Volume 163 — Federal Reporter

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

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>The plaintiff in error, Daniel Garrigan, was adjudged by the Circuit Court guilty of contempt, in the violation of an injunctional order issued by that court, in aiding and abetting the parties enjoined and interfering with the business and employes under the protection of such order, and the proceedings and judgment are brought for review by this writ of error.</p> <p>The judgment recites the proceedings and findings and reads as follows;</p> <p>“It appearing to the court that on April 28, 1905, the Employers’ Teaming Company filed its bill of complaint in equity in said court, in and for said district and division thereof, praying for an injunction, both temporary and permanent, and that on said April 28, 3905, on the application of said the Employers’ Teaming Company, said court duly entered of record, in said chancery proceeding, a temporary stay and injunctional order, and that said the Employers’ Teaming Company thereafter filed a petition in said chancery proceeding for a rule directing Daniel Garrigan to show cause by a short day why he should not he attached for contempt of said court for violating said temporary stay and injunctional order; and it further appearing to the court that affidavits were duly filed with and in support of said petition, and that upon the filing and presentation of said petition and affidavits, said Daniel Garrigan was duly ruled by said court, in said chancery proceeding, to show cause by May 31, 1905, at 10 o’clock a. m. why lie should not be attached for contempt of said court for violating said temporary stay and injunctional order ; and that said Daniel Garrigan was duly and personally served with a certified copy of said rule, and that he thereafter filed an answer thereto, supported by affidavits, and that rebuttal affidavits were filed by said the Employers’ Teaming Company; and the court having hoard and considered said petition, answer, and all said affidavits, and also oral evidence then and there offered in open court by said the Employers’ Teaming Company and also by said Daniel Garrigan; and the court having heard the arguments of counsel for said respective parties, and being fully advised in the premises, and said Daniel Garrigan having been present in open court in person and by counsel at the hearing on said rule, and being also now here present in open court in person and by counsel — the court finds: That said Daniel Garrigan on May 2, 1905, in the city of Chicago, in said district, had full knowledge of the existence of said temporary stay and injunctional order and of the terms, thereof, and with such knowledge did then and there knowingly, willfully, and intentionally violate said stay and injunctional order, and did then and there, with full knowledge of the existence of said temporary stay and injunctional order, and of the terms thereof, knowingly, willfully, and intentionally aid and abet the defendants, or some of them, to said bill of complaint in committing acts and grievances complained of in said bill of complaint and prohibited by said stay and injunctional order. And tbe court further finds that said Daniel Garrigan on the date and at the place last aforesaid, and with full knowledge of the existence of said temporary stay and injunctional order, and of the terms thereof, did knowingly, willfully, and intentionally and contrary to and in violation of the terms of said stay and injunctional order interfere with, hinder, obstruct, and aid and abet the defendants, or some of them, to said bill of complaint in interfering with, hindering, and obstructing the business of said the Employers’ Teaming Company, and also its employes and agents, while they were then and there engaged in the conduct and operation of its business; that said Daniel Garrigan has failed .to show cause why he should not be attached and punished as for contempt of this court for violating said temporary stay and injunctional order; that said contempt has tended to defeat and impair the rights and interests of said the Employers’ Teaming Company and to obstruct justice, and bring the administration of justice into contempt. Wherefore, the premises considered, it is hereby ordered, adjudged, and decreed that said rule to show cause be and the same hereby is made absolute. And it is further hereby ordered and decreed by the court that the said Daniel Garrigan.was and is, and he hereby is adjudged, guilty of and in contempt of this court, and that said Daniel Garrigan stand committed to 'and be confined and imprisoned in the county jail of Du Page county, in Wheaton, in said county, in the state of Illinois, for any during the period of three months, unless he shall be sooner discharged therefrom by due process of law, and that a warrant of commitment do now issue in due form for the arrest forthwith of said Daniel Garrigan, directed to the United States Marshal for the Northern district of Illinois, and that, when arrested by said marshal, said Daniel Garrigan be committed to said jail, and that he be there held for the said period of three months, unless sooner discharged therefrom by due process of law, and that said term of imprisonment shall begin when said Daniel Garrigan is lodged in said jail, as herein provided.”</p> <p>The injunctional order referred to ran against various trade organizations and individuals, named as defendants in the bill filed by the Emloyers’ Teaming Company — the plaintiff in error not being named therein, nor party of record in any form — and “each and every of the agents and servants of the said defendants and of each of them, and any and all other persons and associations now or hereafter aiding or abetting or confederating or acting in concert with said defendants or any or either of them, in committing the acts and grievances or any of them complained of in said bill of complaint,” and restrained the commission of various acts, including the following: “Hindering, obstructing, or stopping any of the business of the complainant, the Employers’ Teaming Company, in the maintenance, conduct, management, or operation of any of its business, barns, stables, horses, wagons, or properties of any kind in the city of Chicago; * * * also, from in any manner interfering with, hindering, obstructing or stopping the passage along and through the streets of said city of any of complainant’s wagons, teams, or teamsters in and about the business of complainant; * * * and also from accompanying, following, talking with, or calling upon any person or persons employed by or doing business with said complainant against the express will of said person or persons, for .the purpose of or in-such manner as to intimidate, threaten, or coerce any such person or persons; * * * and also, either singly or in combination with others, from picketing, besetting, or patrolling any place or places where said complainant’s employés, teams, wagons, stables, barns, or other property may be or happen to be in said city; * * * and also, from ordering, assisting, aiding, or abetting in any manner whatsoever any person or persons to commit any of the acts aforesaid.” It further provided for service of the order upon and in respect of the defendants therein, and that it “shall be binding upon all of said defendants and all other persons whomsoever from and after the time they severally have knowledge of the allowance of this order.”</p>

<p>1. Vendor and Purchaser — Construction of Contract — Construing Instruments Together.</p> <p>Whore a deed to property and notes for a part of the purchase money are executed at the same time, they should be regarded as one instrument and read together.</p> <p>2. Same — Interest Payments — Enforcement of Lien Reserved in Deed.</p> <p>A deed to property, executed in September, 1905, after providing for a deferred payment of purchase money on September 1, 1906, with interest, contained the following further provisions: “And the remaining sum * * * is to. be paid in nine equal annual payments "* * * from September 1, 1906, with interest on said annual payments from September 1, 1905, at the rate of C per cent., payable annually, as evidenced by their negotiable promissory notes for said several sums bearing even date herewith, * * * to secure which deferred payments a vendor’s lien is hereby expressly retained. * * * It is expressly understood that, in case default be made in the payment of any of said deferred payments of purchase money Or the accrued annual interest when due, then and in that event all remaining unpaid payments shall be immediately due and payable.” The notes were severally made payable September 1, 1907, and each year thereafter, “with interest at the rate of 6 per centum' per annum from September 1, 1903, until paid.” Held that, construing the deed and notes together as one contract, the interest on the entire amount of the deferred payments was payable'annually, and that on the failure of the purchaser to pay the first year’s interest on September 1, 1906, the vendor was entitled to declare the entire amount due and to foreclose the lien therefor; such suit being based upon the deed, and not upon the notes.</p>

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

<p>1. Appeal and Error — Review.</p> <p>Where the master, on an accounting in a suit for infringement of a patent, has made a finding of damages in favor of the complainant, and the action of the Circuit Court in overruling an exception to such finding is assigned as error, on appeal the duty is imposed on the Appellate Court to examine the evidence to ascertain whether there was any legal evidence to sustain the finding.</p> <p>[Ed Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4011-4018.]</p> <p>2. Same — Damages Recoverable.</p> <p>Where complainant, in a suit for infringement, has based its claim to recover damages on its loss of profits on sales prevented by defendants' sale of infringing articles, but has failed to prove by competent evidence that it would have made such' sales, it cannot change its ground in the appellate court and recover on the basis of a reasonable royalty.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 3070-1078.]</p>

<p>1. Trial — Instructions—Curinu Error.</p> <p>In an action for injuries to a passenger, plaintiff claimed damages for alleged deafness, and the court instructed that the burden of proof was on plaintiff to show by a preponderance of the evidence that such condition was the result of the accident, and not of some other cause, and, if the jury were in doubt on that question, plaintiff could not recover any damages on account of such alleged deafness; that the jury could not speculate or guess as to what caused the deafness, but plaintiff must prove by a preponderance of the evidence that it was the direct result of the accident. At- the close of the charge, plaintiff’s attorney procured an instruction that plaintiff was not required to prove beyond a reasonable doubt that his condition was the direct result of the injury, but it was sufficient if he made such proof by a preponderance of the evidence. Held that, while the charge on such subject was erroneous, the error was cured by the instruction given at plaintiff's request.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 703-718.]</p> <p>2. Same — Objections—Waiver of Error.</p> <p>Where, at the close of *the charge, plaintiff’s counsel only requested a modification of the instructions on the burden of proof, and on this being allowed defendant’s counsel asked if he was through, whereupon plaintiff’s counsel said “I have nothing more to say,” he thereby waived any objection to ■ an instruction on the degree of care required of defendant.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, § 683.]</p> <p>3. Removal of Causes — Citizenship—Evidence—Federal Jurisdiction. ,</p> <p>Plaintiff sued defendant, a foreign corporation, in the Illinois state jourts, whereupon the cause was removed by defendant to the Circuit Court of the United States on a verified petition alleging that defendant was a citizen of New York and that plaintiff was a citizen of Illinois. No issue was taken on such petition, but at the trial on the merits it was proved incidentally that plaintiff was a minor 15 years of age, that he was born and the family to which he belonged had lived in Sicily until a month prior to the accident, and that the family other than the father, who was then dead, sailed for the United States a month preceding the accident, and were on their way from New York to Chicago when the accident occurred. Held that, in the absence of evidence as to where the father died or that the father was not a citizen of Illinois, the evidence was insufficient to establish that plaintiff was not a citizen of Illinois at the time he was injured so as to defeat federal jurisdiction.</p> <p>4. Same — Proceedings After Removal —Objections to Jurisdiction — Waiver.</p> <p>Where defendant, a foreign corporation, when sued by an alleged alien in the Illinois state courts, removed the canse to the federal Circuit Court for the Northern District of Illinois, it thereby waived any objection to the venue and its right to be sued in the federal district of its residence.</p>

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

<p>1. INSUKANOE — COBPOBATIONS — VOLUNTABY DISSOLUTION — STATUTE—CONSTITUTIONALITY.</p> <p>Ilurd’s Rev. St. 111. 1005, c. 73, § 2, authorizing the voluntary dissolution of an insurance corporation on the application of a majority in number or interest of the members or stockholders, on due notice, etc., is constitutional.</p> <p>2. Same — Necessity op Contboveesy — Jubisdiction.</p> <p>Under Hurd’s Rev. St. 111. 1005, c. 73, § 2, authorizing a majority in number or interest of the members or stockholders of an insurance company to apply for voluntary dissolutions thereof, it is not necessary to confer jurisdiction of the subject-matter of such application that a controversy exist for adjudication.</p>

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

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

' For decision below, see 155 Fed. 502, affirming a decision by the Board of United States General Appraisers, G. A. 6,277 ('if. D. 27,059), which had affirmed the assessment of duty by the collector of customs at the port of Burlington.

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>' These cases relate to letters patent No. 442,531, issued to Edward M. Murray, December 9th, 1890, for improvement in store service ladder; and involve the question what rule of profits and damages shall govern the accounting between the parties.</p> <p>In the original case between these parties, the court sustained the validity of the Murray patent; found that the Orr & Lockett Hardware Company was infringing the same; and directed the entry of a decree for an injunction and an accounting. Murray v. Orr & Lockett Hardware Company, 138 Fed. 564, 71 C. C. A. 68.</p> <p>The specific ladders found to be infringing devices in the original case were those known as the Columbia and Nox-em-All. In a subsequent appeal, decided by this court at the January session, 1907 (153 Fed. 369, 82 C. C. A. 445), the ladders known as the Bon-Ton and Victor ladders, maufaetured. and sold by the Orr & Lockett Hardware Company, were also held to be infringing devices.</p> <p>On the hearing of the cases now under consideration (No. 1,382 relating to the Bon-Ton and Victor ladders, and No. 1,383 relating to the Columbia and Nox-em-All ladders), the appellant furnished to the court a statement of the net profits made by him in the manufacture and sale of all the ladders, upon the basis of which the court found in favor of appellee, and against appellant, in the sum of $1,346.19 on account of the sale of the Victor and Bon-Ton ladders, and $24].07 on account of the sale of the Columbia and Nox-em-All ladders. Aside from the figures thus furnished by appellant, no testimony was offered by either side relating to profits.</p> <p>The further' facts are stated in the opinion.</p>

<p>Patents — Infringement—Bath and Process for Coating Metals.</p> <p>The Alexander reissue patent, No. 11,624 (original No. 563,723), for an electrolytic bath, for coating metals and a process of galvanically coating metals subjected to rapid oxidation, can only be sustained as involving invention by giving the claims a literal construction, and, as so construed, it is not infringed by the use of a bath which contains no basic salts of the plating metal, such as are specified in the patent as constituting the essence of the invention, but which, on the contrary, is maintained in an acid state, and is composed in part of different ingredients, is prepared differently and under different conditions, and its ingredients, where the same, are in different proportions.</p>

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

On Application for Review of Decisions by the Board of United States General Appraisers. The decisions below affirmed the assessment of duty by the collector of customs at the port of New York, on the authority of G. A. 6,473 (T. D. 27,690).

<p>1. Criminal Law — Conspiracy in Restraint of Interstate Trade — Indictment — Service of Process on Nonresident Corporation.</p> <p>Upon an indictment for conspiracy in restraint of trade under Sherman Anti-Trust Act July 2, 1890, c. 647, § 3, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3201), the court has power, by virtue of Rev. St. § 716 (U. S. Comp, St. 1901, p. 580), which authorizes such courts to issue all writs “necessary for the exercise' of their respective jurisdictions,” to issue process to another state to bring before it corporation defendants who are citizens of such state and cannot be found or served in the state or district of the indictment.</p> <p>2. Monopolies — Indictment.</p> <p>An indictment for conspiracy in restraint of interstate trade and commerce, in violation of- Sherman Anti-Trust Act July 2, 1890, c. 647, § 3, 26 Stat. 209 (U. S. Comp. St 1901, p. 3201), considered, and held sufficient</p> <p>3. Grand Jury — Appearance op Government Counsel — Special Assistant to United States Attorney.</p> <p>Under Rev. St. §§ 363, 366 (U. S. Comp. St. 1901, pp. 208, 209), the former of which authorizes the Attorney General to employ counsel “to assist the district attorneys in the discharge of their duties,” while the latter provides for the issuance of a commission to such attorneys as are specially retained by the department of justice “to assist in the trial of any case in which the government is interested,” which must be construed together and as referring to the same class of special assistants, the Attorney General was not authorized to appoint special assistants to a district attorney having the authority or right to appear before and participate in the proceedings of a grand jury, and the presence of two such attorneys specially appointed for a particular case and their examination of witnesses on whose testimony an indictment was returned renders such indictment invalid.</p>

<p>Contracts — Requisites—Conditional Acceptance of Offer.</p> <p>Respondents, desiring to bid for the purchase of a large quantity of •scrap iron offered for sale by the United States on the Isthmus of Tanama to be removed within 30 days, applied to libelant for a proposition to furnish vessels to remove the iron, if purchased, to New York, and libel-ant replied that his firm had an offer from a steamship company, the terms of which he stated. Respondents acknowledged receipt of the proposal, stated that they had made a bid based thereon, and that “if successful we will be glad to place this business with you.” The bid was not accepted because it did not meet the requirement to remove the iron within 30 days, and respondents thereupon modified it in that respect and on its acceptance contracted with another steamship company to do the freighting. Held, that they were under no contract obligation to libelant’s firm which required them to consult him before changing their bid or to give him an opportunity to'change his proposal to conform, to the new bid before contracting with another, and were not liable for damages for breach of contract, either to libelant’s firm or to the undisclosed steamship company on whose behalf it proposed to contract for the carriage.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 11, Contracts, § 96.]</p>

<p>On Motion to Remand to State Court, and Motion for Leave to Amend Petition for Removal.</p>

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

In Bankruptcy. On motion to commit Joseph Lasky, a bankrupt, to jail for contempt of court in failing to pay into court the sum of $1,800, previously decided by the court to have been withheld by him from his trustee.

On Motion for Rehearing. The plaintiff was a. member of the defendant’s floating gang engaged in track repairing, and, with about 20 other laborers and a foreman, on the evening of the accident in question, was proceeding homeward on the défendant’s main track on a work train used in transporting laborers to and from their work, and consisting of an engine, a caboose, and two box cars.

