Volume 162 — Federal Reporter

<p>1. Trusts — P,reach oií Trust — Liabiuitt of Trustee.</p> <p>Defendant contracted to sell a vessel to a steamship company, which being indebted to complainant, it was agreed that defendant should transfer the vessel to the steamship company, take a mortgage covering, first, the remainder of the purchase price, and, second, the indebtedness due complainant, evidenced by a note executed by the steamship company to defendant as irustee. The bill of sale of the vessel was never in fact delivered, nor was the mortgage executed. Thereafter defendant, without notifying complainant or giving him any opportunity to protect his interest, which he was able to do, executed mutual releases with the steamship company, and with K., the moneyed man of that concern, formed another corporation, to which the vessel was conveyed; the steamship company going out of business. Defendant received of the stock of the new company an amount equal to the amount remaining due on the vessel ; K. receiving an amount equal to cash contributions which he made, necessary to free the vessel from liens for indebtedness incurred by the steamship company. Held, that such transaction constituted a breach of trust on defendant’s part, rendering it liable to complainant for the amount of its debt against the steamship company.</p> <p>2. Same — Parties.</p> <p>The steamship company was not an indispensable party to a suit by complainant against defendant for breach of trust.</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 Eastern District of Virginia, at Richmond.</p>

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

<p>Patents — Invention—Armatures.</p> <p>The Morrow patent. No. 504,401, for an armature for dynamo electric machines, claim 2, which covers an armature core comprising layers of segmental laminae dovetailed to an internal supporting shell, in which the segments in consecutive layers break joints, in view of the prior arr, which discloses segmental laminae which break joints, and also in the Parshall patent, No. 493,337, the same dovetail connection, except that the laminae are annular and not segmental, is merely an aggregation of old elements, which do not coaet nor perform any new function, and is void for lack of patentable invention.</p>

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

In Equity. On demurrer to bill for an injunction and account against the defendant for profits and damages as an infringer of patent No. 832,384, owned by the complainant, who claims to be the first inventor of certain new and useful improvements in candy pulling machines.

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

<p>1. Shipping — General Average Contribution on Account of Salvage— ■ Negligent Stranding of Vessel.</p> <p>A steamer sailing from Cienfuegos for New York, on her fourth trip from such port during the same season and under the same command, stranded on the first night out in calm weather on Sambo Head a low lying rock several miles northward of the course she had taken on the previous voyages. The master used a British chart which was incorrect and contained a caution that its accuracy was not to be relied on, as no-regular survey of the coast had been made.' A more nearly correct chart had been made by the United States Coast Survey which could have been obtained, but the master made no inquiry. The vessel had proceeded for more than an hour before stranding over shoals and near charted reefs, which a vigilant lookout should have observed. Held that, in the absence of any reasonable explanation of the unusual position of the vessel, the stranding must be charged to her negligent navigation, and that she was not entitled to recover contribution in general average from the cargo owners on account of salvage expenses.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 602.]</p> <p>2. Same — Suit in General Average by Cargo Owner — Effect of Harter Act.</p> <p>Where a portion of a vessel’s cargo was jettisoned on account of her stranding solely by reason of her negligent navigation, while section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946]) exempts tke^essel and' owners from liability to the cargo owner in tort for his loss, it does not affect the right of the cargo owner to maintain a suit against the vessel for a general average contribution in consequences of such loss.</p> <p>3. Same — Salvage—Adjustment in General Average.</p> <p>After a vessel had been stranded through negligent navigation, the owner contracted for her salvage, agreeing to pay a certain per cent, of her salved value, the agreement not extending to the cargo. After the vessel and greater part of the cargo had been brought safely into port, the cargo owners settled independently with the salvors, paying a smaller per cent, of the salved value than that paid by the shipowner. Held, that the latter payment was properly a salvage payment, made for the benefit of all interests, and that under the American law, and section 3 of the Harter act (Act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St 1901, p. 2946]), in a suit by tbe cargo owners to enforce against the vessel, a general average contribution on account of cargo .jettisoned, the shipowner was entitled to have the salvage payments made by the respective parties taken into the general average adjustment although not entitled to an affirmative recovery of any balance which might be due him on such adjustment.</p> <p>[Ed. Note. — (tenoral average, see notes to Pacific Mail S. S. Co. v. New York, H. & R. Mining Co., 20 C. O. A. 357; The Santa Anna, 84 C. C. A. 316.]</p>

<p>1. CoiaxsioN — Steam and Sailing Vessels — Excessive Speed op Steamer in Eog.</p> <p>Under rules 20 and 21 of the navigation rules of 1864, which required a steam vessel to keep out of the way of a sailing vessel and to go at a moderate speed in a fog, and the rule of decision requiring a steam vessel to proceed at such reduced speed in a fog as to be able to reverse her engines and come to a standstill before colliding with a vessel which she ought to .see, the United States gunboat Winooski, proceeding at night in a dense fog 35 or 40 miles off the coast of Nova Scotia, and in the track of vessels on the way to or from Halifax, at a speed of seven knots an hour, was going at an excessive speed, and was in fault for a collision with a brig not shown to have taken any action to embarrass the steamer in the performance of her duty or to have failed in any way to duly apprise the steamer of her approach.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 10, Collision, § 170.</p> <p>Collision rules — Speed of steamers in fog, see note to The Niagara, 2S C. C. A. 532.]</p> <p>2. Same — Speed op Sailing Vessel — Evidence.</p> <p>A speed on the part of the brig of 3 or even 3% knots an hour, which wa ■? barely sufficient to give her steerageway, was not excessive, and evidence that her speed did. not exceed that rate is entitled to credence, in the absence of any entry in the log of the steamer, which was very complete and full in giving the details of the disaster, indicating that the brig was going at excessive speed.</p> <p>LEd. Note. — Eor cases in point, see Cent. Dig. vol. 10, Collision, § 171.</p> <p>Collision rules — Speed of sailing vessels in fog, see note to The Mount Hope, 29 C-C. A. 368.]</p> <p>3. Same — Lights— Evidence.</p> <p>Direct and positive evidence from the brig that her lights were properly lighted and set 45 minutes before the collision is sufficient to establish the fact that they were burning at the time of collision, when corroborated by the log of the steamer, kept by the acting master, stating that the brig’s lights were reported and were seen by him immediately before the collision, as against the testimony of persons from the steamer that they were not burning when they went on board the brig after the collision, which was of such force as to throw her substantially on her beam ends.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. ID, Collision, § 123.]</p> <p>4. Same — Lookout—Poo Signals.</p> <p>Evidence considered, and held to show that the brig had a proper lookout, that he was sounding the fog horn at shorter intervals than required by the rules, that his failure to hear the fog whistle of the Winooski was not a fault and was immaterial, as it was heard by the mate in charge, and that the brig was in no way chargeable with fault contributing to the collision and could not have avoided it after hearing the whistle, but that it was due solely to the excessive speed of the gunboat.</p> <p>[Ed. Note. — Eor cases in point, see Cent Dig. vol. 10, Collision, § 151.]</p> <p>5. Same — Suit fob Collision — Evidence.</p> <p>Where one of two vessels in collision charges the other with faults, which if the charges are true would have been obvious, the fact that her own log, written at the time, makes no mention of them, is significant and tends to discredit her claim.</p>

<p>1. Collision — Damages—Value or Property.</p> <p>Evidence as to tlie value of a vessel and her equipment at the time she was sunk in collision considered.</p> <p>2. Same — Damages Recoverable — Unearned Freight.</p> <p>Unearned freight under a charter cannot be allowed to a vessel sunk in collision as damages, unless facts are shown from which the court can estimate the net freight with reasonable certainty.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 282.]</p> <p>8. United States — Claims Against — Interest.</p> <p>In view of the general rule that interest is not recoverable against the United States, and the statute prohibiting the allowance of interest against it by the Court of Claims, interest cannot be allowed by a court of admiralty on a claim for damages for the sinking of a vessel in collision by a United States gunboat, referred to such court by a special act of Congress, unless such act expressly authorizes it, and a provision that the proceedings, including “the measurement of damages," shall be the same as in other admiralty cases, cannot be considered such express authority.</p>

<p>Bankruptcy — Adverse Claim to Property — Estoppel.</p> <p>To establish an effective estoppel, there must have been a situation where positive and clear loss has followed the acts complained of; and the fact that at a meeting of creditors of a bankrupt where a composition was under consideration one having title to certain property then in the possession of the trustee which he could have enforced kept silence in respect to his right will not estop him to assert the same after the composition has been rejected.</p>

<p>1. United States — Claims—Interest.</p> <p>Under the express provisions of Rev. St. § 1091 (U. S. Comp. St. 1901, p. 747), interest is not recoverable against the United States on unpaid accounts or claims, in the absence of a stipulation to pay interest, or a statute allowing it.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, United States, § 93.]</p> <p>2. Eminent Domain — Taking Rand — Nature op Proceeding.</p> <p>A pr<xeeding by the United States for the condemnation of land for public use, and for the assessment and payment of damages therefor, is not a proceeding to collect an account or claini against the United States, but an adversary proceeding instituted by the United States against landowners for the taking thereof.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 3.1</p> <p>3. Same — Exercise of Right.</p> <p>The exercise of a right of eminent domain is a prerogative of sovereignty, but is subject to the constitutional provision requiring payment of “just compensation.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 1, 2, 171.]</p> <p>4. Same — Interest on Award.</p> <p>Act Cong. Aug. 1, 1888, c. 728, 25 Stat. 357 (U. S. Comp. St. 1901, p. 2516), authorizes condemnation of land for public use by the United States, and section 2 declares that the practice, pleadings, forms, and modes of proceeding shall conform to the practice, pleadings, forms, and proceedings existing in courts of record in like cases in the state. Rev. Laws Minn. 1905, § 2534, declares that on payment of damages, witli costs and interest, it' any, in condemnation proceedings, the petitioner may take possession, etc., and section 2535 declares that all such damages. whether assessed by commissioners or on appeal, shall bear interest from the time of filing the commissioners’ report. Held, that an order in proceedings in the United States District Court for the District of Minnesota, confirming a report of commissioners in condemnation proceedings by the United States, properly awarded interest on the damages assessed for the land taken from the date of the commissioners’ report.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 18, Eminent Domain, §§ 397-399%.]</p> <p>Philips, District Judge, dissenting.</p>

<p>1. Master and Servant — Master’s Diability for Injuries to Servant-Proximate Cause oe Injury.</p> <p>Plaintiff, while employed in defendant’s tin plate mill, was injured by the overturning upon him of a small carriage or “buggy,” loaded with plates, which was being drawn over the brick floor of the mill by two other workmen, close behind plaintiff where he stood at work at a shearing bench. The evidence tended to show that one of the wheels of the buggy ran into a hole or depression in the floor, and that the man having hold of the handle was turning it from side to side, while the other was pushing behind, in an effort to raise the wheel from the hole, when it was overturned. Held, that under such circumstances the defective condition of the floor, and not the movement of the workman in the effort to extricate the wheel, was the proximate cause of the injury, the said movement being the natural and to be expected consequence of the dropping of the wheel into the depression, and that under such evidence the question of proximate cause was for the jury.</p> <p>2. Same — Risks Assumed by Servant.</p> <p>The question whether plaintiff assumed the risk arising from the defective floor, assuming it to have been defective, was one for the jury, under evidence showing that he was a minor and inexperienced and his own testimony that while ho know of the defective condition of the pavement he did not know and had not been warned that any such accident as that causing his injury was likely -to result therefrom.</p> <p>[Ed. Note. — for cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1068-1088.</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>3. Same.</p> <p>Risks due to the negligence of the master are not to be included among the ordinary risks of the employment assumed by the servant, and in order to relievo the master from liability for an Injury resulting from his neglect of any of the primary duties owing from him to the servant it must lie made affirmatively to appear, not only that the situation so brought about was apprehended by the servant, but also that the particular danger arising therefrom was appreciated by him.</p> <p>LEd. Note. — For cases in point, see Gent. Dig. vol. 34, Master and Servant, §§ 57A-G00.]</p>

<p>1. Grasd Juby — Oatii—Nature op Provisions.</p> <p>The oath of a grand juror requires him (a) diligently to inquire and true presentment make of all such matters and things as are given him in charge; (b) to present no one for envy, hatred, or malice; (e) to leave no one unpresented for fear, favor, or affection, reward, or hope of reward; (d) the United States’ counsel, his fellows’, and his own to keep secret. Jield. that the first three subdivisions of the oath are mandatory, but that the fourth is not.</p> <p>2. Same — Secrecy.</p> <p>Tlie policy of the law does not require a grand juror to keep the evidence adduced in a grand jury room secret after the presentment and indictment has boon found and made public, accused has been appreheudcd, and the grand jury finally discharged.</p> <p>3. Contempt — Federau Court — Jurisdiction—Statutes.</p> <p>The common-law power of federal courts to enforce their mandates by contempt proceedings is restricted by Rev. iát. § 725 (U. S. Comp. St. 1903, p. 5S3), declaring that such power shall not extend to any cases ex-cepi misbehavior of any person in tlie presence of the court or so near as to obstruct tlie administration of justice, misbehavior of any of the officers of the court in their official transactions, and the disobedience or resistance of any such oiiicer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of such courts.</p> <p>4. Same — Proceedings op Grand Jury — Disclosure.</p> <p>Rev. St. § 725 (U. S. Comp. St. 1903, p. 583), authorizes punishment for contempt by federal courts where there has been disobedience or resistance by any juror of any lawful writ, process, order, rule, decree, or command of the courts. Tla/d, that a grand juror was not subject to punishment for contempt for disclosing proceedings in the grand jury room after Hie grand jury haft been discharged.</p>

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

<p>Bankruptcy — Liens—Distraint by Landlord eor Rent — “Lien Obtained through Legal Proceedings.”</p> <p>All goods on demised premises, by the common law, or the statutory law of Pennsylvania, may be considered as under a quasi pledge to the landlord, which gives superiority to the specific lien acquired by a dis-traint. Such a lien is not one obtained through legal proceedings within Bankr. Act July 1, 1898, c. 541, § 67f, 30 Stat 565 (U. S. Comp. St. 1901, p. 3450), and is not divested by the bankruptcy of the tenant within four months thereafter, and the. same rule applies where the bankrupt was a subtenant, admitted to the premises by the lessee without the landlord’s consent.</p>

<p>1. Courts — United States Circuit Court oe Appeals — Appeal and Error— Assignments oe Error — Sufficiency.</p> <p>Rule 11 of the Circuit Courts of Appeals (130 Fed. xxvii, 79 C. C. A. xxvii), requiring assignments of error to set out separately and particularly each error asserted and intended to bo urged, is for the purpose of facilitating the business of the court, and must be observed.</p> <p>2. 'JOriau — Direction oe Verdict — Discretion oe Court.</p> <p>The direction of a verdict is discretionary with the trial judge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 401.]</p> <p>8. Master and Servant — Injury to Servant — Running Railroad Train Backward at Night.</p> <p>The running of a railroad train at night a distance of 84 miles backward, with no headlight to light the track in front of it, subjects the trainmen to extra and unusual hazard, and requires from the railroad company at whose orders it is done a degree of care and caution to keep the track free from obstructions commensurate with such extra risk.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 264-275.]</p>

<p>1. Contracts — Written Contract — Alteration by Parol.</p> <p>A written contract cannot be changed after its execution by a parol agreement, unless in exceptional cases and upon a valuable consideration.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, § 1123.]</p> <p>2. Sales — .Action eoe Price — Evidence—Relevancy—Parol Evidence to Vary Contract.</p> <p>In an action to recover the price of machinery sold under a written contract, evidence offered by defendant to show that the machinery failed to comply with a warranty contained in a prior contract between the parties, which had been fully executed, on the claim that such warranty had b'xm incorporated in the second contract by parol agreement made after its execution, field properly excluded as irrelevant to the issues.</p>

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern ■District of Wisconsin.</p> <p>The decree of the Circuit Court affirmed the decision of the Board of General Appraisers, which upheld the ruling of the collector of customs that certain wood pulp imported by appellant was subject to an additional or countervailing duty at the rate of 25 cents for each cord of wood from which the pulp was made.</p> <p>Tariff Act July 24, 1897, c. 11, § 1, Schedule M, par. 393, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1671), imposes duty on wood pulp as follows:</p> <p>“Mechanically ground wood pulp, one-twelfth of one cent per -pound, dry weight: chemical wood pulp, unbleached, one-sixth of one cent per pound, dry weight: Provided, that if any country or dependency shall impose an export duty on pulp wood exported to the United States, the amount of such export duty shall be added, as an additional duty, to the duties herein imposed upon wood pulp, when imported from such country or dependency.'’</p> <p>The pulp was manufactured in the province of Ontario, Dominion of Canada, from wood cut on public (crown) lands in the province of Quebec.</p> <p>Certain British and ’Canadian statutes were proved. The British Parliament, by the British North America Act (chapter 3, St. 30-31 Yiet.) gave to the Parliament .of Canada exclusive legislative authority with respect to “(1) the public debt and property; (2) the regulation of trade and commerce; (3)-the raising of money by any mode or system of taxation.”</p> <p>By the same act the respective provincial- Legislatures were given power-over “(2) direct taxation within the province in order to the raising of revenue for provincial purposes; * * * (5) management and sale of public lands belonging to the province, and of the timber and wood thereon; * * * (9) shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of revenue for provincial, local, or municipal purposes.”</p> <p>The Dominion Parliament has not imposed, in name or in effect, an export duty on pulp wood. By chapter 17, St. 60-61 Viet., the Dominion Parliament has authorized the Governor in council, under certain circumstances, to declare an export duty on puln wood. This authority has not been exercised.</p> <p>The Quebec Legislature (chapter 6, tit. 4, Rev. St.) has provided as follows:</p> <p>“The commissioner of crown lands, or any officer or agent under him authorized to that effect, may grant licenses ,to cut timber on the ungranted' lands of the crown, at such rates, and subject to such conditions, regulations and restrictions as may, from time to time, be established by the Lieutenant Governor in council, and of which notice shall be given in the Quebec Official Gazette.”</p> <p>Under this authority the following stumpage tariff was adopted:</p> <p>“All wood goods cut in virtue of a license are subject to the following-charges: * * =■- Pulp wood per cord of 128 cubic feet, ’* * * 65 cents, with a reduction of 25 cents per ,cord on timber manufactured into paper pulp in the Dominion of Ganada.”</p> <p>•• In the record it is stipulated “that by virtue of such regulation all pulp wood cut on the crown lands in the province of Quebec under a license from the commissioner of crown lands of the province, or any officer or agent under him authorized to that effect, is subject to a charge of 65 cents per cord with a reduction of 25 cents per cord on timber manufactured into paper pulp in the Dominion of Canada.”</p> <p>The parties agree that no export duty, in name or in effect, is levied on pulp wood cut on private lauds in the province of Quebec, or on pulp wood cut on either public or private lands in the province of Ontario.</p>

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

<p>On motion to rehear.</p>

This cause comes here upon appeals from decrees of the District Court holding both steam vessels in fault for a collision between the ferryboat Jamaica and the steamer John H. Starin, and for'a collision , immediately ensuing between the latter and the barge McDain made fast to a pier. The opinion of the District Court is found in 145 Fed. 723. It fully sets forth all the facts.

