Volume 165 — Federal Reporter

<p>'Appeal from the Circuit Court of the United States for the Western District of Washington.</p> <p>The appeal in this ease is taken from a temporary injunction order made in a case in which the appellees herein, consisting of a number ,of corporations and persons engaged in the lumber -and shingle business in the states of Washington and California, brought their bill against the Northern Pacific Railway, a corporation of the state of Wisconsin, the Great Northern Railway Company, a corporation of the state of Minnesota, the Chicago, Burlington & Quincy Railroad Company, a corporation of the state of Iowa, the Oregon Railroad & Navigation Company, a corporation of the state of Oregon, the Oregon Short Line Railroad Company and the Union Pacific Railroad Company, corporations of the state of Utah, each of which corporations, the bill alleged, was engaged in business within the district in which the suit was brought. The bill alleged in substance that the appellants are common carriers engaged in commerce between the states, and as such had the power, by concurrence of action, to absolutely fix and maintain rates on lumber and forest products from points within the state of Washington to eastern and southern destinations in other states; that the interests controlling the Great Northern Railway Company also dominate and control the Northern Pacific Railway Company, and that these two dominate and control the Chicago, Burlington & Qxiiney Railroad Company through the ownership of its cnpital stock, so that there is no competition between said lines; that the Union Pacific Railroad Company dominates and controls the Oregon Railroad & 'Navigation Company and the Oregon Short Line Railroad Company by virtue of ownership of the stock of said two companies, so that there is no competition between said lines; that, in making freight rates from the Pacific Northwest to the East, all of said lines act in concert through the medium of the Transcontinental Freight Bureau; that the first group of railroad companies so mentioned are designated in ihe bill the “Hill Lines,” and the second groxip, the '‘Harriman Lines”; that said corporations have filed with the Interstate Commerce Commission and have published, to take effect on November 1, 3907, a revised tariff of rates on lumber and other forest products from the state of Washington and other Northwestern points of origin to Eastern and Southeastern destinations in other states, whereby such rates are to be advanced .10 cents a hundred pounds to eastern destinations and 5 cents a hundred pounds to certain Southeastern destinations; that said rates will go into effect on November 1, 3907, unless restrained by the court; that in promulgating said tariff the said railroad companies have combined, conspired, anxl agreed to enormously advance the rates, and that such advance is made in restraint of interstate trade and ixi violation of the act of Congress .of July 2, 1890, c. 617, 26 Stat. 209 (U. S. Comp. St. 190-1, p. 3200), known im the “Sherman Anti-Trust Act,” and of acts amendatory thereof; that said increase in rates is unjust, unreasonable, and in violation of section 3 of the act of Congress of February 4, 3887, c. 104, 24 Stat. 379 (U. S. Comp. St. 3903, p. 3154), known as-the “Act to regulate commerce,” and the'acts- amendatory thereof; that the Great Northern Railway Company and the Northern Pacific Railway Company, in connection with other participating carriers, have filed with the Interstate Commerce Commission, to take effect November 1, 3907, a revised tariff! of rates oix lumber and other forest products from the state of Washington and other Northwestern points of origin, to Po-rthill, Idaho, and to Gateway, Sweet Grass, and Bxitte, Mont., and intermediate points, and to Sherwood, Crosby, Maxbass, Antler, Bunseit-li, St. John, Hansboro, Sarles, Hanna, Walhallo. Noche, Ojata, Argusville, Colfax, and Ilankinson, N. I)., and intermediate points, whereby the prevailing rates are to be greatly advanced; that such rates will go iixto effect unless restrained by the order of the court; that said advances in rates are unjxist, unreasonable, and arbitrary, and in violation of the Sherman anti-trust act, and of the act to regulate commerce. The bill charges, upon information and belief, that an agreement and understanding exists between the Hill lines and the Harriman lines, whereby the Northwest Pacific- Coast territory is parceled between them for transportation purposes, and that, in pursuance of such agreement and understanding, neither will invade the territory of the other; that upon shipments of lumber originating in the territory of the one, to be transported over the lines of the other, a large if not prohibitive differential in rales is exacted, so that practically eaeli dominates the transporto!ion from points within its own territory, and names the rate to be exacted therefrom; that the advance in rates announced to become effective on November 3, 1907, was brought about by agreements and understandings between said Hill and Harriman lines in suppression of competition and for their mxitual advantage, withoxit regard to the rights and interests of the pxxblie; that tile appellees and others engaged in the lumber business in the state of Washington have invested in plant, machinery, equipment, and appurtenances $300,000,000. not including the value of the material on hand, logs, standing timber or timber hinds, and that more than 90,000 persons are directly engaged in said industry, the animal pay roll whereof exceeds 860,000,000. and that approximately 200,000 people are directly dependent upon said industry; that the annual output of lumber exceeds $65,C00,000, and the annual output of shingles exceeds 837,000,000; that the freight paid annually on shipments from (he points in the state of Washington to be transported to other states approximates $23,000,000; that a hirge part of such investment in the lumber industry was made upon faith that the existing rates of freight; to the consuming rkets would not be increased, but rather decreased, and the appellees allcv- on information and belief that the rates generally in the United States on the average of -all traffic have been reduced 20 per cent, in the last 20 years, and allege that the existing rales on lumber were voluntarily established by the carriers in the year 1803, and ever since have been continuously in effect. The bill sets up the present tariff as it has existed for 14 years, and alleges that under such rates it is difficult for the lumber manufacturers of Washington to compete in the markets with similar products, and that only in the highest grades on the market, under said rates, can they move their product to consuming territories in other states. The bill alleges that not only are the existing rates greater than a largo part of the traffic can hear, but that under said rates the appellants have greatly prospered. The bill then sets forth in detail the proportion of tonnage of forest products to other products carried by said railroad companies under the present rate, and alleges that dividends have been paid by said companies in addition to operating expenses, fixed charges, a large amount of interest on bonds and indebtedness, and large expenditures for improvements, and that the tonnage on forest products constitute 17.33 per cent, of their entire tonnage, and has paid 27.80 per cent, of the entire gross earnings of the Great Northern Railway Company; that the proposed advance in rates will greatly injure, and to a large extent destroy, the lumber industry in the state of Washington, and will work irreparable injury to the appellees and others engaged in the business in that state and in the'Northwest Pacific Coast, as well as cause serious detriment to the public "interests; that the advance will amount to $48 a car on -lumber and $36 a car on shingles to St. Paul. Denver, Chicago, and other Kastern markets, which is excessive, unreasonable, and unjust, and more than the traffic can bear; that the proposed advanced rates will force the mills to slmt down; that the appellees have no remedy at law: that the Interstate Commerce Commission has no jurisdiction to afford relief in the promises until after the threatened advance in rates shall have gone into effect, and the reasonableness thereof shall have been investigated and determined by said commission, and that in the meantime the advance in rates would drive the appellees out of competing markets, disrupt the established trade regulations of the appellees, and force them to shut down their lumber mills or to make enormous sacrifices in the disposition of their product, which injury is irreparable, and incapable of pecuniary estimation.</p> <p>The bill was filed on October 1, 1907. On October 31, the Circuit Court made an order holding in abeyance certain motions and pleas to the jurisdiction of the court over the parties defendant, and enjoining the appellants, until the further order of the court, from putting into effect the advanced rates or any rates in advance of the present established rates, and directing that the appellees execute to the appellants a bond with good and sufficient sureties in the sum of $250,000 to indemnify them from loss, cost, and damages by reason of the injunction, in case said advance in rates should finally be held to be reasonable, or in case rates in excess of the existing tariff should be established by the Interstate Commerce Commission.</p>

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

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

<p>1. Corporations (§ 47*) — Corporate Name — Power to Change.</p> <p>The change of name of a private corporation is not material, and does not require the unanimous consent of the stockholders, but in the absence of fraud is merely a matter of business management.</p> <p>|Kd. Note. — For other cases, see Corporations, Cent. Dig. §§ 134, 135; Dec. Dig. § 47. *J</p> <p>2. Corporations (§ 190*) — Rights op Stockholders — Action by Minority' Stockholder Against Corporation.</p> <p>A bill by a minority stockholder in a trading corporation, not shown to be insolvent, complaining of the management of the majority, in which no ullra vires nor prima facie fraudulent act is specifically alleged, but which contains merely general suggestions and allegations of fraud and conspiracy, and the gravamen of which is that the corporation has changed its name, as was authorized by law, and that a relative who specially represented complainant’s interests has been removed as manager and a director, does not state facts authorizing a court of equity to require the corporation to purchase complainant’s stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 190.*]</p>

<p>1: Action (§ 56*) — Consolidation—Discretion op Court-</p> <p>Under Rev. St. § 921 (U. S. Comp. St. 1901, p. 685), authorizing the court to consolidate causes when it appears reasonable to do so, a Circuit Court may in its discretion consolidate cross-actions between the same parties for breach of the same contracts.</p> <p>[Ed. Note.- — For other cases, see Action, Cent. Dig. § 631; Dec. Dig. § 56.*]</p> <p>2. Sales (g 83*) — Contract por Sale op Coal to be Delivered “F. O. B. Cars” — Duty to Furnish Cars.</p> <p>■Where, under a contract for the sale and shipment of coal by a coal eomiiany, which provided that deliveries should be made “f. o. b. cars” at the mine, during several months the seller obtained from the railroad companies all cars in which shipments were made, and excused delays to the purchaser on the ground of shortage of cars, without making any claim that the purchaser was bound to furnish the same, the contract must he construed as requiring the seller, and not the purchaser, to furnish ears.</p> <p>fEd. Note. — For other .cases, see Sales, Cent. Dig. gg 224- 227; Dec. Dig. g 83.*]</p> <p>3. Evidence (§ 155*) — Letters op Adverse Party — Self-Serving Statements.</p> <p>Self-serving statements of fact, made in letters written by one party, which are introduced in evidence by the adverse party for other purposes, are neither confessed by such introduction nor made competent evidence thereby.</p> <p>[Ed. Note. — For oilier cases, see Evidence, Cent. Dig. § 453; Dec. Dig. § 155.*]</p> <p>4. Trial (§ 170*) — Taking Question prom Jury — Direction op Verdict in Consolidated Causes.</p> <p>Where an action to recover the price of coal sold and delivered under a contract was consolidated for trial with an action by the purchaser against the seller to recover damages for breach of the contract, hut the Issues in each action were tried independently, the direction of a verdict for the plaintiff in (lie first action, on the admission by the defendant that the account was correct, was not error because of error committed on the trial of the other issue.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. g 170.*]</p>

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

<p>In Error to the Circuit Court of the United States for the Eastern District of Kentucky.</p> <p>Action in tort. Thomas Nance, the plaintiff below, while mining coal in the service of the plaintiff in error, was injured by the sudden and unexpected falling of a long line of drainage pipe which was carried on a line of wooden props at the top of the main entry over the place where he was mining. The inner end of this line of pipe lay on the floor of a dip or sag in the floor of the entry in which water collected. From that point it inclined upwards, and was carried on the top of a line of wooden props, some six feet high and about six feet apart, to a point outside the mouth of the' entry. There this outer and elevated end was securely attached to a stationary pump by means of which water was drawn from the mine. The pipe was in sections a few feet in length, being eoupied together by threaded screws. This pipe had been in place about three months, and had stood safely enough until the accident to Nance. The particular entry In which it had been used for drainage had been about worked out, and the coal in the “stumps” or “pillars” supporting the roof of the mine were being robbed, and Nance was so engaged when hurt.</p> <p>On the morning of Nance’s injury, Henry Vaughn, the mine boss, directed Jasper Belcher, who had charge of the work of putting in and taking out both compressed air and drainage piping, to disconnect and remove this pipe. Belcher, upon this point, testified that Vaughn, the mine boss, “met me on the outside and told me to go in and remove the pipe, disconnect the pipe and pump. He wanted it for another place. He said, ‘Now, Jasper, go in there and notify those boys that you are going to remove this pipe.’ ” Belcher went into the entry, saw Nance moving one of the heavy cutting machines, and himself assisted, as he says, in “cutting a few licks.” Unfortunately he forgot to warn Nance of what he was going to do, though he left him at his work under the pipe with the observation that he “must get to work or the captain (meaning Vaughn, the mine boss) will get after me.” Thereupon he went outside the entry and detached the pipe connection at the pump. The witness then says:</p> <p>“I uncoupled the pipe, and about that time a dread kind of struck me that it might give way; I held to this end and laid it down on the bottom careful. I stayed then to see if it was going to give way, so I could give notice, but it didn’t seem to be going to give way, and I turned around and went to work, and it all came down sudden.”</p> <p>These are the only essential facts of the case. The court denied a request for a peremptory instruction for the coal company, and .submitted the case to the jury upon the single proposition that, if the jury should find that Nance was not notified of Belcher’s purpose to remove this pipe, they should find for him such damage as would compensate him.</p> <p>There was a judgment for Nance, and the coal company has sued out this writ of error. ,</p>

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

<p>3. Post Office (§ 40*) — Offenses Against Postal Daws — Mailing Obscene Mattek.</p> <p>A conviction for sending an obscene, lewd, and lascivious publication through the mails, in violation of Iter. St. § 3893 (U. S. Comp. St. 3003, p. 2658), held sustained by the evidence submitted to the jury by proper instruction. The test is the tendency to corrupt and deprave the minds of those who are open to such influences.</p> <p>(Ed. Note. — For other cases, see Post Office, Dee. Dig. § 49.*]</p> <p>2. Criminal Law (§ 826*) — Requests to Charge — Where Presented Too Late or Covered by the- General Charge — Refusal oe.</p> <p>Where requests to charge are many in number and presented so late that they cannot be properly examined by the trial judge, it justifies the refusal of them as a whole; and this is particularly the case when the instructions asked, with one or two exceptions, fully covered by the general charge, were such as the court could not be exxiected to give.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dec. Dig. § 826.*]</p>

There was no opinion below: The case relates to an importation at the port of New Orleans, which the importers contended had been subjected to an excessive rate of duty. The Board of United States General Appraisers affirmed the assessment, and the court below affirmed the hoard. In these proceedings the importers contend for a reversal of the decisions of the Circuit Court and the Board of General Appraisers.

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

<p>In Admiralty. Suit by seamen for wages.</p>

<p>Customs Duties (§ 25*) — • Classification — Cabmeleee Wabe —“Common Brown Earthenware.”</p> <p>So-called “carmolite ware,” consisting' of earthen cooking ware of a dark brown color, some of the articles having a white lining and some no lining, are not within the provision for “common * * * brown * * * earthenware,” in Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 94, 30 Stat. 156 (ü. S. Comp. St. 1901, p. 1633).</p> <p>[Ed. Note. — Dor other cases, see Customs Duties, Dee. Dig. §'25.*]</p>

For decision below, sec G. A. 6,(52 L (T. D. 28,250), in which the Board of General Appraisers reversed the assessment of duty by the collector .of customs at the port of New York.

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below, which is reported as G. A. 6,612 (T. D. 28,229), affirmed the assessment of duty by the collector of customs at the port of New York.</p>

<p>1. Attorney and Client (8 72*) — Authority—Appearance—Evidence—Presumption op Authority.</p> <p>Ordinarily a record showing the appearance of a defendant by an attorney at law constitutes prima facie evidence of the authority of the attorney.</p> <p>[Ed. Note. — For oilier eases, see Attorney and Client, Cent. Dig. §8 102 -105; Dec. Dig. § 72.*]</p> <p>2. Judicial Sales (§ 47*)— Juris mot ion op Court — Foreign Corporation.</p> <p>The acquiescence of a corporation during a number of years in a sale oí property of the corporation by order of a court in another state, made aftor notice to its stockholders, including four out of its live directors,-in a suit In which appearance had been entered for the corporation, is evidence tending to show that such appearance was authorized, and is sufficient proof of ratification, if: original authority was lacking; and the title of the purchaser to the property cannot be questioned by a stranger not in privity with the stockholders or creditors of the corporation.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Dot-. Dig. 8 47.*]</p> <p>3. Judicial Sales (8 61*) — Patents -Conveyance by Master.</p> <p>A court having jurisdiction of a corporation defendant by its consent nad authority to order a sale of patents owned by the corporation to satisfy a decree against it, and an assignment of the patents so sold is not imalid to convey title because, pursuant to order of the court, it was made by the master, instead of by the officers of the corporation.</p> <p>[Ed. Nolo. — For oilier cases, see Judicial Sales. Cent. Dig. 8 120; Dec. Dig. § 6!.* I</p> <p>4. Patents (8 .328*) — 'Validity and Infringement — Underfeed Stokers.</p> <p>The .Tones patent. No. 470,052, for an underfeed furnace, the principal features of which are a fuel magazine of considerable size below the combustión chamber in which the coal is coked before being fed to the fire, a powerful ram operating horizontally to force fresh fuel into the magazine and that which lias been coked to the surface of the fire, and an air supply forced under pressure over the magazine and under and through the burning coal, was not anticipated by anything in the prior art, including the Worthington patent, No. 310,110, but covers an invention of great merit and is entitled to a correspondingly broad construction. Claim 6 and claim 9, the latter of which is limited to an “upwardly expanding'’ fuel chamber, also held infringed by the device of the Taylor patent. No. 792,862.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>5. Patents (§ 32S*) — Infringement.</p> <p>The Roe patent, No. 560.871, for improvements on Hit' underfeed sloker of the Jones patent, No. 470,052, consisting- of an auxiliary feed mechanism, claim 1, held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. 8 328.*]</p> <p>6. Patents (§ 32S*) — Anticipation.</p> <p>The Roe patent No. 595,837 for improvements in underfeed stokers, claim 1, is void for anticipation by patent No. 566,871 to tbe same patentee.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 32S.*]</p> <p>7. Patents (§ 328*) — Infringement.</p> <p>The Daley patent, No. 644,664, for improvements on the underfeed stoker of the Jones patent, No. 470,052, held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 328.*]</p>

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

<p>Mines and Minerals (§ 98*) — Minino Partnership — Construction • and Soope op Agreement.</p> <p>Complainants and other persons, who subsequently became the grantors of defendant corporation, formed a mining partnership for the purpose of prospecting and locating mining claims in a vicinity where one of the number had previously discovered a piece of gold-bearing quartz. The members made two expeditions to the vicinity, and there located a number of claims and did some work thereon. While going on the last expedition, at a place where they stopped several miles from their claims, one of the number was given a piece of rock, picked up as float, and was told where it was found, which information was imparted to all. The rock was thrown with other samples, and no attention was paid to it until after the expedition, when the person to whom it had been given had it assayed, and, finding it to contain mineral in paying quantities, he and two others of the partners went to the place where it had been found, and niter prospecting in the vicinity located a number of claims which they afterward conveyed to defendant corporation. Held, that the purpose of the partnership was accomplished at the end of the second expedition; that, since no mineral-bearing rock in place was found by the partners during that lime in the vicinity where defendant’s claims were subsequently located, there was no discovery which brought such claims within the scope of the partnership or entitled the other members ho any interest therein when the claims were subsequently discovered and located by defendant’s grantors.</p> <p>[Ed. Note. — For oilier cases, see Mines and Minerals, Cent Big. § 223; Bee. Big. § 98.*</p> <p>Mining partnerships, see note to O. V. B. Min. GO. v. First Nat. Bank of Hailey, 35 C. G. A. 515.]</p>

<p>1. Shipping (§ 84*) — Eet.t.ow Skkvanto — WrjyoiiMAN and Stisvedoeb’s EmployOs.</p> <p>A winchman fnrnislied by a vessel from its crew to operate a winch while the vessel was being discharged by a stevedore employed by a charterer, and who while engaged in such work was subject to the orders of the stevedore, was a fellow servant with the latter’s employés engaged in the work.</p> <p>[Ed. Note. — For other cases, see Shipping, Dee. Dig. § 84;* Master and Servant, Cent. Dig. §§ 485-492.]</p> <p>2. Shipping (§ 84") — Injury to Stevedore — Liability oe Vessel — Incompetent Winchman.</p> <p>Libelant was employed by a contracting stevedore in discharging a vessel of a cargo of iron ore, and while at work in the hold was injured through the negligence of the winchman, who was a seaman furnished by the vessel. He operated the winch so carelessly as to endanger the work: men, and three several complaints had been made by the foreman and hatch-tender to the officer in command of the vessel prior ten libelant’s injury. Held,, that the winehman’s conduct and the complaints made were such as to require his removal, and that his retention was negligence which rendered the vessel liable for libelant’s injury.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 84.*]</p>

<p>Gaming (§ 19*) — Validity— Obligations foe Gambling Considerations.</p> <p>A note and mortgage executed in settlement of a partnership formed to carry on a gambling establishment in violation of the laws of the state, without any new consideration, are void for illegality of the consideration, and will not be enforced by a court of equity.</p> <p>[Ed. Note. — For other cases, see Gaming, Cent. Dig. § 39; Dec. Dig. § 19.*]</p>

<p>1. Garnishment (§ 4*) —Actions in Which Garnishment is Authorized — Maine Statute — “Slander by Writing or Speaking.”</p> <p>In Rev. St. Me. 1903, c. 88, § 1, which provides that “all personal actions except those of detinue, replevin, actions on the case for malicious prosecution, for slander by writing or speaking and for assault and battery may be commenced by trustee process,” the words “slander by writing or speaking” are used in a comprehensive sense and include libel, and under such provision an action for libel cannot be commenced by trustee process.</p> <p>[Ed. Note. — For other cases, see Garnishment, Dec. Dig. § 4.*],</p> <p>2. Garnishment (§ 84*) — Jurisdiction—Waiver op Objection.</p> <p>Where an action for libel against a foreign corporation was commenced in Maine by trustee process in violation of the state statute, the giving of a bond by the defendant to release the garnishees was not a waiver of its right to object to the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Garnishment, Dec. Dig. § 84.*]-</p> <p>3. Removal oe Causes (§ 31*) — Diversity op Citizenship — Parties.</p> <p>Under the rule of the federal courts as affecting the right of removal on the ground of diversity of citizenship, garnishees are not indispensable parties.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § .71; Dec. Dig. § 31.*]</p>

<p>In Bankruptcy. On certificate of referee.</p> <p>The following is the certificate of Edward E. Hoffman, referee:</p> <p>“To the Honorable Judges of tbe said Court:</p> <p>“I hereby certify for review an order I made on September 25, 1908, reducing the claim of Sitley & Son, Incorporated, from $2,214.50 to $200. The question arose on an order I made in the course of proceedings to review the claim of Sitley & Son, Incorporated, for damages against the bankrupt for failure to comply with its contracts for the delivery of commodities.</p> <p>“The following is a copy of the order:</p> <p>“ ‘It is ordered that the amount of the said claim bo reduced from the sum of twenty-two hundred and fourteen dollars and fifty cents ($2,214.50), as set forth in the affidavit in the proof of claim by said creditor in the said ease, to tile sum of two hundred dollars ($200), and that the latter named sum be entered upon the books of the trustee as the true sum on which a dividend shall be computed.’</p> <p>“The question, briefly stated, is as follows: The bankrupt by contracts agreed to deliver commodities to the claimant at prices specified in said contracts and on dates therein specified. Delivery was not demanded by the claimant within the time specified in the contracts, but subsequent to the time limits of the contracts the claimants bought in tbe open market the undelivered portions of said contracts at prices in excess of the contract prices and charged said excess as a debt due by the bankrupts.</p> <p>“I ruled that the claimants, not having demanded delivery within the time limit of the contracts, could not, after the expiration of said time, buy against the contracts and charge the bankrupt with the loss sustained.</p> <p>“I overruled an offer of proof that in the course of dealings between the parties the time limit was not observed, and reduced the claim for failure to deliver within the written specifications to the amount demanded within that time. The facts are as follows:</p> <p>“On March 27, 1908, the claimants filed their proof of claim, sotting forth a contract for the delivery of 100 tons of winter middlings at the price of $22.50 per ton, shipment before April 30, 1907, and a contract for 100 tons of winter middlings, $22.50 per ton, shipment April and May. They alleged that they bought against this at an excess of $4 per ton, netting a loss on the said 200 tons of $S00. On the 2d day of February, 1907, they set forth a contract with the bankrupt for 300 barrels of flour, at $4.40 per ton, shipment when ordered, within 60 days, on which they allege a purchase of 170 barrels against said contract, at the rate of $5.75 per barrel, charging the said bankrupt with $229.50. On the 7th day of March, 1907, they set forth a contract with the bankrupt for delivery of 1,000 barrels of flour at $4.15 per barrel, shipment in 90 days, and they allege that they bought against that contract 790 barrels, at $5.65 per barrel, making an excess of $1,185.</p> <p>•‘Summary.</p> <p>Loss on failure to deliver 200 tons of middlings...............$ 800 00</p> <p>Loss on delivery on flour contract No. 1..................... 229 50</p> <p>“ “ “ “ “ “ No. 2 ..................... 1185 00</p> <p>$2,214 50</p> <p>“To this proof of claim the trustee filed on June 2, 1908, petition to review, admitting that the claimants had made demand for delivery of two car loads of middlings, within the time specified in the contracts, and allowing damages for said failure in the amount of $200, and denying that a demand had been made by claimants for delivery of any other portion of the commodities contracted for within the time limits of the contracts, and setting forth a copy of a notification from the bankrupts to the claimants that they had canceled the contracts for the balance not demanded before expiration of time limit.</p> <p>“The hearing was held before the referee on September 25, 1908, and was duly attended by J. Wilson Bayard, Esq., attorney for trustee, and Mr. Carr, of Wilson, Carr & Stackhouse, representing the claimants, at which the testimony of Frank Sitley, the claimant, was taken. The allegations of the petition to review were sustained by the testimony. As to the facts that the demands for delivery were not made within the time limits of the contracts, the following offers of proof were made, which I overruled — I cite from testimony:</p> <p>“ ‘By Mr. Carr: Q. Mr. Bayard asked you about the “custom” with reference to these contracts. I now ask you whether, under the form of order used here, it was the custom to take out the flour 'within the time limited, or were the orders filled within the time limit? (Mr. Bayard objects.) Contracts, specified time within which shipment shall be made. (Referee sustains objection. Referee grants Mr. Carr exception.) Mr. Sitley, where no shipping directions were given within the time limits, were these goods shipped to you at Camden? (Mr. Bayard objects. Referee sustains objection. Referee grants Mr. Carr an exception.) Mr. Carr now offers to prove by Mr. Sitley that through a long course of dealings, covering 10 or 15 years, that time has not been held to be of the essence of the contract between Mr. Sitley and the Millboume Mills. He offers to prove that orders have been filled by the Millbourne Mills many months after the time limit placed in these orders, and upon the same terms as that originally contracted for. I offer further to prove that by the rules of the Commercial Exchange of Philadelphia, of which both Messrs. Sitley & Son, incorporated, and the Millbourne Mills Company were members, that it became the duty of the buyer to furnish shipping instructions at the time the contract was made, and that, if the buyer is desirous of having the shipment held for shipment directions, it shall be his duty to specify at the time of purchase. That the failure on the part of the buyer to furnish directions after' an alleged time would give the seller the right and privilege to ship the goods to the post office address of the buyer. That in case of failure on the part of the seller to ship goods on contract time, within shipping directions, the buyer shall have the right to cancel the contract outright or to do what the buyer elects.</p> <p>“ ‘Referee enters of record that in his opinion the evidence offered, received in full, would not affect the merits of the case, and¡ therefore, overrules the offer.’</p> <p>■ “In support of my rulings, I would state: That in my opinion a written contract must be construed strictly, and can only be modified by proof of oral agreement, modifying the contract at the date of the making of said contract.. Waiver of conditions in oilier contracts between the same parties on different subject-matters cannot be received in evidence as establishing a custom, nor conld ilie rules of the Commercial Exchange be proved by testimony, nor could they govern the construction ol' contracts by the court.</p> <p>“I attach hereto:</p> <p>“(1) Proof of claim of Sitley & Son, Inc.</p> <p>“(2) Petition to review.</p> <p>•‘(3) Record of mooting on petition to review.”</p>

