Volume 164 — Federal Reporter

<p>Appeal from the Circuit Court of the United States for the District of South Carolina, at Charleston.</p> <p>In 1892 the South Carolina Legislature passed an act establishing what was called a “State Dispensary.” Under the provisions of this act private inn dividuals were forbidden to engage in either the manufacture or sale of' intoxicating liquors of all kinds and the right to carry on the liquor business in the state of South Carolina was reserved to the state. The act provided for a board of control of the dispensary, consisting of the Governor, the Comptroller General, and Attorney General, and to this board was committed the duty of conducting and managing the State Dispensary. The business of the dispensary, under and by virtue of the act referred to, was inaugurated under the control of the agencies designated and became the only legalized method of dealing in intoxicating liquors within the state. Among other provisions of the act were that a state commissioner should be appointed by the Governor, and that said commissioner should turn over monthly to the Treasurer of the state the amount received from sales of liquors made by him, and the Treasurer was required to keep a separate account of said fund, and the commissioner was authorized, with the approval of the board of control,' from time to time to draw warrants upon the funds in the hands of the Treasurer for the amounts necessary to pay the expenses incurred in conducting the business. It was also provided that in counties complying with the requirements of the act county dispensaries might be established, and these latter were required to buy supplies of liquor from the State Dispensary, and the State Dispensary was required to sell to the county dispensaries supplies and intoxicating liquors at a profit.of not more than 50 per cent. At the outset there was appropriated by the state for the purpose of starting the dispensary system the sum of $50,000, wfiich amount has since been repaid to the state from the dispensary receipts. In the year 1896 the board of control was changed, so that, instead of being constituted as above set forth, it was made to consist of five members, to be elected by the General Assembly, each of said members being required to give a bond in the sum of $10,000, and the control and management of the dispensary was conferred by law upon them. This board, as above stated, was required to furnish liquor to the county dispensers, and the latter were required to remit the net proceeds of the sale of liquor to the State Treasurer. All bills for the purchase of liquor were paid by the State Treasurer upon warrants drawn by the commissioner. Thus the sale of intoxicating liquors was conducted in South Carolina under the several acts of the Legislature of that state and by the machinery provided for the purchase of liquors by the commissioner under the direction of the board of control of the Statq Dispensary and sale of liquors by the State. Dispensary to the county dispensers, who, in turn, sold and remitted the money arising from the sales to the State Treasurer; the expenses of operating the State Dispensary, together with all bills for spirits purchased, being paid by the State Treasurer from the dispensary fund, which was kept separate, upon warrants of the commissioner, approved by the board of control. By the acts of 1902 all net income derived by the state from the sale of liquors in the state under the dispensary law was required to be apportioned among the several counties of the state for the benefit of the common schools in proportion to the deficiencies existing in the counties, etc.; and the said acts further required that the directors of the State Dispensary should pay over to the State Treasurer by January 1, 1904, in equal semiannual payments, all of the school fund reported by them in excess of $400,000 for the oenefit of the common schools of the state, to be apportioned as above stated. The business óf the State Dispensary continued from the date of its establishment in 1892 until the year 1907, when the General Assembly of South Carolina passed an act entitled “An act to declare the law in reference to, and regulate the manufacture and sale, use, etc., of, liquors and beverages within the state and police the same.” By section 47 of this statute it was enacted that the State Dispensary be abolished. This act was approved on the lGil) day of February, 1907. Sess. Laws 1907, p. 480. At the same session of the Legislature another act was passed (Sess. Laws 1907, p. 835), which was approved on the same day as the last-named act, entitled “An act to provide for the disposition of all property connected with the State Dispensary and to wind up its affairs,” which is as follows:</p> <p>“Session Laws S. C. 1907. No. 402.</p> <p>“An act to provide for the disposition of all property connected with the State Dispensary, and to wind up its affairs.</p> <p>“Section 1. Be it enacted by the General Assembly of the state of South Carolina, that immediately upon the approval of this act, the Governor shall appoint a commission of well-known business men, consisting of five members, none of whom shall be members of the General Assembly, to be known as the State Dispensary Commission, who shall each give bond for the faithful performance of the duties required, in the sum of §10,000.</p> <p>“Sec. 2. Said commission shall immediately organize by the election of a chairman aDd a secretary from their number.</p> <p>“Sec. 3. It shall be the duty of said commission to close out the entire business and property of the State Dispensary, except real estate, and including stock in the several county dispensaries by disposing of all goods and property connected therewith, by collecting all debts due and by paying from the proceeds thereof all just liabilities at the earliest date practicable. Said commission shall be at liberty to make such disposition upon such terms, times and conditions, as their judgment may dictate: Provided, that no alcoholic liquors or beers shall be disposed of within the state except to county dispensarj boards, and all liquors illegally bought by the present management may be returned to the persons, firms or corporations from whom purchased, and for determining the legality of said purchases, they are hereby authorized and directed to investigate fully the circumstances surrounding all contracts for liquors, and to employ such assistant counsel as may be approved by the Attorney General, and such expert accountants and stenographers and any other person or persons the commission may deem necessary for the ascertainment of any fact or facts connected with said State Dispensary and its management or control at any time in the past, and to take testimony, either within or without the state: Provided, further, that all payments shall be made in gold and silver coin of the United States, in United States currency, or in national bank notes.</p> <p>“Sec. 4. The compensation of each member of said commission shall bo $5 per day for each day actually employed about the business, and actual expenses for the time engaged: Provided, that they shall receive no compensation for services rendered on this commission after January 1, 1908.</p> <p>“Sec. 5. Tlie said commission shall pay to the State Treasurer, after deducting their compensation and other expenses allowed by this act, all surplus funds on hand after paying all liabilities.</p> <p>“Sec. 6. The said commission is hereby authorized to employ such bookkeepers, accountants, clerks, assistants and employes as they may deem necessary, and to contract with them at the time of employment for their compensation.</p> <p>“Sec. 7. The said commission shall submit to the 'Governor at the earliest day practicable, a complete inventory of ail property received by them, with a statement of the liabilities of the State Dispensary, and as soon as. the affairs are liquidated, a report in full of their actings and doings.</p> <p>“See. 8. That said commission shall have full power and authority to investigate the past conduct of the affairs of the dispensary, and all the power and authority conferred upon the committee appointed to investigate the affairs of the dispensary, as prescribed by an act to provide for the investigation of the dispensary, approved January 24, A. I>. 1906, be, and hereby is, conferred upon the commission provided for under this act: Provided, that for the purpose of the investigation of the affairs of the dispensary as herein provided, each and every member of said commission be, and hereby is, authorized and empowered, separately and individually, or collectively, to exercise the power and authority herein conferred upon the whole commission.</p> <p>“Approved the 16th day of February, A. D. 1907.”</p> <p>By virtue of this act W. J. Murray, John McSween, B. F. Arthur, O. K. E-Ienderson, and Avery Patton were duly appointed and qualified as commiSr sioners, and they entered upon the discharge of their duties as such. They proceeded to sell the personal property and collect the debts due to the dispensary, and the State Treasurer of South Carolina paid over to them about $129,000 which he had in hand standing to the credit of the dispensary fund, and altogether, from the sale of the property, the collection of debts, and the amount paid over by the State Treasurer, there came to the hands of these commissioners about the sum of $800,000 to be administered by them under the provisions of the law above set out. The money thus realized from time to time, received by the defendants, who constitute the State Dispensary Commission, was, at the time of the commencement of this suit, in the hands of the commission or deposited in banks in the state of South Carolina, subject to the check of the commission, and no part of the said money is in the treasury of the state of South Carolina, or has been in any way mingled with the funds of the said state, but has been kept separate and apart in the hands of said commission, subject to its absolute control and disposition. The total amount of' claims for liquors and supplies furnished, outstanding against the State Dispensary, was about $600,000, held by various corporations, partnerships, and persons, among whom were the original complainants and the several intervening complainants in this action. It further appears from the record that the complainants furnished to the defendants, at their request, itemized statements of their accounts against the State Dispensary, and the said accounts were, by comparison with the books kept by the dispensary, found to be in substantial agreement with said books. It further appears that the accounts of complainants were audited at the instance of the defendants and that the several amounts which are claimed were found to be correct.</p> <p>As the several complainants and interveners in this action base their rights practically upon the same grounds, we will, in order to avoid confusion in the further presentation of the case, treat alone of the claim of the Fleischmann Company, one of the original complainants; the balance due said company being, as alleged, the sum of $66,501.10, which said claim, as before stated, was presented to the Dispensary Commission, was compared with the books kept by the State Dispensary, and also audited, as above stated, and found to be, as alleged, substantially correct. This complainant alleges further that this claim was duly presented to the Dispensary Commission, and payment thereof demanded, before the bringing of this action, and defendants refused to pay the same, or any part thereof. It further appears that at the time the defendants took charge of the affairs of the State Dispensary, to close them up under the provisions of the act of the Legislature, there was, among other liquors on hand, some of that which had been bought from the Fleischmann Company, and by agreement between the complainant and the commission this was returned to the complainants and credited, on the claim of the latter. It also appears that other liquors and supplies for which the complainant the Fleischmann Company makes claim had been disposed of by the State Dispensary authorities, in the course of the operations of the dispensary, before the defendants in the present action took charge.</p> <p>In order to give a full understanding of the • questions presented, we set out the original bill filed by the Fleischmann Company, with the answer of the respondents thereto. This complainant afterwards filed an amended and supplemental bill'; but it is not deemed necessary to set it out, as the original bill and return, or answer thereto, together with the statement of facts heretofore given, present clearly the questions to be considered.</p> <p>Bill of complaint, filed January 23, 1908:</p> <p>“In the Circuit Court of the United States for the District of South Carolina. Fourth Circuit, at Columbia.</p> <p>“The Fleischmann Company, Complainant, v. W. J. Murray, John McSween, B. F. Arthur, C. K. Henderson, and Avery Patton, Constituting the State Dispensary Commission of South Carolina, and W. J. Murray, John Mc-Sween, B. F. Arthur, C. K. Henderson, and Avery Patton, Individually, Defendants. In Equity.</p> <p>“To the Honorable Judges of the Circuit Court of the United States for the District of South Carolina:</p> <p>“The Fleischmann Company, a corporation organized and existing under and by virtue of the laws of the state of Ohio, and a citizen of said state, brings this its bill against W. J. Murray, John McSween, B. F. Arthur, C. K. Henderson, and Avery Patton, constituting the State Dispensary Commission of the state of South Carolina, and said defendants individually, all of whom are citizens and residents of said state of South Carolina, and thereupon your orator complains and says:</p> <p>“(1) That your orator, the Fleischmann Company, was at all times hereinafter mentioned, and still is, a corporation duly created, organized, and existing under and by virtue of the laws of the state of Ohio, and is a citizen and resident thereof, having its principal office in the city of Cincinnati, in said state, and that the defendant W. J. Murray is a citizen and resident of the state of South Carolina, residing at Columbia, in said state; the defendant John McSween is a citizen and resident of said state of South Carolina, residing at Timmonsvillo, in said state; the defendant B. F. Arthur is a citizen and a resident of the state of South Carolina, residing at Union, in said state; that the defendant C. K. Henderson is a citizen and resident of the state of South Carolina, residing at Aiken, in said state; and the defendant Avery Patton is a citizen and resident of the state of South Carolina, residing at Greenville, in said state.</p> <p>“(2) And your orator further shows that many years prior to the passage of the act hereinafter mentioned there was duly created and established by law in the state of South Carolina an institution for the purpose ol' buying, selling, and distributing alcoholic liquors within said state, known as the ‘State Dispensary,’ and that by the terms of the law creating and establishing said dispensary the managing agents or officers thereof were duly authorized, di rected, and empowered to purchase in its name and on its behalf all kinds of spirituous, vinous, and malt liquors, and to pledge the credit of the said State Dispensary for the payment of the same.</p> <p>“(3) And your orator further shows that the General Assembly of the state of South Carolina, at its session held in the year 1907, for the purpose of discontinuing said State Dispensary, disposing of its assets, and paying off its creditors, passed an act entitled “An act to provide for the disposition of all property connected with the state dispensary and to wind up its affairs, which said act is in words and figures as follows: [The bill here sets out in full the act of the South Carolina Legislature of February 16, 1907, which is copied in the statement of facts hereinbefore.]</p> <p>“(4) That the said act was duly approved on the 16th day of February, 1907, and within a short time thereafter the commission therein provided for was created by the appointment of the defendants as commissioners, and said defendants, having duly qualified and organized pursuant to said act, became and do now constitute the State Dispensary Commission, and as such are charged with the execution of all the powers conferred and the performance of all the duties imposed upon said commission by the said act.</p> <p>“(5) That immediately upon their qualification and organization as herein-before alleged the defendants entered upon the discharge of said duties, and in accordance with the directions contained in said act took possession and control of the entire business and property of the State Dispensary, and have, as your orator is informed and believes, sold said property and collected the debts, due to said State Dispensary, and the proceeds arising from said sale and collection are, or ought to begin the hands of said defendants, applicable to the payment of the liabilities of said State Dispensary, and to the other uses and purposes designated in said act.</p> <p>“(6) And your orator further shows that, prior to the passage of the said act of 1907, providing for a sale of the property of the said State Dispensary and the winding up of its- affairs, and while the said State Dispensary was still engaged in business, your orator sold and delivered to it, at prices which were entirely reasonable and mutually satisfactory, a large quantity of valuable whiskies and other spirituous liquors, all of which whiskies and liquors were received and accepted by said State Dispensary, and had been, except as hereinafter alleged, sold or disposed of by it at a substantial profit; that the sales so made by your orator were in every respect regular and legal, and were made upon orders properly and lawfully given by the persons duly authorized to give such orders; and the whiskies were delivered to said State Dispensary under a contract, promise, and agreement that your orator should be paid the prices charged therefor, and the said State Dispensary became, and was at the time of the passage of said act, and at the time the defendants took charge of said business and property, and still is, justly indebted to your orator for the same.</p> <p>“(7) That within a short time after the appointment and qualification of the defendants and their organization as the State Dispensary Commission your orator, being desirous of having its account against the State Dispensary settled, and in order that all differences might be reconciled, or disputes, if any, adjusted, and the amount due to your orator fixed and determined, filed with said defendants an itemized statement of its account, and requested the defendants to have the same audited, so that it could be passed upon; that thereafter the defendants notified your orator that there was still on hand and undisposed of a portion! of the whisky which your orator had sold to the said State Dispensary, and asked your orator to take back said whisky and allow a credit therefor, then and there holding out as an inducement to your orator for so doing that if they were permitted to return said goods it would greatly facilitate a settlement with your orator, and enable them to make a much earlier payment of the account; and your orator, being anxious to remove every possible cause of delay in obtaining a settlement of its claim, did take back all of said goods and give credit therefor at the invoice price thereof.</p> <p>“(8) That on or about the 24th day of May, 1907, the defendants advised your orator that, in comparing its account with the books kept by the State Dispensary, they had discovered a discrepancy between the amount claimed by your orator and the amount shown by said books to be due of $292.34. growing out of certain credits to which the said State Dispensary was entitled, and which your orator had failed to allow, but that in every other particular your orator’s account was, according to the audit made by the defendants, correct, and corresponded with the said books, and that if your orator would allow said credit there would be no further dispute as to the amount due to your orator; and your orator, being still anxious to get its account adjusted and receive payment of the same, did consent that said sum might be deducted, and thereupon it was agreed between your orator and. the defendants that there was op the date above mentioned a balance of $66,-501.19 justiy due and owing to your orator by the said State Dispensary, which said sum the defendants then and there agreed to pay; but, notwithstanding your orator has made frequent demands on them, they have refused and still refuse to pay the same.</p> <p>“(9) And your orator further shows that, as it is informed and believes, the defendants have received from the sale of the property of the 'State Dispensary and the collection of debts due it, and now have in their hands, a large sum of money, amounting to upwards of $800,000, and that this sum, if properly preserved and applied, will be amply sufficient to pay off and discharge the claim of your orator and all other just liabilities of said State Dispensary, which said liabilities do not, as your orator is informed and believes, exceed the sum of $609,000, all of which facts will more fully appear from the report made by the defendants to the Governor of the state of South Carolina on or about the 4th day of January, 1908, to which report reference is hereby made for the ascertainment of said amounts.</p> <p>“(10) That, as your orator is advised and believes, the money received by the defendants and held by them as hereinbefore alleged, having been placed in their possession for the specific purpose of paying all the just liabilities of the State Dispensary, became and now constitutes a trust fund in the hands of said defendants, and the said defendants hold the same as trustees for your orator and (he other creditors of the said State Dispensary, and, the amount due your orator having been determined and agreed upon, your orator is entitled to have said amount immediately paid to it out of said fund.</p> <p>“(11) And your orator further shows that said defendants are abusing the trusts reposed in them by wrongfully and unlawfully failing and refusing to carry out the terms and provisions of said act of 1907 of the General Assembly of the state of South Carolina, and that the greater part of the money which the defendants have received as aforesaid has been on deposit for many months, and is now on deposit, in certain banks in the state of South Carolina, in which banks the said defendants, or some of them, are respectively interested, either as officers, stockholders, or directors; that a large sum of said money is now in the National Loan & Exchange Bank of Columbia, in which bank the defendant Murray, who is the chairman of the Dispensary Commission, is a large stockholder and a director; that another large portion of said money is deposited in the Bank of Timmonsville, in which said bank the defendant McSween is a stockholder and a director, and is also its president; that another large portion ol' said money is on deposit in the People’s Bank of Union, in which bank the defendant Arthur is a stockholder and a director, and also its president; that another large portion of said money is on deposit in the Bank of Aiken, in which bank the defendant Henderson is a stockholder and director; that, another portion of said money is deposited in the Piedmont Savings & Investment Company of Greenville, in which the defendant Patton is a stockholder and director; and a portion of said money is deposited in the Merchants’ & Farmers’ Bank of Cheraw, in which bank one W. F. Stevenson, who resides in the said town of Cheraw, and who is the attorney for the defendants constituting the State Dispensary Commission, is a stockholder and director, and also its president. That the said defendants llave wrongfully, unlawfully, and fraudulently declined and refused to make distribution of the said money among the creditors of said State Dispensary, or to pay the claim of your orator, or any of the other of said creditors, for the reason, as your orator verily believes and alleges the fact to be, that there has been formed and now exists an unlawful understanding or agreement between the defendants, by which it has been decided that the money deposited in the hanks above named shall be held and allowed to remain as long as possible in said banks and be used by them for their own benefit and profit.</p> <p>“(12) And your orator further shows that there are a large number of persons claiming to be creditors of the said State Dispensary and seeking to collect from the defendants various sums, ranging in amount from one to many thousand dollars; that some of said persons, for the purpose of compelling the payment of their debts, have already brought suit against said defendants, and others are, as your orator is informed and believes, threatening to institute similar actions; and if the defendants shall be required or permitted to defend a multiplicity of such suits in order to determine the validity of each claim against them, and shall be allowed, as they have declared their intention to do, to defer the payment of all claims until the final termination of said suits, a large part of the funds in their hands will be wasted in expensive litigation and court costs, and a great wrong, injury, and injustice will be done to your orator and the other creditors, whose claims are admitted to he just and correct, and about which there is and can be no dispute.</p> <p>“(13) And your orator further shows that, although the said defendants have in their hands the large sum of money hereinbefore mentioned, and although they are wrongfully and unlawfully retaining said money for the use and benefit of institutions in which they are personally interested, and are wrongfully and unlawfully refusing to carry out and perform the duties and trusts imposed upon them by the General Assembly of the state of South Carolina, the said defendants have only given bonds in, the sum of $10.000 each, and they are now, as your orator is informed and believes, threatening to take measures to have an act passed by the General Assembly of South Carolina terminating their commission and providing for a transfer of the money in their hands to the State Treasurer, which money ought to be applied to the payment of the debts due to your orator and the other creditors of the said State Dispensary, and thus, if possible, place the same beyond the reach, or by some other means, impair the contract rights, of your orator and said other creditors; and, as your orator is advised and believes, unless the defendants are restrained and enjoined from exercising any control over or in any way interfering further with said fund, the said defendants will waste or wrongfully divert the same, to the great and irreparable damage of your orator and all the other creditors of the State Dispensary.</p> <p>“(14) And your orator further shows, upon information and belief, that there is a very wide difference between the opinions of the defendants as to the duties required of them as members of the Dispensary Commission, and the proper manner of performing said duties; that the defendant B. 1?. Arthur, although still a member of said commission, has declined and refused to take any further part in the proceedings thereof, and has not, for at least eight months, attended any of the meetings of said commission, or participated in any of its deliberations; that the other four defendants, as members of said commission, are about equally divided as to what course ought to be pursued with reference to the ascertainment of the just liabilities of the State Dispensary and the payment of the same, and that by reason of such division the said defendants have become engaged in a dispute among themselves, which renders it almost impossible for them ever to agree upon any plan by which to carry out the provisions of the act of 1907 of the General Assembly of South Carolina and to execute the trust imposed upon them by said act; and, as your orator is advised and believes, unless this honorable court shall take charge of the trust fund now in the hands of the defendants as members of said commission, and administer the same in accordance with the provisions of the said act of 1907, your orator and the other creditors of said State Dispensary will, to their great and irreparable damage, be indefinitely delayed in the collection of their claims.</p> <p>“(15) And your orator further shows, upon information and belief, that the defendants now allege and pretend that there were certain irregularities and fraud in connection with some of the sales of liquors made to the former officers of the State Dispensary, and the defendants have entered into an un lawful combination or conspiracy with one J. Fraser Byon, the present Attorney General of the state of South Carolina, and under whose advice said defendants are acting, to aid the said Lyon in carrying out his frequent threats to prosecute and imprison said officers, and to that end have agreed among themselves and with said Lyon to withhold the payment of the claim of your orator and all other creditors until the said Lyon has obtained such evidence as may be sufficient to prove the guilt and secure the conviction of said officers ; that under and pursuant to this agreement, combination, or conspiracy the defendants have refused and are still refusing to carry out the provisions of the act of 1907, and to pay the claim of your orator and the other just liabilities of said State Dispensary, although the account of your orator has been duly audited, the amount claimed admitted to be justly due and payable as hereinbefore alleged, and notwithstanding the fact that the defendants have never made any pretense or claim that either of the sales made by your orator was in any respect irregular, illegal, or fraudulent, and notwithstanding the frequent promises and agreements by the defendants to pay the amount so admitted to be due.