<p>1. Patents — Suit fob Infringement — Scope and Extent of Relief.</p> <p>Only under exceptional circumstances will a court, in its decree finding infringement of a patent, provide that the infringing machines shall be delivered up to the complainant to be destroyed.</p> <p>2. Same — Damages—Failure to Mask Patented Article.</p> <p>Where put in issue, the complainant in a suit for infringement of a patent for a machine is required to prove affirmatively that machines made thereunder were marked as required by Rev. St., § 4900 (U. S. Conip. St. 1901, p. 3388), or that notice of infringement was given to the defendant, to entitle complainant to recover damages for infringement prior to the filing of the bill.</p>

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

<p>1. Patents — Invention—Attachment for Piano Players.</p> <p>The Whitmore patent, No. 791,967, for an attachment for piano players, is void for lack of novelty and patentable invention.</p> <p>2. Same — Infringement.</p> <p>■ The Hobart patent, No. 765,240, for a tune sheet attachment for piano players, was not anticipated and discloses invention in respect to the detachable box containing the tune sheet and feed roller. Also, held infringed.</p>

In Equity. Action to have it declared what lien, if any, the defendant Christopher L. Williams, as receiver of the Fredonia National Bank, has upon 500 shares of the capital stock of the defendant J. H. Bunnell & Co., a corporation, and which shares were owned by plaintiff’s intestate, Albert ,T. Wise, and pledged by.him, it is alleged, with said bank as a continuing and collateral security for certain promissory notes upon which said Wise was liable to the bank either as…

<p>On Motion to Quash Indictment.</p>

<p>In Bankruptcy.</p>

<p>1. Receivers — Duties and Powers.</p> <p>Receivers are instrumentalities of the court, and are required to be impartial as between the parties litigant, and should have authority from the court, either express or implied, for all of their acts.</p> <p>2. Corporations — Mortgages — Foreclosure — Receivers — Right to Take Part in Litigation — Exceptions to Master’s Report.</p> <p>Receivers appointed for the property of a corporation in a suit to foreclose a mortgage thereon have no' standing to file exceptions to the report of the master determining the respective rights of the mortgagees and other creditors, nor will such exceptions be entertained when filed in the name of the receivers “and creditors,” no creditors being named.</p>

<p>1'. Seamen — Contract for Service — Termination oe Voyage.</p> <p>Libelants signed in San Francisco for a whaling voyage to the Arctic Ocean on stated lays; the voyage not to exceed 36 months. On the way north the vessel broke a shaft and was obliged to return to San Francisco for repairs, having been away but about a month. Held, that the voyage was not terminated on such return, and that the refusal of the master to permit libelants to there leave the-vessel, authorized by the shipping articles during the voyage, did not entitle them to treat the contract as rescinded and to recover on a quantum meruit for the remainder of their term of service.</p> <p>2. Infants — Contract by Minor — Disaffirmance.</p> <p>Seamen, who were minors when they signed shipping articles, may dis-affirm the contract and recover the reasonable value of the services rendered, regardless of the contract terms.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Infants, §§ 149-160.]</p> <p>3. Seamen — Mistreatment by Master.</p> <p>Assaults made by a master upon seamen or their confinement by him in unnecessarily cruel positions are violations of their personal rights for which both the' master and vessel are liable in damages.</p> <p>4. Same — Rights and Duties After Expiration of Term of Service — Icebound Vessel.</p> <p>Where, at the time of the expiration of the contract term of service of seamen on a whaling voyage to the Arctic Ocean, the vessel was icebound without fault of the master or owners, they were not thereby released from the obligation to perform their ordinary duties as seamen until they could be taken or sent to the port of discharge, and the master was justified in placing them in irons on their refusal to perform such ordinary duties, but they could not be required to resume the business of whaling after the vessel was released, and the confinement in irons of one of them because of his refusal to do so entitled him to damages.</p> <p>5. Estoppel — Release—Invalidity.</p> <p>A release signed by a seaman on leaving the vessel while in the Arctic Ocean before her return to the port of discharge, where there was no settlement with him for .his services, did not estop him from maintaining an action therefor or from recovering damages for mistreatment by the master.</p>

<p>1. Railroads — Statutory Regulations — Penalties.</p> <p>An action brought to recover the penalty provided, for in the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531. [ü. S. Comp. St. 1901, p. 3174]) is not a criminal case.</p> <p>2; Same — Evidence—Weight and Sumtoiency.</p> <p>The government need not prove its case beyond a reasonable doubt. It is sufficient if it furnishes clear and satisfactory evidence of all the necessary facts.</p> <p>3. Same — Safety Appliances — Automatic Couplers.</p> <p>The act requires that cars be equipped with couplers which can bo automatically coupled, and which can be uncoupled without the necessity of a person going between the ends of tlje cars on that side which said person might he.</p> <p>4. Same.</p> <p>The act applies to an empty car which is part of a train moving interstate traffic, as well as to a car which is itself moving sneh traffic.</p> <p>(Syllabus by the Court.)</p>

<p>.1. Caeriers — Interstate Commerce — Rates—Review by Interstate Commerce Commission — Actions—Condition Precedent.</p> <p>Interstate Commerce Act Feb. 4, 1887, c. 104, § 16, 24 Stat. 384 (U. S. Comp. St. 1901, p. 3165), as amended by Act Cong. June 29, 1906, c. 3591, § 5, 34 Stat. 590 (U. S. Comp. St. Supp. 1907, p. 902), provides that if, after hearing on a complaint by shippers, the commission shall determine that any parly is entitled to an award of damages for a violation of the act, the commission shall direct payment thereof, and if the carrier does not pay within the time limited in the order the complainant may sue to recover such damages, and in such suit the findings and order of the commission shall he prima facie evidence of the facts therein stated. All complaints for the recovery of damages are also required to be filed with the commission within two years after the cause of action accrues, and a petition for the enforcement of an order within one year after the date of the order. Held, that an action by an interstate shipper to recover damages for a charge of illegal and excessive rates is not maintainable until after a hearing and award before the Interstate Commerce Commission.</p> <p>2. Same — Peiob Decision.</p> <p>Where an interstate rate on railroad ties, duly filed, had never in itself been declared illegal or excessive by the Interstate Commerce Commission, the fact that such rate was higher than the rate charged for rough lumber, and that the commission in another proceeding had determined that rough lumber and railroad ties should take the same classification, was insufficient to entitle a shipper having paid the tie rate to recover the excess over the rate fixed for lumber, without a hearing and an award before the commission.</p>

<p>1. Homicide — Justifiable Homicide — Self-Defense.</p> <p>In a prosecution for murder charged to have been committed on a military reservation, if the evidence is such as to satisfy the jury that the defendant was a trespasser on the reservation, and was waiting around with the intent and purpose of bringing on a difficulty with another, and did in fact bring on the difficulty with the person killed, who met his death from a shot fired by defendant, such killing cannot be justified as in self-defense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, §§ 145-150.]</p> <p>2. Same — “Murder”—Killing One with Design to Effect Death of Another.</p> <p>If a man shoots at another with the intention of killing him (and such killing if consummated would be murder), and kills a bystander or another, he is guilty of the murder of the person killed, whether the killing of the latter was due to a mistake as to his or her identity, or to recklessness in the aim of the one doing the killing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, § 23.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4632-4637; vol. 8, pp. 7726, 7727.]</p> <p>3. Same — “Malice.”</p> <p>Malice, legally speaking, in relation to murder, is a conscious violation of law to the prejudice of another; evil design in general; the dictates of a wicked, depraved, and malignant heart.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 26, Homicide, § 15.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712, 7713.]</p>

<p>Sales — Transfer of Title — Waiver of Default in Payment of Price on Delivery.</p> <p>Defendant corporation purchased two locomotives from petitioner, to be.settled for on delivery by a cash payment and the execution of two notes running 60 and 90 days. The locomotives were delivered, and were used by defendant until a receiver was appointed for it 7 months later, although no settlement was made for them until 5 months after their delivery, when defendant made a cash payment, executed notes for the remainder of the price, and accepted a lease from petitioner, by which the latter was to retain title to the locomotives until full payment. Held, that under the law of Pennsylvania the failure to promptly exercise its right to reclaim the property after defendant’s default in payment was a waiver of such right, and the title thereupon passed to defendant, leaving it a debtor for the price; that, having no title to the property at the time it was given and accepted, petitioner acquired no rights in the property by the lease, either of ownership or by way of security.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 43, gales, §§ 552-556.]</p>

<p>1. Courts — Jurisdiction oj? Federal Courts — Amount in Controversy.</p> <p>In a suit for an accounting by a surviving partner, the amount in controversy is the value of the entire partnership property, and where that exceeds $2,000 it is sufficient to sustain the jurisdiction of a federal court.</p> <p>[Ed. Note. — Jurisdiction of Circuit Courts as determined by tbe amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p> <p>2. Partnership — Contract Creating — Partnership or Lease.</p> <p>A written contract, in the form of a lease of a farm by the first party to the second for a term of years, provided that the first party should furnish with said farm one-half of all the stock, seed, teams, feed, and machinery necessary to work the farm, and pay one-half of the taxes on the persona] property and one-half the repairs on machinery and tools; that the second party should furnish the remaining half of Such items, farm the laud in a workmanlike manner, and deliver up to the first party “one-half of all the products of such farm” and the premises and appurtenances at the expiration of the term. Held, that such contract was one of lease, and not of partnership, the parties sharing gross returns, and not profits, and the business to be conducted by the second party in his discretion and on his sole responsibility, and that the fact that in practice the second party sold the products, and paid the expenses, cost of additional stock, machinery, etc., from the proceeds, and divided the remainder, with the assent of the first party, was merely a matter of Convenience, which did not change the nature of the contract, nor show an intention to'do so.</p> <p>_[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Partnership, §</p>

In Bankruptcy. Habeas corpus to test validity of the imprisonment of a bankrupt for disobedience of an order of the bankruptcy court. The opinion states the case.

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

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

<p>Injunction — Subjects oe Protection and Belief— Controlling Action op State Board.</p> <p>A court of equity is without power to interfere by injunction to control in advance the exercise of the legislative power conferred on the State Railway Commission by the Constitution and statutes of Nebraska to fix reasonable and just rates for the transportation of property between points within the state, by restraining such commission from considering or acting upon the question of establishing new rates on any given commodities, or from giving notice to a railroad company of any order which may be adopted establishing such rates.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

<p>1. Seamen — Contract of Hieing — Deviation from Voyage Named in Shipping Articles.</p> <p>Shipping articles for a voyage describe'd as “from the port of Seattle to Shanghai, China, and such other ports and places in any part of the world as the master may direct,” required the vessel after leaving the port of departure to proceed directly by the ordinary route to Shanghai, and to touch at no intermediate port unless the exigencies of the voyage required that she enter the same for coal, supplies, repairs, or other like reason, and where she proceeded by way of Dutch Harbor, Alaska, into the Okhotsk Sea, intending to make the port of Vladivostok with a cargo which was at the time contraband of war, she deviated from the voyage described in the contract, and the members of the crew were entitled to recover damages resulting from their exposure while caught in the ice, consequent upon such deviation to an unusual course in the winter, and from confinement after the capture of the vessel by a Japanese warship.</p> <p>2. Same — Variance of Shipping Articles by Parol.</p> <p>Under Rev. St. § 4511 (U. S. Comp. St. 1901, p. 3008), which provides that the shipping articles signed by a crew shall indicate the nature of the intended voyage, the shipowner cannot vary such articles by evidence of a verbal agreement, made at the time they were signed, that the voyage should be other than that described therein.</p> <p>3. Same — Action for Breach of Contract — Damages.</p> <p>Evidence considered, and hold to sustain the decree of a court of admiralty awarding damages to seamen for injuries suffered by reason of the deviation of the ship from the voyage designated in the shipping articles.</p>

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

<p>1. Criminal Law-Appeal and Error — Affirmance—Modification of Judgment.</p> <p>On affirmance of a conviction on a writ of error by the Circuit Court of Appeals, it is the duty of the trial court after it has received the mandates of the Circuit Court of Appeals, in the absence of permission given by the latter to hear an application for a new trial, to see that the judgment is carried into execution.</p> <p>2. Same — New Trial After Affirmance — Newly Discovered Evidence.</p> <p>Where, in a prosecution for carrying on the business of a rectifier of distilled spirits with intent to defraud the United States of the tax thereon, and for removing and concealing distilled spirits on which the tax had not been paid, there was ample evidence to justify petitioner’s conviction, and to show his connection with certain licjuor concerns in the business.of which the frauds were perpetrated, and such conviction was affirmed on a writ of error by the Circuit Court of Appeals, the judgment would not be modified so as to leave to the trial court discretion to grant petitioner a new trial for newly discovered evidence, that he was not connected with such concern which evidence was available, and must have been known to petitioner at the trial, but was nob produced.</p>

Judgment was entered upon the verdict of a jury in favor of the defendant in error, who was the plaintiff below. In the opinion followingthe parties are designated as in the trial court.

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

<p>1. Appeal and Error — Review—Matters Reviewable — When Directed Verdict is Asked by Both Parties.</p> <p>Where both parties request a directed verdict, the defeated party is estopped to claim that any question of fact should have been submitted to the jury, and the only questions reviewable on a writ of error are (1) whether there was any substantial evidence to support the court's finding upon the facts, and (2) whether there was any error in the application of the law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. voL 3, Appeal and Error, § 4024.] •</p> <p>Operation and effect of motions by both plaintiff and defendant for direction of verdict, see note to Love v. Scateherd, 77 C. C. A. 8.]</p> <p>2. Same — Second Review — Law op Case.</p> <p>Questions which were once determined by an appellate court or conceded on the hearing therein will not be considered on a second appeal or writ of error in the same case.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4358-4368.]</p> <p>3. Insurance — Life Insurance — “Abandonment op Contract.”</p> <p>Where an insured under a life policy refused to pay an assessment made against him solely on the ground that the amount of the assessments had been increased, but without any claim that the increase was illegal, and formally notified the company that he withdrew therefrom, such action constituted an “abandonment of contract,” which precluded a recovery on his policy after his death, unless some other act supervened to reinstate his claim.</p> <p>4. Same — Estoppel Affecting Right to Avoid Policy — Furnishing Blanks for Proof op Death.</p> <p>The furnishing by a life insurance company to a beneficiary named in one of its policies of forms for making proof of the death of the insured does not estop it from asserting that the policy had lapsed and was not in force at the time of the death, where such forms were furnished at the request of the beneficiary, and were accompanied by a letter stating that it was done without prejudice to or waiver of any of the company’s rights, and also stating its claim that the policy had lapsed.</p>

<p>1. Appeal and Error — Review—Matters Reviewable when Directed Verdict is Asked by Both Parties.</p> <p>Where both parties request a directed verdict, the defeated party is estopped to claim that any question of fact should have been submitted to the jury, and the only questions reviewable on a writ of error are (1) whether there was any substantial evidence to support the courts finding on the facts, and (2) whether there was any error in the application of the law.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4024.</p> <p>Operation and effect of motions by both plaintiff and defendant for direction of verdict, see note to Love v. Scatcherd, 77 C. C. A. 8.]</p> <p>2. Logs and Logging — Booi^f Companies — Powers under State Statute.</p> <p>Laws Minn. 1889, p. 351, c. 221, § 2, relating to boom companies as amended by Laws Minn. 1905, p. 100, c. 89, which authorizes the organization of such companies to take possession of and improve any streams for the purpose of aiding in the driving and handling of logs therein, and to take charge of and drive logs at the request of the owner and make a charge therefor which shall be a lien on the logs, cannot be construed to authorize such a company to extend its works beyond the center of Rainy Lake river and within the jurisdiction of the Dominion of Canada.</p> <p>3. Same — Riobit to Lien for Toll — Obstruction bx Boom of International Waters.</p> <p>Defendant, a boom corporation, organized under the laws of Minnesota, had its principal booms on the Minnesota side of the Rainy Lake river, but extended its sheer boom across to the Canadian shore for the purpose of turning all logs floated in the river into its boom. Plaintiff, a Canadian lumber company, cut logs on the Canadian side and placed them in the river, to be floated down to its mill, which was on the same side. The river was free from obstructions, and no artificial aid to the floatage of the logs was necessary; but they were caught by defendant’s sheer, and directed into its boom, where it sorted them from the logs of its customers and then again turned them into the river below. Thére was no contract between the parties; but defendant claimed its established tolls for handling such logs, and held a quantity of the same, claiming a lien thereon under the statute. Held, that under the Webster-Ashburton treaty of 3842 between Great Britain and the United States, which made the Rainy Lake river a part of the international boundary and provided that it should be “free and open to the use of the citizens and subjects of both countries,” defendant’s booms, at least such part as extended within the jurisdiction of Canada, were unauthorized and unlawful obstructions of the river, and that plaintiff could not be subjected by means thereof, without its consent, to tolls for handling its logs, and was entitled to maintain replevin in a court of the United States for the logs so unlawfully held by defendant.</p> <p>Sanborn, Circuit Judge, dissenting.</p>

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

<p>CANCELLATION OF INSTRUMENTS — RlGI-IT OF ACTION — ADEQUATE REMEDY AT Law.</p> <p>A court of equity will not entertain a suit for the cancellation of a nonnegotiable contract, alleged to be false and fraudulent, on which the defendant has brought an action at law, since the question of the genuineness of the instrument may be fully and Anally adjudicated in such action.</p> <p>[Ed Note. — For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments, §§ 8, 13.]</p>

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

This cause comes here upon appeal from a decree of the District Court, Southern District of New York (145 Ned. 837), holding- the tugs liable for injury to the boat W. T. Lewis, which the tug Terry had in tow; said injury being caused by floating ice, which struck the boat on the port corner of her bow and knocked out a plank.

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

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

The defendants appeal from judgments entered against them in the District Court for the Southern District of New York on the 14th of August, 1907, for $570,46 in the first of the above entitled actions and for $3,685.22 in the second. The actions were brought to set aside, as preferential and void, payments made to the defendants by W. C. Loftns & Co., a corporation, on the day preceding the-filing of the i>etition in bankruptcy and when the corporation was insolvent.

