Volume 166 — Federal Reporter

<p>1. Master and Servant (§ 289*) — Injuries to Servant-Question for Jury.</p> <p>In an action for injuries to an engineer, whether plaintiff was informed by his conductor and believed that the train with which he collided was out of the way, and whether he was negligent in so believing, held for the jury.</p> <p>TEd. Note. — For other cases, see Master and Servant, Cent. Dig. § 1093; Dee. Dig. § 289.*]</p> <p>2. Negligence (§ 136*) — .Question of Law or Fact.</p> <p>Where there is uncertainty as to the existence of negligence or contributory negligence, the question is one of fact and not of law, whether the uncertainty arises from a conflict in the testimony or because fair-minded men might honestly draw different conclusions from the undisputed facts.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 130.*]</p> <p>3. Courts (I 372s*) — Federal Courts — State Laws as Rules of Decision-General Law.</p> <p>Whether a railroad engineer and his conductor are fellow servants will be determined in the federal courts as a question of general law only in the absence of statutory regulations of the state in which the action arises.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 977-979; Dec. Dig. § 372*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>4. Master and Servant (§ 182*) — Fellow Servants — Engineer and Conductor — Constitutional Provision.</p> <p>Const. S. C. art. 9, § lo, provides that every railroad employe shall have the same rights and remedies for any injury suffered by him from the acts or omissions of the corporation or its employes as are allowed by law to other persons not employes, when the injury results from the negligence of a superior agent or officer or of a person having the right; to control or direct the services of the party injured. Held, that, an engineer and conductor of a railroad train under such provisions are not fellow servants.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 871, 372; Dec. Dig. § 182.*</p> <p>Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 2S6.]</p> <p>5. Mastee and Servant (§ 245*) — Injuries to Servant — Operation oe Railroad — Rules.</p> <p>A railroad rule provided that a train should not leave its initial station on any division until it had’ascertained whether all trains due of a superior or the same class had arrived or left. Other rules regulating conductors made them responsible for the safe management of their trains and for the performance of duty by train emidoyós, with authority to suspend an employe for gross misconduct. They also required conductors to obey orders of station agents, to report to the train dispatcher for orders before leaving the initial station, to examine special order books for special orders, and to obey the same, etc. Other rules required engineers to obey orders of the conductors with respect to the general management of their trains, to start on proper signal, to comply with the rule prohibiting departure before knowing that other trains due had arrived or left, and to be responsible with the conductor for the safety of trains. Held, that under such rules an engineer and his conductor were not equally negligent in leaving a station prior to the arrival of a conflicting train of which they were notified by a train order, the conductor having ordered the engineer to proceed and informed him that the conflicting train was in.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 245.*]</p> <p>6. Master and Servant (§ 100*) — Injuries to Servant — Negligence—Contract.</p> <p>A railroad company may not contract with its employe's to exempt itself from liability for negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 106; Dec. Dig. § 100.*]</p> <p>7. Master and Servant (§ 180*) — Injuries to Servant — Constitutional Provisions — Rule.</p> <p>A railroad company cannot avoid Const. S. C. art. 9, § 15, providing that every railroad employe shall have the same rights and remedies for an injury suffered by him from the acts or omissions of the corporation or its employes as are allowed by law to other persons not employes, when the injury results from the negligence of a superior agent or officer or of a person having the right to control or direct, etc., by the adoption or promulgation of rules on such subject.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § ISO.*]</p> <p>Boyd, J., dissenting.</p>

<p>1. Carriers (§ 44*) — Perishable Freight — Refrigerator Cars — Ruts to Furnish.</p> <p>Where a carrier, having facilities for furnishing shippers of vegetables refrigerator cars in which to transport the same, which cars the carrier dirt not own as a part of its equipment, luid led plaintiff and other vegetable growers in the region to expect that, if they raised vegetables, refrigerator ears necessary for their proper transportation would be obtainable, plaintiff wa» entitled to recover damages sustained by the carrier’s refusal to furnish refrigerator cars for the transportation of plaintiff’s cabbages on reasonable demand.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122; Dec. Dig. § 44.*]</p> <p>2. GARRISES (§ 44*) “TRANSPORTATION FACILITIES — REFRIGERATOR CABS — REFUSAL to Furnish — Tender of Freight.</p> <p>AVhere plaintiff, owning a farm in a truck region, was induced to plant a large quantity of cabbages by assurance of defendant railroad company that refrigerator cars would be furnished to transport the cabbage to market, which it refused to do on reasonable demand, plaintiff was entitled to recover for unharvested cabbage which spoiled because of defendant’s refusal to furnish refrigerator cars, plaintiff after such refusal not being bound thereafter to tender the cabbage for shipment.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122; Dec. Dig. § 44.*</p> <p>Duties and liabilities of carriers as to furnishing facilities for transportation, see note to Harp v. Choctaw, O. & G. R. Co., 01 C. C. A. 414.]</p> <p>Waddill, District Judge, dissenting.</p>

<p>1. Quietistg Title (§ 12*) — Cloud on Title — Possession.</p> <p>Independent of a statute of a state where the land lies, a bill to remove a cloud on title will not lie where complainant is not in actual possession.</p> <p>[Ed. Note. — For other cases, see Quieting Title, Cent. Dig. § 8; Dec. Dig. § 12.*</p> <p>Necessity of possession in suits to quiet title, see note to Jackson v. Simmons, 39 C. C. A. 522.]</p> <p>2. Coubts (§ 371*) — Federal Coubts — Quieting Title — Effect or State Statute. ,</p> <p>Where by a local statute a bill will lie to remove a cloud on title independent of possession, such right may be enforced by a federal court of equity if some ground of federal jurisdiction appears.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 907, 973; Dec. Dig. § 371.*]</p> <p>3. Coubts (§ 303*) — Federal Coubts — Jurisdiction—State Statutes.</p> <p>Code T'enn. 1884, § 5043, giving Tennessee chancery courts jurisdiction in all matters of law except for nonliquidated damages, is ineffective to enlarge the equitable jurisdiction of the courts of the United States sitting in Tennessee, so as to justify them in trying cases justiciable in courts of common law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 902; Dec. Dig. § 363.*</p> <p>Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 O. G. A. 513.]</p> <p>4. Reformation of Instruments (§ 2*) — Mistakes—Nature of Relief.</p> <p>The remedy given by Act Tenn. Nov. 22, 1809, c. 101 (1 Scott’s Revisal, p. 1T92), authorizing the reformation of mistakes in deeds, grants, or other instruments where, by fraud, mistake, or accident, they do not speak the intention of the parties, by an action at law, is applicable whetlier the petitioners be in or out of possession, and the proprietors of Interests adversely affected, including the state, are barred if notice is given.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. § 2; Dee. Dig. § 2.*]</p> <p>5. Equity (§ 50*) — Statutory Remedies — Title to and Possession op Land.</p> <p>. Code Tenn. 1858, § 3231 (Shannon’s Code 1896, § 4972), providing that ejectment may be brought against the actual- occupant if any,, and, if none, against any person claiming an interest therein or exercising acts of ownership at the commencement of the action, does not oust the original jurisdiction of equity under such circumstances.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 148; Dec. Dig. § 50.*]</p> <p>6. Reformation op Instruments (§ 30*) — Equity Jurisdiction — Statutory Remedies.</p> <p>Act Tenn. 1809, c. 101 (1 Scott’s Revisal, p. 1192), authorizing the reformation by courts of law to give effect to deeds and grants so as to make them operate as valid conveyances of the land intended to be granted or conveyed without formal reformation by a court of equity, does not deprive equity of jurisdiction to reform grants containing a misdescription of the land intended to be conveyed, where the errors to be corrected do not appear on the face of the instruments and must be shown by evidence dehors.</p> <p>LEd. Note. — For other cases, see Reformation of Instruments, Cent. Dig- §§ 117, 118; Dee. Dig. § 30.*]</p> <p>7. Reformation op Instruments (§ 19*) — Description—“Mutual Mistake op Fact.”</p> <p>A mistake in a conveyance as to the subject-matter surveyed, superin-duced by ignorance of the true description of the land which the grantor intended to sell and the grantee intended to buy, when participated in by both parties, is a “mutual mistake of fact” which equity will correct.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-76; Dec. Dig. § 19.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4650-4651.]</p>

The following is the opinion of Buffington, Circuit Judge, in the court below: This case was before us on an application for a preliminary injunction, which, after argument, we refused. The proofs on final hearing disclose nothing substantially different or additional, and after argument and careful consideration, we see no reason to grant the decree and injunction now sought. While the record is large, the questions involved are within narrow limits.