</p> <p>“(16) And your orator further shows that, notwithstanding the fact that the amount claimed by your orator has been admitted by the defendants to be a just liability against the said State Dispensary, and now due and payable out of the fund in their hands, and. although the said defendants have never claimed or pretended that said amount was subject to any offsets, credits, or counterclaims, your orator is ready, able, and willing, if this honorable court shall direct that the amount due to it be immediately paid, to execute and deliver to the said defendants a good and sufficient bond in such sum as may be required by this honorable court, to the full amount of its claim, if necessary, conditioned to pay to the said defendants all such amounts as may be, upon the hearing of this cause, found and adjudged to be due by your orator to these defendants by way of offsets, reduction, credit, counterclaim, or otherwise.</p> <p>•‘In consideration whereof, and forasmuch as your orator is without remedy and can obtain adequate relief only in a court of equity, and to the end that the defendants may be prevented from committing further wrongs and trespasses against the rights of your orator, and for the purpose of preserving the funds in the hands of the defendants and of enforcing the rights and equities of your orator in and to the same, and preventing further waste, loss, and damage, by reason of the facts alleged in this bill, your orator prays:</p> <p>“(1) That this honorable court will either forthwith appoint a receiver to take charge of and administer as a trust fund all the money now in the hands of the defendants arising out of the sale of property belonging to the State Dispensary of South Oarolina, or from the collection of debts due it, or direct and decree that the amount admitted to be due to your orator be immediately paid to it upon the execution by your orator of. a good and sufficient bond, to be approved by the court and conditioned to pay to the defendants all such sum or sums as may be found to be due them by your orator and adjudged to be paid by it.</p> <p>“(2) That the defendants, their agents, servants, attorneys, and employés be restrained and enjoined from disposing of or paying out, or in any manner interfering further with, said fund, or any part thereof, except to transfer the same to the receiver appointed by the court, or to pay the amount due to your orator, as the court maj^ direct.</p> <p>“(8) That it be referred to a master to ascertain and determine the amount due to your orator for goods sold and delivered by it to the said State Dispensary, and that a decree be entered ordering and directing that the amount so found to be due be immediately paid to your orator; that the defendants be required to set forth an account of all and every sum or sums of money received by them, or either of them, or which ought to have been received by them, or which has been received by any person or persons, by their or either of their orders, or for their or either of their use, from the sale of any property of the said State Dispensary, or the collection of any debt or debts due to it, and when and from whom, and from what in particular, all and every such sums wore respectively received, and how the same respectively have been applied or disposed of; and that your orator have such other and further relief in the premises as the nature of the circumstances of this case may require, and as to the court may seem meet and proper.</p> <p>“And may it please your honors to grant unto your orator a writ of injunction, conformable to the prayer of this bill, and also a writ of subpoena,, directed to the said defendants, commanding them, and each of them, to appear and answer this bill of complaint, but not under oath, answer under oath being hereby expressly waived, and to stand to, perform, and abide by such orders, directions, and decrees in the premises as to the court shall seem meet or be required by the principles of equity and good conscience.”</p> <p>Return of defendants, filed January 2!), 1908:</p> <p>“In the Circuit Court of the United States for the District of South Carolina.</p> <p>“The Fleischmann Company, Complainants, v. W. J. Murray et al., constituting the State Dispensary Commission of South Carolina, and W. J. Murray et al., Individually, Defendants. In Equity.</p> <p>“Come now' W. J. Murray, John McSween, B. F. Arthur, C. K. Henderson, and Avery Patton, constituting the State Dispensary Commission of South Carolina, and W. J. Murray, John McSween, B. F. Arthur, C. K. Henderson, and Avery Patton, and without submitting themselves to the jurisdiction of this honorable court, but on the contrary, insisting that it is without juriSf diction in the premises, and reserving the right to demur, plead, or answer in accordance with the rules of practice and procedure which obtain in this court, and solely in response and by way of a return to the rule to show cause, granted on the 21st day of January, 1908, ‘why the relief prayed for in the said bill should not be granted and why a receiver should not be appointed by this court to take charge of and administer all of the funds now in the hands of said defendants arising from the sale of property belonging to the State Dispensary or from the collection of any debts due it,’ and for cause in this behalf these defendants say:</p> <p>“(1) That the said plaintiff has not by and in said bill stated such a cause as doth or ought to entitle it to any such relief as is thereby sought or prayed for from or against these defendants, or either of them.</p> <p>• “(2) That it appears from the allegations contained in the complainant’s bill that the said suit is a suit in fact and in legal effect against the state of South Carolina, and not against these defendants, or either of them, except as in their official capacity they represent said state, and therefore is contrary to the provisions of the eleventh amendment to the Constitution of the United States of America.</p> <p>“(3) That it appears from the allegations in said bill that the said suit is a suit against the state of South Carolina, for that.the purpose and intention thereof is to administer the funds and moneys belonging to the state of South Carolina and in the custody of its' duly authorized agents, to coerce the state of South Carolina in the payment of the alleged debt of the plaintiff, and to restrain a duly‘constituted court of the state, in violation of section 720 of the Revised Statutes,</p> <p>“(4) These defendants deny the allegations in paragraph 2 of the bill of complaint, and they aver that ‘the manufacture, sale, barter, and exchange of intoxicating liquors was prohibited, and the state of South Carolina in the exercise of her police power engaged in and monopolized the liquor traffic, and to that end appointed and established the State Dispensary and appropriated $50,000 for commencing said business. Said dispensary, however, had no existence or entity or credit separate ^nd apart from the said state. It was a mere agency of the state for the conduct and operation of her business. The business belonged to the state. All purchases therefor were made by the state and upon her credit. All profits of the business and the stock on hand at the time the State Dispensary was abolished belonged to the state.</p> <p>“(5) Under the act creating the State Dispensary Commission, and in the exercise of the powers, rights, and the duties conferred upon said commission and these defendants by said act, and by the act approved January 24, 1906, these defendaiits closed out the entire business and property of the State Dispensary, except real estate, and collected- a large part of the debts, and thus the fund in controversy was realized.,</p> <p>“(6) These defendants deny the averments" contained in paragraph 10 of the bill of complaint, and say that said funds are not trust funds, and that these defendants do not hold or control the same, as trustees, either for the complainant or other alleged, creditors of the state or for any one else. They aver that said funds are in their custody or control as officers of the state and at the will of the state, and are to be disposed of in accordance with the provisions of the act creating the commission, unless said act is amended or repealed. They further aver that the said funds are the property of the state of South Carolina, and are in the possession of the said state, as the control or possession of the said funds are in the defendants as the officers- of the state, and their possession or control is the possession or control of the state.</p> <p>“(7) They further aver that they, as individuals, have no interest whatever in the litigation or in the funds in controversy, and that their sole duty and liability with respect to said funds is to the state of South Carolina, to her General Assembly and Governor; that the claims of the plaintiff and all others for goods sold to the State Dispensary are against the state, and not against the State Dispensary, or against the State Dispensary Commission, or against these defendants, eithér in their official or individual capacity. Neither the State Dispensary Commission, nor these defendants, as officers or individuals, sustain any relation or privity to the plaintiff, contractual or otherwise. They owe no duty to, and are under no liability to, the plaintiff or to any other person holding claims of like character against the state.</p> <p>“(8) These defendants further say that they have exercised the powers and -authority granted by the General Assembly only for the purpose of enabling them to perform their duties fairly and promptly, and they submit that they have proceeded with the work with all possible expedition and dispatch. They requested the Attorney General and his associates to investigate and secure evidence as to the validity- and justice of the various claims against the state. From time to time they impressed upon said parties their desire to complete the work as soon as possible, and repeatedly urged the necessity of prompt: action. It was not until within the last SO days, however, that said parties reported that they had secured sufficient evidence and were ready to proceed with the hearing of ail said claims. These defendanfs say, upon information and belief, that this* report was made as early as practicable, as there was a large number of claims extending over a period of several years, and the evidence relative to the same was gathered from various states. Immediately upon receipt of this report, the commission assigned 41 of said claims for a hearing, and among those was plaintiff’s claim. A docket was made up, copy of which will be shown to the court, and a notice was served upon the plaintiff and upon all others whose claims had been assigned for a hearing as stated, A forma] notice was served upon the plaintiff, requiring it to produce certain of'its books of original entry relating to its accounts against the state.</p> <p>“(9) On the 14th day of January the commission commenced the hearing of said claims. It took up the claims of UUman & Co. and of the Anchor Distilling Company. After hearing of evidence the commission reached the conclusion that, instead of the state being indebted to said claimant in the sum of £36,926.78, UUman & Co. was indebted to the state in the sum of £31,390.72, and thereupon they returned a judgment in favor of the state against UUman & Co. in accordance with their findings. A transcript of the evidence in said case and the copy of the judgment of the commission will be exhibited to the court.</p> <p>“(10) Plaintiff’s claim was assigned for January 23d. George B. Lester, Esq., general counsel for plaintiff, w,as present on January 14th and claimed an agreement with Mr. Stevenson that plaintiff’s case would be heard that day. Before announcing ready to proceed, the counsel for the state demanded the production of the books covered by the notice served upon the plaintiff as aforesaid, and notified Mr. Lester that they desired the presence of one Early, who acted for the plaintiff in connection with sales to the state, and whom they desired to examine in connection with its claim. Thereupon the said George B. Lester stated that the plaintiff would decline to produce its books or have said Early present. He challenged the jurisdiction of the commission to enter upon a full investigation of all transactions between the plaintiff and the officials of the State Dispensary, and stated that he would appeal to the federal court for relief.</p> <p>“(11) The commission is advised by the Attorney General and his associates that the claim of the plaintiff for goods sold by it to the State Dispensary ie unjust and invalid and they have evidence to establish: (a) That the plaintiff and the Gerson-Seligman Comj)any are one and the same, as the latter is a mere trade-name under which the former transacted business, and was used for the purpose of avoiding the provision of the statute which prohibits any person, firm, or corporation from submitting more than one bid. (b) That there existed between the plaintiff and Gerson-Seligman Company and its agents and representatives and a majority of the said members of the board of the South Carolina Dispensary a conspiracy to defraud and cheat the state of South Carolina, and in pursuance thereof the said plaintiff, by and with the aid and assistance of the said board of directors, or a majority thereof, did cheat and defraud said state of South Carolina by charging and collecting from said state prices for the goods sold to the state which were largely in excess of the market value thereof, which overcharges were by agreement between conspirators made and used for the purpose of corrupting and bribing the officials and agents of said state of Soutli Carolina, to the end that the board of directors of the Dispensary might be induced to purchase-the goods of said plaintiff at such excess prices, and the difference between-the fair market value of the goods so sold by said plaintiff to the said state and the prices at which said goods were so purchased from the plaintiff was fraudulently and unlawfully employed by the plaintiff in bribing and corrupting the officials and agents of the said state, so that said state was cheated and defrauded out of a largo sum of money in excess of the amount now claimed’ to be due by the plaintiff, (e) That the plaintiff did not comply with the law of the state of South Carolina relative to the sale and purchase by the state board of directors, in that they failed to comply with the provisions of said law requiring that only one bid shall be made by any one; for said plaintiff and the said Gerson-Seligman Company, being in fact one and the same firm, did fraudulently and deceitfully pretend that they were separate firms, and did frequently make two or more bids at the same time to the Treasurer of said state for consideration by the state board of directors of the South Carolina Dispensary, (d) They failed to accompany their bids, or all of them, with the chemical analysis of the liquor offered for same, (e) They failed to furnish the bonds required by law to,insure the compliance by them with the terms of the contract of purchase and sale between them and the State Dispensary. ' (f) That they violated said law, in that they constantly had agents, representatives, and solicitors in the state for the purpose of soliciting the purchase of their goods by said state, and that through .its said agents and representatives soliciting business from said board of directors, (g) That the gross amount of sales made by the plaintiff and by said Gerson-Seligman Company to the state amounted in the aggregate to several hundred thousand dollars, and that in each of the said bills there were prices charged in pursuance of said conspiracy in excess of said fair market value, (h) That the plaintiff sold to the state the same brand of liquors of a lower proof at a price higher than it sold the same brand of goods of a higher proof to other parties, (i) That the plaintiff sold to the state as whisky an artificial whisky or concoction, made of spirits with a trace of whisky added to it. (j) That in pursuance of said conspiracy thé advertisements for bids were illegal, in that the prices of the liquors to be furnished were fixed in the advertisements, and thus competition was prevented, (k) That upon a just accounting between the state and the plaintiff, the plaintiff will be indebted to the state in a considerable amount.</p> <p>“(12) From the evidence already before the commission it is satisfied of the existence of a conspiracy to which some of the creditors and some of the board of directors were parties, but whether the plaintiff was a party thereto, and whether its claim is valid or invalid, and whether it should be paid in whole or in part, are matters to be determined, as these defendants are advised, after the commission has heard the evidence of both plaintiff and the state.</p> <p>“(13) These defendants deny each and every allegation in the bill of complaint to the effect that these defendants had stated ‘that there would be no further dispute as to the amount due’ plaintiff, or that these defendants had admitted that there was due the plaintiff a balance of $66,501.19, or any other amount, or that they had agreed to pay plaintiff any amount whatever, or that ‘the amount due [plaintiff] had been determined and agreed upon,’ or ‘that the amount claimed by [plaintiff] has been admitted by the defendants to be a just liability against the State Dispensary and now due and payable out of the fund in their hands,’ or that ‘the said defendants have never claimed or pretended that said amount was subject to any offsets, credits, or counterclaims.’ Each and every of said averments are untrue.</p> <p>“(14) Defendants deny the averment in said bill of complaint to the effect that plaintiff’s account has been ‘adjusted,’ except to the extent that the books of the State Dispensary have been audited and the entries thereon have been brought into substantial agreement with the items of plaintiff’s claim. There has been no determination or adjustment as to whether the items on said claim are proper and just charges against the state, nor whether the said claim is to be reduced in whole or in part by reason of offsets and counterclaims, nor whether said claim or any part thereof is illegal by reason of a noncompliance with the statutes of South Carolina, or by reason of frauds and conspiracies to which the claimant was a party, and, in short, for any of the reasons which the Attorney General and his associates contend they can establish by the evidence to which reference has been made. Moreover, defendants are advised that until final judgment all tentative conclusions or decisions, however solemnly announced, were subject to modification or reversal.</p> <p>“(15) These defendants denounce as gratuitously false the charges in said bill of complaint ‘that there has been formed and now exists an unlawful understanding or agreement between the defendants by which it has been decided that the money deposited in the banks above named shall be held and allowed to remain as long as possible in said banks, to be used by them for rheir own benefit and profit,’ and that the defendants ‘are wrongfully and unlawfully retaining said money for the use and benefit of the institution in which they are personally interested, and are wrongfully and unlawfully refusing to carry out and perform the duties in trust imposed upon them.’ The defendants aver that they deposited the funds received by them in 31 banks in the state of South Carolina, in which there is now on deposit to the credit of the State Dispensary Commission the aggregate sum of $706,599.82 on call and subject to check; that each and every of the said banks is sound and of undoubted solvency; that each and every of said deposits, with the exception of $16,505.59 on deposit with the National Doan & Exchange Bank as an active account, draw interest from the date the deposits were respectively made at 4 per cent, per annum, and are secured by state and municipal bonds and other solvent securities deposited by said banks with said commission as collateral security for the payment of principal and Interest of said respective deposits, the market value of which is largely in excess of tile deposits secured thereby. The defendants will exhibit to the court a list of the said banks with the amount deposited in each.</p> <p>“(10) That in addition to said amounts deposited and secured as aforesaid the commission will hereafter receive about $100,000 on account debts due by various county dispensaries, which, when received, will in like manner he deposited and secured.</p> <p>“(17) The defendants admit that some of them are stockholders and directors in some of the banks named, but they submit that each of the said banks was selected solely because of its recognized solvency and its willingness to secure the deposits with sufficient and satisfactory collaterals and to pay 4 per cent, interest thereon.</p> <p>“(18) The commission offered $150,000 to the Carolina National Bank and the Bank of Columbia, both of which refused to collaterally secure the deposit, and for that reason the deposits wore not made with them. The defendants are informed and believe that they could not have found banks, either in or out of the state of South Carolina, in which to deposit said fund, which would have received said deposits on safer or more favorable terms.</p> <p>“(19) The defendants deny the allegations in paragraph 14, and aver that, there is no difference between the members of the commission as to the method to be pursued in dealing with the creditors of the state for goods sold to the State Dispensary, and that the commission as a body is a unit on the following propositions, to wit: (1) To require all creditors whose claims are challenged by the counsel for the state to produce their books of original entry and their documents containing material evidence and to comply with all reasonable and proper requirements prescribed by the commission. (2) To hear _ all competent evidence presented by the creditors or by counsel for the state, ‘ and after a careful and judicial consideration thereof to determine what amounts are due by the state, and pay all claims which in their honest and impartial judgment are due by the state, and no others.</p> <p>“(20) The defendants deny that it has been eight months since Oommissioner Arthur has met with the commission. It is true that he has not attended the meetings of said commission since November. His physician wrote the commission that Mr. Arthur’s absence from one or more of the meetings was because of his illness.</p> <p>“(21) These defendants deny the allegations contained in paragraph 15 of the hill of complaint, and they denounce as gratuitously false and malicious the allegations in said paragraph that ‘the defendants have entered into an unlawful combination or conspiracy with one X Fraser Dyon, the present Attorney General of the state of South Carolina, and under whose advice said defendants are acting to aid the said Dyon in carrying out his frequent threats to prosecute and imprison said officers and to that end have agreed among themselves and with said Dyon to withhold the payment of the claim of your orator and all other creditors until the said Dyon has obtained such evidence as may he sufficient to prove the guilt and secure the conviction of said officers ; that under and pursuant to this agreement, combination, or conspiracy the defendants have refused and are still refusing to carry out the provisions of the act of 1907.’ The defendants aver that they withheld payment until the state could have an opportunity to collect the evidence with regard to said claims, and after a regular and orderly hearing the commission could reach a fair decision as to the validity and justice of the various claims.</p> <p>“(21a) It is further averred that after the hearing of the case of Ullman & Co. on the 15th day of January, 1908, the commission and the counsel for the state were then and there ready to hear and determine the other cases assigned in their regular order, but said cases were not heard because of the absence of some of the claimants and because of the failure of others to comply with the reasonable orders of the commission. Thereupon the commission assigned all of the remaining ca,ses for hearing to be commenced on January 30th, and to continue from day to day until all of said cases have been finally disposed of. It is the purpose of said commission to hear and decide the cases in their order upon the calendar, and notices to this effect were sent the various claimants by registered mail, and unless prevented by the orders of' this honorable court the commissioners will execute said purpose, and will pay each and every claim which shall be determined to be due and owing by the state.</p> <p>“(22) It is further averred that the state is the owner of said funds, and should be sole defendant; at least, the state is an indispensable and necessary party. Defendants are advised that the state is not subject to suit, and cannot be the sole defendant, or the defendant at all, and that therefore the court is without jurisdiction; but they submit that, if it had jurisdiction, there is no necessity for the appointment of a receiver. The state authorized the commission to act in the premises, and these defendants have undertaken to-discharge their duties fairly, promptly, and conscientiously. They submit that all the allegations and insinuations made in the bill of complaint charging neglect, delay, or improper or fraudulent conduct on the part of these defendants are unfounded and false, and they submit that they should be permitted to complete the work and discharge the responsibilities imposed upon them by the state.</p> <p>“(23) These defendants demand strict proof of each and every allegation in the bill of complaint contained, except those herein specifically admitted to be-true.</p> <p>“(24) The defendants submit herewith a number of affidavits, and they pray that the same may be taken in connection with and as a part of their re.turn; and, having fully answered, they pray to be hence discharged, with their reasonable costs in this behalf expended.”</p> <p>Upon the filing of the bill an order was issued by the Circuit Court of the-United States for the District of South Carolina, requiring the respondents, to wit, the five dispensary commissioners heretofore named, to appear and show cause why a receiver should not be appointed and an injunction granted-as prayed for by the complainants. On the return and answer of the said commissioners, and after a hearing, receivers were named by the Circuit Court to take charge of the fund in the hands of the respondents, and an injunction was also granted restraining said respondents from disposing of the-funds in their hands, etc. Prom these decrees and orders, which were made in vacation, the respondents appealed to this court.</p> <p>The positions relied upon chiefly by the appellants are that the Circuit Court is without jurisdiction in this case; and the basis of the position is that the suit is one against the state of South Carolina, and is prohibited by the eleventh amendment; that the dispensary was a state institution, and its-operation part and parcel of the exercise of independent power by a sovereign state; that the present commissioners are officers of the state, and that the-fund in their hands belongs to the state and, therefore, the state is not only a necessary, but an indispensable, party to any suit or judicial proceeding seeking the fund or any part of' it; that the Dispensary Commission is a court of the state of South Carolina, and that the Circuit Court is forbidden by law to enjoin its proceedings; and, further, that the equities alleged in the-bill are not sufficient to authorize an injunction and the appointment of receivers as prayed for. On the other hand, the appellees insist that the commissioners (appellants) are mere ministerial agents appointed under the provisions of the act of the South Carolina Legislature to dispose of the dispensary property, collect the debts due, and from the funds thus arising to-first pay off and discharge the just liabilities incurred in the operation of the dispensary in the purchase of supplies, etc., and the residue, if any, to pay to the state; that the fund in the hands of the appellants was there, by virtue of the law, for special purposes, the first of which was to pay the dispensary debts; and that the state has no interest save in the residue, if there be such, after the just debts are paid. In other words, the position principally maintained by the appellees is that the appellants, as commissioners acting under the authority of the act of the South Carolina Legislature, became and are trustees of a special fund, which they hold primarily for the specific purpose of paying the debts which had been incurred by the dispensary in the course of its operations; that the action of the appellants in refusing to adjust and pay the claims of the appellees was an abuse of trust, and was an arbitrary and illegal attempt to defeat complainants of their rights. The appellees say, therefore, that they sought relief in a court of equity, there being, under the circumstances, no adequate remedy at law, whereby they might have the just and true amounts of their claims ascertained and have the funds in the hands of the appellants applied in payment, as contemplated by the provisions of the law which created the commissioners and from which they derived their power to act.</p>

