interest in the estate of his deceased father is not necessarily attributable to a fraudulent intent, so as to justify the refusal of a discharge on the ground of his making a false oath in verifying his schedules, when by the will of his father the property was left in trust; and the question whether or not the bankrupt had an interest therein which was transferable was involved, and he, moreover, claimed to have transferred all of his interest in the estate to his wife while solvent.</p> <p>3. Same.</p> <p>A bankrupt is not guilty of making a false oath because he omits from his sworn schedule securities which are worthless.</p>

<p>1. Master and Servant — Railroads—Death of Car Repairer — Contributory Negligence.</p> <p>Recovery for the death of a car repairer knocked down and killed by cars being shunted against a ear while he was testing part of its coupler is precluded on the ground of contributory negligence, where, when the accident occurred, he was violating a rule that, when cars were being shunted, work should not be done upon cars without first obtaining permission of the foreman of the yard to put up a flag to indicate tlie workman’s presence under or about the car; decedent having known that shunting was being done, and it not appearing that tlie rule had been previously violated.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 759-775.]</p> <p>2. Appeal — Review—Insufficient Bill of Exceptions.</p> <p>Whenever a litigant proposes to ask an appellate court to review the testimony and to determine whether there was any evidence to warrant a recovery or to support a particular defense, he should cause a statement to be inserted in the bill of exceptions showing affirmatively that it contains all the testimony that was heard or produced at the trial. In tlie absence of such a showing, an appellate court must presume, in aid of the verdict, that there was testimony to support it, and that it would so. appear if all the evidence had been incorporated into the record.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2916, 2917.]</p>

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

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York, in Bankruptcy. This cause comes here upon petition to review an order of the District Court, dated April 13, 1907, directing petitioners to pay over to the temporary receiver certain sums of money.

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

<p>1. Assignments — Personal Contract — Assignability.</p> <p>*A contract by wbicb defendant lumber company sold to K. & Co. its entire cut of white pine lumber for 1901, except so much as it should need ior its retail trade in a certain city, agreeing to retain only an average ■grade for the same, payment to be made within 10 days from date of invoice, and K. & Co. to take some lumber shorter than 12 feet and some longer than 16 feet, involved matters of personal confidence between defendant and K. & Co., .and therefore was not assignable, under the rule that a contract personal in its nature cannot be assigned by one party without the consent of the other.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4, Assignments, §§ 28-31.]</p> <p>2. Same — Consent to Assignment — Evidence.</p> <p>Evidence held insufficient to establish the ratification by the seller of an assignment of a contract for the sale of lumber.</p>

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

<p>Collision — Tows Going Adkift in Fog — Li a iut.it v of Tug.</p> <p>The owner of a tug which parted from Its tow of coal boats on the Ohio river at night in a fog held not chargeable wilh negligence which rendered it liable for injuries done by the boats by drifting against other craft moored in the river merely because the tug was sent out with the tow from Pittsburg, 12 miles distant, at night, at a time when there was no fog.</p>

<p>1. Bbokebs — Right to Commissions- — Saiis Made bt Agent.</p> <p>A broker employed to sell property at a fixed price is not deprived of his right to commissions because the purchaser was procured through the agency of another employed by him.</p> <p>2. Same — Revocation of Atjtiioeitv — Bad Faith of Pbincipai,.</p> <p>AVhere brokers employed to sell bonds procured a purchaser who was ready and willing to talco the bonds and disclosed his name to their principal, the latter cannot deprive them of their right to commissions by revoking their authority and itself making the sale to such purchaser.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 8, Brokers, § 69.]</p>

<p>Sales — Option to Buy — Acceptance.</p> <p>Under a contract giving an option to purchase timber, to expire on a certain date, and providing that, “if accepted, the abo've-named parties are to pay for said timber an additional amount of $2,400, in cash upon the making of a contract for the sale of said timber,” the purchasers were required to pay or tender tlie money before the option expired to entitle them to maintain an action to recover damages Cor tlie refusal of the seller to make the sale.</p>

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

<p>1. Post Office — Fraud Order — Postmaster General’s Deoision of Question of Eact Not Re viewable.</p> <p>In a doubtful case within his jurisdiction in the absence of fraud or a gross mistake of fact where there is some evidence which is satisfactory to the Postmaster General to sustain a fraud order issued under sections 3929 and 4041 of the Revised Statutes, as amended by Act Sept. 19, 1890, c. 908, §§ 2, 3, 26 Stat. 466, and by Act March 2, 1895, c. 191, § 4, 28 Stat. 964 (U. S. Comp. St. 1901, pp. 2686, 2688, 2749), his decision of a question of fact upon which the order is founded is conclusive, and it will not be reviewed by the. courts.</p> <p>2. Same — Court mat Review and Enjoin for Lack of Jurisdiction, Error of Law or Gross Mistake of Pact.</p> <p>A court of equity may enjoin the enforcement of a fraud order (a) where the case was not within the jurisdiction of the Postmaster General as where the beneficial effect of the scheme- was matter of opinion and not of fact; (b) where the issue of the order was induced by an error of law into which the Postmaster General fell; and (c) where its issue was caused by fraud or a gross mistake of fact so that the order was “palpably wrong."</p> <p>3. Same — Issue of Okdeb AVituout Evidence to Sustain it Eekob of Law.</p> <p>The issue by the Postmaster General of a fraud order upon facts admitted, conceded, or established beyond dispute which do not sustain it, or in che absence of any evidence to sustain it, is an error of law remediable in the courts.</p> <p>4. Equity — Admissions—Heaking on Bill and Answeb — Hearts© on Bill, Answeb and Replication.</p> <p>Where a case is set down for hearing on bill and answer, all the facts well pleaded in the answer are taken as true, whether responsive to the bill or not. But, where a ease is set down for hearing on bill, answer, and replication, only those averments of the answer which are responsive to the hill are taken as true. AÍ1 allegations in avoidance or justification are denied by the replication, and are taken as untrue.</p> <p>[Ed. Note.- — For case in point, see Cent. Dig. vol. 19, Equity, §§ 711, 712.]</p> <p>5. Same — Pleadings—Geneeal Denial Insufficient Bepobe, but Good Afteb. Replication.</p> <p>While a general denial in an answer of all the allegations of the bill not expressly admitted, or a negative pregnant, is insufficient on exceptions to the answer, all objections to the forms of denials are waived under equity rule No. 61 by the filing of a replication, and upon a hearing on bill, answer, and replication they do not constitute! admissions of any of the averments they were interposed to deny. Where the essential equities of a bill are challenged by a general denial upon such a hearing, the complainant is entitled to no relief.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 653-659, 712.]</p> <p>(Syllabus by Sanborn, Circuit Judge; Adams, Circuit Judge, and Philips, District Judge, concurring in result.)</p>

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

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

The United States applied to the District Court of the United States, in and for the district of Hawaii, for a writ of mandamus, commanding Charles H. Merriam, defendant in error, as registrar of conveyances of the territory of Hawaii, to receive for record and to record certain instruments.

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

<p>1. Railroads — Foreclosure Sale — Condition Requiring Purchaser to Pay Claims Against Receivers — Construction oe Decree.</p> <p>Where a court, in its decree confirming the sale of railroad property in a foreclosure suit, required the purchaser to assume and pay any indebtedness or liability incurred by the receivers which should be adjudged priority over the mortgage and should not be paid by the receivers from funds in their hands.' and reserved jurisdiction of the case for tlie enforcement of such requirement, a subsequent order, requiring ail claimants to present their claims before the master before a date fixed, for action thereon by the court, and barring any not so presented, does not necessarily include claims which were then in suit before the same court.</p> <p>2. Same — Receivers—Grounds for Appointment — Actions Pending Against Discharged Receivers.</p> <p>On a subsequent discharge of the receivers, such actions at law pending against them not having been disposed of, the court had power, under such reserved .jurisdiction, to appoint a special receiver against whom such actions might be revived, and to defend the same and retake possession of sufficient property to satisfy any judgments recovered, if not paid by the purchaser.</p> <p>Burns, District Judge, dissenting.</p>

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

<p>Appeal from 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 District of Minnesota.</p>

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

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

Appeal and Cross-Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. The appellant, Consolidated Railway Electric Lighting & Equipment Company, was the complainant below in a bill filed against the Adams & Westlake Company, as defendant, for alleged infringement of three claims of patent No. 740,982. Issued to the complainant, as assignee of Patrick Kennedy.

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

In Equity. Suit for infringement of letters patent No. 628,027, for art of making glass articles, granted to Michael J. Owens July 4, 1899. On motion for attachment for contempt for violating preliminary injunctions.

<p>Patents — Infringement—Squabe.</p> <p>The Nicholls patent, No. 672.455, for a square Laving columns of figures thereon to facilitate the cutting of rafters, in view of the prior art and the proceedings in the Patent Office, is limited to the peculiar arrangement of figures shown. As so con=A'--ued, 7:e?eZ not infringed.</p>

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

<p>1. Patents — Effect of Adjudication of Abandonment — Estoppel.</p> <p>Where, in a suit for infringement, certain generic claims of the patent were held void for abandonment, on the ground that the broad invention was made by the patentee some eigiit years before the application was filed, the defendant, which owned a patent granted on an application filed six years after the date so found, is concluded by such finding, and cannot incorporate the same claims in a reissue of its own patent and maintain a suit thereon against the former complainant.</p> <p>2. Same — Pmob Invention — Computing Machine.</p> <p>The Hiett reissue patent, No. 12,582 (original No. 580,863), for a computing machine, claims 55, 56, and 57, held void on the ground of prier invention.</p>

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

<p>Railroads — Use of Track by Pedestrians — Company’s Diability for Injuries.</p> <p>One who, without objecting, knowingly, for a long time, permits the public to use his premises for the purpose of traveling across the same upon a well-established path cannot, without giving notice, render the same unsafe to the injury of those who have used such highway and have no notice of the changed condition without responding in damages for resulting injury. And where for 15 years the public used a railroad track in a city as a public walk with the railroad company’s knowledge and permission and at its invitation, and plaintiff had so used it; and the track had been maintained in a safe condition for pedestrians; and on or about the day of plaintiff’s injury the company removed earth from between the cross-ties and removed some of them, leaving the others fastened to the rails, thereby creating a'dangerous excavation, which was left unguarded and unprotected in the nighttime and without lights, notice, or any warning to prevent those passing along from falling therein, and plaintiff in crossing the track, as he was accustomed to do in going and returning from his work, fell into the pitfall and was injured — it shows a cause of action in his favor against the company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1228-1230.]</p>

<p>Actions — Splitting Causes of Action — Contkact of Employment — Peeiod—Successful Actions.</p> <p>Plaintiff was employed by defendant for five years from May 1, 1904,. at a salary of $3,000 a year, payable monthly, and on December 1, 1004, was discharged. On December 28, 1904, plaintiff sued for breach of contract ; the writ alleging that the suit was for damages sustained “to the date of this writ,” and also up to the date of the trial of the action, without prejudice to plaintiff’s right to bring subsequent suit or suits for damages accruing after the trial. The declaration pleaded performance and an offer to perform, and a readiness to perform up to and including the time the declaration wag filed;‘and during the trial counsel for both parties agreed that, if plaintiff was entitled to recover, he should recover, up to the date of the trial, $3,085.61. Plaintiff recovered such judgment, which was satisfied, after which plaintiff continued to offer his services to defendant, which were refused, when plaintiff brought another suit on July 24, 1906, for the subsequent damages sustained. Held, that plaintiff’s cause of action was not so closely indivisible that the parties could not treat it as divisible, and that defendant, by consenting that tile first action should he treated only for the recovery of damages up to the time of the trial, was thereafter estopped to object that plaintiff was not entitled lo recover damages subsequently sustained.</p> <p>[Ed. Vote. — For cases in point, see Cent. Dig. yol. 1, Action, § 617.]</p>

<p>Husband and Wife — Partnership—Ltabietty of Wife as Partxeb.</p> <p>Defendant, a married woman, signed articles of partnership with another in a business previously established and conducted by such other and her husband. The interest in the business was in fact her husband's, and she invested no capital in it, and took no part in Its management. The firm was afterward dissolved, and she signed another agreement, as purchaser of the partner’s interest, to assume and pay the partnership debts. Held, that a creditor of the firm, who dealt with it as one in which her husband was the partner, with no knowledge that she had or professed to have any interest in it, could not recover from her after the bankruptcy of her husband, especially in view of the laws of the state, which gave her husband control of the community personal property, under which she, could not practically become a partner without investing her separate property in the business.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 20, Husband and Wife, § 373.]</p>