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

<p>In Bankruptcy. On application fo.r discharge.</p>

<p>1. BANKROTTCr— EXEMPTIONS — 'TIME FOR CLAIMING.</p> <p>Ordinarily it is sufficient if a bankrupt makes his claim to exemption in liis sc-liedules, and an extension of time for tiling his schedules also extends the time for making such claim.</p> <p>2. Same — KissnuiNCE of Bankrupt.</p> <p>A bankrupt who, prior to the institution of involuntary proceedings against him, abandoned his business in Pennsylvania and went with his wife to reside with his parents in another state, while seeking a position to work wherever it might be found, and in fact secured a position in a third state, where he was when his schedules were filed, and to which he subsequently removed his wife and household goods, although he returned to Pennsylvania a year later on obtaining a position there, was not a bona fide resident of that state when his schedules were tiled, so as to be entitled to claim exemptions under its laws.</p>

<p>In Bankruptcy. Certificates of referee.</p>

<p>1. Master and Servant — Master’s Liability iron Injury to Servant — Fellow Servants.</p> <p>Tlie crows of two vessels owned by the same employer are not by reason of that fact in a common employment, and a member of one crew is not a fellow servant with members of the other.</p> <p>]Ed. Nolo. — For eases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 405. 406, 492.]</p> <p>2. Same — Master oe Vessel and Seamen.</p> <p>The master of a vessel is not a fellow servant with any other member of the crew.</p> <p>LEd. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 492.]</p>

<p>1. Indians — Descent and Bistkibution.</p> <p>Under the provisions of section 28 of the original agreement between the United States and the Creek Nation and approved by Act Cong. March 1, 1901, c. G7G, 31 Stat. 869, no child bom to Greek citizens after July 1, 1900, was eligible to the roll. Under the provisions of A,ct Cong. May 27, 1902, c. 888, 32 Stat. 245, and section 7 of the supplemental agreement made with the Creeks and approved by Act Cong. June SO, 1902, c. 1323, 32 Stat. 501, children born to citizens subsequent to July 1, 1900, up to and including May 25, 1901, and living upon the latter date, were eligible to the roll of citizenship, and directed to be enrolled by the Commission. If any such child died after May 25, 1901, or at any time before receiving his allotment, it was provided that “the lands and moneys to which he would he entitled if living shall descend to his heirs as herein provided and be allotted and distributed to them accordingly.” Section 6 of the said supplemental agreement, approved in 1902, repealed the provisions of the act of Congress of March 1,. 1901, in so far as they provided for descent and distribution according to the laws of the Creek Nation, and directed that “the descent and distribution of land and money provided for shall be in accordance with chapter 49 of Mansfield’s Digest of the Statutes of Arkansas.” Held, that a child born to citizens of the Creek Nation on Elay 6, 1901, living Elay 25, 1901, dying in November, 1901, enrolled by the Commission on October. 8, 1902, allotment selected on April 28, 1904, and patent issued to bis heirs on October 10, 1904, the Arkansas law of descent and distribution embodied in chapter 49, §§ 2522-2545, of Mansfield's Digest (Ind. T. Ann. St. 1899, §§ 1820-1843), nominated the heirs of such deceased child and fixed the shares and portions the heirs derived in such allotment set apart and patented to them.</p> <p>2. Same — Agreements with Indians — Construction—Extraneous Aids.</p> <p>Whom the parties to the agreement meant to include within the term “heirs,” if not clearly expressed, must be ascertained by resort to such extraneous light as the provisions and other acts and agreements relating to the same subject, and the history and surrounding conditions at the time, will afford.</p> <p>3. Same — Ambiguity.</p> <p>The use of the term “descend,” in the act of Congress and the agreements, being applied where descent, technically speaking, could not take place, creates an uncertainty and ambiguity calling for construction.</p> <p>4. Same — Taking by Purchase and Not by Descent.</p> <p>Where the deceased died before being enrolled, and the allotment selected or patented to him, his heirs take by purchase as donees of the nation, and not by descent.</p> <p>5. Same.</p> <p>It was the evident intent of Congress and the tribe t^o allot the lands in severalty among the citizens upon the basis of justice, equity, and equality, and it was the intention of the parties to the supplemental agreement that in case a member of the tribe died before receiving his allotment which he would have been entitled to, if living, his heirs should take in all respects and with the same effect as if such member had not died until after receiving the allotment.</p> <p>6. Same — “New Acquisition” — Allotment.</p> <p>Under the Arkansas law of descent and distribution an allotment acquired by a Creek citizen by selection and certificate of allotment or by patent became a “new acquisition,” and upon the death of such citizen, before allotment or after allotment, without issue, or brothers or sisters, leaving a father, such father took a life estate; the fee passing to the uncles and aunts.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, n. 4783.] _</p> <p>7. Dim Estates — Bights oe Diee Tenant — Opening Mines or Wells.</p> <p>A life tenant of lands containing minerals, oil, or gas cannot open mines or wells, or lease the land to others for such purposes.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 33, Life Estates, § 31.]</p> <p>8. Statutes — Construction—Natural Meaning.</p> <p>In construing statutes like the ones in question, it is generally safe to reject an interpretation that does not naturally suggest itself to the mind of a casual reader, but is rather the result of a laborious effort to extract from the statute a meaning which it does not at first seem to convey.</p> <p>9. Indians — Agreements—Construction—Technical Meaning.</p> <p>In construing any treaty or agreenient between the United States and an Indian tribe, such treaty or agreement must be construed, not according to the technical meaning of its words to learned lawyers, but in the-sense in which they would naturally be understood by the Indians.</p> <p>10. Same — Inherited Lands.</p> <p>Under the provisions of section 22 of the act of Congress approved April 26, 1906 (34 Stat. 145, c. 1876), providing “that the adult heirs of 'any deceased Indian of either of the Five Civilized Tribes whose selection has been made, or to whom a deed or patent has been issued for his or her share of the lands of the tribe to which he or she belongs or belonged may sell and convey the lands inherited from such decedent,” the heirs (not full-bloods) of a deceased Indian, who died before his selection was made or patent issued, may sell and convey the allotment inuring to them as such lieirs.</p> <p>11. Same — “lNiiERrri5D”--“DEscEB:D.”</p> <p>The term “inherited” used in section 22 of said act of Congress (Act April 26, 1906, c. 1876. 34 Slut. 145), is synonymous with the word “descend,” as used in the original agreement and supplemental agreement, and covers those cases where heirs take by purchase, as well as by inheritance, technically speaking.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2012-2014; vol. 4, pp. 3000-3607.]</p> <p>12. Same.</p> <p>Section 22 of said act of Congress (Act April 26, 1906, e. 1876, 34 Stat, 145), must be construed together with all other cognate acts, and, there being no reason for any distinction or discrimination between heirs taking by purchase and heirs taking by descent, technically speaking, the said section applies to all allotments selected by or for deceased members of the tribe in the hands of their heirs, whether such deceased member died before or after receiving the allotment.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy — “Voidable Preference” — Knowledge of Insolvency.</p> <p>A bank, which took a chattel mortgage from a debtor to secure a. past indebtedness and withheld the same from record for nearly a year, and until a few days prior to the bankruptcy of the mortgagor, held to have had reasonable cause to believe that he was in failing circumstances when it was taken, and insolvent when it was recorded, which rendered it a “voidable preference,” under Bankr. x\ct July t, 1898, c. 511, § 60, els. “a,” “b.” 30 Slat. 562 (XT. S. Comp. St. 1901, p. 3415) as amended in 1903 (Act Feb. 5, 1903, c. 487, § 13, 32 Stat. 799 [U. S. Comp. St. Supp. 3907, p. 1031]).</p> <p>I Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5498-5499; vol. S, p. 7759.]</p> <p>2. Same — Fraudulent Chattel Mortgage — Right of Trustee to Attack.</p> <p>Rev. St. Idaho 1887, § 3396, provides that a chattel mortgage “is void as against creditors” of the mortgagor unless recorded, and section 3386 that the enforcement of a chattel mortgage may be contested “by any person interested in so doing.” Held, that a chattel mortgage given by a merchant on his stock of goods to a bank to secure a past indebtedness, which was by agreement withheld from record for nearly a year and until within a few days of the mortgagor’s bankruptcy, during which time lie continued in possession of the property, selling Uie goods as usual, was fraudulent and void as maiter of law as against any creditors having the right to contest the same, and that the trustee in bankruptcy into whose possession the property came and creditors whose claims had been allowed were by reason of such facts “interested” in the specific property as pari: of the bankrupt’s estate in the custody of the court, for distribution, and both under the bankruptcy act and the state statute entitled to contest the mortgage when it. was sought to be enforced in the bankruptcy court.</p> <p>S. Chattel .Mortgages — Evidence of Fraud-Failure to Record.</p> <p>An agreement between the mortgagor and mortgagee to withhold a chattel mortgage from record is evidence of a fraudulent intent.</p>

<p>1. Juey — Trial by Jury — Nature of Action.</p> <p>An action by a shipper, authorized by the Sherman anti-trust law (Act July 2, 1890, c. G47, § 7, 26 Stat. 210 [U. S. Comp. St. 1901, p. 3202]), to recover treble damages to his business and property by reason of a conspiracy and combination by interstate carriers to charge excessive and unlawful rates for the shipment of coal from the mines to tide water, was an action at law as to which the parties were entitled to a jury trial.</p> <p>[Ed. Note. — Right to trial by jury in federal court, see notes to O’Con-nell v. Reed, 5 C. C. A. 603; Vany v. Peirce, 20 C. C. A. 528.]</p> <p>2. Carbiers — Rates—Interstate Commerce Law — Compliance.</p> <p>Congress by Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379 (Ü. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906. c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), having established the Interstate Commerce Commission with plenary power to determine in the first instance what rates for the transportation of interstate commerce are legal and reasonable and what are illegal and excessive, it will he presumed, in the absence of averments to the contrary, that every interstate carrier has complied with the law by establishing, printing, filing, publishing, and ppsting them; and hence no action can be maintained unless the complaint alleges that resort has been had to the Interstate Commerce Commission and the rate charged and paid declared excessive or unreasonable.</p> <p>3. Same — -PLEADING.</p> <p>In an action for injuries to complainant’s property and business by an alleged combination and conspiracy between interstate railroads controlling the shipment of anthracite coal, an allegation that plaintiffs’ loss resulted from their being obliged to pay “unlawful rates” for the transportation of coal due to such combination and conspiracy was not effective to allege that the rates charged had been declared unlawful by the Interstate Commerce Commission.</p> <p>[Ed. Note. — Jurisdiction of federal courts of suits under interstate commerce act, see note to Bailey v. Mosher, 11 C. C, A. 318.]</p> <p>4. Same — Statutes—Scope.</p> <p>The Sherman anti-trust law (Act Cong. July 2, 1890, c. 647, § 7, 26 Stat. 210 [IT. S. Comp. St. 1901, p. 3202]), does not give any right of action for damages sustained by the payment of excessive, unjust, or unreasonable rates to interstate carriers, such relief being provided for by the interstate commerce act.</p> <p>5. PLEADING — -CONCLUSIONS 01' DAW — DEMUBREB.</p> <p>An allegation in a complaint against an interstate carrier that plaintiffs had been obliged to pay excessive and unlawful rates without auy facts to support the same was a statement of a mere conclusion of law, which was not admitted by demurrer.</p> <p>[It'd. Note.- — For cases in point, see Cent. Dig. vol. 39, Pleading, § 527.]</p>

<p>Action to Recover Compensation for Diversion of Water Course.</p>

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

<p>Insurance — Marine Insurance — Action on Policy — Defense of Unsha-W OUT III NESS.</p> <p>Where the underwriter knows the age and defective condition of a vessel, and accepts an unusual risk thereon at nearly a double premium, it is liable, notwithstanding an absence of complete seaworthiness, and is not permitted to urge the lack thereof as a defense, even though the policy required it.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1019.]</p>

<p>Towage — Injukt to Tow — Liability op Tugs Acting Jointlv.</p> <p>Where two tugs are acting jointly in towing a vessel, and an accident happens to the tow through their negligence, both tugs are liable, notwithstanding the fact that one is acting as a helper, under the orders of the master of the other.</p>

<p>.Towage — Collision Between Tow and Bridge Abutment — Liability op Tug.</p> <p>A tug was proceeding up the Harlem river with two tows on hawsers, and keeping on the Manhattan side on account of the ebb tide. As she rounded the bend approaching Kingsbridge she came upon a scow which had been lying at the bulkhead on the Manhattan side, and which in shifting her position had swung directly across the tug’s course, and in maneuvering to avoid such scow one of the tows was brought into collision with an abutment of the bridge and injured. Meld that, while properly handled, the tug must be held in fault for navigating on the port side of the river in violation of the rules; that the scow was not in fault, not being required to provide against a tow coming up that side, and being entitled to use her own side.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, §§ 17-20.]</p>

<p>1. Master and Servant — Injury to Railroad Train Employé — Defective Track.</p> <p>Where a railroad track becomes defective by reason of excessive rains or other unusual cause, the railroad company is not liable for the death of an employé caused by such defective track, unless the defect had existed long enough to enable it in the exercise of reasonable diligence to discover and repair the defect or to warn the employé, and it failed to do so; but unusual weather conditions may impose on the company the duty to exercise an extraordinary degree of care in that respect.</p> <p>TEd. Note. — Eor cases in point, see Cent. Dig. vol. 34, Master and Servant, § 253.]</p> <p>2’ Same — Engineer oe Railroad Train — Assumption op Risk prom Defective Track.</p> <p>An engineer of a railroad train has a right to assume that the roadway is in safe condition, in the absence of notice to the contrary, and a mere general warning to proceed carefully because of heavy rains, with no notice of a particular defect, does not cause him to assume the risk from such defect of which he has no knowledge.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-COO.]</p> <p>3. Same — Contributory Negligence.</p> <p>An engineer of a railroad train which was wrecked by running into a culvert that had been washed out or rendered unsafe by floods, resulting in his death, was charged with the duty of exercising care and caution in the running of the train, in view of the conditions which were apparent, or could have been known to him by the use of reasonable care and observation, and, if in view of such conditions he should have known that the culvert was unsafe, or was running the train at an excessive speed, he was guilty of contributory negligence, which precludes a recovery from the railroad company for his death.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 681, 751-756.]</p> <p>4. Same — Presumption op Negligence.</p> <p>The presumption of negligence created by the Statute of Florida in relation to the liability of railroad companies does not outweigh evidence. The statute merely easts upon the company the necessity of showing affirmatively that its agents exercised reasonable care and diligence under all the circumstances, and here the presumption ceases.</p>

<p>At Raw. Demurrer to the complaint by Metropolitan Surety Company on the ground that the same does not state facts sufficient to-constitute a cause of action against the defendant.</p>

<p>Kait.koads — Safety AiutjaNce Act — CONSTRUCTION.</p> <p>Under the provision of Safety Appliance Act March 2, 1893, c. 39G. § it. 27 Stat. 531 (U. S. Comp. St. 1901, p. 3175), that “no ears, either loaded or unloaded, shall be used in interstate traffic which do not comply. with the standard above provided for,” a railroad company is required at its peril to see that its cars are equipped with couplers in proper condition at all limes when in use in interstate business, and. in an action to recover the penalty imposed for a violation of the act in that respect, it is no defense that the defendant exercised due care.</p>

<p>Railisoads — Safety Aittjance Act — Construction.</p> <p>Where a railroad company has had an opportunity to inspect cars used on its line in interstate traffic, its duty to see that they conform to the requirements of Safety Appliance Act March 2, 1898, c. 190, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), is absolute, and it is no defense to an action to enforce the penalty provided for a violation of the act that it exercised duo diligence.</p> <p>[Ed. Note. — Duty of railroad companies to furnish safe appliances, see note to Fell on v. Bullard, 37 C. C. A. 8.]</p>

<p>On Motions for New Trial and by Defendant for Judgment Notwithstanding the Verdict.</p>

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

<p>1. Penalties — Actions—Nature and Form — “Civil Action.”</p> <p>An action of debt to recover a penalty given by statute is a “civil action.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 2, pp. 1183-1193; vol. 8, p. 7603.]</p> <p>2. Carriers — Transportation of Dive Stock — Federal Statutes — Violation —Action for Penalties — Degree of Proof.</p> <p>Act Cong. -June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), regulating transportation of live stock by interstate carriers, imposes a penalty for violation of not less than $100 nor more than $500, to be recovered by civil actions in the name of the United States. Held, that an action to recover such penalties was civil and not criminal in character, and hence the government was only bound to establish its case by a preponderance of the evidence, and not beyond reasonable doubt.</p> <p>3. Same — Assessment.</p> <p>Where an interstate carrier has been found guilty of violating Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), regulating the transportation of live stock, the duty of fixing the amount of the penalty to be recovered by the United States in such action devolves on the court.</p>

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

<p>On Demurrer to Pleas in Abatement.</p>

<p>1. Courts — Federal Courts — Criminal Proceedings — State Practice.</p> <p>Criminal cases in the federal courts are governed by federal statutes and decisions; state statutes and decisions being inapplicable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 908.</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.J</p> <p>2. Criminal Law — List of Witnesses or Jurors.</p> <p>If a federal prisoner is not indicted for a capital offense, he is not entitled as of right to a list of witnesses or jurors.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1420-1436.]</p> <p>8. Grand Jury — Discharge.</p> <p>A grand jury can be discharged only by direct order of the court or by the final adjournment of the court for the term for which the jury is impaneled.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Grand Jury, § 28.]</p> <p>4. Same — Meetings.</p> <p>In the absence of an order of court, the grand jury may meet and adjourn on its own motion, and may lawfully proceed in the performance of its duties while in existence, whether the court is in session or not.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Grand Jury, § 69.]</p> <p>5. Same — Improper Discharge of Juror.</p> <p>The improper discharge of a grand juror will not vitiate an indictment, if the number necessary to find the indictment remain.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Grand Jury, § 28.]</p> <p>6. Same — Absence.</p> <p>The absence of one or more federal grand jurors, by reason of a failure to notify them of a meeting at which an indictment was found, was not sufficient to invalidate the indictment; there being present a sufficient number to find the indictment.</p> <p>7. Indictment and Information — Defects—Objections.</p> <p>While vital defects in an indictment are always available to accused, objections not affecting the real merits of the case will be overruled, under Rev. St. § 1025 (U. S. Comp. St. 1901, p. 720), providing that no indictment found or presented by a grand jury shall be deemed insufficient by reason of a defect or imperfection in form only, which shall not tend to prejudice accused.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 202-214.]</p> <p>8. Conspiracy — Fraud Against United States — Homestead Entry.</p> <p>To obtain land of the government open to entry under its homestead laws by means of false proof in respect to the entryman’s residence or improvements thereon, or for the use or benefit of another, is not only a fraud in fact, but a fraud on the homestead law, a conspiracy to commit which constituted a violation of Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676). making it a crime for two or more persons to conspire to defraud the United States “in any manner or for any purpose.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 60.]</p> <p>9. Same — Indictment.</p> <p>An indictment charged that defendants, with others, conspired to obtain from the government certain specified tracts of land open to homestead entry by procuring certain named persons to enter the same by means of false proof in respect to their residence on and improvement of the land, and with respect to the intent with which and the purpose for which the entries were made, and in pursuance of such conspiracy and to effect the object thereof defendants caused and procured O. to make the homestead proof in respect to the land entered by him and the final affidavit required by homestead claimants, including a' statement that his family consisted of himself and wife, and that they had resided continuously on the land since first establishing residence thereon, which proof was subscribed by O. and certified by defendant W., and that each of the defendants knew that the proof was false, etc. Held,, that the indictment was sufficient.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 79-90.]</p> <p>10. Same — Ovkbt Acts.</p> <p>While no overt act was required to constitute a conspiracy at common law. a conspiracy to defraud the United States, denounced by Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3670), is not effected until an overt'act is committed by one or more of the conspirators.</p> <p>[Ed. Note.' — For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 38, 39.]</p> <p>11. Criminal Daw — Limitations.</p> <p>Where an alleged conspiracy to defraud the United States, denounced by Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), contemplated various overt acts and the consequent continuance of the conspiracy beyond the commission of the first one, each overt act gave a new, separate, and distinct effect to the conspiracy, and constituted another crime, so that a prosecution was not barred by limitations until three years after the commission of the last overt act alleged.</p> <p>[Ed. Note. — Commencement of period of limitations against prosecutions for continuing offenses, see note to Ware v. United States, 84 C. C. A. 519.1</p> <p>12. Same — Evidence—Other Offenses.</p> <p>Where an indictment for conspiracy to defraud the United States of government land .-by fraudulent homestead entries charged defendants with conspiring to defraud the government of lands embraced in certain homestead claims filed by certain named persons, the government was properly permitted, for the purpose of proving defendants’ intent and guilty knowledge, to show that various other persons had also filed on and made final proof on various other tracts of land under the homestead laws, in pursuance of an agreement with the defendants and for their benefit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 825-834.]</p> <p>13. Witnesses — Cross-Examination — Documents—Introduction in Whole ob in Part.</p> <p>Where, on cross-examination, a witness admitted making a sworn statement, the witness was not subject to examination as to whether such statements as counsel might suggest were contained in it had been made by the witness, for the purpose of contradicting him; but the entire statement was admissible.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1249-1251.]</p>

On January 4, 1904, the appellant filed her bill against the appellee to charge the latter as trustee with the payment of certain bonds and coupons owned by the appellant, which had been issued under the act of the Legislature of the state of California entitled “An act authorizing the widening of Dupont street, in the city and county of San Francisco,” approved March 24, 1S76 St. Cal. 1876, p. 433, c. 326.