<p>Tbade-Marks and Trade-Names — Infringement — Unfair Competition — Injunction.</p> <p>For many years the order of Carthusian Monks established at La Grande» Chartreuse, in Franco, made and sold a liqueur, claimed to have been made by a secret process, which became widely known as “Chartreuse” throughout the United States, where such name is also registered as a trade-mark. The order having been expelled from France by the government, its entire property, including its distillery, products, good will, and trade-marks, were sold to defendant by a receiver under an order of the courts, and defendant, although having no knowledge of the secret formula, commenced the manufacture of a similar liqueur, which it sold under the same name, using the same bottles formerly used by the monks and the same labels, which contained a signature and certain symbols peculiar to the order. In the meantime the monks established a factory at Tarragona, Spain, where they continued to make and sell the liqueur in accordance with the original formula, using, however, a different label and style of package. Held, that the action of the French government and courts did not vest defendant with the right to use the' name and labels of fhe monks in the United States, and, while it had the right to state on its labels the place where its liqueur was made, it would be enjoined from doing so without accompanying words stating the facts and clearly distinguishing its liqueur from that manufactured by the monks, and from imitating the original labels in such manner as to mislead purchasers.</p> <p>Noyes, Circuit Judge, dissenting.</p>

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

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

This cause comes here upon appeal by the importers from a decision of the Circuit Court (155 Fed. 303), which affirmed a decision of the Board of General Appraisers (G. A. 5,923; T. D. 26,049) as to classification of certain articles for tariff duty. Appeals in several other causes are incorporated in the record, but the only one in which there is before us any return by the board is No. 3,918.

<p>Auiens — Intention on Citizenship — Minors—Deci.aeation—Competent Age.</p> <p>Under section 2165, Rev. St. (U. S. Comp. St. 1901, p. 1329), providing that aliens may be admitted to citizenship where a declaration of intention shall have been filed at least two years before admission, held, that such declaration might he made by a minor who liad reached years of discretion, and that one made by an alien 19 years old was sufficient.</p> <p>[Ed. Note. — Citizenship under state and federal laws, see note to City of Minneapolis v. Reum, 6 C. C. A. 37.]</p>

In Equity. Suit for infringement of letters patent No. 682,390 for a machine for packing explosive gelatin, issued September 10, 1901, to J. C. Schrader. On final hearing.

<p>In Equity. On demurrers to bill.</p> <p>The averments of the bill are substantially as follows: That the complainant is a corporation organized and existing under the laws of the state of Indiana, having its principal office at Indianapolis, Ind'., and being a citizen of that state. The defendants are alleged to he citizens of the state of Wisconsin, and the alleged infringements to have taken place within the Eastern district of Wisconsin. That prior to October 17, 1904, the defendant Avery invented a new and useful improvement in gas tanks for the storing of acetylene gas. That on the 3d of September, 1904, Avery produced and exhibited a complete gas tank, embodying his invention in perfected commercial form, which he was about to put upon the market, and induced James A. Allison and Carl G. Fisher to enter into a certain written agreement, which is attached to the bill, by which, among other tilings, said Avery assigned to Allison and Fisher an undivided two-thirds interest in such invention and in the right to letters patent therefor, for which Avery had already applied; and by such contract it was further agreed that a corporation should be organized for the purpose of manufacturing, using, and vending such invention throughout the United States, and that all patents that might be thereafter obtained in the further development and perfection of said device should be transferred to said corporation. That pursuant to such written contract the complainant corporation was organized on the 6th day of September, 1904. Avery agreed to devote to and give said business his entire personal attention and experience, and in consideration therefor Allison and Fisher agreed that Avery shall be paid by said corporation a salary of $150 per month, and that such salary shall be increased from time to lime as said business may justify. That Avery became a stockholder and director, and also the secretary, of said corporation, and entered into its employ upon a salary. The manufacture of the patented device was undertaken by said corporation, and a profitable business resulted. That on October 17, 1904, Avery applied for letters patent for such invention. That on the 3d day of December, 1904-, the stockholders of said complainant corporation, including Avery, on motion of Avery, authorized and directed the directors of said company to purchase of Avery, Fisher, and Allison the letters patent theretofore applied for and to be granted for said invention, for the sum of $10,009, to be paid for by capital stock of complainant company; said stock to be issued in equal amounts to Avery, Allison, and Fisher. That thereupon such capital stock was issued accordingly, and received and accepted by the parties as full payment for their several interests in said invention and the right to letters\patent thereon. That Avery continued with the complainant company, which manufactured and marketed the devices covered by said invention. That said Avery received for his-services from said corporation a salary, in addition to dividends declared by said company upon the capital stock thereof. That Avery, Allison, and Fisher were the officers and directors of said complainant company, and the conduct of the applications for letters patent was left entirely to Avery, by virtue of the trust and confidence reposed in him as an officer of such corporation. That on the 27th day of March, 1906, letters patent of the United States, numbered 816,059, were issued to said Avery for. such invention. That on the 19th day of May, 1906, Avery sold his stock in the complainant corporation to Allison and Fisher for the, sum of $33,333. That on the 2d day of May, 1906, said Avery, while still in the employ of, and an officer of, the complainant corporation, executed an assignment of such letters patent in writing to one George L. Wilkinson, who was one of the attorneys for said Avery in the prosecution of said application. That said assignment to said Wilkinson jvas without consideration, and with full knowledge of the facts hereinbefore set forth. That thereupon Avery left Indianapolis, Ind., where complainant’s business was being conducted, and proceeded to Milwaukee. Wis., where, in conjunction with certain other parties, on the 29th day of March, 1906, he caused to be organized the defendant corporation, for the purpose of engaging in the manufacture and sale of the device covered by said letters patent. That practically all of the stock of the defendant corporation was issued to Edgar G. Avery, the father of the defendant Avery. That Wilkinson made an assignment to the defendant corporation of the said letters patent, which purported to be made on the 5th day of June, 1906. That thereupon the defendant corporation proceeded to manufacture the patented device, and had sold such patented gas tanks in large quantities, causing irreparable injury to, and amounting to an infringement of the rights of, the complainant. That complainant duly demanded the assignment of said letters patent from said Avery to the complainant, which demand was refused by Avery. That the value of said letters patent exceeds the sum of $5,000 The citizenship of Allison and Fisher is not alleged. It is further averred that Allison and Fisher by an instrument in writing did assign to complainant an undivided two-thirds interest in and to the invention and letters patent therefor, with all claims or demands, either in law or equity, for any damages or profits that have accrued or may accrue on account of infringement by defendants. The prayer is for an accounting of profits; an injunction restraining the defendants from the manufacture, use, or sale of the patented improvement; that the assignment by Avery to Wilkinson, and by Wilkinson to the defending corporation, be adjudged fraudulent, and be rescinded and set aside; that Avery and the defending corporation be compelled to assign to the complainant his interest in such invention and letters -patent; and also an injunction to prevent the defendants from making further transfers or* assignments of such letters patent or any interest thereunder.</p> <p>Each of the defendants interposed a demurrer. The demurrers challenge the jurisdiction of the court because the complainant seeks to maintain this' action as the assignee of one James A. Allison and Carl Fisher, claiming that said complainant acquired certain rights from Allison and Fisher, which they had theretofore acquired from the defendant Avery, and had by written assignment transferred to .the complainant; that complainant is seeking by virtue of such assignment to establish and recover rights and things that are the contents of a chose in action; that said bill of complaint fails to show the citizenship of said Allison and Fisher; that the assignors of complainant could not have maintained this action in this court, and therefore the jurisdiction fails by virtue of section 629, Rev. St. (U. S. Comp. St. 1901, p. 503); second, that said bill of complaint is multifarious, in that it unites an action for specific performance and a cause of action for infringement; and, third, that the bill of complaint does not state facts sufficient to entitle the complainant to any equitable relief.</p>

<p>1. Customs Duties — Classification—Ramie Stiver — Similitude.</p> <p>Ramie sliver is not dutiable as an unenuinerated manufactured article, under Tariff Act July 24, 3897, c. 31, § 6, 30 Stat. 205 (U. S. Comp. St 1901, p. 1693), but as cotton sliver by similitude, under section 1, Schedule J, par. 302, 30 Stat. 175 (U. S. Comp. St. 3903, p. 1655).</p> <p>2. Same — Similitude Clause — Preference Over Provision for Unenumer-ated Articles.</p> <p>In a ease in which the similitude clause in Tariff Act July 24, 1897, c. 11, § 7, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), is applicable, the rate determined thereby is t,o be preferred to that fixed by section 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), relating to unenumerated articles.</p>

<p>In Bankruptcy. On rule to show cause why the bankrupt should not be committed for contempt.</p>

<p>1. OoNspieacy — Conspiracy to Commit Offense Against United States — Violation op Interstate Commerce Law.</p> <p>Hepburn Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Snpp. 1907, p. 892), which makes it a criminal offense for a common carrier to issue any interstate free transportation, except to certain classes of persons, and for any person not belonging to one of such classes to use such free transportation, does not subject to punishment the officer or agent who issues such transportation, nor a person to whom it is issued, unless he uses the same; and lienee an indictment will lie, under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for conspiracy to commit an offense under said act, against an agent of a railroad company and others, to whom by agreement he issues interstate free passes on behalf of said company, and who pursuant to such agreement sell the same for use by others not within the excepted classes.</p> <p>2. Same — Defenses.</p> <p>An agent of a railroad company, having authority to issue passes, indicted with others for a conspiracy to issue interstate free passes, to be, and which were, used in violation of Hepburn Act June 29, 1906, c. 3591. I 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), cannot defend on the ground that his principal had no knowledge of the fact, and therefore committed no offense under the act.</p>

<p>-Courts — Federal Courts — Conform tv to State Practice.</p> <p>If to conform strictly to the state practice would unwisely incumber the administration of the law and tend to defeat the ends of justice in a given case, a federal court has power to reject the local rule of pleading as to subordinate matters of form, under Rev. St. § 914 (U. S. Comp. St. 1901, p. 684), which requires conformity to the state practice only “as near as may be.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, § 921.</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p>

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

In Equity. On final hearing. This is a final hearing in equity.

<p>•Courts — Jurisdiction of Federal Courts — Ancillary Suits.</p> <p>A federal court, which has rendered a judgment in favor of a plaintiff in a suit within its jurisdiction, has jurisdiction of a creditor’s bill filed by the plaintiff to set aside fraudulent conveyances of property by defendant which prevent the collection of such judgment as ancillary to the first suit, without regard to the citizenship of the parties.</p> <p>[Bd. Note. — Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. B. & K. C. K. Co. v. Continental Trust Co., 36 C. C. A. 195.]</p>

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

<p>1. Coubts — Femoral Courts — Federal Jurisdiction.</p> <p>Where federal jurisdiction attaches at law at the same time jurisdiction attaches for some purpose in equity, and vice versa.</p> <p>2. Receivers — Claims—Nature of Proceedings</p> <p>Where a receiver for a corporation was appointed by a bill of equity in the federal courts, the receiver thereby did not become entitled to maintain a petition in such suit in the nature of a plenary bill in equity against a person not a party to the receivership proceedings, to recover on a purely legal demand; the receiver’s remedy in the federal Circuit Court at law being adequate.</p> <p>3. Jury — Right to Jury Triai^-Waiver — Claims Against Receiver.</p> <p>That a creditor oí an insolvent corporation, for which a receiver had been appointed in equity, filed a claim against the estate, did not constitute a waiver of the claimant’s right to a jury trial in a proceeding brought by the receiver against the claimant, not by way of set-off, but to recover a purely money demand.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below overruled protests by L,. D. Rothrop and J. H. Rowe Company against the assessment of duty by the collector of customs at the port of Boston. The opinion filed by the Board of General Appraisers reads as follows: Fischer, General Appraiser.

<p>In Bankruptcy.</p> <p>This is a review of an order made by Referee Judson finding that the petitioner, Sloss-Sheffield Steel & Iron Company, was indebted to the bankrupt estate herein in the sum of $10,296 as damages for failure to perform a contract made with the said bankrupt, Niagara Radiator Company, on September 16, 1906, for the delivery to it of 1,800 tons of iron ore in equal monthly deliveries during the first half of 1907 at the price stated in said contract, payment to be made 30 days after the shipment of each installment. Said order further provided that said amount of damages be set off against the claim of Sloss-Sheffield Steel & Iron Company of $12,595.50 for moneys due from said bankrupt under previous contracts, and that said claim be reduced to and allowed at the sum of $2,299. The receiver of said bankrupt, appointed by this court on January 8, 1907, was authorized to continue the business, to borrow money to conduct the business in a sum not exceeding $25,000, and was expressly authorized to assume the contract hereinabove referred to, and to compel its performance. At the time the petition in bankruptcy .was filed herein neither party to the contract was in default thereon, and the contract was in full force. On January 12, 1907, said receiver notified Sloss-Sheffield Steel & Iron Company’ in writing that he elected to assume and carry out said contract, and requested deliveries of the pig iron to him, and offered to pay cash on such deliveries. Said receiver was on March 9, 1907, duly appointed trustee of said bankrupt, and as such receiver and trustee made other demands for deliveries of ore as specified in the contract, but the vendor repudiated and refused- to fulfill its said contract.</p>

<p>Admiralty — Jurisdiction—Maritime Contracts.</p> <p>A contract between a marine insurance company and an Insurance .broker, by which the latter agreed to procure insurance for the company ■on marine risks on commission, and to be responsible for all premiums •due on such insurance, is not a maritime contract, and an action thereon ■by the company to recover such premiums' is not cognizable in a court ■of admiralty.</p> <p>[Ed. Note. — Jurisdiction as to matters of contract, áee notes to The AVinslow, IS C. C. A. 349; Bontin v. Rudd, 27 C. C. A. 530.]</p>

<p>1. Specific Performance. — Contract—Certainty.</p> <p>An option provided that on plaintiff’s election, after examining defendant’s land, defendant would convey all phosphate rock and phosphate deposit contained on or in all of the Middleton lands on Ashley river, described in a specified plat, containing 5,507 acres, for the sum of $20,000, and also convey a right of wpy over defendant’s other lands to a certain river, together with a site on the river for a washer. Held, that such option having subsequently ripened into a contract by the payment of the money, though .the right of way and washer site were not located, was not so vague or uncertain as to be incapable of specific performance.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 71-82.]</p> <p>2. Same — Mistake.</p> <p>Defendant executed a written contract to convey to plaintiffs all phosphate rock and phosphate deposit contained on or in all that portion of certain specified land lying between certain boundaries, containing about 5,507 acres, for $20,000. Several months elapsed between the execution of the option and the payment of the price, ■ during which plaintiffs’ employes were engaged in openly prospecting the land, and new deposits were discovered of which defendant must have had knowledge. Held, that it was no defense to a suit for specific performance that it was defendant’s intention only to sell that portion of the phosphate rock that lay within a tract of about 100 acres, already partially mined.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 159.]</p> <p>8. Same — Unconscionable Contract — Inadequate Consideration.</p> <p>Defendant, aided by the advice and co-operation of her husband, who was a lawyer, contracted to sell to plaintiffs for $20,000 all the phosphate rock underlying certain land; the right to mine, however, being subject to certain timber rights which might prevent plaintiffs from mining a large part of the land until 1923. Explorations disclosed that on the land claimed there was about 280,000 tons of phosphate rock lying at an average depth of 8.27 feet, which, at a reasonable royalty of 25 cents per ton would be worth $70,000. Held, that the contract, having been voluntarily made after full opportunity for deliberation by educated persons of more than ordinary intelligence, was not so unconscionable nor based on such a grossly inadequate consideration as to warrant the imputation of fraud and justify denial of specific performance, under the rule that only such inadequacy of price as shocks the conscience and amounts to conclusive and decisive evidence of fraud will justify the denial of such relief.</p> <p>[Ed. Note. — For cases In point, see Cent. Dig. vol. 44, Specific Performance, §§ 141-151.]</p> <p>4. Same — Hardship.</p> <p>The court in its discretion would not be authorized to deny specific performance because performance of the contract, Independent of fraud, would result in hardship to defendant; there being no circumstance other than alleged Inadequacy of consideration constituting such hardship.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 44, Specific Per-formalice, §§ 141-151.]</p>

<p>1. Bankruptcy — Void able Preference — Presumption op Intent to Prefer..</p> <p>Where tbe effect of a conveyance by an insolvent to a creditor within four months prior to his bankruptcy was to give such creditor a preference over other creditors, it will be conclusively presumed that it was so intended, and the conveyance is voidable if it is shown that, the creditor knew or had reason to believe such fact.</p> <p>2. Same — Knowledge of Creditor.</p> <p>A creditor of a partnership which obtained a conveyance of his home property from one of the partners at a time when both the partnership- and its members were insolvent, and within four months prior to their bankruptcy, held, under the evidence, chargeable with knowledge of facts which gave it reasonable cause to believe that a preference was-intended, which rendered the conveyance voidable at suit of the trustee.</p>

<p>1. Bankruptcy — Voidable Preference — Knowledge of Creditor.</p> <p>A member of a partnership having a number of building contracts on hand, and claiming to have several thousand dollars due him, but on which he could collect nothing, to satisfy an insistent creditor, conveyed his residence for the benefit of such creditor, stating at the time that it was his only available resource. Both he and the firm were, in fact, insolvent, and became bankrupts within four months. The creditor knew that the firm had recently suffered a considerable loss, and had thereafter been persistent in urging payment, and had shortly before obtained a conveyance of the residence of the other partner. Held, that such facts were sufficient to give the creditor reasonable cause to believe that a preference was intended and render the conveyance voidable at suit of the bankrupts’ trustee.</p> <p>[Ed. Note. — For cases in point, see Gent. Dig. vol. 6, Bankruptcy, §§ 255-258.]</p> <p>2. Same — -Effect on Third Person Participating.</p> <p>A person who participates in a transaction by which a creditor secures a preference must abide the consequences. Where a conveyance of property was made by a bankrupt, under such circumstances as amounted to a voidable preference, to the mother of a creditor, who paid the consideration agreed on, which was applied on the bankrupt’s account, such credit- or acting in the transaction as the agent of his mother, a bill to set aside the conveyance and directing a reconveyance of the property to the trustee of the bankrupt will be sustained against the mother, the grantee in the deed, as well as against a third person, to whom the property was attempted to be conveyed after proceedings to avoid the transaction had been taken.</p>

In Bankruptcy. On review of order of referee allowing certain claims. This is a proceeding to review the order of the referee, who has allowed certain claims of the bankrupt, as follows: gam. J. Weinberg, $512.37; Tillie Friedman, $7,782.09; Hattie Saxe, $430; Louis Friedman, $4,941.42; E. M. Rieselbach, $11,550.91. The dramatis personae are as follows: Adolph Friedman, a dealer in clothing, the bankrupt; Louis and Sol.