<p>Shipping-Doss op Freight — Delivery to Vessel — Lighterage.</p> <p>Where goods were delivered at a steamboat company’s clock for shipment, and it was thereafter found necessary to transport the goods to the steamer on a lighter, and they were damaged by (he partial sinking of the lighter before reaching the steamer, the steamer was liable for the loss.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 411.]</p>

<p>In Admiralty. Suit for salvage.</p> <p>The American steamship Sun, built in 1907, about 400 feet long and 3,501 tons net register, left Philadelphia in February, .1908, bound for Avonmouth, Eng., with a cargo of 2,274,000 gallons of petroleum. On February 18th, at 7 p. m., the vessel’s rudder stock broke completely in two. The fracture was something over two feet under water, and there was no ring or eye on the rudder nearer the water surface than about 16 feet. The rudder therefore hung, swinging from side to side by the action of the waves, useless for purposes of steering, and unusually difficult of control by temporary tiller or rope lashing. From the 18th to the 23d of February the crew of the Sun used every effort to secure and control the rudder, and in so doing expended with entire unsuccess a very large quantity of ropes, wires, and other gear. On the 23d the vessel, after having moved to the southward and eastward, had come back northward and westward to approximately the place at which she broke down, which was in tho path of vessels bound from New York or Philadelphia to English Channel and North Sea ports. She was then for the first time spoken by a passing vessel (the German tanker Phoebus), and declined that vessel’s proffered assistance. The Sun was new and staunch, and approximately one-third of her cargo had been jettisoned, partly for the purpose oí permitting a better examination of the broken rudder stock, and partly to increase the vessel’s freeboard as she rolled in the heavy sea. It was found that the practically rudderless vessel would steer by the wind, and, the direc- ■ tion of the wind being favorable for the manoeuvre, the captain endeavored to get within signaling distance of the Nova Scotia coast. His course was therefore directed generally speaking northward and westward, until on February 20th he was within about a hundred miles of Nova Scotia. Being then on the banks and in soundings, he encountered a “heavy falling barometer, a southeasterly wind, and all indications of a heavy storm from the southeastward approaching. ‘So I loft the Banks where I could not stay during a gale without being in immediate danger of losing the ship entirely on the coast there. I steamed to the southward again, which I could do in the teeth of the gale, being able to go up close to the wind.” The wind continuing in the main from the southeast, the Sun proceeded in a general southwesterly direction, until on March 1st she was again directly in the path of traffic between New York and English Channel ports, and her master concluded that further efforts to rig a jury rudder or to navigate without assistance were both useless and dangerous. During the night of March 1-2 a steamer was sighted bound west, and unsuccessful effort made to attract attention. At 11:30 a. m. on March 2d the British steamer Norwood, 290 feet long and 1,483 tons net register, bound from New York for Bordeaux, with a small cargo of general merchandise, was encountered. The Sun at that time was flying signals stating that she was disabled and wanted assistance.</p> <p>The Sun is much the larger and! more powerful vessel. Her engines were unimpaired, and after a conference between the masters of the two ships it was .decided that the Norwood should tow behind the Sun, and act as a species of rudder for the latter vessel. This arrangement was perfected (after one failure) by the evening of March 2d. The material used in effecting junction belonged to the Sun, except that certain hawsers of the Norwood’s were used to prevent chafing and'assist fastening on board the latter vessel; and all the.boat work necessary in passing lines was done by the Sun’s crew. -It the time this arrangement with the Norwood was completed the vessels were approximately 390 knots from Sandy 1-Iook. During all the time that the Sun had been practically rudderless, the weather had been heavy, and she had lived through at least three distinct gales. Her log shows she had begun to leak, but not dangerously. Considering the region where she broke down and through which she steamed after her disaster,, she met singularly few vessels, but by the 1st of March, when she concluded to ask for assistance, she was in a-comparatively crowded portion of the high seas, and was reasonably certain to be seen and assisted within a few days. After the Sun had received the Norwood’s assistance the weather continued unpleasant, but moderated somewhat, and without serious event the two steamers arrived off Sandy Hook'light vessel, and the Sun there anchored, at S:45 a. m. of March 6th. The Norwood! employed the tug Reliance, which was in the neighborhood, to assist in towing the Sun into Harbor. This effort failed, and finally the Nor-wood came up alone, communicated the condition of the Sun to the owners of the latter, and a sufficient fleet of tugs was by them sent down to bring the Sun to port. The Norwood recoaled and provisioned, and again departed on her voyage to Bordeaux, having lost an aggregate of about six days’ time, and having been in attendance on the Sun nearly four days. The value of the Sun in her injured condition and of her remaining cargo is agreed upon as upwards of $500,000. The Norwood is worth between $60,000 and $70,000.</p> <p>The scheme of assistance was obvious enough, but such devising as was necessary was that of the Sun’s master. The crew of the Norwood led their usual sea lives, with the exception of the master, who very properly supervised the steering of his own vessel, and was on duty continuously from the time he was made fast to the Sun until he got into port. The Norwood was not injured, nor were her engines subjected to the strain of towing, and her actual expenditures for recoaling, reprovisioning, and all other expenses incident to this service are certified to amount to no more than $072.38. The Sun was rescued from an undoubtedly perilous condition. She could not have lived indefinitely while helplessly rolling in winter storms on the North Atlantic. Her ability to keep off shore depended entirely on the direction of the wind, and it was Imperativo that she should receive assistance, though I do not think that there is any reason to suppose that she would not have continued to make as good weather of it for several days after the 2d of March as she had done for 13 days before.</p>

<p>In Bankruptcy. On petition for a stay of execution on a judgment of the state court. Granted.</p>

<p>1. Action — Nature—How Determined.</p> <p>The complaint in an’ action determines whether the action is at law or in equity; it being immaterial whether the complaining party is described as plaintiff or as complainant.</p> <p>(IM. Note. — For cases in point, see Cent Dig. vol. 1, Action, § 143.]</p> <p>2. Same.</p> <p>An action, wherein complainant alleges the execution of a conspiracy to break a contract made with him by one of the defendants, and claims money damages only, is .an aetion at law, and not a suit in equity.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 1, Action, §§ 124-143.]</p> <p>3. Conspiracy — Injury to Property Rights — Civil Liability.</p> <p>Though individuals or corporations may conspire with impunity if they do nothing to execute the conspiracy, if they conspire to do a wrong to the person or property or property rights of a third person, and execute the conspiracy to such person’s injury, they are liable jointly or severally.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 4, 14.]</p> <p>4. Same — Solvency of Defendants — Materiality.</p> <p>It is immaterial to one’s right to recover, in one action, damages for the execution of a conspiracy to break a contract made by one of the defendants, whether defendants are solvent.</p> <p>5. Same — Malice.</p> <p>The existence of malice on defendants’ part is not essential to their liabilily to complainant for executing a conspiracy to break a contract, made with complainant by one of the defendants.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 10, Conspiracy, § 3.]</p> <p>6. Same.</p> <p>That complainant in good faith entered upon performance of a contract with defendant company, expending large sums of money legitimately in obtaining customers for defendant’s product, it being agreed complainant should receive large commissions; that defendant organized codo Cendant company, the officers of the two being in the main identical; that both companies well knew of the contract; that the companies conspired to injure complainant and deprive it of the benefits of the contract and to prevent performance thereof by making a pretended sale of defendant’s properties and business to codefendant; that they conspired that codefendant should pretend to run the business, refusing to recognize complainant’s rights; that they further conspired to make codefendant a mere sales agent for defendant, giving to it the rights, etc., previously enjoyed by complainant; that the companies conspired to break complainant’s contract; that the conspiracy was executed; and that complainant was thereby damaged by'the loss of commissions, money expended in advertising, etc. — shows complainant’s right to recover against the companies.</p>

<p>1. “Navigable Waters” — What Constitutes.</p> <p>Though by the English common law “navigable waters” are tidal waters only, in the United States those waters are navigable in contemplation of law which are navigable in fact.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 5-16. •</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4675-4684; vol. 8, p. 7728.]</p> <p>2. Same — Shores and Beds oe Tidal Waters — Ownership.</p> <p>Under the English common law, the crown owns the shores and beds of all tidal waters, and in the United States the states through their sovereignty take like ownership, at least in the absence of any prior disposition made by Congress before their admission into the Union. In both countries the littoral owner may be deprived of access to navigable waters, and the opportunity to reach them may be cut off by the assertion of this sovereign right.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 239-252.]</p> <p>3. Same — Fresh Water Lakes and Streams.</p> <p>States may assert the same ownership to the beds and shores of navigable fresh water lakes and streams as they may properly assert to the-beds and shores of tidal waters.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Navigable Waters, §§ 239-252.] •</p> <p>4. Same — Washington Tidewater Lands, etc. — Ownership.</p> <p>Pursuant to an express assertion of ownership, by Const. Wash. art. 17, the state of Washington owns the beds and shores of all navigable-waters in the state up to and including the line of ordinary high tide in tidal waters, and up to and including the line of ordinary high water within the banks of navigable rivers and lakes.</p> <p>5. Same.</p> <p>Owners of land abutting upon inland navigable bodies -of fresh water-in AA^ashington, though holding by patents from the United States antedating the admission of the state, do not and never did own the land below ordinary high water, since the Oregon country, of which the state of AVashington is a part, came within the rule that the general government holds the title to such lands in trust for the future states to be created out of territory acquired by it, at least in the absence of prior disposition by Congress during the territorial condition.</p>

<p>1. Shipping — Contract as Prívate Carrier — 'Validity op Provisions — Exemption PROM LiABITUTY.</p> <p>Under a contract between a lighterage company and a manufacturer, by which the company agreed to transport property of the latter in New York Harbor and vicinity, and for such purposes furnished it tile full capacity of lighters or barges when such transportation was required, as between tlie parties the company was a private and not a public carrier, and a provision of the contract, by which in consideration of the making of a lower rate tlie shipper agreed to exempt the carrier from liability for loss or injury to cargoes from negligence, was not within section 1 of the Harter Act (Act Feb. 13, 1893, c. 305, 27 Stat. 445 [U. S. Comp. St. 1901, p. 29-16]), but is valid and enforceable.</p> <p>[Ed. Note. — Statutory exemptions of shipowners from liability, see notes to Nord Deutseher Lloyd v. Insurance Co. of North America, 49 C. C. A. 11; Ralli v. New York & T. S. S. Co., 83 C. C. A. 294.]</p> <p>2. Collision — Damages Recoverable — Release oe One oe Two Vessels in Fault.</p> <p>_ The steamers Maine and Manhattan were both held in fault for a collision between the Maine and the barge Collard in tow of the Manhattan by which a portion of the Collard’s cargo was lost. The entire cargo was owned by libelant, and was being transported by the claimant under a contract with it as a private carrier, which provided that libelant should have no claim upon the claimant or its equipment or boats which it might charter or control for any loss of cargo. The Collard was owned by the claimant, and the Manhattan was demised to it by charter. Helé that, it being a private carrier, the agreement for exemption from liability was valid, and the Manhattan being chartered by it as a towing vessel was within its terms and exempted; that libelant having contracted for such exemption was not entitled to recover more than half damages against the Maine, the joint tort-feasor rule not being applicable.</p>

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

<p>1. Statutes — Retroactive Effect— Repealing Act — Pending Actions — Saving Clause.</p> <p>The repeal oí a Statute fixing railroad rates by a new statute, which enacts substituted rates, and provides that penalties incurred for violation of the repealed law may still be enforced, does not abate pending suits to enjoin the enforcement of the old statute, and, supplemental bills may be filed therein to enjoin the enforcement of the new rates.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, § 374.]</p> <p>2. Injunction — Suit to Enjoin Enforcement of Statute Regulating Rates —Parties.</p> <p>Under the Constitution and statutes of Missouri relating to the Attorney General, and especially Laws 1907, p. 13, c. 1, § 61, which appropriates $20,000 per year to be drawn by the Attorney General and expended under his direction “in tbe prosecution or defense of suits heretofore brought or that may hereafter be brought by or against any railroad company wherein the validity of any act of the General Assembly may be involved,” the Attorney General is charged, with the duty of defending the validity of the state statutes regulating railroad rates, and both he and the members of the State Board of Railroad Commissioners are proper parties defendant to a suit to enjoin the enforcement of such statute.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction; §§ ■ 202-220.]</p> <p>3. Courts — Jurisdiction op Federar Courts — Suits Against State.</p> <p>A suit against the Attorney General and Board of Railroad Commissioners of a state to enjoin them from enforcing state statutes regulating railroad rates, on the ground that they are confiscatory and unconstitutional, is not one against the state of which a federal court is denied jurisdiction by the eleventh constitutional amendment.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 844%: vol. 44, States, §§ 191, 192.</p> <p>Federal jurisdiction of suits against state, see note to 13 C. C. A. 165.]</p>