<p>1. Insurance (§ 470*) — Marine Insurance — Abandonment — “Constructive Total Loss.”</p> <p>Under the American rule relating to marine insurance, a constructive total loss -with right of abandonment to the insurers exists where the damage is in excess of one-half of the insured value of the vessel or thing insured; but the right of abandonment, which must be exercised promptly in case of a disaster, does not depend on the certainty, but upon the high probability, of such loss.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent.'Dig. § 1192; Dec. Dig. § 470.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1475, 1476.]</p> <p>2. Insurance (§ 470*) — Marine Insurance — Abandonment.</p> <p>The right of an assured to abandon a vessel on the occurrence of a disaster must be determined as of the date of the abandonment, without regard to subsequent events, although they may be shown so far as they bear on the pre-existing state of the ship.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1192; Dec. Dig. § 470.*]</p> <p>3. Insurance (§ 470*) — Marine Insurance — Abandonment.</p> <p>An assured, cannot be required to abandon a vessel to the insurer, although the loss, actual and prospective, may exceed one-half the value fixed in the policy; but his right to abandon depends upon'the fact or high probability of such excess, and not upon what he may deem most to his advantage.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1192, 1193; Dec. Dig. § 470.*]</p> <p>4. Admiralty (§ 118*) — Appeal—Review—Findings oe Fact.</p> <p>The finding of an ultimate fact by the trial court in a suit in admiralty is not conclusive on appeal, but is entitled to much weight, and under conflicting testimony, with the witnesses testifying before the judge, will not be set aside, unless it clearly appears that it is either unsupported by the evidence or against the evidence.</p> <p>[Ed. Note. — For other eases, see Admiralty, Cent. Dig. § 770; Dec. Dig. § 118.*]</p> <p>5. Insurance (§ 470*) — Marine Insurance — Action on Policy— Evidence oe Constructive Total Loss.</p> <p>Upon the question whether there was high probability of a constructive total loss of a stranded vessel, which justified her abandonment to the insurers, the customary value of well-directed wrecking services performed in her attempted rescue may be considered, although by reason of the conditional contract under which they were rendered they were not required to be paid for.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1193; Dec. Dig. § 470.*]</p> <p>6. Insurance (§ 665*) — Marine Insurance — Abandonment.</p> <p>Evidence considered, and held to sustain a finding that there was a high probability that the loss, present and prospective, incident to the stranding of a vessel, would exceed half her insured value, and warranted her abandonment to the insurers.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1722; Dec. Dig. § 665.*]</p> <p>7. Trial (§ 56*) — Reception of Evidence — Discretion of Coijbt.</p> <p>The exclusion of opinion evidence which is merely cumulative is within the discretion of the court.</p> <p>L'E<1. Note. — For other cases, see Trial, Cent. Dig. § 133 ; Dec. Dig. § 56.*]</p> <p>8. Insurance (§ 536*) — Marine Insurance — Action on Policy — Condition PRECEDENT.</p> <p>Formal proof of loss is not essential to a recovery on a marine policy under an abandonment, where the right of abandonment is the only issue.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1323; Dec. Dig. § 536.*]</p> <p>9. Insurance (§ 612*) — Construction of Policy — Condition Precedent.</p> <p>in a policy of so-called “disbursement” insurance “against the risk of total or constructive total loss of the vessel only,” a provision that “a total and/or constructive total loss paid by insurers on hull to be a total loss under this policy” is not a limitation of liability, but merely a provision for simplification of proof in the case stated, and payment of a total loss by the hull insurers is not a condition precedent to a recovery on such policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1520; Dec. Dig. § 612.*]</p> <p>1,0. Insurance (§ 149*) — Construction of Policy — Printed and Written Portions.</p> <p>A provision in the printed form of a marine policy, adapted to a different kind of risk, that there should be no right of abandonment for a constructive total loss unless the loss should exceed 75 per cent, of the insured value, hold controlled by a rider which plainly, by reference to other policies, gave the right of abandonment if the loss exceeded one-half such valuation.</p> <p>[Ed. Note.- — For other cases, see Insurance, Cent. Dig. § 301; Dee. Dig. § 149.*]</p>

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

The appeal is from a final decree in a strike injunction suit. On the bill, supplemental bill, and showing in connection therewith, a temporary injunction was issued. Later, certain of the individual defendants were fowul to hare violated the temporary injunction, and were accordingly punished. Tiie pleadings, the temporary injunction, and the jietition and evidence in the contempt proceedings are all stated In AÍlis-Clialmers Co. v. Iron Holders’ Union (O. O.) 150 Fed. 155.

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

Petition to Superintend.and Revise, and Appeal from, the District Court of the United States for the Northern District of West Virginia, at Parkersburg. In the month of February, 1904, the Evansville Contract Company was duly adjudged a bankrupt, and the cause referred to George W. Johnson, referee.

This is an appeal from a decree of the United States Circuit Court for the Southern District of West Virginia, enjoining the appellants from using any part of a certain tract of land in the bill mentioned for the purpose of conducting thereon the whisky or saloon business, and from selling thereon intoxicating liquors.

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

<p>Petition for Revision of Proceeding of the District Court of the United States for the Western District of Pennsylvania.</p>

<p>1. Master and Servant (§ 286*) — Death of Servant — Miners—Negligence-» Question for Jury.</p> <p>In an action for death of a miner by the fall of loose rock from a hanging wall of the stope, evidence held to require submission to the jury of the question of defendant’s failure to properly timber and protect the wall.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 286.*]</p> <p>2. Master and Servant (§.278*) — Death of Servant — Cause of Accident.</p> <p>In an action for the death of a miner, the admission in defendant’s answer that decedent-was killed by rock falling from a hanging wall, in connection with proof that knowledge of the defective condition of the wall had been previously given to defendant’s superintendent and that he had failed to protect the wall, was sufficient to show that decedent’s death was caused by defendant’s failure to exercise reasonable care to furnish a reasonably safe place for decedent to work in, and that the cause of the accident was neither uncertain nor conjectural.</p> <p>.[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 278.*]</p> <p>3. Master and Servant (§ 235*) — Death of Servant — Unsafe Place — Changing Place.</p> <p>Where decedent was employed as a laborer in a mine to shovel muck at a designated place, without admonition that his action might occasion any dangerous consequences, and he was put to work 400 feet below the surface, with no provision of men, timber, or tools with which to make a repair if one became necessary, he was not employed to do work which necessarily changed the character of the place for safety, nor did he assume any obligation to keep the place in repair.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 711, 714; Dec. Dig. § 235.*]</p> <p>4. Master and Servant (§ 125*) — Death of Servant — Datent Defect.</p> <p>Where defendant knew or should have known of the defective or dangerous condition of the hanging wall of a mine by which decedent was killed, and had reason to believe that it might fall as the result of removal of accumulated muck, a contention that decedent was killed as the result of a latent defect was unsustainable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. § 125.*]</p> <p>5. Master and Servant (§ 288*) — Death of Servant — Assumed Risk.</p> <p>Decedent was killed while working in the stope of a mine by the fall of a portion of the hanging wall. He had never worked in the stope before having been taken by the night foreman to the top of a muck pile and directed to shovel down the muck into a chute as fast as the trammer required it. He was given no warning nor intimation that the walls were not safe, or that the customary precautions after the drawing of the muck had not been taken, and a little later was found covered with rock at about the place where he was set to work. He was furnished with only one candle to light the long, narrow, dark chamber, and the cracks and crevices in the wall were obscured by accumulated dirt. Held, that decedent did not assume the risk of such injury as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*]</p> <p>8. Master and Servant (§ 289*) — Death of Servant — Contributory Negligence.</p> <p>Where a miner was killed by the fall of material from an insufficiently protected wall of the mine, which was not sufficiently lighted, shortly after he began to work in the stope in which he was killed, and the defects In the wall were obscured both by darkness and accumulated dirt, decedent was not negligent as a matter of law.</p> <p>riBd. Note. — For other cases, see Master and Servant, Dec. Dig. § 289.*]</p> <p>,7. Appeal and Error (§ 263*) — Review—Inste actions — Exceptions.</p> <p>Instructions given cannot be reviewed where no exceptions are taken to the portions of the charge criticised.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 1516; Dec. Dig. § 203.*]</p> <p>8. Trial (§ 260*) — Instructions—Refusal of Requests.</p> <p>It is not error to refuse requests to charge substantially covered by the main charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*]</p>