<p>Aliens (1 68*) — Admission to Citizenship — Declaration of Intention — Abandonment.</p> <p>A declaration of intention by an alien to become a citizen of the United States will not support an application for admission to citizenship, where after it was made the applicant retained to his native country with the intention of remaining there, and who voted and otherwise participated in its local affairs, such act operating as an abandonment of his declared intention.</p> <p>¡Ed. Note. — For other cases, see Aliens, Dec. Dig. § 08.*]</p>

<p>1. Carriers (§ 32*) — Interstate Commerce — Discrimination—Distribution of Oars.</p> <p>Interstate Commerce Act Feb. 4, 1887, e. 104, § 3, 24 Stat. 380 (U. S. Comp. St. 1901, p. 3155). which prohibits discriminations, and section 1 as amended by Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), which requires carriers to furnish transportation on reasonable request therefor, make it the duty of an interstate carrier to furnish equal facilities for transportation, as well as equal rates, to all shippers who are similarly situated; and it cannot evade such duty in the distribution of cars by claiming that it is not the owner of a portion of the cars carried over its lines.</p> <p>[Ed. Note. — For other eases, see Carriers, Dec. Dig. § 32.*</p> <p>Duties and liabilities of carriers as to furnishing facilities for transportation, see note to Harp v. Choctaw, O. & G-. R. Co., 61 C. C. A. 414.]</p> <p>2. Carriers (§ 32*) — Private Cars — “Undue Preference.”</p> <p>In the distribution of cars by an interstate railroad company between coal mining companies on its line, when the supply is insufficient to meet all demands, a mining company which owns cars individually is entitled to have such cars assigned to its use; but it is not entitled in addition to a pro rata share of ¡he cars owned by the railroad company, and such a distribuí ion, if made, resulting in giving to such company larger facilities for transporting its product than are given to other companies similarly situated, hut which own no private cars, constitutes the giving of an undue preference or advantage to such company, in violation of the interstate commerce law.</p> <p>[Ed. Note. — For oilier cases, see Carriers, Dec. Dig. § 32.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7172.]</p> <p>3. Carriers (§ 32*) — Discrimination—Distribution of Cars.</p> <p>An interstate carrier, in the distribution of cars, cannot give a shipper a preference in order that it may profit thereby, or that the shipper may profit thereby; and when called upon by a shipper for full car service the only defense which the carrier can interpose, in case of failure to comply with the demand, is that the supply which it has furnished is sufficient for normal demands, or that in case of shortage it has fairly and impartially prorated all of its car equipment.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 32.*]</p> <p>4. Carriers (§ 32*) — Fuel Cabs — Foreign Cars.</p> <p>In the distribution of cars by an interstate railroad company between the operators of coal mines on its line, its own fuel cars, the fuel cars of other roads sent upon its lino to be loaded, its regular equipment of cars, and the private or individual cars of any mine operator should he placed absolutely on the same basis as together forming the available car equipment of the road as a whole; and where its own fuel cars or those of other roads are consigned to a particular mine, or the operator’s own private cars are delivered to it, they should be charged against such mine, and it should he allotted only so many of the system cars as are necessary to make up its pro rata share of the whole.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 32.*]</p> <p>5. Carriers (§ 32*) — Distribution Between Coal Mine Operators.</p> <p>A rule of a railroad company under which any coal mine operator on its line using its terminal tracks at the seacoast and there unloading its cars within five days on an average during any month is given as a premium a 50 per cent, larger allotment of cars during the next month is an attempted evasion of the provisions of the interstate commerce act, requiring</p> <p>• a fair and impartial distribution of cars between shippers, and gives an undue preference or advantage to shippers so favored, in violation of such act.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Dec. Dig. § 32.*]</p> <p>•ft. Carriers (§ 32*) — Rating of Mines.</p> <p>. In the distribution of cars by a railroad company between operators of coal mines on its line in times of shortage, the percentage of cars to which each mine is entitled should be determined solely by the physical capacity of the mine to furnish coal for shipment; and a rule of distribution by which such capacity is taken as one, while the amount of shipments for the preceding two years is taken as two, the sum of the rated capacity and such shipments being divided by three to determine the basis of distribution, is unfair and inequitable to new mines, and results in giving an undue preference or advantage to old mines, in violation of the interstate commerce law.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 32.*]</p> <p>7. Carriers (§ 32*) — Main and Collateral Branch Dines.</p> <p>Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906, e. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), which requires railroad companies to furnish cars to shippers on collateral branch lines “without discrimination in favor of or against any such shipper,” shippers on the main line of a road and those on a collateral branch line are entitled to precisely the same treatment in the distribution of cars.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 32.*]</p> <p>8. Words and Phrases — “Transportation.”</p> <p>The word “transpórtation,” as used in Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), amending Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 380 (U. S. Comp. St. 1901, p. 3155), includes all kinds of instrumentalities of shipment and carriage.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, vol. 8, p. 7075.]</p> <p>McDowell, District Judge, dissenting.</p>

The plaintiff below. South Chicago Elevator Company, sued United Grain Company in assumpsit, and recovered judgment in the Circuit Court, on speciál findings of fact by the trial court (a jury being waived), in favor of the plaintiff for the principal sum of $6,042.01.

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

<p>Petition for Review of the Order of the District Court of the United States for the Southeastern Division of the Eastern District of Missouri.</p>

<p>1. Principal and Agent (§ 152*) — Reorganization Committee of Bondholders — Time Limit Affixed to Signatures of Reorganization Agreement.</p> <p>Where, in signing, with others, an agreement depositing railway bonds with a reorganization committee pending foreclosure proceedings, certain bondholders affix a time limit after their signatures, a gale by the committee after that time was unauthorized and passed no title.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Dec. Dig. § 152.*]</p> <p>2. Principal and Agent (§ 170*) — Rights as to Third Persons — Ratiification by Acquiescence of Principal of Sale by Agent.</p> <p>. The failure of certain owners of bonds of a railroad company, who had placed the same in the hands of a reorganization committee with power to sell them for a limited time, to make any objection to a sale made by the committee after the expiration of such time, of which they were at once notified, until after the bonds had been used by the purchasers in a purchase of the property more than three months later, was a ratification of the sale by acquiescence.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Cent Dig. § 641 : Dec. Dig. § 170.*]</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Missouri.</p> <p>H. R. Rountree was the husband of the defendant below, and the appellant here, and at the time of his death was an express agent in the employ of -ha complainant and appellee. While thus engaged he was killed in a collision which occurred in the state of Kansas. He entered upon his employment unaer a contract which bound Mm: First, to execute and deliver to the person or corporation owning or operating the railroad upon which he might be injured, a good and sufficient release, under his hand and seal, of all claims, demands, and causes of action arising out of such injury. Second, he ratified all contracts made by the Express Company with any railroad company, and particularly the St. Louis & San Francisco Railroad Company, upon which he was to run, relative to the ultimate liability of the express company to save the railroad company harmless from damages occasioned to said Rountree through negligence of said railroad or its employes, and did expressly agree to bo bound by said agreement as fully as if he were a party thereto. Third, he assumed all risks of accidents and injuries which he might sustain in the course of his employment, occasioned or resulting from the gross or other negligence of any corporation engaged in operating any railroad, or of any employs of any such corporation, or otherwise. Fourth, he agreed to indemnify and save harmless the express company of and from any claims which might be made against it by any corporation under any agreement with the express company, theretofore or thereafter made, arising out of any claim made by said Rountree on Ms part, or by or on the part of his legal representatives, or any damages sustained by him or them by reason of any injury to Mm, or by reason of Ills death. Fifth, he bound himself, Ms heirs, executors, and administrators, for the payment to the express company, upon demand, of any sum which it might thereafter be compelled to pay in consequence of any such claim, or in defending the same. The appellant here, Mrs. Amy J. Rountree, instiluled an action against the St. Louis & San Francisco Railroad Company in the proper court of the state of Kansas to recover damages for the death of her husband. The bill avers that the action is now pending, and that the plaintiff therein intends to prosecute the same to judgment, and that in case judgment is recovered the railroad company threatens to sue the complainant in this suit on a contract entered into by the complainant with the railroad company to indemnify that company and save it; harmless from all such claims. It is further averred that both Rountree and his estate and the defendant; are insolvent, and that, if it is compelled by the railroad company to pay the threatened judgment, it will suffer irreparable loss. The bill asked that Mrs. Rountree be decreed to execute and deliver to the St. Louis & San Francisco Railroad Company a good and sufficient release, under her hand and seal, of all claims and causes of action arising out; of the injury or death of the said H. R. Rountree, and for a perpetual injunction restraining the said Amy J. Rountree, her agents and attorneys, from prosecuting said action against the St. Louis & San Francisco Railroad Company. An answer was filed to this bill, admitting the contract above described, and raising numerous issues to which it is not necessary to refer specifically. The cause was submitted upon bill and answer, and resulted in a decree in favor of the complainant, to review which this appeal is sued out.</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>Appeal from the District Court of the United States for the Northern District of Georgia.</p>

<p>A-ppenl from the District Court of the United States for the Northern District of Georgia.</p>

<p>Master and Servant (§ 274*) — Injuries to Servant — Negligesce—Contributory Negligence — Admissibility op Evidence op Observations Made After Accident.</p> <p>. In an action by a chambermaid in a hotel against the proprietor to recover for an injury caused by plaintiff’s falling down, an elevator shaft which she entered through a door partially open, supposing it to be a room, on the issue of contributory negligence it was error to exclude evidence offered by defendant of conditions as to light as observed by witnesses who afterward examined the place, where there was evidence that such conditions were substantially the same as at the time of the accident, and at least as favorable to plaintiff.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 274.*)</p>

<p>1. Conspiracy (§ 37*) — Conspiracy to Commit Crime —Merger of Offense Committed.</p> <p>An indictment will lie, under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3670), for conspiracy to remove distilled spirits on which the tax had not been paid, in violation of Rev. St. § 3296 (U. S. Comp. St. 1901, p. 2136), although it is charged that the purpose of the conspiracy was accomplished.</p> <p>[Ed. Note. — For other eases, see Conspiracy, Cent. Dig. §§ 68-70; Dec. Dig. § 37.*]</p> <p>2. Criminal Law (§ 1192*) — Appeal and Error — Disposition of Causé — Affirmance — Judgment.</p> <p>On affirmance of a judgment of conviction in a criminal ease, the Circuit Court of Appeals may, at least with the consent of the United States Attorney, authorize the trial judge to modify the sentence imposed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3231; Dee. Dig. § 1192.*]</p>

<p>1. Post Office (§ 48*) — Offenses Against Postal Laws — Embezzlement of Letter by Employé — Indictment.</p> <p>The provisiODK of Rev. St. § 5467 (U. S. Comp. St. 1901, p. 8691), making it a crimiDal offense for an employé in the postal service to embezzle a letter, necessarily implies that the letter must have come into his possession in his official character; and an indictment thereunder which fails to allege such fact is fatally defective.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 77; Dec. Dig. § 48.*]</p> <p>2. 'Indictment and Information (§ 75*) — Sufficiency of Accusation — “Then and There.”</p> <p>The words “then and there” as used in an indictment merely bring forward prior averments of date and venue, and do not otherwise enlarge the description of the offense.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig- § 75.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 6946-6948, 7815.]</p>

<p>1. Appeal and Error (§ 997*) — Review—Findings op Fact — Effect op Motions por Direction op Verdict.</p> <p>The effect of motions by both parties for the direction of a verdict is to withdraw the case from the consideration of the jury and submit it to the court to find the facts; and an appellate court in reviewing the action of the lower .court is limited to a consideration of the correctness of its finding on the law, if there is any evidence in support of the finding of fact.</p> <p>fEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4023, 4024; Dec. Dig. § 997.*]</p> <p>2. Insurance (§ 184*) — Validity op Contract — Discrimination Between In- . surants — Kentucky Statute.</p> <p>ICy. St. 1903, § 656, which prohibits any life insurance company from making any distinction or discrimination between persons insured in the amount of premiums or rates charged to persons of the same class and equal expectation of life, etc., does not invalidate a policy because the agent returned to the insured a part of tlie first premium paid, -which belonged to himself as a commission.</p> <p>[Ed. Note. — -For other cases, see Insurance, Dec. Dig. § 184.*]</p> <p>8. Insurance (§ 443*) — Cause of Loss — Life Insurance — Death in Violation of Law.</p> <p>To defeat a recovery on a life insurance policy on tlie ground that at the time of his death tlie insured was carrying a concealed weapon in violation of Ky. St. 1903, § 1309, it must be shown not only that the offense was being committed, but, further, that it brought about the death of the insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1149; Dec. Dig. § 413.*]</p>

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

The plaintiff in error, as administrator of the estate of Harold R. Well-man, was the plaintiff below in this action, brought in the city court of Aurora, 111., to recover of the defendant corporations for alleged joint negligence in the operation of their railroad in Illinois, causing the death of the intestate; and the declaration filed in that court expressly charges such defendants with joint liability, in a plea of trespass on the case.

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

There was no opinion below. The Circuit Court affirmed the decision of the Board of United States General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of Boston. Tho article in controversy (paraffin) was made in Belgium from Russian petroleum. The latter country imposes a duty on both crude petroleum and its products when imported from the United States, while Belgium imposes a duty on neither oil nor product.

<p>Bankruptcy (g 415*) — Right of Bankrupt to Discharge — Finding of Refereb — Review by Court.</p> <p>Where the correctness of the finding of a referee that a bankrupt was entitled to a discharge depended entirely upon her credibility as a witness in correcting her testimony previously given, and her later testimony, which was given before him in person, was not contradicted nor impeached by any inherent defect, it was error for the court not to accept such finding.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 415.*]</p>

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

<p>Patents (§ 328*) — Infiíingeiient—Mattkess.</p> <p>The Fisher patent, No. 737,916, for a mattress, held not anticipated, valid, and infringed.</p> <p>Hid. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 218*) — Licenses—Liability foe Royalties.</p> <p>In an action by a patentee on a license contract to recover royalties, the plaint iff is entitled to recover royalties on articles made and sold by defendant, shown to he substantially those of the patent, although not purporting to have been made thereunder, and claimed by defendant not to be covered thereby.</p> <p>[Ed. Note. — For other cases, seo Patents, Cent. Dig. §§ 330-834; Dec. Dig. § 218. " J</p>

<p>1. Patents (S 283*) — Stjit for Inmungemcnt — Equity Jurisdiction.</p> <p>A bill for an injunction and damages for infringement of a patent having at the time of filing the bill a little less (ban three months to run, which prays for a preliminary injunction and contains allegations entitling complainant to the same, confers jurisdiction on a court of equity to award an accounting for damages and profits, although no motion for a preliminary injunction was in fact made, and the patent expired before the time the defendant was required to plead.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 283.*</p> <p>Jurisdiciiou of federal courts in suits relating to patents, see note to Bailey v. Mosher, 11 C. C- A. 818.1</p> <p>2. Equity (§ 3*) — Exercise of .Turisdictiok — Discreitox of Court.</p> <p>Where a bill rightfully invokes the equity jurisdiction of the court, it is not within the discretion of the court to refuse to entertain it because of conditions which came into existence after the bill was filed.</p> <p>[Ed. Kbte. — For other cases, see Equity, Dec. Dig. § 3.*]</p>

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

<p>In Equity. Argument on demurrer to part and plea to part of bill of complaint in the first case, and on demurrer to bill in second case,</p>

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

<p>Patents (S 328*). — Akticipatioit akb Infhinokment —Hub Guard for Wheels.</p> <p>The Howard patent, No. 753,2(54, for a bub guard for wheels, which is attached to the axle, was not anticipated and discloses invention; also held infringed.</p> <p>[Kd. Note.— For oilier cases, see Patents, Dec. Dig. § 328.*]</p>

<p>1. Patents (§ 310*) — Suits foe Infringement — Joinder of Causes of Action.</p> <p>A bill' is not multifarious because it alleges tbe infringement of two patents by the same structure, where it also alleges that the inventions are capable of conjoint use and are so used by defendant.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 518; .Dec. Dig. § 310.*]</p> <p>2. Patents (§ 310*) — Suit foe Infringement — Pleading—Demurrer.</p> <p>It must be clear that a patented device lacks the elements of novelty and invention before a court, will so declare on demurrer to a bill for infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 536, 538; Dec. Dig. § 310.*]</p> <p>3. Patents (§ 310*) — Suit for Infringement — Pleading—Demurrer.</p> <p>On demurrer to a bill for infringement of a patent, for lack of novelty and invention, the court cannot consider prior patents to ascertain the state of the art.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. 310.*</p> <p>Pleading in infringement suits, demurrer for want of novelty and invention, see note to Caldwell v. Powell, 19 O. C. A. 595.]</p>

<p>1. Post Office (§ 50*) — Offenses Against Postal Laws — Mailing Obscene Matter — Indictment.</p> <p>On a motion to quash an indictment under Rev. St. § 3893 (U. S. Comp. St. 1901, p. 2658), for mailing an obscene, lewd, or lascivious letter, it is the province of the court to determine whether the letter which is the basis of the charge comes within the scope of the statute.</p> <p>[Ed. Note. — For other cases,, see Post Office, Cent. Dig. § 88; Dec. Dig. §50.*] ' ■</p> <p>2. Post Office (§ 4S*) — Offenses Against Postal Laws — Indictment for Mailing Obscene Matter.</p> <p>An indictment under Rev. St. § 3S93 (U. S. Comp. St. 1901, p. 2658), which makes nonmailable “every obscene, lewd, or lascivious hook * * * letter, writing, print or other publication of an indecent character," which charges defendant with having mailed a letter containing “obscene, lewd and lascivious matter,” is not broadened in scope by a further character!zation of such matter as of an indecent character.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 70; Dee. Dig. § 48.*]</p> <p>3. Post Officii (§ 31*) —■ Offenses Against Postal Laws — Indictment fob Mailing Obscene Matte» — “Obscene, Lewd ob Lascivious.”</p> <p>A letter held not to contain matter which was “obscene, lewd or lascivious” within the meaning of Rev. St. § 3893 (U. S. Comp. St. 1903, p. 2658), so as to render its mailing an indictable offense thereunder.</p> <p>[Ed. Note.' — For other eases, see Post Office, Cent. Dig. § 50; Dec. Dig. § 31.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 4887-4889; voi. 8, p. 7735.</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. 0. A. 79.]</p>

<p>Post Ojtioe (§ 31*) — Oitvensks Against Postal Daws — Mailing Obscene Mattee.</p> <p>A letter considered, and held to contain matter of such obscene, lewd, and lascivious character as to render its mailing an indictable offense under Bev. St. § 3893 (U. S. Comí». St. 1901, p. 2G58).</p> <p>[Ed. Note. —For other cases, see Post Office, Dec. Dig. § 31.*</p> <p>Nonmailable matter, see note to Timmons v. United States, 30 C. C. A. Y9.J</p>

<p>Rbmovat. of Cahtses (§ 29*) — Diveksitx of Citizenship — Residence of Defendant.</p> <p>A defendant, sued jointly with another in a state court, who testified that his home was in another state, where he had property and to which he expected to return, did not become a resident of the state and district of suit, so as to prevent a removal of the cause by defendants by moving there with his family for temporary purposes of his employment and for an indefinite time.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 69; Dec. Dig. § 29.*J</p>

<p>In Bankruptcy. On application for discharge,</p>

In Equity. On final hearing. This cause has lieen submitted upon bill, cross-bill, answers thereto, and a stipulation of facts From the stipulation the following material facts appear: The Dakota Central Telephone Company is a corporation duly incorporated under the laws of the state of South Dakota on August 30, 1904, with power to purchase, lease, construct, and operate telephone lines and exchanges. The defendant is a municipal corporation of South Dakota.

In Equity. On demurrer to bill. The complainant in this bill seeks to have canceled and set aside a decree ,of foreclosure, and a sale thereunder, of lots 2 and 3 in block 250, Couch’s addition to the city of Portland. She also seeks to be allowed to redeem the property from the lien of the mortgage foreclosed.

. Actions by Kimptori, Magnus & Fauer, H. A. Metz & Co., Austin, Nichols & Co., and Frame & Co. against the United States. These proceedings relate to two decisions by the Board of General Appraisers, .affirming the assessment of duty by the collector of customs at the port of New York. One of the two decisions, which is reported as G. A. 6,704 (T. D. 28,686), reads as follows: SOMERVILLE, General Appraiser.

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

<p>1. Oabbieks (§ 51*) — Bill of Lading — Construction and Operation — Evidence oe Title.</p> <p>Mere possession of a bill of lading is evidence of title in the bolder, either general or special, to the goods embraced therein, and that the bill is not made nor indorsed to such holder is not material.</p> <p>LKd. Note. — For other cases, see Carriers, Cent. Dig. § 148; Dec. Dig. § 51.*]</p> <p>2. Bankruptcy (S 140*) — Property Passing to Trustee--Property Held as Bailee.</p> <p>Petitioners entered into an arrangement to furnish money to the bankrupt corporation for use in its business of importing fruits in brine, pursuant to which, on a purchase of goods in Franco, the seller made a draft on petitioners’ Paris house and attached thereto an invoice and bill of lading, which, on payment of the draft, were forwarded to petitioners in New York. On arrival of the goods, they and such ¡tapers were delivered to the bankrupt on its execution of a trust receipt, by which it agreed to hold the merchandise described therein on storage as the property of petitioners, with power to sell Uio same and turn over the proceeds to petitioners until the amount of the draft and shipping costs was repaid. HcM. that the title to such goods did not pass to the bankrupt, but remained in petitioners, who were entitled to recover the same, or their proceeds, from the bankrupt’s trustee, who had sold them, on their proper identification.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Ctent. Dig. § 193; Dec. Dig. § 140.*]</p>

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

<p>1. Indians (I 35*)- -Introducing Tuquoiih into “Indian Country” — Effect op Allotment op Land in Severalty.</p> <p>The provision ol' Rev. St. § 2139, us amended by Act ,Tan. 30. 3897, c. T09, 29 Stat. 506, which makes it a criminal offense to introduce liquor into the Indian country, is a police regulation, and can be enforced only its to land within the exclusive territorial jurisdiction of the United States; and an indictment thereunder will not lie for taking liquor upon land within a state which was allotted in severalty to an Indian under Act Feb. 8, 1887, e. 11.9, 24 Slat. 389, prior to the amendatory act of May 8, 1906, c. 2348, 34 Slat. 18.2, and which is held in trust by the United States, such land being no longer “Indian country,” the effect of the allotment having been to make it, as well as the allottee, subject to the jurisdiction and laws of the state, and to exclude therefrom the police powers of the United States, which have no relation to the protection of its title to, or rights in, the land as trustee.</p> <p>rifd. Note. — For other eases, see Indians, Cent. Dig. §§ 61, 62; Doc. Dig. § 35.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3545-35-19.]</p> <p>2. Indians 32*) — Introducing Liquors into Indian Country— Effect op Treaty Provisions.</p> <p>A provision of the treaty with the Yakima Indians that any Indian of the tribes who should bring liquor onto the reservation or drink liquor might have his annuities withheld did not have the effect of reserving to the United States exclusive jurisdiction of lands which were subsequently allotted in severalty to members of the tribes.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 61, 62; Dec. Dig. § 32.*]</p>

<p>1. Indemnity (§ 0*) — Construction and Validity of Contract — Loss Through Negligence of Beneficiary.</p> <p>Plaint iff railroad company granted to defendants tlio right to build and maintain on its right of way a platform for shipping cotton, the contract providing that defendants should indemnify it against all loss or injury by reason of the structure caused by fire or otherwise, however resulting. Cotton idled on the platform took fire and burned, and the owners recovered for the loss from plaintiff on. the ground that the fire was caused by its negligence or that of its servants. HelO, that such fact did not preclude a recovery over from defendants on their contract of indemnity, but that sucii loss was within its terms and the contract valid and not contrary to public policy, since it was not made by plaintiff in its capacity as a common carrier.</p> <p>[Ed. Note. — -For other cases, see Indemnity, Dec. Dig. § 9.*]</p> <p>2. Insurance (§ 606*) — Subrogation of Insurer — Action—Parties.</p> <p>Where an insurer lias paid to the assured the total amount of the loss, such insurer is subrogated by operation of law to all of the assured’s rights of action against third persons who are responsible for the loss, and the assured cannot maintain an action at law in his own right to enforce such liability.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1500; Dee. Dig. § 606.*]</p> <p>3. Parties (§ 59*) — Amendment of Complaint — Joinder of Use Plaintiff.</p> <p>Under Code Ala. 1907, $ 2490, which provides that a party for whose use a suit is brought must he considered as the sole party on the record, and section 5367, by whieli an amendment to a complaint by striking out a sole plaintiff and substituting another is not permitted, a complaint which has been amended by adding a use plaintiff to the original plaintiff does not entitle either to recover, unless both are jointly interested in each cause of action pleaded.</p> <p>[Ed. Note. — For other cases, see Parties, Dec. Dig. § 59.*]</p> <p>4. Pleading (§ 57*) — Complaini>-Dui?licity.</p> <p>A complaint by joint plaintiffs cannot embrace counts setting up causes of action in favor of one alone.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 122; Dec. Dig. § 57.*]</p>

<p>Eminent Domain (§ 47*) — Use of Pubtjo Road — Rights ov Adjoining Owners.</p> <p>The construction of a telephone line upon a public county road or highway in the state of Georgia, with the approval of the county authorities in charge of such road or highway, which line is used in the transmission of messages between various points, is not an additional burden or servitude upon such public road, and does not exceed the uses to which the easement in the public can be put by the approval of such county authorities, and an abutting landowner has not the legal right to prevent such use.</p> <p>[Ed. Note. — -Bor other eases, see Eminent Domain, Cent. Dig. §§ 107-120; Dee. Dig. § 47.*]</p>