<p>1. Pledges — Pledge Distinguished prom Sale.</p> <p>A street railway company leased all of its - lines and property for a long term. The lease provided, among "other things, that on an agreement that extensions or additions to the property were required the lessee should furnish the money therefor, for which the lessor should issue its' approved securities. A contract was subsequently made between them hy which the lessee agreed to furnish $8,000,000 in cash to make certain extensions and pay certain indebtedness of the lessor, which on its part agreed to issue its improvement notes for the amount to defendant, a trust company. On the same date a contract was made between the lessee and defendant, by which defendant agreed “as and when required on reasonable notice, and in any event before January 1, 1909,” to furnish to the lessee such sums as might be required by it to carry out its contract with the lessor, whose notes defendant received. All of such companies were intimately related ; the officers and directors being largely the same, and defendant being the owner of all of the stock of the lessee. Held that, construing the lease and the several contracts together, the last contract constituted a purchase by defendant of the notes of the lessor, and not a .receipt of the same as collateral to an indebtedness of the lessee, and that receivers appointed for the lessee were entitled to recover from defendant the unpaid portion of the purchase money.</p> <p>2. Contracts — Right oe Action — Demand ox Performance.</p> <p>After demand of part of the amount by the receivers and an absolute refusal by defendant to pay, no further demand beyond the bringing of suit was necessary to fix the liability of defendant.</p> <p>S. Same — Construction—Words ox Description.</p> <p>The provision of the contract that defendant should furnish to the lessee such sums as might be required by it to carry out its contract with the lessor, a copy of which contract was attached, were words of description and not of condition, and so far as defendant was concerned it had nothing to do with the purpose to which the money due from it was applied.</p>

<p>Habeas Corpus..</p>

<p>1. Customs Duties — Classification—“Iron Sand” — “Ikon Manufactured.”</p> <p>So-called “iron sand,” a completed article produced by a series of manufacturing processes from cast iron and steel scrap, is not within the provision for “all iron in * * * forms less finished than iron in bars, and more advanced than pig iron,” in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 124, 30 Stat. 159 (U. S. Comp. St. 1901, p. 1636), but is dutiable as “iron manufactured,” under paragraph 193, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645).</p> <p>2. Same — “Unwrought Metals.”</p> <p>Iron sand, a completed article manufactured from cast iron and steel scrap, is not dutiable as “unwrought metals,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 183, 30 Stat. 166 (U. S. Comp. St. 1901; p. 1645).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, p. 7221.</p> <p>Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 O. O. A. 545.]</p>

<p>Conspiracy — Conspiracy to Commit Offense Against United States — Concealment of Property by Bankrupt.</p> <p>An indictment against a bankrupt and others, charging a conspiracy to conceal property of the bankrupt from his trustee iu violation of the bankruptcy act, does not charge an offense under Rev. St. § 5140 (U. S. Comp. St 1901, p. 3670), where it shows that the conspiracy was formed and the property removed and concealed by defendants prior to the bankruptcy, but does not aver that it was in contemplation of bankruptcy, or that any overt act was committed after the bankruptcy, although it charges a further conspiracy thereafter to continue the concealment.</p>

<p>Post Cotice — Money Orders — Liability of Recipient.</p> <p>Whoever deals with an agent of the United States must assure himself of the agent’s authority, and one in whose favor a postmaster or postal clerk issues a money order, without first receiving an application and payment therefor as required by law, is liable to the United States for its value, although he may have paid such agent in good faith in other ways the full value of the order.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>This is an action to recover from the government the amount of certain taxes imposed and collected by it under the supposed sanction of Act June 13. 1808, e. 448, 30 Stat. 404 (U. S. Comp. St. 1901, p. 2280), entitled “An act to provide ways and means to meet war expenditures and for other purposes,” commonly referred to as the “War Revenue Act.” The material facts upon which the action arises are these:</p> <p>Richard H. Follis, a resident of the city and county of San Francisco, died May 31, 1900, leaving a last will whereby, after certain provisions with which1 we are not concerned, he left the entire residue of his estate to trustees, in trust to receive the rents, issues, and profits (hereof, and. after necessary expenditures for care, maintenance, insurance, taxes, alterations, reconstruction, etc.: “(0) To pay the net proceeds of the income, rents, issues and profits of said trust quarterly, upon the first day of each and every quarter of the year equally, share and share alike, to all of my children, Margaret, James, Richard. Mary and George up to and until such lime as each of them shall respectively attain to the ages following, that is to say: Until said Margaret E. Follis. now wife of Dr. De Vecehi. shall attain 1 lie age of thirty-nine years, until said James XI. Follis shall attain the age of thirty-three years, until said Richard H. Follis. Jr., shall attain the age of thirty-one years, until said alary Lilly Follis shall attain the age of twenty-nine years, and until said George Clarence Follis shall attain the age of twenty-seven years.” The will then provides for the turning over to each legatee as he reaches the age designated of the 'one-fifth of the corpus of the estate. The will was duly admitted to probate, and thereafter in due course the residue of the estate was distributed to the trustees named therein,o under and in strict accord with the trust clause above set forth. In proper time, and prior to such distribution, the executors, as provided by said act, made to the collector of internal revenue for the district a schedule and return, showing the facts required for the purposes of assessment, from which it appeared that the value of the .personal estate remaining for distribution to the trustees, after payment of all expenses, and from which the devisees in the will would each be entitled to receive one-fifth of the net income for the period prescribed in said will, was $778,491.28. It further showed that the period during which said beneficiaries would respectively be entitled to receive such income before payment over of his or her share of the corpus was as to three of them a fraction over four years, and as to the other two a fraction over five years, and that the present worth or value of the respective rights of the legatees to receive such income during such period, as estimated by the collector in accordance with mortuary or annuity tables upon a four per cent, basis, was: Margaret E. De Vecchi, $23.-068.83; James H. Follis, $23,778.52; Richard H. Follis, $30,759.41; Lillian Mary Griffin, $28,574.43; Clarence George'Follis, $29,424.53.</p> <p>The rights of the devisees, as shown by such schedule, -were separately assessed ; the tax upon such several rights aggregating a total of $1,349.88. This amount was subsequently paid to the collector under protest; and a proper demand that it be refunded having been thereafter denied, this action ensued to recover that sum with interest. It was stipulated by the parties, for the purpose of judgment, that the right of the legatees to receive such income was capable of a present clear valuation, and that the valuations in said schedule and return were correct clear valuations of said rights, and “that the present clear value of the rights to the beneficial enjoyment of the bequest passing to each of said legatees by reason of the said will creating said legacies, derived from said personal property, thus computed, was in each ease over' $10,000.” It was further stipulated “that the total amount received by each of said beneficiaries to said trust hereinbefore mentioned, as income from said trust property, on the legacies which they will ultimately receive, if they live to the date referred to in the decree of distribution, aggregated in amount prior to July 1, 1902 [the date when the repeal of the act took effect], the total sum of $8,750 in each case, and no more, and that no other sums were due and payable from the trustees to the legatees prior to July 1, 1902.”</p> <p>The Circuit Court held that the tax was illegally collected, upon the ground that the rights passing to the devisees, upon which the tax was levied, were not subject to the tax, and awarded judgment in favor of the plaintiffs below, the defendants in error here, for the recovery of the amount sued for; and this judgment is now here for review.</p>

<p>1. Bankruptcy — .Preference — Delivery op Property under Contract of Sale.</p> <p>Where a bankrupt, .who operated a lumber mill, made a contract for the sale of the entire output of his mill and secured from the purchaser advance payments thereon, the purchaser, by insisting on and obtaining delivery of sufficient lumber which was then on hand to cover the advances within four months prior to the bankruptcy and when the seller was insolvent,.did not thereby secure a preference as a creditor which it was required to surrender before proving a secured debt against the estate.</p> <p>2. Same — Secured Creditor — Liability por General Costs.</p> <p>A mortgage creditor of a bankrupt, who proves his claim solely for the purpose of enforcing his lien on the proceeds of the mortgaged property, which has been sold by the trustee, does not thereby become liable for his proportionate share of the costs of the general administration of the estate.</p> <p>[Ed, Note. — For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 882.]</p>

<p>1. Master and Servant — Evidence?—Action foe Negligence of Servant— Prior Conduct.</p> <p>In an action against an employer, where the sole charge is that an employe was negligent on a particular occasion, it is irrelevant to prove that he, or some other employe, had been negligent oh other occasions.</p> <p>2. Same — Municipal Ordinance Not Available Unless Pleaded.</p> <p>A municipal ordinance is not a public statute, but a mere municipal regulation, and to make it available in establishing a charge of negligence it must be pleaded, like any other fact of which judicial notice will not be taken.</p> <p>3. Appeal and Error — Erroneous Charge No Ground fob Reversal, if Without Prejudice.</p> <p>Whilst questions of fact may not be retried on a writ of error, errors in the charge to the jury may be disregarded, if, upon all the evidence properly admitted, a verdict in favor of the unsuccessful party could not lawfully be sustained, and there be no erroneous exclusion of evidence offered by him.</p> <p>4. Trial — Question for Court or Jury — Direction of Verdict.</p> <p>When the evidence is undisputed, or is so clearly preponderant that the court, in the exercise of a sound judicial discretion, could give effect to but one verdict, the case may, and should, be withdrawn from the jury, and their verdict directed.</p> <p>(Syllabus by the Court.)</p>

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

<p>Assignments — Equitable Assignment — Bank Check — Garnishment.</p> <p>The mere giving of a cheek on an ordinary deposit account in a bank, in the usual course of business, in payment of a past indebtedness, does not amount to an equitable assignment, even though the drawer makes a deposit expressly to cover the check; and a garnishment of the bank, after other deposits have been made and checks given, but before such check has been presented, creates a lien on the deposit superior to the rights of the payee.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 4, Assignments, § 90.]</p>

<p>Patents — Inebingement—Women’s Undebgabment.</p> <p>The Critcher patent, No. 781,635, for a combination undergarment for women, construed, and held valid and infringed.</p>

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

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

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

<p>1, Cancellation of Instruments — Fraud—Sufficiency of Evidence.</p> <p>Evidence considered, and held insufficient to authorize a decree for the cancellation of written contracts on the ground of fraud, under the rule that in such case it must be sufficient to sustain a verdict convicting defendant of obtaining property by false pretenses.</p> <p>2. Specific Performance — Contkacts Enforceable — Contract to Assign Inventions.</p> <p>A written contract by which the assignor of a patent agreed to convey to the assignee any future inventions made by him relating to the device of the patent or to improvements thereon is not in violation of public policy, and may be specifically enforced, where necessary to secure to the assignee the value of the patent purchased.</p>

<p>1. Customs Duties Classification — Granito — “Waste” — “Crude Mineral.”</p> <p>So-called granito or terrazo, produced by crushing the waste of marble quarries and sifting or sorting it into various sizes, is subject to classification as an unenumerated manufactured article, uuder Tariff Act July 24, 1897, c. 11, I 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), ral her than as “waste,” under section 1, Schedule N, par. 403, 30 Stat. 194 (U. S. Comp. St. 1901, p. 1.679), or as minerals “crude,” under section 2, Free List, par. 614, 30 Stat 199 (U. S. Comp. St. 1901. p. 1685).</p> <p>[Kd. Note. — For other definitions, see Words and Phrases, vol. 8, pp. 7406-7408, 7833.]</p> <p>2. Words and Phrases — “Manufactured.”</p> <p>Where marble waste, a comparatively valueless material, has been converted into a commodity of use and value by a special manufacturing process, whereby it has acquired a new name and use, it ceases to be a “crude” mineral, and becomes a “manufactured” one.</p> <p>[Ed. Note. — For other definitions, see Words .and Phrases, vol. 5, pp. 4314-4346; vol. 8, p. 7716.]</p>

<p>1. Copyrights — Subject op Copyright — Monogram.</p> <p>Defendant copyrighted a book describing a monogram used on a cam paign badge, which was sold pinned to the book, and assigned the copy right, which was subsequently acquired by complainant Hold, that the copyright did not cover the monogram, which was not a subject of copyright.</p> <p>[Ed. Note. — Matter subject to copyright, see note to Cleland v. Thayer, 58 C. C. A. 273.]</p> <p>2. Courts — Federal Courts — Jurisdiction.</p> <p>Where plaintiff sues to enjoin the infringement of an alleged copyright by the person who assigned the same to him, but the matter was not subject to copyright, he cannot claim that defendant, as assignor, was es-topped from alleging that the federal court had no jurisdiction because the copyright which he sold did not cover the matter in question, and where there is no requisite diversity of citizenship his bill will be dismissed.</p> <p>On Rehearing.</p> <p>3. Same.</p> <p>Where the .-Jurisdiction of a federal court in a suit depends entirely upon the alleged infringement of a copyright, and the thing so alleged to be infringed is not within the copyright laws, no estoppel on the part of defendant to deny such fact can confer jurisdiction.</p>

<p>In Bankruptcy. On report of referee on petition to extend time for filing application for discharge.</p>

<p>Bankruptcy- — Orders op Referee — Mode op Review.</p> <p>Under general orders in bankruptcy No. 27 (89 Fed. xi, 32 C. O. A. xxvii), which provides for review of an order of a referee by the district judge on petition filed with the referee setting out the error complained of. such mode of review is exclusive, and a referee has no authority to review his own orders on exceptions thereto, nor is a party entitled to a review by the judge, except on a petition filed in accordance with such' rules as may be adopted by the court:</p>

<p>Trade-Marks and Trade-Naaíes — Unfair Coitpehtion — Injunction — Grounds — Injury to Business.</p> <p>The manufacturer of an antiseptic, to which he gave the artificial name “Argyrol,” hold entitled to an injunction to restrain defendant, a jobbing druggist, from placing argyrol on his price list and supplying customers who called for the same with a different and cheaper preparation in its place.</p>

Bills in equity and petitions for mandamus on behalf of the United .States against the Delaware & Hudson Company, the Erie Railroad Company, the Central Railroad of New Jersey, the Delaware, Lacka-wanna & Western Railroad Company, the Pennsylvania Railroad Company, and the Lehigh Valley Railroad Company.

On Demurrer to Indictment. The indictment alleges that the defendant on the 17th day of February. 1908, received a letter, of which tlie following is a copy, viz.: “Escondido, Cal., Feb. 19, 1908. “Dr. George C. Somers, Dos Angeles, Cal. — Dear Doctor: I noticed your ad. in the Times, and think you can be of assistance to us, or rather my wife, in a professional way. She is about six weeks along in the family way, but she is determined not to have a baby.

<p>Death — Action foe Wbongful Death — Scope of Statute.</p> <p>Nonresident aliens are entitled to tlie benefit of Code Civ. Proc. Cal. § 377, which provides that “when the death of a person, not being a minor, js caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death.”</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 15, Death, § 37.]</p>

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

In Bankruptcy. Hearing on petition of review of order of C. L. Stone, referee in bankruptcy, approving the appointment by the creditors of the above-named bankrupt of Frank M. Bosworth, Frank P. Hakes, and George W. Driscoll as trustees of the estate of said Syracuse Paper & Pulp Company.

<p>1. Judgment — Action on Judgment of Another S4ate — Defenses—Want or Jurisdiction.</p> <p>Neither the constitutional provision that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of Congress passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered, and the record of such judgment may be contradicted as to the facts necessary to give the court jurisdiction, either as to the subject-matter or the person.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 30, Judgment, § 1476. J</p> <p>2. Same.</p> <p>Under the law of Pennsylvania, which authorizes the entry of a personal judgment without notice on a judgment note, a judgment so entered on a Pennsylvania contract must be accepted by a court in another state as one rendered by a court having jurisdiction.</p> <p>3. Same — Revival of Judgment — Jurisdiction—Pennsylvania Statute.</p> <p>Under Act Pa. April 3, 1903 (P. B. 139), which provides that “two returns of nihil habet shall be equivalent to personal service in writs of scire facias to revive judgments entered in personal actions,” and the rule of practice in that state that such writs are a continuation of the original suit, a judgment entered on two such returns in an action in which the court had original jurisdiction, in ordinary circumstances, Is entitled to full faith and credit in another state; but under Act March 26, 1827 (P. Li. 129), and Act June 1, 1887 (P. L. 289), which, as construed by the courts of the state, limit the life of a judgment to five years, during which time only it can be revived by scire facias, a judgment of revival, entered on two such writs issued nine years after the original judgment and returned nihil habet, is void for want of jurisdiction, and will not support an action in another state.</p>

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

<p>Habeas Corpus and Certiorari.</p>

<p>Courts — Eederal Courts — District or Suit.</p> <p>Under section 1 of tlie federal judiciary act (Act March 3, 1875, c. 137, 18 Stat. 470), as amended by Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), a suit against a railroad company base'd on the interstate commerce act, and within the jurisdiction of a federal court for that reason, can only be.brought in the state in which the defendant is incorporated.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 13, Courts, § 814.</p> <p>Jurisdiction of federal courts over corporations, see note to St. Louis, I. M. & S. Ry. Co. v. Newcom, 6 C. C. A.. 174.]</p>

<p>Bankruptcy — Delivery of Books to Tkustee — Claim of Pbivilege.</p> <p>A bankrupt is not permitted to withhold his books from his trustee or receiver on his mere assertion that they contain evidence which would tend to incriminate him; but he must produce them, that the question may be determined by the court or referee, and that, if it appears that they do contain such evidence, the court may make such order as will protect the bankrupt from its use in any criminal case, and at the same time give the trustee the use of the books in the administration of the estate.</p>

<p>At Raw. Sur motion for new trial and for judgment non obstante veredicto.</p>

<p>At Law. On motion for judgment non obstante veredicto and for a new trial.</p>

<p>1. BANKRUPTCY — UNRECORDED MORTGAGE — SOUTH CAROLINA STATUTE.</p> <p>Under Civ. Code S. O. 1902, § 2456, which provides that mortgages of any property shall no.t be valid as against subsequent creditors of the mortgagor unless recorded within 40 days, a mortgagee of a bankrupt whose mortgage was not so recorded has no right in the proceeds of the mortgaged property unless or until the claims of subsequent creditors have been paid in full.</p> <p>2. Same — Allowance oe Attorney Fees — Services Rendered nor Mortgagee.</p> <p>The attorney for a mortgagee of a bankrupt who was permitted to sell the mortgaged property and hold the proceeds subject to the orders of the bankruptcy court, and is subsequently adjudged to have no interest therein, is not entitled to an allowance from the fund for services rendered, except in so far as such services contributed to create or conserve such fund for the benefit of the estate.</p>

<p>Bankbuptoy — Dischakoe—Failukjo to Keep Books.</p> <p>A refusal of a discharge to a bankrupt on the ground that he failed to keep books is not warranted, unless there is evidence from which, at least, it can fairly be inferred that there was an actual intent to conceal his condition. Mere negligence in the keeping of books is not sufficient, jlid. Note. — Dor cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 752.]</p>

<p>Bankruptcy — Peovable Claims — Nove Given by Bankrupt to Wipe.</p> <p>A note given by a bankrupt to bis wife is provable against bis estate, regardless of the consideration therefor, where it is not shown that the bankrupt was indebted at the time it was given.</p>

<p>Railroads -In.i [jry to Person on Crossing — Contributory Negligence.</p> <p>Evidence held to warrant a finding by the jury that a plaintiff who was struck and injured while driving over a railroad crossing, was not chargeable with contributory negligence; ber own testimony being that the train was not in sight when she drove upon the crossing and had given no signals, and it further appearing that she would have passed over in . safety, but for the stopping or balking of her horse when the wagon was nearly off the track.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1144-1149.]</p>

<p>Damages — Liquidated Damages — Validity of Stipulation.</p> <p>In an oil and gas lease, which binds the lessee to drill a well on the property to a certain depth within a specified time, the damages for a breach of such provision being necessarily indefinite, uncertain, and speculative, it is competent for the parties to fix the amount of such damages by mutual agreement, and a provision that in case of the failure of the lessee to drill such well he shall pay a stated sum as liquidated damages is valid and enforceable.</p> <p>[Ed. Note. — Dor cases in point, see Cent. Dig. vol. 15, Damages, § 164]</p>

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

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

<p>1. Towage — Duty of Tug — Anchoring of Tow.</p> <p>The duty of a tug to a tow is a continuous one from the time the service commences until it is completed, and where it becomes necessary to anchor the tow the tug’s obligation of reasonable care continues, at least until she is safely anchored.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 45, Towage, §§ 4, 23.]</p> <p>2. Same — Loss of Tow — Insufficient Anchorage.</p> <p>A tug, which had engaged to tow two schooners out of Gray’s Harbor, after starting, anchored the tows to await a more favorable tide for crossing the bar, and then left them until the next day. The tide was ebb, and the wind strong from the east, and later increased. At once one of the vessels commenced to drift; it appearing that the anchor chain parted. After she had drifted past the other vessel, she dropped another anchor, the chain of which also parted, and she drifted on the bar and was wrecked. On casting off the hawser at the anchorage the tug immediately left, without waiting to see whether the schooner’s anchor held, and paid no further attention to her, although she made signals of distress before the tug was out of sight. Meld, that the evidence supported a finding by the trial court that the schooner was in fault because of her defective anchor chains, and also that the tug was in fault in failing to stand by until the anchorage was seen to be safe, and that the damages were properly divided.</p>