<p>1. Banks and Banking — National Banks — Offense—Statutes—Construction.</p> <p>Rev. St § 5208 (U. S. Comp. St. 1901, p. 3407), declares that it shah be unlawful for any officer, agent, or clerk of any national bank to certify any check when the drawer has not on deposit with the bank an amount of money equal to the amount specified in the check; and Act Cong. .Tuly 12, 1882, c. 290, § 13, 22 Stat. 166 (U. S. Ctomp. St. 1901, p. 3497) declares that any officer, clerk, or agent of a national bank who shall certify checks before the amount thereof shall have been regularly entered to the credit of the drawer on the books of the bank shall be guilty of a misdemeanor. Held, that section 5208 does not create any criminal offense, but that such section should be read with section 13, and that the two create one offense, viz., the certification of a check when the drawer has not sufficient money to cover it, or before the amount shall have been regularly entered.</p> <p>2. Indictment — Different Offenses — Joinder.</p> <p>Where a statute makes either of two or more distinct acts connected with the same general offense and subject to the same measure and kind of punishment indictable as separate and distinct crimes when committed by different persons or at different times, they may, when committed by the same person at the same time, be coupled in one action as constituting one offense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 403.]</p> <p>8. Criminad Daw — Evidence—Judictat, Notice — Meaning of Words.</p> <p>Courts are hound- to take judicial notice of the meaning of the word “certify” as applied to bank checks.</p> <p>4. Banks and Banking — Deposits—Checks —“Certify.”</p> <p>The word “certify,” as applied to bank checks, indicates that certain words have been written or printed on a check, and that the check has passed from the custody of the bank into the hands of some other party, and that thereby the person certifying created an obligation of the bank.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, pp. 1033,1034.]</p> <p>5. Same — National Banks — Certification of Checks — Offenses—Indictment.</p> <p>A,n indictment against an officer of a national bank, alleging unlawful certification of checks, was not fatally defective for failure to set out totidem verbis tbe written certifications, under the rule that in an indictment in federal courts it is not necessary to allege the tenor of an instrument, unless it touches the gist of the crime.</p> <p>6. Indictment — Allegation of Written Instruments.</p> <p>The rule which requires a setting out ol* an entire instrument or its tenor in an indictment in the federal courts is limited mainly, if not wholly, to cases of forgery, counterfeiting, and sending threatening letters.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 283.]</p> <p>7. Banks and Banking — National Banks — Offenses—Certification of Checks.</p> <p>Where an indictment against a national bank officer charged him personally with illegally certifying certain cheeks, it was necessary for the government, in order to sustain such charge, to prove that the individuals who actually executed the certification indorsement were but the physical instruments of the defendant and acted in accordance with his orders.</p> <p>8. Same — “Willful Misapplication.”</p> <p>In a prosecution of a national bank officer for “willful misapplication” of tbe moneys, funds, and credits of the bank, the indictment properly alleged facts showing how the misapplication was made and the illegality thereof; the words “willful misapplication” having no settled technical meaning.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Banks and Banking, §§ 973.</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7482, 74S3.]</p> <p>9. Same-Overdrafts.</p> <p>An overdraft on a national bank may be legal or criminal, according to the intent of the person committing it, inferred from the surrounding circumstances shown by the evidence.</p> <p>10. Same — Indictment—Demurrer.</p> <p>It was no ground of objection, on demurrer to an indictment against a national bank officer for willful misapplication of the bank’s funds, that the jury might draw from all the testimony the inference that the transaction amounted to no more than a legal overdraft.</p> <p>11. Same — Willful Misapplication — Description.</p> <p>Where, in a prosecution against a national bank officer for willful misapplication of the moneys, funds, and credits of the bank, the indictment definitely charged the value in lawful money of the United States of the misapplied property, it was not defective for failure to specify the exact thing misapplied, whether moneys, funds, or credits.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 973.]</p>

<p>1. Banks and Banking — National Banks — Misapplication op Funds— Indictment.</p> <p>An indictment alleging that defendants, being officers of a national banking association, willfully and fraudulently, and with intent to injure and defraud the association for the use and advantage of M., misapplied certain money of the association, to wit, §126,000, and that M. made a certain cheek on the bank payable to II. for §126,000, and delivered the same to him, defendant M. knowing at the time that ho did not then have on deposit with the bank the amount specified therein, but that M. as vice president and C. as president caused the check to bo paid from moneys of the association, with intention on the part of M. to convert the amount to his own use, repayment not having in any way been secured and M. having no right or title thereto, stated an offense under Rev. St § 5209 (U. S. Comp. St 1901, p. 3497), declaring that every president director, cashier, etc., of any national banking association, who willfully misapplies any of the moneys, funds, or credits of the association, shall be guilty of a misdemeanor, and was not fatally defective for failure to charge that the overdraft payment was unauthorized, that it was an actual conversion of the amount paid, or that the money was in some way absolutely lost to the bank.</p> <p>2. Same — Criminal Misapplication.</p> <p>In order that there shall be a criminal misapplication of the moneys, funds, or credits of a national hanking association by its officers, in violation of Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), making such misapplication a crime, there must be a conversion of ihe moneys, funds, or credits of the association -by the accused, either for his own use or that of some person other than the injured bank.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig., yol. 6, Banks and Banking, § 964.]</p> <p>3. Same — Willeul Misapplication.</p> <p>In a prosecution against bank officers for misapifiication of the bank’s fnnds, an indictment alleging that defendants, being officers of the bank, willfully and fraudulently, with intention to defraud the association, did misapply certain moneys of the bank, etc., constituted a sufficient allegation of a criminal intent to defraud, which was the gravamen of the offense to be inferred 1'rom facts and surrounding circumstances.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Banks and Banking, § 973.]</p> <p>4. Same — Bank Officers — Authority—Conversion of Funds.</p> <p>Officers of a national bank possess no authority to produce or permit a conversion of the bank’s funds to the use of one of such officers; authority to commit a crime being an impossibility.</p> <p>5. Same — Conversion—Subsequf.nt Return of Money.</p> <p>Where one of the officers of a national bank willfully converted certain of the bank’s funds to his own use, in violation of Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), making such act a crime, it was no defense that the money was subsequently refunded; such fact being only evidence to negative the officers’ intent to defraud at the time of the alleged conveyance.</p> <p>6. Conspiracy — National Banks — Condition—False Statements.</p> <p>An indictment alleging the conspiracy to defraud the United States in the exercise of its governmental and fiscal functions, by deliberately giving false information regarding the financial condition of a national bank, the fraud resulting in lessening the power of the federal government by failure to maintain in efficient condition one portion of the national fiscal system, stated an offense against the United States; it being possible to have a conspiracy to defraud by merely deceiving a governmental officer, though neither the government nor the officer was deprived thereby of money or money value.</p> <p>7. Banks and Banking — National Bank Officers — Offenses—False Entries.</p> <p>Where an indictment against bank officers alleged a conspiracy to make false entries in the books of the bank, one of which was charged to consist in entering in “call loans account” a “fictitious” promissory note as though it were a bona fide note affected by certain stock as collateral, whereas in truth the bank unlawfully owned the stock and the note was created and entered as a genuine note merely to conceal the illegality of the original purchase of the stock and the continued holding thereof, was not defective, in that the entry was a true entry of a fraudulent transaction only.</p> <p>8. Same — Statutes—Construction—“Entry.”</p> <p>The word “entry,” as used in Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497). declaring that every officer, clerk, or agent of a national banking association who makes any false entries in any of the bank’s books with intent to injure or defraud the association shall be guilty of a misdemeanor, means “an item in an account.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2400-2401.]</p> <p>9. Words and Phrases — “Double Entry.”</p> <p>The phrase “double entry,” as used in bookkeeping, signifies two entries of the same transaction.</p> <p>10. Indictment and Information — Duplicity.</p> <p>Where counts in an indictment against national bank officers in violation of Rev. St. § 5209 (U. S. Comp. St. 1901. p. 3497), in alleging the transaction claimed to have been falsely entered, described two different entries or sets of words written down in different parts of the same book or report, each count revealing a false record by double entry, such counts were double, as it does not follow that, because the debit entry of a transaction is false, the credit entry of the same transaction was also false.</p> <p>11. Banks and Banking — National Banks — Reduction of Capital — Purchase of Bank’s Shares.</p> <p>The only method by which a national bank can reduce its stock being that prescribed in Rev. St. § 5143 (U. S. Comp. St. 1901, p. 3463), and the possibility of ownership of its own stock being recognized by section 5201 (page 3494), the unlawful ownership of its own shares by a national bank did not constitute a pro tanto reduction of its corporate stock, and hence was improperly omitted from the bank’s statements of assets.</p>

<p>On Demurrer to Bill of Complaint.</p>

<p>In Bankruptcy. On petition and answers.</p>

<p>Bankruptcy — Partnership—Proceedings by Partner — Objecting Partners —Individual Debts and Property — Schedules.</p> <p>General Bankruptcy Order 8 (32 G. C. A. xi) provides that any partner, who refuses to join in a petition to have the firm declared bankrupt, may resist tlie prayer of the petition as if filed by a creditor, and make all defenses which he is entitled to make by the provisions of the act; and in case an adjudication is made on the petition, such objecting partner shall be required to file schedule of debts and inventories of his property in such maimer as is required by the act in cases of debtors against whom adjudication of bankruptcy shall be made. Held, that where a firm and a petitioning partner are adjudged bankrupts against the protest of objecting partners, the latter may be properly required to file a schedule of their individual debts and ail inventory of tlieir individual property, though they themselves, having committed no act of bankruptcy, could not be adjudged bankrupts as individuals.</p>

<p>1. Courts — Federal Courts — Legal and Equitable Jurisdiction.</p> <p>Only legal rights can be enforced in an action at law in the federal courts, regardless of the rule of decision in the courts of the state; the distinction between actions at law and suits in equity in the federal courts being fundamental and jurisdictional.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. .13, Courts, § 913.]</p> <p>2. Same — Ejectment—Equitable Title.</p> <p>An assignee of a school land certificate, to whom no patent had been issued, could not maintain ejectment in the federal courts to recover the land from a subsequent purchaser from the state.</p> <p>LEd. Note. — For eases in point, see Cent. Dig. vol. 13, Courts, § 9131</p> <p>3. Public Lands — Lands of State — School Lands — Transfer—Rights op Purchaser.</p> <p>Under Gen. St. Kan. 1901, § 6347, as amended by Laws 1903, p. 723, c. 477, § 1, and Gen. St. 1905, §§ 6880, 6888, providing for the sale of school lands by the state, a purchaser prior to the issuance of the patent acquires only an equitable interest.</p>

<p>Garnishment — Persons Subject to Garnishment — Wife of Defendant.</p> <p>Under the law of Arkansas, a wife is subject to tbe common-law disabilities of coverture, except as they have been expressly removed by the married women’s statutes, which are strictly construed to preserve her common-law rights. A husband cannot obtain a valid judgment against bis wife, and for like reason an action cannot be maintained against her as garnishee by a creditor of her husband, under Kirby’s Dig. Ark. § 379, to recover a personal judgment against lier, or for the proceeds of property given her by her husband in fraud of his creditors, which proceeds she held at the time of garnishment, but subsequently relumed to him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Garnishment, § 189.</p> <p>Following state practice, see notes to O’Connell v. Reed, 5 C. C. A. 606; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 393.]</p>

<p>Action under Tucker Act March 3, 1887, c. 359, 24 Stat. 505 (U. S. Comp. St. 1901, p. 752). On demurrer to answer.</p>

At Law. This is a common-law action by the plaintiffs, as copartners, against the two companies above named, for damages growing out of the facts hereinafter stated. A jury was duly waived. Concerning the facts there is little dispute.