<p>On Motion of District Attorney to Strike Out All Evidence with Reference to Alleged Compromises.</p>

<p>Carriers — Interstate Commerce — Discrimination in Rates.</p> <p>A contract by a railroad company to furnish to the publisher of a magazine, as called for, transportation amounting to a certain sum at schedule rates in payment for a stated amount of advertising, which has no fixed value, is in violation of the provision of section 6 of the interstate commerce act, Act March 2, 1889, c. 382, 25 Stat. 855 (U. S. Comp. St. 1901, p. 3156), as amended by Hepburn Act June 29, 1906, e. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 895), prohibiting any carrier from accepting “greater or less or different” compensation than that named in the published schedules.</p>

<p>1. Bankruptcy — Creditors—Assigned Claimants — Splitting Claims.</p> <p>A creditor of a bankrupt may not split up bis claim and assign some of the parts to other persons for the purpose of qualifying them as joint petitioners in an involuntary bankruptcy proceeding.</p> <p>2. Same — Trustees op Assignors.</p> <p>Where separate creditors of a bankrupt assigned their claims to assignees who had no financial interest in the claims, but held the same merely as trustees for their respective assignors, they were nevertheless entitled to the rights of creditors.</p> <p>3. Trusts — Contract—Construction.</p> <p>AV. executed a receipt reciting that he had received from H. 23,000 shares of the capital stock of a corporation to be used, together with a like number of shares to be contributed by AV. and another as AV. in his sound discretion should deem best, in procuring a paid-in surplus fund for the corporation of not less than $225,000, and the sum of $25,000 to be paid by AV. to H. without any responsibility or obligation on AV.’s part to account for the manner of disposing or holding the same. Held, that such agreement was unambiguous and could not be regarded as a bill of sale of any of the stock to AV., but a trust agreement on his part to hold and use such stock for the purpose specified.</p> <p>4. Bankruptcy — Claims—Evidence.</p> <p>Evidence held insufficient to authorize the rejection of a master’s finding establishing a claim for money alleged to have been loaned to a bankrupt.</p> <p>5. Same — Liquidated Claims.</p> <p>A claim against a bankrupt for money loaned must be regarded as liquidated.</p>

<p>1. Death — Action fob Wrongful Death — Pennsylvania Statute — Action by Nonresident Alien.</p> <p>Act Pa. April 15, 1851, § 19 (P. L. 674), as amended by Act April 20, 1855,'§ 1 (P. L. 309), giving a right of action for wrongful death to certain relatives of the deceased, as construed by the Supreme Court of the state, which construction is binding on the federal courts, does not give such right to nonresident aliens.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, § 37.</p> <p>What law governs actions, see note to Burrell v. Fleming, 47 C. C. A. 606.]</p> <p>2. Treaties — Construction.</p> <p>The treaty between Italy and the United States of February 26, 1871 (17 Stat. 845), which guarantees to the citizens of each country in the states and territories of the other the most constant protection and security for their persons and property as to which they are to enjoy the same rights and privileges as natives and the right to resort to the courts to maintain and defend their rights without other conditions or restrictions than are imposed on natives, does not give to a subject of the King of Italy, who has never been in the United States and has no property here, the right to maintain an action under a state statute which gives a right of action for wrongful death only to citizens or inhabitants of the state.</p>

<p>In Bankruptcy.</p>

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

<p>Bankruptcy — Actions Against Bankrupt — Stay.</p> <p>Under Bnnkr. Act July 1, 1898, e. 541, § 17a (2), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3428), as amended by Act Feb. 5, 1903, c. 487, § 5. 32 Stat. 798 (U. S. Comp. St. Supp. 15)07, p. 1020), which excepts liabilities for obtaining property by false iiretenses from debts released by a discharge, a bankrupt is not entitled to the stay of an action against Mm in a state court, where it appears that it is based ui>on such a liability asserted in good faith.</p>

<p>1. Attachment — Bond—Additional Sectibity.</p> <p>Where, in an action against a foreign corporation for damages amounting to $9,240, with interest from November 22, 1907, certain certificates representing whisky of the estimated value of $175,000, together with $923.84 in cash and bonds of the par value of $140,000, subject only to a debt of $100,000, were attached, and a bond given in the sum of $250, plaintiff should be required to give additional security not only because of the serious consequences of tying up such an amount of property, but in anticipation of the amount of litigation and the expenses consequent on the trial of the issue.</p> <p>I'Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Attachment, § 382.]</p> <p>2. Pleading — Complaint—Motion to Make Specific.</p> <p>Where a complaint in attachment was uncertain as to whether it was based on certain notes or was to recover damages for fraud with reference to collateral security, and was not specific as to the particular warehouse receipts intended to be referred to in certain paragraphs, defendant was entitled to have the complaint made more definite and certain in those respects.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Pleading, § 1174.]</p>

<p>Bankruptcy — Debts Entitled to Priority — “Wages” — Commissions op Traveling Salesman.</p> <p>Commissions paid a traveling salesman for his services are “wages,” within the meaning of Bankr. Act July 1, 1898, e. 541, § 64b (4), 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), and a claim for such commissions earned within three months prior to the bankruptcy of the employer is entitled to priority thereunder.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, vol. 8, pp. 7369-7373, 7831.]</p>

<p>1. Bankeubtcy — Dischtauge—Sufficiency oe Objections.</p> <p>An objection to the discharge of a bankrupt, which charges in the language of {He statute that he failed to keep books of account from which his financial condition might be ascertained, with intent to conceal such condition, is subject to objection as being indefinite, but may bo accepted as sufficient where the bankrupt has testified that he kept no books of account.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 714.]</p> <p>2. Same.</p> <p>AH objection to the discharge of a bankrupt on the ground of his having obtained property by false pretenses is insufficient, under Bankr. Act, July 1, 1898, c. 541, § 14b, 80 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (D. S. Comp. St. Supp. 1907, p. 102G), unless it charges that the false statements were made in writing.</p>

<p>• Bankruptcy — 1Trustee—Effect op Change op Residence.</p> <p>A trustee in bankruptcy, who at the time of his appointment resided in the district of appointment, and who then had and still has an office therein, is not subject to removal because he has changed his legal residence to another district, provided such change does not interfere with the performance of his duties, nor render it difficult for persons interested to communicate'with or serve’notices upon h(m.</p>

<p>In Bankruptcy. Involuntary proceedings.</p>

<p>1. Garetees — State Regulation — Reasonableness ov Rates.</p> <p>In determining the reasonableness of freight and passenger rates established by a state on intrastate traffic, as applied to railroads doing both interstate and intrastate business, the difference in the cost of handling each kind of business as related to the earnings from each should be taken into account, and a company is entitled to earn a fair percentage of profit from its intrastate business on the capital employed therein after deducting the portion of the total operating expenses properly chargeable thereto, without regard to its interstate earnings.</p> <p>2. Same — Restraining Knfoiicement oe Rates — Tempoba by lira clyotiow.</p> <p>A court of equity may by a temporary injunction change the status quo where necessary to do so to avoid irreparable injury, and, where railroad companies have put into effect rates established by a state, and continued them in torce tor a sufficient length of time to determine their reasonableness, a court may properly grant a temporary injunction to restrain their further enforcement, if it is shown that they are unreasonable and confiscatory.</p> <p>3. Same.</p> <p>A preliminary injunction granted, to restrain the enforcement of rates established by the state of Arkansas on intrastate freight and passenger traffic handled by railroads on a showing that on actual trial for a reasonable length of time such rates have proven nonremunerativo and confiscatory, depriving the complainant railroad companies of their property without just compensation, in violation of their constitutional rights.</p>

<p>1. Constitutional Law — Regulations of Commissioner Under Oleomargarine Act — VALiDiTy—“Adulterated Butter.”</p> <p>Oleomargarine Act May 9, 1902, c. 784, § 4, 32 Stat. 194 (U. S. Comp. St. Supp. 1907, p. 637). inter alia, imposes an internal revenue tax of 10 cents per pound on adulterated butter. It provides that “any butter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk or cream,” shall he deemed “adulterated butter,” and authorizes the Commissioner of Internal Revenue to decide what substances are taxable thereunder. It also authorizes him, with the approval of the Secretary of the Treasury, to make all needful regulations for carrying the act into effect. Held, that such a regulation, providing that butter containing 16 per cent or more of water, milk, or cream should be classified as “adulterated butter” under the act, was within the authority so granted, and was valid, being neither an exercise of legislative or judicial power, but merely a determination as a question of fact of what constitutes an “abnormal” quantity of water, etc., upon which the application of the statute is made to depend.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 1, p. 211.]</p> <p>2. Appeal and Error — Action to Recover Taxes Paid — Submission of Issues — Harmless Error.</p> <p>Whether or not such regulation has the force of law as a conclusive determination of the fact, it furnishes a working rule for the guidance of officers and the information of manufacturers, and on the trial of an action by a manufacturer to recover taxes exacted on butter claimed to contain more than 10 per cent, of water the submission to the jury of tile question whether such a percentage of water was “abnormal” was not an error of which the plaintiff could complain.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4212-4218.]</p> <p>8. Internal Revenue — Construction of Statute — “Absorption” Defined.</p> <p>In the provision of Oleomargarine Act May 9, 1902, c. 784, § 4, 32 Stat. 194 (U. S. Comp. St. Supp. 1907, p. 637), defining adulterated butter as including “any blitter in the manufacture or manipulation of which any process or material is used with intent or effect of causing the absorption of abnormal quantities of water, milk or cream,” the word “absorption” is not used in the sense of chemical absorption, and any butter is within the definition which contains an abnormal quantity of water, whether by chemical absorption or by incorporation.</p> <p>4. Same — Adulterated Butter Subject to Tax — Intent of Manufacturer.</p> <p>Butter containing an abnormal quantity of water is subject to the tax imposed by Act May 9, 1902, e. 784, § 4, 32 Stat. 194 (U. S. Comp. St. Supp. 1907, p. 637); the intent of the manufacturer being immaterial.</p>

<p>1, Bankruptcy — Appeal from Order Allowing Claim — Appeal by Creditor.</p> <p>Where a trustee in bankruptcy refuses to appeal from an order of the District Court allowing claims, such court may in its discretion allow an appeal to bo taken by a creditor, although the better practice is to order the trustee to appeal or to allow the dissatisfied creditor to appeal in his name; he being in either case indemnified against liability for costs.</p> <p>2, Same — Claims—Effect of Relationship of Claimant to Bankrupt.</p> <p>The fact that one presenting a claim against a bankrupt is closely related to him justifies a more rigid scrutiny of the claim than would otherwise be required, but does not alone warrant its rejection.</p> <p>8. Same — Findings of Referee — Review.</p> <p>The position and duties of a referee in bankruptcy in hearings before him aro analogous to those of a special master in chancery directed to take evidence and report his conclusions, and the rule applicable to a review of a referee’s findings of fact must be substantially that applicable to a master’s report. In either case much must depend upon the character of the finding. If it be a deduction from established facts, it does not carry any great weight, but, if based in conflicting evidence and involves the question of the credibility of witnesses examined before the referee or master, the finding should not be disturbed, except on most cogent evidence of mistake or miscarriage of justice, and, when it has been affirmed by the court, it should not be overturned by an appellate court on anything less than a demonstration of plain mistake.</p> <p>LEd. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.]</p> <p>4. Same — Provable Claims — Money Borrowed to Make Preferential Payment.</p> <p>Where a bankrupt within four months prior to his bankruptcy, and while insolvent, borrowed money on a mortgage, and paid the same on an indebtedness to his father with intent to prefer the latter, the fact of such preference does not invalidate the debt or mortgage of the lender who had no knowledge of the purpose for which the loan was made, and where the father has been required to restore the preference to the trustee.</p> <p>5. Same.</p> <p>The fact that one who lent money to an insolvent within four months-prior to his bankruptcy himself borrowed the money from a bank, pledging the note and security given by the bankrupt as collateral, will not affect his right to prove the debt in his own name; and whether it is in-fact owned by him or the bank is immaterial.</p>

<p>1. Sales — Sale or Bailment — Reservation of Title or Lien.</p> <p>Complainant entered into a contract by which it agreed to furnish fertilizer to defendant to be paid for by him by a certain date at a stated price. The contract provided that the fertilizer should remain the property of complainant until sold by defendant, and that complainant should then become the owner of the proceeds, whether cash or notes, which should be held for its use and benefit until it should be fully paid. Held, that such contract was not onfe of bailment, but of sale with an attempt to retain a lien upon the property sold, and that complainant could maintain an action at law thereon if valid to recover the price when due.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 43, Sales, §§ 7-11.]</p> <p>2. Same — Legality Under Law of Tennessee.</p> <p>A contract for the sale of merchandise on credit for the purpose of resale in the ordinary course of business, providing that the title shall not pass until payment of the purchase price, is illegal and void in Tennessee as contrary to the public policy of the state, and a suit to enforce the title or lien so attempted to be retained, being based upon such void contract, cannot be maintained in either the state or federal courts in that state.</p> <p>[Ed. Note. — For cases in.point, see Cent. Dig. vol. 43, Sales, §§ 1336-1352.]</p> <p>3. Agriculture — Fertilizers—Sale in Violation of Statute.</p> <p>Under Laws Tenn. 1897, p. 297, c. 123, to regulate the sale of commercial fertilizers, which requires all such fertilizers before being sold or offered for sale, or shipped into the state for sale, to be submitted to-the commissioner of agriculture for analysis, and to have on each package a stamp showing its chemical analysis, the place of manufacture, the name of the manufacturer, and a certificate of. approval of the commissioner, a contract under which an outside manufacturer shipped such fertilizer to a dealer within the state for sale without complying in any way with such law is illegal and void, and no action can be maintained thereón.</p>

This action was brought in the Circuit Court for the Western District of Washington in the name of United States of America, for the use and benefit of Crane Company, a corporation, plaintiff, against the Puget Sound Engine Works, incorporated, and the Title Guaranty & Trust Company of Scranton, Pa., a corporation, defendants.

<p>1. Bankruptcy — Orders—Refusal to Obey — Contempt.</p> <p>If a bankrupt willfully disregards an order of the court requiring payment of money to the trustee, he may be proceeded against for contempt under the general powers vested in superior courts of judicature, or under Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545, 546 (U. S. Comp. St. 1901, p. 3420).</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 166.]</p> <p>2. Same — Review—Mode.</p> <p>Where a proceeding in .the District Court against a bankrupt for contempt in refusing to comply with an order of the court requiring her to pay money to the trustee is taken by virtue of the authority conferred on District Courts in bankruptcy by Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545, 546 (U. S. Comp. St. 1901, p. 3420), the proper mode of obtaining a review of the proceeding is by a petition for revision under such act.</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>S. Same — Scope of Review — Opinions of Trial Court.</p> <p>Where such a proceeding for contempt was based on Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545, 546 (U. S. Comp. St. 1901, p. 3420), on a petition for revision the Court of Appeals may revise any question of law as to which it may justly infer from the record, including the opinions of the District Court, that such court reached a conclusion, whether formally expressed or presented or not.</p> <p>4. Same — Record—Character of Proceedings.</p> <p>In proceedings again'st a bankrupt for contempt in refusing to obey an order for the payment of money to the trustee, the record should show that an issue had been made on the question of contempt, and that the bankrupt adjudged guilty thereof had had an opportunity to be heard thereon. .</p> <p>5. Bankruptcy — Contempt — Nature of Proceedings — Pleading—Evidence.</p> <p>Contempt proceedings against a bankrupt are not required to be formal, but may be instituted by a petition sufficient to notify .the bankrupt of the charge made against him, which may be established by affidavits.</p> <p>6. Same — Petition.</p> <p>A petition in contempt against a bankrupt for refusing to comply with an order directing her to pay money to her trustee was defective, where it .was only such as would be required for ordinary supplementary proceedings for the recovery of a debt, and did not allege that her failure was willful or was no.t caused by mere inability.</p> <p>7. Same — Orders—Contempt—Evidence.</p> <p>In a contempt proceeding against a bankrupt for failure to comply with an order directing her to pay money to her trustee, evidence held insufficient to show that she had such control of the money at the time the order was entered as enabled her to comply therewith so as to render her failure to do so willful.</p> <p>8. Same — Remedies of Trustee.</p> <p>That a bankrupt’s trustee was not able .to compel her to pay over money in accordance with the order of the court by contempt proceedings for failure to show that'the bankrupt had such control of the fund at the .time the order was made as to have enabled her to- comply therewith did not prevent the trustee from perusing any other remedies given for the collection of a judgment from an insolvent debtor for the recovery of such fund.</p>

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

The Portland & Seattle Railway Company, defendant in error, brought suit in one of the courts of the state of Washington against the Murhard Estate Company, plaintiff 'in error, to condemn a right of way for railroad purposes across land owned by the Murhard Estate Company in Clark county, Wash. It is provided by the statutes of Washington (sections 5637-5640, Ballinger’s Ann.

<p>1. Master akd Servant — Contract of Employment — Duration of Employ- _ mjbnt — 1“Hiring at Will.”</p> <p>A contract of employment, which states no term, but merely provides that the employe shall be paid a stated sum per week, constitutes a hiring at will, which may bo’ terminated at any time by either party without notice.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 84, Master and Servant, § 19.]</p> <p>2. Wills — Contract to Make Request — Action for Breach.</p> <p>An action at law to recover damages for alleged breach of a contract to make a bequest of a certain sum to plaintiff by will cannot be maintained during the lifetime of the proposed testator.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 49, Wills, § 179.]</p>

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

<p>1. Judgment — Vacation After Teem — Void or Erroneous Judgment.</p> <p>The fact that a Circuit Court of Appeals, reviewed a judgment of a court of bankruptcy on appeal, when under the law it was reviewable only on petition to revise, under Bankr. Act July 1, 1898, c. 541, § 24b, 30 Stat. 553 (U. S. Comp. St. 1903, p. 3432), does not render its judgment a nullity; but it is, at most, erroneous only, and the court has no power to expunge it on motion at a subsequent term.</p> <p>2. Same — Presumption of Validity.</p> <p>When the power of a court to expunge pne of its judgments is invoked on the ground of its nullity, every presumption in favor of the judgment which does not contradict the record must be indulged.</p> <p>.3. Bankruptcy — Judgment of Bankruptcy Court — Mode of Review.</p> <p>The judgment of a court of bankruptcy determining the claim of a chattel mortgagee to assets in the hands of a trustee in bankruptcy is one on a controversy arising in bankruptcy proceedings and reviewable by the Circuit Court of Appeals on appeal, under Bankr. Act July 1, 1898, c. 541, § 24a, 30 Stat. 553 (U. S. Comp. St. 3901, p. 3431).</p> <p>[Ed. Note. — Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C.' A. 9.]</p>

<p>1. Motions — Creditors’ Suit — Order Fixing Amount of Claim — Power to-Set Aside.</p> <p>In a creditors’ suit an order fixing the amount of an intervener’s claim is interlocutory only and may be set aside for good cause shown at any time before the close of the term at which final decree in the cause is entered.</p> <p>2. Building and Loan Associations — Powers—Subscribing for Stock of Another Association.</p> <p>A building association, organized under a statute permitting such associations to be created “for the purpose of building and improving homesteads and lending money to the members only,” has no power to become a shareholder in another similar association organized under the same statute, nor can the latter lawfully lend it money as such shareholder.</p> <p>3. Same — Power to Borrow Monet.</p> <p>A building association, organized under a statute providing that “not more than one-half of the funds received by the association in any one month shall be applied to the payment of withdrawing shareholders unless otherwise ordered by the directors; and when the demands of withdrawing shareholders exceed the funds applicable to their payment they shall be paid in the order in which their notice of withdrawal has been given” — has no power, express or implied, to borrow money to meet the claims of withdrawing shareholders, and a contract for a loan to be so used, with the knowledge of the lender, is ultra vires and cannot be enforced.</p> <p>i. Corporations — Liability foe Monet Borrowed — Ultra Yires Contract.</p> <p>To entitle a lender of money to a corporation on an illegal contract to recover the same as money received and which in equity it ought not to retain, the burden rests upon the lender to prove that the corporation benefited by sucb money, either by acquiring property which it retains or by expending it in the payment of legal obligations.</p> <p>8. Buit.ding and Loan Associations.</p> <p>Intervener lent the defendant, a building association, which was insolvent, money to be used, and which was used, in paying off withdrawing shareholders, taking as security notes and mortgages. The association liad no power to borrow money for such purposes, nor to pay withdrawing shareholders when insolvent. Held, that intervener could not recover the money so lent, either upon the contract or in equity.</p>