The plaintiff in error sued the defendant for damages claimed to have resulted from his infidelity while acting as agent for her.

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

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

<p>Petition to Review and Revise an Order of the District Court for the Western District of Wisconsin.</p>

<p>Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>This is an appeal by Robert Smithson, a creditor, from a final order of the District Court sitting in bankruptcy, approving the report of the receiver, allowing fees and expenses, decreeing the amount of the Monarch Refrigerating Company’s lien on the property of the bankrupt, .and decreeing that Smithson had no lien.</p> <p>On October 5, 1904, Frank E. Roberts filed his voluntary petition and schedules in bankruptcy in the court below, and on the same day, on petition of a creditor, the appellee Emmerson was appointed receiver. The bankrupt Roberts was a wholesale dealer in butter and eggs, having his office in Chicago and his stock stored with various cold-storage warehouses in Chicago and throughout the United States, especially in various Eastern cities, upon which stocks warehousemen and others claimed liens for storage and advances. On the 11th day of October the receiver petitioned for authority to sell the various stocks, which were in their nature perishable, and out of the proceeds of sale pay the respective lienholders the amount of their respective claims, without prejudice to the right of any person interested in the estate to question the amount of said claims. Various creditors, including the appellant Smithson and appellee Monarch Refrigerating Company, by stipulation filed in the court below consented to the order which was entered directing the receiver to sell all stock “at public or private sale within his discretion, at current market rates, without notice,- and out of the proceeds * * ⅜ he shall pay to the several lienholders the prima facie amount of their respective claims” and hold the surplus subject to the further order of the court.</p> <p>On October 21, 1904, Robert Smithson, the appellant, filed a petition setting up a lien on the property of the bankrupt held in storage by the Monarch Refrigerating Company, claiming a lien to the amount of $30,000, but subject to the lien of the Monarch Refrigerating Company. The petition alleged, among other facts, the terms of the order of sale; that the property in Chicago held by the Monarch Company in storage was sold for $131,500; that' out of said sum the receiver paid the Monarch Company $129,757.62; that part of the property sold was poultry for the sum of $4,929.40, upon which the Monarch Company had no lien; that the several liens of the Monarch Company were upon specific car loads and lots of butter and eggs, and the property should have been sold in separate parcels to satisfy the respec-Uve liens, instead of en masse; and praying that in accordance with the terms of the stipulation and consent filed by the creditors, and the order of sale, said sum of $4,920.40 be paid Smithson on his alleged lien. The petition was answered by the Monarch Company, and the testimony was taken by the referee, who reported as a conclusion of law that the Monarch Company had liens to the amount of $126,570.65; that it had no lien as to $4,929.40, proceeds of sale of poultry, and therefore that amount should be refunded to the trustee; and that Smithson had no lien. This report was on hearing approved and confirmed by the court.</p> <p>All the property on which Smithson claimed a lien was in the actual possession of the Monarch Company as warehousemen ; and all the warehouse receipts or warrants representing such property had been deposited by Roberts with the Monarch Company, and the warehouse receipts or warrants, as well as the property represented by them, were in the actual possession of the Monarch Company as collateral security for the payment of a number of notes aggregating $129,757.62 for advances made by the Monarch Company to Roberts.</p> <p>The instrument on which Smithson bases his lien, after reciting the indebtedness of Roberts to Smithson represented by two promissory notes, proceeds as follows:</p> <p>“■Whereas as security for the payment of the above promissory notes I have this day assigned, transferred and set over to the said Robert Smithson the following named goods and chattels attached hereto marked ‘Exhibits A and 5 V and made a part hereof, but subject however to the rights, claims and liens of the Monarch Refrigerating Company for storage charges and loans made to me thereon.</p> <p>“Now in default of the payment of said notes or any part thereof at their maturity I do hereby authorize the said Robert Smithson, or his assigns, to sell and dispose of said security or any part thereof at public or private sale in his or their discretion, and in the event of said security or any part thereof depreciating in market value, I do hereby authorize said Robert Smithson or his assigns at his or their option to sell and dispose of said security or any part thereof at any time before or after the maturity of said notes, at either public or private sale, but subject, however, to the rights, claims and liens of said Monarch Refrigerating Company or its assigns, * ⅞ * and the proceeds of such sale or sales so made as aforesaid shall after the payment of all expenses and commissions attending said sale or sales be applied on said notes and the balance, if any, after the payment of said notes shall be returned to the undersigned. s ⅜ * ”</p> <p>Attached to the instrument, as Exhibits A and B, are lists of butter and eggs described by lot numbers, numbers of cases or packages, and amount advanced or loaned by the Monarch Company to Roberts on each lot.</p> <p>The fads found by the referee concerning the Smithson claim, which are uncontnutided in the evidence, are as follows:</p> <p>“A short time prior to the bankruptcy Smithson loaned the bankrupt $20,-000; he was liable also on a guaranty of the bankrupt’s paper for $10,000 more. On September 1, 1904, the date of the loan of $20,000. the bankrupt executed an instrument reciting the debt and the guarantee, and assigning to him (Smithson) certain of the butter and eggs described in a schedule which were in the Monarch warehouse subject to the claims of the Monarch Refrigerating Company, authorizing him to sell and dispose of the same, and, after repaying himself, turn over the balance, if any, to tbe bankrupt. As to whether there was a delivery is somewhat doubtful. It was agreed that notice should be given to the warehouse, and the paper was mailed by the bankrupt. By a mistake in addressing, it went to Boston, came back to the bankrupt's oiliee. and was carried on its return by a clerk to the warehouse. The officers of the warehouse, not understanding it, sent for the bankrupt. In the colloquy which ensued the secretary of the warehouse company declined to acknowledge the transfer unless Mr. Smithson would appear and arrange to assume the entire obligations of the bankrupt for which the company held the warehouse receipts. Thereupon the bankrupt pocketed the paper, saying, ‘Let it pass,’ and left. It seems nothing further was done concerning the Iransaction till after the bankruptcy.”</p> <p>Chapter 95, § 1, Rev. St. Ill. 1905 (Hurd), is as follows:</p> <p>“That no mortgage, trust deed, or other conveyance of personal property having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee, or the instrument shall provide for the possession of the property to remain with the grantor, and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall, for the purposes of this act, be deemed a chattel mortgage.”</p> <p>The instrument upon which Smithson bases his lien was not recorded, and,until after the bankruptcy, no notice was given by Smithson to the Monarch Company that he claimed a lien on the goods of which it held the actual possession, as also the actual possession of the warehouse warrants representing such goods.</p>