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

<p>Appeal from the Circuit Court of the United States for the Eastern District of Virginia, at Norfolk.</p>

<p>1. Comsrov — Injury to Persons by Vessel-Evidence.</p> <p>Where it is shown that a tug with a tow was in fault for a violation of the statutory rules of navigation, and such fault was sufficient to account for an accident in which a person was injured, she has the burden of proof to show beyond a reasonable doubt that another vessel either caused or contributed to it.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 10, Collision, §§ 83, 84.],</p> <p>2. Same — Lights on Tow — Duty to Tug.</p> <p>It is the duty of a tug with a tow to see that such tow carries a light at night; and an overtaking vessel is not required to look to the lights on the tug which she may not be able to see clearly to ascertain the fact that there is a tow.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, §§ 105-123.]</p> <p>3. Same — Fault as Cause of Collision — Absence of Lights.</p> <p>A launch going out from a harbor in the evening overtook a tug going in the same general direction, and, turning to starboard to pass under her stern, ran into a towing rope, and libelant was injured. The tug in fact had two mud scows in tow on a line, but they carried no lights which could be seen from the launch, although the tug carried towing lights. A danger signal was given by the tug a second or two before the accident, but too late for the launch to avoid it, even had it been understood. Held, that the accident was due solely to the fault of the tug in failing to carry lights on the scows.</p> <p>LEd. Note. — Collision with overtaking vessel, see note to The Rebecca, 60 C. C. A. 254.]</p>

<p>1. í3ales — Remedies of Buyer — Damages—Measure—Delay in Performance of Contract.</p> <p>Special damages may be recovered for breach of a contract for a sale of machinery by a failure to deliver it within the time required by the contract where they are the natural and direct result of the breach, owing to special circumstances known to the parties when the contract was made, although such circumstances may not have been stated in the formal contract, and where the amount can be ascertained with reasonable certainty.</p> <p>2. Contracts — Proof of Damages — Defenses.</p> <p>Where defendant which had contracted with a state to equip a public building with heating and lighting plants failed to complete the work within the time required by the contract, in consequence of which the state deducted from the price the amount of liquidated damages for the delay, provided by the contract, and defendant made settlement on that basis, and there was testimony that the delay was caused solely by the failure of plaintiff to deliver certain machinery required for the work within the time agreed upon and that it had knowledge of the terms of defendant’s contract, it was no defense to a claim by defendant for special damages for breach of contract that, in case it failed to recover the same, it contemplated presenting a claim to the Legislature of the state for payment of the amount withheld; there being no pretense that the slate was under any legal liability therefor.</p> <p>3. Damages — Assessment—Special Damages — Question i-or Jury.</p> <p>An issue as to the right to recover special damages for breach of a contract field, under the evidence, one for the jury.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Damages, §§ 533, 53-1.]</p>

For decision below, see 148 Fed. 125, affirming a decision by the Board of United States General Appraisers, G. A. 6,182 (T. D. 26,-810), which had reversed the assessment of duty by the collector of customs at the port of San Francisco.

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

<p>1. Patents — Infringement—Grain Drills — Profits Recoverable.</p> <p>The Hoyt patent, No. 446,230, for a grain drill, is not for an addition to an otherwise complete machine, but is for a combination of elements, ■>ome of which are old, to accomplish an improved 'result, in which each element, whether new or old, is an essential part of the invention, and the liability of an infringer who has appropriated the combination as a whole is not limited to the profit made on any particular element, but extends to the profit made on the entire machine.</p> <p>2. ¡SaUpv-Riability of Infringer — Confusion of Profits.</p> <p>Where no other invention inheres in a patented combination, and it is not merely for an improvement, but for a new structure, an infringer who has deliberately copied such structure cannot avoid liability for the entire profits made thereon by adding improvements of its own, which do not materially add to its sale value, and by so conducting its business as to make it impossible to separate the profits due to each.</p> <p>3. Same — Accounting.</p> <p>On an accounting for profits by an infringer, the measure of recovery is the amount of profits actually made by the defendant by the sale of the patented device, and it is immaterial that such sales would probably not have been made by complainant.</p> <p>[Ed. Note. — Eor eases in point, see Cent. Dig. vol. 38, Patents, §§ 566-576.</p> <p>Accounting by infringer of patent 'for profits, see note to Briekill v. City of New York, 50 C. C. A. 8.]</p> <p>4. Corporations — Liability of Officers of Corporation — Infringement of Patent.</p> <p>Where the officers of a corporation have been joined as defendants with the corporation in a suit for infringement, objection to the sufficiency of the proof to hold them personally liable should be made on the hearing: but where they have been adjudged to infringe, and it appears that such infringement was only as officers, and not individually, they should be charged only with nominal damages.</p>

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

<p>Patents — Intkingement—Feed Machine fob Sobew-Outting Bathes.</p> <p>The Norton pateut. No. 470,591, for a feed mechanism for screw-cutting lathes, limited to the details of the arrangement of the parts, as required by the prior art, Is not infringed by the machine of the Newton patent, No. 787,337, in which the second series of gear-wheels, or cone gears, are not located on the feed-shaft, as required by the claims of the Norton patent.</p>

<p>Patents — Suit to Obtain Issuance or Patent — Issues.</p> <p>A suit under Rev. St. § 4915 (U. S. Comp. St. 1901, p. 3392), is for the purpose of establishing complainant’s right to a patent which has been refused by the Patent Office; and, where such patent was granted to the defendant after interference proceedings complainant is not entitled in such suit to introduce evidence to prove that the patent is void for anticipation. an issue which was not, and could not have been, tendered by the bill.</p>

In Equity. Suit for infringement of letters patent No. 594,457, for a machine for forming nipples, granted to Andrew C. Campbell, November 30, 1897. On final hearing.

In Admiralty. Action for breach of charter party. In January, 1907, the Queen Olga, belonging to the libelants, was in respondent’s employment under a time charter substantially identical with that set forth in Golear S. S. Co. v. Tweedie Trading Co. (D. C.) 146 Eed. 563. The sections of the charter material to this case are the first, second, ninth, and sixteenth as printed in the case referred to.

<p>ADMIRALTY— JURISDICTION — MARITIME TORTS.</p> <p>A collision in a navigable river between vessels and tbe surface part of borings made to locate an aqueduct under tbe bed of tbe river for municipal purposes is not in any sense maritime, and a suit to recover damages for injury to sucb borings is not witbin tbe admiralty jurisdiction.</p>

<p>In Admiralty. Suit for loss of goods.</p>

<p>Bankruptcy — Manufacturing Corporation — Fish-Packing Company— “Principally Engaged in Manufacturing.”</p> <p>A corporation organized for carrying on the business of catching and preserving by salt and marketing salt water fish, and which owns and operates a plant for the preparing, preserving, and packing of such fish, is “principally engaged in manufacturing,” within the meaning of Bankr. Act July 1, 1898, § 4b, c. 541, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), and is subject to adjudication as an involuntary bankrupt.</p> <p>[Ed. Note. — What persons are subject to bankruptcy laws, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Same — Jurisdiction op Proceedings — Associated Corporations op Different States.</p> <p>A manufacturing corporation was organized under the laws of Washington, having its home office and principal place of business at Tacoma. Subsequently a second corporation was organized in California, apparently for the purpose of succeeding and taking over the business of the first. Its home office was in Oakland, Cal.; but its business was transacted in Tacoma by a manager who was also the manager of the first corporation, the business of which was continued by such joint manager without change and in such manner that the transactions and liabilities of the two corporations could not be separated. Sold, that the District Court in the Washington district had jurisdiction to entertain a petition in bankruptcy against both corporations as joint parties; it not appearing that any prior proceedings had been elsew'here instituted.</p>

<p>This action is brought by the administratrix of Douis Mella, deceased, against the Northern Steamship Company, under the provisions of section 1902 of tbe Code of Civil Procedure of the state of New York, for the benefit of the decedent’s wife and next of kin, and to recover damages for the alleged negligence of the defendant, by which it is claimed the decedent’s death was caused. The defendant denied negligence, and also denied that the death of the decedent, Louis Mella, was caused by the alleged negligence, even if there was negligence, and gave evidence tending to show that such death was caused by the independent negligence of the physician and attendants at the hospital to which Mella was taken for treatment, or an operation, after the accident occurred.</p>

<p>1. TELEGRAPHS AND TEI.EPUONLS — It TOUTS IN USE 01’ STREETS — NECESSITY OF Legislative Grant.</p> <p>A telephone company cannot lawfully occupy the streets of a city with its poles and wires without legislative authority, granted directly by the Legislature or by the municipality in pursuance of express or implied power delegated to it.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 6.</p> <p>Rights of telegraph and telephone companies to use of streets, see note to Southern Bell Telephone Co. v. City of Richmond, 44 C. C. A. 155.]</p> <p>2. Same — Construction of Statute — “Highways.”</p> <p>Code Ala. 1890, § 2490, which provides that “the right of way is granted to any person or corporation having the right to construct telegraph or telephone lines within this state to construct them along the margin of public highways,” confers upon a telephone company the right to construct its lines in the streets of a city, which are “highways” within the meaning of the statute.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 6.</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3291-3306; vol. 8, p. 7678.]</p> <p>3. Municipal Corporations — Power to Grant Right to Use Streets — Telephone Companies — Contract. '</p> <p>A city given by its charter power to establish and regulate sidewalks, streets, and avenues and appurtenances or appendants thereto, has implied authority to grant the right to a telephone company to use its streets at least to such extent that an ordinance granting such right, accepted and acted on by the company, creates a contract which is binding on the city itself, whatever may be its effect on the rights of others.</p> <p>4. Telegraphs and Telephones — Nature op Right Granted.</p> <p>A right of way upon a public street'granted to a telephone company, whether by a Legislature or city council, is an easement and as such is a property right entitled to all the constitutional protection afforded other property and contracts and of which the company cannot be deprived except by due process of law.</p> <p>g. Injunction — Restraining Action by City — Interference with Property Right.</p> <p>An injunction will be granted to restrain a city from removing the poles and wires erected in its streets by a telephone company under lawful authority, in the exercise of its police powers, and without a judicial determination that they constitute an obstruction which interferes with the safety or convenience of ordinary travel.</p>

On Motion for New Trial. The defendant moves the court to set aside the verdict and grant a new trial in the above stated cause because tbe verdict was contrary to the evidence; because tbe verdict was contrary td the weight of the evidence; because the verdict was contrary to the charge of the court; because the court erred in refusing to give the general affirmative charge for the defendant. The defendant bases his motion mainly on the first and last grounds stated.

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

<p>In Equity. Suit for specific performance of a contract for the sale of lands. On demurrer to hill.</p>

'At L,aw. Action to recover the penalty provided for a violation of the 28-hour law.

<p>In Admiralty. Suit on policy of marine insurance.</p>

<p>1. Towage — Cam Required of Tug — Liability for, Injurr to Tow — “Common Carrier.”</p> <p>A towing tug is not a “common carrier” nor an insurer, and is bound only to the exercise of reasonable skill and care taking into consideration the fact that it contracts as ail expert and is bound to know the channel and its usual currents and dangers and to avoid obstructions which ought to bo known to men experienced in its navigation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 4.</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1313-1319; vol. 8, p. 700.1</p> <p>2. Same — Bceden of Proof.</p> <p>The mere occurrence of an accident to a tow raises no presumption of negligence against the tug, and the burden is on the complaining party to show a lack of ordinary care.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, § 34.]</p> <p>3. Same — Evidence Considered — Towage of Log Rafts.</p> <p>A tug which undertook the towage of three rafts of logs tied up in a river hold not chargeable with negligence for the breaking up of one of the rafts by the current of the stream when the tow was being made up, but liable for the breaking of one of the other two by striking against a tree while being towed, on the ground that the tow was not properly made up, and that the tow line was too long for safe towing.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, §§ 15, 20.]</p>

<p>1. Rejiovat, 03? Causes — Diversity of Citizenship — Sepa babee Coxteovebsy.</p> <p>The question whether there is a separable controversy warranting a removal oí a cause must be determined by the state of the pleadings and the record, of the case at the time of the application for removal, and not by the allegations of the petition therefor, or the subsequent proceedings which may be had in the Circuit Court.</p> <p>[Ed. Note.- — For cases in point, see Cent, Dig. vol. 42, Removal of Causes, § llu.</p> <p>Separable controversy, see notes to Robbins v. Ellonbogen, 18 C. C. A. 86; Mechó v. Yalleytown Min. Co., 35 C. C. A. 155.]</p> <p>2. Same — Conpewnation Dbooeedings- — Owners of Sepabatb Interests in Same JPkoperty.</p> <p>An action In a state court to condemn right of way over a tract of land, the fee of which is owned by a defendant who is a citizen of tiio same state as plaintiff, does not involve a separable controversy between plaintiff and a nonresident defendant, joined as having a leasehold interest in ali or a part of the tract, which'entitles the latter to remove the cause into a federal court, although he may be entitled to a separate award oí compensation covering his interest.</p>

<p>In Bankruptcy. On involuntary petition.</p>

<p>Corporations — Statutoby Liability op Directors por Illegal Indebtedness— ItEMUDY POR UNEORCEHENT.</p> <p>Under Gen. Laws it. I. c. 180, which by section 15 limits tlie indebtedness which may be lawfully incurred by a corporation to .the amount of its capital stock, and, in case such limit is exceeded, makes the directors at the time jointly and severally liable for the excess, and section 21, which provides a remedy for enforcement of such liability by an action of the case by any creditor against any one or more of such directors, such remedy is exclusive, and a bill in equity cannot be maintained in a federal court in another state against a director based on such statutory liability.</p>

<p>Internal Revenue — Suit to Recover Taxes Paid — Interest.</p> <p>The facts that an internal revenue collector is required by Rev. St. § 3210 (ü. S. Comp. St. 1901, p. 2082), to pay all taxes collected into the treasury daily, and that provision is made by sections 989 and 3220 (Ü. S. Comp. St. 1901, pp. 708, 2080), for paying judgments recovered against a collector out of the treasury, do not make a suit against a collector to recover judgment for the amount of a legacy tax illegally exacted and paid under protest one against the United States, so as to preclude the recovery of interest, and interest is recoverable in such case from the date of the payment.</p>

<p>In Bankruptcy. On certificate from J. E. Vandersloot, referee, sur exceptions to account of trustee.</p>

<p>1. Carriers — Express Companies — Loss of Feet gut — Limited Liability.</p> <p>Plaintiff shipped a pacha ge of furs, worth $2,€{)0. by defendant express company. Plaintiff marked no value on the package and gave none in her communications to the express company; but the box had been previously used, and a $350 valuation was marked thereon, and this amount was stated by the express company in the receipt as the value of the package. IRaintiff accepted the receipt without demur, and after the loss of the package made no claim of mistake in valuation, but claimed the right to recover the full value of the furs in spite of the limitation of liability contained in the receipt. Held, that plaintiff’s recovery was limited to $150.</p> <p>[Ed. Note.. — For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 663-667, 708-710.] ■</p> <p>2. Remo vat, of Causes — Diversity of Citizenship — Substitution of Parties.</p> <p>Suit having been originally brought in a state court against the Adams Express Company, service of the writ was threatened by motion to quash, whereupon plaintiff successfully moved to substitute W., the president of the express company, as the defendant. The cause was then removed to the United States Circuit Court on the ground of diversity of citizenship. Held,' that the record would not thereafter be amended, at plaintiff’s instance, either as a matter of right or discretion, so as to substitute the express company for defendant W. 1'or thk sole purpose of defeating the federal court’s jurisdiction.</p>

<p>1. Contracts — Actions—Parties—Defendants—Jotnder—Persons who Must BE JOINED.</p> <p>In all actions on contract, every person must be made a defendant wlu> is subject to legal liability.</p> <p>fl-ld. Note. — For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 1(304-1014,1</p> <p>2. Torts — Joint and Several Liability.</p> <p>In actions of tort, tlie injured party may proceed against all the wrongdoers jointly, or he may sue one or more separately.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Torts, § 29.]</p> <p>3. Election op Remedies — Acts Constituting.</p> <p>Where plaintiff in an action of tort sues all the defendants jointly and has judgment, lie cannot afterward sue any one of them separately, and, if he sues any one of them separately and has judgment, he cannot afterward sue them jointly; the prior judgment against one being in contempla!ion of law an election to pursue the several remedy.</p> <p>4. Master and Servant — Duty op Master.</p> <p>The master's duty to provide a reasonably safe place and appliances and competent fellow servants, as well as all the other duties resting on the master, arise by opera lion of law because of the relation of master and servant, and not by virtue of the contract of employment. •</p> <p>5. Same — Injury to Servant — Action—Parties Defendant.</p> <p>In an action against a master for injuries to a servant, it being unnecessary to state or prove the employment contract only to show incidentally the existence of the relation of master and servant, plaintiff was not bound to join all the members of the firm “by whom he was employed, but was entitled to sue any one of the members thereof separately.</p>

'-'Ih Bankruptcy. On motion to confirm report'of special master. ' A corporation pledged to' a bank as collateral security to its notes certain contracts for the sale of books on which sums were due to it in installments.