<p>Collision — Steamer and Tow of Meeting Tug — Negligent Navigation of Tug and Tow.</p> <p>A collision at a bend in the Pasquotank river between a barge in tow of a tug passing up around tbe bend, wbicb was on tbeir starboard side, and a descending steamer, held due solely to tbe fault of tbe tug and barge in failing to so navigate as to keep tbe barge on its own side of tbe river; it being conceded that tbe passing itself at that point was usual and proper, tbe river being from 125 to 150 feet wide, and tbe preponderance of tbe evidence showing that tbe steamer was as close to tbe right bank as she could get.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 80.]</p>

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

<p>1. Tkespass — Right of Action — Possession of Plaintiff.</p> <p>The wrongful possession of property by a trespasser does not oust the possession of the rightful owner so as to devest the latter of bis right to maintain an action based on the subsequent unlawful entry of another than the original wrongdoer.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trespass, § 62.]</p> <p>2. Admiralty — Attachment—Process—Validity—Authority to Issue.</p> <p>A monition and order for attachment issued in a suit in rem in admiralty, to which the name of the clerk and the seal of the court were-affixed by a person temporarily in charge of the office, but who was neither clerk nor deputy, was void, and possession of the vessel taken by the-marshal thereunder was that of a mere trespasser.</p> <p>3. Trespass — Action—Defenses.</p> <p>While a marshal was in possession of a vessel under a void process, defendant, as collector of the port, placed and kept an inspector on board for the purpose of detaining the vessel under orders from the Secretary of tile Treasury. Held, that the unlawful possession of the marshal constituted no defense to an action by the owner of the vessel against defendant to recover damages for her alleged unlawful detention.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 46, Trespass, § 62.]</p>

<p>Waters and Water Courses — Action to Determine Water Rights — Laches —Acquiescence in Use of Waters of Lake.</p> <p>In 1784, the Governor of Virginia, pursuant to an order of council made in 1763, executed a grant of lands in the Dismal Swamp to a trustee for the Dismal Swamp Company, then a voluntary association, but afterward incorporated, in 1787, the Legislature chartered the Dismal Swamp Canal Company and authorized it to procure a supply of water for its canal by means of a cross-canal from Lake Drummond in the Dismal Swamp; the charter providing that “the said lake, so far as the waters thereof shall be necessary for the purposes aforesaid, shall be and is hereby vested in the proprietors of the said canal.” In 1812, the cross-canal was constructed; an inquisition having been appointed on application of the Dismal Swamp Company, upon whose lands the lake was situated, to determine the value of the lands taken by such cross-canal, which has ever since been maintained. Meld, that the Dismal Swamp Company acquiesced in the appropriation of the waters of the lake by the canal company under the grant made in its charter, and, whatever its own rights therein may have originally been, it could not, nor could its grantees, after the lapse of 95 years, question the right of the canal company to take so much of said waters as might be necessary or useful for the purposes of its canal, nor maintain a suit in equity to enjoin such use.</p>

<p>Receivers — Issuance oe Receivers’ Certificates — Receivers for Lessor and Lessee.</p> <p>Where common receivers have been appointed for two insolvent street railroad companies, one of which is the owner of property which is leased to the other by a lease which requires it to pay the cost of maintenance and operation, the court may properly authorize the receivers in their capacity as receivers of both companies to issue receivers’ certificates and make the same a preferred lien on the property of both, where necessary to keep the same in operation for the benefit of the creditors of both; the rights and priorities of all persons interested to be subsequently adjusted without affecting the prior lien of their certificates.</p>

<p>Customs Duties — Classification—Synthetic Camphor — “Camphor, Crude.”</p> <p>The classification of synthetic camphor should be determined by the same considerations as of natural camphor, and where, measured by the principal tests, it still retains impurities that bring it far below the standard of refined camphor, and closely resembles the crude natural product, it is subject to classification as “camphor, crude,” under Tariff Act July 24, 1897, c. 11, § 2, Free Dist, par. 515, 30 Stat. 197 (U. S. Comp. St. 1901, p. 1682), rather than as “camphor, refined,” under section 1, Schedule A, par. 12, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1627).</p>

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

<p>Patents — Suit fob “Interference” — Cereal Cup.</p> <p>There is no “interference,” within the meaning of Rev. St. § 4918 (U. S. Comp. St. 1901, p. 3394), between the Perky design patent, No. 25,318, for a design'for a cereal cup, which is cylindrical in form, and the Williams patent, No. 820,899, for a shredded wheat biscuit made in the form of a cup, but which is nearly hemispherical in shape, having a rounded bottom.</p> <p>(Ed. Note. — For other definitions, see Words and Phrases, vol. 4, p. 3711.]</p>

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

<p>1. Patents — Invention—•Merits Not Claimed' in Patent.</p> <p>Where a patented structure in fact contains a new mode of operation and produces new results, the failure of the patent to state these merits docs not prohibit the court from taking them into consideration in determining the question of patentable novelty, nor docs it limit the scope of the invention; but the patentee is entitled to the benefit of all of the advantages which such structure possesses over prior structures intended for a similar purpose.</p> <p>2. Same — Different Uses of Structure.</p> <p>0 Where a patented pump was designed primarily for use as an air pump, the fact that it may also be used as a combined air and water pump, or as a water pump, and that such uses are claimed, does not deprive the patentee, in determining the question of invention, of the weight which should be given to the merits which attach to the use of the pump as an air pump.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 241.]</p> <p>8. Same — Infringement—Air Pump.</p> <p>The Whiting & Wheeler patent, No. 526,913, for a pumping machine intended for use in pumping the air and water from the condenser of a steam engine, and comprising a vertical twin-lmcket air pump directly driven by an independent engine, was not anticipated and discloses invention, especially in view of the utility, efficiency, and extensive commercial use of the structure which at once largely displaced those of the prior art. The Hall & Gage patent, No. 522.938, for a special valve movement for use in such pump, also, held valid, and both patents held infringed.</p>

In Equity. Action for infringement of certain claims of patents numbered 554,874, dated February 18, 1896, and 580,281, dated April 6, 1897, both issued to the complainant herein and both relating to improvements in typewriting machines. Patent 580,281 was held valid and infringed in Hillard v. Fisher Book Typewriter Co. (C. C.) 151 Fed. 34, affirmed (C. C. A.) 159 Fed. 439, certiorari refused by Supreme Court February 24, 1908. No. 551,871 has never been adjudicated.

<p>Patents — Invention—Salt Dkedge.</p> <p>The Hogan patent, No. 752,903, for a dredge for salt or pepper, having a celluloid cap, was not anticipated and discloses patentable invention, as applied to a dredge for salt, although the only new feature of the device is the substitution of celluloid for other materials previously used in making the cap; it being shown that celluloid possesses a property which prevents the salt from absorbing moisture and becoming caked. Also, held, infringed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 23.]</p>

<p>1. Patents — Invention—Use or Old Mechanical Devices.</p> <p>Except in inventions' of the most primary character new mechanical forms and appliances are not to be looked for, and there may be patentable invention in making use of those which are known in the same or kindred arts by so adapting and combining them as to bring about new or improved results.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 38, Patents, § 28.]</p> <p>2. Same — Infringement—Washing Machine.</p> <p>The Cramer & Haak patent, No. 829,631, for a washing machine consisting of an oscillating tub adapted to be run by power instead of by hand, was not anticipated, and discloses invention. Also, held infringed.</p>

<p>Patents — Infringement—Reinforced Cement Girders.</p> <p>The Hennebique patent, No. 611,907, for a cement joist or girder strengthened by iron rods or bars, is limited to a construction in a continuous girder, in which the strengthening rods in each span extend over the intermediate support and into the next span, so as to increase the strength of the girder next to such points of support. So construed, held not infringed.</p>

<p>1. Patents — Suit foe Infringement — Preliminary Injunction.</p> <p>A court of equity may enjoin a threatened infringement of a patent, although no act of infringement had been committed when the bill was filed.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 478, 479.] '</p> <p>2. Same — Infringement—Purchaser of Parts of Machine — Right to Use.</p> <p>A sale of a patented machine by one authorized to sell vests the purchaser with an absolute title and the right of user, but a sale of the parts of a dismantled machine as scrap iron does not pass title to the machine, nor the' right to use it, and if the parts are reassembled, and the machine used, such use is an infringement of the patent.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 399.]</p> <p>3. Same — Injunction—Machine Obtained bt Fraud.</p> <p>Defendants, two of whom were then employes of complainant, one being its foreman, organized a company to engage in a competing 'business in the making of crank shafts. Before the foreman left complainant’s employment, it sold a quantity of scrap iron to a junk dealer and, among other things taken by him, were the parts of two dismembered crank shaft lathes covered by patents owned by complainant. Such parts were not knowingly sold by complainant, yrere stored in a different place from th& scrap, and there was evidence that they were loaded in the junk wagon at the instance of the foreman. He or his eodefendant picked the parts of the machines from the scrap and purchased them from the junkman for $100, their value being at least $1,500, and they were proceeding to reassemble them preparatory to operating the machines. Held, that the evidence was sufficient to show that they were obtained from complainant by fraud, and that a preliminary injunction would be granted restraining defendants from using the machines, regardless ot' the question of the validity of the patents.</p>

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

<p>Patents — Suits foe Infringement — Fees of Master in Accounting.</p> <p>In the district of Massachusetts the sum of §25 is fixed as the normal rate of daily allowance for the services of a master in an accounting under a bill in equity for infringement of a patent, subject to increase or reduction whore particular cause is shown.</p>

<p>Criminal Daw — Former Jeopardy — Dismissal After Swearing Jury.</p> <p>The dismissal of an indictment by the court, before submission of the case to the jury, but after they were sworn, on the ground that it did not charge a crime, will not support a plea of autrefois acquit or of former jeopardy to a second indictment for the same offense attempted to be charged in the first; the court in the first proceeding never having had jurisdiction of the offense.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 310.]</p>

<p>1. Courts — Federal Courts — Conformity to State Practice.</p> <p>In the absence of congressional legislation, tbe laws of the state wherein a court of the United States is held control the practice before federal grand juries; but failure of a state statute to point out a method for attacking the validity of an indictment cannot deprive a defendant of that right.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 908.]</p> <p>2. Criminal Law — Pleading—Plea in Abatement — Counter Affidavits.</p> <p>Matters not disclosed by the record are properly presented by plea in abatement; but, if the rule were otherwise, the filing of counter affidavits disputing matters set up in affidavits accompanying a plea in abatement is a waiver of the objection that the issue was raised by plea, rather than by motion to quash.</p> <p>[Ed. Note.- — For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 638-612.]</p> <p>8. Indictment and Information — Necessity.</p> <p>Offenses under section 5410, Eev. St. (U. S. Comp. St. 1901, p. 3676), are infamous, and can only be tried upon indictment returned by a grand jury.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 27, Indictment and Information, §§ 10, 12.]</p> <p>4. Same — Constitutional Law.</p> <p>While the fifth amendment of the Constitution enables the people, through the grand jury system, to initiate criminal prosecutions, it was primarily adopted and still stands as a safeguard against arbitrary or oppressive action.</p> <p>5. Grand Jury — Deliberations—Duties of District Attorney.</p> <p>The district attorney has no right to participate in nor be present during the deliberations of a grand jury, nor to express opinions on questions of fact, or as to the weight and sufficiency of the evidence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Grand Jury, § 73.]</p> <p>8. Samis — Misconduct of District Attorney.</p> <p>The district attorney, at the conclusion of the evidence, without invitation from the grand jury, or request for information or advice, made an extended address, in which he commented upon and reviewed the evidence and explained and applied the law thereto for the purpose of securing an indictment. The remarks amounted to an expression of opinion that the defendants were guilty and that the grand jury should return an indictment against them. At the conclusion of the address, without deliberation other than that had during its delivery, and without discussion among themselves, the grand jury proceeded to ballot on the persons under investigation, a list of whom the district attorney furnished during the course of his remarks. Held, that while the mere presence of a prosecutor during the taking of a vote or during the deliberations, through inadvertence and without intending to influence any action which may he taken, is not necessarily fatal to a bill returned under such circumstances, yet where the prosecutor not only expresses his opinion, but urges the finding of an indictment, and it is clearly shown that the grand jury must necessarily have been influenced, whether consciously or unconsciously, and particularly where it is manifest that at least one defendant was indicted without substantial evidence, prejudice will be presumed, and an indictment so returned will be quashed.</p> <p>(Ed. Note. — For cases in point, see Cent. Dig. vol. 24, Grand Jury, § 73.]</p> <p>7. Indictment and Information — Motion to Quash — Grounds.</p> <p>The fact that it sufficiently appears from testimony adduced in open court on the trial of one of the defendants, upon the indictment so returned, that there was probably sufficient proof before the grand jury to justify the finding of a true bill as to some of the defendants who were indicted, does not deprive them of the right to a fair and unprejudiced investigation before the tribunal created by the Constitution, free from outside interference and undue influence. To hold, because the evidence was sufficient as to certain defendants that the indictment ought not to be quashed as to them, would be to substitute the judgment of the court for that of the grand jury.</p> <p>(Syllabus by the Court.)</p>

<p>Railroads — Bonds Giving Option to Exchange fob Stock, — Rights of Holder Against Successor of Company.</p> <p>Defendant railroad company purchased all of the stock of a second company, exchanging its own therefor, and thereafter the second company conveyed to it all of its property, in part consideration for which defendant assumed all of the grantor’s debts and obligations. Previous to such sale and conveyance, the selling company, by action of its board of directors, had issued a series of convertible debenture bonds, running for 20 years, and containing a provision giving the holder of any such bond the option to exchange the same at par for common stock of the company within 10 days after the declaration of any dividend on such stock. No provision, however, was made for the issuance of stock for ■the purpose of such exchanges. After the sale and conveyance of its property, no meetings of either directors or stockholders were held, and no dividends were declared; the earnings of the property being paid into the treasury of defendant, which operated the same as a part of its system. Twelve years after such transfer, complainant, who was the owner of certain of such convertible bonds not then matured, eommenced suit in equity against defendant to compel it to exchange stock therefor, or to account for the value of such stock, on the ground that it had inequitably and unjustly prevented the issuing company from fulfilling its contract in that regard. Held, that it having been determined in an action at law that the purchase of the stock and property by defendant and its action thereafter were lawful under the laws of the states in which the selling company was incorporated, and that it was under no legal obligation to maintain itself in a position to permit a bondholder to exercise such' option, its exercise of its legal rights gave rise to no equity in favor of complainant inconsistent therewith.</p>

<p>On Motion by Defendant for an Order Requiring a Return of Property Taken from his Possession After his Arrest.</p>

At Law. On motion of the plaintiff for judgment against the Metropolitan Surety Company, as surety upon a supersedeas bond.

<p>In Bankruptcy. On petition for review of an order of the referee denying an application of the trustee for an order for the return of property alleged to have been transferred and delivered by the bankrupts as a preference prior to the bankruptcy proceeding.</p> <p>Walsh Bros., a copartnership, dealers in farm implements and machinery, were adjudged bankrupts by this court January 18, 1908, upon their own petition filed that day, and a trustee of their estate was afterwards duly appointed. About March 7, 1908, the trustee filed with the referee an application setting forth that the bankrupts on December 17 and 18, 1907, transferred certain of their stock of farm implements and machinery, of the value of more than $025, to Burns Bros., a copartnership, in payment of debts assumed by the bankrupts; that such transfer was made while the bankrupts were insolvent; that Burns Bros, so knew, or had reasonable cause to believe; and that the same was intended as, and was in fact, a preference by the bankrupts to said Burns Bros., and accepted by them as such. A summary order is asked that Burns Bros, be required to return the property to the trustee, or for such order in the premises as the referee may deem proper. March 16th Bums Bros, appeared before the referee and filed an answer, in which they admit that the property was transferred and delivered to them by the bankrupts December 17 and 18, 1907/ but allege that it was in payment in good faith of a valid debt owing them by the bankrupts, and deny that the transfer was a preference, or intended as such, or that they knew of the insolvency of the bankrupts, or had reasonable cause to believe them to be insolvent, at the time of the transfer. They ask that they be dismissed, with their costs. Upon a hearing of the issues so joined evidence was offered by both parties, and the referee denied the application of the trustee upon the ground alone that it was not made to appear that Burns Bros, had reasonable cause to believe that Walsh Bros, were insolvent at the time the property was transferred and delivered to them. The Sandwich Manufacturing Company and other creditors of Walsh Bros, appeared at the hearing before the referee and participated therein, and they petition for a review of the order. The trustee does not petition for a review, nor join in that of the creditors.</p>

<p>Bankruptcy — Secured Creditors — Security Given by Third Party.</p> <p>Bankr. Act July 1, 1898, c. 541, § 57h, 30 Stat. 560 (ü. S. Comp. St. 1901, p. 3443), providing for the valuation of securities held by secured creditors or their conversion into money, has no application to securities which were not the property of the bankrupt, but of a third party; and the fact that a creditor, holding the note of a corporation on which the bankrupt is indorser, sets forth in his proof of claim a mortgage given by the corporation as a security, does not give the court of bankruptcy jurisdiction over the mortgaged property, except to see that its proceeds are applied on the .debt proved.</p>

<p>In Admiralty. Suit to recover for hire of tug and scows.</p>

<p>Customs Duties — Forfeiture—Compi-Eted Fraud.</p> <p>Construing Customs Administrative Act June 10, 1890, c. 407, § 9, 26 Stat. 135 (U. S. Comp. St. 1901, p. 1895), providing that if any person “shall make or attempt to make any entry of imported merchandise hy means of any fraudulent or false invoice, * * * ! by means whereof</p> <p>the United States shall be deprived of the lawful duties, * * * such merchandise * * * shall be forfeited,” held, that it is not essential</p> <p>that there should be a completed fraud upon the United States, but that it is enough if the act or attempt is of a character calculated to deprive the United States of duty.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Customs Duties, §§ 203, 264.]</p>