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

<p>Appeal from the District Court of the United States for the Eastern District of North Carolina, at Newbern.</p> <p>The appellant, master of the schooner Eva D. Rose, undertook to transport upon said vessel from the port of Baltimore, Md., to the appellees at Stonewall, N. (’., part of a cargo of merchandise, and, on the same voyage, certain other merchandise forming part of said cargo, shipped from Norfolk, Va. While en route from Norfolk, at Maw Point, near the mouth of Bay river, by reason of the alleged negligence and carelessness of the libelant, the vessel ran aground, and It became necessary to jettison part of the cargo, and oilier portions were, by agreement, taken off tlie schooner by the appellees. Upon being floated, she started on her journey, with the understanding that the residue of -the cargo was to be carried to Newbern, and placed in a bonded warehouse until certain controversies which had arisen between the master of the schooner and the appellees respecting the freight money and cargo could be settled. Instead of proceeding to Newbern, the vessel proceeded to return to Baltimore, for the purpose, now alleged, of taking the residue of the cargo back to the consignors; and on that return voyage she again ran aground at Ocracolce Inlet, whereupon the libel was filed for the recovery of the cargo, and for damages received by reason of the loss incident to the jettison, and failure to deliver the cargo. The vessel with the cargo thereon was taken possession of by the marshal on the 25th of September, 1806, and the appellant appeared and made claim for the vessel on the 10th of October, 1806. On the same day answer was duly filed to the libel, and on the 26th day of October the cause was referred to George Green, as examiner, for the purpose of- taking testimony and reporting the same to the court. The master duly made his report on the 16th of November, and returned the evidence, and thereupon, on the 19th day of November, a consent order was entered authorizing the marshal to deliver to the possession of the consignees, the merchandise on the vessel, and to surrender the vessel to the claimant, upon his giving bond in the penalty of $750. The bond, it seems, was not given, and the vessel remained in the custody of the marshal. On February 9, 1907, the lower court filed an opinion and decree in the cause, which in effect decided that by reason of the receipt of the goods by the li-belant, and the dealings between the parties respecting the same, the only two questions undetermined were whether there was a shortage in the delivery of the cargo as called for by the bills of lading, and the amount due the seamen who had intervened in the cause; that there was no satisfactory proof before the court as to the shortage, and that the seamen should be paid; and accordingly gave judgment in favor of the seamen, dismissed the libel, and directed that each party, other than the seamen, should pay their own costs. Subsequently, on the 14th day of February, 1907, the appellant filed a petition asking that the decree be reopened as to the question of the seamen’s wages, and on the same day an order was entered reciting that the amount decreed in ' favor of the seamen having been paid into court, with the costs, that the vessel should be released to the master; and on the same day the vessel was so released. On the 18th of February the court entered an order reciting that, “It appearing to the court that this cause was decided under a misapprehension of some of the facts, upon papers improperly filed after argument, and the master, W. O. Warren, files a petition to reopen the case as to the claim of the seamen for wages, and the libelants asking that the cause be further heard as to the receipt and discharge referred to as signed 26th day of November, 1906, it is ordered that the cause be reopened for further hearing as to the matters heretofore referred to, and any error in the opinion and decree herein filed;” and such hearing was set for Friday, February 22d. On that day a supplemental opinion and decree was filed in the cause, in which the court considered the effect of the agreement -of the 26th day of November, 1906, which it seems had not theretofore been before the court, and modified the court’s former ruling to the extent of placing the entire cost upon the respondent in the lower court, the appellant here, from which decree this appeal was taken.</p>

<p>1. Evidence (§ 388*) — Recoeds—Certified Comr — Effect.</p> <p>A certified copy of a record, by a public officer authorized to make it, not only vouches for its own correctness, but proves pilma facie the original to have been in the public office when the copy was made; an officer’s certificate being accorded the sanctity of a deposition.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1663; Dec. Dig. § 383.*]</p> <p>2. Aliens (§ 69*) — Naturalization—Declakation1 oe Intention — Cebtificate.</p> <p>An alleged copy of a naturalization record, showing that the applicant appeared before the officer and declared his intention to become a citizen of the United States and renounce his existing allegiance, certified to be a full, true, and complete transcript of the record as the same then remained in the office of the clerk making the certificate, and duly attested by the seal of the court, was not overthrown by the testimony of a deputy clerk seven years later that he had made a thorough search and was unable to find any such record, but ‘that the naturalization records of the court were very poorly kept.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. §§ 147-153; Dec. Dig. § 69.*]</p>

<p>1. Judgment (§ 720*1 — Conclusiveness—Mattek Concluded — Matteb in Issue — Habeas Corpus.</p> <p>Where, on habeas corpus to determine the legality of the restraint of Chinese persons alleged to have been apprehended while unlawfully attempting to enter'the country, the court determined that they had not in fact already entered at the time they .were arrested, and were therefore not entitled to a hearing after due complaint before a United States commissioner, without a corresponding right of appeal, such determination was res judicata in a subsequent similar proceeding sued out in a different federal jurisdiction, to which the petitioners were taken in custody of an inspector in alleged execution of the return mandate.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1251; Dec. Dig. § 720.*]</p> <p>2. Aliens (§ 31*) — Chinese Persons — Deportation—Chinamen Unlawfully Seeking, to Enter the Co'untry — Habeas Corpus.</p> <p>Under' commerce and labor rule 9, providing that every Chinese person refused admission to the United States, being actually or constructively on the vessel or other conveyance by which he was brought to a port of entry, must be returned to the country from which he came, at the expense of the transportation agency owning such vessel or conveyance; where the petitioning Chinese persons were apprehended in an attempt to unlawfully enter the country over the Canadian boundary, and were ordered to be dealt with according to law, an inspector had no right to take them to Hoboken, to deport them direct to China, but should have returned them to Canada.</p> <p>[Ed. No.te. — For other cases, see Aliens, Dec. Dig. § 31.*]</p>

The appellant, James A. Harris, sued Adam M. Hardridge, his wife, and others for the cancellation of a deed from the Hardridges conveying to two of their codefendants a tract of land in the Indian Territory, and for the specific performance of a contract by which the Hardridges agreed to convey the land to appellant. The trial court sustained defendants’ demurrer and dismissed the bill. The decree was affirmed by the United States Court of Appeals in the Indian Territory.

<p>Appeal from the District Court of the United States for the Southern District of New York.</p> <p>On appeal by respondent from a decree in favor of the libelant for $4,658.30 in an action upon a policy of marine insurance. The facts are set out, in extenso, in the opinion of the District Judge which is reported in 162 Fed. 379.</p>

<p>Evidence (§ 197*) — Comparison op Handwriting — Standard of Comparison.</p> <p>■While papers not otherwise competent cannot he introduced for the mere purpose of enabling the jury to institute a comparison of handwriting, yet if admitted.or proved to he genuine, and they are properly in evidence for oilier purposes, the handwriting thereof may be compared with the instrument in question, and its genuineness inferred therefrom.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 681 ; Dec. Dig'. § 197.*1</p>

535,463, granted to John Schroeder, March 12, 1895, for improvements in “means for operating washing machines.” The patent has been before the courts in the following cases: Schroeder v. Brammer (C. C.) 98 Fed. 880 (Shiras, J.); Brammer v. Schroeder, 106 Fed. 918, 46 C. O. A. 41; Benbow-Brammer Co. v. Simpson Mfg. Co. (C. C.) 132 Eed. 614 (Seaman.