<p>Habeas Corpus.</p>

<p>1. Courts — Jukikdictjon ox Federal Court — Federal Question-.</p> <p>A bill by a railroad company, alleging that it acquired a right of way for its road over government lands nuclei Act March S, 1873, e. 152, 18 Stat. 482 (U. S. Comp. St. 190.1, p. 1508), and is proceeding to construct its road thereon, but did not complete the .same within the time limited by the act, and that defendant, claiming that its rights have thereby been forfeited, has taken possession of a portion of such right of way, presents a question of the construction of the statute as supplemented by Act June 20, 1900. e. 2530, 31 Stat. 482 (IT. S. Comp. St Supp. 1907, p. 353), which gives a federal court jurisdiction of the suit regardless of the citizenship of the parties.</p> <p>[Ed. Note. — Federal jurisdiction in cases involving federal questions, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Fureh Co. v. Boston & M. C. O. & S. Min. Co., 33 C. C. A. 7.]</p> <p>2. Railroads — Right oe Way Over Public Lands — Fobheiiuiie.</p> <p>Act June 20, 190(>, c. 3350, 34 Stat. 482 (U. S. Comp. St Supp. 1907, p. t>53), provides that every grant of right of way over public lands theretofore made to a railroad company under Act March 3, .1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1.5(53), “where such railroad has not been constructed and the period of live years next following the location of said road, or any section thereof, has now expired shall be and hereby is declared forfeited to the United States to the extent of any portion of such located line now remaining unconstructed and the" United States hereby resumes the full title to the lands covered thereby freed or discharged from such easement,” subject to an exception where construction of the road was progressing in good faith at the time of the approval of the ad. Held, that such act was a legislative adjudication of forfeiture, which became effective at once, without judicial proceedings, as to all lands within its terms.</p> <p>3. Same.</p> <p>The fact that at the time such act was passed a suit brought by a railroad company against a third parly to determine its rights in such a right of way was pending could not change, the effect of the act on the lands involved of which the court was bound to take judicial cognizance.</p> <p>4. Equity — Pleading—Amended Bill.</p> <p>An amended bill, unlike an amendment to the original bill, speaks from the time it was filed, and not; from the filing of the original bill.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, § 367.]</p>

<p>1. Municipal Cobporations- — Powers—Grant op Use op Public Geounds.</p> <p>Under the various acts of the Legislature of Pennsylvania relating thereto, as construed by the Supreme Court of the state, the city of Allegheny has authority to grant to a railroad company the right to use, for the purpose of erecting a railroad passenger station in part thereon, a portion of the ground set apart as commons by Act Sept. 11, 1787 (2 Smith’s Laws, p. 414), providing for laying out the town, and afterwards granted to the city to be used for public purposes.</p> <p>2. Same — Enjoining Execution op Contracts — Formal Defects.</p> <p>Act Pa. March 7, 1901, p. 29, for the government of cities of the second class, in providing, inter alia, that the city solicitor shall prepare and indorse his approval of the form upon all contracts made with the city, and that such contracts shall be signed by the city recorder and the head of the proper department, is directory only, and relates to contracts by which the city assumes pecuniary liability; and in any event the fact that the form of a contract authorized by the city councils to be executed by the proper officials, granting rights in public grounds, has not been approved by the city solicitor, or that it has not been signed by the head of the proper department, affords no ground for enjoining its execution in proper form and by proper officers at suit of a taxpayer.</p>

The plaintiff in error was charged by indictment in the Circuit Court of the United States for the District of Oregon with the crime of perjury in delivering his testimony as a witness in the matter of the application of one Charles A. Watson to make final proof upon a homestead entry of public lands of the United States in the district of Oregon.

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

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

<p>Appeal from the District Court of the United States for the Eastern District of Penns3dvania.</p>

<p>1. Customs Duties — Classification—“Furnaces”—Boiler Tubes — Flues.</p> <p>The provision for “furnaces,” in Tariff Act July 21, '1897, c. 11, § 1, Schedule C, par. 152, 30 Slat. 163 (II. S. Comp. St. 1901, p. 1641), does not include so-called arched Purvcs furnaces, consisting simply of corrugated steel cylinders or tubes, which are not furnaces in fact, but are intended to be used in the manufacture of furnaces. Such articles are dutiable under the provision in the same paragraph for boiler tubes or flues.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, vol. 4, p. 3009.]</p> <p>2. Same — Commercial Designation — Aktici.es Not General Merchandise.</p> <p>Where commodities are not kept in stock nor dealt in as articles of general merchandise, but are made only to the order of those requiring them, conditions are not such as to allow the establishment of a trade designation.</p> <p>3. Statutes — Evidence oe Congressional, Intent — Dettebs to Committee.</p> <p>In ascertaining legislative intent a court is authorized to look only at the language employed by Congress, and a communication by a manufacturer seeking the enactment of a certain tariff provision, written to the Ways and Means Committee, may not be considered.</p> <p>Buffington, Circuit Judge, dissenting.</p>

<p>1. INJUNCTION — PROCEEDINGS FOB PREI.IMINABY INJUNCTION — OBJECTIONS TO Affidavits.</p> <p>Objections to affidavits filed with a motion for a preliminary injunction in a federal court, which go to a matter of form only, must be made in advance of the hearing on the motion, where there is ample time therefor.</p> <p>2. Same.</p> <p>Under the practice of the federal courts, it is not an objection to affidavits filed with a bill and motion for a preliminary injunction in support of such motion that they were previously made and signed and are not entitled in the cause, where it reasonably appears that they were made for the purpose of being used in a suit between the parties.</p> <p>3. Trade-Masks and Trade-Names — Suit for Infringement — Preliminary Injunction.</p> <p>An interlocutory order granting a preliminary injunction against the unlawful imitation of a trade-name and unfair competition affirmed, but, especially as tlie parties do not agree as to tlie completeness of the record, full reservation is made for final hearing. Rogers v. International Silver Co. 118 Fed. 133, 134, 55 C. O. A. 83, applied.</p> <p>[Ed. Note. — Unfair competition, see notes to Seheuer v. Muller, 20 C. C. A. 165; Evans v. Suess Ornamental Glass Co., 30 C. C. A. 376.]</p>

<p>1. Customs Duties — Classification — “Tin Plates” — “Sheets * * * Commercially Known as Tra Plates.”</p> <p>The term “sheets * * * commercially known as tin plates,” in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 131, 3» Stat. 160 (U. S. Comp St. 1901, p. 1(538), means rectangular sheets, and does not include small disks.</p> <p>2. Same — Tra Disks — Manufactures of Metai^ — “Waste”—“AViiolly ok Partly Manufactured from Tin Plate” — “Articles of Metal, Whether Partly or Wholly Manufactured.”</p> <p>Small disks produced in the manufacture of tin cans, being a by-prodnet in the process of cutting an aperture for filling, and being of much less value than the tin from which they were cut, are not articles “wholly or partly manufactured from tin plate,” under Tariff Act July 24, 1897, C. 11, § 1, Schedule O, par. 140, 30 Stat. 162 (U. S. Comp. St. 1901, p. 1635f), nor “waste” under Schedule N, par. 463, 30 Stat. 194 (U. S. Comp. St. 1901, p. 1679), but are dutiable as articles of metal, “whether partly or wholly manufactured,” under Schedule C, par. 193, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645).</p> <p>3. Same — “Manufactured” Tin Plate — Decrease in Value — “Manufactured from Tin Plate.”</p> <p>Disks cut as a by-product from tin plate, which are reduced by the process to only about one-fifth of the value of the plate from which they were made, are not “manufactured from tin plate,” within the meaning of Tariff Act July 24, 1897, c. 11. § 1, Schedule C, par. 193, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645). “Manufacture” implies addition to, and not subtraction from, and an article cannot be said to have been manufactured which results from a process that reduces its value.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 5, pp. 434444346. voi. s, p. 7716.]</p> <p>4. Same — Statutes—Legislative Intent — Prohibitive Duties.</p> <p>A construction of the tariff law which produces unjust and unconscionable duties should be avoided, if possible. It is.-to be assumed that Congress did not intend to make duties prohibitive. Its purpose in enacting the tariff act of 1897 was to protect and not to prohibit, to raise, and not cut off revenue, to promote and not to destroy, legitimate competition, and such construction should be adopted as will give effect to that purpose.</p> <p>5. Statutes — Congressional Records and Debates.</p> <p>Congressional records and debates may be consulted in ascertaining legislative intent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 291-294.]</p>

This writ of error is from a judgment in favor of the defendant below, in an action of trespass on the case, brought by the plaintiff in error (as plaintiff) to recover damages for alleged negligence of the defendant.

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

<p>1. BANKRUPTCY — INVOUUNTARY PROCUUmNGS — ritOt'KUtTKU.</p> <p>A court of bankruptcy lias power to make orders respecting the pleadings in a proceeding in involuntary bankruptcy, and where Hie alleged bankrupt has failed to comply with such orders, while the court cannot on that ground deprive him of his right to appear and contest tíre ad-judica Lion, it lias jurisdiction to proceed with the hearing in his absence, on his failure to appear in response to an order to show cause served upon him. Hovcy v. Elliott, 307 U. S. 400, 440, 447, 17 Sup. Ct 843, 42 I.. Ed. 21,5, distinguished.</p> <p>2. Appear aso Error -Objections Not Raised Below.</p> <p>The rule applied that as the appellant although having notice, did not defend in the District Court, he cannot defend on appeal.</p>

<p>Gabbiees — Injury to Passenger — Contributory Negligence.</p> <p>An adult person traveling on a railroad train, who, several blocks before the train reached a station, and while It was moving at a speed of 10 miles an hour, voluntarily and without necessity left the car In which he was seated and stood upon the open platform, and while so riding was killed in a collision with another train standing at the station, no passenger in the cars being seriously injured, was chargeable with contributory negligence which precluded a recovery from the company for his death.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1376-1378.</p> <p>Injuries to passengers occupying positions other than seats, see note to St. Louis, I. M. & S. Ry. Co. v. Lel’twich, 54 C. C. A. 4.]</p>

<p>1. Bailroads — Injuries to Pebson at Station — Defective Platfoem — Evidence.</p> <p>In an action against a railroad company for injuries to plaintiff by the collapse of a defective freight platform, evidence held to warrant a finding that the beams of the platform were rotten, and that a proper inspection would have disclosed such condition.</p> <p>2. .Same — Invitation to Use.</p> <p>Plaintiff's grandfather ordered a car from defendant railroad, in which to ship certain furniture, and the railroad company placed the car beside a defective platform, the use of which had been abandoned. Plaintiff’s grandfather attempted to load the car from the side opposite the platform and directed plaintiff to remain, at the car and watch the goods while being loaded. Plaintiff seated himself on the edge of the platform near lumber piled thereon by defendant, and while so seated the platform collapsed, because of its defective condition, and plaintiff was injured. BelO, that defendant, by placing the car at the platform, without giving any notice of its condition, invited the use of the platform, and plaintiff, as a helper of his grandfather, being entitled to the same right on the premises that the grandfather had, was neither a trespasser nor a mere licensee, but was a person to whom defendant owed the duty of exercising due care.</p> <p>[Ed. Note. — B’or cases in point, see Cent. Dig. vol. 41, Railroads, § 869.]</p>

<p>3. Equity- — Ui/eading—Effect of Overruling Plisa After Hearing.</p> <p>Where a plea in equity, setting up the facts relied on as a defense to one part of the bill, and supplemented by an answer as to the remainder, is overruled on the proofs after hearing on issue joined thereon, the defendant is not entitled to answer over.</p> <p>2. Appeal and Error — He view — Findings of Facts.</p> <p>Tile finding of a trial court on the proofs against the truth of a plea affirmed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3970-3978.]</p> <p>Buffington, Circuit Judge, dissenting.</p>

<p>Bankruptcy — Frivolous Appeal — Dismissal.</p> <p>Where, on a former appeal, it was determined that if the alleged bankrupt committed the acts of bankruptcy in question while insane the adjudication was wrong, but if the acts were committed while sane it was proper to continue the case, though the bankrupt subsequently became insane, and the case was remanded to give the petitioning creditors an opportunity to rebut the presumption of insanity arising from the inquisition, and on such hearing a number of witnesses testified that he was sane when the acts of bankruptcy were committed, and no evidence to the contrary was offered by the bankrupt’s committee, a further appeal by such committee, raising the same question previously determined, would be dismissed as frivolous.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

<p>1. Bankettptcy— Oedees — Mode op Review.</p> <p>Where a bankrupt’s creditor answered his trustee’s petition to sell certain chattels and claimed chattel mortgage liens thereon, an order holding the chattel mortgages void was reviewable by appeal.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 915.]</p> <p>2. Chattel Mortgages — Validity—Power op Sale — Retention by Mortgagor.</p> <p>Under the Wisconsin law, a chattel mortgage allowing the mortgagor to dispose of the avails of the mortgaged property and appropriate the same to his own use, provided only that the interest on the bond secured was paid and a sinking fund amounting to $500 per quarter, or $2,000 per annum, is provided for, and declaring that, when the mortgagee shall consent to waive the requirements as to the sinking fund, then the mortgagor shall keep up the interest on the bond secured and may apply all the balance of the proceeds to his own uses and purposes, is void.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §§ 393-401, 410.]</p> <p>3. Bankruptcy — Review—Questions Not Raised at Trtal.</p> <p>Where the capacity of a bankrupt’s trustee to sue on account of alleged defects in the petition and proofs on which the adjudication of bankruptcy was made was not challenged at the trial, such question could not be raised on appeal.</p> <p>[Ed. 'Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.]</p> <p>4 Same — Want op Jurisdiction.</p> <p>On appeal from a District Court’s decree in a controversy arising in bankruptcy proceedings, the only want of jurisdiction available to appellant, when raised for the first time in the Court of Appeals, is the District Court’s want of jurisdiction to render the decree appealed from.</p> <p>On Rehearing.</p> <p>5>. Same — Appeal to Supreme Court — Findings by Circuit Court op Appeals.</p> <p>General Bankruptcy Order 36, § S (S9 Fed. xxxvi, 32 C. G. A. xxxvi), declaring that, in every case in which either party is entitled by the act to appeal to the Supreme Court of the United States, the court from whieh the appeal lies shall, at or before the time of entering its decree, make and file a finding of the facts and its conclusions of law thereon, stated separately, and that the record to the Supreme Court on such appeal shall consist only of the pleadings, judgment, findings of fact, and conclusions of law, does not require a Circuit Court of Appeals of its own motion to ascertain and determine in advance of its decision whether a question is raised on which a party is entitled to the allowance of an appeal to the Supreme Court, but such right, if claimed, should be called to the court’s attention in advance of decision, by a request for findings in the event of an adverse ruling on the question claimed to be appealable.</p>

<p>1. Appeal and Error — Review—Bill op Exceptions — Sufficiency.</p> <p>An assignment that the court erred in overruling defendant’s motion, made at the close of all the evidence, to take the case from the jury, cannot be reviewed, where the bill of exceptions neither recites nor otherwise shows that it contains all the evidence.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2911-2915.]</p> <p>i!. Trespass — Undermining Land — Proximate Cause.</p> <p>In 1887 defendant city constructed a tunnel, 55 feet below the surface, across the lands in controversy, and on the completion of the tunnel began to pump water through it and continued to do so. In 1903 the owner erected a building on the land which he leased to plaintiff. In the preparation of the foundation a number of piles penetrated the tunnel, and after plaintiff, took possession the flowing water carried away the soil so that the building sank. Defendant never obtained any right to enter or be on the land for any purpose from the owner or plaintiff, and neither knew of the tunnel until the damage was done. Held, that the forcing of water across the land was a continuing trespass and constituted the xiroximate cause of the injury, for which plaintiff was entitled to recover.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trespass, § 8.]</p>

<p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>On motion to dismiss writ of error.</p>

The collision occurred at 6:30 a. m., May 6, 1906. The car float was moored at the end of Pier L, Hoboken, N. J., being the outside boat of five -which were lying there. Soon after the collision Llie car float sank. The testimony was all taken in open court.

<p>Collision— Steamer and Tows — Negligent Navigation of Tows.</p> <p>Evidence hold sufficient to sustain a finding that libelant's vessel was injured in a collision due to the fault of respondent's tows, which were spread out so as to occupy the greater part of the channel.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 10, Collision, §§ 200-202.]</p>

<p>Patents — 3 nfringhment — Locomotive Track Sander.</p> <p>The Loach patent, No. 433,(586, for a locomotive track pander, discloses patentable novelty and invention; also, hold infringed.</p>

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

<p>1. CouBTs — TTeíited States Comers — Stiuux.atioN to Sdtsstitctte State Practice.</p> <p>The only way oí testing the sufficiency of an answer in equity as a defense to tiie bill is to set the cause down for hearing and final decree on bill and answer, and a federal court of equity should not permit parties to abrogate such procedure by substituting by stipulation a state practice of interposing a demurrer to the answer with leave to amend or plead further after a ruling thereon.</p> <p>2. lÍANKKUPTCy — VOIDADUK PREFKREiMCE — TRANSFER OF EXEMPT PROPERTY.</p> <p>Property transferred by a bankrupt to a creditor, which was exempt under the laws of the state, cannot be recovered by his trustee.</p> <p>3. Same- — Effect of Agreement Made Before Eour Months’ Period.</p> <p>The fact that a transfer of property by a bankrupt to a creditor to be applied oil an antecedent debt, made within four months prior to the bankruptcy, was pursuant to an agreement made before the four months’ period, will not prevent its recovery by his trustee.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 6, Bankruptcy, §§ 202, 203.1</p>

<p>1. Basks and Banking — National Banks —Oitensics by Oeficers — False Reports.</p> <p>An indictment charging officers of a national bank with making a false entry in a report made by them, “with intent to deceive an agent appointed to examine the affairs of the association, to wit, the Comptroller of the Currency of the United States” does not charge an offense tinder Rev. St. § 5209 (U. S. Comp. St. 1901, p. 8197), the comptroller not being charged with any duty to examine national banks, although he is given power to appoint agents for that purpose.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 0, Banks and Banking, § 971.1</p> <p>2. Same.</p> <p>A general averment in an indictment against officers of a national bank that a false entry charged to have been made by them in a report to the Comptroller of the Currency was made “with intent to injure and defraud the association” is insufficient to state an offense under Rev. St. § 5209 (U. S- Comp. St. 1901, p. 3497), no facts being alleged to show in what manner the bank could have been injured or defrauded thereby.</p> <p>|Ed. Note. — For eases in point, see Cent. Dig. vol. 6, Banks and Banking. § 971.]</p>

<p>In Kquity. Suit to recover unpaid subscriptions to stock. On demurrer to bill.</p>

<p>Equity — Bill op Review — Pasties—Eobeclosuke Deceee.</p> <p>A decree of foreclosure regularly entered under wliicii tlie property has been sold and the sale confirmed cannot be set aside and the case reopened on petition of one not a party, but who Claims some right or interest in the property.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 19, Eauity, § 1099.]</p>

<p>In Bankruptcy. On certificate from referee.</p> <p>The following is the referee’s certificate upon petition for review:</p> <p>To tlio honor ¿Me James P. Platt, District Judge: I, John W. Banks, the referee in charge of this proceeding, do hereby certify: That in the course of this proceeding an order was made and entered on February 22, 190S, allowing the claim of the estate of Mary L. Bennett against this estate in the sum of $6,450. That on the 4th day of March, 1908, certain creditors by Robert H. Gould, their attorney, filed a petition for review, which was granted. That the facts upon which order was based are as follows: Prior to the present bankruptcy proceeding, the G. H. Bennett Shoe Company had been adjudged a bankrupt July 6, 1903, being case No. 1,096 in bankruptcy in this court. In that proceeding it made its creditors a composition offer of 26 per cent., which was accepted. This composition proceeding made necessary the deposit in court' by the bankrupt of upwards of $6,000. Mary L. Bennett was one of the stockholders and directors of the bankrupt corporation. She owned real estate in the state of Rhode Island and had $1,221.83 on deposit in the Bridgeport Savings Bank. She mortgaged this real estate for $3,500, drew $1,221.83 out of the savings bank, and, adding enough thereto to make the total sum $5,000, loaned said sum of $5,000 to the bankrupt corporation to enable it to effect the’ composition with its creditors. This loan was made some time in August, 1903; the composition offer being accepted by the creditors August 17, 1903. On November 10, 1903, pursuant to a vote of the board of directors, the C. H. Bennett Shoe Company gave Mrs. Bennett its note for $3,000 as evidence of this indebtedness. In September, 1904, the C. H. Bennett Shoe Company ordered shoes from Greene, Anthony & Co., but was unable to obtain them on credit. In order to enable the company to obtain these shoes, Mrs. Bennett gave her check for $400, pa5able to C. I-I. Bennett, her husband and the president of the corporation, and by him indorsed to Greene, Anthony & Co., who thereupon shipped merchandise to that amount to the C. H. Bennett Shoe Company. No objection to the allowance of this claim was made by the trustee, but certain creditors filed specifications of objections to ils allowance on the ground that no consideration for said note of $5,000 or said sum Of $400 moved to said bankrupt corporation. The referee overruled said objections and allowed the claim as filed. The question presented on this review is the correctness of said ruling. Said question is certified to the judge for his opinion thereon.</p>