<p>1. ColJLTSION — CONffLICTING EVIDENCE —PROPER MANNING Off VESSEL.</p> <p>Whore there is a conflict of testimony as to whether one or the other of two vessels brought about a collision by negligent navigation, it is proper to consider the maimer in which each was maimed at ¡he time.</p> <p>2. Same — Tow and Anchored Drudge — Negligence oe Tug.</p> <p>A heavily laden schooner being towed down the Delaware river at night on a hawser 80 fathoms long came into collision with a dredge engaged in dredging the new channel, and anchored between that and the old channel. The dredge was properly lighted, indieaüng that vessels should pass to the eastward through thé old channel. There was a direct conflict of evidence as to whether the tug or tow was in fault; the tug claiming that she kepi a course directly toward the dredge until within a mile, and then sheered to the eastward, and the schooner, failing to follow, gave her three several signals with her whistle, each time taking a course moro to the eastward, until she was headed directly toward the New Jersey shore. The schooner claimed that, the tug was on a course to the westward of the dredge until the schooner was within 700 or 800 feet, when she sheered directly across the channel and signaled, and that the schooner at once starboarded her wheel, but was unable to turn in tiie short distance. Held that, taking into consideration that the schooner was fully maimed by experienced and competent seamen all of whom were fresh at the time, with a lookout, and that the navigation of the tug was, or at least had been up to immediately before the collision, in charge of an unlicensed dock hand, and that she had no lookout, the story of the schooner was the more probable, and, as it was corroborated to some extent by tbe watchman on ¡he dredge, the tug would be held solely in fault.</p>

This was an action at law', instituted by Gray against the insurance company, to recover on a matured certificate of membership for S'! ,000 originally (in 1883) issued to him by the Northwestern Mutual Relief Association of Wisconsin.

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

<p>1. Homestead — Contract by Husband Alone to Convey — Missouri Statute.</p> <p>An executory contract to convey a homestead, signed by the husband alone, is within Rev. St. Mo. 1890, § 3010 (Ann. St. 1000, p. 2034), which provides that every sale or alienation of a homestead by the husband shall be null and void, and such a contract can neither be enforced in equity nor be made the basis of an action for damages for nonperformance.</p> <p>[Ed. Note. — -For case's in point, see Cent. Dig. vol. 23, Homestead, §§ 191-202.1</p> <p>2. Specific Performance — Enforcing Partial Performance — Excess Over Homestead Limit.</p> <p>Tinder Rev. St. Mo. 1899, § 3010 (Ann. St. 1900, p. 2034), which makes any alienation of a homestead by the husband alone null and void, an executory contract by a husband to sell homestead property which exceeds in value Hie statutory limitation of $3,000 will not be specifically enforced by a court of equity as to the excess in value, which was not the contract made, nor will damages be awarded in lieu of performance as to such excess; both parties being chargeable with knowledge that the eonlract was void when It was signed.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 20-23. j</p>

<p>1. Contracts — Illegality—Defenses.</p> <p>Where plaintiff tendered certain railroad bonds for delivery under a contract of sale, and defendant refused to receive the bonds, on the ground that plaintiff had obtained them under a void contract with the railroad company, such contract being void in fact, plaintiff could not recover for defendant’s refusal to receive the bonds, plaintiff, in order to make a foundation for his suit, being forced to establish an -unlawful contract, which the courts would not enforce.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 11, Contracts, §§ 681, 682.]</p> <p>2. Sübbogation — Scope op Remedy — Lien.</p> <p>A railroad company having become indebted on certain notes, bonds to the amount of $60,000 were placed in the hands of C., as trustee, to secure the payment of the notesl Thereafter C. paid the indebtedness, took up the notes, and afterwards, on the foreclosure of the mortgage, received the pro rata of $19,000, leaving a balance of $12,000 still due. Held, that C. by paying the notes became subrogated to the rights of-the creditors against the bonds, on which he had a valid lien for the balance of the debt until payment; and hence the bonds, while subject to such lien, were not deliverable to C. and another under contract for the sale of the bonds of the railway company by the owner.</p>

<p>1. Public Lands — Obiutnal Title.</p> <p>The original title to lauds in the United States was not in the Indians; their rights being mere rights of possession or occupancy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Public? Lauds, § 1.]</p> <p>2. Indians —Reservation Treaty —Construction —Indian Land —Title —Ejectment.</p> <p>The Indian agreement of 1883 between the United States and Chiefs Moses and Sar-sarp-Mn of the Columbia reservation provided for Hie removal of the tribe at their election, for their surrender of certain reservation lands, and for the allotment in severalty of one square? mile of land to each head of a family or male adult, in the possession and ownership of which they should be guaranteed and protected. The agreement was ratified by Act Cong. July 4, 1884, c. 180, 23 Stat. 79, providing that, if the Indians elected to remain on the Columbia reservation, the Secretary of the Interior should cause the quantity of land stipulated in the agreement to be allowed them, which, when selected, should be held for the exclusive use and occupation of the Indians, and the remainder of the reservation be restored to the public domain. Held, that Indians to whom lands were allotted in severalty under such treaty acquired a mere right of possession and use, the title remaining in the United States, and that the government was therefore entitled to maintain ejectment against a third person, who had ousted the Indian allottees from possession.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indians, §§ 25-30.] 161 F. — S3</p>

<p>1. Railroads — Accidents at Crossings — Effect of Open Gates.</p> <p>The fact that safety gates maintained by a railroad company at a highway crossing are open is an implied invitation to persons traveling the highway to enter upon the crossing; "and, while it does not absolve them from the duty of taking reasonable precautions to avoid injury by moving trains, it qualifies that duty.,to the extent that they may reasonably presume that the company’s servants have performed their duty in ascertaining the safety of the crossing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig: vol. 42, Railroads, § 1072.]</p> <p>2. Same — Negligence—Absence of Flagman at Dangerous Grossing.</p> <p>The four tracks of defendant railroad company and those of two other companies crossed a street near each other. There were yards near, and the tracks were largely used for switching purposes. Defendant maintained gates at the outer sides of the entire group of tracks; they being 224 feet apart. Plaintiff’s husband and his son approached the crossing on foot, with two wagons following, loaded with lumber, which was to be loaded in a car. The gates were open, and deceased and his son went ahead as a further precaution against trains which might he approaching. When they reached the center of defendant’s tracks, they saw a train approaching on one of the inner tracks and started back, when a freight train on the outer track backed, and plaintiff’s husband was struck and killed by the caboose, which was being kicked back onto a switch. The son testified that the ear was standing still and was started suddenly. The conductor testified that it was moving slowly, and that he stood on the rear platform of the caboose and called a warning to the deceased. Held, that under such evidence the jury were justified in finding that the crossing was an unusually dangerous one, and required extraordinary care on the part of defendant, and that, in view of the open gates, the failure to station a man at the crossing, either permanently or temporarily, to give warning of the movement of the switching train, was negligent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 972-977, 1072.</p> <p>Duty to give warning signals at crossing, see note to Chesapeake & O. Ry. Co. v. Steele, 29 C. C. A. 90.]</p> <p>3. Negligence — Contributory Negligence — Question for Jury.</p> <p>The question of contributory negligence is for the jury, unless the evidence to establish such negligence is clear and uncontradioted, and such that no reasonable man could come to a contrary conclusion.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 279-302.]</p> <p>4. Railroads — Action fob Injury to Person at Crossing — Instructions.</p> <p>In an action to recover for the death of a person killed at a railroad crossing by a switching train, a statement in the charge of the court that, if a member of the crew bad been stationed at the crossing to warn persons on the highway of the movements of the train, it might have prevented the injury, was not reversible error, in connection with clear instructions as to the province of the jury and giving the claims of tba respective parties, and where the evidence was such as to warrant a finding that the failure to so station a man was negligence.</p>

<p>1. Master and Servant-Servant ojp Independent Contractor — Injuries— Method oe Work.</p> <p>Whore the servants of a contractor for the erection of an addition to defendant’s car shops had been accustomed to use the runway of a traveling crane in the mill to move scaffolding from one truss to another, which method of work had been pursued in the presence of defendant’s superintendent, without objection, it would be considered as having been followed with defendant’s express permission.</p> <p>2. Negligence — Care Required.</p> <p>"Where defendant had consented to the use of a crane runway in defendant’s mill by plaintiff, a servant of an independent contractor, in moving scaffolding from one truss in an addition to the mill to another, plaintiff in so using the runway was not a trespasser, but was within the class of persons present in dangerous premises by the owner’s express permission, as to whom defendant was chargeable with an affirmative duty to take special precautions against injury that might happen to plaintiff by reason of the operation of the crane on that part of the runway on which he was standing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, § 20.]</p> <p>3. Same — Assumed Risk.</p> <p>Where plaintiff, a servant of an independent contractor, was permitted with defendant’s consent to use the runway of a traveling crane in altering the i>osition of scaffolding in defendant’s mill, plaintiff did not assume the risk of defendant’s negligence in operating the crane on such portion of the runway where plaintiff was standing, without notice to him, though plaintiff was also bound to guard himself against obvious dangers.</p> <p>[Ed. Note. — Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Iiennessey, 38 C. C. A. 314.]</p> <p>4. Same — Anticipated Danger.</p> <p>Where defendant had invited the servants of an independent contractor to use a traveling crane runway in altering the position of scaffolding in the mill,- defendant was bound to anticipate the presence of such servants oil the runway and to guard against dangers incident thereto.</p> <p>5. Same — Questions por Jury.</p> <p>In an action for injuries to a servant of an independent contractor by being struck by defendant’s traveling crane, used with defendant’s permission for the removal of scaffolding from one place in the mill to another, whether defendant was negligent in failing to use reasonable precautions to prevent such injury, and whether plaintiff was negligent, held for the jury.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 279-346.] -</p>

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

<p>1. Insurance — Premium—Delivery of Policy Acknowledgment of Payment of Fibst Premium.</p> <p>The delivery of an insurance policy which recites that the company agrees to pay tlie indemnity in consideration of the first annual premium of 8145.45 to be actually paid in cash on or before its delivery, and that the contract shall not take effect until the delivery of the policy and the payment of the first premium, is an acknowledgment of the payment of the premium, and the delivered policy is competent evidence of that fact.</p> <p>2. Same — Acknowledgment Estops from Avoiding Contract for Nonpayment, but is Rebuttable Evidence or Payment on Other Issues.</p> <p>An acknowledgment of the payment of the first premium conclusively estops the company from avoiding the policy for the failure of the insured to pay the first premium when due. But it does not estop it from proving by written contract made before or at the time the policy was delivered that an extension of time for the payment of a part or of all of the first premium to specific dates was given and an agreement made that, if the deferred payments were not then made, the insurance should cease, and the policy be forfeited.</p> <p>S. Same — Extension of Time of Payment of First Premium Waives Forfeiture fob Nonpayment in Absence of Express Contract to Contrary.</p> <p>An extension of the time of payment of the first premium without a written agreement at or before the delivery of the policy, or a subsequent contract for a valuable consideration, that the insured shall make the deferred payments at specific times and that if he fails to do so the insurance shall cease, or the policy be forfeited, waives all forfeiture for nonpayment of every part of that premium.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 914.]</p> <p>4. Appeal and Error — Review—Harmless Error — Trial—Rejection of Admissible Evidence Fatal, Though Rf.oord Shows it Futile if Received.</p> <p>The fact that it appears from the record of a trial wherein evidence was erroneously rejected that such evidence would have been futile does not show that its rejection was not prejudicial, because the proposer might have introduced other evidence or have otherwise changed his course at the trial if his rejected evidence had been received, and the court had ruled accordingly.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4189-4193.]</p> <p>5. Trial — Right Rulings Essential to Lawful Trial — Error Presumptively Prejudicial — New Trial only Remedy.</p> <p>Right rulings at the trial are essential to a trial according to the course of the common law. Errors are presumed to be prejudicial. It is only when it appears beyond doubt that they are not so that they may be disregarded. The only remedy for prejudicial error in a trial at law in a national court is a new trial. The appellate court cannot re-examine the facts and render the judgment it deems right.</p> <p>(Syllabus by the Court.)</p>

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

<p>Shipping — Suit fob Chaktek Hike--Defense of Refusal to Load Dull Cab-GOES.</p> <p>Evidence considered, and Jichi not to sustain the defense of a charterer to a suit for charter hire, admittedly due under a time charter, based on the claim that the master refused to load full cargoes.</p> <p>[Ed. Note. — Deductions and offsets from charter hire of vessel, see note to Tweodie Trading Co. v. George D. Emery Co., 84 C. C. A. 254.]</p>

<p>Trade-MAlims and Trade-Names — Unlawful Competition — Deception of Public.</p> <p>In order to entitle complainant to relief in a suit for unlawful competition, it is not necessary that the public should he actually deceived; it being sufficient that the infringement had a tendency to deceive.</p> <p>LEd. Note. — For cases in point, see Cent Dig. vol. 46, Trade-Marks and Trade-Names, § 86.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. O. A. 376.1</p>

<p>1. Patents — Suit to Enjoin Infringement — Necessity of Notice of Patent.</p> <p>Rev. St. § 4900 (U. S. Comp. St. 1901, p. 33S8), requires patented articles to be marked or notice of the patent to be given to a defendant only as a prerequisite to the recovery of damages for its infringement, and such notice is not essential where the only purpose of the suit is to enjoin future infringements.</p> <p>• 2. Same — Infringement—Hopper-Bottom Car.</p> <p>The Schoen patent, No. 647,907, for a hopper-bottom car, claim 1, was not anticipated and discloses invention; also held infringed.</p> <p>3. Same — Suit to Enjoin Infringement — Equity Jurisdiction.</p> <p>The fact that the device of a patent has never gone into commercial use does not preclude the owner of the patent from maintaining a suit in equity to enjoin its infringement.</p>

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

<p>Patents — Infringement—Candy Machine.</p> <p>The Morrison and Wharton patent, No. 618,428 for a candy machine, claim 3, contains but two elements, a rotative perforated vessel, and a heating attachment or burner. By referring to the vessel as "the vessel, A, A', A", C, C',” the part, A" as shown in the drawings, is not made an element of the claim; but the letters are merely used as designating the vessel described as an entirety. As so construed, said claim held infringed.</p>

<p>In Equity. Application for injunction pendente lite restraining the defendant from making and selling what are known as “conveyer dry rooms,” and which are alleged to infringe the first six claims of United States letters patent No. 684,776, dated October 22, 1901, to William M. Barnes for “clothes dryer.”</p>

<p>In Equity. Suits to restrain alleged infringement of certain United .States letters patent and for an accounting.</p>

In Equity. This is a suit to restrain alleged infringement of a design patent - for insulating plug for electric-line supports, and for an accounting. Among the defenses are want of patentable novelty in view of the prior art, that this is not the proper subject of a design patent, and prior use and anticipation.