<p>Application for Admission to Citizenship.</p>

<p>Ill .Bankruptcy. On motion to stay sale.</p>

<p>Bankruptcy (§ 417*) — Rights ok Bankrupt — Setting Aside Discharge.</p> <p>Members of a partnership were adjudged bankrupts on a voluntary petition and obtained a discharge, having scheduled no assets. At the time of the adjudication an aeiion on promissory notes was pending against them in a state court, in which they had pleaded a counterclaim, hut through inadvertence or mistake neither the notes nor counterclaim were scheduled. Held, that on their application, made before the expiration of the time for tiling claims, the bankrupts were entitled to have the discharge set aside and to amend their schedules, by Including both the creditors’ claim and their counterclaim.</p> <p>[Ed. Note. — Jfor other cases, see Bankruptcy, Cent. Dig. § 80S); Dec. Dig. | 417.=-]</p>

<p>Seamen (§ 29*) — Personal Injuries — Assumption of Risk.</p> <p>Leaving tlie cover oft from a hatchway on a vessel which was surrounded by a coaming 30 inches high, alongside of which was also a broad ledge, was not of itself a failure of duty toward a member of the crew, who had full opportunity to know the position and condition of the hatch, which renders the vessel liable for his injury by falling therein.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 186, 188; Dec. Dig. § 29.*]</p>

<p>In Admiralty. Suit to enforce lien for supplies.</p>

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

<p>1. Bankruptcy (§ 403*)--Trial — Evidence Offered should be Taken and Recorded Though Held Inadmissible — Exception.</p> <p>It is the duty of examiners, masters, referees, and the court taking evidence in controversies in bankruptcy, iu the absence of a jury, to take, record, and, in case of an appeal, to return to the reviewing court, all the evidence offered by either party, that which they hold to be incompetent or immaterial as well as that which they deem competent and relevant, to the end that if the appellate court is of the opinion that evidence rejected should have been received it may consider it, render a final decree, and thus conclude the litigation without remanding the suit to procure the rejected evidence.</p> <p>From this rule evidence plainly privileged, the testimony of a privileged witness, and evidence which clearly and affirmatively appears to be so incompetent, irrelevant, or immaterial that it would be an abuse of the process or power of the court to compel its production or permit its introduction, are excepted.</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Dec. Dig. § 463.*]</p> <p>2. Trial (§ 377*) — It is Error to Close Hearing Before Losing Party has Concluded the Offer of His Evidence.</p> <p>It is error for a court on a hearing of a controversy in which it is taking the testimony to refuse to take or to consider evidence which the losing party desires to offer, and to close the hearing before such evidence is presented to the court so that it can consider it and determine its admissibility.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § S87; Dec. Dig. § 377.*]</p> <p>3. Accord and Satisfaction (§ 7*) — Consideration—Release of Entire Debt for Part Payment Void.</p> <p>The release of an entire debt for a sum certain upon the payment of a part of the amount due is without consideration and void.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. § 46; Dec. Dig. § 7.*]</p> <p>4. Accord and Satisfaction (§ 5*) — Consideration—Release for Part Payment in Things Different from That Due Valid.</p> <p>A release of an entire debt in consideration of the payment of articles different from the thing due according to the terms of the contract, although those articles are of much less value than the thing due, is valid, because the legal presumption is that the articles had a special value to the recipient, and the transaction is an accord and satisfaction.</p> <p>TEd. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 40, 41; Dee. Dig. § 5.*]</p> <p>5. Assignments for Benefit of Creditors (§§ 4, 9*) — “General Assignment for Creditors” — Transfer of Title and Control of Substantially All Property of Debtor Essential to.</p> <p>A transfer of the title to and the possession and control of substantially all the property of a debtor to an assignee in trust to convert it into money and distribute it among the creditors. of an assignor is essential to constitute a general assignment for the benefit of creditors under section 3a (4) of the bankruptcy law (Act July 1, 1898, e. 541, 30 Stat. 546 [U. S. Comp. St. 1001, p. 34221).</p> <p>A debtor conveyed about three-fourths of its property and the proceeds of any sale it should make of the other fourth, which consisted of real estate of which the assignor retained the possession and the right of use, control, and disposition, to its principal creditor, in consideration of the latter’s discharge of the debtor’s obligation to it and of the creditor’s agreement to pay all the other obligations of the debtor out of the proceeds of the property conveyed.</p> <p>Hold: The conveyance was not a general assignment for the benefit of creditors, because it did not transfer substantially all,the property of the debtor, because the title, control, and power of disposition of the real estate remained in the assignor, because the assignor did not intend the instrument as a general assignment, and because its legal effect was not that of a general assignment hut that of a sale of the. property described in it to the assignee in consideration of its release of the debtor and of its contract to pay the debtor’s other debts out of the proceeds of the property conveyed.</p> <p>[Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 1, 3, 11; Dee. Dig. §§ 4, 9.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3052-3054.]</p> <p>0. Assignments for Benefit of Creditors (§ 0*) — “General Assignment”— Conveyance Directly to Creditor is Not.</p> <p>A conveyance 'of his property by a debtor directly to his creditor or creditors for tlieir benefit does not constitute a general assignment for the benefit of creditors, because it raises no trust.</p> <p>[Ed. Note. — Eor other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Street Railroads (§ 74*) — Regulation and Operation — Injury to Persons on Track — Ordinance Regulating Speed.</p> <p>An ordinance requiring street, cars to slacken speed to a rate not exceeding three miles per hour when approaching any other car, “when such car has stopped or is about to stop to permit passengers to get on or off,” does not apply in an action to recover for an injury to a passenger by beIng struck by a car after alighting from another when the latter had started and moved a distance of nearly a block before the accident occurred.</p> <p>[Ed. Note. — Por other cases, see Street Railroads, Cent. Dig. § 154; Dec. Dig. § 74.*]</p> <p>2. Trial (§ 420*) — Waiver of Error — Ruling on Demurrer to Evidence-Introduction of Evidence.</p> <p>In the federal courts the introduction of evidence by a defendant after a motion for a peremptory charge at the conclusion of plaintiff’s evidence has been overruled is a waiver of such motion, and no error can be assigned to the ruling thereon; but the motion may be renewed at the close of all the evidence, in which case the whole of the evidence is to be considered.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]</p> <p>8. Courts (§ 356*) — Federal Courts — Procedure—Scope of Conformity Statute.</p> <p>In the federal courts everything after judgment, looking to a review by an appellate court, is regulated solely by the acts of Congress, the practice at common law, and the rules and decisions of such courts, and is not within the scope of the conformity act (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]).</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. 5 356.*]</p> <p>4. Street Railroads (§ 117*) — Injury to Person on Tracks — Contributory Negligence — Questions for Jury.</p> <p>A person struck and injured by a street car while crossing the tracks at a public crossing at a street corner in a large city is not as a matter of law chargeable with such contributory negligence as to require a peremptory charge for defendant in an action against the street railroad company for the injury because before' crossing she did not observe the tracks for an approaching car beyond a distance of 50 feet, the standard of care required in such case being different from that in cases of persons crossing the tracks of a commercial steam railway.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 255-257; Dec. Dig. § 117.*]</p> <p>5. Street Railroads (§ 118*) — Injury to Person on1 Track — Action—Instructions.</p> <p>.An instruction, in an action to recover for an injury to plaintiff by being struck by a street car, that if, before going upon the track, she “looked a distance she thought sufficient” and saw no car, she was not guilty of contributory negligence, was error.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 269; Dec. Dig. § 118.*]</p> <p>6. Appeal and Error (§ 763*) — Briefs—Right to File Additional Briefs.</p> <p>There is no authority under the rules or practice of the Circuit Court of Appeals for filing additional briefs at or after the hearing without special leave of court granted on sufficient ground shown.</p> <p>[Ed. Note., — For other cases, see Appeal and Error, Cent. Dig. § 3098; Dec. Dig. § 763.*]</p>

■ The facts are so well and correctly stated by Judge Knappen, who heard this case in the Circuit Court, that we set out below and adopt that part of his opinion as our statement of the case. j The bill in this cause was filed February 20, 1896, by the Attorney General ■of the United States under the act of March 3, 1887, providing for the adjustment of land grants made by Congress to aid in the construction of railroads and for the forfeiture of unearned lands (24 Stat.…

<p>_ Appeal from the United States Court of Appeals in the Indian Territory.</p> <p>This is a suit in equity brought by A. P. Murphy, appellee here, against P. Porter, as principal chief of the Creek Nation, and M. L. Mott. Pending the appeal P. Porter died, and the case was revived and continued in the name of John Adams, as administrator of his estate. The bill alleges that on the 10th day of January, 1903, the defendant P. Porter, as principal chief of the Muskogee or.Creek Nation, entered into a contract in writing with complainant, employing him as national attorney for the tribe to represent it before the departments in Washington and the Dawes Commission, and in any litigation growing out of such questions as the right to membership in the tribe, and the right to tribal lands. The employment was to continue until the tribal relations of the Muskogee Nation had been dissolved, and until March 1, 1906. The salary was fixed at $5,000 per annum, in addition to expenses, payable quarterly. The complainant also signed the contract on his part and accepted its terms, and agreed to perform the services therein mentioned. The instrument contained a provision that it should be “subject to cancellation by either party hereto upon thirty days’ notice for good cause shown.” This contract was entered into pursuant to an act duly passed and approved by the National Council of the Muskogee Nation, authorizing their principal chief “to contract with, retain and employ an attorney at law, or firm of attorneys at law,” and setting forth specifically the duties of the employment, and providing that the contract should be subject to cancellation as above mentioned. The contract was approved by the Secretary of the Interior in accordance with the provision of the statute. Immediately upon the execution of this contract the> complainant entered upon the performance of his duties thereunder, and continued to act as national attorney until March 23, 1904. A short time previous to that date, Charles J. Bonaparte and Clinton II. Woodruff, as special inspectors, had reported to ihe federal government at Washington that Mr. Murphy had filed charges against a Mr. Douglas, engaged in the Indian service in the Indian Territory, which were either altogther unfounded, or very greatly exaggerated, and in so far as they had a basis of facts arose from friction between Mr. Murphy and Mr. Douglas. This report further stated as follows: “We feel that our duty would not be fully discharged if we did not add to what is said of Mr. Murphy in our original report, that he is, in our judgment, so much influenced in his recollection of events and his opinion of individuals by his very strong sentiments of personal sympathy or antipathy as to render his statements untrustworthy and to impair his usefulness as a public officer.” This report was brought to the' notice of the various departments before whom the complainant was by the terms of his employment to represent the Creek Nation, and the principal chief, acting in good faith, and believing that his usefulness to serve the nation was thereby impaired, if not destroyed, notified complainant in writing, on the 23d day of March, 1904, that his employment was terminated, saving unto him, however, by the notice, the right to his salary for 30 days. In this notice the principal chief assigned as his reason for the termination of the appointment the above-mentioned report. Immediately upon receipt of this notice 'the complainant served a counter notice denying that there was just cause for his discharge, and denying the authority of the principal chief to terminate the contract. About 30 days later the principal chief, acting on behalf of his nation, entered into a contract with the defendant. M. L. Mott, similar in its provisions to the one which had existed with the complainant. The bill further avers that the action of the principal chief in terminating the contract was unjust, oppressive, and in violation of the trust conferred upon him by the Creek National Council, and that complainant was ready, willing, and able to continue in faithful performance of the contract on his part, and was entitled to the compensation provided therein; that the Creek Nation had in its annual appropriation hill for the current year appropriated the sum of $5,000 for the payment of the salary of national attorney, and that the principal chief intended to pay over this money from time to time to the defendant Mott, in violation of the rights of the complainant. The bill further alleged as the basis for equitable relief: “That this plaintiff has no remedy at law by which he could sue the Creek Nation and recover from said Creek Nation the amount of unpaid salary due him under and by virtue of the contract of January 10, 1903, or for damages for the breach of said contract, and that if the defendant P. Porter does issue to the said M. B. Mott the warrant or warrants for the salary of Creek national attorney, arising and accruing subsequent to April 1, 1904, and the said M. B. Mott receives the' same, this plaintiff will be without any adequate remedy at law to recover the balance of his salary as Creek national attorney for the year 1904, and without any remedy at law whatever to recover the same.” The bill asks that the defendant Porter be enjoined and restrained from signing or issuing any warrant or warrants upon the general fund of the Creek Nation, payable to Mott, or to any other person except to the plaintiff, for the salary of Creek national attorney, and enjoining and restraining the defendant Porter from paying to the defendant Mott, or any other person than the plaintiff, any portion of the salary of Creek national attorney, and enjoining and restraining the defendant Mott from receiving or attempting to receive, either directly or indirectly, such salary, or any warrant therefor; and as permanent relief, in addition to an injunction in substantially the terms above mentioned, the bill asked that the complainant, A. P. Murphy, be adjudged to be the duly and legally constituted national attorney for the Creek Nation, entitled to perform the duties of such, and to receive the pay for the. same. Up-on this hill an application was made for a temporary injunction in accordance' with the prayer, which was granted.</p> <p>Thereafter, on application of the complainant, the injunction was so modified as to command the defendant P. Porter to execute and file with the clerk of court warrants upon the general fund of the nation for the salary of national attorney, payable to the order of the complainant, and requiring .the complainant to indorse the same, and directing the clerk to collect the proceeds thereof and hold flip same in the registry of the court subject to its final decree. Thereafter, by stipulation of the parties, and manifestly pihtpiy for the convenience of getting rlie fund im.o tlie custody of the court without the necessity of the warrants being made payable to the complainant and Indorsed by him. the injunction was further modified so as to command fñe defendant P. Porter to execute the warrants for the salary of national attorney payable to the clerk of court directly, and requiring him to collect the same and hold the proceeds subject to the final decree in the cause.</p> <p>A demurrer was interposed to the bill on behalf of the defendants, charging (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) that it showed upon its face that the plaintiff had a. complete remedy at law; (3) that the facts set forth in the complaint were not sufficient in law to give a court of equity jurisdiction or to warrant the granting of an injunction or restraining order. This demurrer was overruled, and an exception saved. The briefs upon the argument of the demurrer are set forth in the record, and it appears therein that it was contended that the court had no jurisdiction of an action against the Creek Nation or its principal officers, the case of Thebo v. Choctaw Tribe of Indians, 66 Fed. 872, 13 C. O. A. 519, being cited as anvhority. To the application for modification of tlie injunction so as to require the defendant P. Porter to execute warrants and file the same with the clerk of court, a further demurrer was interposed, challenging the jurisdiction of the court, and specifying particularly “that the court has no jurisdiction to order the defendant P. Porter, as principal chief of the Creek Nation, to issue the warrants on the treasury or funds of the Creek Nation, or to order said warrants to be iiaid”; and further alleging that the suit relates to and involves property of tlie Creek Nation, and said nation not having been made a party to this suit, as required "by law, the court Is without jurisdiction to make the order prayed for in the motion. As already stated, this demurrer was also overruled, and complainant’s motion was granted. Thereafter an answer was interposed to the bill, admitting many of its provisions, but charging that the complainant had so misconducted himself as to forfeit the confidence of the departments before whom he was to represent the nation, and thus giving to the principal chief just cause for terminating the contract. The cause was referred to a master, who took testimony therein, and reported his findings of fact and conclusions of law. In this report tlie master found that no good cause existed for the termination of the contract, and that the plaintiff was entitled to his salary down to March 4, .1905, when he became a member of Congress from the Sixteenth district of Missouri, and disabled from performing his duties under the contract. In his conclusions of law the master finds: “That the employer has a legal right to dismiss or discharge the employé, and that P. Porter, as principal chief of the Creek Nation, had the right to dismiss and discharge the plaintiff, A. P. Murphy, as its attorney, but, unless good cause was shown, the nation is liable for the damages for the violation of its contract.” The report recommended that a decree be entered adjudging that the complainant, A. P. Murphy, is entitled to recover the salary due as national attorney of the Greek Nation, under Ills contract, from tlie 1st day of April, 1904, to the 4th day of March, 1905, at tlie rate of $5,000 por annum, and that the same be ordered paid out of the moneys paid into court. Numerous exceptions were saved to this report of the master, but they were all overruled by the final decree of the court, and tlie report was approved and confirmed. It was therein also adjudged and decreed that the plaintiff, A. P. Murphy, do have and recover of and from the defendants, P. Porter and M. L. Mott, to be paid out of the funds in the hands of the clerk of court, the sum of $1,320.08, and the clerk was ordered and directed to pay over to the said plaintiff, A. P. Murphy, out of the funds in his hands, the sum of $4,320.08, and that the plaintiff, A. P. Murphy, have and recover of and from the defendants, P. Porter and M. I/. Mott, all of his costs In this action, paid out or expended.</p> <p>An appeal was taken from this decree to the United States Court of Appeals for the Indian Territory, where the decree was affirmed, and the appeal to this court is brought to review that action.</p>

This cause comes here upon writ of error to review a judgment against plaintiff in error for $2,500 and costs. The cause was tried by the court without a jury. The testimony being closed, the trial judge stated that he thought he should go upon the record in order to avoid any questions as to findings of fact, and proceeded to set forth his views as to the pleadings and evidence (somewhat in the form of a charge), and concluded that the company should pay the sum of $2,500.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.</p> <p>In 1893 the Legislature of Arkansas established the St. Francis levee district, comprising eight counties in the eastern part of the state, to construct and maintain levees against the waters of the Mississippi river, and gave to it the corporate name of the Board of Directors of St. Francis Levee District The directors were authorized to sue and he sued, to acquire property both by purchase and eminent domain, to determine the crown, height, slope, and grade of the levee, and to make all needful regulations, and do all acts in their opinion necessary to secure the levee district under their charge from overflow by the waters of the Mississippi. The complainant is the owner of a tract of land embracing about 500 acres, which is bounded on the east by the Mississippi river, and on the west 'by Fletcher bayou. It is alleged in the bill that this bayou is the natural course of drainage for the immediate district, and carries off all surface water which would otherwise accumulate upon the rear portion of the complainant’s plantation, and empties the same into the Mississippi river a few miles below. In the month of October, 1901, the plaintiff granted to the defendant the right of way for the levee across the eastern portion of his land, and thereafter during the same year it was constructed over the land, and many miles to the southward, crossing the mouth of Fletcher bayou so as to completely dam it up. No complaint was made of the construction of the levee, hut during the summer and fall of 1902, it is charged that, as a result of closing the bayou, a great quantity of water was accumulated on the western portion of plaintiff’s plantation, causing more than 300 acres of his land to become a swamp, rendering it unfit for agricultural purposes to which it had theretofore been devoted, injuring pecan trees growing thereon, and rendering the remainder of the plantation unhealthy for human habitation. It is charged in the hill that the damming up of Fletcher bayou “in this way” was wholly unnecessary, and was not originally contenq>lated by the defendant. In 1902, after the effect of the levee had become manifest, the complainant presented the situation to the defendant, which thereupon promised to provide suitable drainage for carrying off the accumulation of water. It caused its engineer to make surveys and estimates of the cost of providing such drainage, and he reported that the cost would not greatly exceed the sum of $2,500. The defendant has, however, failed to construct the drainage, and prior to the bringing of suit refused to do so. The bill, upon the foregoing facts, asks judgment for damages already suffered, and a mandatory injunction requiring the defendant to drain said swamp. To this bill a demurrer was interposed, first, upon the ground that it did not state facts sufficient to entitle the plaintiff to any relief; and, second, that it shows on its face that the plaintiff has a full, complete,, and adequate remedy at law. The' demurrer was sustained upon the second ground, and the bill dismissed.</p>

<p>1. Gontbacts (§ 321*) — Renunciation of Executory Contract — Right to Elect as to Remedy.</p> <p>The final renunciation by one party of a contract providing for future performance gives to the other party an immediate right of election, either to continue lo assert his strict contract rights or to accept the renunciation and to sue upon that as a distinct cause of action.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1510; Dec. Dig. § 321.*]</p> <p>2. Judgment (§ 594*) —Bab of Causes — Contract of Employment — Divisibility — Successive Actions fob Breach.</p> <p>Upon the refusal of defendant to further perform a contract by which it employed plaintiff for a term of five years at a salary payable monthly, plaintiff brought an action on the contract in which he expressly limited his demand to such damages as he had sustained and might sustain by reason of the breach to the time of trial, and in such action recovered judgment for the amount of his salary (o the time of trial; the contract term not having expired. Held, that llie contract, was not indivisible, but was capable of successive breaches by defendant, and that such action was not an election by plaintiff to treat it as, terminated, nor the judgment therein a bar to a second action to recover subsequent salary and damages for an anticipatory breach.</p> <p>[Ed. Note. — For oilier cases, see Judgment, Cent. Dig. § 1109; Dec. Dig. J 591.*]</p>

A bill in equity was filed in this cause by Alonzo .1. Farrington, the appellant, against the defendants, W. L. Stuclcy, trustee, William Kenefick, trustee, and William Kenefick Company, asking a preliminary injunction to restrain the foreclosure of a trust deed under power of sale therein contained, and as final relief asking that the trust deed and the notes secured thereby be declared illegal and void, and canceled.

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

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

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

<p>Patents (§ 328*) — Anticipation—Account Books.</p> <p>The Wever and Parmerter patent No. 632,769, and the Rand patent No. 746,157, relating to account books, are both void for anticipation.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 328.*}</p>

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

<p>Admiralty (§ 20*) — Jurisdiction—Maritime Tort — “Land.”</p> <p>A pontoon lloatiug upon the water of a navigable stream, between high and low water mark, rising and falling with the tide and used as a landing in connection with a ferry, although fastened to the shore by a cable is not land, and an action for an injury to a person thereon by a moving vessel is for a maritime tort and within the admiralty jurisdiction.</p> <p>[ ltd. Note. — For other cases, see Admiralty, Cent. Dig. § 216; Dec. Dig. § 20.*</p> <p>For oilier definitions, see Words and Phrases, vol. 5, pp. 3975-3984; vol. 8, pp. 7700, 7701 .j</p>

<p>In Admiralty. Suit for injury to cargo.</p>

<p>On Petition for Revival and Substitution of Parties.</p>

<p>In Bankruptcy.' On report of special commissioner.</p>

<p>1. Insurance (§ 26*) — Foreign Corporations — Actions Against — Service of Process.</p> <p>To bind a foreign insurance company by service of procoss on the state superintendent 'of insurance, under Rev. St" Mo. 1899, § 7991 (Ann. St. 1906, p. 3799), it must appear that (lie company is within such statute by doing business in the state, or that it has been doing business in the state and still lias policies or liabilities outstanding therein.</p> <p>j.Ed. Note. — For other cases, see Insurance, Cent. Dig. § 33; Dec. Dig. § 26.’</p> <p>Service of process on foreign insurance corporations, see notes to Eldred v. American Palace Car Co., 4-5 C. C. A. 3; Celia Commission Co. v. Bohlinger, 78 O. O. A. 473.]</p> <p>2. Removal of Causes (§ 112*) — Pbooeedi tee Removal — Motion to Quash Service.</p> <p>A motion to vacate the service of sm nay properly he presented to the federal court after removal of ..se. where defendant has •appeared only for the purpose of such removal, whether specially so limited or not; and such motion must be determined on the facts appearing of record at the time of removal, which cannot be supplemented by evidence taken after removal.</p> <p>[Eel. Note. — For other cases, see Removal of Causes, Cent. Dig. § 238; Dec. Dig. § 112.*]</p>

At Law. On demurrer to answey. This is an action to recover a failure deliver a message sent on behalf of the plaintiff ¿'Lm Hot Springs, Ark., to a nersona? Terre Haute, Ind.