<p>1„ Patents (§ 257*) — Rights of Patentee — Control of Pbice of Invention.</p> <p>The owner of a patent has the right to reserve to himself as a part of his monopoly the control of the price at which dealers may retail the patented product to users.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 257.*]</p> <p>2, Patents (§ 257*) — Rights of Patentee — Oontboi. of Peioe of Invention.</p> <p>The sufficiency of the printed notice on a patented article of the reservation by the owner of the patent of the right to fix the retail price at which it may be sold is immaterial in case of a dealer who had actual notice of the reservation and the established price.</p> <p>[Ed. Note. — For other eases, see Patents, Dee. Dig. § 257.*]</p>

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

<p>Appeals from the Circuit Court of the United States for the North-, ern District of Ohio. ;</p>

In Equity. Suit for infringement of letters patent No. 789,243,' for an amusement device, granted to William H. Strickler, May 9, 1905. On final hearing. The bill of complaint as finally amended is practically in the usual form for infringement and injunction, based on ietters patent of the United States No. 789,243, covering an amusement device. The answer raises no issue as to the existence or validity of the patent, nor as to the use of the alleged infringing device.

In Bankruptcy. This is a review of the decision of the referee upon the claim of Edwin H. Abbot for damages for an alleged unlawful taking of the premises by the receiver and trustee for the use of the estate. The bankrupts were in possession under a three years’ lease at a rental of $1,300 per annum, payable in monthly installments of $108.33. The lease had a year to run from the 1st day of May, 1907. The involuntary petition was filed March 30, 1907.

<p>In Equity.</p> <p>After the court had overruled the motion for an injunction pen-dente lite by a decree made by a majority of the judges, one of the judges dissenting, the complainants moved the court to certify the case to the Supreme Court. The motion having been argued, the court overruled the same.</p>

<p>Arrest (§ 71*)- — Money Taken i^rom Prisoner — Power of Court to Order Return.</p> <p>Where money taken from a prisoner on his arrest, and which was his property, after being used by the government as an exhibit on his trial, was by order of ihe court placed in the custody of the clerk, it remains under the control of the court, which may, on motion, order it delivered in accordance with the directions of the owner.</p> <p>[Ed. Note. — For other eases, see Arrest, Cent. Dig. § 175; Dec. Dig. § 71.*J</p>

<p>On Application for Reave to File Claim.</p>

<p>In Admiralty.</p> <p>Libel by the owner of the steamship Russian Prince to recover damages for Injuries sustained by said steamer by running aground in Newtown (¡reek on the afternoon of January 30, 1905. The steamer was chartered to the respondent the Munson Steamship Line for five months from January 16th, to carry cargoes between different ports in the United'States and South America. The charter provided that the charterer should provide and pay for, among other things, all pilotages and port charges. On January 30th, 1lie steamer, after discharging part of her cargo near the entrance to Newtown creek, was ordered by the charterer to proceed up the creek to discharge the remainder. The-charterer sent the stenmtugs Leader and Rambler to assist the steamer, and Fernald, the captain of the steamtug Leader, a licensed harbor pilot, wont on board the Russian Prince to act as pilot. The Russian Prince proceeded under her own steam, with the steamtug Leader attached to her bow by a hawser, and being drawn through the water by the movement of the steamer. The Rambler did not put out any line to the steamer until after the accident. While proceeding up the creek, the steamer ran aground.</p>

<p>1 Injunction (§ 105*) — Grounds of Relief — Criminal Prosecutions — Invalidity of Statute.</p> <p>Equity had no jurisdiction to restrain the officers of a state from taking steps to enforce Act Ga. Aug. 6, 1907 (Acts 1907, p. 81), prohibiting the manufacture and sale of intoxicating liquors within the state, and making the violation thereof a misdemeanor, on the ground that such act was not validly passed, and was in violation of the state and federal Constitutions; it not being shown by the bill that it was proposed by any of the defendants to take away any of complainants’ property, or interfere therewith.</p> <p>[Ed. Note. — Eor other cases, see Injunction, Cent. Dig. § 179; Dec. Dig. § 105.*</p> <p>Restraining criminal proceedings, see note to Arbuckle v. Blackburn, 51 C. C. A. 133.]</p> <p>2. Courts (§ 281*) — Jurisdiction—State and Federal Courts.</p> <p>Objections that Act Ga. Aug. 6, 1907 (Acts 1907, p. 81), prohibiting the manufacture and sale of intoxicating liquor within the state, etc., and making a violation thereof a misdemeanor, was violative of the state Constitution because its title contained two subjects, and that it was not properly passed, were matters primarily within the jurisdiction of the state courts.</p> <p>[Ed. Note. — For other cases, see Courts, Dee. Dig. § 281.*]</p> <p>3. Courts (§ 2S2*) — Fkdebat, Courts — Jurisdiction—Fedwiau Quhstion.</p> <p>An objection that Act (2a. A tig. 6, 1907 (Acts 1907, p. 81), prohibiting the manufacture and sale of intoxicating liquors, etc., and making a violation thereof a misdemeanor, was violative of complainants’ rights guaranteed by the federal Constitution, was available as a defense to a prosecution iii the state courts for violation of the act, .which could finally be determined by the United States Supreme Court on writ of error from the highest court of the state, and therefore was not ground of federal jurisdiction to restrain the enforcement of the act.</p> <p>¡Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 820, 824; Dec. Dig. § 282.*</p> <p>Jurisdiction of case involving federal question, see notes to Bailey v. Mosher, 13 C. 'C. A. 308; Montana Ore Purchasing Go. v. Boston & M. O. C. & 8. Mining Co., 33 C. G. A. 7J</p>

<p>1. Courts (§ 282*) — Jurisdiction or Federar Courts — Federad Question.</p> <p>.1 suit by a domestic corporation to restrain the collection of taxes imposed by the state on personal property alleged in the bill to have its situs for purposes of taxation in another state involves a federal question and is within the .-jurisdiction of a federal court, since the taxation by a state of property withput its Jurisdiction amounts to a talcing of the property of the owner without due process of law.</p> <p>[Ed. Note. — For other cases, see Courts, Dec, Dig. § 282.*</p> <p>Jurisdiction in cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purchasing Co. v. Boston & M. Consol. Copper & Silver Mining- Co., 35 C. C. A, 7.]</p> <p>2. Taxation (§ 169*) — 'Situs ojp Property — Pledge op Corporate Stooxs.</p> <p>A pledge by a Georgia corporation of stock owned by it in a corporation of another state to a Ñew York trust company to secure an issue of bonds, although the stock is delivered to the pledgee and transferred to it on the books of the issuing corporation, and the effect, under the statute of Georgia, is to vest it with the legal title, does not transfer the situs of such stock to New York for purposes of taxation, where the pledgor retains the equitable ownership with the right to vote the stock and receive the dividends thereon and to a retransfer on payment of its bonds,' but such stock remains taxable in Georgia to the pledgor, or to a transferee in that state which has succeeded to all of its rights.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 292; Dec. Dig. § 169.*]</p> <p>3. Taxation (§ 169*) — Shares in Foreign Corporation — Eíbfect op Taxation in State op Domicile.</p> <p>A state statute providing for the taxation in that state of the shares of all domestic corporations, wherever held, has no effect upon the right of another state in which shares of such a corporation are owned to tax the same.</p> <p>I La. Note. — For other cases, see Taxation, Cent. Dig. § 292; Dec. Dig. § 169.*]</p>