In Equity. Suit in equity to restrain alleged infringement of United States design patent No. 38,412, dated January 15, 1907, for “hatband,” and for an accounting, or $250 statutory liability.

<p>Patents — Suit fob Infringement — Suppi.ementary Proceedings.</p> <p>Where the validity of a patent has been adjudged by the Circuit Court of Appeals, and pursuant to its mandate an interlocutory decree has been entered for an injunction and accounting, the complainant may properly be permitted by supplemental bill or petition in the same ease to present the question of infringement by another device made by defendant, and, if infringement is found, to have it included in the decree and accounting.</p>

<p>In Bankruptcy. On petition of attaching lien creditor.</p>

<p>In Bankruptcy.</p>

<p>Collision — Suit in Rem — Seizure of Freight Money.</p> <p>Under admiralty rule 15, freight money due the vessel’s owner cannot be seized, nor the cargo held therefor, in an action in rein to recover damages in a collision case.</p>

<p>1. Criminal Law — Venue—Removal—Federal Practice.</p> <p>In proceedings for the removal of accused to another federal district for trial, if the indictment produced as evidence of probable cause is framed in the language of the statute, with ordinary averments of time and place, and sets out the substance of the offense in language sufficient to apprise accused of the nature of the charge against him, it is sufficient to justify the removal, though it may be open to a motion to quash or in arrest of judgment in the court in which it was originally filed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. Vol. 14, Criminal Law, § 510.]</p> <p>2. Same.</p> <p>Removal of accused to another federal district for trial cannot be defeated because the proceedings for removal show acts which might have been prosecuted in the district where the proceedings are had, where it is also apparent that the place of indictment is a proper one in which he could be proceeded against.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, I 510.]</p> <p>3. ; Same — District of Columbia.</p> <p>Removal of accused from a federal district to the District of Columbia for trial cannot be defeated because the acts charged in the indictment are common-law offenses; the District of Columbia being a part of the United States and the commission of a crime therein being an indictable offense against the United States. •</p>

<p>Bankruptcy — Disoharge^Application—Default—Subsequent Proceedings.</p> <p>Where an involuntary bankrupt failed to apply for a discharge within the 12 months prescribed by Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, (IL- S. Comp. St. 1901, p. 3418), his default was equivalent to an order denying such discharge, which was res judicata in a subsequent voluntary proceeding, precluding him from obtaining therein a discharge from the debts previously scheduled.</p>

<p>In Bankruptcy. Motion to confirm report of special master denying bankrupt’s discharge.</p>

<p>In Bankruptcy.</p>

<p>Habeas Corpus. This petition is made by R. M. Moore, an attorney at law of the city of New York, in behalf of said Lee Kow, a Chinese, person.</p>

<p>1. Judgment — Res Judicata — Splitting Cause of Action — Internal Revenue — Actions to Recover Taxes Paid.</p> <p>A manufacturer of surgical supplies, which, purchased internal revenue stamps from time to time under protest for use on articles made and sold by it, may maintain different actions against successive collectors to recover the amounts paid to each, and different actions against the same collector, when required to prevent the bar of limitations, or when they relate to different classes of articles, and the questions involved may be different, and a recovery in one such suit is not a bar to the prosecution of the others pending, where no motion has been made to consolidate.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1107-1114.]</p> <p>2. Internal Revenue — Stamp Taxes — Recovery—Involuntary Payment-Sufficiency of Protest.</p> <p>Where plaintiff was a large purchaser and user of internal revenue stamps, and there was a constant dispute between it and the department whether certain articles manufactured by it were subject to tax, it was not essential that it enter a formal protest every time it purchased stamps in order to preserve its right to recover the amount paid for stamps used on such articles.</p> <p>3. Judgment — Conclusiveness—Dismissal of Writ of Error.</p> <p>The fact that a writ of error was sued out to review a judgment which was dismissed by the appellate court because not taken in time does not affect the conclusiveness of such judgment between the parties as to the questions actually put in issue and decided therein.</p> <p>4. Same — Res Judicata.</p> <p>Where different actions are brought by the same plaintiff to recover internal revenue taxes paid under the same law on the same class of articles, a judgment in one case is conclusive in the others.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1244-1247.]</p> <p>5. Internal Revenue — War Revenue Taxes — Stamp Taxes on Medicinal Preparations.</p> <p>Medicinal plasters, made after a standard formula, which are not sold under a trade-mark nor any claim of exclusive right nor of special merit, are not advertised to cure any disease, and are without directions for use, are not taxable under Schedule B and section 20 of the War Revenue Act of June 13, 1898 (30 Stat. 456, 462, c. 448 [U. S. Comp. St. 1901, pp. 2297, 2306]). Plasters described as “dental” merely, because cut in very small pieces suitable for dentists’ use, are not within the statute, nor are finger hats nor corn or bunion plasters, the action of which, when applied, is purely mechanical, and not medicinal; but plasters described as “Johnson’s” or as “rheumatic” may be regarded severally as proprietary and as recommended as a remedy for rheumatism, and are taxable.</p> <p>6. Same — Articles “Compounded.”</p> <p>The provisions of War Revenue Act June 13, 1898, c. 448, § 20, 30 Stat. 456 (U. S. Comp. St. 1901, p. 2297), that the stamp taxes provided for in Schedule B “shall apply to all medicinal articles compounded by any formula, published or unpublished,” but that they shall not apply to any uncompounded medicinal drug or chemical, contemplate a compound made after some formula and a natural product, such as papain, which is prepared from the juice of the pawpaw and cannot be made artificially, although it may be a chemical compound, is not “compounded” within the meaning of the statute, and is not taxable, whether used as the basis of a plaster, or prepared in the form of tablets or pills by being mixed with an excipient which has no medicinal effect.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, p. 1372.]</p>

In Equity. Petition to restrain violation of the interstate commerce law by the United States against the Wells-Farg'o Express Company. On final hearing. Like petitions against the United States Express Company, the National Express Company, the American Express Company, and the Adams Express Company were also argued and submitted.

Habeas Corpus. For relief of alleged citizens of Chinese parentage, whose right to enter the United States was denied by officers of the Immigration Bureau.

<p>Habeas Corpus. Hearing on eight writs allowed by Hon. A. C. Coxe, and made returnable at Syracuse term of this court, April 7, 1908, held by Judge Ray.</p>

In Bankruptcy. Review of order of Referee Edwin A. King dismissing' this proceeding, which seeks a summary order directing the National State Bank of Troy, N. Y., to pay over to Henry A. Conway, as trustee of the estate in bankruptcy of the above-named bankrupt, Pierce D. Kane, the sum of $6,895.65, and which sum the said trustee alleges belongs to such estate and is in the hands of the said bank, or that, in the eye of the law, such sum is in its possession.

In Admiralty. These two libels, heard together by consent of parties, as they depend upon the same state of facts, are to recover for injuries received by the libel-ants on April 11, 1907, while passengers on the ferry steamer Annie L. Vansciver plying on the waters of Hampton. Roads between Ivy Avenue Pier, Newport News, Va., and Pine Beach, or Sewell’s Point, Va., one of the landings for the Jamestown Exposition.

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

<p>In Equity. Motion for preliminary injunction, restraining infringement of trade-mark and unfair competition in trade.</p>

At Law. Action for damages. This case involves the following statutory provisions: “Sec. 25.

<p>Trade-Marks and Trade-Names — Suit for Infringement — Preliminary Injunction.</p> <p>A preliminary injunction granted restraining defendant from infringing certain trade-marks and trade-names used by complainant to distinguish its wines, on a prior adjudication establishing the validity of other trade-marks similarly used and claimed by it</p>

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

<p>1. Appeal and Error — Practice—Assignments of Error.</p> <p>The practice of filing interminable assignments of error tends to defeat the purpose of the rule requiring such assignments, and is not to be approved.</p> <p>2. Trial — Gita roe to Jury — To be Considered as a Whole Rather Than in Fragments.</p> <p>In examining the charge, for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single or detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally fiow from tlie language of other parts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-717.]</p> <p>3. Same — Charge to Jury — General Exception Unavailing.</p> <p>A general exception to a considerable portion of the charge cannot be regarded as presenting a specific objection to a lesser portion, which in fairness to the trial court should have been specially called to its attention. in order that tlie appropriate correction might be made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 689.]</p> <p>4. Same — Relative Weight of Affirmative and Negative Testimony — Instruction.</p> <p>The rule that affirmative testimony is to be preferred to negative is not absolute, and whether or not in any particular case it shall be called to the attention of the jury is so largely in the discretion of the trial judge that the refusal to do so is not ordinarily reversible error.</p> <p>5. Master and Servant — Assumption of Risk — Defective Machinery — Servant Not Required to Exercise Care to Discover Dangers.</p> <p>In .determining whether a servant assumed the risk of injury incident, to the use of a boiler negligently permitted by the master to become unfit and unsafe for use, the true test is, not whether the servant exercised care to discover dangers, but whether they were known to him, or were so palent as to be readily observable by him.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 84, Master and Servant, §§ 574-600.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey; 38 C. C. A. 314.]</p> <p>6. Appeal and Error — Expert Evidence — Qualifications of Witness.</p> <p>Whether or not a witness tendered as an expert possesses the requisite qualifications rests largely in the discretion of the trial court, and its decision thereon ought not to be disturbed unless it can be said that it was clearly erroneous.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3852.]</p> <p>7. Evidence — Expert Evidence — Hypothetical Questions.</p> <p>Hypothetical questions propounded to an expert witness are not objectionable merely because the evidence tending to establish the facts assumed therein is contradicted.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2368-2375.]</p> <p>8. Negligence — Standard of Reasonable Care — Practice of Others — Evidence — Instruction.</p> <p>The controlling standard or test of reasonable or ordinary care is what a reasonably prudent person would ordinarily have done in the like eircumstances, rather than the prevailing practice of others engaged in the same business. The practice of others, even though not a general or prevailing one is some evidence of what could have been done, and so has a material bearing upon whether the requisite care was exercised in what was actually done; and an instruction which treats what a reasonably prudent person would ordinarily have done in the like circumstances as the controlling standard or test of reasonable or ordinary care, and also treats the prevailing practice of others engaged in the same business as evidence only of that standard, and directs that such practice be considered with all the other evidence bearing upon the subject in fixing upon that standard, is not objectionable as permitting the jury to find that the conduct in question was negligent, even though it conformed to the prevailing practice of others, because that practice was not in itself the legal standard, but, as indicated in the instruction, was evidence only thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 6, 371-377.]</p> <p>9. Steam — Injuries from Production or Use — Evidence of Other Similar Accidents.</p> <p>In an action for injuries sustained through a boiler explosion, where the gravamen of the charge was that the defendant had negligently failed to exercise reasonable care in maintaining the boiler in a reasonably safe condition, evidence of recurring explosions, not otherwise explained, occurring in the course of its prior use, when the conditions were substantially the same, was admissible as bearing upon its tendency to become impaired by the particular use to which it was subjected, the defendant’s knowledge of that tendency, and the precautions which, in the exercise of reasonable or ordinary care, should have been taken thereafter in inspecting and testing it to determine whether it was in reasonably safe condition for use; but such evidence was not admissible for any other purpose.</p> <p>10. Same — Evidence of Oonditions After Accident.</p> <p>Evidence of the condition, shortly after an accident, of the instrumentality which caused it, is admissible as bearing upon its condition at the time of the accident, or just prior thereto, when it appears that there has been no intervening change.</p> <p>11. Trial — Practice—Motion to Strike Out Evidence Some of Which is Unobjectionable.</p> <p>Upon a motion to strike out all evidence relating to a specified subject, some of which is unobjectionable, the court, while at liberty to select or separate what is objectionable from what is unobjectionable, and to strike out the former, is not obliged to do so, but may respond to the motion in the terms in which it is made.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig, vol. 46, Trial, § 248.] (Syllabus by the Court.)</p>

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

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

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

The plaintiff in error, Nielcell, was indicted jointly with Henry W. Miller, Frank IS. Kineart, and Martin (>. Iloge in the Circuit Court for the District of Oregon for conspiracy under section 5440 of the Revised Statutes (U. S. Comp. St. 1901, p. 3G76).