<p>1. Exceptions, Bill of (§ 50*) — Piu-ai; station fob Allowance.</p> <p>Where a draft of a bill of exceptions is presented, to the trial judge for allowance within the time proscribed by rule 17 of tho Circuit Court, it is immaterial wlidhor it is so presented by the party, his counsel, or the ■clerk of the court, although U is doubtful if any duty to present it rests upon the clerk merely because it is filed.</p> <p>[Ed. Note. — Tor other cases, see Exceptions, Bill of, Dec. Dig. | 50.*]</p> <p>2. Exceptions, Bill of (§ 41*)— Pk&sentv«o±\ fob Allowance — Tmn fob Allowance.</p> <p>An order, entered by a Circuit Court at the end of a term, that “all things not acted on stand continued,” reserves the court’s control over a draft bill of exceptions, which has been presented for allowance, but not acted on, and the same may be aliened at the succeeding term.</p> <p>[Ed. Note. — -Tor other cases, see Exceptions, Bill of, Cent. Dig. §§ 65, GG; Dee. Dig. § 41.*]</p>

<p>1. Skipping (§ 43*) — Charter Party — Eight to Cancel — Ready eob Loading “by” a Date Stated.</p> <p>A provision of a charter party giving the charterer the option to cancel if the vessel was not “ready for loading by November 20, 1903, at Yokohama,” required her to be ready on or before that date, and the charterer was not entitled to cancel because she was not ready at the beginning of the day, where she wras a few hours later.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § ICO; Dec. Dig. § 43.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 929 -932.]</p> <p>2. Shipping (§ 43*) — Charter Party — Eight to Cancel — Vessel “Ready por Loading.”</p> <p>A sailing ship'was ready to load on the date required by her charter, except for the fact that she had taken in a quantity of mud ballast which would require to be removed before one of the hatches could be used. Ballast of some kind was necessary to stiffen the ship and render her seaworthy after removal of her prior cargo, and the master had applied to the charterers to know the character of her next cargo, but had not been informed, and had put in the mud ballast temporarily. Held that, the same being necessary, its presence did not prevent her from being “ready for loading,” nor entitle the charterers to cancel.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 1G5; Dec. Dig. § 43.*</p> <p>For other definitions, see Words and Phrases, vol. 7, p. 5935. Cancellation, surrender, or rescission ol‘ charter of vessel, see note to McNear v. Leblond, 61 C. C. A. 569.]</p>

<p>1. Bankruptcy (§ 136*) — Summary Proceeding Against Bankrupt — Order to Surrender Property.</p> <p>Evidence held insufficient to warrant a summary order requiring a bankrupt to pay over money to Ms trustee under tlie rule that such an order should not be made unless the bankrupt’s ability to comply therewith is plainly and affirmatively shown.</p> <p>I Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 136.*]</p> <p>2. Bankruptcy (§ 399*) — Eights op Bankrupt — Exemptions.</p> <p>Tlmt a bankrupt squandered money in gambling and other wasteful practices does not establish fraud which will deprive him of the right to his exemption under the law of Pennsylvania.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. g 609; Dee. Dig. g 399.*]</p>

<p>1. Judgment (§ 704*) — Conclusiveness of Adjudication — Persons Concluded — Codefendants.</p> <p>Where joint defendants appeared by different attorneys, made separate answers and defenses, and separate judgments wore rendered as to each, there being no cross-pleadings or issues between them, neither a judgment against the one nor in favor of the other in said action created any estoppel as between them which affected a subsequent action by the one against which judgment was rendered to recover the amount of the same from the other as primarily liable therefor.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 3229; Dec. Dig. § 701.*]</p> <p>2. Compromise and Settlement (§ 31*) — Construction of Agreement.</p> <p>An agreement between a city and a contractor for constructing an elee1 rio light plant for the city, who wore joint defendants in an action for damages alleged to have resulted from the negligent construction or operation of such plant, recited that it was for the purpose of compromising and settling all matters of difference between the parties, among which was the question which, if either, was ultimately liable for such damages, and provided that in case of a judgment against the city it might maintain an action over against the contractor, but. that if required by the contractor it should appeal from such judgment and should not have llie right to sue the contractor unless the same should be affirmed. Held, that the effect of such agreement was not merely to authorize the city to sue the contractor, which right it already had, but that when fairly construed it acknowledged the liability of the company for any judgment which should be finally recovered against the city.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. § 51; Dec. Dig. § ll.*j</p> <p>3. Action (§ 27*) — Nature and Form — Contract or Tort.</p> <p>Defendant contracted to construct an electric light plant for plaintiff city ‘‘in a workmanlike, safe and skillful manner.” After the plant was in opera üQii a boy was killed as the result of the defective insulation of a wire, and a judgment therefor was recovered against the city. Held, that an action by the city to recover the amount of such judgment from defendant was not one sounding in tort for negligence, but was one for breach of the contract in consequence of which the city had suffered damages, and that the fact that the city was operating the plant at the time of the Injury would not preclude a recovery, provided it was itself without fault.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 369-178; Dec. Dig. § 27.*]</p> <p>4. Indemnity (§ 11*) — Conclusiveness of Judgment Against Indemnitee.</p> <p>To such an action the negligence of the boy contributing to his own injury would not constitute a defense, in the absence of any claim that the elly had in bad faith failed to present that defense in the action against it.</p> <p>[Ed. Note. — For other eases, see Indemnity, Gent. Dig. § 41; Dec. Dig. S 14.*]</p> <p>5. Trial (§ 207*) — Instructions to Jury — Purpose and Effect of Evidence.</p> <p>Where in such action plaintiff introduced in evidence the record in the damage suit to show the amount of damages it had sustained by reason of defendant's breach of contract, and which also showed that a verdict liad been returned and judgment rendered against it and in favor of defendant, wbo was a codefendant in such suit, it was prejudicial error to charge the jury that they might consider such record generally and give the facts therein shown such weight as they thought them entitled to.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 49S; Dec. Dig. § 207.*]</p>

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

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

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

<p>1. Carriers (§ 244*) — Wno are Passengers —Invitation' op Carrier’s Employes .</p> <p>Neither the master mechanic of a railroad nor a conductor, nor an engineer of a train, has any implied authority to agree on behalf of the company to carry a person on such train without payment of fare.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1115; Dee. Dig. § 244.*]</p> <p>2. Railroads (§ 270*) — Injuries to Persons on Trains — Persons Riding at Invitation op Emkloyés — Riding on Engine.</p> <p>One who accepted an invitation from the master mechanic of a railroad and a conductor and an engineer of a train to ride in the cab of an engine without payment of fare is presumed to have known that such invitation was without authority, and not only rdid not become a passenger, to whom the carrier owed the duty of care as such, but assumed all of the known hazards incident to such exposed position; and there can be no recovery from the company for his injury or death, due to such dangerous position, unless caused by the wanton or reckless act of its servants.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 884; Dee. Dig. § 270.*]</p>

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

<p>1. Adverse Possession (§ 71*) — -Initiation oe Right Under Texas Statute —Deed Duly Recorded — Corporate Deed — “Deed Duly Registered.”</p> <p>Under Rev. St. Tex. 1895, art. 676, which provides that a corporate deed may be signed by the president or presiding member or trustee, and that when so signed and acknowledged it may be recorded, a deed by a foreign corporation doing business in Texas, executed over its corporate seal and signed and acknowledged by two of its directors under authority of a resolution of its' board of directors, is effective, and, when recorded, is “a deed duly registered,” and sufficient foundation for proof under the five-year statute of limitation.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 415; Dec. Dig. § 71.*]</p> <p>2. Limitation of Actions (§ 199*) — -Absence of Defendant — Foreign Corporations.</p> <p>The question whether a foreign corporation was absent from the state of Texas so as to suspend the running of the statute of limitations in its favor under Rev. St. Tex. L895, art. 3367, where it depends upon whether agents acting for it in certain classes of matters, but not in all, were “local agents” upon whom service could have been made under Rev. St. Tex. 1895, art. 1223, is to some extent at least one of fact, and its determination by the court as one of law was error.</p> <p>I Ed. Note. — -For other cases, see Limitation of Actions, Cent. Dig. § 727; Dee. Dig. § 199.*]</p>

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

<p>Courts (§ 849*) — Federal Courts — Subpcgna Duces Tecum.</p> <p>The power of a federal court to require the production of documentary evidence is not limited to an order made on motion, as provided by Rev. St. § 724 (U. S. Comp. St. 1901, p. 583); but it has inherent power, as well as express authority under section 716 (page 580), to issue a subptnna duces tecum and to enforce obedience thereto by proceedings for contempt.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 349.*]</p>

<p>1. Payment (§ 84*) — Recovery of Payments — Mistake of Law — Payment to Trustee in Bankruptcy.</p> <p>The rule that payments made under mistake of law are not recoverable does not apply to a payment made to a trustee in bankruptcy or other officer of a court bolding the funds in his hands upon trust for equitable distribution.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 267; Dec. Dig. § 84.*]</p> <p>2. Payment (§ 84*) — Recovery op Payments — Nature and Grounds op Right.</p> <p>An action to recover money paid by mistake is equitable in its nature, and when a payment is made which the payee in good conscience is entitled to retain it cannot be recovered.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 267; Dee. Dig. § 84.*]</p> <p>3. Payment (§ 89*) —Action to Recover Payment— Sufficiency of Com- ■ PLAINT.</p> <p>A complaint, in an action against a trustee in bankruptcy to recover a payment alleged to have been made to him by plaintiff in ihe mistaken belief that under a prior decision of the court he was liable therefor does not state a cause of action, where it does not show that he would not otherwise have made the payment, nor that he was not in fact liable.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § 291; Dee. Dig. § 89.*]</p>

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

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

<p>1. Bankruptcy (§ 77*) — Involuntary Proceedings — Petitioning Creditors —Purchase of Claim.</p> <p>Claims against a bankrupt may be purchased in order to make up the requisite number of petitioning creditors to sustain an involuntary petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 103; Dec. Dig. § 77.*]</p> <p>2. Bankruptcy (§ 77*) — Involuntary Proceedings — Amount op Indebtedness.</p> <p>Where the claim of a petitioning creditor was provable when the petition was filed for an amount exceeding $500, it was immaterial that thereafter the creditor became liable to the bankrupt’s assignee for the benefit of creditors because of a wrongful attachment.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Cent. Dig. § 101; Dec. Dig. § 77.*]</p> <p>3. Bankruptcy (§ 77*) — Involuntary Proceedings — Claims in Different Rights.</p> <p>A claim by a bankrupt’s assignee against a creditor for damages for Wrongful attachment was a claim in a different right, and therefore could not be set off against the creditor’s claim against the bankrupt.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dee. Dig. § 77.*]</p>

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

<p>Shipping (i 108*) — Carriage of Goods — Contracts of AffreightmentDamages for Breach.</p> <p>Where, after a vessel had sailed with part only of the cargo she had contracted to carry for a shipper, the latter signed, under a verbal protest. a bill of lading covering the entire quantity, as the only means of</p> <p>. obtaining any bill of lading, such bill did not supersede the original contract, and the shipper is entitled to recover back the freight paid on the cargo not taken, as well as damages resulting from the failure to take it.</p> <p>[Ed. Note. — 'For other cases, see Shipping, Cent. Dig. § 407? Dec. Dig § 108.*]</p>

<p>Master and Servant (§ 112*) — Master’s Liability for Injuries to Servani^Railroad Tracks — Duty to Fence. ‘</p> <p>Neither at common law nor under Acts Tenn. 1891, p. 220, c. 101, §§ 2. 3, which provide that railroad companies shall be liable for all stock killed on their tracks if unfenced, but exempts them from such liability if their tracks are inclosed by a lawful fence, is any duty to employes imposed on a railroad company to fence its track; and it is not chargeable with liability for the death of an engineer in its employ, resulting from a collision with live stock on the track because its road was unfenced.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 222; Dec. Dig. § 112.*]</p>

<p>Towage (§ 11*) — Injury io Tow — Collision with Pier.</p> <p>Two tugs, which undertook io tow a steamer from the Erie Basin without her having steam up aun without assistance, although they lacked sufficient power to handle her safely under the conditions of wind and tide existing, especially outside the basin, held liable for injury by striking against the piers at ihe entrance.</p> <p>[Ed. Nolo. — For other cases, see Towage, Cent. Dig. §§ 11-26; Dec. Dig. § ll.*i</p>

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

<p>1. Patents (§ 310*) — Suit foe Infringement — Admission in Pleading.</p> <p>Where the answer to a bill charging infringement of a patent admitted that defendant had during the time alleged made and used articles conforming to the claims of the patent, no further proof is required from complainant on the issue of infringement</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 526; Dee. Dig. § 310.*]</p> <p>2. Patents (§ 324*) — Suit foe Infringement-Increase of Damages by Court.</p> <p>The awarding of treble damages for infringement of a patent under Rev. St. § 4921 (U. S. Comp. St. 1901, p. 3395), being discretionary with the. court, will not be interfered with by the appellate court unless it appears that there has been an abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 324.*]</p> <p>3. Patents (§ 328*) — Validity—Photogeaphio Negative.</p> <p>The Fox patent No. 675,272, for a photographic negative, is valid on its face.</p> <p>[Éd. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>1. Patents (§ 328*) — Invention—Printing Die.</p> <p>The Force patent, No. 705.228, for a printing die, consisting of a metallic handle and a type-block, the handle having flanges with gripping edges to hold the rubber block instead of fastening it with glne or cement, is void on its face for lack of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 310*) — Suit fob Infringement — Adjudication on Invalidity</p> <p>on Demurrer.</p> <p>A court may properly declare a patent void on a demurrer to a bill for its infringement, when convinced from an inspection that it cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Patents. Cent. Dig. § 536; Dec. Dig. § 310.*]</p>

On order to show cause why defendant should not be punished for contempt in disobeying and violating injunction order or decree of this court made on final hearing, and issued on or about December 29, 1903, and served January 2, 1904, enjoining infringement of United States letters patent No. 609,928, dated August 30, 1898, on application filed September 28, 1897.

<p>1. Equity (§ 3.(i7*)- Pleading -Plea- -Multifaeiousness.</p> <p>A plea which states but one ground of exemption from liability is not multifarious, although it may set out a number of facts or details of evidence in explanation and support of that ground.</p> <p>.¡Ed. Note. — For other eases, see Equity, Cent. Dig. § 404; Dee. Dig. § 167.-]</p> <p>2. Patents (§ 830*) — Suit fob Initbingement — Defenses.</p> <p>In a suit for infringement of patents, against the patentee, who has assigned the patents and is charged with having infringed as superintendent of another corporation, a plea setting up that defendant as such superintendent has made no change in the conduct of the corporation’s business, but which in effect admits infringement by the corporation, is insufficient.</p> <p>I Ed. Note. — For other cases, see Patents, Cent. Dig. § 523; Dee. Dig. § 810.*]</p>

<p>Patents (§ 328*) — Suit fob Infringement — 'Poeuimotart Injunction.</p> <p>A preliminary injunction granted against infringement of the Sayen patent, No. 594,030, for a Roentgen ray tube, previously adjudged valid, as against the defense of anticipation by one of the defendants.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*</p> <p>Grounds for preliminary injunction in patent infringement suits, see note to Johnson v. Poos Mfg. Co., 72 C. C. A. 123.]</p>

<p>In Equity. On settlement of order for receiver’s certificates.</p>

<p>Street Railroads (§ 58*) — Insolvency—Expenditures by Receiver.</p> <p>On appointment of a receiver for a street railway, he will be authorized to make such expenditures as are necessary to render the road efficient aud to perfect the service in return for which its franchises were given.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>Receivers (§ 158*) — Insolvency and Receivers — Phiorxty op Ltens.</p> <p>In insolvency proceedings against street railroad companies, claims for torts committed prior to the appointment of receivers have no equity which entitles them to priority over mortgage liens, but rank with general unsecured claims.</p> <p>[Ld. Note. — For other cases, see Receivers, Dec. Dig. § 138.*J</p>

<p>Receivers (§ 149*) — Method ot Proving Claims.</p> <p>In insolvency proceedings against street railway companies, claims against the defendants for penalties for refusal of transfers should be separately presented, each duly verified by the claimant, to be separately considered and disposed of, and an omnibus claim filed by an attorney in behalf of a large number of individual claimants cannot be considered.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 149.*]</p>

<p>In Equity. On petition of receivers for instructions.</p>

<p>Street Railroads (§ 58*) — Receivers—Administration of Property — Assumption of Lease.</p> <p>Receivers for a street railroad system directed to cancel a lease for a constituent line operated thereunder at a loss.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>1. Street Railroads (§ 58*) — Leases— Construction — Insolvency op Lessee.</p> <p>A provision of a lease of street railroad property deferring entry for nonpayment of rent until one year after default does not continue binding where, by reason of the insolvency of the lessee and its failure to pay interest. mortgages on parts of the system have been foreclosed and the system has thereby been disrupted.</p> <p>[Ed. Note. — Por other cases, see Street Railroads, Dec. Dig. § 58.*]</p> <p>2. Street Railroads (§ 58*) — :Receivers—Necessity tor Separate Receiver-ships.</p> <p>Where, in a creditors’ suit against an insolvent lessee of a street railroad system, to which suit the lessor became a party, receivers were appointed who operated the property for all parties in interest until foreclosure suits were instituted against the property by bondholders of the lessor, who are entitled to possession by their own receivers, and the affairs of the lessee have been so far liquidated that they may soon be wound up and an accounting had between it and the lessor, separate receivers should be appointed to represent the adverse interests.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § .58.*]</p> <p>3. Street Railroads (§ 58*) — Receivers—Liabilities Incurred in Operation.</p> <p>Where an entire street railroad system as a going concern was placed in the hands of a court on application of a creditor of the lessee, but with the consent of the lessor and its bondholders, and operated by receivers until turned over to receivers representing the bondholders, all damage claims and other liabilities incurred during such operation will be made a charge upon the entire property in so far as they cannot be paid from the earnings or the property of the lessee.</p> <p>[Ed. Note. — Por other cases, see Street Railroads, Dec. Dig. § 58.*]</p> <p>4. Receivers (§ 201*) — Successive Receiverships — Accounting; Between Receivers.</p> <p>General rules stated to govern an accounting between receivers appointed for the lessee of a street railroad system, who had been operating the same and had purchased equipment and supplies, and receivers appointed at suit of mortgagees to whom the property was turned over.</p> <p>[Ed. Note. — Por other cases, see Receivers, Dee. Dig. § 201.*]</p>

<p>Jtoguent (§ 243*) — Pasties-—IIktek.mination op Validity op Lease- Mode op Attack.</p> <p>The validity of a lease of street railway lines cannot he determined summarily on a motion by tort creditors of tlie lessee made in a creditors’ suit, but can only he questioned by a plenary suit against all parties in interest.</p> <p>(Ed. Note. — For other cases, see Judgment, Cent. Dig. § 428; Dec. Dig. § 243.*]</p>

<p>In Equity. On application of Eighth Avenue and Ninth Avenue Railroads.</p>

<p>In Equity. On application by receivers for instructions.</p>

<p>Courts (§ 500*) — Actions Against Receives — Enforcement of Judgment.</p> <p>A federal court has the sole right to control the disposition of property and the distribution of funds in the hands of its receivers, and will not permit an execution from a state court to be levied thereon.</p> <p>[Ed. Note.- — For other cases, see Courts, Cent. Dig. §§ 1407, 1408; Dec. Dig. § 500.*</p> <p>Suits by and against- receivers of, see note to J. I. Case Plow Works v. Finks, 26 C. C. A. 49.]</p>

<p>1. Street Railroads (§ 58*) — Leases—Cancellation by Receivers of Lessee —Restoration oe Property.</p> <p>Petitioner leased its street railroad line for a long term, tlie lease providing .that the lessee should maintain the property, and whenever the lease should cease to be operative should return all horses, cars, etc., leased to and used by it in good condition, and as to any which should have ceased to exist should return the substitutes provided therefor to an equal value. The lessee united 'the line with others owned and leased by it, operating the whole as a single system and using the equipment indiscriminately on all the lines. After the lapse of 16 years the property was returned to the lessor by receivers appointed in suits against the lessee. Held, that such property as could be identified as having been received under the lease or as having been substituted therefor should he returned, and that horses, cars, or other equipment of the same kind as that received under the lease, exclusively in use on the line at the time of the appointment of the receivers;-might he assumed'to he substitutes, and that as to any shortage petitioner had its claim for damages against the lessee.</p> <p>. [Ed. Note. — Eor other eases, see Street Railroads, Dec. Dig. § 58.*]</p> <p>2. Street Railroads (§ 58*) — Leases — Cancellation by Receivers eor Lessee-Restoration oe Property.</p> <p>A considerable part of such leased line was converted by the lessee at its own expense from a horse to an electric line at a large cost, and different cars were placed thereon. Held,, that such electric ears could not be considered substitutes for tbe horse ears which they replaced and which were transferred to other parts of the lessee’s system, and that petitioner was not entitled to the same.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 58.*]</p> <p>3. Street Railroads (§ 58*) — Leases — Cancellation by Receivers .eor Lessee-Accounting eor Earning.</p> <p>Where receivers appointed for a lessee of a street railroad system continued to operate one r" the leased lines after the time for which rent was paid, but within a ''''«sonable time elected not to continue the lease and returned the property to the lessor, they should account to it for the net receipts of such operation for the time during which no rent was paid.</p> <p>[Ed. Note. — For other eases, see Street Railroads, Dec. Dig. § 58.*]</p> <p>4. Street Railroads (§ 58*) — Leases — Cancellation by Receivers eor Lessee-Restoration oe Property.</p> <p>At the time of the leasing of a street railroad line for a long term, the cash then in the treasury of the lessor was paid over to the lessee as owner and not as lessee; the lease providing, however, that, if the lessor should resume possession of the property by reason of default, the money should be deemed a loan, and returned with the other property. Subsequently receivers for the lessee elected to cancel the lease, and returned the property. Held,, that they were not required to return the money which did not come' into their possession, but that the lessor could prove its claim for the amount against the property of the leoseo being administered by the court.</p> <p>LEd. Note. — Por other cases, see Street Railroads, Dec. Dig. § 58.*]</p>

<p>Memorandum for Counsel.</p>

<p>Receivers (§ 118*) — Adai:i.ntstration' on Property — Receivers’ Certificates— Purpose of Issue — Repairs.</p> <p>Receivers for a street railroad company who have been authorized to issue receivers’ certificates for betterment and equipment purposes which are made a lien on the property superior to the mortgages may properly use proceeds of such certificates in making repairs on the roadbed of a leased line whore it is an essential part of the system, and the lease, which it is the purpose of the receivers and the court to continue, requires the lessee to make repairs, and such repairs are essential to the maintenance of efficient service and the protection of the rolling stock from excessive wear and injury.</p> <p>Hid. Note. — For other cases, see Receivers, Gent. Dig. § 206; Dec. Dig. § 118.*]</p>

<p>In Equity. On application for adjustment of certain claims presented by and against receivers for the respective companies.</p>

<p>Keceivees (§ 158*)' — Equitable Rule as to P’bioeities — Claims Entitled to Pl> [OP.ITY.</p> <p>The surety on supersedeas bonds given by a street railroad company on appeals from .judgments against it, which has been compelled to pay such judgments on their affirmance after the insolvency of the company, is not entitled to rank as a preferred creditor in the insolvency proceedings against Ihe company with creditors having claims for supplies furnished to keep the road in operation.</p> <p>[Ed. Note. — For other eases, see Receivers, Cent. Dig. § 303; Dec. Dig. § 158.*]</p>

<p>In Equity. On motion for leave to intervene.</p>

<p>Street Railroads (§ 58*) — Operation by Receivers — Exchange op Transfers.</p> <p>Receivers respectively for a street railroad system and for a leased line, which was a constituent part of such system but had been surrendered and was being operated independently, authorized to discontinue the exchange of transfers after due notice to the public.</p> <p>(Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 135; Dec. Dig. § 58.*]</p>

<p>Courts (§ 500*) — Jurisdiction of Federal Courts — Suit Relating to Property in Custody of Receivers.</p> <p>Tlie fact that receivers appointed by a federal court for a street railroad system have been operating a leased line does not draw to that court jurisdiction of a suit to foreclose a mortgage on such line after the receivers have elected to surrender the lease and hare offered to' return the property to the lessor.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1407; Dec. Dig. § 500.*]</p>

<p>1. Street Railroads (§ 58*) — Insolvency and Receivers — Disposition of Leased Lines.</p> <p>Receivers for a street railroad system directed to turn over a leased lino previously operated by them, but the lease of which they elected to surrender to a receiver appointed by a state court in a foreclosure suit against the lessor, reserving certain questions as to what property should pass and of accounting between the respective receivers for future adjustment after hearings before a master.</p> <p>I Ed. Note. — For other cases, see Street Railroads, Gent. Dig. § 135; Dec. Dig. § 58.*]</p> <p>2. Street Railroads (§ 58*) — Leases—Cancellation by Receivers of Lessee.</p> <p>Under a lease of a street railroad line which required the lessee on its termination for any cause to return all of the property leased, including all tools, implements, machinery, and equipment, or substitutes of equal value, and also a sum of money advanced, to be treated in such case as a loan, where receivers for the lessee terminate the lease they cannot be required to restore property or money which did not come into their possession, but any shortage gives the lessor a claim for damages against the estate of the lessee.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 135; Dee. Dig. § 58.*]</p> <p>3. Street Railroads (| 5S*) — Leases—Cancellation by Receivers of Lessee.</p> <p>Where a lease of a street railroad required the lessee to pay all taxes and assessments against the properry, on the cancellation of the lease by receivers for the lessee, they cannot bo required as receivers to indemnify the lessor against liability for outstanding taxes which are in litigation, which is a liability of the lessee but not of the receivership.</p> <p>]Ed. Note. — For other eases, see Street Railroads, Cent. Dig. § 135; Dec. Dig. § 58.*]</p> <p>4. Street Railroads (§ 58*) — Receivers—Discretion to Cancel Lease.</p> <p>Receivers for a street railroad system, including a number of leased lines, may operate one of such lines for a reasonable time to enable them to determine whether or not to adopt the lease without incurring liability for rental under the lease, but on an election to cancel they will be required to account to the lessor for the net profits of such operation.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Big. § 135; Dec. Dig. § 58.*]</p>

<p>Street Railroads (§ 38*) — Insolvency and Receivers — Contracts by Receivers.</p> <p>Where a coniract by a street railroad company letting the advertising space in its cars for a stated term was modified by receivers for the company with the approval of the court, on account of changed conditions, by which modification the receivers have received increased compensation, and the lessee has presumably made contracts in reliance thereon, it will not be set aside and the matter reopened against the objeciion of the lessee, unless for strong reasons shown.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Doc. Dig. § 38.*]</p>

<p>In Equity. On motion to strike out answer.</p>

<p>In Equity. Suits by the Central Trust Company against the Third Avenue Railroad Company, by the Barber Asphalt Company against tiie Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company, by the American Hay Company against the Dry Dock, East Broadway & Battery Railroad Company, and by the Lorain Steel Company against the Union Railway Company. The receiver of the defendant roads above enumerated has applied for instructions as to proposed discontinuance of transfers in addition to those considered in an earlier opinion of this court filed March 31, 1908 (161 Fed. 819).</p>

<p>In Equity. On petitions of Arthur H. Wadick and another for instructions to receiver for Union Railway.</p>

<p>In Equity. On application for appointment of temporary receiver in suit to foreclose a mortgage.</p>

<p>At Eaw. On .demurrer to petition. "</p>

<p>In Bankruptcy. On petition and rule nisi for contempt.</p>

<p>In Bankruptcy. On motion to confirm report of Peter B. OIney, special master, on petition of United States Mortgage 8c Trust Company-</p> <p>On October 30, 1907, XCessler & Co. (hereinafter called Kessler) committed an act of bankruptcy by making a general assignment for the benefit of creditors. Petition was filed against them, and they have been duly adjudicatee!. In August, 1907, Kessler issued to Sgobel & Day (hereinafter called Sgobel) a letter of credit for £2,000 in favor of one Rodriguez of London. Of this credit Kessler advised Glyn. Mills, Currie & Co., also of London (hereinafter called Glyn), and closed their letter of advice by forwarding a “press copy of tbe letter of credit, and recommending all drafts valued on you there against to your kind protection to our debit.” The business thus arranged for was, and was expected to be, transacted as follows: Sgobel bought grapes of Rodriguez for importation into the United States. On receiving an order from Sgobel, Rodriguez shipped the grapes, and delivered to Glyn the bills of lading indorsed in blank and a draft on Sgobel for tile agreed price. He then drew a check on Glyn for the amount of the draff, and received cash therefor. Glyn immediately charged Kessler with the amount so advanced, and forwarded bills of lading and draft to Kessler. Kessler had long been engaged in this business, and paid Glyn a yearly salary for transacting London business of this nature.</p> <p>Some time prior to October 80, 100-7, Rodriguez, having made a shipment of grapes, applied to Glyn for payment against usual documents. Owing to an inaccuracy in some of the papers, he did not give Glyn the draft on Sgobel, but surrendered his bills of lading duly indorsed in blank, and obtained from Glyn the usual payment. Glyn immediately forwarded to Kessler the bills of lading by mail, stating that the draft would follow. The amount so paid Rodriguez without receipt of draft Glyn immediately charged to Kessler’s account. Some days later Rodriguez brought in his draft, but before Glyn forwarded the same to Kessler he learned of the latter’s failure. Thereupon the draft was sent to the present petitioners, with instructions to collect for Glyn’s account.</p> <p>Meantime the receiver in bankruptcy in due course of mail had received the bills of lading. When the draft came, forward Sgobel refused to pay except out of the proceeds of the property covered by the bills of lading, which property, however, was in the receiver’s possession under said bills. This proceeding was brought to determine the respective rights of Glyn and, Kessler’s trustee.</p>

<p>At Law. On motion to recommit case to auditor.</p>

<p>Courts (§ 357*) — -Eederal Courts — Costs on Appeal — Execution.</p> <p>To authorize a Circuit Court to issue execution for costs awarded by the Circuit Court of Appeals on a writ of error, the mandate from the latter court should contain a special provision directing the same, as required by Rev. St. § 701 (U. S. Conij). £3t. 3001, p. 571), relating to the Supreme Court, made applicable to the Circuit Court oí Appeals by Act March 3. 3891, c. 517, § 11, 26 Stat. 829 (ü. S. Comp. St. 1903, p. 552).</p> <p>£E<1. Note. — For other casos, see Courts, Cent. Dig. § 938; Dec. Dig. | 357.*]</p>

In Admiralty. Suit for collision. Libel by the owner of the schooner Julia Davis to recover damages for a collision between the schooner and the barge Valentine, in tow of the tug Aries, about 7 p. m. on January 2, 1908, half a mile south of Race Rock, in Long Island Sound. The Aries, bound east, had a tow of five barges on hawsers, one behind the other, the Valentine being the fourth barge.