<p>In Bankruptcy. On exceptions to report of J. E. Vandersloot, special master, on objections to discharge.</p>

<p>1. Commerce — State Statute Kegtjx,atino Iíatlroai)s -Constitutionality--INTERFERENCE WITH INTERSTATE COMMERCE.</p> <p>Acts Ark. 1907, p. 453, to regulate freight transportation by railroad companies doing business in the state of Arkansas, is unconstitutional, in that its provisions were clearly intended to apply to interstate shipments as well as intrastate shipments, and it is therefore an interference with interstate commerce.</p> <p>2. Carriers — Regulation—Unreasonable Requirements.</p> <p>It is also unconstitutional because its requirement upon the companies to furnish cars is absolute and subject to no exception whatever, even where the furnishing of such ears is impossible for reasons beyond the company’s control.</p>

<p>'Prior to August 2,188G, there was one district judge appointed for the Northern, Middle, and Southern districts of Alabama, under section 552 of the Revised Statutes (U. S. Comp. St. 1901, p. 447). That judge was' the Honorable John Bruce. He was appointed and confirmed as judge of “each of the districts” in the state on the 25th of February, 1875, and so continued until the Act of August 2, 1886 (24 Stat. 213, c. 842 [U. S. Comp. St. 1901, p. 449]), when a judge (Hon. H. T. Toulmin) was appointed for the Southern district under the Act of August 2, 1886, the second section of which provided “that the .jurisdiction of the present district judge for the several districts of Alabama and his successors shall hereafter he confined to the Northern and Middle districts of said state.” Judge Bruce departed tills life in October, 1901. Thomas G. Jones, having been duly appointed and confirmed, was commissioned and qualified ás “judge of the Northern and Middle districts” on December 17, 1901. On February 25, 1907. an act was approved providing “for a United States judge for tbe Northern judicial district of Alabama,’-' which enacted “that the President of the United States by and with the advice and consent of the Senate shall appoint a district judge for the Northern judicial district of Alabama, who shall possess and exercise ail the powers conferred by existing law upon judges of the District Courts of the United States, and who shall possess the same powers and perform the same duties, within the said Northern judicial district of Alabama, as are now possessed by and performed by district judges of the United States in any of the judicial districts established by law. and he shall receive the same compensation now or hereafter prescribed by law in respect to other district judges of the United States; and provided that after the appointment the judge appointed under this act shall reside at Birmingham in said district.” Act Feb. 25,1907, e. 1198, 34 Stat. 931 (U. S. Comp. St. Supp. 1907, p. 187).</p> <p>■ On April 7, 1907, Oscar K. Hundley was nominated by the President as judge of the Northern district and commissioned as such in the recess of the Senate. Ho Qualified a iew days thereafter, and entered upon the discharge of his duties as judge of the Northern district. Judge Hundley, as well as the Kxecutive Department, the circuit judges, and the bar and litigants recognized Thomas G. Jones as a judge of the Northern district under his commission as ‘•judge of the Northern and Middle districts," and he acted as such whenever necessary. Judge Hundley refused to enter into any arrangement with him as to the appointment of officers, or to definitely commit himself in any way as to his intentions, in a correspondence lasting some weeks, or even as to a friendly test case as to the respective powers of the judges. The substance of the correspondence between the two judges on this point is set out in the opinion. The terms of the two referees then at Birmingham expired, respectively, on the 10th and 13th days of November, 1907, and they went out of office then; Judge Jones disclaiming authority to appoint without the consent of Judge Hundley, and the latter having rejected a proposition either to retain the referees as they were, or to appoint a third referee whom Judge Hundley could name, or, if that were not agreeable, for each of the judges to name one of the referees. On November 1, 1907, while holding court at Huntsville, Judge Hund-ley appointed Nenian JL Steele a referee in bankruptcy in Birmingham without the knowledge or consent of Judge Jones, who, on the 5th of November, 1907, in open court at Birmingham, revoked the order appointing Steele without Judge Hundley's consent, but was compelled at that time to return to duty in the Middle district. Judge Hundley set aside the order revoking Steele’s appointment, and in an opinion reported in Mx parte Steele (D. C.) 156 Fed. 654, justified the refusal to make up a test case on the ground that it would be a moot case. Thereafter Steele continued as sole referee in bankruptcy at Birmingham.</p> <p>Judge Jones, pending a bill introduced in Congress to legislate him out of the Northern district, made no further order as to Steele. Congress adjourned on the 30th of May, 1008, without ever having acted on the hill, and the Senate took no action on Judge Hundley's nomination. Thereupon Judge Jones on that day, bring then the sole judge of both districts, as soon as Congress adjourned, and while in the Middle district, made an order, and sent it to the clerk at Birmingham to be entered there, appointing Alex. C. Birch a referee in bankruptcy at Birmingham, without disturbing Steele, but requiring the clerk, unless otherwise directed by a judge of the court, 1o refer the even-numbered eases in bankruptcy io one of the referees and the odd-numbered cases to the other. On June 1. 1908. Judge .Tones in open court at Birmingham, repeated the same appointment and order without Judge Hundley’s consent, if lie had then qualified, under a new recess appointment. Jpdgc Hundley set asido that order as huprovidonfly made, and absolutely void, holding, in an opinion afterwards reported (In re Steele [D. O.] 161 Fed. 88C), among other things, that the act of Congress creating courts of bankruptcy provided for one court only in the territory prescribed, and that the judge of the Northern and Middle districts had no authority to hold a conn: to appoint a referee in bankruptcy, when Judge Hundley was holding court in the district. Thereupon Judge .Tones advised Referee Birch to serte a review of the order under section 24 of the bankruptcy statute (Act July I, 1898, c. 541, 30 Stat. 553 |TJ. S. Comp. St. 1901, p. 3431 ¡1. as he (Judge .Tones') conid not always remain In the Northern district, and Judge Hundley avowed a purpose to revoke any orders made by Judge Jones concerning a referee in bankruptcy. Bonding decision by lire Court of Appeals on Referee Birch's petition. Judge .Tones refused to make any further orders in the matter, esteeming that mode of settling a legal difference was not admissible with due regard for the public interests and the proprieties of the judicial station.</p>

On Demurrer to Evidence. 'Trespass on the case. On the,01 h day of June, 1905.

After an eloquent historical address in relation to the laws regulating the manufacture and sale of intoxicating liquors, both state and national, and an interesting and instructive disquisition on the effect of the use of liquor on the negro population of the South and of the causes leading to the rights and enforcement of prohibitory laws in the South, more particularly in the state of Georgia, the judge continued his charge to the jury as follows:

<p>L Removal op Causes — Federal Court — Jurisdiction—Nonresidence or Parties.</p> <p>Where a suit is brought in a state court, and neither plaintiff nor defendant is a resident of that state, it is not removable to the Circuit Court of the United States solely on the ground of diversity of citizenship.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 60.]</p> <p>2!. Same — Cloud on Title.</p> <p>Jurisdictional Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Act March 3, 18S7, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), confers jurisdiction on a federal Circuit Court of a suit to remove a cloud from the title to land lying within the district where the suit is brought, so, where neither of the parties to a suit for such relief were residents of the state in the courts of which the suit was brought, it was removable to the federal Circuit Court.</p> <p>íi. Same — Petition eor Removal — Record.</p> <p>The record may be examined in aid of a petition for the removal of a cause to the federal courts, where such averments do not disclose sufficient ground for jurisdiction on removal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 167.]</p> <p>Same.</p> <p>A petition to remove a cause to the federal Circuit Court should contain the essential averments to show jurisdiction on removal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 42, Removal of Causes, §§ 166, 167.]</p> <p>B. Acknowledgment — Mode—Married Women.</p> <p>A certificate of acknowledgment to a deed, reciting that W., wife of the grantor, being examined by the officer privily and apart from her husband, and having the writing fully explained to her, declared she had willingly executed the same and did not wish to retract it, in accordance with the decisions of the Supreme Court of Appeals of West Virginia, where the instrument was executed, was insufficient to show that such feme covert acknowledged the deed to be her act.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Acknowledgment, §§ 183, 203-207.]</p> <p>6. Partition — Nature of Proceeding — Trial of Title.</p> <p>The common-law rule that a trial of title could not be had in a suit for partition was changed by Code W. Va. 1899, c. 79, § 1 (Code 1906, 5 3180), declaring that the court in such cases shall have jurisdiction of the questions of law affecting the legal title that ’ may arise in the proceedings under which the court may pass on all claims of title except a title asserted by a stranger.</p> <p>1. Judgment — Collusiveness—Issues Determined — Presumption.</p> <p>Where a court had jurisdiction to determine all conflicting questions of title between the parties to a partition suit, it would be presumed that it did so, and that the decree unappealed from finally adjudicated the interests of the parties in the land in controversy.</p> <p>8. Infants — Action—Conclusiveness of Decree.</p> <p>Where certain infants were parties to a suit for partition, a decree adjudicating their interests became conclusive on them, their privies, and alienees on the expiration of six months after they became of age without their having within that time directly attacked the decree either by appeal or hili of review for error apparent on the face of the record.</p> <p>9. Partition — Form op Decree.</p> <p>Where, in partition, the same title was decreed to certain distributees as was decreed to all the other co-tenants, and was such as M., who owned the fee. was seised of in his lifetime, the decree passed a fee to them, though it did not so state in terms.</p> <p>10. Same — Construction.</p> <p>A partition decree recited that there were eight heirs to inherit the estate, and then purported to lay off and assign to each of them their respective interests, and to defendant’s grantors, who held under a deed which was invalid as to the heir but valid as to her husband, was awarded an (‘(pial one-eighth part. Held, that such decree could not to be construed as intending to vest in defendant’s grantor only the carro,sy interest of the husband, but a title to a ono-oighth interest in fee.</p>

<p>Trespass on the Case. Upon motion for new trial.</p>

<p>1. Master and Servant — Injury to Servant — Action—Instructions.</p> <p>In an action by a servant against tbe master to recover for a personal injury resulting from an explosion of steam pipes in a boiler room where plaintiff was working an instruction was not erroneous which charged, in effect, that it was the “absolute duty” of defendant to exercise reasonable and due care to provide a reasonably safe place and reasonably safe and well-constructed appliances, and keep them in a safe and proper condition. ,</p> <p>[Ed. Nóte. — For eases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1100-1154.]</p> <p>2. Same — Burden of Proof.</p> <p>While the burden of proving defendant’s negligence in such case rested on the plaintiff, where he gave credible evidence that certain dangerous defects in the machinery and appliances existed on and prior to the day of the accident, and were known to defendant, the burden was thrown on defendant to show that they had been repaired or did not exist.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 900-905.]</p> <p>3. Same — Instructions.</p> <p>Instructions in an action by an employe against the master to recover for a personal injury resulting from the bursting of steam pipes in defendant’s boiler house reviewed, and held not to contain any material or prejudicial errors which entitled defendant to a new trial.</p>

At Law. This is an action brought by the plaintiff, as receiver of a defunct Minnesota corporation, to recover from the defendant, a resident of Wisconsin, the c mount of a certain assessment made by a court of equity in Minnesota npon shares of stock owned by the defendant in said corporation.

<p>1. Raii-roadr — Safety Appliance Act — Construction.</p> <p>Under Safety Appliance Act Mareli 2, 1890, c. 106, 27 Stat. 331 (V. S. Comí). St. 1ÍHU, p. 3174), as amended by Act March 2, 1003, c. 907, 32 Stat. 043 (U. S. Comp. St. Supp. 1.007, p. 885), a railroad company receiving cars to be liauled in moving interstate traffic, or in connection with other ears that are so used, is required to know at its peril that each of said, ears is equipped with the safety appliances required by such act, and it is liable for the penalty prescribed therein for each car so hauled, or used in moving interstate traffic, or in connection with other cars that are so used, which is not so equipped.’</p> <p>2. Same — Action for Violation — Measure of Proof Required.</p> <p>An action by the United States to recover the penalty provided for a violation of Safety Appliance Act March 2, 1893. c. 198, 27 Stat. 331 (IT. S. Comp. St. 1901, p. 3.174). as amended by Act March 2, 1903, c. 987, 32 Stat. 943 (17. S. Comí). St. Supp. 1997, p. 885), is a suit of a civil nature, and a preponderance of the evidence only is required to establish the cause of action.</p> <p>3. Same — Cars Becoming Defective While in Use — Durr to Discover and Repair Defects.</p> <p>If a railroad train used in moving interstate traffic when started is properly equipped with air brakes as required by Safety Appliance Act March 2, 1893, c. 196, 27 Stat. 531 (U. 8. Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, § 2, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 886), or if cars so used are properly equipped with automatic couplers as therein required when started or when received by the company for transportation over its line, but from any cause either train or cars become defective so ns not to comply with the law while being so moved, the company is required to immediately repair such defects as soon as discovered, or as soon as they could have been discovered by the exercise of reasonable care, if the means of repair are at hand; but, if not,, the company may haul the same to the nearest repair point without be-j ing subject to the penalty for violation of the act.</p> <p>4.'Same —Teaiísts — Insufficient Equipment with Train Brakes — “Single Train.”</p> <p>A freight train scheduled to run regularly between points in different states is a single train throughout such run and at all times subject to the provisions of Safety Appliance Act March 2, 1803, c. 196, 2T Stat 031 (U. S. Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 967, ,32 Stat. 943 (U. S. Comp. St. Supp. 1907. p. 8S5), although some of the cars composing it may have been left and others taken on at different stations, and although after entering the second state the engine, caboose, and train crew may have been changed. In such case, if at any one or more points in the run a sufficient number of the ears composing the train are not equipped with air brakes to meet the requirement of the act, the railroad company is liable to the penalty imposed for its violation, but to one penalty only.</p>

<p>INSURANCE — Actios—Vai;tie oe Property — Evidence.</p> <p>In an action on a policy insuring certain cotton, evidence ft alii to justify a finding that the loss occurred alter 8:55 a. m. on June 8, 1905, and that the actual cash value of the cotton lost or damaged was 8.55 cents per pound at Hie time the loss or damage occurred.</p> <p>[Ed. Note. — For cases in point, see Cent:. Dig. vol. 28, Insurance, § 1722.J</p>

Tn Bankruptcy. The following’ is a copy of the referee’s report, referred to in the opinion: A petition in bankruptcy was filed against the Consumers’ Coffee Company on May 38, 1905, and on May 19,… Held: and John S. Ilershey appointed trustee. On the same date the receiver presented a petition praying for an order to sell the business at 236 Chestnut street at private sale for the sum of $700.

At Law. This action was brought on a bond given by Shryoek as principal and his eoclefendants as sureties to secure the payment of rents accruing on a lease for the light to use water from lho water power of the Muskingum river. A verdict having been returned against, the defendants, a motion is made to set it aside and for a new trial.

<p>3. Courts — Priority of Jurisdiction — Possession of Property.</p> <p>It is.the law of the federal courts that the court which first takes possession of property cannot be disturbed or interfered with in such possession by any other court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 1386.</p> <p>Jurisdiction as affected by possession of the subject-matter, see note to Adams v. Mercantile Trust Co., 15 C. C. A. 6.]</p> <p>2. Same.</p> <p>A federal court of equity, which has acquired jurisdiction to administer the property of an insolvent corporation hy taking possession of the same by its receivers in an appropriate suit, is not deprived of such jnrisdic-tiou by a subsequent dissolution of the corporation by the judgment of a state court.</p> <p>[Kd. Note. — For cases hi point, see Cent. Dig. vol. 13, Courts, § 1407.]</p> <p>3. Corporations — Insolvency— Creditors’ Suit.</p> <p>A court of equity has jurisdiction to sequestrate the property of an insolvent corporation in a creditors’ suit, where the bill charges fraud as well as insolvency.</p> <p>4. Courts — Priority of Jurisdiction — Possession of Property.</p> <p>Code Civ. Proc. N. Y. §§ 1784, 1783, 1788, 1793, provide for two proceedings to sequestrate and distribute the property of insolvent corporations: One, applicable to all corporations, at suit of a-judgment creditor whose execution has been returned unsatisfied, and the other, applicable to certain corporations including insurance companies, by a suit for dissolution brought by the Attorney General. In either case the asseis are administered by a receiver appointed by the court. Held, that: the creditors’ suit so provided for may be maintained in a federal, as well as a state, court, and that, where a federal court in such a suit had taken possession of the assets of an insolvent insurance company by its receivers, the suit was not abated nor the court’s jurisdiction ousted by ihe subsequent institution of a suit for dissolution by the Attorney General in which receivers were also appointed.</p> <p>[Ed. JSTote. — For cases in point, see Cent. Dig. vol. .13, Courts, § 1407.]</p> <p>5. 'Insurance — Life Insurance Company — Insolvency —Eights oi? Policy Holders.</p> <p>Upon the insolvency of a life insurance company, its policy holders become creditors, with tile same right as oilier creditors, to maintain a suit for the liquidation of its affairs under a state statute giving such right to judgment creditors, and the objection that they had not reduced their claims to judgment and issued executions thereon may be waived by the corporal ion.</p> <p>[Erl. Xote. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 51.]</p>

<p>Insurance — Insolvency and Dissolution of Mutual Life Association— Distribution of Fund in Hands of Trustee.</p> <p>A life insurance association deposited a portion of its reserve fund with a trust company under an agreement requiring the company to hold and invest and pay over the income of the fund to the association, and further providing that “in case of a dissolution of the party of the first part (the association) the entire reserve fund shall he divided among the then members of the association or shall be distributed in such other equitable manner as the courts shall direct.” Held, that such agreement imposed no duty of distribution on the trustee, but that, on a dissolution of the association, in an action by the state, a federal court having charge of the administration of its assets had power to order the trustee to turn over the securities and funds in its hands to the court’s receivers for distribution with the other assets.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1847.]</p>

<p>Insubance •— Insolvency and Dissolution of Mutual Life Association — Distribution of Fund Dfposited wrnr State.</p> <p>Laws N. Y. 1884, p. 429, c. 353, § 2, which authorizes any insurance company doing business on the co-operative or assessment plan, in its discretion to deposit securities with the Superintendent of the Insurance Department of the state, to he held for the sole benefit of the members of the company and subject to the provisions of such a deed of trust as shall be approved by the superintendent, does not impose upon him any duty to make distribution of the fund deposited on the insolvency of the company, and, in the absence of any such requirement in the deed of trust, he holds such securities or fund in such case subject to the orders of the court which is administering the estate of the insolvent corporation.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1847.1</p>

<p>Aliens — Constbuotion of Immjgkation Act — X’enalty fob Violation by Mastkb of Vessel.</p> <p>Tlie provision of Immigration Act Feb. 20, 1007, § 15, c. 1134, 34 Slat. 003 (U. S. Comp. St. Supp- 1007, p. 308), that the master of any vessel bringing aliens into the United States who shall fail to deliver to the immigration officers at the port of arrival lists or manifests of all aliens on board as required by sections 12 and 13, and containing the information therein specified, “shall pay to the collector of customs at the port of arrival the sum of ten dollars for each alien concerning whom the above information is not contained in any list as aforesaid,” is penal in its nature, and must be strictly construed, and so construed it does not impose such penalty for the giving of incorrect or false information in such list, where it includes ail the aliens on board, and purports to give the required information as to each.</p>

<p>Bakkruptcy — Exemptions—Toons and Instruments of Business.</p> <p>Under Code Civ. Proe. Neb. § 530, which, exempts from sale on execution “the tools and instruments of any mechanic, miner, or other person, used and kept for the purpose of carrying on his trade or business,” a bankrupt, who is a dealer in eggs and poultry, which he buys at farmers’ houses, and takes to his places of business, and there prepares for shipment, is entitled to hold as exempt a horse, harness, and wagon suitable for use in bringing in such produce, and also his office furniture, scales, coops, egg-candling booths, etc., necessary to be used by him in conducting his business.</p>

<p>In Admiralty. On exceptions to commissioner’s report.</p>

<p>In Equity. On demurrer to bill and motion to dissolve temporary injunction.</p>

<p>Courts — Jurisdiction of Federal Courts — Ancillary Suits — Parties.</p> <p>Where an action is brought in a federal court on an arbitrator’s award, a suit by the defendant therein to set aside the award for fraud is ancillary, but such fact does not give the court jurisdiction to bring in another party who is a citizen of the same state as the complainant to impeach an award in its favor made at the same arbitration, but which is separate and distinct from that between the other parties.</p> <p>[Ed. Note. — Supplementary and ancillary proceedings, and relief in federal courts, see note to Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.]</p>

<p>Customs D oties — Cl assiitication — Flags—* ‘Toys. ’ ’</p> <p>Tlie provision for “toys” in Tariff Act July 24, 1807, e. 11, § 1. Schedule' N? par. 41S, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1674), does not include small silk flags mounted on slender wooden staffs about 4% inehes-long.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7036, ’781S.]</p>

<p>Motions by Defendant for New Trial and for Judgment Notwithstanding the Verdict.</p>

This is an action of ejectment, instituted by the defendant in error, Arthur Buffalo, a minor, by J. F. Bobinson, his guardian, against the plaintiffs in error, for the recovery of certain lands in the Quapaw reservation in the Indian Territory. The title of the defendant in error was derived as follows; On September 26, 1896, a patent was issued by the United States to John Medicine, a Quapaw, as an allottee of the reservation lands of said tribe of Indians.