<p>t. Limitation op Actions — Suit to Recover Real Property — Missouri Statute.</p> <p>Rev. St. Mo. 1899, § 4262 (Ann. St. 1906, p. 2335), which limits the time within which an action may be brought for the recovery of lands to 10 years, and which under the decisions of the state Supreme Court applies to all suits, whether legal or equitable, may be invoked in a federal court by a purchaser in possession under a deed executed on a foreclosure sale in a suit by the mortgagor to redeem, where the possession of the defendant was adverse.</p> <p>2. Same.</p> <p>Complainant alleged in his bill that his grantor executed a mortgage on the land in controversy from the proceeds of which the mortgagee agreed to pay off a prior mortgage; that he paid such mortgage, but took an assignment thereof and foreclosed it, becoming the purchaser at the foreclosure sale; that complainant, who had become the owner of the land, was present at the sale and gave notice that the mortgage under which it was made had been paid; that the purchaser shortly after the sale took possession of the land, and he and his grantees had remained in possession since, a period of more than 10 years. Held, that such possession was referable solely to the first mortgage, and adverse, and that a suit to recover the land by redeeming from the second mortgage was barred by Rev. St. Mo. 1899, § 4262 (Ann. St. 1906, p. 2335).</p> <p>3. Same — Running oe Statute — Ignorance op Rights.</p> <p>The mere ignorance of a plaintiff of his cause of action will not prevent the running of the statute of limitations, but there must have been some concealment of facts which ordinary diligence could not discover.</p> <p>4. Mortgages — Redemption prom Foreclosure Sale — Financial Inability to Redeem.</p> <p>The fact that a mortgagor was not financially able to redeem from a foreclosure sale will not prevent the running of the statute of limitations against his right to redeem.</p>

<p>Appead and Ereoe — Review.</p> <p>Findings of a District Court adverse to the right of a Chinese person to remain in the United States, on his claim of citizenship, cannot be reviewed on a writ of error, where.the evidence was not made part of the record by a bill of exceptions.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2433, 2434.]</p>

<p>1. Courts — Reviewabde Orders —Order Abating-Judgment in Criminad Case.</p> <p>A motion by the executrix of a person deceased to abate a judgment entered against Mm in a criminal action in Ms lifetime, because of his death after it was entered, is an independent proceeding of a civil nature, and the order or judgment therein may be reviewed on error by the United States.</p> <p>[Ed. Note. — Orders decrees and judgments reviewable in Circuit Court of Appeals, see note to Salmon v. Mills, 13 C. C. A. 374.]</p> <p>2. Criminad Law —Judgment—Declaring Judgment Abated —Power oe Court Aeter Term.</p> <p>After the expiration of the term at which a' judgment was rendered against a defendant in a criminal case the court has no power by an order to declare such judgment abated because of the subsequent death of the defendant</p> <p>Ward, Circuit Judge, dissenting.</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the District of Indiana.</p> <p>The respondent, the Golden Malt Cream Company, is an Indiana corporation, engaged in manufacturing and trading in drugs and chemical compounds. October 4th, 1906, one Charles A. Loring, a stockholder and the secretary of petitioner, appearing by one John A. Hibbard, also a stockholder and the president of the company, in a bill in the St. Joseph County Circuit Court of Indiana, praying for the appointment of a receiver to take charge of the property of respondent, and make distribution thereof, alleged:</p> <p>“That the total assets of said corporation are of the probable value of $35,000.00. This plaintiff alleges that he is a stockholder of said defendant corporation and that said defendant corporation is insolvent and has not now moneys, means, property or assets with and out of which to pay its existing indebtedness; that it is indebted to numerous and divers persons in the aggregate amount of $25,000.00; that a large portion of such indebtedness is past due and said defendant corporation has not now the money and assets to meet its obligations or to pay its overdue indebtedness, and that certain of the creditors of said corporation are threatening to bring suits against the corporation to recover judgment on the debts due them, thereby creating a preference in their favor as against the other creditors of said corporation to the prejudice of their rights and to the rights of the stockholders.-</p> <p>“Petitioner further alleges that the business of’ said corporation as now conducted is being.conducted at a loss and that if continued the said defendant corporation will become and be wholly insolvent and the assets thereof will be wholly insufficient to pay its indebtedness and nothing whatever will be left for the stockholders of said corporation.”</p> <p>On the same day, by unverified answer, the respondent admitted that the indebtedness was nearly twenty-four thousand dollars; that a large portion of the same was past due; and that it had no available means at hand with which to meet the same; and upon the complaint and answer thus filed, and upon the same day, also, the following order was entered:</p> <p>“That this defendant admits the allegations of said petition to be true except as to the allegations of insolvency and as to the amounts owing by this defendant to the plaintiff and other parties as set forth in said petition.</p> <p>“That the business of this defendant has been and is now being conducted at a loss and if continued as it is now conducted the indebtedness incident thereto, which will be incurred by this corporation, will be greatly in excess of its means with which to pay and in excess of its property and assets.</p> <p>“That this defendant corporation is indebted to various persons and firms, amounting in the aggregate to nearly $24,000.00; that a large portion of such indebtedness is past due and defendant has no available means at hand with which to meet the same and certain of its creditors are threatening to institute suits and recover judgment against the corporation, to issue and levy executions upon its property thereby creating a preference in their favor and preventing this defendant from filling certain orders now on hand for finished product and preventing this defendant from converting certain raw material on hand into finished product and disposing of same at a profit.”</p> <p>December 4, 1906, the petitioners filed their petition in the United States District Court, and January 29th, 1907, an amended petition, asking that respondent be declared a bankrupt under section 3, par. “a,” subd. 4, of the Bankruptcy Act of July 1, 1898, c. 541, 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), to which petition as amended, the respondent filed an answer denying insolvency and the other allegations of the petition.</p> <p>December 10th, 190C, the respondent filed a petition in the St. Joseph Circuit Court, asking for a new trial in the cause in which the receiver had been ajipointed. A new trial having been granted, a new petition was filed that omitted the averment that the respondent was insolvent, but (conforming to a statute of the state) asked for the appointment of a receiver on an averment that the company was in danger of becoming insolvent; and to this petition an answer was filed consenting to the appointment of a receiver on the ground named, but denying insolvency: And upon this petition and answer, a receiver was appointed.</p> <p>Such proceedings were then had in the United States District Court that a special master eventually submitted a finding that notwithstanding these later proceedings in the State Court, respondent was estopped by the recitals of insolvency contained in the record of the State Court of October 4th, 1906, to deny its insolvency at the time the petition was filed in the United States District Court. To this finding, as a conclusion of law, proper exceptions were filed and sustained, and the matter was referred hack to the master to take testimony upon the issues of fact joined. It is to revise and reverse the order of the court sustaining the exceptions to this conclusion of law, that this petition is brought to this court</p>

On appeals from orders of the District Court for the Northern District of New York affirming orders for the deportation of the appeb lants made by a United States commissioner.

<p>Patents — 'Infringement—Drive Cii ains.</p> <p>The Morse patents, No. 13(5,909 and No. 757,702, for improvements in chain driving gear and drive chains, construed, and held not infringed.</p>

<p>Petition for Naturalization.</p>

<p>1. Aliens — Naturalization—“Resided Continuously.”</p> <p>In Naturalization Act June 20, 1006, c. 3502, § 4, subd. 4, 34 Stat. 596 (TJ. S. Comp. St. Supp. 1907, p. 422), which requires the court, before admitting an alien to citizenship, to be satisfied that he has “ ‘resided continuously’ within the United States five years at le’ast, and within the state or territory where the court is hold one year at least,” before liis ■application, the word “continuously” is not used literally, as requiring the applicant to remain at all times physically within such jurisdictions, but applies to changes of domicile only; and a sailor, by going to sea, does not abandon his residence.</p> <p>[Ed. Note. — Citizenship under state and federal laws, see note to City of Minneapolis v. Rum, 0 C. C. A. 37.]</p> <p>2. Same — Witnesses—Knowledge oe Residence.</p> <p>The knowledge of witnesses, who testify that an applicant for naturalization has been a resident of the United States and of the state for the length of time required by the statute, need only be such as is compatible with the applicant’s employment; and, in case of a person who has been for a portion of the time in the navy, their testimony that he resided in a certain place before his enlistment, and returned there from time to time at the termination of his voyages and after his discharge, is sufficient.</p>

<p>1. Explosives — Explosion in Hold of Vessel — Evidence as to Cause Considered.</p> <p>Respondents skipped from Philadelphia to Liverpool about 75,000 pounds of “naptha” soap contained in 1,000 boxes, each box containing 10 cartons, and each carton 10 cakes of soap, each wrapped in a piece of oil paper and of common paper. The soap contained from (i to 9 per cent, of chemically free naphtha, which would slowly evaporate into the air. The shipment was stowed with other cargo in a hold having two four-inch ventilators; the hatch remaining closed during the voyage. The shipment was made in the summer, and the temperature of the hold was from CO to 80 degrees Fahrenheit. On reaching Liverpool, the hatch was opened, and, after stevedores had gone into the hold, a violent explosion occurred, killing and injuring a number of men and doing a largo amount of damage to the ship. It appeared that naphtha vapor, when mixed with air in the proportion of from 2 to 5 per cent., forms a highly explosive mixture when coming in contact with any igniting substance. Held, on the evidence, which disclosed the presence of no other explosive substance in the hold, that the explosion was caused by the vapor given off by the soap.</p> <p>2. Same — Loss from Dangerous Cargo — Li am: i ,ity of Shipper to Carrier-Negligent Stowage.</p> <p>Respondents at various times shipped in steamships of libelant’s line consignments of “Fels Naptha” soap, having such name on the boxes and all other packages. They had also previously notified libelant’s agents that the soap contained naphtha, and that there might be danger of explosion if it were placed in a confined space, and had arranged that shipments should be stowed in a place where there was a free circulation of air. Held, that libelant was advised, both by the name and by such notice, of the character of the commodity, and of the necessity of properly handling it, the danger of an explosive mixture being formed by the air and naphtha vapor being a matter of common knowledge, and that, in stowing a shipment in a confined hold without proper ventilation, it assumed the risk, and could not hold respondents liable for the damages caused by an explosion resulting.</p>

<p>At Law. On demurrer to petition to recover penalties for violation of safety appliance acts.</p>

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

<p>In Admiralty. Suit in rem for demurrage.</p>

<p>Alien — Persons Who may Become Citizens by Naturalization — Alien Wife of Foreigner.</p> <p>An alien woman, married to an alien, although residing in this country and otherwise qualified, cannot become a citizen of the United States by naturalization.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 2, Aliens, § 122.]</p>

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

Action in equity to quiet title to a group of mining claims situated in Antelope mining district, Eureka county, state of Nevada, and for an injunction against the defendants.

This action was brought by the government to enforce a penalty growing out of the alleged violation of Act Cong. June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918) to prevent cruelty to animals, commonly known as the “Twenty-Eight Hour Law.” The plaintiff in error is a Montana corporation, and at the time in question owned and operated a railroad from a point near Great Falls to the city of Butte, in that state.

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

<p>1. Railroads (§ 261*) —Joint Use of Tracks — Liability for Injury from Negligent Operation of Trains.</p> <p>Where the trains of one railroad company in charge of its own employes run oyer the tracks of another company under a contract that they shall obey the orders of the train dispatcher of the latter company, such contract does not relieve the company so using the tracks from liability for injuries caused to third persons by the negligence of its employés operating its trains in no way attributable to any order of the train dispatcher.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 825, 826; Dec. Dig. § 261.*]</p> <p>2. Master and Servant (§ 193*) — Fellow Servants — Servants of Separate-Masters in Same Work.</p> <p>An employe of a railroad company does not by virtue of his contract of service assume the risk of injury from the negligence of the servants of another company jointly using the tracks of his employer, but has the same right of action against such company for an injury so occurring as any stranger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 193.*]</p>

<p>Petition to Review.</p>

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

<p>Criminar Daw (§ 894*) — Evidence—Evidence Unlawfully Obtained.</p> <p>It is no objection to tbe admissibility of evidence which is pertinent to the issue in a criminal case that it was obtained by means of a search warrant illegally issued or executed.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 875; Dec. Dig. § 394.*] .</p>

The plaintiffs in error sued the defendants in error to recover royalties under a license made on November 21, 1901, authorizing the defendants in error to make and sell concentrating tables under the Wilfley patent, owned and controlled by the plaintiffs in error.

<p>1. Patbkts (§ 328*) — Infringement—Rheostats for Electric Cars.</p> <p>The Wighlman patent, No. 411,947, for a rheostat for use on electric railway ears, was not anticipated, and discloses patentable invention, but is not of such broad scope as to cover the use of any material in any form in the construction of a resistance pile, and is not infringed by the structure of the Lundie patent, No. 687,509, in which cast-iron plates or grids are used in contact: only by means of hubs thereon.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (Ü 328*) — Infringestent—Rheostats for Electric Caes.</p> <p>The Short patent, No. 459,794, for a rheostat for nse on electric railway cars, discloses patentable invention in the manner of construction of the pile and the idea of making flues through the same by so fastening the sheets together as to cause perforations through the same to register, but not in the maimer of fastening them by the use of nonconducting pencils or insulated bolts, and is not infringed by the device of the Lundie patent, in which air spaces for cooling purposes are provided between the plates.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 328.*]</p>

<p>1. Adverse Possession (§ 70*) — Color oe Title.</p> <p>To constitute color of title, the’ title claimed must be founded on some written instrument, and a mere occupancy of public land by an Indian by permission of the government does not give him color of title thereto.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 398; Dec. Dig. § 70.*]</p> <p>2. Public Lands (§ 120*) — Suit to Cancel PatentFraud.</p> <p>An applicant for the purchase of an isolated tract of public land under Act Feb. 26, 1895, c. 133, 28 Stat. 627 (U. S. Comp. St. 1901, p. 1519), on a form prepared by the land department, who, pursuant to the requirement of such form and the regulations of the department, made affidavit that the land was not occupied by any one having color of title thereto, is not chargeable with fraud, which authorizes a cancellation of the patent, because a portion of the land was at the time occupied by an Indian, who did not have color of title, or because of a failure to state the fact of such occupancy, in the absence of an actual fraudulent intent, notwithstanding a rulo of the department to refuse all applications for the purchase of land so occupied; there being no presumption that the applicant had knowledge of such rule.</p> <p>[Ed. Note.- — For other cases, see Public Lands, Dec. Dig. § 120.*]</p> <p>3. Adverse Possession (§ 70*) — “Color oe Title.”</p> <p>“Color of title” is a technical term, and means that which in appearance is title, but in fact is not a good title.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 395; Dec. Dig. § 70.*]</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1264-1273; vol. 8, p. 7606.]</p>

<p>In Bankruptcy. On motion to punish bankrupts for contempt.</p>

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

<p>1. Courts (§ 335*) — Federal Courts — Practice of State Courts — Action-Commencement — Suit in Equity.</p> <p>The commencement of a suit in equity in a federal court is not governed by tbe local statute for the commencement of actions in the state courts, but by the equity practice and procedure.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 902-907%; Dec. Dig. § 335.*]</p> <p>2. Limitation of Actions (§ 118*) — “Commencement of a Suit” — Proceedings Constituting.</p> <p>To constitute the “commencement of a suit” in equity in a federal court, which will stop the running of the statute of limitations, there must be the filing of a bill and the due issuance of a writ of subpcena, which must come to the hands o'f the serving officer with intent that it be served, and there must be a bona fide attempt to serve it, followed, if unsuccessful,, by reasonable diligence to procure service through further or additional process.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 527, 528; Dec. Dig. § 118.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1281-1286.]</p> <p>3. Limitation of Actions (§ 119*) — Issuance and Service of Process.</p> <p>At the time of the issuance of the subpoena in a suit in equity in a federal court the defendant was absent from the district, and remained absent for several days, although he had an office and his residence therein. The marshal testified that because of such absence he was unable to serve the subpcena when received, and that during its life he made frequent inquiries by telephone at defendant’s office and residence, and was each time informed that he was not at home, and therefore returned the subpoena without service. Something over two months after return day an alias subpoena was issued, which was served. Held, that there was a bona fide attempt by the marshal to make the service, and that reasonable diligence was used in that behalf and in the issuance and service of the alias subpoena, so that for the purpose of arresting the running of the statute of limitations the suit was commenced on the date of the filing of the bill.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 520-535; Dec. Dig. § 119.*]</p>

<p>Towage (§ J 5*) — Loss of Tow — Liability of Tug.</p> <p>Evidence considered, and held not to sustain tlie allegation of a libel that the sinking of a coal barge while in tow on a hawser was due to the fault of the tug in towing her on a rock, but to show that it was the result of tempestuous weather which caused a collision between such barge and another tow.</p> <p>[Ed. Note. — For other cases, see Towage, Cent. Dig. § 36; Doe. Dig. § 15.*]</p>

<p>1. BANKRUPTCY (§ 58*) — VOIDABLE PREFERENCE — KNOWLEDGE OF CREDITOR.</p> <p>A creditor of a bankrupt, wbo at tbe time of receiving a preference was put on inquiry as to the solvency of the debtor, was not for that reason charged with notice of facts which could only be learned from intimate and inaccessible sources of information, such as the books of the bankrupt, but was bound only by such information as could be obtained by open observation and reasonable inquiry.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 58.*]</p> <p>2. Bankruptcy (§ 58*).</p> <p>A creditor of a bankrupt corporation, who at the time he received a preferential transfer of property as security knew that the corporation was financially embarrassed and was pressing for payment, held not to have had reasonable cause to believe it' insolvent, so as to render the preference voidable, although such was the fact where he madé inquiry as to its condition from its officers and others who were in the best position to know, and was assured that the value of its property exceeded its debts and that its embarrassment was only temporary.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 58.*]</p>

<p>1. Intebnal Revenue (§ 8*) — Legacy Taxes — “Vested Legacy.”</p> <p>A testator, wbo died in March, 1901, devised and bequeathed his residuary estate to trustees, to hold and manage the same during the lives of the two surviving children of the testator who should be the youngest at the time of his death and for so much longer as permissible under the laws of the state. The trustees wore directed to set apart a sufficient sum to produce a certain amount of income to be paid to the widow during her life, and to pay the income from the remainder in equal parts to the four children of the testator named, or to their issue or devisees in case of their death, subject as to a part thereof to certain charges to pay off liens on property. At the termination of the trust the corpus of the estate was to be divided equally between the four children or the devisees, legatees, assigns, or legal heirs of any deceased. Held, that each of the four children took at once a vested estatedn one-fourth part of the testator’s residuary estate, having the immediate right to dispose of the same by deed or will, and to enjoy a part of the income, subject to no contingency, possession of the corpus alone being deferred; that such gifts took effect at once “in possession or enjoyment,” and became subject to .the legacy tax imposed by War Revenue Act June 13, 1898, c. 448, § 29, 30 Stat. 4G4 (ü. S. Comp. St. 1901, p. 2307), and that the taxes paid thereon were not recoverable under Act June 27, 1902, c. 1160, § 3, 32 Stat. 406 (U. S. Comp. St. Supp. 1907, p. 652), as having been assessed on contingent interests which had not become vested prior to July 1, 1902 (citing Words and Phrases, vol. 8, p. 7304).</p> <p>[Ed. Note. — For other cases, see Cent. Dig. § 12; Dee. Dig. § 8.*]</p> <p>2. Intebnal Revenue (§ 8*) — Legacy Taxes.</p> <p>The interests of the children, however, in the portion of the estate to be set apart for the benefit of the widow during her life, did not become vested either in possession or enjoyment during her lifetime, but became subject to tax on her death, which occurred prior to July 1, 1902.</p> <p>[Ed. Note. — For other cases, see Cent. Dig. § 12; Dec. Dig. § 8.*]</p>

<p>1. Equity (§ 93*) — Paeties.</p> <p>A distinction lias been recognized between necessary and indispensable parties l'or the purpose of ascertaining whether some of those who under well-established rules of equity pleading and practice were deemed necessary, may not, under existing rules governing pleading and practice in equity, be dispensed with as parties in order that equitable relief in a given case may not wholly fail.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 252-259; Dec. Dig. § 93.*]</p> <p>2. Equity (§ 93*) — Indispensable Paeties.</p> <p>Persons whose presence in a suit as parties is essential to the granting of the relief sought, and whose absence would render impossible or nugatory any decree for such relief, are indispensable in contradistinction to necessary parties.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 252-259; Dec. Dig. § 93.*]</p> <p>3. Equity (§ 219*) — Failure to Serve Defendant — Demtirreb.</p> <p>A demurrer to a bill cannot be sustained on the ground that one against whom process is prayed as a co-defendant and whose presence is essential to the relief prayed, has not been served and has not appeared; for non constat that lie will not be so served or voluntarily appear.</p> <p>[Éd. Note. — For other cases, see Equity, Dec. Dig. § 219.*]</p> <p>4. Courts (§ 316*) — Federal Courts — Jurisdiction — Diversity of Citizenship.</p> <p>Where two persons, entitled to separable although precisely similar claims charged on real estate, joined in a bill for the enforcement of their liens, and the bill was amended by omitting one of such persons in order that it might not fail for want of the requisite diversity of citizenship, and the suit was prosecuted by the other for the enforcement of her own claim, the amended bill stating that the person omitted “consents to the relief sought in this bill and to all proceedings had and to all orders or decrees made or that may be made by the court in this case,” held, that the circumstances did not disclose collusion and that the bill as amended was not demurrable.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 316.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see note to Shipp v. Williams, 10 O. G. A. 249; Mason v. Dullagham, 27 O. O. A. 298.]</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy (§ 350*) — Debts Entitled to Priority — Claim of Landlord for Rent.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 64b (5) 30 Stat. 563 (U. S. Comp. St. 1901, p. 3448), which gives priority to debts which are entitled to priority under the laws of the state, and Act Pa. June 16, 1836 (P. L. 777) § 83, which gives a landlord a lien on goods on the demised premises and liable to distress for the rent due at the time of the taking of such goods in execution, not to exceed one year’s rent, upon the bankruptcy of a lessee under a lease giving the lessor the right of distress as to all goods on the premises, and also providing that on default in the payment of any rent the rent for the entire term should at once become due and payable, where at the time of the bankruptcy the lessee was in default, the landlord is entitled to priority for one year’s rent from the proceeds of the property subject to distress, although he had made no levy thereon but had notified a receiver appointed by a state court for the lessee of his claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 350.*]</p> <p>2. Bankruptcy (§ 318*) — Provable Debts — Claim of Landlord for .Rent— “Fixed Liability Absolutely Owing.”</p> <p>Where a lease provided that on default in the payment of any rent the rent for the entire term should at once become due and payable, on the bankruptcy of the lessee while so in default the rent for the term, so far as definitely fixed by the lease, is a “fixed liability absolutely owing,” within the meaning of Bankr. Act July 1, 1898, c. 541, § 63a (1), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), and provable in bankruptcy against the lessee’s estate; but taxes and insurance premiums which the bankrupt covenanted to pay as a part of the rent, but which at the time of the bankruptcy were not due, nor the amount then capable of ascertainment, are not so provable.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Dec. Dig. § 31S.*]</p>