<p>.1. Carriers (§ 20*) — Carriers of Dive Stock —Twenty-Eight Hour LaW —“Willfully.”</p> <p>In Act June 29, 1906, c. 3594, § 3, 34 Stat. 608 (U. S. Comp. St. Supp. 1907, p. 919), known as the “28-hour law,” which prohibits carriers of live stock from keeping the same confined in cars, etc., for more than 28 consecutive hours without unloading for rest, water, and feeding, “unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight,” and imposes a penalty on any carrier which “knowingly and willfully” fails to comply with its provisions, the word “willfully” is not used as implying a vicious or evil intent, but as meaning intentionally or voluntarily.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. S 20.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7468, 7481, 7835, 7836.]</p> <p>2. Carriers (§ 211*) — Carriage of Live Stock — Violation of Act — Defenses.</p> <p>Failure of a railroad company to provide unloading stations, congested traffic conditions reasonably to be anticipated from past experience, and break downs en route resulting from negligent operation or omission to furnish properly equipped and inspected engines and cars are not such accidental or unavoidable causes as will relieve the carrier from liability for a violation of such act.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 211.*]</p> <p>3. Carriers (§ 211*) — Provision Relating to Sheep — Time of Confinement TTTTTORTZE'D</p> <p>Under Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibiting carriers of live stock from keeping the same confined for more than 28 consecutive hours without unloading for rest, water, and feeding except that upon the written request of the owner or person in charge the time of confinement may be extended to 36 hours, anfl nrovided “that it shall not be required that sheep be unloaded in the nighttime, but where the time expires in the nighttime in the case of sheep the same may continue in transit to a suitable place for unloading, subject to the aforesaid limitation of 36 hours,” the carrier is required to unload sheep within 28 hours, unless that period expires in the nighttime, and, in any event, within 36 hours.</p> <p>[Ed. Note. — For other eases, see Carriers, Dec. Dig. § 211.*]</p> <p>4. Carriers (§ 20*) — Penalty fob Violation — Separate Offenses.</p> <p>Under the penal clause of such law, each shipment of stock confined beyond the period prescribed in violation of its provisions constitutes a separate offense.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 20.*]</p>

<p>Rule for Contempt.</p>

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

<p>1. MORTGAGES (§ 134*) — CONSTRUCTION—TiTl.JÍ 03? MORTGAGOR — COVENANT THAT Mortgagor is “Owner” ot? Property.</p> <p>A covenant in a mortgage of real estate that the mortgagor is the “owner” is one that he is tlio absolute owner in fee simple.</p> <p>[Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 134.*]</p> <p>2. Corporations (§ 306*) — Liability op Directors to Third Persons— FRAUDULENT ItEPRESENTATTONS IN MORTGAGE.</p> <p>The sale by a corporation of Its bonds of an issue of $3,000,000 secured by a mortgage of lands described amounting to over 47,000 acres,, of which it covenanted that it was the owner when in fact it owned in. fee simple only 735 acres, was a fraud ou purchasers of the bonds which will support a suit against the officers of the corporation chargeable with such fraud.</p> <p>¡Ed. Note. — For other cases, see Corporations, Cent. Dig. i 1457; Dec. Dig. § 306.*]</p> <p>3. Equity (§ 51*) — Jurisdiction—Preventing Multiplicity oi? Suits.</p> <p>Equity has jurisdiction of such a suit brought by one holder of a small number of such bonds on behalf of itself and all other holders similarly situated, on the ground of preventing a multiplicity of suits, where the bill alleges that the bonds wore sold in the open market at prices averaging 00 per cent, of their par value, that the mortgage security is in fact insufficient to give them any market value, and that complainant bought in reliance on such fraudulent representations made in the mortgage, it being a fair inference from such facts that other purchasers did likewise.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 1G7; Dee. Dig. § 51.*]</p> <p>4. Corporations (§ 300*) — Liability op Directors — Action by Bondholders eoe Fraud — Defenses.</p> <p>Provisions in a mortgage executed by a corporation to secure an issue of bonds that no bondholder shall have the right to institute a suit thereon for any purpose unless demand shall have first boon made on the trustee' by the holders of at least one-fourth in amount of the bonds outstanding cannot preclude a bondholder from bringing suit on behalf of himself and all others similarly situated against the directors based on fraudulent rei>resentations made in the mortgage.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1457; Dec. Dig. § 306.*]</p> <p>5. Courts (§ 309*) — Jurisdiction op Federad Courts — Diversity op Oiti-zensiii p — Indispensable Parties.</p> <p>Where the real controversy in a suit in a federal court is between citizens of different states who are in court, inability to make service upon another party named by the complainant as a defendant, whose interest is merely ministerial, will not deprive the court of jurisdiction under Rev. St. § 737 (U. S. Comp. St. 1901, p. 587).</p> <p>rBd. Note. — For other cases, see Courts, Cent. Dig. § 857; Dec. Dig. § 309.*</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.]</p> <p>6. Equity (§ 94*) — Paeties — Defendants Who must be Joined —Suit Against Dieectoes of Coepoeation.</p> <p>To a suit in equity hy bondholders of a.corporation against the directors, to compel them to make good false representations made in the mortgage securing the bonds alleged to have been fraudulently authorized by them, the corporation is not an indispensable party defendant, and the fact that it cannot be brought into court in the district of suit in which the defendant directors reside, and refuses to appear voluntarily, will not deprive the court of jurisdiction to grant relief against the defendants served.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 252; Dec. Dig. § 94.*]</p>

<p>On Motion for Order.</p>

<p>1. Insurance (§ 452 *) — Accident Insubancb — Injuby “in Passenger Elevator.”</p> <p>An elevator was standing at the first floor of a building, with the door, which extended to the roof of the elevator, wide open, the attendant being elsewhere. The car was operated by a lever on the side wall to the right of one entering she door, and, while the elevator was stationary, this lever was in the center of its* arc of operation. Tn order to start the elevator it was necessary to push down a button at the center of the are, which permitted the movement, of the lever to the right or left. The elevator was in perfect condition, both before -and after the accident, which no one saw. The building superintendent found insured hanging bead downward into the elevator, tier body caught between the roof of the elevator and the floor of the building. One limb which had been caught at the thigh was projecting over the floor. When the elevator was released, insured fell into it on its floor. Held, that insured was “in” the elevator when the injuries were inflicted, within a policy insuring against accidental injury while “in” a passenger elevator.</p> <p>[Ed. Note. — Por other cases, see Insurance, Dec. Dig. § 452.*]</p> <p>2. Instjbance (§ 529*) — Accident Policy — Extent on Liability.</p> <p>An accident policy insured D. according to a schedule providing that the principal sum for the year was $5,000, with 5 per cent, increase annually for 10 years (afterwards changed to 10 per cent, annually for 5 years) until it amounts to $7,600, each consecutive full year’s renewal to add 5 per cent, (afterwards 10 per cent.) to the principal sum of the first year, until such additions shall amount to 50 per cent., and thenceforth, so" long as the policy is in force, the insurance shall be for the original sums plus the accumulations. Attached to the policy was a rider insuring H. “as specified in the following schedule” to the amount of the original principal sum of the policy to which the supplement was attached. Held, that the limit of indemnity recoverable for the accidental death of H. ivas $5,000.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 529.*]</p> <p>3. Insurance (§ 623*) — Accident Policy — Actions—Time—Waiver—Denial ob Liability.</p> <p>A provision of an accident policy that no action thereon shall be Drought until three months after receipt of proofs of death at the home office of the company is waived by the insurer’s denial of liability.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1551; Dec. Dig. § 623.*]</p>

<p>Memoranda of Decision on Demurrer to Petition.</p>

This is an appeal from the final decree entered in the two above consolidated causes on the 21st of January, 1907. The subject-matter involved in the suits was the property of the Southern Sawmills & Lumber Company.