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

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

<p>1. CARRIERS — INTERSTATE COMMERCE — INDICTMENT TOR GRANTING REBATES. •</p> <p>An indictment against a railroad company for granting rebates in violation of Elldns Act Feb. 19, 1000, c. 708, § 1. 82 Stat. 817 (U. S. Comp. St. Supp. 1907, p. 880), need not set out a particular description of the device resorted to, but Is sufficient where it avers the kind of property shipped. Hie time and place when and where shipped, the consignee, the existing legal tariff for such shipment, the payment thereof by the shipper, the subsequent payment of the rebate by the carrier to the shipper, and the time and amount of such payment.</p> <p>2. Same — Elements of Offense — Refunding op Emvator Charges.</p> <p>A railroad company whose published, schedule rate for the carriage of oats in interstate shipment from Minneapolis to Duluth or Superior was five cents per 100 pounds, and which received payment from a shipper at such rate, but, on shipments intended for through transportation over the lakes, later refunded to the shipper the elevator charges for transferring the grain from its cars to vessels after the termination of its own carriage amounting to one-haif cent per bushel, was guilty of granting a rebate or concession from the published schedule rate, in violation of Elldns Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), and it was no defense to a prosecution therefor that competing roads granted a like concession, and that it was compelled to do the same in order to secure its fair share of the business, or that it treated all shippers alike, or that the concession was made by its officers in good faith and in the honest belief that it was lawful.</p> <p>8. Same — Construction of Statute — ‘■Wuj.fux” Granting of Rebates.</p> <p>The use of the word “willful” in Elkins Act Feb. 19, 1903, c. 708, § 1, 32 Stat. 847 (Ü. S. Coinp. St. Supp. 1907, p. 880), to characterize offenses thereunder, conceding it to apply to the granting of rebates from the published schedule rates, does not require that there should have been an evil intent to constitute the offense, but it is sufficient if the act was done knowingly and purposely.</p> <p>¡Kd. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7408-7481, 7835-7830.]</p>

<p>1. Words and Phrases — “Grand Inquest” — “Inquest.”</p> <p>The term “grand inquest” has no other meaning than “grand fury”; the term “inquest” being used to indicate a body of men appointed by law to inquire concerning certain matters submitted to them.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 4, p. 3634.]</p> <p>2. Indictment and Information — Form—Introduction.</p> <p>An indictment returned into a federal court, reciting that the “grand .inquest” of the United States of America, inquiring for the body of the district of Maryland, do on their oath present, etc., was not objectionable for failure to show that it was returned by a grand jury.</p> <p>3. Banks and Banking — National Banks — Officers — Defenses — Indictment.</p> <p>Rev. St. U. S. § 5208 (U. S. Comp. St. 1901, p. 3497), declares that it shall be unlawful for any officer, clerk, or agent of any national banking association to certify any check drawn on the association, unless, etc.; and section 5209 declares that every president, director, cashier, teller, clerk, or agent of “any association, who embezzles,” etc. Held, that an indictment, charging that defendant, being then and there the cashier of a certain “national banking association,” to wit, etc., was not fatally defective for failure to allege that the national banking association specified was a national banking association organized under the laws of the United States.</p> <p>'4. Same — Doing Business.</p> <p>An indictment against a national bank cashier for an offense against the national banking law was not defective for failure to allege that the bank was doing business at the time the alleged offenses were committed.</p> <p>8. Same.</p> <p>Where an indictment against a national bank cashier for willful misapplication of the bank’s funds and willful abstraction thereof alleged that a customer of the bank, prior to the maturity of a note held by the bank against it, delivered a check to the bank to pay the note when due, which check came into defendant’s possession as cashier, and that defendant cashed the check and converted the proceeds, the indictment was not fatally defective for failure to allege in words as to who was the payee of the check, nor to charge that the bank was still the owner of the note.-</p> <p>6. Same — Nature of Offense.</p> <p>Where a customer of a national banking association, whose note to the bank was about to mature, delivered a check to the bank to pay the note when due, and, the check coining into the hands of defendant as cashier of the bank, he cashed it and converted the proceeds, the loss was that of the bank, and defendant's offense a willful misapplication and abstraction of the bank’s funds and credits, and not a mere breach of trust.</p>

<p>1. Sales — Contract—Construction—Option.</p> <p>Where an instrument purported to embody an agreement that plaintiff was to furnish defendant with its entire consuinption of coal, and also contained an absolute requirement that plaintiff should have 1,000 tons constantly in defendant’s yard, and 3,000 tons on dock, and in transit to insure a continuous supply, the instrument fairly imported an agreement on defendant’s part to accept the coal, as well as an obligation of plaintiff to deliver the same, and was therefore an enforceable bilateral contract.</p> <p>2. Same — Action pob P:rice — Recoupment.</p> <p>Where plaintiff contracted to furnish defendant with its entire consumption of coal from May 1, 1902, to April 1, 1903, at certain specified prices, and neither party ever repudiated the contract because defendant was not bound to consume coal, such fact, if true, was no bar to defendant’s right to recoup from the price of coal furnished any damages that it suffered in consequence of plaintiff’s failure to furnish a sufficient supply.</p> <p>3. Same — Contract—Construction—Place op Delivery — “F. O. B. Philadelphia.”</p> <p>A contract required plaintiff to furnish defendant -with its entire consumption of coal between specified dates at $2.40 per long ton f. o. b. Philadelphia; the Eastern Coal Company, or any other mutually satisfactory concern, to freight, insure, unload, and haul to defendant’s works for $1.35 per long ton, defendant’s total payment to both parties being $3.75 per long ton delivered in defendant's yard at such times and in such quantities as defendant might direct, and plaintiff to have at least 1,000 tons constantly in defendant’s yard and 3,000 tons on dock at Providence and in transit. Held, that the contract required delivery of the coal at defendant’s yard; the words “f. o. b. Philadelphia” being used merely to fix the price up to that point.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. yol. 43, Sales, § 214.]</p> <p>4. Same — Guaranty of Delivery — Waiver.</p> <p>That defendant contracted with the Eastern Goal Company to freight, insure, unload, store, and haul the coal did not operate as a waiver by defendant of plaintiff’s guaranty to keep a sufficient supply of coa. on hand in defendant’s yard.</p> <p>5. Same — Waiver of Default — Subsequent Acceptance.</p> <p>Where plaintiff contracted to furnish defendant with its supply or coal during a certain period, defendant’s acceptance of coal under the contract at a later time, after it had been damaged by plaintiff’s failure to furnish coal as agreed, did not waive or extinguish defendant’s cause of action already accrued.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, § 458.]</p>

The case involves construction of the following statutory provisions : “Sec. 25.

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

<p>1. Collision — Steam Vessel and Scow Drifting at Night — Negligent Hooking.</p> <p>The going .adrift of a mud scow, without lights, lying at a wharf in the night with no one on board, in calm weather, was prima facie due to her being negligently moored, and is sufficient to charge her with fault for a collision with a ferryboat while so adrift.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 8j%.]</p> <p>2. Same — Fekkyboat—Failure to Keep Pkoper Lookout.</p> <p>A ferryboat, navigating Boston Harbor on a clear night, but when the water was dark, with the only lookout in the pilot house, was chargeable with fault, held to have contributed to a collision with a mud scow, low in the water and adrift.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 211.1</p>

<p>Coukts — Conflicting Jurisdiction of State Courts and Courts of Admiralty-Proceedings for Limitation of Liability.</p> <p>An action at law was brought in a state court by a passenger against the owner of a vessel to recover damages resulting from a collision. After trial, a verdict in favor of the plaintiff, and more than two years after the collision, the defendant instituted proceedings for limitation of liability in a court of admiralty. Held, that the admiralty court had power, by analogy with the powers exercised by courts of equity and bankruptcy, to permit the plaintiff in the state court to prosecute her action to judgment for the purpose of completing the liquidation of her claim for future consideration in the limited liability proceedings, and that tinder the circumstances here such leave should be granted.</p> <p>[Ed. Noto. — Conflict of jurisdiction with state courts, see note to Eouisville Ti'ust Co. v. City of Cincinnati, 22 C. C. A. 350.]</p>

<p>1. Limitation op Actions — Fraud—Trusts—Discovery of Fraud.</p> <p>Where intestate was trustee of a secret trust, so far as complainant was concerned, limitations did not begin to run against his administratrix to recover for alleged breaches of trust until the right of action accrued on discovery of the fraud.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 33, Limitation of Ac. tions, § 486.1</p> <p>2. Trusts — Action to Enforce — Laches.</p> <p>Where complainant had no knowledge of an assignment for its benefit, under which intestate, its president, held and administered certain property as trustee, until the paper was found in his safety deposit box after his death, when it was first discovered that intestate had committed various breaches of trust as against complainant, after which suit was promptly brought against intestate’s administratrix, complainant’s right to recover was not barred by laches.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 47, Trusts, § 571.]</p> <p>3. Appeal and Error — Assignments of Error.</p> <p>Errors not assigned will.not be considered on appeal.</p> <p>TEd. Note. — -For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2968-2982.]</p>

<p>Customs Duties — Classification—Gkanite “Dressed” — Monuments in SecTIONS.</p> <p>Tariff A.ct July 24, 1897, c. 13, § 1, Schedule B, pars. 137, 118, 30 Stafc 159 (U. S. Comp. St. 1901, p. 1636), relating to granite, etc., “and other building or monumental stone,” “hewn, dressed or polished,” and “un-manufactured or undressed,” was intended to cover the general subject of building and monumental stone; and granite monuments imported in sections dressed, ornamented, and polished abroad and ready to be set up and leaded or cemented together are dutiable under said paragraph 118 as “granite * * * dressed.”</p>

<p>Tn Error to the Circuit Court of the United States for the District of Delaware.</p>

<p>1. Contracts — Construction.</p> <p>A contract, appointing plaintiffs exclusive sellers of defendant's product within certain territorjr, declared that if any difference or controversy should .arise between the parties in respect to any machinery, and such difference or controversy should not be mutually amicably settled, then all obligations under the contract should be suspended at the option of either, to be declared by letter, and that if there was any failure to perform or pay by either party as agreed, and such failure should not be redeemed by performance or payment within lu days, then all obligations should cease and terminate, except for adjustment of business previously done. Held, that the latter provision did not qualify tljie former separable provision with respect to controversies, and that defendant was entitled to suspend the contract on controversies arising, without reference to the fact that defendant was in the wrong in each controversy.</p> <p>2. Same — Notice oe Termination.</p> <p>Where a contract authorized suspension by either party on notice in case controversies should arise, and that, if controversies so arising were not settled within 80 days after notice of suspension, either patty might finally terminate the contract by like notice, defendant having served notice of suspension, plaintiffs, having recognized the status by suing on the suspension as wrongful, acquiesced in the termination of the relationship without further notice.</p>

<p>1. Carriers — Transportation op Freight — Contract—What Daw Governs.</p> <p>Where a contract for through transportation of flour from Pond Creek, Okl., to New York, was made in Oklahoma, it was subject to the Oklahoma law to the extent that such law was not an invasion of the exclusive rights of the United States to regulate commerce between the states.</p> <p>2. Sahe — Statutes—Eppect.</p> <p>Wilson’s Rev. & Ann. St. Okl. 1903, § 707, declares that a consignor, by accepting a bill of lading or written contract fob carriage, with a knowledge of its terms, assents to the rate of hire, the time, place, and manner of delivery therein stated: but that his.assent to any other modification of the carrier's obligations contained therein can only be manifested by his signature to the contract. Held, that such provision should not be construed as merely affecting the vehicle through which a transportation contract can be proved, but was a valid exercise of legislative power ¡ilíeeting interstate commerce originating in Oklahoma, to which transportation contracts made in that state were subject.</p>

<p>Carriers — Connecting Carriers — Transportation or Freight — Storage— NEGLIGENCE.</p> <p>Where a connecting carrier permitted flour to remain in its warehouse for 49 days before forwarding the same because of a shortage of cars, without notifying the shipper, knowing that the detention would be unusual, thereby preventing the shipper from protecting itself by insurance, and the flour was totally or partially destroyed by the burning of the warehouse, the carrier was chargeable with such negligence as made it responsible for the loss of the flour, notwithstanding a provision in the bill of lading that no carrier should be liable for the loss of the goods or damage thereto by fire.</p>

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

<p>Colusión — Sailing Vessels Meeting — Change op Coubse bt Privileged Vessel.</p> <p>The finding of a trial court, based on conflicting evidence, that a collision at sea in the night between two meeting schooners was due solely to the fault of the privileged vessel in changing her course just prior to the collision, affirmed.</p> <p>Pritchard, Circuit Judge, dissenting.</p>

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

<p>1. Abatement and Revivad — Jurisdiction—-Waiver of Objection.</p> <p>Under the New York practice followed by the federal courts in that state in actions at law, a defendant does not waive his right to object to the jurisdiction by including in his answer every defense upon which he relies.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 19-21.]</p> <p>2. Same — Federal Courts — District of Suit.</p> <p>A foreign corporation sued in a federal court entered a general appearance and demurred to the complaint for want of jurisdiction; the complaint alleging no jurisdictional facts. An amended complaint was filed, alleging diversity of citizenship and that plaintiff was a resident of the district. Defendant answered, denying such allegation of residence, joining issue on the merits, and also pleading a counterclaim. Held, that it did not waive its objection to being sued in that district, and that, when on the hearing it appeared that plaintiff was not a resident of the district, it was entitled to a dismissal of the action.</p>

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

A final decree of the Circuit Court, entered March 2, 1908, sustained the two claims of letters patent No. 554,675 to Arthur W. Grant for improvements in rubber tired wheels and ordering an injunction and an accounting. The patent was sustained by this court in an action by complainant against the Firestone Tire & Rubber Company; the decision being filed January 30, 1907. 151 Fed. 237.

<p>In Equity. On plea to amended bill.</p>

In Equity. On demurrer to bill of complaint in suit for infringement of two patents on the grounds there are two separate and distinct causes of action stated, and that all the parties complainant are not interested in both, that there is a misjoinder of parties complainant, and the bill does not charge conjoint use of device of both patents by the defendants in one and the same structure.

<p>1. PATENTS — A NTH STATION.</p> <p>Devices and publications loading up to, but not fully accomplishing, a desired end, do not anticipate an invention which for the first time effectively meets all requirements and successfully accomplishes such end.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 71.]</p> <p>2. Same — iNFBINfiEMENT—SURGICAL PUMP.</p> <p>The Allen patent, No. 424,941. for a surgical pump for use in the transfusion of blood and for similar purpose's, in which it is necessary that the flow of the liquid as to volume and speed should be subject to the most delicate and exact control by the operator, was not anticipated and discloses invention; also held infringed.</p>

<p>Customs Duties — Classification—Handkerchiefs.</p> <p>Tariff Act July 24, 1S9T, o. 11. § 1, Schedule 3, par. 345, 30 Stat. 181 (U. S. Comp. St. 1901, p. 1602), provides for handkerchiefs, hemmed, hemstitched, etc.; the duty being increased for each of these stages of elaboration. And paragraph 339, 30 Stat. 181 (U. S. Comp. St. 1901, p. 1002), provides a still higher rate for “handkerchiefs * * * in part of lace * * * “not elsewhere specially provided for.” Held, that it was the intention of Congress to advance the duty in accordance with the advancement of the goods in condition, and that hemstitched laee-trimmed handkerchiefs are dutiable .under the latter rather than the former paragraph.</p>

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

<p>In Admiralty. Proceedings for limitation of liability.</p> <p>This is a libel and petition in behalf of the Oregon Round Lumber Company for the ascertainment of liability, and, if any be adjudged against it,, iiien for a limitation thereof, as it respects the sinking of the barge Monarch, whereby certain coal, the property of the respondent Portland & Asiatic Steamship Company, was lost, and one Otto Pannier was drowned. The petitioner was the owner of the barge, and on December 23d leased it to the respondent Portland & Asiatic Steamship Company, to be employed in carrying coal from the bunkers or docks of the respondent Oregon Railroad & Navigation Company in Albina to and alongside of the steamship Arabia, which was lying at the Montgomery dock, with a view to coaling the ship. A bargomaster was furnished with the barge, and subsequently the libelant employed Pannier to operate a hand pump to assist with the discharge of water from her hold. It is averred, in effect, that the barge was sound, staunch, and in all respects seaworthy for the purposes for which she was to be employed, but that she sank by reason of the lessee’s negligence and carelessness in loading her with coal, so that she was not equally and evenly loaded, causing her to heel and list, thus producing an unusual and unnecessary strain upon her timbers and forcing her seams and butts to open and leak, and in unloading her in such a way that all the coal was taken from one end, instead of by distribution evenly about her deck, so that one end and side of the barge was forced under water, causing her to turn over and sink, which resulted in the loss of the coal aboard and the death of Pannier. The barge being- appraised, her value was fixed at $250. The respondent Portland & Asiatic Company claims damages for loss of the coal aboard, and the respondent the administrator of the estate of Pannier claims damages for the death of decedent.</p>

<p>Public Lands — Deed Executed by Alien Occupant — Validity.</p> <p>One M., an alien, wlio liad not declared Ms intention of becoming a citizen of the United States, but who was an occupant of a tract of public laud, executed a deed, by which he purported to convey to defendant railroad company" a strip for right of way over such land. The land was at that time within the limits of a railroad grant and had been reserved from entry or sale. Subsequently the grant was forfeited and the land restored to the public domain, and M., who had in the meantime declared his intention to become a citizen, made a homestead entry thereof and later received a patent under which complainants acquired title. Held, that the right of way deed was a nullity both because M. was an alien, who could not under the policy of the land laws acquire any right in the land, and because it was at the time reserved and not subject to disposition thereunder, and that, being void as against public policy, the subsequent title acquired by him did not relate back to give it validity.</p>