<p>In Rem. On exceptions to informations for forfeiture.</p>

<p>X. Admiralty — Pleading—Sufficiency of Answers to Interrogatories.</p> <p>Answers by a claimant iu admiralty to interrogatories in an amended libel demanding particulars in respect to allegations of fraud in the answer, stating certain of sucb particulars, and that as to the others claimant has no knowledge or information, but expects to prove the allegations from cross-examination of libelant’s witnesses and from an examination of its books, are not subject to exception for insufficiency, especially where libelant resists a motion by claimant to be permitted to make such examination.</p> <p>2. Same — Powers of Court — Discovery.</p> <p>A court of admiralty has powers as broad as those of a court of equity to compel the production of books and papers, and, if satisfied of the justice of the application, by affidavit or otherwise, may require such production on motion.</p> <p>S. Account Stated — Conclusivisness—Impeachment foe Fraud.</p> <p>A stated account is not conclusive, but may be impeached for fraud.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Account Stated, §§ 50-50.]</p> <p>4. Admikaett — Right to Discovert.</p> <p>Where a suit in admiralty to recover on a contract for repairs made on a vessel and on an account for extras, in which the claimant alleges fraud, has been referred to a special commissioner to take proofs, the claimant is not entitled to an order on the libelant for the production of books and papers in advance of such hearing on which it may obtain such production on motion or by a subpoena duces tecum.</p>

<p>1. Shipping — Carriage of Passengers — Authority of Master — Delegation —Arrest.</p> <p>The authority of the master of a vessel carrying passengers to arrest them cannot be delegated to minor officials or others on board, but, as far as is reasonably possible, must be exercised personally, at least to the extent of giving directions therefor.</p> <p>2. Same.</p> <p>If the authority of the master of a vessel to arrest a passenger may be delegated at all, it must be to a person of experience and known to possess character, intelligence, judgment, and tact, and the authority so delegated should not be exercised without the master being called on to determine the necessity therefor, unless the ship or other passengers are endangered.</p> <p>3. Same — Imprisonment of Passenger.</p> <p>Where a passenger on a steamship was arrested by a watchman, without justification, dragged down the saloon stairway by the collar, pushed Inside the freight room, and kept there in custody of another watchman for an hour, the shipowners are liable in admiralty as for a false arrest and imprisonment.</p> <p>4. Same — Damages.</p> <p>A passenger on a steamboat was arrested, without justification, by a watchman at night, dragged to the lower deck by the collar, and placed Inside the freight room provided for second class passengers in charge of another watchman for an hour. He was greatly humiliated, but no serious harm was done him further than the indignity and inconvenience imposed for the time being. Held, that libelant was entitled to damages in the sum of $1,000.</p>

<p>In Bankruptcy.</p>

<p>1. Sales — Remedies oe Seller — Stoppage in Transitu — Bankruptcy or</p> <p>Buyer.</p> <p>The doctrine of stoppage in transitu, which was previously firmly established as a part of the general body of the law, is not abrogated by Bankr. Act, July 3, 1898, c. 543, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3438); and the fact that a consignee has been adjudicated a bankrupt, and a receiver or trustee appointed for his estate, does not affect the right of the consignor to stop the goods in transit.</p> <p>2. Same-Duration and Termination oi? Transit.</p> <p>A bankrupt company ordered goods from petitioner, which were shipped, to be delivered to the bankrupt at the point of destination on payment of the freight charges. The goods arrived, but were not received by the bankrupt, which wrote petitioner desiring to cancel the order; but before ¡my action had been taken, and while the goods were in storage in possession of the carrier, the adjudication in bankruptcy was made and a receiver appointed. The receiver took no action in respect to the goods until after petitioner had served notice of stoppage in transitu on the carrier and demanded their return. Held that, no delivery having been made, such notice was in time, and title to the property did not .pass to the receiver or trustee in bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 43, Sales, § 838.]</p>

<p>In Bankruptcy. Proceeding for contempt.</p>

<p>1. Bankruptcy — “Taxes” Entitled to Priority of Payment — Water Rents.</p> <p>Water rents due to a municipality, which are levied on property annually as a tax is levied and made a lien in like manner, are “taxes,” within the meaning of Bankr. Act, July 1, 1898, e. 541, § 64a, 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447), which a trustee in bankruptcy is required to pay when levied against property of the estate in his possession.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 6867-68S6, 7813.]</p> <p>2. Same — Rents and Profits of Mortgaged Property — Rights of Mortgagee.</p> <p>A mortgagee of realty in Pennsylvania, whose mortgage exceeds the value of the property, is equitably entitled to have the rents and profits of such property collected by a trustee in bankruptcy of the mortgagor, after payment of the taxes, applied to the payment of interest on his mortgage.</p>

In Equity. On demurrer to bill. The bill alleges: That in March, 1901, the defendant Morgan employed the complainant, who was then and is now an attorney and counselor of •this court, to prosecute a suit in equity against the defendants school districts. to recover of them some $8,000 upon certain bonds issued by said ■districts; that complainant, pursuant to such employment, brought suit in ithis court in behalf of defendant Morgan and prosecuted the same to final judgment…

<p>At Law. Proceedings supplementary to execution.</p>

<p>In Admiralty. Action on bill of lading.</p>

<p>Tbade-Mabks and Tbade-Names — Unlawful Competition — Use of Peopeb: Names.</p> <p>In 186T David E. Foutz and Solomon A. Foutz, partners, under tlie nameS. A. Foutz & Bro., began to manufacture certain animal remedies wbicb became widely and favorably known and advertised. Solomon A. Foutz sold out to bis brother, wbo greatly extended tbe business, wbicb on bis death was conducted by bis widow, who thereafter formed plaintiff corporation, to which tbe business formulas, trade-marks, etc., were transferred, and plaintiff on January 28, 1908, registered tbe word “Foutz’s” in tbe Patent Office as its trade-mark. Stanley A. Foutz, son of Solomon, an attorney, organized defendant corporation under the name S. A. Foutz Stock Food Company, and commenced to sell other animal remedies intended for the-same purpose as those prepared by complainant under names embracing tbe name “Foutz’s,” and cautioned purchasers to look for the name “S. A. Foutz” and tbe pansy trade-mark to get tbe genuine. Held, that defendant’s act constituted unlawful competition, and that its corporate name should be amended to include the full name “Stanley A. Foutz,” and that the word “Foutz” on defend ani’s packages, circulars, advertisements, and literature should only be used in connection with a statement that the material was prepared from the formulas of “Stanley A. Foutz.” and that the goods were not prepared by complainant successor to tlie original Foutz Company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4(5, Trade-Marks and Trade-Names, § 84.</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>1. Landlord and Tenant — Rent—Acceptance ov Subrender of Premises.</p> <p>Yv'here the trustee of a bankrupt removed its property from the premises occupied by it as' lessee under a lease which still had more than a year to run, and surrendered the keys to the lessor, who accepted them, but stated that it was only for the purpose of renting the premises for the benefit of the bankrupt, and at once asked an increased rental, and within the year contracted for extensive repairs to be made at once, such action was an acceptance of the surrender and a waiver of any right which might have existed under the terms of the lease to hold the bankrupt for rent thereafter.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 788.]</p> <p>2. Bankruptcy — Claim Entitled to Priority.</p> <p>Where a lease to a bankrupt corporation required it to make all repairs on the premises, and the landlord was compelled to pay for certain repairs made by the health department which constituted a lien, he was entitled to prove the same against the estate of the bankrupt as an unsecured claim, but not as rent entitled to priority.</p>

<p>Bankruptcy — Voidable Preference — Knowledge of Debtor’s Insolvency.</p> <p>Evidence considered, and held insufficient to sustain the burden of proof resting on a trustee in bankruptcy to show that a creditor at the time o£ receiving payment from the bankrupt had reasonable cause to believe him Insolvent, so as to render suc-h payment voidable as a preference; it being shown, among other things, that within a month prior to such payment, and when the conditions were practically the same, the creditor accepted the bankrupt as surety on a note, on receipt of which it shipped to the principal goods of substantial value, which it had previously refused to ship.</p>

<p>1. Shipping — Injury to Stevedore — Breaking of Winch — LrABirrar cf Vesset..</p> <p>An injury to a stevedore resulting from the breaking of a winch being operated by another stevedore, even if due to the fact that the machinery was not kept properly oiled, cannot be charged to (.lie negligence of the vessel which furnished the winch, where no complaint was made as to its condition or notice given to the oflicers by the winchmen.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 350.]</p> <p>2. Same — Evidence Considered.</p> <p>Evidence considered, and held insufficient to charge a vessel with liability for the breaking of an eccentric strap on a winch, by which a stevedore was injured, but rather to show that the breaking was caused by the improper manner in which the winch was operated by the winehman, who was a fellow servant with the stevedore injured.</p> <p>[Ed. Note.- — For cases in point, see Coni:, Dig. vol. 44, Shipping, § 357.]</p>

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

In Admiralty. Suit to recover for salvage services. This libel was filed by the master of the tug Dauntless, in behalf of himself and crew and all persons interested as salvors, against the barges Carroll, Nansemond, and Roanoke, to recover for alleged salvage services rendered them and against their cargoes and freight money, under the following circumstances: On the 25th day of January, 1908, the Dauntless, from Baltimore, had in tow the schooner Malcolm B. Seavey for the…

<p>Bankruptcy — Discharge—Fraudulent Concealment op Property.</p> <p>Where, on the hearing of objections to the discharge of bankrupt partners on the ground of having fraudulently concealed property from their trustee, it was shown that they aided and assisted in a transfer of the partnership property to a creditor by means of the foreclosure of a chattel mortgage previously given by them more than four months prior to the bankruptcy, the question whether such acts were sufficient in law to bar their discharge depends on the validity of the chattel mortgage and its foreclosure, and a discharge will not be granted until that question has been determined in a proper proceeding therefor.</p>

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

<p>In Admiralty. Suit for charter hire.</p>

<p>1. Collision — Suit fob Damages — Conflicting Evidence.</p> <p>Conflicting estimates by the witnesses in a collision case in respect to speed and distances must be tested by the ascertained tacts.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Collision, § 274.}</p> <p>2. Same — Inevitable A-coident — Navigating in Ice.</p> <p>A steam vessel overtook and passed another in a river clogged with ice. She was the faster vessel, but, after taking the lead, she was impeded by the ice, and finally was stopped, when the overtaken vessel, then following in her wake, ran into her. Tt appeared that such following vessel kept an efficient watch on the one ahead, and when she stopped immediately starboarded her helm and reversed, but could not overcome her headway before coming up with the other vessel, nor get out of her track because of the interference of the ice. Reid, that the collision was due to inevitable accident, and that neither vessel was in fault.</p>

<p>Witnesses — Fees—Parties in Interest.</p> <p>Where one of the members of an unincorporated pilots’ association, appeared on behalf of himself and the other members as claimant of a vessel owned by the association when libeled in admiralty, and defended the suit, other members of the association, who appeared as witnesses, being each an owner of an undivided interest in the vessel, were parties-in interest in the suit and are not entitled to witness fees or mileage.</p>

<p>Aliens — Chinese Exclusion Act — Minor Son oe Chinese Merchant.</p> <p>A son of a Chinese merchant, lawfully domiciled in the United States, who came to this country from China while a minor for the purpose of joining his father, and who during the remainder of his minority labored and studied in the United States, is lawfully entitled to remain, after attaining his majority, and such right is not affected by the fact that he has since worked as a laborer.</p> <p>[Ed. Note. — Citizenship of the Chinese, see notes to Gee Fook Sing v. United States, 1 C. C. A. 212; Lee Sing Far v. United States, 35 C. C. A. 332.]</p>

<p>In Equity. On petition for leave to file bill of intervention.</p>

<p>1. Principal and Agent — Ratification—Acceptance of Benefit.</p> <p>Where certain ranges sold under an alleged conditional sale contract were accepted by the buyer and installed in his buildings as contemplated, it was immaterial to the validity of such contract that the seller’s offer was accepted by the buyer’s alleged agent, whose authority was not proved.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 649.]</p> <p>2. Bankruptcy — Preferences.</p> <p>Where stoves sold to a bankrupt for installation in his buildings, under a conditional contract of sale, were actually delivered, accepted, and used therein, such conditional sale contract, if otherwise valid, was not objectionable as a preference, though made within four months prior to bankruptcy.</p> <p>3. Sales — Conditional Sales — Validity.</p> <p>Where ranges were sold to a bankrupt under a conditional contract of sale, the vendor’s property therein before payment of the price as against the bankrupt’s trustee was not impaired by the fact that use of the ranges on the buyer’s property was inconsistent with the idea of a return to the seller, nor because of the claim that the ranges became a part of the real estate, and were therefore incapable of continued ownership in the vendor.</p> <p>4. Same — Conditional Contract — Construction.</p> <p>A letter written by the seller of certain steel ranges for installation in the buyer’s flat buildings contained below the date line and above the address a statement that the title to all goods delivered should vest in the vendor until fully paid for. The letter offered to furnish a certain number of ranges in question to the bankrupt on certain terms, and, on being received, was accepted by the buyer through his agent, and returned to the seller, by whom it was duly filed, as a conditional sale as required by Daws N. Y. 1904, p. 1696, c. 698. Held, that such letter did not contain a fraudulent or secret condition, and was sufficient in form to constitute a ' valid conditional sale.</p>

In Equity. On motion for preliminary injunction against infringement of the trade-mark “Don Carlos” and unfair competition in trade' by reason of simulated labels, etc. The bill alleged adoption, registration, and use of the words “Don Carlos,'’ as applied to Spanish olives imported and packed by complainant, and also the use of certain distinctive forms of bottles, in which the goods were pack-' ed, and labels attached thereto; that the defendant had adopted and used the…

<p>1. Equity — Pleading—Sujtitcibncy op Answeb — Waives by Faibuee to Except.</p> <p>A complainant in equity in a federal court who joins issue upon the answer, and goes to hearing without excepting thereto, is not entitled to thereafter move for decree because of its insufficiency.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 39, Equity, § 605.]</p> <p>2. Mechanics’ Diens — Waives oe Bjght in Contbact.</p> <p>A provision of a building contract by which the contractor expressly waived the right to a mechanic’s lien as against the holders of bonds issued by the owner and secured by mortgage on the property held effective, and not abrogated by subsequent dealings between the parties.</p> <p>[Ed. Note — For cases in point, see Cent. Dig. vol. 34, Mechanics’ Diens, §§ 381, 382.]</p>

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

<p>X. Maritime Liens — Enforcement—Suits in Personam.</p> <p>Vessel property, like other personal property of shipowners, may be-reached and subjected to the liabilities of the owners in a personal suit against them, but in such case only the interest of the owners, as such, may be subjected to sale, and persons holding maritime liens on the vessels cannot be compelled to submit their claims to the court in such suit; its only effect being to delay the enforcement of their liens during the time the vessels are in the actual custody of the court.</p> <p>¡S. Judgment — Questions Concluded — Rights oe Intervener.</p> <p>Libelants, who had furnished coal to steamers owned by a corporation, intervened in a creditor’s suit against the corporation in which the court by its receiver had taken possession of the vessels, and set up their claim to a maritime and statutory lien and asked its enforcement. The court ordered the vessels sold, requiring the purchaser to assume and pay any lien which it might thereafter establish. After the sale the right of libelants to a lien was tried and decided, adversely to them. Held that, having voluntarily submitted it to that court, such question was res judicata as between libelants and the purchaser, and that libelants could not thereafter maintain a suit in rem in admiralty against the vessels to enforce a lien thereon for their claim.</p> <p>3. Same — Res Adjudicata.</p> <p>When a fact or question is distinctly put in issue as a ground of recovery, and is directly determined by a court having jurisdiction to make such determination, that fact, right, or question cannot be again disputed in a subsequent suit between the same parties or their privies.</p>

<p>1. Master and Servant — Injury to Servant — Unsafe Place to Work.</p> <p>It is negligence and a breach of its duty to its empíoyés for a railroad company to build a standpipe so close to its track as to endanger employes on passing trains when engaged in the performance of their -duties, and such employes do not assume the risk from such structure merely because they know of its existence and general location.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §. 662.]</p> <p>2. Same — Liability of Master — Assumed Risk.</p> <p>Plaintiff, who was conductor of a freight train on defendant’s road, while the engine of his train was taking water at a station in the night, went in to send in reports in the course of his duty. When he came out the train was moving, and he started to climb upon a car by the side ladder provided for that purpose, when he was struck by a spout or standpipe, knocked from the car, and seriously Injured. There was no caboose on the train, and plaintiff was required to be on top of the cars to act as a brakeman. He was not well acquainted with the road at that point, and, while he knew there was a standpipe and its general location, he did not know that it was so near the track as to be dangerous to a person in his position. Held, that defendant was negligent in so placing it, and that plaintiff did not assume the risk therefrom, nor was he chargeable with contributory negligence.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 662, 707.</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 — Duty of Cabe on Past of Sebvant.</p> <p>It being the duty of a master in the first instance to furnish a servant with a reasonably safe place wherein to work, the servant has the right to assume that such duty has been performed, and is not required to exercise reasonable care to discover dangers, but is chargeable with knowledge only of such defects as are plainly observable.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 710-714.]</p>

<p>1. Insolvency — Peefeeked Claims.</p> <p>C. , prior to the failure of a firm of brokers, ordered them to purchase certain stock for delivery. The purchase was made through another concern by the latter advancing the purchase price, in accordance with the usual custom, and charging the amount to the brokers’ general account, retaining the stock in pledge. C. thereupon paid the brokers the amount due and requested that the certificates be transferred to him, but this was not done until the firm suspended, without having notified the purchasing brokers to transfer the stock to C., whereupon it was sold as a part of the pledge for the brokers’ general account. Held, that such stock stock belonged to C., that the sale was wrongful, and that C. was therefore entitled to a' preferred claim for the value thereof, against a balance remaining to the credit of the brokers on the sale.</p> <p>2. 'Same.-</p> <p>D. & Co., a firm of brokers, was ordered by H. to sell for him 20 shares of preferred Q. stock and to purchase 25 shares of G. Trust Co.’s stock. G. & Co. sold the Q. stock on the Chicago Exchange, realizing $2,057.50, in addition to commissions therefor, through another firm of brokers. The 25 shares of G. stock was purchased with commissions for $7,556.25, through another firm of brokers on the Cleveland Stock Exchange, and, both transactions being reported to H., he delivered to D. & Co. a certificate for the 20 shares of Q. stock and $98.75, which, with the proceeds of the Q. stock, he directed to be applied to the purchase of the G. stock, leaving a balance due D. & Co. of $5,400, which a trust company had agreed to pay to D. & Co. on delivery of the stock. On the sale of Q. stock, D. & Co. were credited with the selling price and charged with the stock, the charge being balanced by the delivery of the certificate, leaving D. & Co. credited on the books of their correspondent with $2,057.-50. The trust company’s stock, however, was never delivered, and on D. & Co.’s failure the sale was canceled by their correspondent without loss, resulting in net credit to H. on D. & Co.’s books of $2,056.25. Held, that the purchase of the G. stock had never been consummated, and H. was therefore a mere creditor of D. & Co. at the time of their failure and was therefore not entitled to a preferred claim on the surplus arising from the sale of other pledged collateral belonging to D. & Co.</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the District of South Carolina, at Charleston, in Bankruptcy.</p>