<p>1. Courts (§ 272*) — Federal Courts — Jurisdiction—Venue.</p> <p>A bill to obtain an injunction against various interstate carriers, who were nonresidents of the district, to restrain them from putting into effect an advance of rates for carriage of commodities in interstate commerce through a large area embracing parts of several different states, charging that the carriers were members of a freight association organized and maintained under agreements to constitute an illegal combination in restraint of. trade and fostering a monopoly, etc., presented for. necessary consideration the proper construction of the federal interstate commerce act, so that the court’s jurisdiction did not rest solely on diversity of citizenship, of the parties, and hence the federal Circuit Court in the district of complainants’ residence had no jurisdiction to-compel the defendants to answer over their objection.</p> <p>TEd. Note. — For other cases, see Courts, Cent. Dig. § 811; Dec. Dig. § . 272.*]</p> <p>2. Commerce (§ 89*) — Interstate Commerce Commission — Jurisdiction of Courts Funding Proceedings.</p> <p>The Interstate Commerce Commission having been given exclusive jurisdiction in the first instance to determine the reasonableness of interstate rates by Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 879 [U. S. Comp. St. 1901, p. 3154], as amended by Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1907, p. 892]), shippers cannot maintain a suit in equity to prevent the filing or enforcement of a schedule of rates, or a change to unjust or unreasonable rates, pending determination of the reasonableness thereof by the Commission.</p> <p>[Ed. Note. — For other eases, see Commerce, Dec. Dig. § 89.*</p> <p>Jurisdiction of federal courts of suits under interstate commerce act, see note to Bailey v. Mosher, 11 O. O. A. 318.]</p> <p>Shelby, Circuit Judge, dissenting.</p>

<p>1. Malicious Prosecution (§ 49*) — Actions — Pleading — Allegation OS' Want of Probable Cause.</p> <p>A complaint which by - clear averment charges that defendant maliciously, and without any reasonable or probable cause whatever, caused jilainiiff to be prosecuted, states a good cause of action, notwithstanding the fact that it contains a recital or averment that in the course of the prosecution plaintiff was bound over by an examining magistrate.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 49.*]</p> <p>2. Malicious Prosecution (§ 49*) — Actions —Pleading —Allegation of Want of Probable Cause.</p> <p>The fact that a magistrate bound over a person charged with a criminal offense is only prima facie evidence of probable cause, and a complaint in an adieu for malicious prosecution need not allege that such action was the result of fraud, perjury, or other unfair means in order to negative its effect and state a cause of action.</p> <p>[Ed- Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 49.* 1</p> <p>8. Malicious Peosecution (§ 49*)— Actions — Pleading ~ Allegation or Want of Pkobable Cause.</p> <p>Under Mills' Ann. St. Rev. Supp. Colo. § 1432, which authorizes prosecutions for criminal offenses to he insfitututed by information filed by the district attorney as well as by indictment, but' provides that unless the accused has had a preliminary examination some credible person must make and file an affidavit showing that the offense was committed, the filing of such an information is prima facie evidence that there was probable cause for the prosecution, the same as an indictment by a grand jury; but a complaint in an action for malicious prosecution which shows the filing of such an information need not aver that it was procured by fraud or other unfair means in order to state a cause of action.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Dec. Dig. § 40.* |</p> <p>4. Malicious Peosecution (§ 47*) — Actions — Pleading — Instigation or Pkosecution — “Causing” Peosecution.</p> <p>In an action for malicious prosecution, an allegation in the complaint that defendant “caused” the affidavits charging the offense to be filed, and plain!iff to be arrested and prosecuted therefor, is a sufficient charge that defendant initialed the prosecution and is responsible therefor.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 91; Dec. Dig. I 47.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1009-1012; vol. 8, pp. 7597-7598.1</p> <p>5. Malicious Peosecution (§ 3*)' — ■ Grounds oe Liability — Instigating Peosecution.</p> <p>One who by affidavit or otherwise induced a district attorney to file an information charging a person with crime is liable for malicious prosecution if the action was malicious and without reasonable or probable cause.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 3; Dec. Dig. § 3.*]</p> <p>Philips, District Judge, dissenting.</p>

This was a suit at law to recover on two policies of fire insurance executed by the insurance company, defendant below, one for §3,500, under date December 27, 1906, insuring plaintiff’s building and machinery therein in process of construction against loss by fire until June 27, 1907, the other for §2,-500, dated January 17, 1907, insuring the machinery alone against loss by fire until July 17, 1907.

The following is the report of Thayer, Referee: This claim is made upon two promissory notes which are in the following form: “§10,000. Yonkers, N. Y., Jan. 14, 1901. “Seven months after date T promise to pay to the order of myself ten thousand oo/loo dollars, at the Westchester Trust Company, in tho city of Yonkers, with interest. “Value received. No. --. Due Aug. 14. L. R. Dickson.” Indorsed; “L. R. Dickson. Andrew Deyo. E. Russell Coles. N. Lawrence.

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

<p>1. AlTEAL A3D Error (§ 927*)”DISMISSAL — RE’S" iew.</p> <p>In reviewing a .lodgment dismissing plaintiffs' complaint over their objection before plaintiffs’ testimony had closed, it must be assumed that plaintiffs, if permitted to proceed, would have established that which they alleged, unless negatived by their evidence or admissions on the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. § 927.*]</p> <p>2. Monopolies (§ 16*) — Restraint of Trade — Foreign Commerce — 1“COMBINA-TION IN RESTRAINT OF COMPETITION.”</p> <p>A combination of shipowners to prevent competition between members by maintaining uniform freight rates in South African trade, and to eliminate the possibility of competition with other lines by requiring shippers to pay forfeit money in case they patronized other lines, constituted a combination in restraint of competition and foreign commerce, in contravention of the federal anti-trust statute.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 12; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1275; vol. 8, p. 7606.]</p> <p>3. Monopolies (§ 12*) — Restraint of Trade — Reasonableness.</p> <p>In an action to recover treble damages caused by an unlawful combination in restraint of foreign commerce, in violation of the federal antitrust statute, whether the restraint of trade caused by the combination was reasonable or unreasonable was immaterial.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>4. Monopolies (§ 12*) — Restraint of Foeeign Commeece — Continuing Combinations..</p> <p>Where a combination in restraint of foreign commerce was continuing, it was not material to plaintiff’s right to recover treble damages sustained thereby, under the federal anti-trust act, whether the combination was entered into before or after plaintiffs commenced business, it being equally unlawful to prevent a person from engaging in business as to drive a person out of business.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>5. Monopolies (§ 12*) — Foeeign Commerce — Place of Combination.</p> <p>Where a combination in restraint of foreign commerce, in violation of the federal anti-trust act, was put in operation in the United States and affected her foreign commerce, it was not material to a suit by a person injured thereby that it was formed in a foreign country.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*]</p> <p>6. Monopolies (§ 28*) — Restbaint of Foreign Commeece — Complaint—Damages.</p> <p>Where a complaint, under the federal anti-trust act, to recover treble damages for a combination in restraint of foreign commerce, alleged that plaintiffs were coerced by defendants’ unlawful combination to pay a sum in addition to a reasonable freight rate, which was held subject to forfeiture in case plaintiffs shipped by other lines or their consignees received freight by other lines, and also contained general allegations of damage, it sufficiently alleged that plaintiffs had suffered damage by a violation of the act.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 18; Dec. Dig. § 28.*]</p>

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

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

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

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

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

<p>Petition to Review and Revise a Decree of the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p>

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

<p>Costs (§ 32*) Bull oí’ Review — Effect of ModificatioN of Former Decree —Costs.</p> <p>In a suit for infringement of trade-mark the vital issue was as to defendant’s right to use on pencils the name “Faber,” which was his own name, in connection with one or the other of certain names or initials as prefixes, and on such issue he prevailed; a decree dismissing the bill and awarding him costs being entered on mandate from the Circuit Court of Appeals. Subsequently the complainant asked for and obtained leave to file a bill of review for a modification of the decree awarding an injunction against the use by defendant of the name “Faber” alone, and such modification was made. Held, that it did not authorize the Circuit Court to require defendant to repay the costs received under the prior decree; his right to use the name alone not having been contested in the original litigation, nor, so far as appeared, claimed by him.</p> <p>[Ed. Note, — For other cases, see Costs, Dec. Dig. § 32.*]</p>