<p>Bankruptcy (§ 71*) — Corporations — Effect of Proceedings fob Dissolution.</p> <p>Where a corporation, being insolvent, commits acts of bankruptcy by preferring certain creditors, the jurisdiction of a court of bankruptcy to adjudicate it a bankrupt and administer its estate under the provisions of the bankruptcy act (Act July’ 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]) attaches, and the corporation cannot avoid such jurisdiction and validate its preferences by instituting proceedings for dissolution in a state court before bankruptcy proceedings against it are instituted.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 71.*]</p>

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

<p>IHTUKCTION (§ 69*) — COEPOBAHONS—XlLKGAT, ACTS OF DTEECTOES.</p> <p>A Circuit Court of the United States, other requisites to the exercise of jurisdiction being satisfied, will enjoin de facto equally with (le jure officers of a corporation from perpetrating, facilitating or permitting violations of law to the detriment of innocent stockholders who have no adequate remedy at law and are unable to induce the corporation to adopt effective measures for their protection.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 136; Dec. Dig. § 69.*]</p> <p>(Syllabus by the Court.)</p>

<p>Aliens '(§ 23*) — Construction of Immigration Act — Chinese—Exclusion Because of Disease.</p> <p>The provisions of Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (U. S. Comp. St. Supp. 1907, p. 391), excluding alien immigrants afflicted with certain- diseases, etc., are applicable to Chinese immigrants otherwise entitled to admission.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 23.*]</p>

<p>Bankruptcy (§ 351*) — Provable Claims — Partnership—Advances by Partner.</p> <p>While the trustee of a bankrupt partner may prove a claim for advancements made by such partner to the firm against the estate in bankruptcy of the partnership, under Bankr. Act July .1, 1898, c. 541, § 5f, 30 Stat. 548 (U. S. Comp. St. 1901, p. 3424), such claim is not entitled to share with other partnership creditors in the estate, but only in the surplus, if any, remaining after their claims are paid in full.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 503; Dec. Dig. § 351.*]</p>

<p>In Bankruptcy. On certificate of referee concerning claim of E. O. Dech.</p>

<p>In Bankruptcy. On certificates • of referee concerning claims of Robert N. Weaver.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. This is an appeal from and review of the action of the referee in confirming the selection, at the first meeting of creditors, of Charles W. Hill as trustee; also a motion to remove the trustee or set aside his appointment.</p>

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

<p>Equity (§ 150*) — Pleading—Multifaktousuess of Bill.</p> <p>A bill in equity against a corporation and another, one purpose of which is to establish complainant’s equitable interest in certain lands the title to which is in the corporation and to recover such interest, and another to recover damages from the other defendant for breach of a contract to which the corporation is not a party, and in which it has no interest, is demurrable for multifariousness.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 342, 371; Dec. Dig. § 150.*]</p>

<p>1. Conspiracy (§ 43*) — Customs Duties — Criminal Law — Sufficiency of Indictment.</p> <p>An indictment under section 5440, Rev. St. (U. S. Comp. St. 1901, p. 8676), for conspiracy to defraud the United States by means of a false invoice, is sufficient which sets forth such a conspiracy, notwithstanding that it does not set forth the consummation of the fraud nor include an allegation that the fraud could have been accomplished, if not detected.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 97; Dec. Dig. § 43.*]</p> <p>2. Consmbacy (§ 48*) — Indictment—Scmtctkncy—Particularity op Allegation.</p> <p>An Indictment for conspiracy to defraud the United States by a false invoice is not vitiated by the particularity with which the overt act is set forth, if the conspiracy of itself be sufficient.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 97; Dec. Dig. § 43.*]</p>

<p>1. Bankruptcy (§ 143*) — Property Passing to Trustee — Life Insurance Policies.</p> <p>Where policies of insurance on the life of a bankrupt were payable to bis wife, they did not pass to his trustee in bankruptcy because of the fact that by their terms the bankrupt was authorized to change the beneficiary with the consent of the company, nor because, after the bankruptcy, he applied in his own name for their surrender value, which the company did not pay him.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 201; Dec. Dig. § 143.*]</p> <p>2. Bankruptcy (§ 143*) — Exemptions—Kentucky Statute.</p> <p>Under Ky. St. 1903, § 655, which provides that a lawful beneficiary designated in a life insurance policy, other than the insured or his legal representatives, shall be entitled to the proceeds thereof as against the creditors or representatives of the insured, a policy on the life of a bankrupt, payable to his wife, does not pass to his trustee in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 143.*]</p>

<p>Biles and Noves (§ 290*) — Fobged Indorsement of Check — Riathxity or Bank on Guaranty of Indorsement.</p> <p>Plaintiff’s assignor, a bank, discounted for one M. a note made by a third person, payable to his own order and indorsed by him, giving M. a check for the proceeds on itself, payable to the order of the maker of the note. M. indorsed the check with the payee’s name, by himself, and delivered it to defendant bank, which also indorsed it, expressly guaranteeing the indorsements, and the discounting bank, relying on such indorsement, paid it. In fact M. had no authority to indorse the check, and did so without the knowledge or consent of the payee; and he also discounted the note without authority and in violation of his agreement with the maker. Held, that since the discounting hank, having paid its chock on a forged indorsement, did not become a bona fide purchaser for value of the note, and could not, therefore, enforce it against the maker, plaintiff was entitled to recover from defendant upon its indorsement of the check.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Gent. Dig. § 670; Dec. Dig. § 296.*]</p>

<p>1. Appeal and Error (§ 80*)--Appealable Decree — Final Decree.</p> <p>A decree in equity which purports to settle finally and definitely the merits of the entire controversy between the parties is a final decree. from which an appeal lies, although the court retains jurisdiction in aid of its execution in accordance with the adjudicated rights of the parties.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 494-509; Dec. Dig. § 80.*]</p> <p>2. Partnership (§ 333*) — Suit por Settlement — Breach of Contract.</p> <p>Complainant and defendant entered into a, contract of partnership for the purchase of lands along a lake shore as a site for a summer resort and to develop and sell the same. By the terms of the agreement complainant was to attend to the business of 1he partnership and defendant was to furnish the money required to pay for the lands and for the payment of taxes and necessary expenses, and from the proceeds of the land when sold he was to be repaid his advances, with interest, and complainant was to receive a sum equal to such interest for his services; the remainder to be equally divided. After complainant had purchased and paid for a portion of the lands, and expended other sums for expenses, taxes, and securing options o-n other lands, defendant without justification repudiated the contract and refused to make the advances required thereby, in consequence of which the enterprise came to an end. If eld, in a suit to wind up the partnership and recover damages for breach of the contract, that complainant was not entitled to damages for loss of profits, which were too uncertain and speculative, nor beyond legal interest on the sums advanced by him; but, the contract having been broken by defendant, so that payment for his services could not be measured thereby, he was entitled to recover their reasonable value and to a personal judgment against defendant for so much thereof as was not realized from the proceeds of the property purchased, when sold, after paying the other demands chargeable thereon.</p> <p>TEd. Note. — For other eases, see Partnership', Dee. Dig. § 333.*]</p>

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

<p>1. Bankruptcy (§ 207*)™General Assignment — Dimns Acquired by Assignee.</p> <p>A title or lion acquired by an assignee under a general assignment valid according to the law of the state where it is made, that is to the advantage of the estate when it has subsequently passed into bankruptcy, is not necessarily destroyed by the supersession of the assignment proceeding; but upon the order of the court of bankruptcy it may be retained by the trustee for the benefit of the creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 207.*]</p> <p>2. Bankruptcy (§ 140*) — Diens—Conditional Sale Contract.</p> <p>Under the law of Kansas, by decision, an assignee under a general assignment represents, not only the assignor, but bis creditors as well, and as such representative acquires title to the assigned property, which is good as against a contract of conditional sale not filed as required by statute. Held, where a debtor in Kansas made a general assignment under the state law and was subsequently adjudicated a bankrupt, that under Bankr. Act July 1, 1898, c. 541, § 07a, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), which provides that “claims which for want of record * * * would not have been valid liens as against the claims of the creditors of the bankrupt shall not be liens against his estate,” the right of the creditors, through the assignee, as their representative, to property held by the bankrupt under an unrecorded contract of conditional sale, could be enforced by the trustee under subdivision “b” of said section.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>1. Patents (§ 157*) — Construction op Claims B Avion Patents.</p> <p>The rule applied that in a suit for infringement of a patent for an alleged invention of which no practical use has over been made, the patent is not entitled to the same breadth of construction which might be warranted by its proved usefulness.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 157.*]</p> <p>2. Patents (§ 328*) — Infringement—Wheel Tires.</p> <p>The Schrader patent, No. 466,577, for improvements in wheel tires, claim 2, construed, and held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>In Bankruptcy.</p>

In Equity. Suit for injunction. Complainant, a California corporation, does a telephone business in the city of Pomona, Cal., and for this purpose has constructed and maintains its local lines running from its central station to its subscribers in said city.

<p>1. Customs Duties (§ 125*) — Criminal Daw — “Entry.”</p> <p>In Customs Administrative Act June 10, 1890, c. 407, § 9, 26 Stat. 135 (U. S. Comp. St. 1901, p. 1895), relating to the crime of making or attempting to make entry by means of a fraudulent practice, etc., the word “entry” does not refer alone to the act of filing at the custom house the written paper known as an “entry,” but embraces the entire transaction of passing the goods through the custom h'ouse, among the various steps of which would be the official returns of customs weighers.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 125.*]</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2408.]</p> <p>2. Customs Duties (§ 128*) — Illegal Entry — “Other Person.”</p> <p>Under Customs Administrative Act June 10, 1890, e. 407, § 9, 26 Stat.-135 (U. S. Comp. St. 1901, p. 1895), relating to the crime of making an illegal entry by the owner, importer, consignee, agent, “or other person,” the term “other person” does not embrace all individuals who may be fraudulently concerned in the making of an entry, and would not include a customs weigher, who had merely made false reports of weights in furtherance of an importer’s attempt to make an illegal entry.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dee. Dig. § 128.*]</p>

<p>On Demurrer to Indictments for Aiding in Effecting an Illegal Entry of Imported Merchandise.</p>

<p>On Demurrers to Indictments for Criminally Aiding in Effecting an Illegal Entry.</p>

<p>In Bankruptcy. On certificate of referee concerning bankrupt’s claim for exemption.</p> <p>The following is the report of Referee Theodore M. Etting, referred to in the opinion:</p> <p>“The trustee, after setting apart the bankrupt’s exemption as claimed, filed a petition excepting to its allowance, on the ground that the bankrupt liad sold and disposed of his goods, merchandise, and property with intent to defraud his creditors. Within 20 days thereafter the bankrupt filed an answer to the above petition, denying that he had sold and disposed of his goods, merchau-dise, and property, and upon the issue thus raised extended testimony was taken. Upon argument I was asked by counsel for the bankrupt to dismiss the exceptions filed by the trustee on the ground that the trustee is not a creditor and had no right under the general orders or under the act to file exceptions to his own report.</p> <p>“The word ‘creditor,’ as defined by the act, ‘shall include any one who owns a demand or claim provable in bankruptcy and may include his authorized agent, attorney or proxy.’ No adjudicated case serves as a precedent for my guidance.</p> <p>“Mr. Remington, the most recent text-writer on Bankruptcy Practice, seems, however, to consider that there is no ground to suppose that the meaning of general order No. 17 excludes the trustee. Remington on Bankruptcy, p. 614.</p> <p>“It is also to be noted that the bankrupt joined issue upon the pleadings as filed. His objection, therefore, is not timely. I therefore refuse to dismiss the exceptions on the ground that they were filed by the trustee, and not by. a creditor.</p> <p>“I find the facts to be as follows:</p> <p>“An adjudication in bankruptcy was entered against the above-named Joseph Rice on the 20th day of November, 1907, upon petition filed against him on the 16th day of October, 1907. Prom his own evidence it appears that on December 18, 1006, he made a statement showing that he had assets in excess of liabilities amounting to $23,700. He further testified to the purchase of merchandise to the extent of $30,000 within less than six months preceding his bankruptcy. On October 4, 1907, it appears from his testimony that the value of his merchandise then 'on hand did not exceed $2,500, and it appears that at the time of his adjudication its value was in the neighborhood of $1,000. It is therefore apparent that since December, 1906, assets in excess of $50,000 have disappeared. His schedules show that he still owes merchandise creditors about $3l¡,000, and it therefore is evident that but,an inconsiderable part of the sum realized from the sale of merchandise could have been paid to his merchandise creditors. The bankrupt says he paid his help, and also that he had a drayman who robbed him; but it does not appear from his testimony that any considerable part of the $50,000 above referred to can be reasonably accounted for in this way. The amount of goods which he attempts to account for as stolen varies from $2,000 to $25,000. It is incredible to suppose that the latter figures are correct. It also appears from his testimony that between December 18, 1906, and October, 1907, he lost about 10 per cent, on sales; but, if the utmost credence be given to this statement, it would only account for about $6,000.</p> <p>“It also appears that the bankrupt made' assignments of his book accounts— some to a relative; others to friends. For these assignments he says he obtained about $4,000; but he cannot account for a single penny, nor can he state the amount of any check received for such assignments, or when or where the money received was deposited. With reference to his own affairs the bankrupt displays an ignorance which it is difficult to suppose was not assumed. Again and again, when called on for information with respect to matters of which he cannot reasonably be supposed to be ignorant, his reply was, T don’t remember.’</p> <p>“Giving to the bankrupt the fullest benefit which could fairly be claimed because of imperfect knowledge of English or bad memory, no one, I think, could have heard his testimony without being impressed with the belief that it was incredible, and that in replying,'as he did, that he could not remember, that he was in point of fact committing perjury.</p> <p>“The only conclusion which I am able to draw from his testimony is that he managed to make away with the goods or their proceeds. The case in many respects is on all fours with that in Re Leverton, recently decided in the Middle District (19 Am. Bankr. Rep. 426, 155 Fed. 925), and I can only repeat in conclusion, as was there said, ‘that the exemption given by the law was never intended for any such character of debtor.’</p> <p>“The exemption asked for is therefore denied.”</p>

<p>In Bankruptcy. On motions for an adjudication and a restraining order.</p>

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

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

<p>1. Courts (§ 405*) — Federal Courts — Questions op Jurisdiction.</p> <p>The question of the jurisdiction of the Circuit Court, where it appears on the record on an appeal to the Circuit Court of Appeals, cannot be ignored, but must be determined by that court in disposing of the appeal, although not made a ground of appeal.</p> <p>[Ed. Note. — Eor other cases, see Courts, Dec. Dig. § 405.*]</p> <p>2. Courts (§ 282*) — Federal Question.</p> <p>Const. Wash. art. 17, § 1, which asserts the ownership by the state of the beds and shores of all navigable waters therein, but expressly provides that it shall not be construed so as to debar any person from asserting his claim to vested rights in the courts of the state, is not in violation of the federal Constitution, as depriving riparian owners' under previous grants from the United States of their property without due process of law, nor does a suit by such owners to enjoin officers of the state from selling shore lands under a statute enacted pursuant to such provision involve any constitutional question, which gives a federal court jurisdiction thereof.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 282.*]</p> <p>3. Courts (§ 285*) — Federal Question.</p> <p>Patents issued by; the United States under general laws to lands in a territory bordering bn navigable waters do not convey by their own force title below high-water mark, but leave the question of the ownership and use of the shores to the sovereign control of the state when organized ; and, the law having been so declared by the Supreme Court of the United States, a suit by grantees of such lands to enjoin a sale of adjoining shore lands by the state does not involve the construction of any law of the United States, which gives a federal court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 285.*</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. C. C. & S. Min. Co., 35 C. C. A. 7.]</p>

<p>Petition to Superintend and Revise Proceedings from the District Court of the United States for the Southern District of Georgia.</p>

<p>Courts (§ 356*) — Federal Courts — Prosecution in Forma Pauperis — Procedure.</p> <p>Act July 20, 1892, c. 209, 27 Stat. 252 (U. S. Comp. St. 1901, p. 706), which allows the prosecution of an action in forma pauperis in a federal court, does not apply to appellate proceedings, and in the absence of a statute authorizing it the Circuit Court of Appeals has no authority to allow an appeal or writ of error in that form.</p> <p>[Ed. Note.- — For other cases, see Courts, Dec. Dig. § 356*; Appeal and Error, Cent. Dig. § 2072.]</p>

<p>1. Patents (§ 298*) — Suit fob Infbingement — Peet.iminakv Injunction.</p> <p>Unless a patent is sui>ported by public acquiescence, or prior adjudication, or some other peculiar condition, the complainant's rights must bo free from doubt to entitle him to a preliminary injunction.</p> <p>TEd. Note. — For other eases, see Patents, Cent. Dig. §§ 474-478; Dec. Dig. § 298.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.]</p> <p>2. Patents (§ 328*) — Aemob fob Pneumatic Tibes.</p> <p>The Parsons patent, No. 723,299, for an armor for pneumatic tires, the validity of which had not been adjudicated, hold not so clearly valid or supported by general acquiescence as to warrant the granting of a preliminary injunction against an alleged infringer.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 328.*]</p>

In Equity. Suit by trustee to set aside certain deeds or transfers of real estate and recover same, or proceeds thereof, for benefit of estate.

At I^aw. This is an action for the recovery of damages for breach of an alleged contract for sale of a tract of real property, which has been submitted to the court without the intervention of a jury.