<p>1. Trial — Admission op Evidence.</p> <p>Where a paper is offered in evidence to the jury, and a general objection is made to its being read, which is overruled, an appellate court will not hold such ruling to be error if the paper could properly be read as evidence for any purpose.</p> <p>[Ed. Note. — For cases in point, see Ctent. Dig. vol. 46, Trial, § 226.]</p> <p>2. Ejectment — Evidence. .</p> <p>In an action of ejectment, the record in a prior suit against the defendant to condemn right of way for a road over the property in controversy is admissible in evidence to prove possession under claim of title by defendant, where such fact is pertinent to the issues, although plaintiff was not a party to such suit..</p> <p>3. Same — Instructions.</p> <p>Instructions given in an action of ejectment considered, and, construed together, held to correctly state the law applicable to the case.</p>

<p>. Internal Revenue —Tax on Distilled Spirits — Assessment on Distiller, fob Deficiency of Peoduction.</p> <p>Under Rev. St. § 3309, as supplemented by Act March 1, 1879, c. 125, § 6, 20 Stat. 340, and Act May 28, 1880, c. 108, § 8, 21 Stat. 147 (U. S. Comp. St. 1901, p. 2158), which require a distiller to pay internal revenue tax on spirits to the amount of at least 80 per cent, of the capacity of his distillery as-estimated according to law, he cannot be relieved from the payment of any part of such tax because the materials used by him are of such inferior quality or condition that they will not produce such percentage; but, where he is a fruit distiller within the proviso of said supplemental acts, an assessment for the deficiency cannot be made against him unless the notice of such deficiency thereby required shall have been given him by the commissioner within six months after receipt of his monthly report, and an assessment made without such notice is void.</p>

<p>1. Bills and Notes — Contract for Attorney’s Fee — Validity.</p> <p>Under the law of Maryland, a contract in a note to pay a collection fee if the note is not paid at maturity is valid to the extent of a reasonable fee actually expended or contracted to be paid, but no further.</p> <p>[Ed. Note. — For cases in point, seer Cent. Dig. vol. 7, Bills and Notes, § 221.]</p> <p>2. Bankruptcy — Petition to Revise — Failure op Record to Show Error.</p> <p>An order of a District Court, .reducing the amount of a claim made by a creditor of a bankrupt for a collection fee contracted for in the note given by the bankrupt in a state where such a contract is valid only to the extent of a reasonable fee, cannot be reversed by the Circuit Court of Appeals on a petition to revise, where there is no evidence in the record to show what would be a reasonable fee for the services which have been rendered by the creditor’s attorney or the amount the creditor has paid or contracted to pay for the same.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of West Virginia, at Philippi.</p>

<p>Railboads — Safety Appliance Act — Cab Couplings — Duty Imposed is Absolute.</p> <p>The safety appliance law of Congress, in the situations in which it is applicable, imposes upon a railway company an absolute duty to maintain the prescribed coupling appliances in operative condition, and is not satisfied by the exercise of reasonable care to that end. St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 610.</p> <p>[Ed. Note. — Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 87 C. C. A. 8.]</p> <p>(Syllabus by the Court.)</p>

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

<p>Patents — Invention—Computing Cheese Cutter.</p> <p>The Dunn patent, No. 800,451, for a computing cheese cutter, consisting of a new combination of old elements, which eliminates certain parts of prior machines and simplifies the mechanism, so as to produce a better and more practicable and salable machine, discloses invention; also held infringed.</p>

In Equity. Suit for infringement of letters patent No. 387,205, issued August 7, 1888, and No. 536,505, issued March 26, 1895, both granted to Julius Begtrup for steam engine governors. On final hearing.

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

<p>1. Patents — License—Construction.</p> <p>An exclusive license to sell phonographs within a stated territory granted by an assignee of patents therefor from the patentee, with the further right to such improvement patents as should be granted to him within a term of 15 years, must be construed with reference, to such patents and as covering only phonographs containing the patented inventions and improvements which are owned by the licensor.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 305.]</p> <p>2. Same — Scope—Rights of Licensee as Against the Licensor.</p> <p>Where the executory provisions of such contract of assignment to the licensor, which required the patentee to assign future improvement inventions, also required the assignee corporation to pay to him annually a stated sum for experimental expenses and to pay the cost of the future patents, and by reason of its insolvency and dissolution it failed to make such payments, the assignor was not thereafter bound to make improvements or patent his inventions for the benefit of the assignee, and such patents as he did procure did not inure to the benefit of the assignee nor its licensee, nor was a purchaser of the assets of the assignee with notice of the license bound to fulfill such executory agreement for the licensee’s benefit.</p> <p>3. Same.</p> <p>A provision of a license contract prohibiting the licensor from granting to others any rights for the use of phonographs or supplies therefor within the licensed territory construed, and held limited to the phonographs and supplies manufactured under the patents and which were covered by the license.</p> <p>4. Same.</p> <p>A grantor of an exclusive license under patents within a certain territory, and also its successors, who are in privity with it as to such license, are estopped, as against the licensee, to deny the validity of such patents, or that they expired before the term for which they were- granted by reason of the expiration of prior foreign patents for the same inventions.</p> <p>5. Same — Violation of Injunction — Contempt of Court.</p> <p>A defendant, which, as successor to the grantor to complainant of an exclusive license to sell and use within a certain territory phonographs and phonographic supplies embodying patents owned by the licensor, was enjoined from violating such license agreement by selling such phonographs and supplies within the licensed territory held in contempt of court for a violation of such injunction.</p>

In Equity. On motion by defendant for order directing substituted service of cross-bill upon counsel for complainants and motion by complainants to strike off cross-bill.

<p>Bankruptcy — Provable Debts — Contingent Liability.</p> <p>A contract liability of a bankrupt, which was contingent at the time the petition w^as filed, but became definite and capable of liquidation within the year allowed for making proof, is provable against the estate under Bankr. Act July 1, 1898, c. 541, § 63a(4), 80 Stat. 562 (U. S. Comp. St. 1901, p. 3447).</p>

<p>Injunction — Subjects of Relief — Enfobcement of Ordinance.</p> <p>An ordinance providing that “no person shall distribute on the public streets, or from any building, handbills, cards, circulars or papers of any description except newspapers,” is within the police powers of a city, and its enforcement cannot be enjoined as an interference with interstate commerce at suit of a complainant engaged in such commerce, which seeks to advertise its business by the distribution of circulars, etc.; no discrimination between persons in such enforcement being charged.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 27, Injunction, § 155.]</p>

<p>In Bankruptcy.</p>

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

<p>Bankruptcy — Involuntary Proceedings — Acts op Bankruptcy.</p> <p>A petition in involuntary bankruptcy held demurrable for failure to allege facts essential to constitute acts of bankruptcy, but with leave to the petitioning creditors to amend.</p>

<p>In Bankruptcy. On motion to confirm composition.</p>

<p>At Taw. On motion by defendant for bill of particulars.</p>

Application by the trustee of Jacob Vogt, a bankrupt, for an order requiring a referee to pay over certain money to the trustee. Denied.

<p>In Equity. Suit by trustee in bankruptcy.</p>

At Law. Action on a policy of life insurance. At the trial the court submitted certain questions, which were answered by the jury as follows: (1) When O. E. Paulhamus, In applying for the policy of insurance in suit, stated that his former occupation had been that of a painter and paper hanger, and that his present occupation was that of real estate and insurance, no other statement being made as to any other present occupation — • (a) Was that a full, complete, and true…

<p>1. Waters and Water Courses — Irrigation Companies — Regulation of Rates by Counties — -California Statute.</p> <p>Under Act Cal. March 12, 1885 (St. 1885, p. 95, c. 115), which provides that the boards of supervisors of the several counties of the state shall estimate as near as may be the value of the canals, ditches, flumes, water ways, and all other property actually used and useful in the appropriation and furnishing of water for sale in the county by any irrigation company, etc., and in like manner to estimate the annual reasonable expenses of such company, including the cost of repairs, and to establish maximum rates of charge for water by such company such that its net annual receipts and profits shall be not less than 6 nor more than 18 per cent, upon the said value of the property, when in making such* estimate a deduction is made for deterioration of the plant from year to-year, an allowance should be made for such deduction and added to the annual income in fixing the rates of charge to cover the cost to the company of renewal or reconstruction.</p> <p>2. Same.</p> <p>In the fixing of such rates of charge by the boards of different counties-in which the water is supplied by the same canal, under the established construction that the statute entitles the company to a net profit of not less than 6 per cent, on the value of its entire plant, and that its earnings in all of the counties must be taken into consideration in determining the'reasonableness or legality of any particular rate, .the distance of' each county from the head of the canal and the consequent loss of water-from seepage and evaporation should be taken into account, and as between the respective counties the higher charge should be authorized by the one having the longest flow.</p> <p>3. Injunction — Subject of Relief — Public Boabd — Avoiding Multiplicity-of Suits.</p> <p>A court of equity has jurisdiction of a suit by an irrigation company to enjoin the boards of supervisors of the respective counties through which its canal extends from enforcing rates fixed by them under the California statute,' which it is alleged do not enable the company to earn in the aggregate the income to which it is entitled under the statute, and to determine in a single suit the legality of such rates, on the ground of avoiding a multiplicity of suits.</p> <p>4. Same — Pbeliminaey Injunction.</p> <p>A bill and the showing made thereunder held sufficient to entitle an irrigation company to a preliminary injunction to restrain the boards of supervisors of counties through which its canal extends, and in which it furnishes water to consumers, from enforcing rates of charge established' by them until the legality of such rates could be determined, on the giving of a bond to secure the repayment of any charges collected which, should finally be held illegal.</p>

<p>In Bankruptcy. On exceptions to report of special referee on petition to vacate adjudication.</p>

<p>In Admiralty. On exception to libel for want of jurisdiction.</p>

<p>In Admiralty. Suit for short delivery of cargo.</p>

<p>1. Shipping — Liability or Vessel — Right or Action or Passenger.</p> <p>A passenger on a vessel may maintain a suit in rem against her in admiralty to recover damages for a failure to furnish him with proper accomodations, but not for an assault and battery committed upon him by the master, for which his remedy is in personam only either in admiralty or at common law.</p> <p>[Ed. Note. — Accomodations to passengers on vessels, see note to The Oregon, 68 C. C. A. 630.]</p> <p>2. Same — Relation or “Passenger” — Employé or Owners Carried Free.</p> <p>Libelant was employed by the owners of a steamer to go with her from Mobile to Cuba, and there operate a gasoline launch under directions of the master. He was to perform no service until he reached the Cuban port, but was to receive pay from the time°he started until his return, and to be furnished transportation on the vessel. Held, that he was not a passenger in a legal sense, nor entitled to demand accommodations as such, and could not recover in admiralty against the vessel for a failure to furnish him with such accommodations.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6. pp. 5218-5227; vol. 8, p. 7748.]</p>

<p>1. Bills and Notes — Bona Fide Purchaser — Accommodation Paper.</p> <p>Tlie discount of an accommodation note by a bank and the credit of the proceeds to the account of tlie payee are not equivalent to parting with value, and the maker may cancel his obligation by proper notice to the purchaser at any time before it has actually parted with the money.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 908.]</p> <p>2. Evidence — Books oe Account — Bank Books.</p> <p>A loose leaf of a bank ledger, containing entries of transactions between the bank and a customer, is competent evidence in its behalf to prove such -transactions, when properly proved by testimony of the bank’s employes.</p> <p>3. Bills and Notes — Action by Indorses — Defenses.</p> <p>Plaintiff bank discounted for a customer certain accommodation notes made by defendant under such circumstances as made it a bona fide holder thereof and entitled to recover thereon to the extent of the value it had parted with before being notified by defendant. A part of the proceeds of the discount had been paid into a fund owned by a third party, but against which, by an arrangement between them, plaintiff was authorized to charge back such paper discounted for the customer as should not be paid. Held, that such arrangement, to which he was not a party, was not available to defendant as a defense to the notes either to the extent of the entire fund or that portion of it arising from that particular discount.</p>

<p>In Bankruptcy.</p>

<p>At Law. On demurrer and special exceptions to petition.</p>

<p>Towage — Loss of Tow — Liability of Tug.</p> <p>A tug held not liable for the injury to a scow which turned turtle while being towed to the dumping grounds and was found with a large hole in her bottom, on the ground that the tug was negligent in going out under the weather conditions, which were stormy, but not sufficiently so to sustain the charge of negligence, in the absence of evidence to sustain the burden resting on libelant to show that the injury was due to the weather or sea, rather than to some unexplained cause, such as striking an obstruction or the breaking loose of one of the poeketdoors of the scow, which seemed to be indicated by her condition.</p>

<p>In Bankruptcy. On certificate of W. L- Hill, referee, sur rule on bankrupt to turn over certain property.</p>

<p>In Bankruptcy. On certificate from referee concerning claim of Colonial Trust Company, trustee.</p>

<p>1. Landlord and Tenant — Forfeiture of Lease — Waiver by Receipt of Rent.</p> <p>A lessor, who receives rent after a forfeiture of the lease, thereby waives the forfeiture, and the lease is restored to its original force and effect.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 345.]</p> <p>2. Same — Lease Construed — Right to Remove Trade Fixtures.</p> <p>A lease for a long term of years, which provided that at the expiration of the term, or its earlier termination as therein provided, the lessee should surrender the premises “in good order and condition, with all improvements, additions and extensions without any compensation to be paid for said improvements, additions and extensions,” did not vest title to such improvements, etc., in the lessor, when they were made, but only to such as remained when the lease was terminated, and such provision did not affect the right of the lessee to remove trade fixtures during the term or while the lease remained in force.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 32, Landlord and Tenant, §§ 577-584.]</p> <p>8. Fixtures — Buildings—“Trade Fixtures.”</p> <p>In the absence of an agreement to the contrary, a lessee may remove fixtures which it places on the leased premises for trade purposes while the lease is in force, and such fixtures include not only machinery, but buildings erected for trade purposes. Under a lease of premises for a long term of years to be used for manufacturing purposes, a building erected for a manufacturing plant is a trade fixture, which the lessee may remove during the term, regardless of its size or the materials of which it is made.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. fol. 23, Fixtures, § 62. For other definitions, see Words and Phrases, vol. 8, p. 7042.]</p>

<p>1. Adm ikat.tv- Action fob Death — Libel iar Rem.</p> <p>In the absence of an act of Congress or a state statute giving a right of action therefor and a lien on a vessel, a libel in rem cannot be maintained in admiralty to recover for the death of a human being on the high seas, or on waters navigable from the seas, resulting from negli gence.</p> <p>[Ed. Note. — -For cases in point, see Cent. Dig. vol. 1, Admiralty, § 218.]</p> <p>2. Same — Statutes.</p> <p>B. & C Comp. Laws, § 381, declares that, when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law against the latter, if the former might have maintained an action, had he lived, against the latter for the injury done by the same act or omission. Section 5706, subd. 4, declares that every boat or vessel used in navigating the waters of the state shall be subject to a lien for all demands for damages for injuries done to persons or property by such boat or vessel; section 5707 provides for the priority of liens; and section 5708 declares that any person, Instead of proceeding against the master, owner, or agent, may sue the boat or vessel by name. Held that, where a longshoreman employed by a vessel was killed while assisting in loading her by an alleged defect in the gang plank, his administratrix was entitled to maltain a libel in rem in the admiralty courts of the United States to recover damages for his death.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 1, Admiralty, § 219.]</p>

<p>Bankrtjptci'— Examination of Banxrupi^Gbeditobs Entitled to Examine.</p> <p>A creditor, named as such in a bankrupt’s schedule, is entitled to examine the bankrupt under Bankr. Act July 1, 1898, c. 541, § 21a, 30' Stat. 552 (U. S. Comp. St. 1901, p. 3430), upon any matter properly relevant to the proceedings, and it is not necessary that he should first prove his claim.</p>

<p>Injunction — Evidence—'Weight and Sufficiency.</p> <p>Evidence held to establish tbe allegations of the answer, in a suit to enjoin defendant from engaging in business in competition with complainant in violation of a contract, that the contract set up in the bill was only a part of the actual contract between the parties, and that, as supplemented by other writings and agreements constituting the entire contract, it was in restraint of trade and commerce, and in violation of public policy, and would not sustain a suit in a court of justice.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Injunction, § 278.]</p>

<p>Constitutional Daw — Delegation oe Legislative Power — Transportation op Live Stock — 28-Hour Law.</p> <p>Act Cong. June 29, 1906, c. 3594, 34 S.tat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibiting carriers from confining stock in transit for a longer period than 28 consecutive hours without unloading for rest, water, and feed for a period of 5 hours, except that, on written request from the owner or. person in custody of the particular shipment, the time of consecutive confinement may be extended to 36 hours, is not unconstitutional as a delegation of legislative power to the owner or custodian of the stock shipped during transit.</p>

<p>Carriers — Transportation of Cattle — 28 - H o un Law — Construction.</p> <p>In an action against a carrier to recover a statutory penalty for carrying stock in continuous transportation for more than 28 hours without rest, wafer, and feed, the shipment, and not the car or train load, is the integer for the imposition of penalties.</p>

<p>Shipping — Construction of Charter Party — Liability for Cargo Lost in Loading.</p> <p>A charter of a steamship for the carriage of a cargo of timber to be loaded at the port of Mobile provided in the printed portion that the cargo should be brought alongside at the charterer’s risk and expense, and when so brought alongside should be signed for and taken charge of by the vessel. A written Stipulation provided that, “should it be necessary to complete the loading in the lower bay at Mobile, same to be at steamer’s risk and expense.” Held, that such stipulation did not render the vessel absolutely liable for timber lost while being loaded in the lower bay, but that her liability as to such timber was the same as though it had been received alongside or loaded at Mobile, and that exceptions in the charter party of liability for acts of God, perils of the sea, etc., applied thereto.</p>