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

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

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

<p>Shipping — Delay in Discharging — Fault op Vessel.</p> <p>Delay in discharging through default of the vessel does not entitle the charterer or consignee to damages, in the absence of a contract for delivery by a particular day, but simply extends the time within which, the discharge may be made without liability of the charterer or consignee for demurrage.</p> <p>[Ed. Note.--For cases in point, see Cent. Dig. vol. 44, Shipping, § 436.</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>

<p>1. Master and Servant' — Injuries to Servant — Defective Appliances— Railroad Couplers — Evidence.</p> <p>In an action for injuries to the foreman of a switching crew by his hand being crushed between the parts of an automatic coupler, evidence held insufficient to show that the coupler was defective.</p> <p>[Ed. Note. — Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Same — Duty of Servant — Nonperformance—-Excuse.</p> <p>Where plaintiff, the foreman of a switching crew, discovered that the automatic couplers on the ends of two cars sought to he coupled would not work by means of the lever on the side of one of the cars, it was plaintiff’s duty to cross over and use the lever on the other car to opera te the coupler, instead of attempting to do so by hand, and it was no excuse for his failure so to do that it was dangerous to cross between the cars to the other side of the track; the cars being stationary and the switch engine attached to those which were to bo moved up to make the coupling being subject to his orders.</p> <p>3. Same — Fellow Servants.</p> <p>The act of a member of a railroad switching crew in giving a signal to the engineer to push a coal ear forward while plaintiff, the foreman of the crew, was in a place of danger between the ears endeavoring to adjust the automatic coupler, was negligence of i>liiin tiff's fellow servant, for which no recovery could be had under the laws of Wyoming.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol 34, Master and Servant, §§ 403-514.]</p>

<p>1. Contempt — Abatement—Proceedings for Civil Contempt not Abated by Death.</p> <p>The defendant in a suit in equity was adjudged to pay a fine, and to be committed until he paid it, for contempt of court in violating a preliminary injunction. He sued out a writ of error and died before a hearing here. Held, the proceedings for the contempt were civil, and not criminal, and did not' abate by his death.</p> <p>2. Contempt — Civil and Criminal Defined.</p> <p>Proceedings for contempt are of two classes — criminal or punitive, and civil, remedial, or coercive. The former are conducted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders. The latter are instituted to protect, preserve, and enforce the rights of private parties and to compel obedience of the orders, judgments and decrees of the courts made to enforce the rights and remedies to which the courts have decided that such parties are lawfully entitled.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Contempt, §§ 1-5.] (Syllabus by the Court.)</p>

<p>1. Patents — Suit fob Infringement — Preliminary Injunction. _ ‘</p> <p>_ A preliminary injunction should not be granted in a patent case, without a showing that the patent in suit has been adjudged valid by a court of competent jurisdiction, or that its validity has been generally acquiesced in by the public or has been admitted by defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 474-477.</p> <p>Grounds for denial of preliminary injunction in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 323-1</p> <p>2. Courts — Jurisdiction of Federal Courts — Federal Question.</p> <p>A bill to compel specific performance of a contract to assign a patent and to restrain the alleged violation of a license contract under a patent states no ground for relief under the patent laws, and a federal court is without jurisdiction to grant relief lliereon, unless there is diversity of citizenship between the parties.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 832.</p> <p>Jurisdiction of federal courts in suits relating to patent rights, see note to Bailey v. Mosher, 11 G. C. A. 313.1</p> <p>3. Estoppel — Suit for Infringement — Estoppel to Deny Validity.</p> <p>The fact that one of the assignors of a patent subsequently became associated with others, and with them is charged with infringement of such patent, does not estop them to deny its validity, where tile relations between the defendants are not shown.</p> <p>4. Injunction — Preliminary Injunction — Sufficiency of Grounds.</p> <p>A preliminary injunction should not be granted, where the right alleged to be invaded or threatened is doubtful and uncertain on the showing made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Injunction, § 309.1</p>

<p>1. Patents — Invention and Infringement — Looms.</p> <p>The Rhoades patent, No. 454,791, for an improvement in. looms, was not anticipated, and, while a narrow" one, discloses invention; also held infringed.</p> <p>2. Same — Suit for Infringement — Nature of Relief.</p> <p>Where a patent, at the time of a decree adjudging its infringement, has but a short time to run and is for a minor part of a machine, hy reason whereof the defendant is liable; if enjoined, to suffer a ioss out of proportion to the value of the transaction, the court may, in its discretion, instead of granting an injunction, permit the defendant as an alternative to compensate the complainant or to secure such compensation.</p> <p>[IOd. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 501-563.J</p>

<p>1. Patents — Effect op Prior Adjudication-Persons and Matters Concluded.</p> <p>A decree adjudging the validity and infringement of a patent in a suit defended by the manufacturer of the infringing device, who, although not a party to the record, had completo charge and control of the defense, is conclusive upon him, in a subsequent suit brought against him by the same complainant, as to ail matters of fact and law necessarily litigated and determined, which include the validity of the claims involved and infringement by the particular device in suit; but such decree is, not conclusive on the question of infringement by other devices which may fairly bo differentiated from the one in suit.</p> <p>[Ed. Xote. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 622 - 625.</p> <p>Operation and effect of decision in equitable suit for infringement, see note to 'Wostinaliouse Electric & Mfg. Co. v. Stanley Instrument Co., 68 C. C. A. 511.]</p> <p>2. Judgment — Construction—Keference to Opinion.</p> <p>Where a decree is general in its terms, an opinion filed by the court may be taken into consideration for the purpose of determining definitely wh'ai questions were presented and decided.</p> <p>!'Ed. Xote. — For cases in point, see Cent. Dig. yol. 30, Judgment, §§ 967 -970.'!</p> <p>3. Patents — Construction op Claims — Huhsequent Patent to Samp, Patentee.</p> <p>A second patent applied for by and granted to a patentee for a device for the same purpose, but different in form from one shown in an earlie’’ patent, limy he taken into consideration in construing the earlier patent, as affording a presumption that it did not broadly cover other forms than the one described.</p> <p>4. Same — -Invention.</p> <p>There is no invention in making two parts of one thing or one part of two. when by such change no different result is attained.</p> <p>[Ed. Xote. — For cases in point see Cent. Dig. vol. 38, Patents, §§ 15-29.1</p> <p>5. Same — Infringement—Spring Supports.</p> <p>’file Staples patent, Xo. 474,536, for spring supports for chair seats, etc., is not for a pioneer invention, hut, in view of the prior art, is limited to the particular structure shown and described. Claims 1 and 3 held valid and infringed as to one device made by defendant, upon a prior decision binding on the parties, but not infringed by a second device in suit.</p>

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

<p>In Equity. Suit for infringement of letters patent No. 493,461 for a thread-controlling device for sewing machines, granted to Russell G. Woodward, assignor, March 14, 1893. On final hearing.</p>

<p>Patents — Infringement—Memorandum Calendab.</p> <p>The Wilson patent, No. 585,944, for a memorandum calendar, narrowly construed as required by the prior art, held not infringed.</p>

In Bankruptcy. On motion to strike out part of answer and for an order for examination of the alleged bankrupt, before trial.

In Admiralty. Suit to enforce maritime lien. This libel was filed to recover the sum of $200 advanced by the libelants to the master of the George W. Anderson, while in the port of Norfolk, Va.. in the month of February, 1905; the same being secured, as claimed by the master, to pay the wages.of seamen on the schooner.

In Bankruptcy. Application by creditors to be allowed to come in and prove and file claims after the expiration of one year from the adjudication.

<p>1. Bankruptcy— Courts — Jurisdiction—Ekauduuent Transfers — Vacation.</p> <p>A federal District Court of another district than that in which a bankruptcy proceeding is pending may entertain a suit by the bankrupt’s trustee to set aside an alleged fraudulent transfer by the bankrupt to parties residing in the district where the suit was brought.</p> <p>2. Same — Bilí—Requisites.</p> <p>On an issue in bankruptcy as to the priority of a mortgage lien, the bill should allege the names of all the creditors of the bankrupt other than the mortgagee, the amounts of their debts, the eharacler of the same, ano when created.</p>

<p>1. Schools and School Districts — Board of Education — Powers—School Buildings.</p> <p>Since the powers of a board, of education are statutory only, and it can make no valid contract for the building of a schoolhouse or the expenditure of public moneys for any object connected with the proposed building of the schoolhouse, except as that contract is supported by statutory authority, it has no power to employ an architect to prepare plans for a building that would not exceed in cost for general construction, excavation, and rough grading $400,000, when only 8200,000 has been appropriated for the purchase of high school sites, procuring plans and specilieations, and for high school construction.</p> <p>2. Same — Subsequent Appropriations.</p> <p>It could not be assumed by the court, in determining the validity of such contract, that the authorities expected to make subsequent additional appropriations.</p>

<p>In Equity. On motion bj' defendants to dismiss.</p>

<p>1. Street Railroads — Grant of Franchise by Municipality — Term.</p> <p>A grant by a city to a street railroad company of the right to construct and operate tracks in its streets, without any limitation as to time, is one at least for the term of the corporate life of the grantee.</p> <p>¡'Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 42.1</p> <p>2. Same — Right of Repeal — Effect of User.</p> <p>Where a city granted to a slreet railroad company the right to construct and maintain tracks “along and across the si reel s of the city,” and the company has constructed and put in operation lines in conformity to a system which contemplates their extension, and the building of branch lines as public needs may require or justify, the city cannot arbitrarily, and without cause, repeal the grant except as to tracks at the time constructed and in operation, and an ordinance attempting such repeal is void.</p> <p>I'Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 50.]</p>

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

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

<p>In Equity. On motion by defendant for order for trial.</p>

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

<p>1. Bankruptcy — Proceedings in Different Districts — Transfer and Consolidation.</p> <p>General Orders in Bankruptcy No. (> (32 G. O. A. v), which provides that in case two or more petitions shall be filed against the same individual in different districts the first heating shall be had in the district in which the debtor had his domicile, and that; the court which makes the first adjudication shall retain jurisdiction over all proceedings until the same shall be closed, is subject to the provisions of Bankr. Act ,'fnly .1, 1898, c. 541, § 32, 80 Stat. 554 (U. S. Comp. St. 1901, p. 8484), which in such case authorizes a transfer and consolicliitiorL of the proceedings in the court which can proceed therein with greatest convenience to the parties in interest.</p> <p>2. Same — “District of His Domicile.”</p> <p>Where two petitions in bankruptcy hare been filed against the same individual, one in the district in which the alleged bankrupt has resided during the greater part of the preceding six months and the other in a district into which he has recently removed and established his residence, the former is the ‘‘district of his domicile.” within the meaning of General Orders No. 6 (32 G. G. A. v), in which the first hearing should be had unless the case is transferred for convenience of parties under the provisions of Bankr. Act July 1, 1898, e. 541, § 32, 30 Stat. 554 (U. S. Comp. St 1901, p. 3434).</p>