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

<p>Habeas Corpus.</p>

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

<p>1. Constitutional Daw (§ 298*) — Dub Process ob Daw — Just Compensation —Regulation of Railroad Rates in Interstate Commerce.</p> <p>Neither Congress nor any legislative or administrative board acting by its authorization can competently establish rates for the transporta (ion of property in interstate commerce that will not admit of the carrier earning such compensation for the service rendered as under all the circumstances is just and reasonable, since such action would deprive it of its property without due process of law, and would be a taking of Its property for public use without just compensation, in violation of the fifth amendment to the Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. § 817; Dec. Dig. § 298.*</p> <p>Interference with interstate or foreign commerce, see note to Mc-Canua & Frazer Co. v. Citizens’ Trust & Surety Co. or Philadelphia, 21 O. O. A. 13.J</p> <p>2. Constitutional Law (§ 67*) — Judicial Powers — Reasonableness oe Railroad Rates.</p> <p>Power to determine and prescribe what are just and 'reasonable maximum rates to be charged in interstate commerce is in a limited way conferred on the Interstate Commerce Commission by section 15 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 384 [ü. S. Comp. St. 1901, p. 3165], as amended by Act June 29, 1906, c. 3591, § 4, 34 Stat. 589 [U. S. Comp. St. Supp. p. 900]); but as the commission acts only as a legislative or administrative board, and not judicially, its determination or action does not and cannot preclude judicial inquiry into the justness and reasonableness of the rates within the constitutional guaranty.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Dec. Dig. § 67.*]</p> <p>3. Carriers (§ 26*) — Rates Prescribed by Interstate Commerce Commission —Requisites to Legality.</p> <p>Maximum rates prescribed by the Interstate Commerce Commission, to be just and reasonable within the constitutional limitation, must have reasonable regard for the cost to the carrier of the service rendered and the value of the property employed therein, and also reasonable regard for the value of the service to the public; and where the cost to the carrier is not kept within reasonable limits, or for any reason its business cannot reasonably be so conducted as to render it profitable, the misfortune must fall upon the carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 26.*]</p> <p>4. Carriers (§ 32*) — Rates Prescribed by Interstate Commerce Commission —Requisites to Legality.</p> <p>Rates prescribed by the Interstate Commerce Commission under the statute are not only required to be just and reasonable within the constitutional guaranty, but they must also not be unjustly discriminatory nor unduly preferential.</p> <p>[Ed. Note. — For other eases, see Carriers, Dee. Dig. § 32.*]</p> <p>6. Commerce (§ 91*) — Judicial Review of Orders of Interstate Commerce Commission — Scope of Inquiry.</p> <p>Sections 15 and 16 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 384 [IT. S. Comp. St. 1901, p. 3365], as amended by Act June 29, 1906, c. 3591, §§ 4, 5, 34 Stat. 589, 590 [U. S. Comp. St. Supp. 1907, pp. 900, 902]) confer on the Circuit Courts, sitting in equity, jurisdiction to entertain, hear, and determine suits to compel obedience to orders of the commission prescribing rates, and also of suits to annul or enjoin the enforcement of such orders. The scope of the inquiry in both classes of suits is the same, and the court >is not confined to a consideration of the sufficiency of the facts as determined by the commission to sustain the order, but the hearing may be de novo, and may include'the taking and consideration of evidence other than that before the commission; but the presumption is that the order is valid, and the burden is upon the party attacking it to make a clear case showing its invalidity.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 91.*]</p>

<p>Trial (§ 388*) — Trial by Couri>-Special Findings.</p> <p>In an action at law tried in a circuit court without a jury by stipulation under Rev. St. § 649 (U. S. Comp. St. 3901, p. 525), the defeated party is entitled to Have the court make special findings of fact when it is doubtful under the decisions whether he could otherwise properly present to an appellate court the questions of law involved.</p> <p>[Ed. Note. — 'For other cases, see Trial, Cent. Dig. § 908; Dec. Dig. § 388.*]</p>

<p>Courts (§ 524*) — Conflicting Jurisdiction — Admiralty and Bankruptcy Courts.</p> <p>AVliere a court of admiralty in a suit in rem acquired jurisdiction of the libeled vessel and the parties before the institution of bankruptcy proceedings against the owner in another district, and has sold the vessel and "holds the proceeds, it can exercise its jurisdiction only so far as to determine the rights of the parties in admiralty, and any rights claimed under the bankruptcy Jaw must be submitted to and determined by the court of bankruptcy having jurisdiction.</p> <p>[Ed. Note. — Eor other eases, see Courts, Dec. Dig. § 524.*</p> <p>Jurisdiction in admiralty as to matters of contract, see notes to The Richard Winslow. 18 O. C. A. ¡547; Norton v. The lilchard Winslow, Id.; Boutin v. Rudd, 27 C. C. A. 530.]</p>

<p>Aliens (§ 38*) — Unlawful Landing of Chinese — Indictment.</p> <p>An indictment charging the master of a vessel with having permitted a Chinese laborer to land in the United States from his vessel in violation of Act Sept. 13, 1888, c. 1015, § 9, 25 Stat. 478 (U. S. Comp. St. 1901, p. 1316), held to sufficiently negative- the exceptions contained in section 10 of the act, -where it averred that the said Chinese person was not landed by reason of “any necessity.”</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 38.*</p> <p>Importation of contract labor, see note to United States v. Parsons, 66 C. C. A. 133.]</p>

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

<p>Appeal from the United States Court of Appeals in the Indian Territory.</p>

<p>Bankruptcy (§ 76*) — Invouuntaey Proceedings — Petitioning Creditors.</p> <p>Const. Cal. art. 12, § 3, provides that “the directors or trustees of corporations and joint-stock associations shall bo jointly and severally liable to the creditors for all moneys embezzled or misappropriated by the officers of such corporation or joint-stock association during the term of office 'of such director or trustee. The Supreme Court of the state, whose decision in that regard is binding on the federal courts, has held that such provision is self-executing, and that the liability of a director to creditors thereunder is contractual and may be enforced by any creditor against any director by an action at law. Held, that the liability of a director of a savings bank corporation, whose funds have been embezzled or misappropriated by its officers, to depositors in such bank, is a fixed liability absolutely owing within the meaning of Bankr. Act July 1, 1898, c. 541, § 63a (1), 30 Stat. 562 (U. S. Comp. St. 1901, p. 3447), and that such depositors are creditors who may join in a petition in involuntary bankruptcy against the director.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 76.*]</p>

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

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of California.</p>

Petition for Writ of Mandamus to the Circuit Court of the United States for the District of Massachusetts. On appeal from the ruling of the clerk denying costs.

<p>1. Bankruptcy (§ 414*) — Failure of Bankrupt to Account for Property —Presumption.</p> <p>Where a bankrupt fails to schedule or to surrender to his trustee goods shown to have been in his possession a short time prior to his bankruptcy, the burden rests upon him to account for the same, and, if he fails to do so, the presumption is that he sold them and conceals the proceeds.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 414.*]</p> <p>2. Bankruptcy (§ 467*) — Discharge—Credibility of Witness — Discretion of Court.</p> <p>Whore the granting of a discharge to a bankrupt was objected to on the ground that he fraudulently concealed the proceeds of property sold, and there was reasonable ground for the action of the District Judge in discrediting his testimony in explanation, the exercise of his discretion will not be reviewed.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 467.*]</p>

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

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

<p>Master and Servant (§ 87*) — Employer’s Liability Act — Retroactive' Operation — “Action Hereafter Brousiit.”</p> <p>The provisions of Act April 22, 1908, c. 149, 35 Stat. pt. 1, p. 65, relating to the liability of common carriers by railroad to their employés, are prospective only in their operation, and the phrase “actions hereafter brought,” as used in section 3, does not apply to an action by an employé for an injury received before the statute was enacted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 87.*]</p>

<p>SHIPPING (§ 86*) — INJUBY OP SlEVKDOEB — LIABILITY OF VESSEL.</p> <p>Evidence held not to sustain the allegation of a libel that the injury of libelant while employed by a stevedore in discharging a vessel was due to defects in the (winch, supplied by the vessel, which would render her liable therefor.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 86.*]</p>

<p>1. Monopolies (§ 12*) — “Combinations in Restraint op Interstate Commerce.”</p> <p>Every combination which restrains free competition in interstate trade is a combination in restraint of interstate commerce, in violation of Sherman Act July 2, 1890, c. 647, § 1, 26 Stat 209 (U. S. Comp. St 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1275-1276; vol. 8, p. 7606.]</p> <p>2. Monopolies (§ 20*) — “Combination in Restraint op Interstate Commerce” — Consolidation oe Competing Corporations.</p> <p>The consolidation into one corporation of a large number of corporations engaged in the different branches of the tobacco industry, many of which were previously active competitors in interstate and foreign commerce, with the result of eliminating such competition and of giving the consolidated company control of at least 75 per cent, of the entire manufactured tobacco business of the United States, including the interstate trade therein, constitutes a “combination in restraint of interstate commerce,” in violation of Sherman Act July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200).</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>3. Commerce (§ 40*) — “Interstate Commerce” — What Constitutes.</p> <p>A corporation engaged in the manufacture and sale of tobacco in its various forms, which purchases its raw materials and supplies in different states and in foreign countries, and ships them by means of common carriers into other states for manufacture, and its products from one state into another between its different factories and agencies, and sells the same by means of agencies and salesmen throughout the United States- and in the markets of the world, is engaged in “interstate commerce,” and it is immaterial that it distributes its products by means of common carriers or that the title technically passes on delivery to such carriers.</p> <p>[Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 29, 30; Deo. Dig. § 40.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]</p> <p>4. Monopolies (§ 17*) — Combinations in Restraint op Interstate Commerce —Subsidiary Corporation — “Unlawful Monopoly.”</p> <p>A corporation engaged in selling tobacco products at retail is not rendered unlawful by the fact that a majority of its stock is owned by another corporation, which is itself an unlawful combination in restraint of interstate commerce, and which sells to the retailing corporation the larger part of its goods, where the latter conducts its business independently in a lawful manner, and sells also goods of other manufacturers. Nor does it constitute an “unlawful monopoly,-’ in violation of Sherman Act July 2, 1890, c. «17, § 2, 26 Stat. 209 (IT. S. Comp. St. 1901, p. ¡1200), because it operates in the several states 100 retail stores out of 600,000 places where tobacco is sold.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 17.*]</p> <p>Ward, Circuit Judge, dissenting.</p>

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

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

<p>In Admiralty. Suit in personam for damages to barge.</p>

<p>In Bankruptcy. On reports of special referees, and on motion for an order requiring bankrupt to pay money to trustee.</p>

<p>1. Raiueoads (§ 190*) —Suit to Foreclose Mortgages — Reorganization Plan.</p> <p>In consolidated suits to foreclose various liens upon railroad property, upon the question of ordering a sale of the property in advance of a determination of the rights of the .several parties and the right of bondholders to intervene, a plan of reorganization, proposed by certain of the bondholders, may properly be considered.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 190.*]</p> <p>2. Corporations (§ 482*) — Mortgages—Foreclosure—Intervention.</p> <p>Mortgage bondholders have no right to intervene in a suit by the trustee to foreclose the mortgage, unless negligence, incompetency or improper conduct of the trustee, injuriously affecting their interests, is established; but the failure of the trustee to join in contesting the validity or amount of a prior mortgage, where there is a bona fide contest of the same by other parties in interest, is a sufficient ground for permitting the bondholders to intervene and make such contest.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 482.*] :</p> <p>3. Railroads (§ 192*) — Foreclosure of Mortgage — Sale of Property — Discretion of Court.</p> <p>In a suit to foreclose various liens on railroad property, it is within the discretion of the court to order a sale of the property in advance of settling the respective rights and priorities of the parties, and such discretion should be exercised, where it appears undesirable to continue the operation of the property by receivers, and by proper reservations in the decree of sale the rights of all parties can be protected.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 192.*]</p>

In Equity. On motion for preliminary injunction. The plaintiff, a citizen and a corporation under the laws of the state of Alabama, brings its bill to this court to enjoin the sale of its real estate situated in Walton county, in the Northern district of Florida. The tax sale which the bill seeks to enjoin is for the accrued taxes of the years 1905-06-07, and the amount involved is $4,080.

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

<p>1. Courts (§ 500*) — Federal and State Courts — Priority of Jurisdiction.</p> <p>A suit by a mortgage creditor of a corporation in a state court, asking for the appointment of receivers, and in which temporary receivers were appointed, although the appointment was afterward vacated pending a hearing on the issues joined, is a suit in rem, which gives such court exclusive jurisdiction of the property until it is concluded, and a federal court will not, while it is pending, appoint receivers for the property in a suit against tie same defendants, subsequently commenced therein, by a different complainant, who may intervene in the suit in the state court, although the bill therein does not expressly state that it is filed on behalf of all creditors.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1408; Dec. Dig. § 500.*]</p> <p>2. Courts (§ 500*) — Federal and State Courts.</p> <p>In such case the complainant in the state court has the right to appear in the federal court without leave for the special purpose of raising the question of the court’s jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 500.*]</p>

<p>Internal Revenue (§ 47*) — Violation of Oleomargarine Act — Indictment.</p> <p>An indictment founded on section 6 of the oleomargarine act of August 2, 1886, c. 840, 24 Stat. 210 (U. S. Comp. St. 1901, p. 2230), charging a retail dealer with having violated said section and the regulations prescribed thereunder by failing to pack oleomargarine sold by him as therein required, must describe the package used with reasonable certainty so as to advise the defendant of the particular offense charged, and a general averment that “the said oleomargarine was not then and there packed in new, suitable wooden or paper packages having marked or branded thereon the name and address of him, * * * the words ‘pound’ and ‘oleomargarine’ and the quantity of oleomargarine so sold as aforesaid,” but which fails to specify in which respect the package used was unlawful, is insufficient as being too indefinite and uncertain.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Dec. Dig. § 47.*]</p>

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

<p>In Rem. On demurrer to information for forfeiture.</p> <p>Among the statutory provisions involved herein is the following portion of Customs Administrative Act June 10, 1890, c. 407, '§ 3, 26 Stat. 131 (U. S. Comp. St. 1901, p. 1887) :</p> <p>“Sec. 3. That all such invoices shall, at or before the shipment of the merchandise, be produced to the consul * * * of the United States of the consular district in which the merchandise was manufactured, as the case may be, for export to the United States, and shall have indorsed thereon, when so produced, a declaration signed by the purchaser, manufacturer, owner or agent, setting forth that the invoice is in all respects correct and true.”</p>

<p>Copyrights (§ 70*) — Action to Recover Penalties for Infringement — Procedure.</p> <p>A writ of seizure issued in, or preliminary to, an action under Rev. St. § 4965 (U. S. Comp. St. 1901, p. 3414), to recover the penalty prescribed thereby for each copy of an infringing copyrighted publication found in the possession of the infringer is not strictly a writ of replevin, but only in the nature of such writ, and is not to be rendered inoperative by the technical provisions of a state statute.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. § 70.*]</p>

<p>On Motion to Vacate Writ of Seizure.</p>

<p>Extradition (§ 12*) — Ikternationat.—Warrant of Arrest.</p> <p>Under Rev. St. § 5270 (U. S. Comp. St. 1901, p. 3591), which provides generally for the issuance of a warrant in extradition proceedings on a complaint under oath, a certificate of the Secretary of State that application for the extradition of the person named has been made by the foreign government is not necessary to the issuance of such warrant, even where, as in case of Russia, the treaty provides for such certificate.</p> <p>lEd. Note. — For other cases, see Extradition, Cent. Dig. § 13; Dec. Dig. § 12.*]</p>

On March 14, 1906, James M. Stepp, the father of the plaintiffs below, was struck and instantly killed by a train of the Chicago, Rock Island & Pacific Railway Company, the plaintiff in error, on the depot platform at Randolph, Mo., a suburban station accommodating 400 or 500 people, and located seven miles east of the Union Depot in Kansas City.

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

This is a bill by manufacturers of proprietary medicines who put them upon the market under a system of contracts intended to maintain the prices fixed by them. There are two forms of these contracts, one with wholesalers and another with retailers. Like contracts, it is claimed, have been made and signed by nearly all jobbers and retailers in the United States who deal in such goods. These contracts are sot. out at the close of the opinion.

<p>1. Equity (§ 409*) — Practice—Master’s Certifícate or Other Proof of Entire Evidence Requisite to Assail His Finding of Fact.</p> <p>The master’s finding of facts upon evidence taken before him cannot be impeached, in the absence from tho record of his certificate or other competent proof, either that the evidence presented is the entire evidence that was before him, or that it was all the evidence which was before him relative to the specific finding or findings challenged.</p> <p>[Ed. Note.- — For other cases, see Equity, Dec. Dig'. § 409. *1</p> <p>2. Equity (§ 409*) —Order to Report Evidence and Report Thereof Competent Proof.</p> <p>An order of the court that the master should take and report the evidence, his report of it, and the legal presumption of his faithful discharge of official duty constitute competent proof that he has returned all the evidence before him, in the absence of evidence to the contrary.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 920, 923; Dec. Dig. § 409.*]</p> <p>3. Equity (§ 403*) — Consent to Reb’erence to Master Not Inferred from Absence of Objection to General Order.</p> <p>The consent of parties to a suit in equity to a reference to a master to find the facts, which will render his finding upon conflicting evidence unassailable under the rule in Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 D. Ed. 764, may not be inferred from the mere failure to object to a general order of reference made before the suit was commenced.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 879; Dec. Dig. § 403.*]</p> <p>4. Appeal and Error (§ 931*) — Master’s Findings Presumption of Correctness.</p> <p>The legal presumption is that the findings of the master upon conflicting evidence are correct, and they will not be set .aside unless it appears with reasonable clearness that he has fallen into a mistake of fact or committed an error of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3762; Dee. Dig. § 931.*]</p> <p>5. Mortgages (§ 38*) —Deed Intended as Mortgage — Sufficiency of Evidence.</p> <p>The legal presumption is that a deed expresses the intention of the parties, and the evidence must be clear and convincing to sustain a decree that it was intended as a mortgage.</p> <p>The evidence in this case considered, and helé to be of this character. [Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 109; Dec. Dig. § 38.*]</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. Bankruptcy (§ éll*) —'Review of Proceedings — Petition fob Revision— “PROCEEDING IN BANKRUPTCY. ”</p> <p>A petition by a trustee in bankruptcy to a court of bankruptcy for a summary order on a receiver of a state court to deliver property to the petitioner is a proceeding in bankruptcy, and the order made thereon is reviewable by the Circuit Court of Appeals in matter of law on a petition to revise nnder Bankr. Act .Tuly 1, 1898, e. 541, § 24b, 80 Stat. 553 (II. S. Comp. St. 1901, p. 3432).</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 441.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 703-704.</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Bankruptcy (§ 100*)-Adjudication — Coluaterai, Attack.</p> <p>An adjudication of bankruptcy based on a finding that because of insolvency a receiver was appointed for the property of the alleged bankrupt under the laws of a state, which is made an act of bankruptcy by Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), as amended by Act F'eb. 5, 1903, c. 487, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1025), is conclusive as to such fact, and cannot be collaterally attacked.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 342; Dec. Dig. § 100.*]</p> <p>3. Bankruptcy (§ 293*) — Rights of Trustee-Property in Custody of Receiver.</p> <p>On an adjudication in bankruptcy and the appointment of a trustee, he is entitled to the possession of property of the bankrupt in the possession of a receiver appointed by a state court within four months, and, if such right is not recognized by the receiver or the court which appointed him, it is competent for, and the duty of, the bankruptcy court to enforce it.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Doe. Dig. § 293.*]</p>

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

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Michigan.</p> <p>This is an action for the price of lumber sold and delivered under a contract, and counterclaim for damages for breach of contract in not delivering lumber as demanded. Jury, and verdict for the plaintiff and against the defendant on its cross-action. Writ of error was sued out by the defendant below.</p>

<p>Shipping (§ 173*) — Charter Party — Demurrage.</p> <p>Under a charter party which placed the duty of discharging and delivering the cargo alongside upon the owners, neither the charterer nor cargo can be held liable for demurrage because of delay in discharging beyond the stipulated lay days, without proof that it was through the fault of one or the other.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 570; Dec. Dig. § 173.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. O. A. 657; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.]</p>

<p>BANKRUPTCY (§ 140*) — PROPERTY PASSING TO TRUSTEE — CONTRACT — SALE OR Lease.</p> <p>A corporation at the time of its bankruptcy had in its possession a steam shovel, which it had obtained under a written contract by which claimant, who was the owner, agreed to lease it to the bankrupt at a monthly rental for eight months, at the end of which time the bankrupt agreed to buy it at a stated price. When the time expired nothing was done, but the bankrupt continued to pay the rental, and claimant paid the taxes on the shovel for the next year. Held,, that the contract was one of lease, and not of sale, and that claimant was entitled to reclaim the property from the bankrupt’s trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>Petition for Revision of Proceedings of the District Court of the «United States - for the Northern District of Alabama, in Bankruptcy.</p>