<p>1. Principal and Agent —Undisclosed Principal — Written Instrument-Specialty.</p> <p>The rule permitting a party to sue an undisclosed principal on a written instrument does not apply where the instrument is a specialty.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 516.]</p> <p>2. Insurance — Policy—Construction—Capital and Funds — Liability.</p> <p>An insurance policy provided that the capital stock and funds of insurer specified should be alone answerable to the demands thereon, and that no member or stockholder of the company should be subject or liable to any demands against the company on any act or pretense whatsoever beyond his share of the capital stock or funds of the company; anything contained in the policy to the contrary notwithstanding. Held, that such provision not only exonerated the stockholders of the company executing the policy from any and all claims thereunder, but limited the insured to the capital stock and funds of the insurer named for the payment of losses,</p> <p>3. Principal and Agent — Undisclosed Principal.</p> <p>Where a policy executed by an insurance company provided that its capital stock and funds should alone be answerable to the demands thereon under the policy, and that no member or stockholder of the company should be liable to any demands against the company beyond the shares of his capital stock, or funds of the company, no recovery could be had by insured on such policy against defendant, another insurance company, under the rule permitting one party to a written contract to sue a third person whose name does not appear thereon as a party, as an undisclosed principal; that rule being subject to the paramount rule that the express terms of a writing cannot be varied by parol.</p>

<p>Habeas Corpus — Authority por Restraint — Enlistment op Minor.</p> <p>A minor, who by misrepresenting his age has fraudulently enlisted in the army without the consent of his parents, and thereby subjected himself to punishment under military law, will not be relieved from such punishment by the civil courts by discharging him on a writ of habeas corpus on the application of his parents, even though the military prosecution is not instituted until after the writ was issued.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, §6.]</p>

<p>Applications by the United States, for cancellation of certificates of citizenship issued, respectively, to Carl Schurr, Leander Englund, Andrew Haggman, Samuel Olson, and Andrew Newman. The five applications were heard together.</p>

<p>Aliens — Naturalization—Time fob Piling Petition.</p> <p>Under Naturalization Act June 29, 1906, c. 3592, § 4, cl. 2, 34 Stat. 596 (U. S. Comp. St. Supp. 1907, p. 421), which requires an alien applicant for citizenship to “make .and file” his petition “not less than two years nor more than seven years” after he has made his declaration of intention, the right of an applicant must be complete when his petition is filed, and such provision is mandatory. A petition filed within less than two years after the declaration of intention gives the court no jurisdiction, although the hearing thereon is not until after the two years have expired.</p>

<p>1. Shipping — Charter Paett — Damage from Odor.</p> <p>A charter party, reciting that the vessel is carrying creosote on the preliminary voyage, also contained the printed clause that the vessel “shall he tight, staunch, strong, and in every way fitted for the voyage,” with a written insertion, “Vessel agrees to have holds as clean as possible.” Held that, where the vessel had been so cleaned, the charterer could not recover for the impregnation of shooks by the odor of creosote, which rendered them unfit for wine casks.</p> <p>2. Rei.ease — Construction and Operation.</p> <p>Where some of the discharged cargo came out with stains and external damage, and a compromise was made by deducting $100 from the freight, which was acknowledged by a receipt “in full settlement of our claim for damage to cargo delivered in bad condition,” such receipt did not release a claim for odor or taint that was not discovered until afterward.</p>

<p>Fbaud — Fraudulent Representations — Remedt.</p> <p>A plaintiff, who with others entered into an agreement with a promoter to form a syndicate to purchase stock of a corporation, which agreement was carried out and the stock purchased, cannot, on the ground that the promoter made fraudulent representations, rescind the agreement and on a tender of the stock to him maintain an action at law in tort against him alone to recover the money paid in; but his remedies are limited to an action against the promoter to recover damages for the fraud, in which the value of his stock must be taken into account, or to a suit for rescission, to which the corporation and other members of the syndicate are necessary parties.</p>

<p>1. Shipping — Demurrage.</p> <p>Demurrage cannot be recovered from a charterer for delay in discharging, due to tho refusal of the owner to discharge without settlement of a prior claim for demurrage at the port of loading.</p> <p>[Ed. Note. — Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Smith, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>2. Same.</p> <p>Under a charter for the carriage of a cargo of lumber to be loaded at two ports, which required the charterer to pay for the towage between the two, the time of such towage cannot be charged in the lay days for loading, nor the time lost in obtaining a tug not due to any default of the charterer; but demurrage is recoverable for delay in loading, due to the fact that the cargo was different from that specified in the charter.</p> <p>3. Same — Dead Fbeigiit — Suit in Rem.</p> <p>A claim for dead freight is not recoverable in an action in rem against the cargo.</p> <p>4. Same — Extea Cost oe Handling Cargo.</p> <p>A claim by a vessel owner for tlie extra cost of handling timber of larger dimensions than that specified In the charter can only be recovered in an action in rem against the cargo in so far as it is a claim for the services of stevedores who would be entitled to a lien, and is not so recoverable where the stevedores were furnished by the charterer.</p>

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

<p>Shipping — Carrier of Passengers — Liability for Injury to Passenger.</p> <p>Libelant, a passenger on a steamship, was sitting on the deck at a time when the sea was rough, and to escape an unusually large wave, which washed over the deck, stepped upon a bench and rested his hand upon a glass ventilator or skylight, which broke and his hand was cut by the glass. There was a frame, with cross-rods, over the sash, designed to protect the glass; but the preponderance of the evidence showed that it was displaced by libelant and fell to the deck before his injury. Held, that the condition of the skylight was not such as to charge the vessel with negligence which would render it liable for the injury, which was entirely attributable to accident.</p>

<p>In Bankruptcy. On motion to set aside composition.</p>

<p>Admiralty — Execution oe Decree — Sale of Vessel — Vacating—Inadequacy of Price.</p> <p>A court of admiralty has discretionary power, like a court of equity, to set aside or refuse to confirm a sale of property made under its process, but, where such sale was fairly made, after due advertisement, and there was a considerable attendance of persons having knowledge of the property, it should not be set aside on objection of other parties interested, who had full opportunity to protect themselves on the ground alone of inadequacy of price, or on a later offer by them of an increased price.</p>

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

<p>In Equity. On motion for order on defendants to make discovery by answering interrogatories.</p>

In Equity. Sur petition of trustees for first mortgage bondholders to modify decree giving priority to the mechanic’s lien of the George M. Newhall Engineering Company.

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

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

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

<p>1. Municipal Corporations — Public Improvements — Contracts—Construction — Contract to Complete Water System.</p> <p>A town had plans and specifications made for a complete water and sewer system, and advertised for bids for the same, all of which were rejected because they exceeded $34,000, which was all the town purposed to expend. The engineer of the Southern Contracting Company, which was the lowest bidder, then proposed that his company would construct the system within such limit, if certain changes were made in the specifications, and, his proposal being accepted, a resolution prepared by him was adopted “that the plans and specifications by * * * be revised for a completed plant, without extras, and be constructed by the Southern Contracting Company at cost pitas 10 per cent, for material furnished and work done, the total amount not to exceed $34,000.” The company then gave a bond, with defendant as surety, conditioned for the performance of the contract “for the amended construction of a water and sewer system” for the town “upon a basis of 10 per cent, upon the materials and labor furnished, not to exceed $34,000.” The bond also gave defendant the right to complete the contract on default by the principal. The company, after doing a part of the work, abandoned the same, and, defendant refusing to complete it, the town did so, as authorized by the contract, at a total cost largely exceeding $34,000. Held, that the contract was not one to do work for the town on account of its water and sewer system to the extent of $34,000 on a commission of 10 per cent., but was one for the completion of the system* in accordance with the amended specifications at a cost not to exceed $34,000, and less if the actual cost, including 10 per cent, profit to the company, should be less, and that defendant was .liable to the .town for the damages sustained by its breach, to the extent of the penalty named in the bond.</p> <p>2. Same — Action on Bond — Evidence.</p> <p>In an action on such bond, in which the declaration alleged a. breach ' of the contract by abandonment of the work, to the damage of the town in the full penalty of the bond, the town was entitled to prove what it did in completion of the work in accordance with the specifications, and the amount expended therein.,</p> <p>3. Bonds — Action—Pleading.</p> <p>Tn an action of debt on a bond with collateral conditions, the declaration is not required to set forth the damages alleged, but only the breaches; and when the broach alleged is the abandonment of the contract, the performance of which the bond was given to secure, and the damages are alleged to equal the full penalty of the bond, the specific details of damages cannot be required to be set out</p> <p>4. Principal and Surety — Surety Companies — Bules Governing Obligation oe Surety.</p> <p>The strict rules governing the liability of sureties growing out of the ordinary relations of creditor and simple surety are not as fully applicable to the contracts of a bonding company insuring the performance of contracts as a business and for profit.</p>

<p>Habeas Corpus — Nature of Restraint — Unlawful Enlistment of Minor.</p> <p>The civil courts should not interfere by habeas corpus to discharge a minor under 18 years of age who has been enlisted in either the military or naval service without the consent of his parents or guardian, if at the time of the presentation of the petition for the writ the minor is under arrest and held for trial by court-martial on a charge of desertion or fraudulent enlistment or other charge cognizable by a military or naval court.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 16.]</p>

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

<p>1. Monopoijes — Restraint in Interstate Commerce — Statutes—Manueao-TUREKS.</p> <p>Act Cong. July 2, 1890, c 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), provides: That every contra cl, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is illegal; that every person who shall monopolize, or attempt to monopolize, or combine, or conspiro with any other person or persons to monopolize, any part of the trade or commerce among the several states or with foreign nations, shall bo guilty of a misdemeanor; and that any person injured in his business or property by anything forbidden by the act may sue therefor. Unid, that a mere agreement to monopolize the manufacture of an article of commerce is not prohibited, but that, in order to be within the act, the contract, combination, or conspiracy must be in itself in restraint of trade or commerce among the several states or with foreign nations, or, if a monopoly or attempted monopoly or combination or conspiracy to monopolize, it must be of some part of the trade or commerce among the several sta tes or foreign nations.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 35, Monopolies, §§ 11.]</p> <p>2. Same — Scope oe Agreement.</p> <p>An agreement between defendants, manufacturers of licorice pasto uteed in the manufacture of tobacco, provided that there should be no competition in price between them, and they, from time to time, agreed and maintained arbitrary and noncompetitive prices for paste at wbicb it was actually sold in interstate commerce. Defendants also agreed with and induced certain competitors in the business to establish and maintain arbitrary and noncompetitive prices in excess of the normal and reasonable prices that would otherwise have prevailed, and also apportioned the interstate. trade and commerce in such spbstance and of the customers of two of the manufacturers, arbitrarily fixing the amount of business they should do, and also so managed and agreed with another that the latter should only sell 1,000,000 pounds of paste during 1904, and not more than 50,000 pounds additional during each year for five years from December 31, 1903, and, if he sold more, he should pay to another of the defendant companies certain sums approximately equal to the profits of the excess. Held, that such agreement constituted an unlawful interference with interstate commerce, prohibited by Act Cong. July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St 1901, p. 3200), declaring that every contract, combination, or conspiracy in restraint of trade among the several ■ states or with foreign nations" should be illegal.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 35, Monopolies, § 13.]</p>

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

In Equity. On intervening petition of the Elkins Electric Railway Company.

<p>In Equity. Suit for injunction. On pleas to the jurisdiction and demurrers thereto.</p>

In Equity. Suit for injunction. The complainants are Wholesale dealers in groceries, food products, and like commodities in several towns and cities within the territorial jurisdiction of this court. The respondents are certain railway companies organized and existing under the laws of states other than Georgia, but whose lines extend throughout the state, and into the division and district of this jurisdiction.

<p>Collision — Ovebtaking Tug with Tow — Faults of Ovebtatcing Vessels.</p> <p>The tug Luckenbach overtook and passed the tug Staples at night in Narragansett Bay. The tugs were on nearly parallel courses, and the Luckenbach passed to the right of the Staples. Each had a long tow. After passing, the Luckenbach changed her course across that of the Sta-pies, and the rear barge of her tow ran between the Staples and her first tow; the hawser coming into collision with the Staples, sweeping away her upper works, and doing serious injury to her master and mate. Hold, on the evidence, that the Luckenbach was in fault for close shaving, for changing her course when passing, for not giving the signals required by rule 8 of the inland navigation rules (Act June 7, 1897, c. 4, 30 Stat. 101 [U. S. Comp. St. 1901, p. 2882]), and for attempting to pass without obtaining the consent of the Staples, and that the barge was also in fault for sheering to port as she was passing.</p> <p>LEd. Note. — Overtaking vessels. See notes to The Rebecca, 60 O. C. A. 254.]</p>

<p>1. Judgment — Lien—Real Estate.</p> <p>Under the New York law, a judgment becomes a lien on real estate on the date it is docketed in the county where the real estate is situated and remains a lien for 10 years, irrespective of the issuance of an execution. a levy, sale, or advertised sale.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1332.]</p> <p>2. Bankruptcy — Acts of Bankruptcy — Petition.</p> <p>A petition, charging that defendant had transferred her interest in certain real estate by way of security by permitting a judgment to be docketed against her in the county where the real estate was situated, was insufficient, without an allegation that this was done with intent to hinder, delay, or defraud her creditors or any of them; the act of bankruptcy defined by Bankr. Act July 1,1898, c. 541, § 3, subd. 1, 30 Stat.' 545 (U. S. Comp. St. 1901, p. 3422), declaring that a transfer of property with intent to hinder delay or defraud creditors shall constitute an act of bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 118.J</p> <p>3. Same — Preference.</p> <p>A bankruptcy petition, charging that defendant transferred her interest in certain property by way of security by permitting a judgment to be docketed against it, but, failing to allege that this was done by defendant with intent to prefer the judgment creditors, did not charge an act of bankruptcy under Bankr. Act July 1, 1898, c. 541, § 3, subd. 2, 30/Stat. 545 (U. S. Comp. St. 1901, p. 3422), declaring that a transfer by a debtor, while insolvent, of any portion of his property with intent to prefer such creditors over other creditors, shall; constitute an act of bankruptcy.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 118.]</p> <p>4. Same — “Preference’ ‘ ‘Transfer. ’ ’</p> <p>Bankr. Act July 1, 1898, c. 541, § 60, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3445), declares that a person shall be deemed to have given a “preference,” if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before adjudication, procured or suffered a judgment to be entered against himself in favor of any person or made a transfer of any of his property, the effect of which will be to enable one creditor to obtain a greater percentage of his debt than other creditors of the same class. Section 1, subd. 25 (30 Stat. 545 [U. S. Comp. St.- 1901, p. 3420]), declares that a “transfer” shall include the sale and every other and different mode of disposing of or parting with property or the possession of property absolutely or conditionally as a payment, pledge, mortgage, gift, or security. Section 3, subd. 3 (30 Stat. 5406 [U. S. Comp. St. 1901, p. 3422]), provides that a person éhall commit an act of bankruptcy if he has suffered or permitted any creditor to obtain a preference through legal proceedings and not having, at least' five days before a sale or final disposition of any property affected by such preference, vacated or discharged the same. Held, that where a debtor, while insolvent, permitted certain creditors to recover and docket a judgment against her in the county, in which she had an equity in real estate, and such judgment was permitted to remain a lien until one day before the expiration of four months from the date it was so docketed, and on the expiration of such time it would have become an absolute security for the debt, it constituted a preference and an available act of bankruptcy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 6, pp. 5498-5499; vol. 8, pp. 7759, 7064-7070, 7819.]</p> <p>5. Same — “Final Disposition.”</p> <p>Bankr. Act July 1, 1898, § 3, subd. 3, e. 541, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), provides that a person shall have committed an act of bankruptcy by having suffered or permitted, while insolvent, any creditor to obtain a preference by legal proceeding and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged it Held, that the term “final disposition,” as so used, did not mean a gift of the property to some third person or a voluntary transfer to the creditors in satisfaction of a preferential judgment, but Included every other method than that specified of passing the control and dominion of the property of the insolvent debtor to another or others either absolutely or as security to the preferred creditor to the exclusion of his other creditors.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, p. 2798.]</p>

<p>On Demurrers to Indictments and Motions to Quash.</p>

In Admiralty. Suit for collision. On libel, cross-libel, and petition for personal injuries. This libel, cross-libel, and petition grew out of a collision between the Dorchester and the schooner Fannie S. Groverinan, which occurred in the waters of and near the mouth of 'Elizabeth river, on the early morning of the 13th of September, 1907.