<p>Receivebs — Allowance and Payment op Claims — Pboceedings.</p> <p>In order to expedite proceedings in insolvency against street railroad companies, where a large number of claims for torts are presented, they may properly be divided into groups, and a special master appointed to liquidate each group, in so far as the claims have not been liquidated by suit.</p>

<p>Corporations — Insolvency Proceedings — Proof of Claims.</p> <p>In insolvency proceedings against a corporation, no claimant can be recognized as entitled to share in the assets in the hands of the receivers, unless his claim has been proved before a master in accordance with the order of the court, although judgments obtained against the corporation in other courts may properly be accepted by the master as sufficient proof of the claims and their amount.</p>

<p>In Equity. On petition of receivers of Metropolitan Street Railway Company for leave to issue receivers’ certificates.</p>

<p>Insurance — Marine Insurance — Policy—Construction.</p> <p>An open marine policy on goods to be transported by rail and lake provided: “This insurance is not to cover more than $100,000 by any one steamer, or in any one place at one time.” Hold, that such clause should be construed to mean that the policy was not to cover more than $100,000 in value carried by any one steamer, so that, goods to the value of $349,426.70 having been assembled and loaded on a single vessel, and damaged in a disaster to the amount of $85,996.70, the insurer was only liable for such proportion of the loss as $100,000 bore to the actual value of the shipment on the vessel.</p>

<p>At Law. Demurrer to complaint in action against defendant, a-common carrier, for damages for handling the goods of plaintiff in violation of the agreement of the parties.</p>

<p>1. Bankruptcy — Partnership—Mortgage op Firm Property by One Partner.</p> <p>A mortgage given by one partner on partnership property, although with the consent of his copartner, cannot be enforced as against firm creditors in bankruptcy; nor has the court of bankruptcy any power to give it. effect as as assignment of the mortgagor’s right of exemption out of the partnership property.</p> <p>2, Same — Exemptions—North Carowna Statute.</p> <p>Under the personal property exemption law of North Carolina, in case of bankruptcy the bankrupt must select his exemption in kind, and cannot wait until the property has been sold and claim the maximum value of his exemption in money from the proceeds.</p>

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

<p>In Equity. On motion to vacate stay.</p>

<p>1. Railroads — Injury to Persons on Track — Arkansas Statute.</p> <p>Kirby’s Dig. Ark. § 6607, providing that “it is the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the tracks,” which is construed by the Supreme Court of the state to apply to the running of trains in railroad yards, only requires that the trainmen shall keep a lookout ahead on moving trains, and, where such lookout is properly kept, does not, without more, render a company liable for the death of a person killed in railroad yards who was not seen.</p> <p>2. Same — Person Killed in Switchyard During Eire — Contributory Negligence.</p> <p>A fire started in the daytime in a residence addition of Pine Bluff, Ark., destroying about 100 houses. In endeavoring to save their household goods the residents carried them onto the tracks of the railroad immediately south of the burning district These tracks were in the switchyards of the company, without any streets or private crossings thereon. During a period of about 45 minutes of the fire the railroad company had run its cars off of the first tracks next to the fire, when the eraployGs, discovering that some oil tanks on the remaining ears were beginning to smoke from the heat of the fire and were in danger of explosion and augmenting the danger of the situation, ran ail engine to the end of the cars to push them out. There was an opening in this line of cars of four or five feet, not left under conditions to indicate an invitation to the people to use it as a passway for carrying goods. Just before this movement of the train a switchman went to this opening and adjusted the drawheads for the connection, and gave warning to the people thronging about the j)lace of the intended movement, and then passed down the train to warn persons who were passing over and beneath the drawheads. The deceased, who worked in a mill shop outside of the addition, left his post and went to the fire, and was assisting in carrying a mattress through said opening. He was warned by a third person of the danger just before the accident, and the bell on the engine passing down the open tracks to the rear of these cars was ringing, and continued to ring as the movement of the ears begun. The engineer and his fireman kept a lookout as the movement of the train began, but did not observe the defendant, Held, that-to the deceased, who was a mere volunteer on its right of way, the company owed no other duty than not to wantonly or recklessly injure him, and his failure to stop, look, or listen directly contributed to his death, and a verdict for the defendant below was properly directed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, § 891.]</p> <p>Adams, Circuit Judge, dissenting.</p>

<p>1. Bankruptcy — Property op Bankrupt — 1Title op Trustee.</p> <p>The title to money or property belonging to a bankrupt before adjudication vests in the trustee, subsequently appointed, under the express provisions of Bnnkr. Act July 1, 1898, c. 541, § 70. 30 Slat. 505 (TJ. S. Comp. St. 1901, p. 3451); but the trustee acquires no title to money or property in the hands of third persons which did not belong to the bankrupt prior to the adjudication.</p> <p>2. Saiee — Owners!! rp of Property — Evidence.</p> <p>Evidence hehl to establish that $40,000 secreted in a bank by a bankrupt, within eight months after the adjudication in bankruptcy, belonged to him before the adjudication, and passed to his trustee in bankruptcy by virtue thereof; but otherwise as to money and jewelry found on his person at the time of his death, a year and a half after the adjudication, to which the trustee acquired no title.</p> <p>3. Torts — Joint Wrongdoers.</p> <p>When several persons unite in an act which constitutes a wrong to another, intending at the time to commit the act under circumstances which fairly charge them with intending the consequences which follow, they are all jointly and severally liable for the wrong done, regardless of their individual participation in its accomplishment or their individual gain or profit resulting therefrom.</p> <p>4. Bankruptcy — Secretion of Funds of Bankrupt — Liability of Attorney.</p> <p>Where, after the death of a bankrupt, who had concealed a large sum of money on deposit to the credit of fictitious persons in a Canadian bank, his confidential attorney went with the bankrupt’s mother and widow and represented to the bank that they were the identical persons in whose names the money was deposited, and through his influence procured the payment of such deposit to them, after which such attorney’s bank account assumed an importance and magnitude unknown before, which was not explained, and he thereupon immediately invested funds in real estate security and notes to the amount of $6,975, he was properly charged to that extent as a trustee thereof, and was properly required to transfer the same to the bankrupt’s trustee.</p>

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

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

<p>Indians — Reservations—Intruders—A uthority to Remove.</p> <p>Under Itev. St. §§ Ml, 463, 2058, 2149 (U. S. Comí). St. 1801, pp. 252, 2G2), the Commissioner of Indian Affairs is authorized, with the approval of the Secretary of the Interior, to cause collectors to be excluded and removed from a tribal Indian reservation on days when payments are being made to the Indians, if in his judgment the presence of collectors therein at such times is detrimental to the peace and welfare of the Indians; and this although the reservation be within a state and the Indians be the holders, under trust patents issued to them pursuant to Act Feb. 8, 1887, c. 119, 24 Slat. 388, of allotments adjacent to the reservation, and be, therefore, citizens of the United States and the state.</p> <p>(Syllabus by the Court.)</p>

<p>Bankruptcy— Secured Claims — Assignment op Claims Against United States</p> <p>Under Rev. St. § 3477 (U. S. Comp. St. 1901, p. 2320), providing that assignments of claims upon the United States shall be void unless witnessed and acknowledged and made after the claim has been allowed and a warrant drawn therefor, the assignment by a bankrupt to a bank, as collateral security for money borrowed, of claims against the United States under contracts only partially performed, such assignments not being witnessed or acknowledged, was ineffective, and the claims passed by operation of law to the bankrupt’s trustee for the benefit of general creditors.</p>

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>The final decrees of the District Court awarded demurrage, amounting in the aggregate to $7,390.65, to the libelants for the detention of their steamships Queenswood, Homewood, and Moness at Port Inglis, Fla., in the winter of 1905-06.</p>

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

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

<p>1. Waters and Water Courses — Water Companies — Rights in Streets— Collateral Attack.</p> <p>The power of a water company under its charter and municipal ordinances to lay its pipes in streets and highways cannot be collaterally attacked by another corporation in a suit in equity for an injunction.</p> <p>2. Same — Water Companies — Grant or Franchise to Use Streets — Construction.</p> <p>A franchise granted by a municipality to a private corporation to occupy streets in the construction of a water system will not he construed as giving an exclusivo right, in the absence of express words to that effect.</p>

The decree of the District Court dismissed a libel filed by the American Manufacturing Company against the steamer Wildenfels and the lighter Rover for damages to a cargo of jute discharged from the steamer to the lighter and lost overboard by the rolling of the latter while being loaded at a berth at pier No. 3, Bush’s Stores, South Brooklyn.

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

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

<p>Insurance — Marine Insurance — Collision Clause in Policy.</p> <p>A running-down or collision clause in a marine policy of insurance on a vessel, providing that Hie insurer will indemnify the assured “if the vessel hereby insured shall come in collision with another vessel and the assured become liable to pay and shall pay, any sum or sums for damages resulting therefrom to said other vessel,” applies only where there is an actual contact between the insured vessel and another, and the insurer is not liable in case of a collision between a tow of the insured vessel and another, although the insured vessel may have been subjected to liability for such collision.</p>

<p>1. Joint-Stock Companies — Limited Partnership Associations — Authority op Officers — Capital Stock.</p> <p>An officer of a limited partnership association or joint-stock company has no authority to bargain away any part of its stock in consideration of services rendered by a third person in negotiating a transfer of patent rights to the company.</p> <p>2. Same — Michigan Statutes — Parol Agreement by Chairman.</p> <p>1 How. Ann. St. Mich. § 2369, provides that there shall be no liability for an amount exceeding $500, except against the person incurring it, on a deht against a limited partnership association or joint-stock company, >unlefes evidenced by a writing signed by at least two of the managers thereof. Held, that a parol agreement of the chairman of such, an association to issue to the plaintiff $16,000 .of the common stock of the eompany in consideration of his services in negotiating a transfer to the company. of cefitain pátent rights was unenforceable.</p> <p>3. Estoppel — Acquiescence—Acceptance of Benefits.</p> <p>Where a plaintiff had no interest in certain patent rights owned by G., but only an understanding with him that the plaintiff was to receive 25 per cent, of the capital stock of any company which should be organized to exploit or induced to purchase them, and thereafter the defendant company partly through plaintiff's services was induced to purchase the patent rights from G., Hiere was no such acceptance of benefits or retention of value contributed by the plaintiff as would preclude the company from repudiating an agreement made without authority by the chairman to issue stock to the plaintiff in consideration of his services in negotiating such transfer.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 19, Estoppel, §§ 260-263.]</p>

<p>Street Railroads — Receivers—Issuing Transfers to Passengers.</p> <p>Receivers operating street railroad lines being trustees for the owners and creditors, it is their duty to curtail transfer privileges of passengers, where it will increase the earnings of the property and there is no law of the state requiring the issuing of such transfers.</p>

<p>1. Bankruptcy — Acts of Bankruptcy — Preference of Creditor.</p> <p>The payment of a debt of $3 by a mercantile firm is not such a substantial preference as will constitute an act of bankruptcy sufficient of itself to sustain an involuntary petition.</p> <p>2. Same — Partnership—Transfer of Property by Partner.</p> <p>A transfer of property by an individual member of a firm, although with intent to defraud individual and firm creditors, is not an act of bankruptcy on the part of the partnership which will sustain a petition in bankruptcy against it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig, vol. 6, Bankruptcy, § 57.]</p>

<p>Courts — 'United States — 'Deporitto nr — Eoixowixg State Practice.</p> <p>Under Code Civ. Proc. N. Y. tit. 3, c. 9, art. 2, relating to the taking of depositions outside of the state, and the practice of the state courts thereunder, which practice the federal courts are authorized to follow by Act March 9, 1892, c. 14, 27 Stat. 7 (U. S. Comp. St. 1901, p. 664), commissions for the oral examination of either named or unnamed witnesses will he issued only under exceptional circumstances.</p> <p>[Ed. Note. — Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p>