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

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

<p>Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>This appeal is from a decree on final hearing of a bill filed by the appellant for relief against alleged infringement of a patent, which dismisses the bill for want of equity. The patent (No. 640,456) is for an “adjustable switch-rod” for use in railroad “point rail or split switches,” and describes the invention as relating “to that class of switch-rods that are designed for adjustably connecting the switch rails, so that the prop'er positions of the latter with reference to the permanent rails may be always assured, while at the same time provision is made for taking up wear between the parts and compensation for variations in the positions of the movable parts ofr the switch.” It farther specifies that the switch-rods “are made in two or more parts joined through the medium of a block or plate to which one of the parts is eccentrically connected, the other of the parts being provided with an eye or socket, or equivalent bearing, in which the block or plate is fitted, so that it may be rotated for the purpose of adjusting the length of the rod.”</p> <p>The following Fig. 1 is exhibited in the patent as .a sectional elevation of the switch-rod, and Fig. 2 as a horizontal section on line 2-2 of Fig. 1:</p> <p> </p> <p>And the description and references in the specifications read:</p> <p>“A represents the switch-rod, which is connected to each of the switch rails by the means of them. The rod is provided with an overhanging ear B, extending parallel with it and providing jaws between which projects a portion of a chair O. The portion aforesaid of the chair is provided with a circular eye or socket, in which fits, so as to' be capable of rotation, an eccentric D, formed with or non-rotatively attached to a shaft E. The portion of the rod A which forms one of the jaws has an opening through which the shaft E passes, and in which it has pivotal bearing, permitting its rotary movement, the lower end of the shaft being 'threaded for the reception of a nut E. The ear B, forming the other jaw, is also provided with an opening through which the shaft projects, the portion of the shaft occupying this opening being of non-circular shape, preferably polygonal. The opening in the ear B is for the purpose of providing a seat or bearing for a locking-block or plate G, which has means for non-rotatively engaging the shaft, the upper portion of the shaft being threaded for the reception of a nut, H, for holding the locking-block in place.”</p> <p>The opinion filed in the trial court by Judge Kohls» at (as certified in the record) recites the claims in suit and the distinctions in means on which non-infringement is found, and reads as follows:</p> <p>“This is a suit to restrain alleged infringement of claims 1, S, and 6, of letters patent No. 640,456, for adjustable switch-rod, granted January 2, 1900, to Henry G. Elfborg. The claims in suit are as follows:</p> <p>“ ‘(1) The combination with two parts to be joined, of an eccentric pivoted to one of them and fitting rotatively in an eye or socket in the otlier, a locking-block seated upon the part to which the eccentric is pivoted, means for non-rotatively connecting the eccentric and locking-block, and means for preventing the locking-block from moving about the pivotal axis of the eccentric, substantially as set forth.’</p> <p>“ -(3) The combination with two parts to be joined, of an eccentric fitting ro-tatively in an eye or socket; in one of tlie parts, a shaft carrying the eccentric and having pivotal bearing intho other of the parts, a locking-block having non-rotative engagement with the shaft, and means carried by the part in which the shaft has its pivotal bearing for preventing the locking-block from moving about the axis of the shaft, substantially as set forth.’</p> <p>“ ‘(6) The combination with two parts to be joined, of an eccentric fit! ing ro-tatively in an eye or socliet formed in one of them, a shaft carrying the eccentric and having pivotal bearing in the other of said parts, a locking-block having noil-rotative engagement with the shaft, means carried by the part in which the shaft has its pivotal bearing for preventing the locking-block from moving about the axis of the shaft, and a handle carried by the locking-block for manipulating it, substantially as set forth.’</p> <p>“A switch-rod is a member connecting and holding in alignment the movable opposite rails of a railroad switch, and the patent in suit relates to what is known, by reason of the pointed ends of its movable rails, as a ‘point rail’ or ‘split switch.’ Obviously, the simplest form of a switch-rod would be a plain rod or bar having holes for bolts or other means at each of its ends for fastening to the rails. This simple means of holding the rails in proper position is not, however, practicable for the reason that where the pointed rails contact with the continuous rails they gradually become worn and loose, thus necessitating frequent readjustment of the length of the switch-rod. Means for adjusting the rod to take up this wear has been the subject of many patents. Some have used the screw as a means of adjustment; others have used plates bolted, to each end of the rod with a number of lióles, each giving a new adjustment when used with the connecting bolt; while the later devices, of which the patent in suit is an example, use the eccentric as an adjusting means.</p> <p>“The class of devices using the eccentric have these features in common: (1) Two principal parts of the rod to be joined; (2) a bolt, shaft, or pin passing through holes in each of the parts; (3) a disk fitted rotatively into one of the principal parts, through which passes, at some point other than its center, the axis of the coupling pin or bolt; (4) some means for locking this eccentric against rotation.</p> <p>“The patents of this class differ from each otlier somewhat in the assembling of these parts, and this seems to be principally on account of their different means of locking the eccentric. The patent, therefore, cannot be called a pioneer patent. It follows closely the methods of the prior art in principle, differing only in the specific locking means employed.</p> <p>“Defendant admits the manufacture and sale of two kinds of switch-rods which are charged to infringe the claims in suit: The first of these devices is substantially identical with that illustrated in Figs. 7, 8, and 9 of patent No. 679,153, granted to W. C. Dee aud W. F. Moore on July 23, 1901, which patent is owned by defendant company. The second is a slight modification of the Dee & Moore patent No. 679,153. The difference between the two devices of defendants is admitted by both parties to be immaterial.</p> <p>“The device of the patent in suit undoubtedly discloses peculiarities of construction not found in the prior art. Elfborg seems to have been the first who, by making tbe eccentric integral with the shaft, gave to that member the new functions of forming part of the means for adjusting the eccentric and for locking the eccentric when adjusted.</p> <p>“Defendant’s structure embodies these features of novelty, but goes a step further. While the shaft-head of complainant forms but a part of the means for locking the eccentric against rotation (the other part being a detachable locking-block), defendant’s shaft-head is so made as to dispense entirely with the separate locking-block. Defendant has made in one part what complainant made in two, but in doing so has also changed the mode of operation. In adjusting complainant’s device the nut on the shaft-head is removed, the locking-block lifted out, the shaft with its eccentric turned to the desired position, and the locking-block then replaced. In defendant’s device the lower nut is removed (the upper one being integral with the shaft); the shaft must then be raised to admit of turning, and then lowered to lock the eccentric. While It-may be, as seems to be the case, that Elfborg was the first to use the eccentric integral with the shaft, yet, considered separately, this was no part of his invention. What he did invent was a combination, and there is no rule of law' prohibiting defendant’s use of any elements of Elfborg’s combination, provided it is used in a different combination.</p> <p>“To find infringement, the court must find that the enlarged octagonal shaft-head of defendant’s devie'e is the equivalent of the ‘locking-block’ of complainant’s claims, and -that the integral connection between the shaft and its head is the equivalent of the ‘means for non-rotatively connecting the eccentric and locking-block’ of claim 1 and the ‘non-rotative engagement with the shaft’ of claims 3 and 6. Under the language of claim 6, this bolt-head must also be construed as ‘a handle carried by the locking-block for manipulating it.’ The defendant’s bolt-head corresponds to the upper octagonal part of the shaft of complainant’s patent. It is simply an enlargement of this part, and the ‘locking-block’ shown and described by complainant, and plainly meant by him when he uses the term, is a separate locking-block. There is no such part in the defendant’s device. While the integral connection between the bolt-head and its shaft of defendant’s structure might be construed to be equivalent to ‘means for non-rotatively connecting the eccentric and locking-block,’ this could not be done without manifest abuse of the language used in claims 3 and 6, where ‘non-rotative engagement with the shaft’ is called for. Engagement with the shaft implies clearly the want of integrality. It would seem a forced construction to hold that the bolt-head of defendant’s device is the ‘handle’ described and claimed by complainant. There is no such handle in defendant’s device.</p> <p>“Complainant contends that it does not involve invention to simply make the locking-block of its patent integral with the shaft, and complainant’s expert has gone into this question fully in his testimony, and has offered in evidence an exhibit model showing the integral connection of a bolt-head made circular and locked by a narrow lateral projection which is adapted to fit into any one of a series of notches formed around the hole in which the bolt-head rests. Leaving out of consideration the handle, which is integrally connected with the bolt-head, this construction is substantially that of defendant. The mode of operation is that of defendant: The lower nut must be loosened and the whole shaft raised before it can be adjusted. This exhibit model seems to beg the question. If integral connection is made between complainant’s removable locking-block and its octagonal shaft-head, without other change, the device becomes inoperative and incapable of adjustment.</p> <p>“Keeping in view the state of the prior art, and giving to the claims as broad a construction as the terms used will reasonably warrant, it does not appear that defendant has infringed, and the bill will therefore be dismissed for want of equity.”</p>

<p>Patents (§ 328*) — Infringement—Automatic Egg-Boiler.</p> <p>The Curtis patent No. 557,192 for a device for regulating treatment of substances chronometrically, applied, principally to an automatic egg-boiler, while not a pioneer patent, discloses a patentable advance on the prior art and is valid. Claims 1 and 4 also held infringed.</p> <p>[Ed. .Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 32S*) — Process — Description oe Means — Pkooess oe Expanding Sheet Metal.</p> <p>The Golding patent No. 527,242, for a method of making expanded sheet meta! by slitting and stretching the sheet at the same time, is not invalid for insufficiency of description of the means by which the process may be practiced, nor because for the function only of a machine, but covers a new, useful, and patentable improvement in the art of expanding sheet metal, and is valid. Also held, infringed.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 328.*]</p>

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

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

<p>1. Patents (§ 327*) — Patents—Suit fob Infringement — Effect or Decbef, fob Dependant.</p> <p>A final decree in favor of the defendant in a patent infringement suit entitles 1dm to continue to make and sell the alleged infringing article free from interference by the complainant by virtue of the patent, and a court of equity having jurisdiction of the parties may by a decree in personam enjoin the complainant from interfering with the defendant’s business by bringing suits against his customers, based on the same patent, either in this or a foreign country.</p> <p>TEd. Note. — For other case's, see Patents, Dec. Dig. § 327.*]</p> <p>2. Patents (§ 189*) — Scope op Gbant — Rights in Fobeign Country.</p> <p>The monopoly of a patent does not extend beyond the jurisdiction of the government granting it, and whatever effect a patent granted by one country has in another depends upon the status given to it by the laws of the latter.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 189.*]</p> <p>3 Evidence (§ 37*) — Foreign Laws — Laws op Ouba under Military Occupation.</p> <p>Cuba, during the period of its military occupation by the United States, was not a part of the United States, but a foreign country, of whose laws an American court cannot taire cognizance without plea and proof.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 52; Dec. Dig. § 37.*]</p> <p>4. Patents (§ 327*) — Registration in Cuba — Suit for Infringement in Cuba.</p> <p>By virtue of the Platt amendment, imposed by the United States on the Constitution of Cuba, which provided that “all the acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected,” United States patents registered in Cuba during such occupancy under circular No. 12 and civil order No. 160 of the Division of Customs and Insular Affairs of the War Department, which provided for such registration and that the rights thereby acquired should be the same as given by the Spanish laws, acquired by such registry the status of a Cuban grant; and a suit for infringement of such a registered patent in Cuba is based on such grant, and not upon the United States patent, and is not barred by a decree between the parties in the United States holding the original patent invalid. •</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 327.*]</p>

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

<p>Bankruptcy (§ 414*) — Discharge—Failure to Keep Books.</p> <p>Evidence held to sustain the finding of a referee that the failure of a bankrupt to keep such books of account as would disclose his financial condition was intentional, and with a purpose to conceal such condition, and that he was therefore not entitled to a discharge.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 414.*</p> <p>What persons are subject to bankruptcy, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p>

<p>Bankruptcy (§ 217*) — Stay or Proceeding on Judgment-Vacation.</p> <p>An order staying a judgment creditor of a bankrupt, whose judgment is provable in bankruptcy, from proceeding to collect his judgment for one year, or until the bankrupt’s application for a discharge has been disposed of, will not be vacated because, under Code Civ. Froc. N, Y. § 1391, as amended by Daws .1908, p. 433, c. 148, the creditor is entitled to take under execution 10 per cent, of the debtor’s salary, since a discharge would be a bar to the enforcement of the judgment against any property of the bankrupt, although acquired after the bankruptcy; but the court in such case may impound 10 per cent, of the bankrupt’s salary until the right to discharge has been determined.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. § 330; Dec. Dig. § 217.*]</p>

<p>1. Injunction (§ 138*) — Suit Against Municipality — Persons Bound.</p> <p>In a suit by a gas company against a city and its officers to enjoin the enforcement of an ordinance fixing the price of gas to be charged to all consumers as unconstitutional, where the defendant is itself a consumer and the total number of such consumers is so large as to preclude their being made parties, and the bill alleges that under the ordinance and statutes of the state' any consumer may maintain an action to compel complainant to furnish gas at the rate prescribed by the ordinance or to recover a penalty on its refusal, a temporary restraining order granted pending a hearing may properly include all consumers although not parties to the record, such consumers being the real parties in interest and represented by the municipality.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 310; Dee. Dig. § 138.*]</p> <p>2. Injunction (§ 149*) — Temporary Restraining Order — -Conditions.</p> <p>In such case, however, the court may properly require complainant to pay into court any excess above the ordinance rate collected from consumers while the restraining order is in force, to be disposed of by the court on the final determination of the case.</p> <p>[Ed. Note. — For other cases, see Injunction, Dec. Dig. § 149.*]</p>

<p>On Motion to Arrest in Judgment..</p>

<p>1. Evidencio (§ 098*) — Parol Evidence to Vary Writing — Contbact ojt Sebv-ice.</p> <p>The contract of service of a seaman as evidenced by the shipping articles cannot be changed by parol evidence unless fraud is clearly established.</p> <p>FEd. Note. — For other cases, see Evidence, Cent. Dig. § 176; Dec. Dig. § 898 *-- Seamen, Cent. Dig. § 23.]</p> <p>2. Seamen (§ 3*) — Action hy Foreign Seaman fob Wages — Jurisdiction of United States Admiralty Courts.</p> <p>Libelant, who was a British seaman, signed articles In England for service on an English ship, to return to a P>ritish port for discharge, the articles also providing that if he claimed a discharge in the United States he should be paid wages at the rate of 5 shillings per month. On reaching New York he had a dispute with the mate, who told him to leave the vessel, but he did not do so, and on the nest day was told by the captain to go to work, and that if he left he would only be paid the 5 shillings per month. He subsequently left the vessel, with the consent of the mate, but was given an opportunity to return by the British consul, who also told him if he did not he would be entitled to only such wages, and on his refusal to return posted him as a deserter. Held, that the mate 'had no authority to discharge him, and that under the terms of his contract, having left the ship voluntarily, he had no right of action against the ship which would be enforced by a court of admiralty of the United States, although such court might properly entertain jurisdiction to investigate the facts, but that he would be left to his remedy under the British law, by which his contract rights were governed.</p> <p>[Ed. Note. — For other cases, see Seamen, Dec. Dig. § 3.*]</p>

<p>At Raw. Action on contract. On motion to strike out replications to pleas.</p>

In the decision below the Board of General Appraisers reversed the decision by the collector of customs at the port of New York, holding that he had proceeded illegally in the ascertainment of the dutiable length of imported gloves.

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The opinion below reads in part as follows:</p> <p>HAY, General Appraiser. The appraiser reports that the merchandise consists of a liquid extract of the coffee bean, commercially known as “essence of coffee.” and not as “coffee” or “coffee substitute.” The sample bottle submitted at the hearing is labeled “Concentrated. Essence of Turkey Coffee,” with directions for adding 1 to 2 teaspoonfuls of the essence, sugar, and milk or cream, and boiling water, to make a cup of coffee. The witnesses introduced by the importer at the hearing testified that they had no knowledge of the ingredients composing the commodity in question, but that it was used as a beverage, and one of them expressed the belief that it was composed of coffee and chicory.</p> <p>With no other testimony before us than was presented, we could not sustain either of the importer’s contentions. It is certainly not coffee, although coffee doubtless enters very largely into its composition, and in fact it may be manufactured wholly from coffee. It cannot, in our judgment, come under paragraph 283 of Act July 24, 1897, c. 11, § 1, Schedule G, par. 283, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652), as it is apparent from the reading of that paragraph that it is intended to cover commodities that are not coffee and yet used as a substitute for it. No other paragraph of the law under which the commodity could be classified has been called to our attention, and the classification made by the collector is apparently a correct one. The commodity is not an unmanufactured article, and, if it is assessable under section 6, 30 -Stat. 205, c. 11 (ü. S. Comp. St. 1901, p. 1693), it is of course at the higher rate. The protest is therefore overruled.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below, which is reported as G. A. 6,713 (T. D. 28,712), sustained in part the petitioners’ protests against the assessment of duly by the surveyor of customs at the port of Louisville. In these proceedings the importers contend for a greater amount of relief than that granted by the board in the decision under review.

On Application for Review of a Decision of the Board of United States General Appraisers. The Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. The Board’s opinion is as follows: Warte, General Appraiser.

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below, which is reported as G. A. 6,136 (T. D. 26,668), the Board of General Appraisers, one member dissenting, held that importations of so-called “panne velvet” had been improperly classified by the collector of customs at the port of New York as “velvets,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 386, 30 Stat. 186 (U. S. Comp.

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

The bill in this case was filed in the court below November 23, 1904. Held: and impounded in said dams and storage basins, and none of the same has floated down or been carried down below said dams; that the lands claimed by the complainants, and each of them, and those associated with them and whom they claim to represent, and each of them, mentioned and described in the bill of complaint, are situate in…

This is an action for damages for the breach of a contract brought by the Savannah Electric Company against Hite & Rafetto. On September 18, 1905, Hite & Rafetto, through their agents, the Dixon Lumber Company and G. R. Gabell, made proposals to the Savannah Electric Company for supplying it with 12,000 tons of coal.

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

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

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

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

<p>1. Appeal and Error (§ 1030*) — Review—Findings of Fact.</p> <p>The finding of a Circuit Court on a question of fact in an action at law tried by stipulation without a jury is conclusive on a reviewing court if there is any evidence in its support.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3979; Dec. Dig. § 1010.*]</p> <p>2. Courts (§ 356*) — Practice in Federal Courts — Appeal—Record—Opinion of Lower Court.</p> <p>Under the federal practice the opinion of a trial court cannot he referred to by an appellate court for the purpose of ascertaining the facts upon which the judgment was based, nor to control the formal findings made, although a reference thereto is incorporated in- the bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. § 356.*]</p> <p>3. Contracts (§ 303*) — Action for Breach — Defenses.</p> <p>Under a contract which required defendant to furnish plaintiffs with all the tin cans required in its cannery during a season, not exceeding a stated number in any one day, with a proviso that it should be released from any obligation if it should be unable to perform by reason, inter alia, “of damage by the elements or of any unavoidable casualty,” it was no defense to an action for breach of the contract for failure to furnish the number of cans required that defendant contemplated the use of a cargo of tin which at the time the contract was made had been shipped from Liverpool for San Francisco by way of Cape Horn, and that by reason of adverse weather the vessel was longer than usual in making the voyage, there being no provision in the contract with respect to such shipment.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1409; Dec. Dig. § 303.*]</p> <p>4. Damages (§ 23*) — Breach of Contract — Loss of Profits.</p> <p>Where it was within the contemplation of the parties when such contract was made that plaintiff was engaged in canning green fruit and vegetables during the season, that it would make contracts for the purchase of such supplies and for the sale of its canned products in reliance on its contract with defendant for cans, on a failure to furnish the number required plaintiff was entitled to show as an element of the damages recoverable the profit it would have realized from its sales but for the breach of contract.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 58; Dec. Dig. § 23.*]</p>

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

<p>Patents (§ 828*) — Invention—Method op Sprinkling Streets.</p> <p>The Van Westrum patont No. 752,487, for a method of sprinkling streets, consisting of treating tile loose surface of roads or streets with a mixture or “solution” of oil and water, is void on its face, there being no patentable invention or novelty in using a mixture of oil and water for that purpose, and no method known or disclosed by the patent of combining the two in solution.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328. *J</p>

In Equity. On final hearing. Suit for an alleged infringement of letters patent No. 813,272, issued to Henry Mueller January 23, 1894, for improvements in interchangeable right and left stop and waste cocks, and assigned to the complainant. .Defense, that the patent is anticipated by prior patent and the public use of other well-known devices, and noninfringement.

In Equity. On final hearing. The parties to this suit are the same as in No. 235, just decided, and it is to restrain an alleged infringement of a trade-mark, unfair competition in trade, and for an accounting. Defense, noninfringement and denial of the alleged unfair competition.

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

<p>1. Bankruptcy (§ 165*) — Voidable Preference — Transfer as Security for Loan.</p> <p>Property transferred by a borrower at the time of receiving a loan and for the purpose of making the lender sq.fe is security, and the validity of the transfer, if not accompanied by positive fraud, is recognized and enforced in bankruptcy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 259; Dec. Dig. § 165.*]</p> <p>2. Bankruptcy (§ 160*)-*-Voidable Preference-Proof of Insolvency.</p> <p>The fact that a corporation engaged in the performance of a contract •which required a considerable expenditure before it was entitled to payment thereunder arranged with a hank for making overdrafts is no evidence that it was insolvent at the time within the meaning of Bankr. Act July 1, 3898, c. 541, § 1, subd. 15, 30 Stat. 545 (U. S. Comp. St. 1901, p. 3419).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 160.*]</p> <p>3. Evidence (§ 43*) — Judicial Notice — Proceeding in Other Courts — Record in Bankruptcy Proceeding.</p> <p>In a plenary action in a Circuit Court by a trustee in bankruptcy, the court cannot take judicial notice of matters of record in tile District Court in the bankruptcy proceedings.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 65; Dec. Dig. § 43.*]</p> <p>4. Bankruptcy (§ 166*) — Voidable Preference — Sufficiency of Evidence.</p> <p>Evidence consideied, and held insufficient to establish the insolvency of a corporation at the time it made an assignment of a debt due it to a bank as security for past and future overdrafts, or that the bank had reasonable causo to believe that a preference was intended, so as to render the transfer a voidable preference on the bankruptcy of the corporation.</p> <p>[Ed. Note. — ’For other cases, see Bankruptcy, Cent. Dig. §§ 255-257; Dec. Dig. § 166.*]</p> <p>5. Sales (§ 201*)— Effect — Transfer of Title — Delivery and Acceptance.</p> <p>A lumber company which was under contract to furnish ties to a railroad company hauled a number of ties and piled them on the railroad company’s right of way, where they were inspected, accepted, and marked by its agent in the presence of the secretary of the lumber company, and a certiiicate or invoice was issued therefor. Held, that there was such delivery as to pass title, which was not affected by a subsequent attachment of the ties by a creditor of the lumber company nor by any action of the court in subsequent bankruptcy proceedings against such company.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 629-541; Dec. Dig. § 201.*]</p> <p>6. Sales (§ 202*) — Passing of Title — Necessity of Payment.</p> <p>A lumber company was under contract to furnish ties, and hauled a number and piled them on the purchaser’s right of way, where they were inspected and accepted and invoice issued therefor. Held, that there was such a delivery as passed title, though payment had not been made therefor at the time of a subsequent attachment in bankruptcy proceedings, there being no requirement in the contract that title should not pass until payment. '</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 642, 645; Dec. Dig. § 202.*]</p> <p>7. Sales (§ 442*) — Action foe Price — Counterclaim.</p> <p>By a contract by which a lumber company agreed to furnish a stated number of ties to a railroad, it was provided that the seller should convey a good and unincumbered title, and in case of legal proceedings against the purchaser for any of said ties or their value or to establish any lien thereon it should indemnify and hold harmless the purchaser from all loss, damages, and legal expenses thereby incurred. After certain ties had been delivered to and accepted by the railroad company, an action of trespass was brought against it and the lumber company by the United States to recover the value of certain of the ties which had been unlawfully cut and removed from government land. Held, that the amount recovered and the expense and costs of such action paid by the railroad company were recoverable by it by way of counterclaim from the lumber company, but that costs and expenses incident to a wrongful attachment of the ties by a creditor of the lumber company after title had passed to the railroad company were not so recoverable.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1296; Dec. Dig. § 442.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York. Following is an extract from the Board’s opinion: FISCHER, General Appraiser. These protests are in regard to the classification of pictorial post cards ornamented with feathers. * * * On one side of such cards the inscription “post card” is printed.

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

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

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

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

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

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