<p>In Bankruptcy.</p>

<p>Bankruptcy (§ 72*) — Proceedtnos Against Corporations — Jurisdiction of Court.</p> <p>Where a corporation, at the time il was adjudicated a bankrupt, was not and had never been principally engaged in any business which, under the statute, rendered it subject to such adjudication, the court was wholly without jurisdiction to make the same; and such lack oi' jurisdiction cannot be cured by laches, waiver, or estoppel, but the proceedings must be dismissed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 72.*</p> <p>What, persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 0. C. A. 4.]</p>

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

<p>1. Courts (§ 282*) — Jurisdiction op Federal Courts — Federal Question.</p> <p>An action against election officers to recover damages for the wrongful rejection of plaintiff’s vote for a member of Congress is one arising under the Constitution of the United States, and is within the jurisdiction of - a federal court, where the damages are laid at more than $2,000.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 820; Dec. Dig. § 282.*</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 30S; Montana Ore Purchasing Co. v. Boston & M. C. C. & S. Min. Co., 35 C. C. A. 7.]</p> <p>2. Courts (§ 328*) — Jurisdiction op Federal Courts — Amount in Controversy.</p> <p>In an action under Rev. St. § 1979 (U. S. Comp. St. 1901, p. 1262), to recover damages for depriving plaintiff of rights secured to him by the Constitution and laws of the United States under color of a state statute or law, the plaintiff is not required to allege that defendants acted maliciously, and a failure to do so does not authorize the court to determine as matter of law that only nominal damages are recoverable, and that therefore the action is not within the jurisdiction of a federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 890; Dec. Dig. § 328.*</p> <p>Jurisdiction of federal courts as determined by the amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.]</p> <p>3. Constitutional Law (§ 68*) — Judicial Powers — Political Questions— Adoption op Constitution.</p> <p>Whether a state Constitution was duly ordained by the people of the state is a political question, and where it has been promulgated and recognized as valid and in force by the executive and legislative departments of the state, and accepted and acquiesced in by the people, the legality of its adoption cannot be brought in question in a federal court.</p> <p>[Ed. Note.- — For other cases, see Constitutional Law, Cent. Dig. § 125; Dec. Dig. § 68.*] •'</p>

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

<p>1. Waters and Water Courses (§ 52*) — Obstruction of Stream — Right to Natural Flow.</p> <p>A company owning a part of the bed of a stream which it is devoting to private purposes is bound to exercise the highest care not to so obstruct the stream as to cause it to overflow and injure property on the hanks in cases of freshets, which, although unusual, are known to have occurred in the past and are to be anticipated. Such freshets cannot be considered acts of God nor extraordinary floods.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 44; Doc. Dig. § 52.*]</p> <p>2. Waters and Water Courses (§ 61*) — Obstructing Natural Flow op Stream — Injunction .</p> <p>Defendant was dredging for gold in the bottom of a river in such manner as to leave a ridge of gravel, sand, and stones across a large part of the stream from 10 to 30 feet in height above the level of the bed of the stream, and obstructing its flow at a point opposite the site of complainant city, and increasing the danger of overflow, which had on two occasions within 50 years caused great damage to property in the city. Held, that the danger to the public health and welfare from such obstruction was such as to entitle complainant to an injunction to restrain the extension of the work in such manner as to increase the obstruction.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Dec. Dig. I 61.*]</p>

<p>In Equity. On report of special master.</p>

<p>On Motion to Set Aside Service of Summons.</p>

<p>Bankruptcy (§ 60*) —Involuntary Proceedings — Acts of Bankruptcy — General Assignment — Corporations—“‘General Assignment.”</p> <p>A resolution adopted by the stockholders of a corporation, authorizing the board of directors, through a committee to be appointed by it, to advertise and sell the property of the corporation at auction at not less than a stated price, and to pay the debts of the corporation with the proceeds, with power to declare such sale off in a certain contingency, was not a general assignment, which constituted an act of bankruptcy, under Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 346 (U. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 5, 1903, e. 4S7, § 2, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1025).</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 60.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3052-3054.]</p>

The petitioners, Morris Green and Martin Green, indicted for violation of the postal laws in the Middle district of Pennsylvania and arrested in the Southern district of New York, after examination were committed to the custody of the marshal by a United States commissioner to await the issuance of a warrant of removal. A writ of habeas corpus was issued to inquire into the legality of their detention, which, after a hearing, was dismissed.

Habeas Corpus. On motion for bail pending appeal. A writ of habeas corpus was issued on petition of Arturo Ronchi alleging, that he was restrained of his liberty in violation of law by the Commissioner of Immigration of New York under an order of the Secretary of Commerce and Uabor, that petitioner be deported to. the country whence he came as an alien unlawfully in the United States.

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

<p>1. Vendor and Purchaser (§ 265*) — Vendor's Lien — Loss of Lien as Against Subsequent Purchaser.</p> <p>A vendor’s lien, being a creature of equity, and not of positive law, must yield to a superior equity, and cannot be enforced against a purchaser or mortgagee without notice and for a valuable consideration from the vendee, who has been clothed by the vendor with apparent full title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §8 70Ó, 702; Dec. Dig. § 265.*]</p> <p>2. Vendor and Purchaser (§ 254-'1')’ — Vendor’s Lien-Equitable Lien — Payment to be Made in Property.</p> <p>Where, in carrying out a contract to convey a tract of land and assign certain judgments for a lump sum, the vendor was paid a part of such sum in cash and for the remainder accepted a covenant from the grantee to convey to him a stated number of town lots, to be laid out, no vendor’s lien arose in his favor, especially where it did not appear how much of the expressed consideration was for the land, nor how the cash payment was applied.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Dec. Dig. § 254.*]</p> <p>3. Vendor and Purchaser (§ 205*) — Vendor’s Lien — Estoppel to Assert Lien Against Subsequent Mortgagee.</p> <p>An owner of land gave an oiition to purchase the same, which was assigned to a corporation. The corporation issued and sold bonds secured by a mortgage on such land and other lands, and the vendor, with knowledge of such fact, conveyed the land by a warranty deed and accepted part payment of the price from the proceeds of the bonds. Held, that no vendor’s lien arose in his favor for the unpaid purchase money as against the mortgagee.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Gent Dig. 88 700-712; Dec. Dig. § 265.*]</p> <p>4. Judgment (§ 685*) — Persons Concluded — Decree Establishing Lien-Mortgagee Not Made Party.</p> <p>A corporation executed a mortgage to a trustee to secure its bonds, which it sold. To a suit by a third person to establish a vendor’s lien on a part of the land mortgaged the trustee was not made a party, and while the jiurchaser of the bonds was a jiarty he had previously transferred the same. Held, that a decree therein establishing a lieu was not conclusive as against the mortgage.</p> <p>TEd. Note. — For other cases, see Judgment, Dec. Dig. § 685.*]</p> <p>5. Judgment (§ 593*) — Splitting Causes oe Action — Foreclosure as to Part op Property.</p> <p>A judgment creditor of a mortgagor levied on lands which were included with others in the mortgage. He then brought a suit in equity, making the mortgagee a party, in which the mortgage was foreclosed as to such lands only; the decree providing that it should be without prejudice to the right of the mortgagee to enforce its mortgage against the lands not involved in the suit. Held,, that such decree was within the power of the court, and that the partial foreclosure did not estop the mortgagee from maintaining another suit to foreclose on the remaining lands as against persons claiming liens thereon who were not parties to the prior suit.</p> <p>[Ed. Note.' — For other cases, see Judgment, Dec. Dig. § 593.*]</p> <p>6. Action (§ 53*) — Splitting Causes op Action — Persons Entitled to Object.</p> <p>The rule against splitting causes of action is mainly for the, protection of the defendant against excessive costs, and when he does not object other parties cannot. •</p> <p>[Ed. Note. — For other cases, see Action, Dec. Dig. § 53.*]</p> <p>7. Vendor and Purchaser (§ 254*) — Vendor’s Lien — Equitable Lien— Blending Consideration with Other Demands.</p> <p>Where a conveyance, of land furnished only an indefinite part of the consideration for an indebtedness from the vendee to the vendor, the vendor has no lien upon the land for a balance remaining due on such indebtedness.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 254.*]</p> <p>8. Corporations (§ 668*) — Process—Service by Publication — Affidavit.</p> <p>Under Rev. St. Ohio 1908, § 5046, which provides that “before service by publication can be made an affidavit must be filed that service of summons cannot he made within this state upon the defendant to be served by publication,” an affidavit is insufficient to authorize service by publication upon a foreign corporation where it states only that service cannot be made within the state upon an individual defendant “and” such corporation, and states no facts showing that the corporation is not doing business in the state and subject to service therein.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 668.*</p> <p>Service on foreign corporations, see notes to Eldred v. American Palace Car Co., 45 C. C. A. 3; Celia Commission Co. v. Bohlinger, 78 C. C. A. 473.]</p>

<p>Petition for Revision of Proceedings of the District Court of the United States for the Northern District of Alabama.</p> <p>The averments of the petition are as follows:</p> <p>“(1) Your petitioner avers that on, to wit, the 20th day of December, 1901, the Honorable Thomas G. Jones was appointed, and shortly thereafter was commissioned and confirmed as a United States District Judge for the Northern and Middle districts of Alabama, and duly qualified as such, and ever since has continued to discharge the duties of such office in both of said districts.</p> <p>“Your petitioner further shows unto the court that on, to wit, the 10th day of April. 1907, the Honorable Oscar R. Hundley, while the Senate of the United States was not in session, was given a recess appointment as a judge of the Northern district of Alabama, and was duly commissioned as such judge by the President of the United States under the power and authority given him by an act of Congress providing for the appointment of a judge of the Northern district of Alabama, which act of Congress, in substance, provides that the'President, by and with the advice of the Senate, shall appoint a judge for the Northern district of Alabama, who shall have all the qualifications of other federal judges, and all the power and authority of such judges in the Northern district of Alabama, and who shall receive the same remuneration, and who shall reside at Birmingham, Ala.</p> <p>“Your petitioner further shows that the name of the Honorable Osear R. Hundley was sent to the Senate of the United States for confirmation as United States District Judge when Congress convened in December, 1907, but that tbe Senate adjourned sine die on May 30, 1908, without action on the confirmation of such nomination;. and that Honorable Osear B. Hundley is now serving as District Judge under the provisions of the act above referred to, under a second recess appointment, which was made by the President, as petitioner is informed and believes, on tbe 1st day of June, 1908.</p> <p>“Your petitioner avers that, as a matter of law, the legal effect of the act of Congress heretofore mentioned was to provide extra judicial force in the Northern district of Alabama by placing in said district a judge with equal and coordinate powers and authority with the then judge of the district, and did not otherwise change the authority and jurisdiction of Honorable Thomas G. Jones as judge of said Northern district of Alabama. Your petitioner avers as matter of law that the said act of Congress does not interfere with the jurisdiction of the District Judge of the Northern district who was serving at the time of its enactment, and that at the present time said District Judge is as much a judge in said Northern district as he was at the time of his qualification as such judge.</p> <p>“(2) Your petitioner further represents and shows unto this honorable court that on the 30th day of May, 1908, he was duly and regularly appointed by the court of bankruptcy for the Northern district of Alabama as a referee in bankruptcy for tbe following counties, to wit, Jefferson, Walker, Bibb, Blount, Shelby, Payette, Lamar, and St. C-lair, in said Northern district; which order of appointment was made by the Honorable Thomas G. Jones, United States District Judge for the Northern and Middle districts of Alabama, while sitting as the court of bankruptcy for the Northern district of Alabama, at Montgomcry, Ala. Your petitioner avqrs that said, order of appointment was made on Saturday and was mailed io the clerk of tlie United States District Court at Birmingham, Ala., and was by said clerk filed on Sunday, May 31, 1908. Petitioner has hereto attached a certified copy of said order of appointment, and prays that the same, as ‘Exhibit A,’ may be considered as a part of this petition for review, with leave to refer thereto as often as may be necessa ry.</p> <p>“Your petitioner avers that at the time said order of appointment was made, the Bonate of the United States had adjourned sine die without having confirmed the nomination of the said Honorable Oscar It. Hundley, who, as heretofore shown, was serving as a United States District Judge in the Northern district of Alabama under a recess appointment, and petitioner avers that as matter of law the said Honorable Oscar It. Hundley ceased to be a judge on the adjournment of the Senate without having confirmed his nomination, and that he could not again exercise the functions of his office until he qualified under a second recess appointment, and that the said Honorable Oscar It. Hundley did not qualify under his second recess appointment until June 1, IOCS, all of which appears as matter of record in said District Court. Your petiUoner avers that his said appointment as referee in bankruptcy was made by the Honorable Thomas G. Jones, United States District Judge for (he Northern and Middle districts of Alabama, between the adjournment of Congress on the night of May 30, 1908, and the qualification of Honorable Oscar it. Hundley on June 1, 1008, under his second recess appointment, and that in said interim the Honorable Thomas G. Jones was the sole judge of both the Northern and Middle districts of Alabama, and as such was authorized to hold the court of bankruptcy to makes administrative orders io be entered therein anywhere within the bounds of either district. Petitioner avers that courts of bankruptcy do not, under the act of bankruptcy, have any regular terms, and that it; is not necessary, in order to give validity to an order made by a judge, that a clerk and marshal be present, or that the same be made in open court, but that' the judge may convene the court at any time and anywhere within the territorial bounds of his jurisdiction. Petitioner avers that if has been the unchallenged custom and practice for the judge of the Northern and Middle districts to try and determine any case which could be disposed of without the intervention of a jury, or to make any order irrespective of the fact whether he happened to be in the district in which the litigation arose, provided he was at the time within the bounds of one of the districts. Petitioner avers that this practico has' prevailed ever since the creation of the Northern and Middle districts, and that hundreds of thousands of dollars have been involved in cases which have been disposed of under this practice, and that such rule of practice has by long custom and usage become a rulo of property.</p> <p>“(3) Your petitioner further represents and shows unto this honorable court that on, to wit. the 1st day of June, 1908, the said Honorable Thomas G. Jones, being personally present and sitting as the court, of bankruptcy of the Northern district of Alabama, at Birmingham, Ala., the court: having been formally opened, made and entered an order reaffirming the appointment of your petitioner as a referee in bankruptcy made on the 30i:h day of May. 1908. The said order above referred to likewise directed the clerk of the District Court “or the Northern district of Alabama to refer each odd-numbered case in bankruptcy, filed in the counties in which your petitioner was given jurisdiction, to your petitioner as a referee in bankruptcy. The intent and purpose of said order was to give to your petitioner every other case filed in bankruptcy, the even-numbered cases going to N. I,. Steele, who is serving as a referee in bankruptcy in said jurisdiction under an order of appointment made by Honorable Oscar E. Hundley, a District Judge, which order was revoked shortly after the same was made by Honorable Thomas G. Jones, a District Judge, because made without his consent, which order of revocation was a ftorwards set; aside by Honorable Osear Tí. Hundley. A copy of the order referring the odd-numbered eases io your petitioner and reaffirming petitioner’s appointment is hereto attached, and marked ‘Exhibit B,’ and prayed to be taken as a part hereof. I’etitioner avers that he qualified as a referee in bankruptcy under said appointment by taking the oath of office as required by law, as appears from Exhibit O, and by filing bond in the sum of $2,000. as provided for in said order, which bond was duly approved by the said Honorable Thomas G. Jones,'as District Judge, as appears from Exhibit D.</p> <p>“(4) Your petitioner further represents and shows unto this honorable court that on, to wit, the 8th day of June, 100S, N. L. Steele, who is the respondent to this petition for review, filed a petition in the District Court of the United States for the Northern district of Alabama, in bankruptcy, alleging, in substance, 'that he is a referee in bankruptcy in the same jurisdiction covered by your petitioner’s apppointment, and that he holds such office under an appointment by Honorable Oscar E. Hundley, United States District Judge, Northern district of Alabama; and that one-half of the cases in bankruptcy filed in said jurisdiction, which otherwise would he referred to him as referee in bankruptcy under a general order of the court, were about to be referred as they were filed to your petitioner by the clerk of the United States District Court, and that such references were to be made to your petitioner under an order of Honorable Thomas G. Jones, ‘claiming to be a United States judge in the Northern district of Alabama,’ and that the order made by the said Honorable Thomas G. Jones appointing your petitioner a referee in bankruptcy was improvidently made, in that the said Honorable Thomas G. Jones -was in the Middle district of Alabama when such order of appointment was made; and that the order reaffirming such appointment and ordering a reference to your petitioner of one-half of the cases to be filed was likewise improvidently made, and that the said Honorable Thomas G. Jones did not have the authority or power to make such order. A certified copy of the petition filed by the said Steele, marked ‘Exhibit E,’ is attached to this petition for review and prayed to be taken as a part thereof, with leave to refer thereto as often as may be necessary for a proper presentation of said petition for review.</p> <p>“Your petitioner further shows unto this honorable court that on the said 8th day of June, 1908, being the same day that the petition of the said Steele was filed in the office of the District Court clerk, hut before the said petition was ever filed in said clerk’s office, the same having been marked ‘filed’ by Honorable Oscar E. Hundley, Judge, the said Honorable Oscar E. Hundley, claiming to act as the court of bankruptcy for the Northern district of Alabama, on an ex parte hearing, made and entered an order which purports to revoke and annul the appointment of your petitioner as a referee in bankruptcy, and which likewise purports to set aside and hold for naught the order of Judge Thomas G. Jones, sitting as the court of bankruptcy in the same jurisdiction, ordering the reference of the odd-numbered cases filed in bankruptcy to your petitioner as a referee in bankruptcy.</p> <p>“Your petitioner avers that the said order of Honorable- Oscar E. Hundley, Judge, w7as made and entered before petitioner had any knowledge ’ of the filing of the petition on which the same is based, although petitioner should have been made a party respondent to said petition. Petitioner further avers and shows to this court that he did not know that the petition to remove him from the office which he held had been filed until after final action had been taken by Judge Hundley thereon, and that although your petitioner liad a vital interest in said proceeding, which proceeding was commenced by a petition containing statements purporting to be facts and verified by the said Steele, and signed and presented by counsel for said Steele, and although petitioner was in the federal building when action was taken on said petition, he had no knowledge or notice of the same, and wfas thus deprived of the right to 'file an answer to said petition by himself or by counsel, or defend the same. Your petitioner hereto attaches a certified copy of said order entered by Judge Hundley, which copy is marked ‘Exhibit E,’ and is prayed to he taken as a part of this petition' for review. Your petitioner likewise attaches a copy of an opinion subsequently rendered by Judge Hundley in support of said order, and prays leave to refer thereto. Petitioner likewise attaches as Exhibit G the oral opinion delivered by Judge Hundley in support of such order, and, as Exhibit I-f, the written opinion referred to in the oral opinion.</p> <p>“Your petitioner avers that the order made and entered by Judge Hundley which purports to revoke and annul the appointment of your petitioner as referee in bankruptcy by Judge Jones, and the order which sets aside and holds for naught the order of Judge Jones referring the odd-numbered cases in bankniptcy to yonr petitioner, were made without the knowledge, consent, or sanction of Judge Jones and against his will.</p> <p>“Your petitioner avers as matter of law that Judge Hundley violated the law, abused his authority, and exceeded his power in making the order which purports to remove your petitioner from office, and likewise to vacate the order made by Judge Jones referring the odd-numbered cases filed in bankruptcy to your petitioner as referee iñ bankruptcy, and that such order should not have been made and is illegal without the consent of the other District Judge who gave life to the revoked orders. Your petitioner further avers that when there are two judges of a court, either associate or coordinate, the one cannot, without the sanction or consent of the other, remove an officer of the court who has been appointed by the judge who does not concur in the order of removal. Your petitioner further avers that, under the provisions of the bankruptcy act, the referees whose appointment provided for therein must be aiipoinled by the court of bankruptcy, and that neither the power of appointment nor removal is in the judge, and where more than one judge constitutes the court of bankruptcy, neither alone, against the will of the other, can appoint or remove such referee. Your petitioner further avers that the legal effect of the order of Judge Hundley in revoking without notice the order of Judge» Jones was to constitute Judge Hundley an appellate court to which tiu; order of Judge Jones was taken, and deny your petitioner the right to he heard on the appeal or review in such court of appeal.</p> <p>“Your petitioner avers that a question of great public interest is involved in this petition for review; that the confusion which will naturally follow the revocation by one judge of the 'orders made by a judge of equal power, authority, and jurisdiction will seriously embarrass the litigants of the district, and will likewise tend to bring the administration of law and justice in the district into confusion, and impair confidence in the legality of the acts of the officers of the bankrupt court; and that, if the practice continues of one judge setting aside the order of the other, the litigants of the district can never determine their rights until both of the District Judges have passed on the question involved and reached the same conclusion. Your petitioner herewith exhibits a correct transcript of the record of all proceedings of said District Court relating to the matter hereinabove set forth, duly certified to by the clerk of said court, and prays that the same be taken and considered by this court in connection with and as a part of this petition as Exhibit 1.</p> <p>“The premises considered, your petitioner prays that N. D. Steele be made a party respondent to this petition for review, and that he be required by an order of this court either to defend or default the case. Your petitioner further prays that this honorable court assume original jurisdiction of this petition, and that a mandate issue from this court suspending the operation of the order made by the Honorable Osear R. Hundley, a District Judge of the Northern district of Alabama, annulliug the order of Honorable Thomas G. Jones, a United States District Judge for the Northern and Middle districts of Alabama, appointing Alexander l\ Birch a referee in bankruptcy at Birmingham, Ala., pending a hearing of this petition for review on the merits of tlie case. Your petitioner likewise prays that the order of the said Judge Hundley vacating and holding for naught the order of Judge Jones requiring the clerk of the District Court for the Northern district of Alabama to refer the odd-numbered cases in bankruptcy to your petitioner, as referee in the jurisdiction for which petitioner was appointed, he suspended pending the hearing by tills honorable court of this petition for review on the merits of the case.</p> <p>“On a final hearing of this petition for review, your petitioner prays that; this honorable court will enter an order revoking and annulling the order made by the Honorable Oscar R. Hundley, a United States District Judge for the Northern district of Alabama, which order revoked and annulled the order of Honorable Thomas G. Jones, a United States District Judge for the Northern and Middle districts of Alabama, appointing your petitioner to the office of referee in bankruptcy. Your petitioner further prays that on a final hearing of this petition in this honorable court that an order be made revoking and annulling the order of the said Judge Hundley which set aside and held for naught the order of Judge Jones requiring the reference of the odd-numbered cases filed in bankruptcy in the jurisdiction to which petitioner was appointed as a referee in bankruptcy.</p> <p>“If in any wise the petitioner is mistaken in the relief herein prayed for, petitioner hereby prays for any other, further, general, or different relief as the premises may entitle him to receive, and as in equity and good conscience may seem meet and right unto this honorable court, and as in duty bound petitioner w.ill ever pray, etc. Alex. O. Birch, Petitioner.”</p> <p>Nenian L. Steele appeared and moved that the petition be dismissed for want of jurisdiction in this court. The cause was submitted on both the motion and the merits, and was argued by counsel. The several exhibits referred to in the petition, but not copied in this statement, were submitted to the court as parts of the petition.</p>

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

<p>' In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 159 Fed. 206.</p>

<p>1. Insurance (§ 229*) — Cancellation of Policy — Notice to Agent.</p> <p>Plaintiff gave a firm of insurance brokers general authority to procure for it insurance to the amount of $75,000 on its manufacturing plant to replace prior insurance at better rates and. terms. In pursuance of this employment the brokers applied to the local ageuts of a number of companies, some of whom, among them the agent of defendant, issued policies, each in the amount of $2,500', the premiums being charged to the brokers to whom the policies were delivered. On receiving the report of the risk defendant instructed its agent to cancel the policy, and he gave the brokers, who still retained it, notice of cancellation in five days as required by its terms, and at the expiration of that time they surrendered it, as they did other policies similarly canceled, and proceded to obtain others in their stead. Before they had procured the requisite amount of insurance the property burned. Held, that in view of their general employment and its nature, and the fact that they were still acting in pursuance thereof, not having reported nor delivered the policies to plaintiff, the acceptance of defendant’s notice of cancellation and the surrender of its policy were within the scope of their authority and terminated the risk.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 500: Dec. Dig. § 229.*]</p> <p>2. Insurance (§ 539*) — -Notice of Loss — Excuse for Delay.</p> <p>Where an insurance policy requiring “immediate” notice of loss to be given the insurer was delivered to the authorized agents of the insured, the fact that they did not deliver the iioliey to their principal before the loss, nor notify it of the contract, did not relieve it from the obligation to comply with such condition, and a failure to give notice of the loss for 30 days avoided the policy.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1334; Dee. Dig. § 539.*</p> <p>Time for notice of loss, see note to Roriek v. Railway Officials & Employees’ Acc. Ass’n, 55 C. C. Á. 376.]</p>

<p>Bankruptcy (§ 407*) — Discharge—Grounds por Refusal — Making “False” Statement.</p> <p>The word “false” as used in Bankr. Act July 1, 1898, c. 541, § 14b, 30 Stat. 550 (XJ. S. Com¡). St. 190Í, p. 3427), as amended in 4003 (Act Feb. 5, 1903, e. 487, § 4, 32 Stat. 797 [U. S. Comp. St. Snpp. 1907, p. 1020]), which makes it a ground for denying a discharge to a bankrupt that he has “obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit,” means more than merely erroneous or untrue, being used in its primary legal sense as importing an intention to deceive, and such a statement, in order to constitute a bar to a discharge, must have been knowingly and intentionally untrue.</p> <p>TEd. Note. — Eor other cases, see Bankruptcy, Cent. Dig. § 7G0; Dee. Dig. § 407.*</p> <p>Eor other definitions, see Words and Phrases, vol. 3, pp. 2034, 2055.]</p>

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

<p>Collision (§ 60*) — Vessels in Tow — Fault or Tug. ,</p> <p>A finding of the trial court chat a collision between the hawser tows of two meeting tugs in the Kills, opposite Ifllizabethport, N. J., was duo solely to the fault of the tug, which was proceeding eastward with the tide, having a tow of 19 barges about 1,000 feet in length, affirmed; it appearing that she initiated the passing agreement without being able to properly handle her unwieldy tow, and in view of the rule that, where the fault of one vessel is clearly established, it is not enough for her to raise a doubt with regard to the management of the other.</p> <p>[Ed. Note. — For other eases, see Collision, Cent. Dig. § 84; Dec. Dig. § 06.* 1</p>

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

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

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

<p>1. Bankruptcy (§ 60*) — Act of Bankruptcy — Assignment for Creditors.</p> <p>Where a bankrupt intended to make, and in fact executed, a general assignment for the benefit of creditors in the usual form, and the assignee, by sending a notice of a meeting of creditors, stating that the assignment had been made to him, aiid by other acts acknowledged and ratified his appointment thereunder, such facts were sufficient to establish a general assignment for the benefit of creditors, constituting an act of bankruptcy, though the original assignment was lost, and the evidence failed to show with certainty the form in which it was signed.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. § 00.*]</p> <p>2. Bankruptcy (§ 60*) —Acts of Bankruptcy — Assignment for Creditors— Validity.</p> <p>Where a bankrupt executed an instrument intended for, and which purported to bo, a general assignment for the benefit of creditors, she committed an act of bankruptcy, whether the assignment was valid or not.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Gent. Dig. § SO; Dec. Dig. § 60.*]</p>

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

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

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

Appeals from the District Court of the United States for the Eastern District of New York. This cause comes here upon appeal from a decree holding steam tug and ferryboat both in fault for a collision between said vessels in the Hudson river. The opinion below is reported in 130 Fed. 533. Thé ferryboat is the sole appellant.