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

<p>In Bankruptcy.</p>

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

<p>In Admiralty. Cross-suits for collision.</p>

<p>Bankruptcy — Fraudulent Sales — Redelivery of Property.</p> <p>Claimant, in October, 1906, accepted an order from tbe bankrupt for certain timbers to be shipped from the Pacific Coast, which were not delivered until October, 1907. The bankrupt, in December, 1906, placed a mortgage on its real estate for ¡in amount equal to its full value, and, in addition, on August 1, 1907, made an assignment of all bills receivable, contracts, and assets of every description, paid about November 2, 1907, submitted a statement to its creditors disclosing its insolvency, all of which was without the seller’s knowledge. Held, that the seller was not a mere general creditor of the bankrupt, but that tbe receipt of the timbers by tbe bankrupt when delivered amounted to a fraud, entitling tbe seller to rescind and recover the same from tbe trustee.</p>

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

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

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

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

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

<p>1. Master and Servant — Injury to Servant — Assumed Risk.</p> <p>An employe of a mining company who had been working for several months as a brakeman engaged in the moving of dump cars by means of an engine, and who had knowledge of the means used for coupling to such cars, assumed the risk from such means, and there can be no recovery from the company for his death resulting therefrom, where the couplers were in good condition.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.]</p> <p>2. Negligence — Actions—When Question fob Jury.</p> <p>Where there is uncertainty as to the existence of negligence or contributory negligence arising from conflicting testimony, the question is one of fact, to be determined by the jury.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 37, Negligence, §§ 277-353.]</p> <p>3. Master and Servant — Death of Servant — Action—Question fob Jury.</p> <p>An engineer operating an engine employed in moving dump cars at a mine backed his engine against a car to which it was to be coupled with such force that the sloping end of the tender was forced beneath the car, raising it from the track, and crushing and killing a brakeman who was standing on the running board at the rear of the tender to make the coupling. The engineer knew that there was no bumper on the car which would prevent such an occurrence, and also that it was necessary for the brakeman to be between the engine and car to make the coupling. Held, that evidence' showing such facts was sufficient to require the submission of the question of the engineer’s negligeiice to the jury in an action to recover for the death of the brakeman.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1051-1067.]</p> <p>4. Same — PEllow-’Servant Daw of Minnesota.</p> <p>The fellow-servant law of Minnesota (Gen. St. Minn. 1894, § 2701), as construed by the Supreme Court of the state, applies to a mining corporation which is not a railroad corporation, but which operates a short line of railroad in mining its ore, and under such statute a brakeman employed on such road does not assume the risk from negligence of an engineer also so employed.</p> <p>5. Witnesses — Examination—Redirect Examination.</p> <p>Permitting a witness to be interrogated on redirect examination with respect to matters first brought out on cross-examination is not prejudicial error, even though the testimony may be irrelevant.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 50, Witnesses, § 1004.]</p> <p>6. Evidence — Opinion of Expert — Competency.</p> <p>Upon an issue as to the negligence of a railroad engineer in running his engine against a car to which it was to be coupled with such force as to crush the brakeman who was between the two for the purpose of making the coupling, it was competent to show by an engineer of experience within what distance the engine could have been stopped.</p> <p>[Éd. Note. — Por cases in point, see Cent. Dig. vol. 20,- Evidence, § 2323.]</p> <p>7. Death — Action for Wrongful Death — Right of Nonresident Alien to Benefit of Statute.</p> <p>The Minnesota statute giving a right of action for wrongful death for the benefit of the next of kin of the deceased, as construed by the Supreme Court of the state, includes among Its beneficiaries a nonresident alien having the prescribed relationship.</p> <p>[Ed. Note. — Por cases in point, see Cent. Dig. vol. 15, Death, §§ 35-46.]</p>

<p>1. Insurance — Conditions in Policy — Incumbrance op Property.</p> <p>A provision in an insurance policy that a mortgage placed upon the property insured shall render the policy void, unless consent of the company thereto shall be indorsed in writing on the policy, is valid and enforceable.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 28, Insurance, § 829.]</p> <p>2. Same — Authority op Agent to Waive Conditions — Iowa Statute.</p> <p>A provision in a policy of insurance that none of its terms shall be modified or waived by an agent, except in writing indorsed upon the policy, is valid, both under the general law and under Code Iowa, §. 1750, which provides that any agent who may solicit insurance, procure applications, issue policies, adjust losses, or transact business generally for an insurance company “shall be held to be the agent of such insurance company with authority to transact all business within the scope of his employment, anything in the application, policy, contract, by-laws, or articles of incorporation of such company to the contrary notwithstanding”; such provision of the policy being one merely regulating the manner in which the agent may exercise his authority.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 1020.]</p> <p>3. Same — Adverse Interest op Agent.</p> <p>An agent of an insurance company, who issued a policy on a stock of goods and afterward took a chattel mortgage on the stock in favor of a bank of which he was cashier and part owner, could not as such agent consent to such mortgage on behalf of the company.</p> <p>TEd. Note. — For cases in point, see Cent. Dig. vol. 28, Insurance, § 918.]</p> <p>4. Same — Consent to Incumbrance — Construction of Indorsement.</p> <p>The written consent of an insurance company that the interest of an insured “as owner of the property” insured be assigned to another, indorsed on the policy by an agent, is not a consent to the incumbering of the property by a mortgage, although the agent knew that such was the nature of the transaction and verbally consented thereto.</p>

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

<p>Patents — Infringement—Electric Meters.</p> <p>The Duncan patent, No. 004,465, for an electric meter, the invention relating to means for counterbalancing or compensating for tlie friction which opposes the rotation of the armature in an integrating watt-meter, which consists of one or more adjustable coils, is not infringed by the device of the Duncan patent, No. 752,048, in which electrical instead of mechanical means are used to accomplish the same purpose; the coils being stationary.</p>

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

<p>1. Patents — Suit fob Infringement — Equity Practice — Plea.</p> <p>It is the office oí a plea in equity to present some one single and well-defined ground of defense, which, if sustained, will dispose of the case and avoid the expense and delay of a hearing; and in a suit for infringement of a patent the defense of noninfringement cannot properly be presented by a plea, at least where it involves a consideration of evidence extrinsic to the patent itself.</p> <p>2. Same — Motion to Strike Off.</p> <p>That a plea is bad, as in effect setting up the noninfringement of the patent in suit, a defense which is to be made by answer and not by plea, is not a defect of form, to be taken advantage of by motion to strike off, but of substance, to be disposed of by setting the plea down for argument, which takes the place of a demurrer.</p>

<p>Patents — Invention—Pneumatic Tool.</p> <p>The Richards patent, No. 665,033, for a pneumatic tool, the only claimed novel feature of which is a permanently open live air port for admitting air to the rear of the piston to act as a cushion and reduce the jar, and to aid in starting the same, is void for lack of utility as well as invention, in view of the prior art; also held not infringed, if conceded validity, in view of its narrow scope.</p>

<p>Patents — Suit foe Infringement — Costs.</p> <p>Under Rev. St. § 4922 (U. S. Comp. St. 1901, p. 3396), where more than one claim of a patent is sued on in a bill in equity to restrain infringement, and one claim is held void, although others may be held valid and infringed, complainant is not entitled to recover costs; nor is he entitled to a decree, except on filing a disclaimer of the void claim, which otherwise invalidates the entire patent, and the better practice is to require such disclaimer to be filed before final decree.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 60S.]</p>

<p>In Equity. On motion for preliminary in j unction.</p>

<p>1. Shipping — Liability op Vessel Causing Dangerous Swells — Injury to Vessels at Pier.</p> <p>Vessels using a dock cannot be expected to so manage tbeir work as to receive extraordinary swells without harm, and a. vessel making such swells, although navigated in the usual manner, is responsible for their effects upon innocent vessels.</p> <p>[Ed. Note. — For cases in point, see Cent Dig. vol. 44, Shipping, § 345.</p> <p>Liability of vessel for injuries caused by creation of swell, see note to The Asbury Park, 78 C. C. A. 3.]</p> <p>2. Same.</p> <p>A steamship passing up the Hudson river at her usual speed of 16 miles an hour, and creating such swells on passing a pier that men unloading scows thereat were obliged to stop work for fear of being knocked overboard, held liable for injury caused thereby to one scow lying nearest to the shore, with little water under her and partly loaded with stone, by being pounded on the bottom with such force as to start her seams.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, § 345.]</p>

<p>Corporations — Service on Nonresident Corporation — Resident Sales Agent. 1</p> <p>A sales agent, acting in New York for a foreign corporation, is not a person upon whom process can be served in a suit in which the corporation is sought to be held liable as consignee of a cargo to be delivered in another state, in a transaction with which such agent had no connection.</p> <p>[Ed. Note. — Service on foreign corporations, see notes to Eldred v. American Palace Car Co., 45 C. C. A. 3; Cella Commission Co. v. Bohlinger, 78 C. C. A. 473.]</p>

<p>Shipping — Lay Days — Dispatch Money.</p> <p>Where by the terms of a charter party the lay days for discharging were to commence 24 hours after the vessel’s entry at the custom house, but both parties were ready and the discharge commenced immediately after her entry, for the purpose of computing dispatch money earned under the charter the lay days commenced at the time the discharge actually begun.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 590-592.]</p>

<p>In Equity. On demurrer to amended bill.</p> <p>On January 9, 1907, a written opinion was-filed in this cause overruling defendants’ demurrers to the original bill and bill of revivor, and requiring defendants to answer. This opinion will be found in 150 Fed. 644, and fully sets forth the facts as presented by the original bill. On April 4, 1907, the defendants filed their joint and separate answer to the original bill and bill of revivor, in which they admit that Frederick Fickey, ,Tr., was the owner in his lifetime of the 350 acres of land in Ritchie county; that lie made the oil and 'gas lease thereof to defendant Ahrens as charged. They allege that said lease was taken by Ahrens on behalf of a mining partnership composed of himself, James B. Ross, Henry W. Odell, George W. Sill, now deceased, and Curtis S. Barrett, operating a largo number of similar leases under the name of the Cairo Oil Company; that such partners as such company drilled sundry wells which produced and some still produce oil in paying quantities, and it is insisted that defendants are not sued as a partnership under the firm name of the Cairo Oil Company. The death of Fickey testate, as charged, is admitted; also that his will was probated in Baltimore city, Md., and in Randolph county, W. Ya., and that thereby he devised and bequeathed to his sister Ann R. Miller the residuum of his estate, and that such clause would ordinarily entitle her to all his property not disposed of. but it is insisted that such cannot be so in this case tor reasons stated. ’They admit that this will of Fiekey's devised this tract of land to Woods, trustee, in trust to sell and pay the proceeds thereof to the First Spiritualist Church of Baltimore; that Woods, as trustee, did sell and by deed conveyed said land to Ahrens and such deed was duly recorded in Ritchie county; (hat afterwards Ahrens sold an undivided three-fourths interest therein to Ross. Odell, Sill, and Barrett, and conveyed the same to them by deeds duly recorded. It is charged that the purchase from Woods was made by Ahrens, and his conveyances to Ross, Odell, Sill, and Barrett were executed for the purpose of carrying out the projects of said mining partnership to which the same now belongs. It is charged that the First Spiritualist Church of Baltimore is a Maryland corporation, and, on information and belief, it is denied that it is a religious denomination, or seeks to teach or spread the gospel of religion, and that the devise in its favor to Woods, trustee, was contrary to the laws of this state, or that Ann R. Miller under the residuary clause was entitled to this land. They admit they are claiming title in fee to this land, and are appropriating all the oil produced therefrom and in excess of what they would be entitled to under the oil lease from Fickey. They deny plaintiff’s right to any part of the oil and gas produced, and refuse to discover how much of such oil and gas has been produced until right in plaintiff is legally established. They admit Ann R. Miller to be dead, but deny that she made a will, and deny plaintiff’s right to institute suit as devisee. They admit death of Sill and that by his will he gave control of all gas and oil properties in .which he was interested to his executors named as defendants. They admit that they are refusing to pay any royalties under the lease or in any way recognizing plaintiff’s right to any part of the oil and gas, and charge that she is estopped, despite the illegality of said devise to Woods and of his deed to Ahrens, under the Constitution and laws of this state, to set up any such claim for that, they charge, Fickey was survived by two sisters, Sarah Elizabeth Hopkins and said Ann R. Miller, mother of the plaintiff; that the former, after Fickey’s death, filed her petition and caveat in the Maryland probate court contesting said will and seeking to revoke Woods’ letters testamentary; that Woods filed his answer to this petition, denying its allegations, to which answer the petitioner, Sarah Elizabeth Hopkins, filed a replication, and such proceedings were had that the issue joined was sent to the superior court of Baltimore to be tried by jury; that prior to this time Woods had filed his petition in the circuit court of Baltimore city alleging Fickey’s death, his will, and the probate and recordation thereof, his appointment thereunder as sole trustee to sell lands in West Virginia, including the 350-acre tract in controversy, make conveyances thereof, collect the proceeds and pay over the same to said Spiritualist Ohurch; that he had sold the 350 acres to Ahrens for $7,000, subject to the oil lease, and asking such court to advise and direct him in the administration of said trust; that said court by order of May 26, 1899, assumed jurisdiction and confirmed said sale to Ahrens; that Woods filed in said court his-report of sale of said lands, alleging himself to be ready to distribute the proceeds, but, inasmuch as said First Suiritualist Church was a religious sect which had not received the sanction of the Legislature to accept said gift, asking to be allowed to pay into court the fund until such legislative sanction could be obtained. It is then charged that this court referred Woods’ account to an auditor, who ascertained a balance from sale of lands.of $40,592.62, which included the $7,000 arising from the sale of the 350 acres in controversy to Ahrens, and the amount to be distributed to the church was permitted to be paid into the registry of the court to await the Legislature’s sanction and until the court’s further order. Defendants then charge that on May 23, 1901, while the petition and caveat of Sarah Elizabeth Hopkins was pending in the superior court of Baltimore awaiting a trial of the issue by jury, and while the proceeds of the sale of lands, including the $7,000 arising from the sale of the 350-acre tract, were in the registry of the said circuit court, the said two sisters, Sarah Elizabeth Hopkins and Ann R. Miller, and the First Spiritualist Ohurch of Baltmore, filed their petition in said circuit court of Baltimore, by which they showed to the court that the church was devisee under the will of Fickey and as such was entitled to the money arising from these sales of lands exceeding $40,000, the pendency of such caveat, the issues to be tried by jury arising thereout; that these two sisters were sole heirs at law of Fickey; that they were desirous that the will and the devise to the church be sustained inasmuch as the church was willing to pay $17,500 to Sarah Elizabeth Hopkins, who received little by the will, and asked that $17,500 be paid to the said church or to Charles R. Schirm, its attorney, to the end that the will might be established and .the devise to the church be confirmed; that, in accord with the prayer of this petition, it was ordered by this circuit court of Baltimore city that said sum of $17,500 be paid to Schirm, the church’s attorney, out of the moneys held in the cause, and this sum was immediately paid to Sarah Elizabeth Hopkins by said Schirm in accordance wish the prayer of said petition, and that by the payment thereof under the circumstances aforesaid the said Ann It. Miller ratified, approved, and confirmed the devise i_o Woods, trustee, for the purposes of the trust set forth in Fieke.v’s will, it is then charged that on May 25, 1801, a final order was entered upon the petition and caveat of Sarah Elizabeth Hopkins, by which the probate of the will was confirmed by consent of the church and the two sisters, by reason of all which it is alleged that plaintiff is estopped from assailing or questioning the validity of the devise and conveyance of, or distribution of, tlie proceeds of sales, of said lands.</p> <p>It is then alleged that plaintiff has no right to maintain this suit, for the said 350 acres of land has not been upon the land books of Ritchie county in either the names of Ann R. Miller or Mary Virginia Miller for five successive years since 1898 and assessed with taxes, and that, therefore, plaintiff’s title is forfeited and vested in the state. Records of the proceedings referred to from the orphans’ and circuit courts of Baltimore city are filed as exhibits with this answer. On May 6, 1007, the plaintiff filed exceptions to this answer relating to all allegations therein touching the mining partnership alleged to exist or to have existed between the defendants; to the allegations that Ahrens purchased the 350 acres of land for and on behalf of this partnership; to all allegations charging ratifica lion of the devise to Woods, trustee, for the benefit of the church, and claiming estoppel to deny its validity and to all allegations charging forfeiture of the land. In August following she, by leave, filed an amended bill in the nature of a special replication to the answer of the defendants, in which she charges: That the mining lease of Fiekey was made to Ahrens personally, and not to any copartnership. That none of the defendants are* designated or described as, co-partners in any of the deeds assailed, nor is the Cairo Oil Company mentioned or referred to therein. That long after the defendants had acquired claim of title and long after Ahrens had paid the purchase price to Woods, trustee, Sarah Elizabeth Hopkins did file caveat and petition in the orphans’ court of Baltimore to annul the order probating Fiekey’s will on tbe grounds of mental incapacity of, and undue influence over, testator and defective execution of the will itself. That Woods, trustee, answered this petition, and issues were framed and sent to the superior court of Baltimore for trial by jury. That these issues were (1) whether Fiekey was of sound mind and capable of executing the will; (2) whether the paper writing probated was executed by him as, and for, his last will and testament; (3) whether it was procured to be executed by him through fraud; and (4) whether its execution was procured by undue influence over him. That in the trial of these-issues the court directed Sarah E. Hopkins to be plaintiff and Woods, executor, to be defendant. That neither the plaintiff nor her mother, Ann It. Miller, were party to, or represented by counsel in, the controversy at any time. That during trial Sarah E. Hopkins and her counsel and the counsel for Woods and the church agreed to compromise the contest, and she, Mrs. Hopkins, agreed thereby to dismiss her petition and consented to accept $17,-500 as payment therefor. That thereupon Charles R. Schirm, president of the church and one of counsel for Woods, trustee -and executor, with other counsel for Woods and the church, prepared a petition in the names of Sarah Elizabeth Hopkins, Ann R. Miller, the First Spiritualist Church of Baltimore, addressed to the circuit court of Baltimore, praying said court to order $17,500 out of the $-10,000 standing to the credit of said church in said court to be paid to Schirm, alleging the petitioners, including Ann R. Miller, to bo desirous that the will and devise to the church be sustained, which petition they procured plaintiff and her mother to sign and file in said circuit court. That plaintiff and her mother did not desire said devise to be sustained. No order sustaining it was entered by said court. It bad no jurisdiction to sustain it. There was no issue in said court requiring or authorizing construction of said will as to the validity of said devise, and the statement of desire in the petition was immaterial and irrelevant.</p> <p>It is then charged that neither plaintiff nor her mother was In any way consulted, aided, or participated in the compromise. That the payment of the $17,500 to Mrs. Hopkins was not made by any 'agreement on their part, nor did they receive any part thereof or any other thing. That they did not know from what source the $17,500 was derived, did not know the 350 acres of land had been sold by Woods to Ahrens, did not know the nature of the petition signed by them, except that they were informed by an executor of the will of Fickey, acting as counsel for the trustee or church in the contest, that it was a paper to stop the attempt to break said will which they must sign, and that the money was not to come off Ann R. Miller. That her mother was an aged woman,, and neither she nor plaintiff were experienced in business, had never lived in West Virginia, nor prior to Fickey’s death owned any property there; knew nothing of the laws of that state touching the right of churches or their trustees to hold property; were wholly unadvised at the time of the invalidity of said devise, and, if they had been so advised, would never have signed said petition. It is then charged that, while they had no knowledge, counsel for the church and trustee did know of the invalidity of said devise under the laws of West Virginia, that plaintiff and her mother had made no claim to dictate the disposition of the funds in court, bad never appeared in said cause, and that there was no proper cause for them signing the petition, and that the procuring them to do so was to embarrass them, if possible, in the assertion of title to said land when, if ever, they should learn the truth and their right thereto. That none of the de-. fendants herein were parties to said proceeding in the superior or circuit courts of Baltimore. That defendants never notified plaintiff or her mother of the purchase by them of the land from Woods, trustee. That neither she nor her mother had ever known or heard of defendants at the time they signed the petition or for many months thereafter. That at the time Ahrens purchased from Woods he was-operating the land for oil and gas, and knew the value thereof. That he'and his codefendants were paying in royalties .alone for oil taken therefrom upwards of $285 per month. That the $7.000 paid was grossly disproportionate to its value, and it is charged that Ahrens was informed that the devise to Woods was invalid, and his purchase was made upon hazard and speculation, and not in good faith. That after the recording of the deed from Woods, trustee, to Ahrens, the land was transferred and has been assessed in the name of Ahrens and co-claimants for each and every year since, and no taxes are due thereon to the state. That such taxes have been so assessed and paid to, and by, defendants, who claim title under the same grant and the same title as plaintiff, and who were and are tenants or lessees of hers, in debt to her for rents and royalties to an amount of upwards of $25,000, which makes forfeiture under the circuriistances impossible. Plaintiff then tenders to allow for these taxes paid by defendants upon an accounting had.</p> <p>To this amended bill the defendants have filed a demurrer, assigning as grounds therefor that the matters set forth in said amended bill do not in law constitute defense to either the estoppel or forfeiture relied on by them in their answer, and the'cause has been submitted upon this demurrer.</p>

<p>This action is to recover $11,102.33 and interest from February 10, 1905, under section 60b and section 67e of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 562, 564 [U. S. Comp. St. 1901, pp. 3445, 3449]), and section 48 of the stock corporation law of the state of New York (Taws 1892, p. 1838, c. 688),</p>

In Equity. S. H. Odbert, Jr., and George T. Odbert, in August, 390G, filed their original bill in this court against William Marquet, and some months afterwards, by leave of court, they, with W. H. Warner and H. S. Odbert, Sr., joined as plaintiffs, filed an amended and supplemental bill in the cause against said William Marquet and the First National Bank of New Cumberland, in which bill the plaintiffs allege themselves to be citizens of Ohio, the defendant Marquet to bo a…

<p>In Bankruptcy. On application for revocation of discharge.</p>

On Motion to Quash Indictments. On or about April 30, 1908, Jesse C. Adkins, Esq., was duly appointed by the Attorney General of the United States to be a special assistant to the United States attorney for this district. In the language of the letter of designation such appointment was “to aid in the investigation of the ‘cotton leak matter,’ with a view of obtaining indictments — if the evidence warrants— against Moses Haas, Theo.