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

<p>In Bankruptcy.</p>

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

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

<p>Petition to Revise Proceedings of the District' Court of the United States for the District of Kansas, in Bankruptcy.</p> <p>The question involved in this petition to revise is whether two certain Claims of the petitioner, Faulkner, against the estate of Charles J. Devlin, bankrupt, should have been allowed and permitted to participate in the assets of the estate of the bankrupt. The referee and the judge of the District Court for the District of Kansas ruled adversely to the petitioner, and that is the ruling we are asked to revise. Devlin was adjudicated a bankrupt on July 7, 1905, and some efforts followed to secure a settlement with his creditors. These efforts proved ineffectual, and shortly before the year expired after the date of the adjudication within which claims could be proven against the estate (Bankr. Act July 1, 1898, c. 541, § 57n, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444]), on June 20, 1906, the petitioner filed with the referee a paper, signed and sworn to by him, as follows:</p> <p>“Application for sale of Collateral. Now comes E. O. Faulkner, and shows to this court that lie is the holder of two certain obligations, one of seventy-five hundred dollars ($7,500) indorsed by C. J. Devlin, of which a copy is hereto attached, with all indorsements thereon and made a part of this application, and which obligation was duly protested and C. J. Devlin held as an Indorser thereon. Under the terms of the said obligation, marked ‘Exhibit A,’ the applicant was to receive $7,500, payable February 17, 1906, with 7 per cent, interest payable semiannually. The said obligation "was personally delivered by the said C. J. Devlin to this applicant, and at the time of the delivery the said Devlin, as collateral security for the said obligation, turned over to this applicant and placed in his possession 10 first mortgage gold bonds of the Marquette Third Vein Coal Company, being bonds 177 to 186, inclusive, upon which there were-attached and still remain the coupons of July 1, 1905, and all subsequent coupons. Said bonds draw interest at 5 per cent, annually. This applicant has received no money from the said Marquette Third Vein Coal Company, J. S. Wylie, or from the said C. J. Devlin in payment of the said obligation marked ‘Exhibit A,’ and the same is wholly due and unpaid: nor has any interest been paid upon the said bonds. Applicant further says that the said obligation for which the said collateral was pledged was for an actual loan of money in the ordinary course of business, and was in all respects bona fide, and the deposit of the said collateral was made at a time when your petitioner had no reason to believe and did not believe that the said coal company or the said C. J. Devlin were insolvent, if, indeed, they were at that time. Your petitioner further says that at Topeka, Kan., on June 14, 1904, the bankrupt C. J. Devlin, made, executed, and delivered to him his own certain promissory note in the sum of twenty-five hundred dollars ($2,500), a copy of which is hereto attached, marked ‘Exhibit B,’ and made a part hereof. At the time of the delivery of the said note to the applicant as collateral security for the payment of said note certificate No. 449 of the Bank of Topeka, Kan., representing 25 shares in said bank, of the par value of 82,500, and also as further collateral certificate No. 278 of the First National Bank, Topeka. Kan., representing 5 shares in said bank, of the par value of $100 each. Nothing has been paid upon the said promissory note marked “Exhibit TV and the same is wholly duo and imp aid, and the applicant says that the said obligation marked ‘Exhibit B’ was for a sum of money actually- loaned in the ordinary course of business, which was in all respects bona fide, and the deposit of the said collateral was made at a time when the applicant had no reason to believe and did not believe that the said Devlin was insolvent, if, indeed, he was at that time. The applicant further says that the value of the said Marquette Third Vein Coal Company bonds are 99 per cent. flat. The market value of the bank stock of the Bank of Topeka is worth 100 cents on the dollar or upwards. The bank stock of the First National Bank of Topeka is of unknown market value to this applicant. The applicant asks that he be given permission to sell the foregoing colla ¡.era! at public sale under reasonable forms and conditions to the parly who will pay the highest cash price therefor, and that if the proceeds of the sale exceed in amount the sum due on the said obligations that such surplus be applied to the payment of other obligations held by this applicant against C. J. Devlin, but which do not appear in the foregoing- application, and your petitioner asks for such other relief as ho may be entitled to in law.”</p> <p>On July 5, 1906, the referee made a finding and order, the concluding parts of which are as follows:</p> <p>“(3) There is due to the said Faulkner from the said Devlin the following sums: $7,500, with interest at 7 per cent, from February 37, 3905, and $2,300. with interest at 7 per cent, from June 14, 1904. As a conclusion of law the referee finds that the said Faulkner is entitled to sell said collateral in payment of the obligations of the said Devlin. It is therefore ordered that E. O. Faulkner has permission to sell said collateral at a price not less than three-fourths of tlie value as above fixed, and apply the same upon the said indebtedness. It is further ordered that the said sales take place at the front door of the Central National Bank of Topeka, Kan., upon Saturday, July 14, 1906, at 11 o’clock a. m., and that report be made of said sale for the purpose of confirmation and distribution of the funds, and that when said sale is confirmed the title to the said collateral so sold shall pass to the purchaser.”</p> <p>Pursuant to the terms of the order the collateral was sold for the aggregate sum of $7,700, and a report of sale was made to the referee. On July 18, 1906, the sale was confirmed by the referee, and $7,000 out of the proceeds were ordered to be credited upon the note of $7,500 and interest, and $100 were ordered to be credited upon the note of $2,500. Afterwards, and on tha same day, the petitioner filed with the referee his three affidavits, one of which is as follows: “At Topeka, in the county of Shawnee and state of Kansas, came E. O. Eaulkner, of said county and state, and made oath and said: That the said Chas. J. Devlin, the above-named bankrupt, at and before the filing of the petition in said matter, was and still is justly indebted to the said deponent in the sum of seventy-five hundred dollars. That the consideration of said debt is as follows: Borrowed- money drawing 7 peícent. interest from February 17, 1905, as shown by a note of which a copy is hereunto attached, marked ‘A,’ and made a part thereof. Judgment has been rendered thereon in this court. That no part of said debt has been paid, except by sale of collateral as hereinafter set forth, leaving due July 5, 1906, $625, for which said sum, or any part thereof, this deponent says that he has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of satisfaction or security whatsoever, except as hereinafter set forth by the sale of said collateral.”</p> <p>There was another affidavit of like general tenor relating to the $2,500 note and disclosing a balance due the petitioner thereon of $2,660. The third affidavit so filed detailed the proceedings already referred to by which the collateral had been sold and the proceeds applied upon the notes, and, after setting forth the efforts made by creditors to bring about a settlement with the bankrupt, continues thus: “That affiant took no steps concerning his claim and collateral, expecting that some plan might be devised by the said creditors’ committee to carry out the result they sought” — and.he then prayed “that this application may be considered as amendatory and supplemental to his claim filed July 5, 1905, and that the residue of said claim against the estate of said C. J. Devlin be liquidated and allowed as above set forth.” It further appeared in the affidavit that the bankrupt had died since the adjudication, and that no discharge had been granted to him, and no dividend declared in the estate.</p> <p>The trustees objected to the allowance of the balance due the petitioner upon the elaims, and moved to expunge them, for the reason that they were not filed within one year from the date of the adjudication. The referee sustained the motion of the trustees and made an order disallowing the claims, and the district judge, on a petition for review before him, approved his action and made an order accordingly.</p>

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

These proceedings were brought in behalf of Charles W. Anderson, United States internal revenue collector for the Second district of New York, plaintiff in error and defendant below, against 13.

<p>1. Shipping — Stevedores’ Wages — Charter Party — Construction.</p> <p>A charter provided that the charterer had the option of providing stevedores for discharging cargo at port of discharge, steamer paying for the same at current rate of 40 cents, and to provide cranes and winches with full necessary steam or hand power to work the same if required by the charterer, ship to load and discharge as rapidly as possible by night as well as by day when required to do so by charterer. The unloading was done by the charterer’s nominees by day and night; brokers representing both the ship and the charterer. In the account rendered the brokers charged the ship 40 cents a ton for unloading and an additional bill of $210.90 for night work by the stevedores; the celerity of the discharge being such as to also entitle the charterer-to $1,000 for discharge money. Held that, if the charterer elected to discharge both by day and night, the ship was only bound to furnish steam for the winches and pay the day discharge rate, and was not liable for extra pay to the stevedores for night work.</p> <p>2: Admiralty — Lirel—Amendment.</p> <p>Where a libel in form ad personam was answered, defended, and decided as such, it was not error for the court to refuse to permit respondent to shift his groun.d of defense after decision so as to claim that an action in rein was the proper remedy.</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United Slates for the District of New Jersey, in Bankruptcy.</p>

<p>Bankruptcy — Priority—Claim for Rent.</p> <p>Where property of a bankrupt, a part of which was subject to a landlord’s lien and a part not, was sold together in gross without objection, the proceeds cannot ■ be apportioned, so as to entitle the landlord to priority of payment from any part thereof.</p>

<p>Patents — Invention—Bottle Stopper.</p> <p>Tho Wcissenthanner patent, No. 801,281, for a sheet-metal closure for bottles, etc., is void for lack of invention.</p>

In Equity. Suit to restrain alleged infringement of United States letters patent No. 737,375,’ dated August 25, 1903, to Calvin C. Eggers, assignor to Arthur T. Prescott, for amusement apparatus, and for an accounting.

<p>Commerce — Interstate Commerce — Stock Yard — Safety Appliance Act— “Common Carrier.”</p> <p>Tlie defendant, the Union Stock Yards Company of Omaha, in connection with the business of furnishing facilities for stock yards, operates 35 miles of railroad, over which are hauled all the cars offered for shipment by any industry located on the line of said railroad, and all cars consigned to any such industry, and also cars from one railroad to another in course of shipment from one state to another, for which an arbitrary switching charge is made. Held, that defendant, in operating such railroad, is a common carrier, engaged in interstate commerce within the safety appliance acts. Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), amended April 1, 1896, c. 87, 29 Stat. 85, and March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885).</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, vol. 2, pp. 1313, 1319; vol. 8, p. 7607.]</p> <p>(Syllabus by the Court.)</p>

In Equity. These are supplemental bills by the several complainants to arrest the ■execution of certain statutes passed at the called session of the Legislature ■of Alabama in November, 1907, particular mention of which is made hereafter. It will conduce to a better understanding of the cases to recite briefly the history of the original bills and the events happening after they were at issue which are made the basis of the supplemental bills.

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

<p>1. Witnesses — Competency—How Proven.</p> <p>The competency of a witness, as affected by a former conviction of crime, must be determined alone from the record of a court of competent jurisdiction in which the conviction was obtained.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, § 199.]</p> <p>■2. Courts — Common Law Prevails.</p> <p>The rule in relation to the competency of witnesses, as affected by state statutes, does not apply in criminal cases in the courts of the United States, but their competency must be determined therein under the common law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 925.]</p> <p>3. Witnesses — Common Law — Embezzlement.</p> <p>Under the common law a conviction of the crime of embezzlement, as described in section 5209, Rev. St. (U. S. Comp. St. 1901, p. 3497), does not disqualify a witness, because such offense is not embraced within the three disqualifying classes, treason, felony, and the crimen falsi (citing Words and Phrases, vol. 2, p. 1741).</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 109-118.]</p> <p>4. Same — Conviction Under Federal Statute.</p> <p>Embezzlement, of the kind provided for in section 5209, Itev. St. (U. S. Comp. St. 1901, p. 3497), is a misdemeanor, and under the common law was merely a breach of trust; hence a conviction thereunder does not disqualify a witness in a criminal case.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 109-118.]</p> <p>5. Same — Modern Legislation and Decisions.</p> <p>It is the tendency of modern legislation and decision to broaden the field of the competency of witnesses and to restrict that of ineompetency. No witness, therefore, who has been convicted of crime, should be excluded from the stand, unless settled principles or precedents absolutely force such a construction.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Wituei...os, §§ 109-118.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Salvage — Nattjbe oe Awabd.</p> <p>The underlying idea in all salvage allowance is a reward or bounty for services in saving property from impending danger or imminent peril of loss to the owner by one on whom no legal obligation rests to perform such service.</p> <p>[Ed. Note. — Dor cases in point, see Cent. Dig. vol. 43, Salvage, § 1.</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6312, 6315; vol. 8, p. 7704.]</p> <p>2. Samp — Compensation—Salving op Debelict.</p> <p>The Schooner Jackson, loaded with lumber, bound from Savannah to New York, was wrecked in a storm, and became a derelict off Prying Pan Shoals In the track of coastwise commerce. Some days afterward the steamship Merrimac, with passengers and cargo, from Philadelphia, went out of her course, picked up the Jackson and towed her to an anchorage near the Capo Fear bar and signaled for tugs. The next morning a fishing steamer towed the Jackson inside the bar, and a tug then towed her to Wilmington. The Merrimac was worth from $300,000 to $400,000, and the service was attended with some danger from the Shoals. The Jackson before the wreck was worth $50,000. After being salved she was appraised at $2,250, and her cargo at $5,360. She was afterwards repaired. Held, that the service of the Merrimac was a salvage service, and that she was entitled to an award of $2,500, two-fifths to her officers and crew; that the tugs rendered only towage service, and were entitled to its value as such only.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Salvage, §§ 7-11.</p> <p>Awards In federal courts, see note to The Lamington, 30 O. C. A. 280.]</p>

<p>In Equity. Hearing on separate demurrers by defendants to bill of complaint.</p>