This cause comes here upon writ of error to review a judgment entered against plaintiffs in error, who were defendants below. The action was brought at law to recover damages claimed to have been sustained on contracts for the purchase of cotton on the floor of the New York Cotton Exchange, which contracts plaintiff below alleged he employed defendants to make in their own names but in his behalf.

<p>Appeal from the District Court of the United States for the Western District of New York.</p> <p>The following is the opinion filed by Hazel, District Judge, in the court below:</p> <p>The bankrupt corporation in fact owned the mortgage assigned to the Union Trust; Company of Jamestown, N. Y.; it having purchased the same with its money. The contention of the trustee seems to entirely ignore tlie intention of the trust company and the bankrupt at the time of the execution and delivery of the collateral note, as is evidenced by Its terms. Moreover, the referee found as a fact that on the day the collateral note was executed and turned over to the trust company the proceeds thereof were deposited to the credit of the bankrupt and thereafter withdrawn to pay for the mortgage, and that the mortgagee executed and delivered an assignment thereof to the trust company pursuant to understanding with the bankrupt. Under the circumstances the bankrupt manifestly could pledge the mortgage to secure its loans and liabilities to the trust company. Dougherty v. Remington Taper Co., 81 N. Y. 408; Barber v. Hathaway, 47 App. Div. 165, 62 N. Y. Supp. 32!). The legal effect of the broad terms of the collateral note was to secure the bank for all advances and liabilities, not exceeding the amount of the note. See Gillett v. Bank, 100 N. Y. 549, 55 N. E. 292. The ease cited is also authority for holding that the subsequently discounted note of $3,500, which was indorsed by the bankrupt, came under the pledge of the mortgage, and was acquired by the claimant from the payee in due course of business. The cases cited, by the trustee in his brief do not seem to apply to the facts under consideración.</p> <p>The report of the referee directing payment by the trustee of the balance, to wit, $2,000, as secured claim is affirmed.</p>

<p>Evidence (§ 474*) — Opinion Evidence — Competency—BIeans op Knowledge op Facts.</p> <p>Upon an issue as to the value of the contents of certain trunks, in an action against a carrier for its loss, the fact that it consisted largely of c-lotliing bought by plaintiff’s wife for the family, and that he did not know the prices paid, did not render him incompetent to testify as to such value, approximately; it being a matter not capable of exact ascertainment.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2215-2218; Dec. Dig. § 474.*]</p>

<p>1. Tbade-Marks and Trade-Names (§ 18*) — Color of Patented Aktiole— Effect of Expiration of Patent.</p> <p>Complainant made and sold men’s drawers under a patent which covered the insertion in the seams of a strip of elastic material, such strip as made by complainant being of knitted fabric made of Egyptian yarn, the natural color of which is yellow or huff, while the body of the garment was white. Complainant was not the first to use buff color in combination with white in such garments. HelO, that on the expiration of the patent complainant not only ceased to have a monopoly in the elastic strip, but that it had no exclusive right to the use of bull-colored material for such strip, whether it was the natural color of the yam or dyed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. • Dig. § 21; Dec. Dig. § 18.*]</p> <p>2. Tbadb-Marks and Trade-Names (8 3*) — Names Subjects of Qwnmisiitp —Descriptive Character of Names.</p> <p>The name “elastic seam,” as applied to drawers having a strip of eiastic material inserted in the seams, is descriptive merely, and cannot he monopolized as a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 6; Dec. Dig § 3.*</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks or trade-names, see note to Searle & Ilereth Co. v. Warner, 50 C. C. A. 323.]</p> <p>3. Trade-Marks and Trade-Names (8 11*) — Names Subjects of Ownership —Names of Patented Articles.</p> <p>Where the manufacturer of drawers under a patent designated them by the name “elastic seam,” hv which name they become known to the public, such name became a term descriptive of the garment, and on the expiration of the patent others who thereby acquired the right to make the garment, became also free to designate it by such name.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. 8 15; Dec. Dig. 8 II.* 1</p> <p>4. Patents (§ 129*) — -Names of Patented Articles — Estoppel to Deny Validity of Patent.</p> <p>Tlie owner of a patent who has liad tlie benefit of its protection, and manufactured thereunder during its full life, cannot thereafter assert its invalidity in support of his claim to a trade-mark in the name by which he designated the patented article and by which it became generally known.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 182%; Dec. Dig. § 129.*]</p> <p>5. Trade-Marks and Trade-Names (§ 70*) — Unfair Competition — Imitation of Marks and Packages. •</p> <p>A stamp used by defendant on drawers of its manufacture and the boxes in which they were sold 7leld not so similar to those in use by complainant as to deceive purchasers or to constitute unfair competition.</p> <p>[Ed. Note. — For other cases, see Trad e-Marks and Trade-Names, Cent. Dig. § 81; Dec. Dig. § 70.*</p> <p>Unfair competition, see notes to Seheuer v. Muller, 20 C. C. A. 105; Dare v. Harper &-Bros., 30 C. C. A. 376.]</p> <p>Sanborn, Circuit Judge, dissenting.</p>

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

<p>1. Courts (§ 282*) — Federal Courts — Jurisdiction—Constitutional Questions — Reasonableness of Water Rates.</p> <p>Whether rates to be charged by a water company, fixed by a municipal ordinance under constitutional or statutory authority, are reasonable or unreasonable, is a judicial question, and tlie company lias llie right to invoke the jurisdiction of a federal court to determine whether such rates are such as to deprive it of its property without due process of law.</p> <p>[Ed. Note. — For other eases, see Courts, Dee. Dig. § 282.*</p> <p>Jurisdiction of cases involving federal question, see notes to Bailey v. Mosher, 11 (3. (3. A. 308; Montana Ore-Purchasing Co. v. Boston & M. Con-sol. Copper & Mining Co., 35 (3. (3. A. 7.]</p> <p>2. Injunction (§ 130*) — Preliminary Injunction — Grounds—Ordinance Establish inc; it ates .</p> <p>A preliminary injunction granted enjoining tlie enforcement of an ordinance passed by the board of supervisors of the eitjr and comity of San Francisco fixing tlie rates to bo charged by a water company on a showing from which it appeared that under such rates the company could not make a net income equal to 5 per cent, on the value of the property employed in the service.</p> <p>|Ed. Note.- — For other cases, see Injunction, Dee. Dig. § 136.*]</p>

<p>1. CONSTITUTIONAL IiAW (§ 277*)-DUE PROCESS OF LAW — -SUBJECTS OF PROTECTION — “LlFK, Liberty and Property.”</p> <p>The terms “life, liberty and property,” as used in the fourteenth constitutional amendment, embrace every right which the law protects; they include not only the right to own and hold, but also to use, property, and profits and income are within the protection of the amendment, subject, however, to the rule that when property is devoted to a public; use the owner is eijtitled to earn only such income therefrom as is just and reasonable as between him and the public.</p> <p>[Ed. Note. — For other cases, see Constitutional I jaw, Dec. Dig. § 277 * For other definitions, see Words and Phrases, vol. 5, pp. 4150, 4357.]</p> <p>2. Courts (§ 282*) — United States Courts — Constitutional Questions— Due Process of Law.</p> <p>The question whether rates fixed by a municipal body to be charged by a water company are just and reasonable, or confiscatory and unconstitutional, is a judicial one, for the determination of which the company has the right to invoke the jurisdiction of a federal court.</p> <p>[Ed. Note. — For other case's, see Courts, Dec. Dig. § 282.*]</p> <p>3. Constitutional Law (§ 47*) — Due Process of Law--Regulation of Water Rati s.</p> <p>Such an action, however, is'not one to review the action of the municipal body, and the evidence upon which it acted, its motives and methods of procedure, are immaterial on the question of granting a preliminary or permanent injunction to restrain enforcement of its rates, the only question being whether or not as a whole they are confiscatory, which is to be determined by the court from an independent investigation of the facts.</p> <p>[Kfl. Xoio. — For other cases, see Constitutional Law, Doc. Dig. § 47.*]</p> <p>4. Waters and Water Courses (§ 203*) — Water Companies — Reasonableness of Rates,</p> <p>The fact that interest rates generally have advanced within a short time does not necessarily entitle a water company to earn a higher rate of income than before without a corresponding adjustment of the value of its property.</p> <p>|Kfl. Note.- For other cases, see Waters and Water Courses, Cent. Dig. §§ 292 -291; Dec. I >ig. § 203 * ]</p> <p>5. Waters and Water Courses (§ 203*) — Water Companies — Reasonableness of Rates.</p> <p>Rates of charge fixed for a water company which will enable it to earn an income of 5 per cent, not on the value of its property after all taxes, operating expenses, and other legitimate and proper charges are deducted from the gross income are neither unreasonable nor confiscatory.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dec. Dig. § 203.*]</p> <p>6. Waters and Water Courses (§ 203*) — Water Companies — Reasonableness oe Rates.</p> <p>While in determining the reasonable value of the property and plant of a water company the estimated' cost of a substitute system may be considered, it cannot be a controlling element.</p> <p>[Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dec. Dig. § 203.*]</p> <p>7 Waters and Water Courses (§ 203*) — Water Companies — Regulation oe Rates — Valuation op Property — “Property.”</p> <p>The franchise óf a water company to collect rates for water is property, and its value, as well as whatever value attaches to its business as a going concern, is to be considered in determining the value of its property for rate-fixing purposes, but the burden of proving such values rests upon the company.</p> <p>TEd. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dec. Dig. § 203.* i</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770.]</p> <p>8. Waters and Water Courses (§ 203*) — Water Companies — Regulation op Rates — Valuation op Property.</p> <p>In determining the value of the property of a water company for rate-fixing purposes, only such property as is at- the time actually in use for supplying the water to which the rates apply, and necessary for such use, is to be taken into account, and it is to be valued at what it is worth for such purpose.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dee. Dig. § 203.*]</p> <p>9 Waters and Water Courses (§ 203*) — Water Companies — Regulation op Rates — Valuation op Property.</p> <p>In ascertaining the value of the property of a water company for rate-fixing purposes, the market value' of its outstanding stock and bonds may properly be considered and given the weight to which it appears to he entitled.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dee Dig. § 203.*] -</p> <p>10. Waters and Water Courses (§ 203*) — Water Companies — Regulation op Rates — Reasonableness op Rates.</p> <p>A water company is. not entitled to charge to its current expense account for rate-fixing purposes the cost of replacing property destroyed through its own fault or negligence.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dec. Dig. § 203.*]</p> <p>11. Waters and Water Courses (§ 203*) — Water Companies — Regulation op Rates — Reasonableness op Rates.</p> <p>In fixing reasonable and just rates to be charged for water by a water company, the depreciation of its plant from natural causes resulting from use should be taken into account, and the cost of replacement provided for out of the gross income.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 292-294; Dec. Dig. § 203.*]</p> <p>12. Injunction (§ 136*) — Preliminary Injunction — Conditions—Discretion op Court.</p> <p>Under the Constitution of California the board of supervisors of the city and county of San Francisco is required to annually fix the rates to be charged for water by any water company for the ensuing year. ■Complainant water company, which supplied water to the city and its inhabitants, brought suit io enjoin the enforcement of !he ordinance fixing the rates for a certain year, which were slightly higher than those which had been accepted and charged by the company for a number of preceding years, but in the meantime taxes and opera ling expenses had increased, so that its net income had substantially decreased. On the showing made it appeared probable that the rates made by the ordinance wore so low as to bo unreasonable and confiscatory under the changed conditions. Held, that complainant ivas not estopped by its acquiescence to maintain the suit, but that the court in the exercise of its discretion would grant a preliminary injunction restraining the enforcement of the ordinance rate only on condition that any amount collected in excess of that rate be impounded to abide the final order of the court.</p> <p>|.Kd. Note. — For other cases, see Injunction, Dec. Dig. § 136.*]</p>

<p>1. Corporations (§ 619*) — Dissolution — Officers as Trustees for Division of Assets — Pennsylvania Statute.</p> <p>Act Pa. May 21,1S81 (P. L. 30), provides that trading corporations whose charters expire may bring suits and maintain and defend suits already brought for the protection of their property and the collection of debts, and sell, convey, and dispose of their property, and make title therefor, as fully and effectually as if their charters had not expired, and that the officers last elected, or the survivors of them, shall be officers to represent said corporations for such purposes: “Provided that this act shall be</p> <p>construed only so as to enable said corporations to realize and divide their assets and wind up their affairs and not to transact new business.” Held, that, where the existence of a corporation had come to an end either because its charter had terminated by limitation or because of a sheriff’s sale of all of its property and corporate franchises, its officers last elected became trustees to distribute its assets, and that they had no power to prefer one general creditor over another, and, in case they did so, were liable for an accounting as individuals to a creditor so discriminated against.</p> <p>[Ed. Note — For other cases, see Corporations, Gent. Dig. §§ 2459, 2460; Dee. Dig. § 619.*]</p> <p>2. Corporations (§ 619*) — Dissolution — Suit by Creditor After Dissolution,</p> <p>As such statute does not authorize a dissolved corporation to be sued, but only to “bring suits and maintain and defend suits already brought,” a creditor, although his claim is unliquidated, may from the. necessity of the case maintain a suit in equity against the officers to require an accounting from them as trustees, and the court having jurisdiction to distribute the fund has power to liquidate his claim and to determine the right of all claimants to share in the fund</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2459, 2460; Dec. Dig. § 619.*]</p> <p>3. Landlord and Tenant (§ 180*) — Eviction—Action for Damages by Tenant-Failure of Consideration.</p> <p>A lessee who assumed and performed a contract made by the lessor as a part consideration for a lease for a term of years, on his eviction, after a part of the term has expired, is entitled to recover for failure of consideration on account of such performance only in proportion to the unexpired term of the lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 723; Dec. Dig. § 180.*]</p> <p>4. Landlord and Tenant (§ 180*) — Eviction — Damages Recoverable by Tenant — Value of Improvements.</p> <p>Under the law of Pennsylvania by which a lessee on his eviction can recover the value of improvements made on the demised premises only where the eviction was through the wrongful act of the lessor, where the lessor is a corporation it cannot be charged with liability for such improvements because the eviction was brought about by the fraud of its officers committed for their individual benefit and not that of the corporation.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 725; Dec. Dig. § 180.*]</p>

<p>1. Shipping (§ 171*) — Demurrage—Construction of Bill of Lading.</p> <p>The provision of the new' bill of lading that, after arrival and notice to the consignee and the expiration of 24 hours, the vessel shall have precedence in discharging over all véssels arriving or giving notice after her arrival, requires such vessel to be given her turn subject to whatever customs or necessities exist at the port of discharge and which may fairly be presumed to have been within the contemplation of the parties.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 568: Dec. Dig. § 171.*]</p> <p>2. Shipping (§ 171*) — Demurrage—Delay in Discharging — Right of Precedence.</p> <p>Schooners which arrived at the port of Portland, Me., for discharge of coal cargoes under bills of lading providing that they should have precedence in discharging over all vessels arriving or giving notice after their arrival, and that for any violation of such provision they should be compensated in demurrage as if, while delayed by such violation, their discharge had proceeded at the rate of 300 tons per day each, must be held to have contracted with reference to the facilities for coal discharging at that port, and, among them, the facilities at the wharves of the railroad company to whose wharves they were assigned, and are not entitled to claim a violation of contract because steamers of regular transatlantic lines arriving after them were, in accordance with contracts and long custom, given precedence in discharging at the company’s wharves which were not used as discharging places for coal but for general cargoes. They were, however, entitled to precedence, over after-arriving vessels carrying coal cargoes, to discharge at any wharf of the company used for discharging coal, so long as they were not assigned to any particular berth, and, after such assignment, to precedence over any after-arriving vessel at such berth.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 568; Dee. Dig. § 171.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 O. C. A. 337; Hagerman v. Norton, 46 C. C. A. 4.)</p> <p>3. Shipping (§ 183*) — Demurrage—Delay in Discharging — Construction of Bills of Lading.</p> <p>Where other vessels were given precedence in discharging over such schooners in violation of their hills of lading, they were entitled to be compensated in (iomurrage only as if their discharge had proceeded at the rate of 300 ions per day, regardless of the number of vessels so given precedence which were discharging at the same time.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 593; Dec. Dig. § 183.*]</p> <p>4. Shipping (§ 171®) — Demurrage-—Construction of Bilí, of Lading.</p> <p>The fact that the railroad company to whose wharves the schooners were assigned, in order to secure a certain supply of coal for its own uso had contracted with a particular, coal company to give its vessels immediate discharge in consideration of the right to use a percentage of all coal so discharged, did not entitle such vessels to precedence in discharging without liability on the part of the consignees for violation of the contract, in the absence of any express provision therefor; and for the same reason vessels carrying cargoes of coal for the company’s own use had no right of precedence in discharging, since the parties could not be presumed to have contracted with reference thereto.</p> <p>[Ed. Note. — For other eases, see Shipping, Cent. Dig. § 568; Dee. Dig. § 171.®]</p>

<p>Carriers (§ 38*) — Shippers—Offenses—Rebates.</p> <p>Defendant was indicted in 20 counts, each charging the unlawful receipt of a rebate on an interstate shipment; of a car load of lumber between certain points. Each count charged that the lawful freight rate was tl cents, and that defendant, knowing such fact, delivered the lumber to the railroad’s receiver for transportation and delivery to the consignee: that the lawful rate of 1,1 cents was charged to and collected from the consignee in the form of a freight rate of 7 cents, plus a fictitious advance charge of 4 cents, and that later at the end of the month such fictitious advance charge was returned to defendant as a rebate, and that defendant thereby accepted and received on the date of the payment of the rebate a concession, rebate, and discrimination of 4 cents per hundred. Held that, it being conceded that while Hiere were 20 shipments there were but 6 rebate payments, in accordance with monthly settlements, defendant was only guilty under such indictment of 6 offenses.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*]</p>

<p>Oil Plea of Guilty.</p> <p>Defendant was indicted for violation of the act of Congress approved February 19, 1903 (chapter 708, § 1, 32 Stat. 847 [IT. S. Comp. St. Supp. 1907, p. 880]), generally known as the “Elkins act.” The indictment contains 58 counts, each of the counts charging that the defendant, a shipper, “did then and there, knowingly, willfully, and unlawfully accept and receive from certain railroad companies, common carriers engaged in interstate commerce, a rebate on a shipment made in a certain car,” each count describing the car in which the shipment was made, the place whence shipped, as well as the place of destination, the published rate which was paid by the defendant, and tlie sum of money repaid to him as a rebate on each ear.' The defendant entered a special plea of guilty to counts 1, 12, 14, 15, 20, 21, 24, 25, 20 and 31, which plea is as follows:</p> <p>“The defendant Tilglunan I!. Bunch for Iris special plea of guilty to counts 1, 12, 14, 15, 20, 21, 24, 25, 20, and 31. contained in said indictment, says that he is guilty as charged in counts 12, 14, 15, and 20; that each of said counts represen!s a separate shipment made on different dates; that the rebate, paid to defendant as alleged in the indictment represented by each of said four counts was made in one settlement, based upon one application and paid in one chock, constituting one settlement in payment for four separate shipments, and, defendant claims, under the law, constituting but one offense: that he is guilty ¡is charged in counts 21, 24, 25, 2G, and 31; that each of said counts represents a separate shipment made on different dates from different places; that the rebate paid to defendant as alleged' in the indictment , represented by each of said five counts was made in one settlement, based upon one application and paid in one check, constituting one settlement in payment for fire separate shipments, and, defendant claims, under the law, constituting but one offense.”</p> <p>The government accepted this plea, in writing, which is as follows:</p> <p>“Comes the United States and accepts the defendant’s plea of guilty on the aforesaid counts, and says that the facts stated in said special plea as to the number of shipments and the payment in settlement made by said Bunch in said count is true, but the government denies that said counts 12,14, 15, and 20 constitute but one offense. As to counts 21, 24, 25, 26, and 31, the United ►States also concedes that the facts stated in regard to shipments and settlement in payment are true, but it maintains and avers that each one of said counts constitutes a separate and distinct offense.”</p> <p>As to the other 48 counts of the indictment, the government entered a nol. pros.</p> <p>This leaves, as the sole question to be determined by the court, whether under this indict incur, which charges only the receipt of a rebate by the defendant when there were a number of shipments, but only one payment, in one draft, the government nmy split that one payment into as many offenses as there were separate transactions of carriage'.</p>

<p>1. Constitutional Law (§ 209*) — “Due Process of Law” — “Equal Protection of Laws.”</p> <p>There is a substantial distinction between the fifth amendment of the federal Constitution, which is obligatory only on .the United States, and secures due process of law, and the fourteenth amendment, which is obligatory on the st ates and prohibits the denial of the equal protection of the laws; the latter expression being broader than the former, though the mere denial of equal protection of the laws may run into the other limitation. Mere discrimination, however, does not necessarily have that effect.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 678, 727; Dec. Dig. § 209.*</p> <p>Eor other definitions, see Words and Phrases, vol. 3, pp. 2227-2256, 2423-2426; vol. 8, p. 7644.]</p> <p>2. Constitutional Law (§ 314*) — Courts—Establishment—Due Process of Law.</p> <p>Act Cong. Eeb. 11, 1903, c. 544, 32 Stat. 823 (U. S. Comp. St. Supp. 1907, p. 931), providing that in any equity suit, in any federal Circuit Court, to protect trade and commerce against unlawful restraints and monopolies, the Attorney General may file a certificate of importance, • whereupon the case shall be given precedence, and shall be heard by not less than three Circuit Judges, or, if there are only two Circuit Judges in the circuit, then before them and such District Judge as they select, though discriminatory, is not unconstitutional.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. § 934; Dee. Dig. § 314.*]</p> <p>8. Constitutional Daw (§ 259*) — Due Pbooess of Daw.</p> <p>‘‘Due process of law” does not prohibit the establishment of special commissions or the assignment of special judges for the trial of a specific offender, so long as there is a compliance otherwise with the rules of the common law.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Dec. Dig. § 259.*]</p> <p>4. Constitutional Daw (§ 231*) — “Due Pbocess of Daw” — “Daw of the Dand.”</p> <p>The expressions “due process of law” and “the law of the land” are synonymous.</p> <p>[Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. § 732; Dee. Dig. § 251.*</p> <p>For other definitions, see Y/ords and Phrases, vol. 8, pp. 7701, 7702.]</p>

<p>1. Partnership (§ 244*> — Death op Partner---Ditty op Surviving Partner.</p> <p>The death of a partner dissolves the firm, and it is the duty of the surviving partner to close out the business and pay the firm debts, accounting to the heirs or representatives of the deceased partner for their interest in the surplus assets.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 509-513; Dec. Dig. § 244.*]</p> <p>2. Partnership (§ 215*) — Dissolution—Possession op Assets.</p> <p>A surviving partner is entitled to the exclusive possession and administration of the firm assets.</p> <p>[Ed. Note. — For other eases, see Partnership, Cent. Dig. §§ 514-518; Dee. Dig. § 245.*]</p> <p>3. Partnership (§ 244*) — Assets—Representatives op Deceased Partner.</p> <p>Neither the heirs nor personal representatives of a deceased partner are entitled to any part of the partnership assets until after payment of firm debts.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 511; Dec. Dig. § 244.*]</p> <p>4. Executors and Administrators (§ 44*) —Assets—Interest of Deceased Partner.</p> <p>The administration of a partnership estate being confided to the surviving partner, the county court in the administration of the deceased partner’s estate has no control over the partnership assets.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 295; Dec. Dig. § 44.*]</p> <p>5. Executors and Administrators (§ 181*) — Partnership Assets — Allowance to Widow and Children.</p> <p>The county court has no jurisdiction to set aside allowances to the widow and children of a deceased partner out of any part of the partnership assets, except the residue after payment of firm debts.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 681; Dec. Dig. § 181.*]</p> <p>6. Partnership (§ 249*) — Dissolution—Interest oe Deceased Partner.</p> <p>A deceased partner’s estate is entitled to the same interest in the residue after payment of firm debts as the deceased partner had in the firm in his lifetime.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 529-535; Dec. Dig. § 249.*]</p> <p>7. Executors and Administrators (§ 181*) — Allowances to Widow and Children.</p> <p>Under Rev. St. Tex. 1895, arts. 2037-2062, providing for allowances to the widow and children of a decedent, such allowances can be made only out of property, inventoried and appraised and under the control of the county court, which it is authorized to sell.</p> <p>[Ed. Note. — For other eases, see Executors and Administrators, Cent. Dig. §§ 681-685; Dec. Dig. § 181.*]</p> <p>8. Bankruptcy (§ 149*) — Bankrupt Firm — Rights op Partner.</p> <p>Since, under Bankr. Act July 1, 1898, e. 541, § 70, 30 Stat. 565, 566 (U. S. Comp. St. 1901, p. 3451), on an adjudication of bankruptcy against a firm, the firm property vests in the trustee in bankruptcy, the surviving partner thereafter has no power to consent to an allowance to the widow and children of the deceased partner out of the assets of the firm prior to the payment of the firm debts.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 229; Dee. Dig. § 149.*]</p>