<p>On motion to set aside order for writ of certiorari and to quash the writ.</p> <p>This action was instituted in the circuit court for the city of St. Louis., state of Missouri, to recover damages for an alleged libel charged to have bees: wrongfully and maliciously written, composed, and published by the defendants. It was sought to remove the cause from the state court to this eouri upon the ground that there was a federal question involved, but a motion to remand it to the state court was sustained upon the ground that the complaint did not show that there was such a question in the case. 160 Fed. 727. It Is now sought to remove it to this court by certiorari under section 643, Rev. St. (U. S. Comp. St. 1901, p. 521). The petition for certiorari alleges: That the defendant Goodwin was the Assistant Attorney Genera] for the Post Office Department of the United States, and the defendant Fulton, inspector in charge of the post office inspectors of the United States at the time and for some time prior to the acts complained of in the declaration; that all of said acts were committed by them solely in their capacity as officers of the United States in the Post Office Department thereof, in the discharge of their official duties, and not otherwise; that the action was commenced by plaintiff on account of acts done by defendants under authority of the revenue laws of the United States, and under and by virtue of their offices aforesaid, which said offices were occupied by them all the time mentioned m the declaration, and they therefore pray for a removal of the cause from the state to this court, and that a writ of certiorari issue for that purpose in pursuance of section- 643, Rev. St. (ü. S. Comp. St. 1901, p. 521).</p> <p>The petition is duly verified by defendants, and also has certificate of counsel, as prescribed by that statute. The granting of the writ was resisted by counsel for plaintiff, who appeared specially for that purpose; but the court, owing to the importance of the issues involved, granted an order for the writ with leave to plaintiff to file a motion to set aside this order and; quash the writ. By consent of parties, the issuance of the writ was waived, and a transcript of the pleadings in the state court filed as a return In the same manner as if a writ of certiorari had been issued. In pursuance of the leave granted, plaintiff filed a motion to set aside tlie order for the writ and quash it. There are several grounds assigned in the motion, but the substantial one alleged for the quashing of the writ is that “the petition does not allege or show that the petitioners are or were officers under any revenue law of the United States or otherwise within the terms of section 643, Rev. St. (U. S. Comp. St. 1901, p. 521).” The motion may therefore be properly treated as a demurrer to the sufficiency of the petition and the jurisdiction of this court to grant the writ upon the allegations of the petition. Virginia v. Veits (C. C.) 133 Ved. 85.</p>

In Equity. On July 25. 1894, the German Savings & Loan Society instituted a suit to foreclose a mortgage given by defendants Van B. De Lashmutt and wife on the south two-tliirds of lot .‘5, block 22, in the city of Portland, with other realty, to secure a loan of $25,000. William L. Starr and Ills wife, Nannie Starr, were also made parties defendant. A little later, to wit, on August 13, 1894, upon tlie application of complainant in such suit.

<p>In Equity. On motion to set aside temporary restraining order.</p>

On Motion to Dismiss. This is an action to recover from the collector of internal revenue the sum of S209.99. with interest as prayed for, on the ground that the money was illegally exacted and collected as license fees from the plaintiffs as wholesale and retail liquor dealers withiD the state and district of Oregon.

<p>1. Maritime Liens — Statutory Liens — Enforcement in Admiralty.</p> <p>Persons furnishing supplies to a domestic vessel, for which they are given liens by a state statute, are entitled to enforce them in a court of admiralty against the proceeds of the vessel, when sold in a suit for partition between the owners.</p> <p>[Ed. Note.. — Maritime line’s created by state laws, see note to The Electron. 21 C. C. A. 21.1</p> <p>2. Same — Supplies—Equipment of Fishing Vessels.</p> <p>Hooks, lines, bait, ice, and covers required to protect boats from the weather, while on board, are a necessary part of the equipment of a vessel engaged in fishing, and persons furnishing the same to the vessel in a foreign port on order of her master are entitled to maritime liens therefor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §14.]- ■</p> <p>3. Same — Advances Made in Foreign Port.</p> <p>A company engaged in handling fish on commission, which made advances from time to time between trips to the master and managing owner of a fishing schooner, registered in a neighboring port in another state, to enable him to carry on the business, selling the catches made and crediting the proceeds thereon, which advances were made without inquiring as to the credit or standing of the owners, and were not shown to have been needed or used for the necessary equipment of the vessel, is not entitled to a maritime lien for a balance due thereon.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §18.3</p> <p>4. Same — Repairs—Alterations in Vessel.</p> <p>Alterations made in a vessel to better fit her for a particular kind of business, but which do not essentially change her character, do not constitute construction, but repairs.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 14, 15.]</p> <p>5. Same — Presumption op Lien.</p> <p>Where repairs are ordered by the master and managing owner of a vessel in a foreign port, a lien is presumed against the vessel unless the contrary is shown.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Maritime Liens, §§ 14, 16.]</p>

<p>On Petition to Review a Referee!» Order Expunging Petitioner’s Claim Against the Estate of Harris Rome, Bankrupt.</p>

<p>In Equity. On motion by defendants for an order allowing an inspection of books and papers.</p>

<p>In Eqtiitjb On demurrer to bill.</p> <p>By its bill herein complainant seeks an injunction to restrain the enforcement as against it of the provisions of an act of the legislature of the state of California entitled “An act relating to revenue and taxation, providing fot a license tax upon corporations.” etc., approved March 20. 3005 (St. Cal. 3905, p. 403, c. 386). This act, as amended (St. Cal. 1006, p. 22, c. 19; Id. 1907, p. 664, c. 317), imposes an annual license tax. graduated upon a basis of capital stock, on every corporation, domestic and foreign (other than religious, educational. and scientific, and corporations not organized for profit), “now doing business, or which shall hereafter engage in business in this state.” It provides (section 2) that the “license tax or fee shall be due and payable on the first day of July of each and every year, to the Secretary of State, who shall pay the same into the state treasury. Tf not paid oil or before the hour of four o’clock p. m. of the first day of September next thereafter, the same shall become delinquent and There shall be added thereto, as a penalty for such delinquency. the sum of ten dollars.” It: is made the duty of the Secretary of State (section 3) to report to the Governor on or before the 15th day of September in each year a list of all corporations which have become delinquent in Ihe payment of the tax, and the Governor is thereupon required forthwith to issue his proclamation declaring “that the charters of such delinquent domestic corporations will be forfeited and the right of such foreign corporations to do business in this state will be forfeited.” unless payment of the tax with penalty for delinquency be made to the Secretary of State on or before the hour of 4 o’clock p. m. of the 30th day of November following. This proclamation is required (section 4) to be filed immediately in the office of the Secretary of State, and the latter must immediately on its receipt cause a copy thereof to be published as in the act required. It is then provided (section 5) that “at the hour of four o’clock p. m. of the thirtieth day of November each year, the charters of all delinquent domestic corporations which have failed to pay the said license tax. together with the penalty for such delinquency, shall be forfeited to the state of California, and the right of all delinquent foreign corporations to do business in this state, which hare failed to pay such license tax, together with the penalty for such delinquency, shall be likewise forfeited.” Tire Secretary of State is required (section S) on or before the 31st day of December of each year, to certitv a list of all domestic corporations whose charters have been forfeited, am. of all foreign corporations whose rights to do business in the state have been so forfeited, to each county clerk in the state, who must file the same in his office. By section 9 it is provided: “It shall be unlawful for any corporation, delinquent under this act, either domestic or foreign, which has not paid the license tax or fee, together with the penalty for such delinquency, as in this act prescribed, to exercise the powers of such corporation or to transact any business in this state, after the thirtieth day of November next following the delinquency. Each and every person who exercises any of the powers of a corporation so delinquent, either domestic or foreign, which has not paid tbe license tax, together with the penalty for such delinquency, or who transacts any business for or on behalf of any such corporation, after the thirtieth day of November next following the delinquency, shall be guilty of a misdemeanor, and, upon conviction thereof shall be punished by a fine of not less than one hundred dollars and not exceeding one thousand dollars, or by imprisonment in the county jail not less than fifty days nor more than five hundred days, or by both such fine and imprisonment.” This covers all features of the act in any wise involved in the questions raised by the bill, and all ministerial or executive steps required at the hands of the defendant or any other officer looking to its enforcement.</p> <p>By the amended bill, which was filed December 21, 1907, it is alleged, in substance, so far as the matter therein is material, that complainant is a consolidated railroad corporation organized and existing under the laws of the states of Michigan and Indiana, having its principal office in the city of Detroit; that continuously since its organization it has been and is now engaged as a common carrier of freight and passengers in the carrying on of interstate commerce over its lines extending from their western terminus at the 'city of Chicago easterly through various states of the Union and the Dominion of Canada, to Boston, Mass.; that it neither owns nor operates a railroad west of Chicago, but that it receives at the latter point and other points east of there on its system, from other roads, both freight and passengers, which it transports over its lines to various points east, and likewise receives such traffic at eastern points for transportation west over its system. It is alleged that complainant is not engaged in any local or intrastate business in the state of California, but does employ agents throughout the state to solicit traffic therein for routing over its lines on its arrival over other roads at said city of Chicago and other.points of receipt; that such agents issue no bills of lading for freight, nor do they receive payments on account of transportation, but simply make contracts securing the routing of such business over complainant’s lines, and it is alleged that the solicitation of such business in the state of California, as aforesaid, does not constitute “doing business” therein, within the meaning of the statute in question, but constitutes merely a part of complainant’s business of carrying on interstate commerce; and that, if such act is interpreted to preclude the solicitation of such traffic without the payment of such license or tax, it will constitute the imposition by the state of California of a burden upon interstate commerce, which will render the said act “wholly null and void,” as repugnant to the Constitution and laws of the United States. It is alleged that the amount of license or tax complainant would be compelled to pay under the act is $250, and that it is “claimed and contended” by the defendant Curry as such Secretary of State; that complainant is liable to pay said tax; that the officers of the state of California having in charge the enforcement of the act have taken all the necessary preliminary steps as required by the act toward enforcing the same; and that the name of complainant has been included by the defendant in the list of delinquents furnished by him to the Governor and by the latter included in his proclamation; and that if complainant “attempts to exercise its constitutional right to solicit, or have its agent or agents solicit interstate commerce in the state of California, in the manner and for the purposes aforesaid, without the payment of -said license tax and penalty imposed upon the solicitation or doing of such interstate business, said Curry, acting as the Secretary of State, but so acting under said void law, will proceed to enforce the proclamation of the Governor as aforesaid by interpreting and construing sections 2 anfl 9 of the California acts heretofore quoted to mean and include your orator, and * * * will attempt to declare that orator has forfeited its rights under said California act and by force of the proclamation of the Governor as aforesaid to solicit through its agents or agent, in the state of California, interstate commerce, and will proceed to impose the said fines, and to otherwise prohibit orator from exorcising its federal constitutional right to engage in interstate business in the said state of California by soliciting such interstate business in the manner and for the purpose aforesaid.”</p> <p>Finally it is alleged that complainant’s purpose in instituting the suit is “to obtain a judicial determination by a court having competent jurisdiction over the subject-matter and the parties as to whether said California statutes and provisions can be so interpreted and construed by the law enforcing authorities of California so as to include within their provisions, prohibitions, and penalties against orator as an interstate common carrier; * * * that, said Curry, assuming to be authorized by said void act to enforce the same, threatens and gives out that ho will enforce said law and enforce the imposition of said license fee, tax, and penalty against orator to the uttermost, unless he is restrained and enjoined by some court of competent jurisdiction from so doing.” In response to an order to show cause why an injunction should not issue, the Attorney General of the state appeared in behalf of defendant, and interposed a demurrer to the bill upon the grounds (1) that it appears from the bill that complainant is not entitled to the relief prayed; (2) that, the court has no jurisdiction in the premises; (3) that the bill is wholly without equity.</p>

In Bankruptcy. On report of special master recommending denial of discharge. ■The following is the report of referee in bankruptcy John W. Banks upon petition for discharge: To the Honorable James P. Platt, Judge of the United States District Court for the District of Connecticut: I, John W. Banks, referee in bankruptcy for Fairfield county, in said district, respectfully report as follows: (1) Said John A. Murray, of Bridgeport, in said district, was duly adjudged a…

<p>1. Bankruptcy — Receivers—Borrowing- Money— Receiver's Certificates.</p> <p>A court of bankruptcy has power to authorize a receiver to borrow money and issue certificates therefor and conduct the bankrupt’s business for the purpose of preserving the assets.</p> <p>2. Same — Distriuution.</p> <p>A decree of a court of bankruptcy authorized the receiver to borrow $10,000 and issue certificates therefor to continue the bankrupt’s business. The receiver borrowed $5,000, for which certificates were issued and purchased by the surety company which was the surety on the bankrupt's bond guaranteeing the performance of the contracts which the receiver expected to complete. The receiver also incurred other indebtedness of the same character, for which no certificates were issued, to an amount in excess of the authorized limit, all of which was done with the knowledge of the surety company, to whom the receiver paid $1,000 on the certificates issued to it. Held, that the holders of the debts incurred by the receiver for which no certificates were issued to the amount of $0,000 were entitled to participate in the bankrupt's assets in the hands of the receiver on the same footing with the remaining $4,000 for which certificates were issued.</p>

<p>Bankruptcy — Property Passing to Trustee — Pledge op Grain Certificates.</p> <p>A bankrupt milling company in Pennsylvania bad prior to tbe bankruptcy issued grain and flour certificates eaeb calling for a certain quantity of grain or flour stored'in its mill or grain tanks to be delivered to tbe bolder on demand, and bad indorsed sucb certificates as collateral security for loans. Tbe grain and flour were in tbe possession of tbe bankrupt at tbe time of tbe bankruptcy, and under tbe law of Pennsylvania might have been levied upon and sold by attachment or execution creditors. Held that, the bankrupt having undoubted title to tbe property, sucb title was not divested by the pledge of tbe certificates, but passed to its trustees in bankruptcy under Bankr. Act July 1, 1898, § 70a (4), c. 541, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), as to property which might have been levied upon and sold under judicial process against it.</p>

<p>1. Courts — Courts of Concurrent Jurisdiction — Priority of Jurisdiction.</p> <p>it is the settled general rule (hat, as between two courts having concurrent jurisdiction of the subject of an action, the one which first obtains jurisdiction of the controversy has the light to proceed to its final determination without interference from the other, and such rule is not limited to cases in which the court first obtaining jurisdiction has taken actual or constructive possession of the subject-matter of the suit.</p> <p>[ISd. Note. — For case's in point, see Cent. Dig. vol. 13, Courts, § 1229.)</p> <p>2. Same — Federal and State Courts — Stay of Suit.</p> <p>Where a state court in a suit to abate a nuisauce and recover damages for its maintenance has issued an injunction pendente lite, a federal court will on motion of the defendant stay a second suit brought therein by the same complainant against him based on the same facts, and for the identical relief, until the first suit has been disposed of.</p>

<p>Admiralty — Suit for Death on High Seas — Application of State Statute. A statute of a state may be applied to a suit in admiralty to recover-for a death on the high seas arising purely from tort, where the vessel belonged to the state in question; but the burden rests upon the libelant to establish by satisfactory evidence that the vessel was one of such state, where it is denied, which cannot be presumed from the fact that her owner is a corporation of such state.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Admiralty, § 219.]'</p>

<p>Overruling Motions and Reasons for a New Trial.</p>

<p>At Law. On rule for judgment for want of a sufficient affidavit of defense.</p>

<p>1. Taxation — Suit to Determine Validity of Tax Deed — Proof of Title.</p> <p>In a suit to determine adverse claims to real estate between the holder of the patent title and the holder of a tax title, the former must prevail unless the tax proceedings were sufficient to divest his title.</p> <p>2. Same — Foreclosure of Tax Lien — Conditions Precedent.</p> <p>Under the statutes of Washington, until property shall have been listed as delinquent for nonpayment of taxes by a description thereof sufficiently accurate to identify it, so that an intelligent owner, acquainted with his property, on having the delinquent list brought to his attention, will he able to recognize the description as being applicable to his property, it does not become delinquent, nor subject to foreclosure and sale for nonpayment of taxes.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 45, Taxation, § 1279.]</p> <p>3. Same — Washington Statute.</p> <p>The statute of Washington (Ballinger’s Ann. Codes Sc St. Supp. § 1751b), provides that “after the expiration of five years from the date of delinquency, when any property remains on the tax rolls for which no certificate of delinquency has been issued, the county treasurer shall proceed to issue certificates of delinquency on said property to the county, and shall file said certificates when completed with the clerk of the court, and the treasurer shall thereon, with such legal assistance as the county commissioners shall provide, * * * proceed to foreclose in the name of the county the tax liens embraced in such certificate, and the same proceedings shall be had as when held by an individual.” Held, that the filing of such certificate of delinquency is an essential prerequisite to the proceedings by the comity to foreclose the tax lien, and that further essential steps are the filing of au application to the court and the service of such process or notice as will give the owner of the property an opportunity to be heard before a decree of foreclosure is entered.'</p> <p>4. Same — Jurisdiction of Court.</p> <p>A court cannot enter a valid decree foreclosing a tax lion on property, unless it has acquired- jurisdiction over the person of the owner by the service of process of notice in some mode prescribed by law, or by bis appearance, or over the property in rem by its seizure under process.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Taxation, § 1305.]</p> <p>5. Same.</p> <p>A superior court of Washington entered a decree foreclosing tax liens in favor of the county on a large number of tracts of real estate, and a deed was executed thereon by which it was claimed that certain real estate owned by complainant was conveyed. No certificate of delinquency was filed prior to the proceeding by the county treasurer, as required by Bal-linger’s Ann. Codes & St. Supp. § 1751b. No process was issued by the clerk, no notice was posted upon the property, and no papers whatever were filed in the court until the day on which the decree was entered. The. only notice of the proceeding given was by a summons published by the county attorney, in which complainant’s name was not mentioned. Held, that such decree was void for want of jurisdiction.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 45, Taxation, § 1305.]</p> <p>6. Same — Tax Deed — 'Validity—Insufficiency'oe Description.</p> <p>A decree was entered, foreclosing a tax lien on property described as blocks 353 and 373 of Capitol addition to North Yakima, according to the recorded plat of said addition. Such plat showed no blocks so numbered, but showed in the center of the addition a tract sufficient in area to make four blocks, with the intervening streets, of the same size as the blocks in the addition, and which, if subdivided and numbered in accordance with the system of numbering applied to the other blocks, would have contained blocks numbered 353 and 373, respectively. Such tract was, however, marked on the plat “Reserved,” and had never been subdivided. Held, that deeds made by the county, based on such decree and purporting to convey such blocks, were absolutely void, because the description did not apply to any property.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 45, Taxation, §§ 1519, 1520.]</p>

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

<p>TBADK-MAEKS AND TRADE-NAMES — iNERINaEMENT—“CEEESOTA” AS NAME OF Flour.</p> <p>The word “Ceresota,” as the name of a brand of flour, is not descriptive in such sense that it may not be adopted as a valid trade-mark, and such trade-mark is clearly infringed by the use of the name “Cressota” by a different manufacturer.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 71.]</p>

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

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

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

<p>Appeal from the Circuit Court of the United States for the Northern District of West Virginia, at Martinsburg. On Motion to Dismiss Appeal.</p>

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

<p>On second appeal.</p>