<p>1. Conspiracy — “Conspiracy to Defraud United States” — Elements of Offense.</p> <p>An indictment which charges a 'confederated effort to deprive the national government of the right and privilege of proper service in the Department of Agriculture by corrupting an employé of such department, and inducing him to secretly furnish advance information of crop conditions, contrary to the rules of the department, and to issue false reports to the public as to such conditions, charges a conspiracy to defraud the United States under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676).</p> <p>2. Bribery — Offenses Against United States — Person Acting in Official Function — “Acts for United States in an Official Function.”</p> <p>A person employed by the United States as an assistant statistician in the Department of Agriculture, in the performance of the duties with which he is charged by the rules of .the department, acts for the United States in an official function, within the meaning of Rev. St. § 5451 (U. S. Comp. St. 1901, p. 3680), making it a criminal offense to bribe any such person to induce him to do or to omit to do any act in violation of his lawful duty.</p> <p>3. Conspiracy — “Conspiracy to Commit Offense Against United States”— Bribery of Officer — “Lawful Duty.”</p> <p>In Rev. St. § 5451 (U. S. Comp. St. 1901, p. 3680), which makes it a criminal offense to give or offer bribes, etc., to induce any officer of, or person acting for or on behalf of, the United States in any official function to do or omit to do any act in violation of his lawful duty, the phrase “lawful duty” is not restricted to a duty imposed by statute, but is broad enough to cover a duty imposed by a lawful superior; and an indictment charging a conspiracy to induce an assistant statistician in the Department of Agriculture to furnish to the accused advance news of crop conditions, and to cause to be published false reports as to such conditions in violation of the rules of the department, to aid defendants in market speculations, by promising such employé a percentage of the profits of -such speculations, charges a conspiracy to commit an offense against the United States under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676).</p>

Pending the enlargement of its planing mill, the Wahlfield Manufacturing Company, in order to hold its employés together, employed them in the construction of the work. Some of these men belonged to the local carpenters’ union, some to the wood cutters’ union, and some were nonunion.

<p>1. Equity — Amenhment of Bill — Mistake in Description of Party.</p> <p>A Massachusetts corporation directed its solicitor .to institute a suit for infringement of a patent of which it was owner. Such corporation had succeeded one having precisely the same name, but organized under the laws of Delaware, and through a mistake of fact the solicitor described the complainant in the bill as a corporation of Delaware, but, on the fact appearing in the evidence, by leave of court amended the bill to conform thereto, and the case proceeded to final hearing. Held, that the amendment did not change the cause of action, but merely corrected a mistake of fact; that the Massachusetts, and not the Delaware, corporation, was in fact the complainant from the beginning; and that the amendment did not necessitate a dismissal.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 19, Equity, §§ 561-563.]</p> <p>2. Judgment — Prior Adjudication —■ Persons Concluded — Suit for Infringement.</p> <p>A decree adjudging the validity and infringement of a patent in a suit in which the manufacturer of the alleged infringing article, although not a party to the record, assumed and conducted the defense, employing counsel and paying the costs, is conclusive as to such issues as between a purchaser of the patent pending the suit, and a corporation which succeeded to the business, rights, and liabilities of such manufacturer, and, in fact, paid the final costs and counsel fees in such suit.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1.193.</p> <p>Operation and effect of decision in equitable suit for infringement of patent, seo note to Westinghouse Electric & Manufacturing Co. v. Stanley Instrument Co., 68 G. C. A. 541.]</p> <p>3. Same — Res Judicata — Matters Concluded.</p> <p>A decree is not the less conclusive on the issues made by the pleadings and determined because a party has failed to produce evidence on some of such issues.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 30, Judgment, § 1251.]</p>

In Equity. Suit in equity to set aside a transfer of property by the bankrupt, the Newport Knitting Company, to the National Herkimer County Bank of Little Falls, N. Y., in payment of a certain note before due and at -a time when the said Newport Knitting Company was insolvent and its insolvency was known to the bank, and to recover this said property as an illegal preference.

<p>1. Aliens — Naturalization—Power or Courts.</p> <p>, To become a citizen of the United States by naturalization is not a right, but a privilege, which can be granted by the courts only under provision of laws enacted by Congress.</p> <p>2. Same — Persons Eligible — Persons oe Japanese Race — “White Persons.”</p> <p>Rev. St. § 2166 (U. S. Comp. St. 1901, p. 1331), authorizing the naturaliza, tion of aliens honorably discharged from the military service of the United States, as limited by section 2169 of the same title, as amended in 1875 (Act Feb. 18, 1875, c. 80, 18 Stat. 318 [U. S. Comp. St. 1901, p. 1133]), by providing that “the provisions of this title shall apply to aliens being free, white persons and to aliens of African nativity, and to persons of African descent,” does not exteud the right of naturalization to a person of the Japanese race, although having an honorable discharge from the army of the United States.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7446-7447.</p> <p>Citizenship under state and federal laws, see note to City of Minneapolis v. Reum, 6 C. C. A. 37.]</p>

<p>1. Bankruptcy- — Exemption—Jurisdiction of Court.</p> <p>While a bankruptcy court bas no jurisdiction over property claimed by the bankrupt as exempt; once the right to it has been established, it may, preliminary to that, determine whether for any reason the right cannot be asserted.</p> <p>2. Same — Exemption Claimed from Fund in Court — Claim of Landlord Under Lease Waiving Exemption.</p> <p>Where the property of a bankrupt has been sold, and the bankrupt asserts a right to his exemption from the fund in court produced by such sale, the court has jurisdiction to determine his right as against other claimants of the fund, and the claim of a landlord who had a lien on the property for rent, and in whose favor the bankrupt had waived his right of exemption in the lease, is entitled to preference over the claim of exemption.</p>

<p>Officers — Soliciting Political Contribution in Public Office — Federal Statute.</p> <p>The personal delivery to a postmaster in his office of a sealed letter containing a request for a contribution for a political campaign constitutes a criminal offense, under Act Jan. 16, 1883, c. 27, § 12, 22 Stat. 407 (U. S. Comp. St. 1901, p. 1223), which forbids any person to solicit in any room or building occupied in the discharge of official duties by any officer or employe of the United States, “in any manner whatever,” any contribution for any political purpose whatever.</p>

Circuit Court of the United States for the Southern District of New York. .

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

<p>Patents — Infringement—Shock Absorber for Spring Vehicles.</p> <p>The Truffault reissue patents No. 12,437 (original No. 695,508), for a frictional retarding means for spring vehicles, and No. 12,399 (original No. 743,995), for an anti-vibration device for vehicles, both helé valid and infringed.</p>

<p>1. Patents — Double Use.</p> <p>The application of a device to a new use, that is so closely related to a prior one that the applicability of the device to the new use would occur to a person of ordinary mechanical skill, is only a case of double use, and does not involve invention.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, §§ 16, 17, 31, 32.]</p> <p>2. Same — Monopoly Not Aeeected by Nonuses.</p> <p>A patentee is under no obligation, during the life of his monopoly, to use or place upon the market a device or machine embodying his invention.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 38, Patents, § 268.]</p> <p>3. Same — Equivalents.</p> <p>A patent for an invention, which is neither primary nor a slight improvement on the prior art, but possesses substantial- patentable novelty, covers a reasonable range of equivalents.</p> <p>[Ed. Note. — For eases in point, see Cent. Dig. vol. 38, Patents, §§ 24, 43.]</p> <p>4. Same — Interpretation.</p> <p>In interpreting the claims of a patent, proper regard should be had to the natural import of the terms in question, the context and the specification.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 38, Patents, § 241.]</p> <p>5. Same — Invention—Infringement—Blind Stltoh Sewing Machines.</p> <p>Oí the Lewis patents No. 731,695, No. 731,696, and No. 746,853, claims' 1, 3, 11 to 17 inclusive, 21 and 22 of the first patent are held invalid l'or want of patentable novelty; claims 2, 4, 18, 19 and 20 of that patent are held valid and infringed; claims 1 and 2 of the second patent are held not infringed; claim 2 of the third patent is held infringed, and elaims 8 and 9 of that patent are held not infringed.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Sitippinci — Injury of Stevedore — Liability oír Vessel.</p> <p>A ship with an open between-decks having transverse beams across was under no duty to stevedores or others working about the vessel to lay a decking upon such beams nor was it negligence to permit dunnage, consisting of loose timbers and planks to be temporarily stowed on the beams while preparing the vessel for loading which would render her liable for the injury of a stevedore by stepping upon the end of one of such loose planks which tipped with his weight and allowed him to fall into the hold, where the presence of the dunnage was apparent, and it did not have the ax>pearance of a permanent decking.</p> <p>2. Same — Employé op Independent Contractors.</p> <p>When a vessel has employed independent contractors to load and stow the cargo and has turned the vessel over to them in a safe condition, she is relieved from liability for an injury to an employé of the stevedores arising from a danger created by the manner in which they did the work.</p> <p>3. Master and Servant — Injury to Servant — Negligence op Fellow Servant.</p> <p>A firm of stevedores loading, a ship by contract which furnished its employes with candles to be used in their work as in their own judgment they might be required cannot be held liable for the injury of an employé alleged to have been caused by insufficient light in the place where he was working, and which had been lighted by a fellow servant.</p>

<p>1. Eminent Domain — Construction of Statute — “Land.”</p> <p>In the eminent domain statute of Oregon, which authorizes certain classes of public service corporations to condemn land for their use, the word “land” is comprehensive, and includes any interest in land, and under it an easement or right of way may be condemned.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent. Domain, § 104.</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 3975-3984; vol. 8, pp. 7700-7701.]</p> <p>2. Same — Lands Subjf.ct to Prior Public Use — Telegraph Companies.</p> <p>Under B. & O. Comp. (Or) §§ 5074, 5075, as amended by act Feb. 25, 1907 (Sess. Laws 1907, p. 289), and section 4750, as amended by Act Feb. 17, 1.903 (Sess. Laws 3.903, p. Ill), which authorize telegraph companies generally to condemn lands necessary or convenient for their purposes, a telegraph company may condemn a right of way for its line over the right of way of a railroad company, also secured by condemnation under the same statutes, where the taking will not materially impair or interfere with the use of such right of way by the railroad company.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 107-120.]</p>

<p>Bankruptcy — Concealment op Property by Bankrupt — Evidence Considered.</p> <p>Bankrupts, who were partners conducting a clothing store, within the throe months preceding their bankruptcy purchased goods of the value of $8,100. The managing partner estimated rhe value of the stock previously in the store at $5,000, and about the same amount, or a little less, was turned over to the trustee. In the meantime the sales, as nearly as could be estimated from the bank deposits and claimed expenditures, no books having been kept, aggregated but about $1,700. including the profits. The bankrupts could give no explanation whatever of the shortage, of more than $3,400, which arose during such short time: but there was testimony that goods had been removed from tile store at night, and after the bankruptcy a store-containing similar goods was started in another town in the name of the wife of one of the bankrupts, and conducted by them. Held, that such evidence warranted a finding that the goods unaccounted for were concealed by the bankrupts and an order requiring them to turn the same over to their trustee.</p>

<p>1. Trade-Marks and Trade-Names — Names Subject to Appropriation-— “Ruberoid.”</p> <p>The word “Ruberoid” cannot be appropriated as a trade-mark for a roofing made of felt saturated with a gum composed of the residuum of animal fats, and which is in the nature of soft, flexible rubber; such word not being a fanciful, arbitrary term, but merely a mis-spelling of “rubberoid,” which is a common descriptive term signifying a resemblance to robber in appearance or characteristics, and the use of which belongs to the public.</p> <p>[Ed. Note. — Arbitrary descriptive or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.]</p> <p>2. Same — ITnfair Competition — Use oe Similar Descriptive Words.</p> <p>A manufacturer, which adopted the word “Ruberoid” as a trade-mark for a roofing material, which trade-mark was invalid as an attempt to appropriate the descriptive term “rubberoid,” is not entitled 1o an injunction on the ground of unfair competition against another manufacturer because of its use of the name “RubberO” to designate a similar roofing, which was plainly marked with defendant’s name as manufacturer, and where there was no imitation of the form, dress, or appearance of complainant's packages, beyond the fact that both complainant and defendant, in common witli all manufacturers of similar roofing material, put up their product in rolls.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of West Virginia, at Bluefield.</p>

<p>1. Ne Exeat — Weit eoe Arbest oe Bankrupt — Construction oe Bond.</p> <p>A bond given to secure the release of a bankrupt when arrested under a writ of ne exeat regno, and conditioned that he shall not depart from the district, is to be construed in accordance with its terms, and the departure of the bankrupt from the district without leave of the court is a breach thereof, although he is present to abide the judgment of the court when rendered.</p> <p>2. Bankruptcy — Powers oe Court — Chancer oe Bond.</p> <p>A court of bankruptcy, acting either upon the analogy of a court of equity or of the power possessed by courts of the United States in actions at law, has power to chancer a bond given for the release óf a bankrupt when arrested under a writ of ne exeat.</p>

On appeal by the importer from a decision of the Circuit Court (154 Fed. 858), affirming a decision of the Board of General Appraisers (G. A. 6,467; T. D. 27,673), which sustained the action of the collector in assessing a duty of 50 per cent, ad valorem upon feather boas, under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 425, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1675), and section 7, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693).

207) directing that the plaintiff in error, Tom Wah, .be confined in the jail of Franklin county, N. Y., until he expresses a willingness to answer various questions propounded to him in proceedings before a United States commissioner, looking to his deportation to the empire of China.

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

<p>Bankruptcy — Rigur to Dividend — Coddateral Controversy Between Creditors.</p> <p>The trustee in bankruptcy of a manufacturing corporation sold its plant to an agent, acting for a bank of which he was cashier and certain other banks, all of which were creditors. The sale was reported as for cash, and was so confirmed; but in fact the trustee accepted pass books from the hanks containing credits for their respective shares of the purchase money. The cashier of one of such banks acted in the matter without authority, and it afterward removed him and repudiated the transaction. A dividend having been ordered, the trustee refused to pay such bank, because of its refusal to accept a certain check drawn on itself. Meld, that such controversy was one wholly between the purchaser, who had not in fact paid all the purchase money, and such bank, which it was not within the jurisdiction or province of the court of bankruptcy to determine, but that the bank as a creditor was entitled to an order requiring the trustee to pay its dividend.</p>

<p>1. Fines — Effect of Death of Defendant.</p> <p>The purpose of a fine imposed in a criminal case is the punishment of the defendant personally for the offense of which he has been convicted, and, while the federal statutes provide for the collection of a fine by execution as in case of civil judgments, there is no provision making it a debt, and, where a defendant upon whom a fine has been imposed by a federal court dies before the fine has been paid or collected, .the cause abates, and the fine cannot be collected from his estate.</p> <p>2. Words and Phrases — “Fine.”</p> <p>A fine is a pecuniary punishment imposed by a lawful tribunal upon a person convicted of crime or misdemeanor.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 3, pp. 2811-2813.1</p> <p>8. Same — “Imprisonment.”</p> <p>Imprisonment, in Its general sense, is 1he restraint of one's liberty. As a punishment it is a restraint by judgment of a court or lawful tribunal, and is personal to the accused.</p> <p>[Ed. Note. — E’or other definitions, see Words and Phrases, vol. 4, pp. 3445-3447.]</p>

<p>1. Banks and Banking — Liability of Directors of National Bank — Suit on Behalf of Stockholders.</p> <p>■ A loss resulting to a national bank from bad loans, which were not repaid, cannot be said to have been caused by a violation of law by the directors in failing to keep on hand the legal reserve required by Rev. St. § 5191 (U. S. Comp. St. 1901, p. 3486).</p> <p>Hid. Note. — Personal liability of directors of banks, see notes to Robinson v. Hall, 12 C. C. A. 680; Warner v. Penoyer, 33 C. C. A. 230.]</p> <p>2. Same — Pleading—Sufficiency of Bill.</p> <p>A bill on behalf of the stockholders of a national bank to charge the directors with liability for losses alleged to have been due- to their negligence or misconduct held to set out the details of the several transactions relied on with sufficient fullness.</p> <p>3. Same.</p> <p>In such a bill, charging the making of illegal loans by defendants as directors, it is not necessary to allege a formal vote of defendants authorizing or approving such loans.</p> <p>4. Same — Common-Law Liability of Directors.</p> <p>The provisions of the national banking act defining the duties of the directors of such banks do not relieve them from their common-law liability for a failure to diligently and honestly discharge their trust.</p> <p>5. Abatement and Revival — Death of Party — Survival of Cause of Action —Joinder of Defendants.</p> <p>A cause of action against a director of a national bank to recover for money lost to the bank through his negligence or misconduct survives against his executors, and they may be joined as defendants with the surviving directors in an action thereon.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 322-329.]</p>

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

<p>Petition for Review.</p>

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

<p>Petition for Review.</p>

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

<p>Petition for Revision of Decree of the District Court of the United States for the Middle District of Pennsylvania.</p>

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

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

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

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>Submitted without argument.</p>

<p>In Equity.</p> <p>Motion for preliminary injunction.</p>