<p>1. Trusts (§ 123*) — Trustees—Title.</p> <p>Where a deed of trust stipulated that the trustees named were to hold the properly for a certain period, one of them to have physical possession and the evidence of ownership, subject to periodical examinations by the other, the trustees held the legal title jointly.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 187; Dec. Dig. § 123.*]</p> <p>2. Trusts (§ 257*) — Action»—Parties.</p> <p>When two or more; trustees hold property jointly, both or all in general are necessary and indispensable parties to any action concerning it.</p> <p>| Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 363, 388; Dec. Dig. § 257*1</p> <p>8. Parties (§ 35*) — Refusal to Join as Plaintiff — Making- Defendant.</p> <p>Whore two trustees hold the title to trust property jointly, if litigation is necessary and one refuses to be a complainant, ho may be made a defendant.</p> <p>[Ed. Noic. — For other cases, see Parties, Cent. Dig. § 54; Dec. Dig. § 3o.-'j</p> <p>4. Parties (§ 78*) -Nonjoinder — Trustees.</p> <p>Where one of two joint trustees refuses to he a complainant in litigation involving the trust property, the fact that he is joined as a defendant does not create a nonjoinder of parties complainant.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. § 122; Dec. Dig. § 78.*]</p> <p>5. Courts (§ 307*) — Jurisdiction—Citizenship—Neoessaey and “Indispensable Parties.”</p> <p>For jurisdictional purposes, federal courts divide parties into formal, necessary, and indispensable parties; indispensable parties being those having an interest- in the controversy of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 307.* For other definitions, see Words and Phrases, vol. 4, p. 3559.]</p> <p>6. Trusts (§ 257*) — Actions—Parties.</p> <p>Two or more trustees under the same instrument are treated as one and the same person, so that where both are sued, except for a wrong or devastavit committed by one alone, all are indispensable parties.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 368; Dec. Dig. § 257.*]</p> <p>7. Courts (§ 3pS*) — Jurisdiction—Parties—Citizenship.</p> <p>Complainant and defendant C. were joint trustees under a certain deed of trust, complainant being a citizen of Illinois, while C. and the other defendants were citizens of New York. Helé, that in the absence of an allegation that C. was requested to join complainant in a suit for instructions as to the disposition of the trust funds, and refused, there was a nonjoinder of parties complainant, and since if C. was made a complainant, it would defeat federal jurisdiction, such jurisdiction was not shown.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 855; Dec. Dig. § 308.*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 C. C. A. 298.1</p>

<p>1. Corporations (§ 131*) — Stock—Transfer.</p> <p>A person who has become the equitable owner of corporate stock belonging to another may compel its delivery and transfer on the books of the company.</p> <p>[Ed. Note.- — For other cases, see Colorations, Cent. Dig. § 490; Dec. Dig. § 131.*]</p> <p>2. Corporations (§ 131*) — Broker’s Services — Transfer of Stock — Specific</p> <p>Performance.</p> <p>Defendant M., representing that he owned or controlled certain mining claims, employed complainant to procure capital to purchase and operate them, whereupon complainant procured defendant E. to advance money under a contract between M. and L. for the conveyance of the claims to a corporation which they formed; it being agreed that a portion of the stock should be issued to M. in consideration of a transfer of the claims to the corporation, and that a portion of M.’s stock so issued should be transferred to L. in payment for the money which he advanced, both M. and L. agreeing that plaintiff should receive §50,000 of such stock-for his commissions. M. in fact never purchased or conveyed any claims to the corporation with money furnished by D., but squandered such money, and no stock was issued to him therefor. Held that, while complainant under such facts had a cause of action at law for his services against M. and L., he could not maintain a bill in equity against the corporation or either M. or L. to compel a transfer of §50,000 of the corporation’s stock to him; also held, that specific performance of Martin’s agreement to convey the mining claims to the corporation could not be decreed, as it did not appear that Martin had title thereto, but the contrary, and that neither Martin nor Ryan nor Lewis had equitable title to the stock which belonged to the company.</p> <p>[Ed. Noto. — For other cases, see Corporations, Cent. Dig. § 490; Dec. Dig. § 131.*]</p> <p>3. Cancellation of Instruments (§ 37*) — Complaint.</p> <p>A complaint to set aside a stock-pooling receipt or agreement which was not set out either according to its legal effect or otherwise, and which did not state the time, place, and circumstances of its execution and delivery, nor allege the parties thereto, or that it was accepted without consideration was insufficient.</p> <p>[Ed. Note. — For other cases, soe Cancellation of Instruments, Cent. Dig. § 70; Dec. Dig. § 37.*]</p> <p>4. Equity (§ 39*) — Jurisdiction of Part — Effect.</p> <p>Where equitable jurisdiction of a material part of a cause of action appears, equity will assume jurisdiction to determine the entire controversy.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 104; Dec. Dig. § 39.*]</p> <p>5. Equity (§ 150*) — Bilu-Multifariousness.</p> <p>A bill against a corporation and two of its promoters to compel specific-performance of a contract to cause to be transferred to complainant $50,-000 of the corporation’s stock in consideration of his services was not multifarious.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 150.*]</p>

<p>1. Monopolies (§-‘12*) — Interstate Trabe — Statutes.</p> <p>Act Cong. July 2, 1890, c. 047, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), provides that every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce, is illegal, and every person who shall make any such contract, or engage in any such conspiracy, etc., on conviction shall be fined. Section 2 declares that every person who shall monopolize, or attempt to monopolize, or combine or conspire to monopolize, any part of the interstate trade or commerce, on conviction shall be punished, etc. Held, that such sections referred to and made illegal two different things: Section 1, combinations in restraint of interstate trade and commerce; and. section 2, combinations or conspiracies to monopolize, or to attempt to monopolize, interstate trade and commerce.</p> <p>[Ed. Note.. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*] '</p> <p>2. Monopolies (§ 23*) — Private Injuries — Action.</p> <p>Act Cong. July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3202), declares that any person who shall he injured in his business or property by any other person, or corporation, by anything forbidden or declared to be unlawful by the act which prohibits combinations in restraint of interstate trade and commerce, and combinations or conspiracies to monopolize, etc., may sue therefor in any federal court in which the defendant resides or is found, and may recover threefold damages, etc. Meld, 'that it is only necessary to support an action under such section that complainant’s business or property has been in some way injured by reason of defendant’s illegal scheme.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 16; Dee. Dig. § 23.*]</p> <p>3. Monopolies (§ 28*) — Conspiracies to Monopolize Interstate Commerce —Res Inter Alias.Acta.</p> <p>In an action for damages to plaintiff by defendant’s alleged combination to monopolize or attempt to monopolize interstate commerce in to- . bacco, in violation of Act Cong. July 2, 1890, c. 647, § 7, 26 Stat. 210 (U. S. Comp. St. 1901, p. 3200)* prohibiting conspiracies to monopolize or attempts to monopolize interstate commerce, defendant’s acts and conduct prior to plaintiff’s organization and entering the business were immaterial as res inter alios acta.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p> <p>4. Monopolies (§ 28*) — Conspiracy to Monopolize — Civil Damages — Petition — Construction.</p> <p>Act Cong. July 2, 1890, c. 647, § 1, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), prohibits combinations in restraint of interstate trade and commerce, and section 2 prohibits conspiracies to monopolize or attempts to monopolize interstate trade and commerce. Section 7 provides that any person injured by a violation of either section may sue for and recover treble damages. ' Held that, in an action brought for such damages in a federal court sitting in Kentucky, it was not necessary that the petition should state the facts showing a right of action with the particularity of an indictment, but that: it was sufficient if the facts constituting a cause of action were stated as concisely as possible consistent with clearness, as mjuired by Civ. Code Prae. Ky. §§ 90, 115.</p> <p>I Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p> <p>5. Monopolies (§ 28*) — Combination of Monopolies — Damages.</p> <p>Where, as a result of conspiracy or combination in restraint of interstate commerce, prohibited by Act Cong. July 2, 1890, e. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), a person is injured by being compelled to pay a higher price for any article affected thereby than lie would otherwise be compelled to pay, he may recover treble the amount of the damages sustained.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p> <p>6. Monopoliiss (§ 24*) — Unlawful Combinations — Restraint of Trade — Injunction.</p> <p>Combinations may be enjoined if the objects of the association are such as to violate Act Cong. July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), prohibiting combinations in restraint of interstate commerce, and combinations and conspiracies to monopolize interstate commerce.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 17; Dec. Dig. § 24.*]</p> <p>7. Monopolies (§ 14*) — Combinations—Manufacture of Article of Necessity.</p> <p>A combination, the sole object of which is to manufacture an article of common necessity, is not, without more, a violation of Act Cong. July 2, 1890; c. 617, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), prohibiting combinations in restraint of interstate commerce.</p> <p>[Ed. Note. — For other cast's, see Monopolies, Cent. Dig. § 11; Dec. Dig. § 14.*]</p> <p>Monopolies (§ 12*) — -Conspiracies in Restraint of Trade — Separate Acts.</p> <p>A combinaiion or conspiracy to monopolize or to attempt to monopolize interstate commerce, in violation of Act Cong. July 2, 1890, c. 647, 26 Stat. 209 (U. S.'Comp. St. 1901, p. 3200), was mot immune because it was ■ carried into effect by a series of separate acts, each one of which taken alone, was not objectionable, where the direct object and result of all was the perfection of a combination agreement whereby the free flow of commerce between the states, or the liberty of the trader, was obstructed.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>9. Monopolies (§ 12*) — Interstate Commerce — Restraint—Extent.</p> <p>It is not necessary that restraint of interstate trade and commerce should be so complete as to amount to total destruction in order to constitute a violation of Act Cong. July 2, 1890, c. 647, 26 Stat. 209 (U .S. Comp. St. 1901, p. 3200), prohibiting combinations and conspiracies in restraint of interstate trade and commerce, or to monopolize or attempt to monopolize the same.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. I 12.*]</p> <p>10. Monopolies (§ 28*) — Civil Damages — Parties.</p> <p>Where a complaint for conspiracy to monopolize interstate trade and commerce charged all the defendants jointly with having entered each of the alleged combinations and conspiracies complained of, and all the acts were alleged to have been done pursuant to a common design, plaintiff was not required to elect because some of the defendants were charged with doing one act and others with another.</p> <p>[Ed.- Note. — For other eases, see Monopolies, Cent. Dig. § IS; Dec. Dig. § 28.*]</p> <p>11. Damages (§ 142*) — Pleading—Specification.</p> <p>Civ. Code Prac. Ky. § 134, provides that, if the allegations of the petition are so indefinite or uncertain that the iweeise nature of the claim does not appear, the court may require that it be made more definite and certain by amendment. IIold, that under the conformity act (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684J) a petition for treble damages to plaintiff because of defendants’ alleged unlawful combination or conspiracy to monopolize interstate commerce in violation of Act Cong. July 2, 1890, c. 647, 2G Stat. 209 (U. S. Comp. St. 1901, p. 3200), sufficiently charged general damages by an allegation that, by virtue of defendant’s alleged unlawful acts, plaintiff had sustained damages in the sum of $500,000.</p> <p>[Ed. Note. — For other cases, see" Damages, Cent. Dig. § 413; Doc. Dig. § 142.*]</p>

<p>Proceedings by .the United States to condemn property for fortifF cation purposes. On plea and motion to dismiss.</p>

<p>In Bankruptcy.' On certificate from E. Foster Heller, referee.</p>

<p>In Equity. Demurrer to bill of complaint in action for infringement of complainant’s alleged trade-mark.</p>

In Equity. This is a demurrer to the complaint in an action in equity brought to rescind a certain agreement, whereby certain bonds wore surrendered and canceled, on the return of certain shares of stock of Curtis Leggett & Co., and to restore a certain mortgage, given to secure the said bonds, as a lien upon certain property owned by the bankrupt, Curtis Leggett & Co., at the time of the adjudication, and thus make such property, real estate, and certain personal property…

<p>Pledges (§ 50*) — Sale op Pledged Peopeety — Validity.</p> <p>Where bonds pledged as collateral security were sold after default in payment of the debt secured, on notice to the pledgor and strictly in accordance with authority given by the contract, the fact that they were purchased by the pledgee, as was also expressly authorized, at less than their actual value, is not ground for impeaching the sale in equity, nor is the fact that pursuant to previous announcement the purchaser of the first lot sold was given the option to take all, where the sale was at public auction at an exchange, no objection was made to the manner of sale, and no facts are alleged showing fraud or unfairness.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 102; Dee. Dig. § 50.*]</p>

<p>1. Maritime Liens (§ 02*) — Enforcement in Admiralty — Parties—Right of Other Creditors to Defend.</p> <p>In proceedings in ran in admiralty to enforce, maritime liens on a vessel, any creditor of tlie claimant desiring to contest the claim of any lien claimant must appear in the canse and do so by answer and on the reference.</p> <p>(Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 100; Dee. Dig. § 62.*]</p> <p>2. Admiralty (§ 101*) —Sale of Vessel — Proceeds — Decree in Personam— Waiver of Lien.</p> <p>The libelant in a suit in admiralty against a vessel and tlie owner, after the vessel had been sold and the proceeds paid into court, and after intervening libels asserting maritime liens had been filed, proved its claim and took a decree in personam only against the owner of the vessel, making no opposition to the claims of the intervening libelants. Hold, that as. against them it waived its right to assert a lien on the fund in court and elected to look to the owner alone, and that such election also bound an insurer entitled to succeed to libelant’s rights by subrogation.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 684; Dec. Dig. § 101.*]</p>

<p>Demurrer to Amended and Supplemental Bill of Complaint.</p>

At haw. This cause was submitted upon the following agreed statement of facts: “The parties to the above-entitled action hereby admit as facts, for all rhe purposes of the trial and determina tion of the issues in said action, by the above-entitled court, and to be considered as if fully established by competent proof, legally admissible and duly admitted, the following circumstances, facts, and conditions: “First.

<p>1. Insurance (§ 361*) — Premiums—Brokers—Nonpayment.</p> <p>Plaintiff applied tlirougli brokers, S. & Co., for certain insurance, which they procured in defendant company through G., another broker. Hainti.ff received the policy January 5, 1907, which provided that, if the premium -was not paid before the 15th day of the month succeeding that in which the policy was (lated, it should be void, without notice or other act oil the part of the company. Plaintiff made no payment until February 8th, when a check was sent to H. & Co., who in turn remitted to G.; but lie made no offer to pay the premiums to defendant until March 1st, when payment was refused because a loss had occurred on February 22d. Relé, that both brokers were plaintiff's agents, and, site being chargeable with their neglect, the policy was forfeited.</p> <p>[Kd. Note.--For other cases, see Insurance, Cent. Dig. § 923; Dec. Dig. § B(>1.*1</p> <p>2. Insurance (§ 392*) — Premiums—Nonpayment—Waiver.</p> <p>An insurance broker's contract with defendant, company required payment of premiums within 40 days succeeding the month in which policies were issued. Plaintiff having secured a policy through such broker, the premium was charged in the broker's December account. The policy provided for forfeiture unless the premium was paid by the 15th of the month succeeding the date of the policy. The premium not having been paid on February 38th. the insurance company's representative wrote the broker, claiming that payment should have been made by February 30th; but no payment was made until after plaintiff had suffered a loss on February 22d, when payment on that policy was tendered and refused. On March llfh the company wrote to the broker, inclosing a bill for December policies and demanding payment of premiums not later than March 15th; but then' was no evidence that the inclosed bill contained the policy in question. Held, that such correspondence did not constitute a waiver of the policy provision r w forfeiture for nonpayment of premiums.</p> <p>[Kd. Note. — For other cases, see Insurance, Dec. Dig. § 392. *J</p> <p>3. Insurance (§ 384*) — Waiver Ouause — Validity.</p> <p>A clause in a fire insurance policy that no officer or agent of the company should have power to waive any provision or condition, except as by the terms of the policy might lie the subject of agreement indorsed thereon or addl'd i hereto, nor unless such waiver should be written on or attached to the policy, and that no privilege or permission affecting the insurance should exist or be claimed by the insurer unless so written or attached, was valid.</p> <p>[Ed. Noie. — For other cases, see Insurance, Cent. Dig. § 1038; Dec. Dig. I 384.*</p> <p>Authority of insurance agent to waive prepayment of premiums, see note to Smith v. ITovident Sav. Fife Assnr. Soe. of New York, 13 G, O. A. 292.1</p>

<p>1. Banks and Banking (§ 293*) — Insolvency—Stockholders—Double Liability.</p> <p>The double liability of stockholders of a bank created by ICy. St. 1903, § 647, constitutes a trust fund, so that creditors of an insolvent savings bank may sue on behalf of all the creditors who may become parties to have the trust administered in equity without first having obtained a judgment at law on their demands.</p> <p>[Ed. Note. — For other cases, see Banks and Banking. Cent Dig. § 1135; Dee. Dig. § 293.*]</p> <p>2. Courts (§ 328*)— Federal Courts -Jurisuhtional Amount.</p> <p>Whore, in a suit to enforce a double liability of stockholders of an insolvent bank impo'wed by Ivy. St. 1002. § 517. tlie debts of complainants, who were citizens of Indiana, against the bank, a citizen of Kentucky, exceeded $2,000, exclusive of interest and costs, and the trust fund to bo collected from 1he stockholders was nominally $200,000, tlie amount in controversy was sufficient to sustain federal jurisdiction.</p> <p>FEd. Note. — For other cases, see Courts, Cent. Dig. § 891; Dec. Dig. § 328.*</p> <p>Jurisdiction of Circuit Courts as determined by amount in controversy, see notes to Auer v. Lombard, 19 C. O. A. 75; Tounent-Slribling Shoe Co. v. lloper, 36 C. C. A. 459.]</p> <p>3. Banks and Banking (§ 49*) -Insolvency — IAatolity of Stockholders - Enforcement.</p> <p>The double liability of stockholders of an insolvent bank created by Ky. St. 1903, § 517, may be enforced in a suit in equity by one creditor for the benefit of all, or by separate suits against each stockholder by a receiver.</p> <p>TEd. Noie. — Ifor other cases, see Banks and Banking, Gent. Dig. | 76; Dec. Dig. § 49.*]</p> <p>é. Juey (§ 13*) — Right to Jury Trial.</p> <p>Where, in a suit to enforce the double liability of stockholders of an insolvent bank created by Ky. St. 1908, § 547, issues of fact are raised by the defendant’s pleading, defendant has a right to a jury trial of such issues, whether the action be in equity or at law.</p> <p>[Ed. Note. — For oilier cases, see Jury, Cent. Dig. § 89; Dee. Dig. § 1,3.*]</p> <p>5. Courts (« 492*) — Federal Courts — Conflicting Jurisdiction.</p> <p>Stockholders of an insolvent bank should not be twice vexed by a suit to recover the double liability imposed by Ky. St. 1903, § 547, by a suit in the state and federal courts to administer the trust so created, but jurisdiction should be surrendered to tbe court first acquiring jurisdiction of tlie subject-matter.</p> <p>[Ed. Note. — For other cases, see Courts. Cent. Dig. § 1345; Dec. Dig. § 492 *</p> <p>Jurisdiction as affected by possession of the subject-matter, see note to Adams v. Mercantile Trust Co., 15 O. C. A. 6.]</p> <p>6. Banks and Banking (§ 77*)--Insolvency— Stockholders — Double Dianu.iTy — Assets.</p> <p>The double liability of stockholders in an insolvent banking corporation to creditors, imposed by Ky. St. 1903, § 547, does not constitute assets of tlie corporation subject to administration, under section 616, providing for the appointment of a receiver to lake possession of the bank’s books, papers, assets, and business, and administer tbe same.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. | 173; Dec. Dig. § 77.*]</p>

<p>1. Bankruptcy (§ 400*) — Exemptions—Homestead.</p> <p>Bankr. Act July 1,1898, c. 541, § 70a, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3451), vests in tbe trustee tbe title of tbe bankrupt’s property as of tbedate be was adjudged a bankrupt, except as to exempt property, and section 6a (30 Stat. 548 [U. S. Comp. St. 1901, p. 3424]) declares that tbe act shall not affect the allowance to bankrupts of exemptions prescribed by state laws in force when tbe petition in bankruptcy is filed. Held that, where a bankrupt in his schedules claimed certain real estate exempt as a-homestead, his exemption therein, in tbe absence of fraud, was not defeated because be bad not designated tbe same according to the laws of tbe state, provided be proceeded to do so within a reasonable time-thereafter.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dec. Dig. § 400.*]</p> <p>2. Bankruptcy (§ 400*) — Exemptions—Time—Manner.</p> <p>Courts of bankruptcy are not controlled as to tbe time or manner in which claims for exemptions are preferred.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 671; Dec. Dig. § 400.*]</p> <p>3. Bankruptcy (§ 147*1 — Exempt Property — Administration.</p> <p>The authority of tbe bankruptcy court to control tbe property in order to set it aside if exempt, and to exclude it from tbe assets of the-bankrupt’s estate, does not extend authority to tbe trustee to administer exempt property as though it constituted assets.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 658; Dec. Dig. § 147.*]</p>

<p>Aliens (§ 18*) — Deportation.</p> <p>Ah alien acquires no rights by a domicile in this country which will relieve her óf the effects of a decision of the Department of Commerce and Dabor ordering her deportation.</p> <p>I Ed. Note.- — For other eases, see Aliens, Cent. Dig. §§ 70, 71; Dec. Dig. § 18.*]</p> <p>(Syllabus by the Court.)</p>

<p>On Motion to Set Aside Order for Service by Publication.'</p>

<p>1. Carriers (§ 87*) — Interstate Carriers of Live Stock — Statutory Regulations — Action for Penalties.</p> <p>A declaration, in an action by the United States to recover the penalty for violation of the 28-hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1907, p. 9181) by permitting cattle to remain in a car for a period longer than 28 hours without unloading for rest, water, and feeding, which describes the defendant railroad company as “lessee” of the road and otherwise follows the language of the statute, is sufficient after verdict, although it does not expressly allege that defendant was at the time operating the road.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p> <p>2. Carriers (§ 37*) — Interstate Carriers of Live Stock — Statutory Regulations — Action fob Penalties.</p> <p>Technical objections to the declaration, in an action by the United States against a railroad company to recover the penalty for violation of the 28-hour law (Act June 29, 1906, c. 3591, 34 Stat. 607 [U. S. Comp. St. Supp. 1007, p. 918J), considered, and held without merit after verdict.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p> <p>3. Carriers (§ 37*) — Interstate Carriers of Live Stock — Statutory Regulations — Action i-or Penalties.</p> <p>So far as relates to the rules of pleading and proof, an action by the United States to recover the penalty for violation of the 28-hour law (Act June 29, 1906, c. 3504, 34 Stat. 607 [U. S. Comp. St. Supp. 1007, p. 018j) is a civil and not a criminal action.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p> <p>4. Carriers (§ 37*) — Interstate Carriers of Live Stock — Statutory Regulations — Action foe Penalties — Pleading.</p> <p>In an action by the United States against a railroad company to recover the penalty for violation of the 28-hour law (Act June 29, 1906, c. 3591, 34 Stat. 607 [U. S. Comp. St. Supp. 1907, p. 918¡), which requires a carrier to unload cattle for rest, water, and feeding within each consecutive 28 hours, “unless prevented by storm or by other accidental or unavoidable causes, which cannot be anticipated or avoided by the exercise of duo diligence and foresight,” the plaintiff is not required to allege or prove the nonexistence of accidental or unavoidable causes which might have prevented a compliance with such requirement; but such causes are matters of defense.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p> <p>5. Carriers (§ 37*) — Interstate Carriers of Live Stock — Statutory Regulations — Violation.</p> <p>In the provision of the 28-hour law (Act June 29, 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St. Supp. 1907, p. 918J) subjecting railroads to a penalty for knowingly and willfully failing to obey such act, the words “knowingly aud willfully” do not: require an evil intent, but only that defendant should have failed to obey the statute purposely and with knowledge of the facts.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p> <p>6. Penalties (§ 33*) — -Burden of Proof — Penal Action.</p> <p>The rules as to the burden of proof with reference to allegations setting-up the negative in penal suits, so far as applicable to this case, explained and applied.</p> <p>[Ed. Note. — For other cases, see Penalties, Cent. Dig. § 32; Dec. Dig. § 33.*]</p> <p>7. Evidence (§ 154*) — Documents—Admissibility—Manner op Procurement.</p> <p>As a general rule papers which are in fact in court may he used in evidence, even though the party offering them procured them illegally, so that papers produced by counsel for one party pursuant to an irregular order of the court, made at the instance of the adverse party, may be introduced in evidence by the latter.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 443; Dec. Dig. § 154.*]</p> <p>8. Carriers (§ 37*) — Interstate Carriers op Dive Stock — Statutory Regulations — Penalty for Violation.</p> <p>Where a railroad train carried a number of different consignments of live stock, and the company failed to unload any of them for rest, i ter, and feeding, as required by the 28-hour law (Act June 29. 1906, c. 3394, 34 Stat. 607 [ü. S. Comp. St. Supp. 1907, p. 918]), it became subject to a penalty thereunder for each consignment.</p> <p>(Ed. Note. — For other cases, see Carriers, Cent. Dig. § 927; Dec. Dig. § 37.*]</p>

<p>Appeal from the Circuit Court of the United States for the District of Nebraska.</p> <p>This appeal challenges a decree of the Circuit Court which adjudged the Union Pacific Railroad Company and three of its officers guilty of contempt and fined them for a violation of the decree rendered and the writ of injunction issued in August, 3903. in the case of the Mason City & Ft. Dodge Railroad Company against the Union Pacific Railroad Company. The decree of 1903 adjudged (hat the Mason City Company and its lessee, the Chicago Great Western Railway Company, were “admitted into the full, equal, and joint use of the main and passing tracks of the Union Pacific Railroad Company then located and established, or which might thereafter be located and. established, from the eastern terminus of said tracks in Council Bluffs, in the state of Iowa, to a connection with the Union Stockyards Railroad and other railroads connecting with the Union Pacific Railroad at South Omaha in the state of Nebraska, including the bridge over which said tracks extend across the Missouri river between the cities of Council Bluffs, Iowa, and Omaha, Neb., * * * also the connections with the Union Stockyards in South Omaha, and with the tracks of all other railway companies which now or may be hereafter connected at or near South Omaha with the tracks of the Union Pacific Railroad Company hereinbefore described, each and all, to the same extent and upon the same terms and conditions stated in tlie contracts between the Union Pacific Railroad Company and the Chicago & Northwestern Railway Company, the Chicago, Milwaukee & St. Paul Railway Company, and the Chicago. Rock Island & Pacific Railway Company'’ ; and it enjoined (lie Union Pacific Railroad Company, its officers and servants, “from interfering in any way with said full, equal, and joint use of said property as aforesaid by the complainant, its successors, lessees, and assigns, and the right; to make said connections as aforesaid.” -</p> <p>The western terminus of the Mason City Railroad is at Council Bluffs, but it lias a freightyard and railroad tracks therein near Twentieth street in Omaha, and these tracks are connected with the main track of the Union Pacific Railroad which extends from Omaha to South Omaha. Southwest of this freightyard, between it and South Omaha, adjoining the right of way of the Union Pacific Company, the Mason City Company has a large freight-yard and many railroad tracks for the handling of grain. These tracks are connected with the main track of the Union Pacific Company which extends from Omaha to South Omaha, and in tills yard the Mason City Company has constructed a large grain elevator. This elevator has been constructed and the yard has been equipped and connected with Union Pacific tracks since the decree of 1903. For convenience it will be called the “grainyard.” The only method of communication by rail that the Mason City Company and its lessee have between their main line at Council Bluffs and this freightyard and this grainyard in Omaha and between those yards and the Union Stockyards, and the railroads from the West and South which connect with the Union Pacific tracks at South Omaha, is by way of the main track and the passing tracks of the Union Pacific Company. The Chicago, Rock Island & Pacific Railroad Company has a line of railroad from Chicago to Council Bluffs and from Denver to South Omaha, but it uses the main and passing tracks of the Union Pacific Company to conduct its trains from South Omaha to Council Bluffs, and vice versa. About a mile west of South Omaha the tracks of the Rock Island Company have a physical connection with the tracks of the Union Pacific Company.</p> <p>The act which the court below held to be a violation of the decree and of the injunction was the prevention by the Union Pacific Company and its officers of the use by the Great Western Company, the lessee of the Mason City Company, of this connection for the purpose of drawing with one of its engines a car load of stucco, which was consigned to the Rock Island Company, from the Union Pacific tracks over this connection in order to deliver it to that company.</p>

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

Petitions for Revision of Proceedings of the District Court of the . United States for the Middle District of Alabama, in Bankruptcy. Held: preserved, and cared for until a hearing of their original petition in this cause, a receiver should be appointed by this honorable court to collect, hold, and preserve the same for the benefit of said estate, and until the further orders of this court. “Wherefore, your petitioners respectfully pray that your honor will make an order…

<p>1. Negligence (§ 136*) — Proximate Cause of Injury — Question of Law ok of Fact.</p> <p>It is only when the facts are clearly settled and but: one inference can possibly be drawn therefrom that the question of proximate cause is one of law.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 292, 300; Dec. Dig. § 136.*]</p> <p>2. Master and Servant (§ 285*) — Injury to Brakeman — Violation of Safety Appliance Act.</p> <p>Plaintiff was a brakeman on a freight train of defendant’s railroad being moved in interstate business, and was directed to cut off the two rear ears while the train was moving slowly and before it readied a certain switch. The automatic coupler on one of the cars was broken, and plaintiff went between the cars and a 1 temp Led to pull the pin by hand, but, not succeeding, started out, when bis foot caught in an unblocked switch, frog and he was injured. Held, in an action to recover for the injury, that the question whether the failure of defendant to have the car properly' equipped was the proximate cause of the injury, so as to render it liable therefor under the safety appliance act of March 2, 1893, e. 196, §’ 8, 27 Stat. 532 (ü. S. Comp. St. 1901, p. 3176), was, under the evidence, one of fact for the jury, and that it was error for the court to direct a verdict for defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1020; Dee. Dig. § 285.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>3. Master and Servant (§ 289*) — Injury to Buatcejian — Contributory Negligence.</p> <p>In an action by a brakeinan against a railroad company to recover for an injury received in attempting to uncouple cars in a moving train, the question of contributory negligence held, under the evidence, one for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1089; Dec. Dig. § 289.*]</p> <p>4. Master and Servant (§ 132*) — Injury to Servant — Defective Appliances — Unblocked Railroad Frogs.</p> <p>The use by a railroad company of unblocked frogs in a switchyard does not constitute negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §C 218, 221; Dec. Dig. § 112.*]</p>

<p>1. Courts (§ 306*) — Federal Courts- -Rules or Decision.</p> <p>The construction of the Mississippi tax laws, given by the Supreme Court of that stare, is binding on the federal courts in determining questions arising thereunder.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 961; Dec. Dig. I 366.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. 0. A. 71 ; Hill v. I Lite, 2!) O. 0. A. 553.)</p> <p>2. Taxation (§ 16.1*) — Foreign Corporations — “Doing Business Within State.”</p> <p>Where a nonresident corporation had one or more local agencies in Mississippi in control of salesmen, selling sewing machines throughout a limited number of counties and reporting to such local agency, which in turn reported to a district agency in another state, the corporation during such period was doing business within the state and taxable on credits, as.provided by Rev. Code Miss. 3880, § 4.97, but not so during a period when it had neither office, store, nor managing salesman in the state; and did business only through traveling salesmen, who transmitted all cash collected and contracts arising from the disposition of machines to agencies outside the state.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 286; Dec. Dig. § 164*</p> <p>For oilier definitions, see Words and Phrases, vol. 3, pp. 2157-2160; vol. 8, pp. 7640, 7641.</p> <p>Taxation of foreign corporations, see note to MeCanna & Fraser Co. v. Citizens’ Trust & Surety Co. of Philadelphia, 24 O. C. A. 13. J</p> <p>3. Taxation (| 498*) — Illegal Assessment — Injunction.</p> <p>Where, in a suit to recover back taxes against a nonresident corporation, it appeared that; defendant; owed no taxes, hack or otherwise, at the places where taxes were sought to he levied, and to allow'the'assessments. would either compel defendant to pay illegal taxes or drive it to a multiplicity of suits, an injunction restraining such assessments would be allowed.</p> <p>[Ed. Note. — Por other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. § 498.*]</p>

On Petition for Revision of Proceedings of the District Court of the United States for the Southern District of West Virginia, at Charleston.

<p>Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the Southern District of West Virginia, at Charleston, in Bankruptcy,</p>

<p>1, Bankruptcy tj 416*) — Petition for .Review — Scope.</p> <p>On a. pet ilion for review in bankruptcy, authorized by Bankr. Act July 1, 1898, e. 541, § 24b, 80 Stat., 553 (U. S. Comp. St. 1901, p. 3432), the Circuit Court of Appeals can only revise the proceedings of the District Court in matters of law.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 44(5.'-J</p> <p>2, Bankruptcy (§ 305*) — Secretion of Assets--Peeapino — Variance. '</p> <p>Where a trustee’s petition charged that the bankrupt had removed a dray load of clothing from his store and secreted the same In the house of his father, and that he had failed to account for #10,000 in money, both of which allegations the bankrupt denied, an order of the bankruptcy court directing that the bankrupt deliver “gentlemen’s furnishings and clothing to the value of 84,000" was erroneous,, as without the issues.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 406; Dec. Dig. § 305.* I</p> <p>3, Bankruptcy (si 805*) — Order Without the Issues — Cubing Error — Arandoned Petition.</p> <p>Where an order in bankruptcy, directing that the bankrupt deliver certain gentlemen’s furnishings and clothing of a specified value, was erroneous as without the issues, the error was not cured by a petition which had been abandoned, and on which no issue was joined.</p> <p>|Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § ¿6(5: Dec. Dig. * 805. - i</p>

<p>1. Courts (§ 352*) — Federal Courts — Procedure—Trial, Without .Turv Findings.</p> <p>Rev. St. §§ 619, 700 (IT. S. Comp. St. :1901, pp. 525, 570), relating to procedure in actions at law tried by a federal court without a jury, do not contemplate the finding of separate conclusions of law, but judgment should be directed on the findings of fact.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. §§ 926, 927; Dec. Dig. § 352.*]</p> <p>2. Banks and Banking (§ 248*) — National Banks — Liability of Stockholdkrs — “Person Holding Stock as Trustee.”</p> <p>Rev. St. § 5152 (U. S. Comp. St. 3901, p. 3405), providing that persons holding stock in national banks as executors, administrators, guardians, or trustees shall not be personally subject to any liabilities as stockholders, is not confined to express trusts, but applies to every one holding stock as trustee, and a father who invested funds belonging to bis children In such stock, taken in his own name simply as “trustee,” cannot be held personally liable for an assessment thereon, although the fund so invested arose from an investment of his own money previously made by him in their names and behalf.</p> <p>fEd. Note. — For other cases, see Banks and Banking, Cent. Dig. § 939; Dec. Dig. 248.*</p> <p>Enforcement of statutory liability of stockholders in national banks, see note to Williamson v. American Bank, 52 C. C. A. 6.]</p>

<p>1. Appeal and Error (§ 515*) — Records—Diminution—Evidence.</p> <p>Where, on appeal from an order adjudging petitioner guilty of contempt for appearing in the United States Court for China, wherein hollad not been admitted to practice, the transcript showed that he appeared and testified that he had been admitted to practice before the United States Supreme Court, before the courts of record of the state of Now York, and before the United States Consular Court at Shanghai, and that the judgment was based solely on the fact that he had not complied with the rule of the United States Court for China relating to the admission of attorneys, it was not material that the record should also contain copies of petitioner’s certificate of admission before the United States Supreme Court, ihe courts of record of New York, and the Consular Court at Shanghai.</p> <p>I Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2322; Dec. Dig. § 515.*]</p> <p>2. Appeal and Error (§ 493*) — Record—Contents—Citation—Service.</p> <p>Where, on appeal from an order adjudging petitioner guilty of contempt, the transcript showed that the petitioner appeared and waived citation, it was not material that it should also show that no citation was issued, and that, petitioner demanded a copy of the alleged citation.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2284 • Dec. Dig. § 493.*]</p> <p>3. Appeal and Error (§ 496*) — Record—Contents.</p> <p>Where, on appeal from an order adjudging petitioner guilty of contempt in appearing as attorney for E. in the United States Court for China, the record showed that while E.’s statement made on August 22, 1907, was not under oath, he was sworn on August 26, 1907, in open court, and testified that he had read the transcript of his prior testimony, and that it. was true with certain immaterial exceptions, petitioner was not entilled to have the record show that E. was examined without having first been sworn.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2288, 2292; Dee. Dig. § 496.*]</p> <p>4. -Appeal and Error (§ 496*) — Record—Contents.</p> <p>Where, on appeal from an order adjudging petitioner guilty of contempt in appearing as attorney for E., petitioner did not allege that he had ever demanded permission to inspect the testimony of E. or to cross-examine him as to his statements, or that the record of the trial court indicated any such request, petitioner was not entitled to have the appeal record show that E. made his statement in the private rooms of the judge, and that the statement was thereafter sworn to by E. in open court, and without being read, and without any opportunity afforded petitioner to know its contents, or to examine said E. on the same.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2288. 2292; Dec. Dig. § 496.*]</p> <p>5. Contempt (§ 63*) — Judgment—Modification—Second Judgment.</p> <p>Where, in a contempt proceeding, the first judgment did not embrace the alternativo of imprisonment in case the fine imposed was not paid, the court had power to enter a second judgment containing such alternative as its final judgment to take the place of the first.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. § 201; Dec. Dig. § 63.*</p> <p>Liability of attorneys, see note to Anderson v. Comptois, 48 O. C. A. 7.1</p>

<p>Petition for Revision of Proceedings of the District Court-of the United States for the Southern District of New York.</p>

<p>Bankeuttcy (§ 461*)--Oedeks cot Cotjkt — Mode oií Review.</p> <p>A decision of a court of bankruptcy allowing or rejecting a claim of $500 or over is reviewable by the Circuit Court of Appeals only on an appeal taken within 10 days, as provided by Bankr. Act July 1, 1898, e. 541, § 25a, 30 Stat. 553 (IT. S. Comp. St. 1901, p. 3432).</p> <p>[Ed. Note.- — For other cases, see Bankruptcy, Dec. Dig. § 401.®]</p>

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

<p>Patents (§ 328*) — Novelty—Openwork Stockins.</p> <p>The Blood patent, No. 743,231, for a machine-knit seamless stocking knit from a single thread in one continuous operation, and having lace work down the front of the leg and over the instep, is void, there being no patentable difference between such stocking and the lace front stockings of the prior art, except in the means or method by which it is made and due to the machine.</p> <p>IEd. Note. — For other cases, see Patents, Cent. Dig. § 46; Dec. Dig. § 328.*)</p>

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

<p>In Equity. Suit to enjoin alleged infringement of patent and for an accounting.</p>

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

<p>In Equity. Suit for alleged infringement of United States letters patent No. 436,916, to Josiali B. Gathright, relating to tabulating attachments for typewriters.</p>

<p>In Equity. Demurrer to bill of complaint for alleged infringement of United States letters patent No. 739,318, known as “Johnson Patent.”</p>

<p>In Equity. Suit to restrain alleged infringement of United States letters patent No. 600,429, dated March 8, 1898.</p>

<p>L Indictment and Information (§ 70*)' — Statement of Offense.</p> <p>As nothing in a criminal case can be charged by implication, intendment, or recital, every fact necessary to be proven to constitute the crime must be directly and affirmatively alleged.</p> <p>[Ed. Note.- — For other cases, see Indictment and Information, Cent. Dig. § 192; Dee. Dig. § 70.*]</p> <p>2’. Animals (§ 31*) — Restrictions on Transportation — “Made”—“Promulgated.”</p> <p>Act Cong. March 3, 1905, c. 1496, § 3, 33 Stat. 1205 (U. S. Comp. St. Supp. 1907, p. 926), requires the Secretary of Agriculture to "make” and “promulgate” rules and regulations governing the method and manner of inspection, delivery, and shipment of cattle from a quarantined state or a quarantined portion of a state into any other state, and that he shall give notice of such rules and regulations as provided by the act, section 1 of which requires publication of notice of quarantine in such newspapers in the quarantined state as the Secretary may select, and the giving of notice to the proper officers of railroad, steamboat, or other transportation companies doing business in or through any quarantined state. Held, that the words “make” and “promulgate” were not synony,'mous; that the duty to “make” rules and regulations was sufficiently accomplished by writing them and signing them officially, but that to “promulgate” them required the giving notice thereof to the officers of transportation companies, etc., and their publication in the selected newspapers within the affected district.</p> <p>[Ed. Note. — For other cases, see Animals, Dec. Dig. § 31.* '</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4292-4294, vol. 6, p. 5684.]</p> <p>3. Statutes (§ 241*) — Construction—Penal Statutes.</p> <p>Criminal and penal statutes must be construed with reasonable strictness.</p> <p>[Ed. Rote. — For other eases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. § 241.*]</p> <p>4. Animals (§ 36*) — Contagious Diseases — Offenses—Indictment.</p> <p>Act Cong. March 3, 1905, c. 1496. 33 Stat. 1264 (U. S. Comp. St. Supp. 1907, p.,923), authorizes the Secretary of Agriculture to establish cattle quarantines, and section 3 makes it the Secretary’s duty to make and promulgate rules and regulations permitting and governing the shipment of cattle from a quarantined district. Section 4 makes it unlawful to move any'cattle or other live stock from any quarantined district into any other state except in accordance with such regulations. Held, that an indictment against a carrier for moving cattle from a quarantined district, contrary to and in violation of the Secretary’s rules and regulations, failing to directly allege facts showing the promulgation of such rules,' or otherwise than that the rules and regulations were “duly and legally made and promulgated,” was insufficient.</p> <p>[Ed. Note. — Eor other cases, see Animals, Dec. Dig. § 36.*]</p> <p>5. Indictment and Information (§ 147*)- — Duflicity—Remedy.</p> <p>Semble, that an objection that an indictment is duplicitous should be made by a motion to elect, and uot by demurrer.</p> <p>[Ed. Note.- — Eor other cases, see Indictment and Information, Cent. Dig. § 493; Dec. Dig. § 147.*]</p>

<p>1. APPEABANOE (§ 17*)-,J GRIS DICTION -WAIVER OF OBJECTION.</p> <p>Tlie filing by the United States of a notice of appearance in a suit in rein, and of claim to the property in the custody of the court, is an admission of the jurisdiction of the court to such extent as. to preclude the subsequent filing of exceptions to the jurisdiction.</p> <p>TEd. Note. — For other cases, see Appearance, Cent. Dig. §§ 70-75; Dec. Dig. § 17.*]</p> <p>2. Replevin (§ 12*) — Action to Recoves Goons Held by Customs Collectob —Debensics.</p> <p>Libelants instituted a petitory and possessory suit for certain goods which had been brought in a vessel from Porto Rico to New York, making the collector of the port a defendant, on an allegation that he had illegally taken possession of the goods under a claim that they were subject to a tax. The collector was not served, but a notice of appearance and claim was filed on behalf of the United States, alleging that the goods were subject to an internal revenue tax. The goods were taken by the-marshal from th? vessel, not having been entered at the custom house. Sold, that the notice filed by the United States stated no ground of defense to libelants’ suit, since no claim to a tax could be asserted or litigated prior to the entry of the goods, and that the goods should be returned by the marshal to the libelants, who had never been deprived of their rights of entry, and who must enter the goods according to law.</p> <p>[Ed. Note. — For other cases, see Replevin, Cent. Dig. § 103; Dec. Dig.. § 12.*]</p>

<p>Public Lands (§ 103*) — Entry—Contest—Preference Right — Statutes.</p> <p>Act Cong. May 14, ]880. c. 8!), § 2, 21 Stat. 141 (TJ. S. Comp. St. 1901, p. 1392), providing that in all cases whore any person has contested, paid land office fees, and procured the cancellation of any pre-emption, homestead, or timber culture entry, he shall be notified by the register of the land office of the district in which the land is situated of such cancellation, and shall have 30 days from the date of the notice to enter such lands, has no application to land sought to he purchased as a stone and timber claim.</p> <p>[Ed. Note. — For other eases, see Public Lands, Cent. Dig. § 298: Dec. Dig. § 103.*]</p>

<p>In Equity. Demurrers by defendants to the bill of complaint.</p>

Libel by the United States for condemnation of alleged whisky for misbranding. On exception to libel, and charge to jury. This was a libel filed by the United States seeking the condemnation of 50 barrels, more or less, of alleged whisky.

<p>1. Bankruptcy (§ 225*) — ;Referee—Juki,1ídíction.</p> <p>Where a bankrupt's trustee filed, a petition for a summary order directing a corporation claimed to be a mere agent of the bankrupt to surrender possession of property which the trustee claimed belonged to the bankrupt but which the corporation claimed in its own right, it was the duty of the referee to hoar the testimony in order to determine whether the corporation’s claim was real or merely colorable.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 225.*]</p> <p>2. Bankruptcy (§ 288*) — Adverse Claims to Property — Determination.</p> <p>Jurisdiction to determine claims to a bankrupt’s property by bill in the,nature of a plenary suit does not preclude litigation of the rights of the parties in the bankruptcy proceedings, where the trustee applies for an order requiring surrender of possession on the ground that the property held belongs to the bankrupt and is held without color of right.</p> <p>LEd. Note.- — For other cases, see Bankruptcy, Dec. Dig. § 288.*]</p> <p>3. Bankruptcy (§ 225*) — Claims to Property — Referee's Jurisdiction — Extent.</p> <p>Whore, on a claim of a bankrupt's trustee to possession of property In the possession of another, the referee finds that the latter’s claim is iu good faith and probably real, but of doubtful validity or of questionable faith, it should then he determined by a plenary suit: but if he finds that the claim is without any actual merit or legal foundation, he should regard the property as subject to the bankruptcy court’s jurisdiction as property of the bankrupt, and require its surrender to the trustee.</p> <p>[Ed. Note. —For other cases, see Bankruptcy, Dec. Dig. § 223.*]</p> <p>4. Bankruptcy (§ 303*) — Fraudulent Corporations — Claims.</p> <p>Evidence field to warrant a finding that defendant corporation was organized to take over the stock and property of the bankrupt, to hinder and defeat the creditors of the latter, and that property in defendant’s possession, alleged (o have been purchased, from the bankrupt, was in fact its property, and subject to adndnist.rat.ion, in the bankruptcy proceedings, for the benefit of the bankrupt's creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 303.*]</p> <p>5. Bankruptcy (§ 308*) — Claims—Creditors Entitled — Fraudulent Organization ok Corporation.</p> <p>Where D„ who was a director in a bankrupt corporation, participated in organizing the I’. Company, which was established to take over the bankrupt’s business in order to defraud its creditors, and D. purchased certain stock in the P. Company for 81,209 in cash, and became a director thereof, he should be considered as a creditor of the bankrupt to the extent of such amount.</p> <p>[Ed. Note. — For other cases, 'see Bankruptcy, Dec. Dig. § 308.*]</p>

<p>1. Aliens (§ 40*) — Conflict Between Immigration and Naturalization Laws.</p> <p>It was no part of the intended policy of Rev. St. § 1994 (U. S. Comp. St. 1900, p. 1268), providing that any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen, to annul or override the immigration laws, so as to authorize the admission into the country of the wife of a naturalized alien not otherwise entitled to enter.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 100; Dec. Dig. § 40.*]</p> <p>2. Aliens (§ 70*) — Naturalization — Wife of Naturalized Alien —“Who Might Herself be Lawfully Naturalized.”</p> <p>Rev. St. § 1994 (U¡ S. Comp. St. 3901, p. 1268), provides that any woman married to a citizen of the United States, and who might herself he lawfully naturalized, shall he deemed a citizen. Hold, that the clause “who might herself be lawfully naturalized” limited such section to a woman lawfully within the country, her own capacity, independent of her marital status, being essential to attainment of citizenship, so that, where the wife of a naturalized alien was not entitled to enter the country under the immigration regulations because afflicted with a contagious disease, she would not become a citizen entitled to enter by the naturalization of her husband.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 157; Dec. Dig. § 70.*]</p>

<p>Bankruptcy (§ 143*) — Property Passing to Trustee — Like Insurance Policy.</p> <p>A bankrupt held a life insurance policy payable to his wife if living at the time of his death, and, if not, to his legal representatives, but subject to his right to change the beneficiary at any time, and also, if living at the time of the payment of the last premium to himself receive a cash payment or other settlements specified. The policy had a cash surrender value, and had been pledged by both husband and wife for a loan, and the later premiums had been paid by the wife. Held, that under Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 505 (U. S. Comp. St. 1901, p. 3451;, the bankrupt or his wife was entitled to retain the policy on payment to his trustee of its surrender value at (he time the bankrupt ceased paying the premiums, less the amount of the loan for which it was pledged.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 201; Dee. Dig. § 143.*]</p>

<p>1. (rUARAXTY (§ 6*) — Exceptions.</p> <p>During correspondence mating to Hie purchase of mining machinery by a corporation, plaintiff inquired how the corporation would like to make payments, and stated he would prefer to have defendant or another become personally responsible. Defendant replied that (lie corporation bad paid for another mill within two or three weeks after it was in operation, and stated that he would personally guarantee payment by the corporation. In answer to this, plaintiff replied that the time was too long, and requested payment of $1,000 on receipt by defendant of invoice and bill of lading. Reid, that such letter was not a complete and precise adoption of the proposition contained in the guaranty, and was therefore not an acceptance thereof.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 8; Dec. Dig. § 6.*]</p> <p>2. Guaranty (§ 6*) — Acceptance—Necessity.</p> <p>Where a guaranty was made at the request of the guarantee, its delivery to and for the latter’s use completed the communication, and constituted a contract without further acceptance.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 8; Dec. Dig. § 6.*]</p> <p>3. Guaranty (§ 12*) — Delivery—Deposit in Post Office.</p> <p>Where plaintiff requested defendant to guarantee the obligation of a corporation, the delivery of a letter of guaranty was complete when it was deposited in the post office by defendant fór transmission to plaintiff through the mails.</p> <p>[Ed. Note. — For other cases, see Guaranty, Dec. Dig. § 12.*]</p> <p>4. Guaranty (§ 2*) — What Law Governs.</p> <p>Where defendant executed in Milwaukee a guaranty of the debt of a corporation to plaintiff in Colorado, and deposited the guaranty in the mails for transmission to plaintiff, it was a Wisconsin contract and governed by the laws of that state.</p> <p>[Ed. Note. — For other cases, see Guaranty, Dee. Dig. § 2.*]</p> <p>5. Frauds, Statute of (§ 308*) — Guaranty—Consideration.</p> <p>Under the Wisconsin statute of frauds, a written guaranty in which no consideration was expressed was void.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 216} Dec. Dig. § 108.*</p> <p>Sufficiency of expression of consideration in memorandum within statute, see note to Choate v. Hoogstraat, £0 C. C. A. 183.]</p> <p>6. Pleading (§ 36*) — Conclusiveness of Allegation on Pleader.</p> <p>Where plaintiff proceeded against defendant as guarantor on the theory that a corporation was the principal contractor, he could not on demurrer claim that defendant was in fact primarily liable.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 81; Dec. Dig. § 36.*]</p>

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

At Law. On demurrer to plea. The plaintiff is a private corporation of South Dakota, and is the owner and engaged in the development and operation of mines in Baker county, Or.

<p>Application for Naturalization.</p>

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

This cause comes here upon appeal from a decree dismissing the bill iu suit to enjoin the maintenance of a dam located in the state of Connecticut on the Housatonic river which sets back the water of that river upon lands of complainant located in the state of Massachusetts. The opinion of Judge Platt is reported in 158 Fed. 219.

<p>Appeals from the Circuit Court of the United States for the Southern District of New York. For decision below, see 159 Fed. 273. Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers. .T. Osgood Nichols, Asst. U. S. Atty.</p>

This is an appeal from a decree awarding demurrage and extra expenses for 12 days’ detention of a schooner discharging in the port of New York. The facts are fully set forth in the decision of the District Judge reported in 158 Fed. 203. H. W. Goodrich, for appellants. Arthur Lovell, for appellee.

<p>Appeal from the Circuit Court of the United States for the District of Connecticut. This cause comes here upon appeal from a decree dismissing the hill in a suit; to enjoin the maintenance of a dam located in the state of Connecticut on the Housatonic river which sets back the water of that river upon lands of complainant located in the state of Massachusetts. The opinion of Judge Platt is reported in 158 Fed. 219.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of New York. See 137 Fed. 273.</p>

Petition to Review an Order of the District Court of the United States for the Southern District of New York. The trustee in bankruptcy was directed to pay the fees of the sheriff of New York on two executions levied upon property of the bankrupt within four months prior to filing of the petition in bankruptcy.

<p>Appeal from the Circuit Court of the United States lor the Southern District of New York. See, also, 137 Fed. 273.</p>