<p>1, Masteb AND Servant (⅜§ ¡ KÍ, 217*) — Injuries to Sis,kvart — Dangerous Structures — Assumed IOsas.</p> <p>The building and maintenance by a railroad company of a structure so near its track that it is likely to strike a brakeman riding on t.op of a passing car in the course of his duly is negligence per se, and a trainman does not assume the risk of injury from such structure merely because he knows of its existence and general location.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 224-227, 574-000; Dec. Dig. ⅜§ 112, 217.*]</p> <p>⅞ Master arb Servant (§ 2GT-) —Action fob Injury to Sebvant-Cause of INJURY — 'SUFFICIENCY OF KVIDERCE.</p> <p>Whore a railroad company maintained a water spout attached to a tank which hung so low over passing cars as not to clear a person standing thereon, evidence that a brakeman, after being on a car passing such tank, was found lying by the track injured, is sufficient to justify a finding that he was injured by such spout.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908; Dec. Dig. § 2Sia.'*J</p>

<p>Appeal from, and Petition for Revision of Proceedings in, the District Court of the United States for the Southern District of New York.</p>

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

<p>1. Patents (§ 90*) — Persons Entitled to Patents — Priority Between Pat-entees — Date oe Invention.</p> <p>When two patents for the same invention have been issued to independent inventors, the dates of their respective inventions are determined by (1) the dates of the patents; (2) the dates of the application, provided the application sufficiently describes the invention; (3) the dates of actual reduction to practice; (4) the dates of conception, with this qualification: that if either patentee seeks to carry the date of his invention back to the date of his conception, he must show reasonable diligence in adapting and perfecting his invention, either by actual reduction to practice or by filing his application.</p> <p>[Ed. Note. — For other cases,, see Patents, Cent. Dig. § 113; Dec. Dig. § 90.*]</p> <p>2. Patents (§ 90*) — Priority Between Patentees — Date oe Invention.</p> <p>The date of a patented invention is at least as early as the date of the application, provided it sufficiently describes the invention to enable those skilled in the art to understand it, such application being conclusive evidence that the invention is perfected and adapted to use, and the equivalent of an actual reduction to practice under the statute.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 116; Dec. Dig. § 90.*]</p> <p>3. Patents (§ 90*) — Priority Between Patentees — Nature oe Patentable Invention.</p> <p>A conception of an invention, evidenced by disclosure, drawings, and even a model, is not a complete invention under the patent laws, and confers no rights on an inventor, and has no effeit on a subsequently granted patent to another, unless he follows it with reasonable diligence by some other act, such as an actual reduction to practice or filing an application for a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 116-117; Dec. Dig. § 90.*]</p> <p>4. Patents (§ 113*) — Priority Between Inventors — Evidence of Diligence — • Decision of Patent Office.</p> <p>Upon the question of fact whether one who conceived an invention and made drawings and a disclosure to others of the same was reasonably diligent in adapting and perfecting the same, the decision of the Patent Office tribunals and 1he Supreme Court of the District of Columbia in interference proceedings to which he was a party is entitled to great weight, if not absolutely controlling, in subsequent litigation between the same parties.</p> <p>[Bd. Note. — For other cases, see Patents, Cent. Dig. § 161; Dec. Dig. § 113.*]</p> <p>5. Patents (§ 90*) — Priority Between Inventors — Date of Invention.</p> <p>If. conceived an invention of an improvement in a machine, and made a drawing thereof which he exhibited to another in January, 1896. In January, 1897, he completed working drawings from which a machine was finished in the following April. In 1898 he filed an application on which a patent was granted in 1899. In the meantime, in December, 1896, T., an independent inventor, filed an application for a patent for the sanie machine, on which a patent was granted in 1.904. Hold, that W. did not use such reasonable diligence in perfecting and adapting his invention as to entitle Mm to carry the date of invention back to the time of its conception and disclosure, nor back of the date when he reduced it-to practice by completing his machine; that the date of TVs invention was the time of his application, and he was therefore the first and original inventor in the sense of the patent law, and his patent was valid.</p> <p>¡Ed. Note. — For other cases, see Patents, Cent. Dig. § 115: Dec. Dig. § 5)0.'*1</p> <p>6. Patents (§ 328*) — Validity and Infringement — Automatic Weighing Machine.</p> <p>The Thomas patent No. 766,004, for improvements in automatic weighing machines, held not anticipated, valid, and Infringed.</p> <p>I Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

On appeal and cross-appeal from a final decree overruling exceptions to the report of the master and awarding the complainant $180 damages for the infringement of the first three of the five claims of letters patent No. 429,874, granted June 10, 1890, to G. N. Williams, Jr., for an improvement in diamond stone-sawing machines. The opinion sustaining the validity of the patent is reported in 130 Fed.' 896, affirmed 137 Fed. 910, 70 C. C. A. 248.

This is a bill to enjoin infringement of a patent granted to Frederick J. Warren for “a new and useful improvement in street pavements.” The patent was issued May 5, 1903, and bears the serial number 727,505. Upon the pleadings and proof the bill was dismissed, and the complainants below have appealed. The Barber Asphalt Paving Company, having constructed the alleged infringing pavement for the city of Owosso, has appeared and assumed the entire burden of defense.

<p>In Equity. Suit for infringement of letters patent No. 38,412, for a design for a hatband, granted January 15, 1907, to Isaac hidden-stein. On final hearing.</p>

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

<p>Patents (§ 328*) — Infringement—Amusement Apparatus.</p> <p>The Hagen patent, No. 738,434, for improvements in amusement apparatus, hold not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ :’28*) — -Inmungemunt--Tnrnr. CdumsGS.</p> <p>The Bradley patent, No. 000,028, for a thill coupling, held infringed on motion for a preliminary injunction.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>At Law. Motion by defendant for judgment notwithstanding the verdict.</p>

<p>At Law. On motion to take off nonsuit. Sustained.</p>

<p>1. Receivers (§ 110*) — Duty of Court — Protection of Railroad Employés.</p> <p>When the owners of a railroad seek the assistance of a court for the protection of their property through the appointment of a receiver, it is the duty of the court, pending the receivership, to do justice to every honest employe connected with the properties, and to prevent, if need be by peremptory judicial orders, oppression, injustice, and wrong even to the humblest. This is especially true where the receiver has often invoked and obtained similar action to protect the properties from injury on the part of employés.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 195; Dec. Dig. § 110.*]</p> <p>2. Receivers (§ 116*)- — Duty of Courip — Protection of Railroad Employés.</p> <p>Where a railroad conductor of blameless character, who had compromised a suit against the railroad for injuries he had sustained in attempting to save the life of a passenger, and, in consideration of such compromise, had a written agreement with the road that he should be permanently retained in his position as conductor, is charged, upon the unsupported testimony of detectives of doubtful credibility, with the gravest criminal offense, and without a chance to defend himself is peremptorily thrown out of his position and means of livelihood by the receivers, it is in the discretion of the court, and its duty, to order that his office be restored to him.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. § 203; Dec. Dig. § 116.*]</p> <p>(Syllabus by the Court.)</p>

<p>Bankruptcy (§ 896*)— Exemptions — Pension Money ™“Inure Wiioluy to THE BENEHT OF THE PENSIONER.”</p> <p>Rev. St. § 4747 (U. S. Comp. St. 1901, p. 8279), provides that no money due to any pensioner shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the Pension Office, or any officer or agent thereof, or is in the course of transmission to the pensioner entitled thereto, but shall “inure wholly to the benefit of such pensioner.” Held, that the words quoted meant only that tlie pension funds should be protected until they had come safely into the hands of the pejnsioner, after which they were liable for his debts; and hence pension money, in the hands of a bankrupt at the time of the adjudication, neither invested nor mingled with other funds, was not exempt.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 657; Dec. Dig. § 396. *1</p>

<p>1. Courts (§ 3(5(1*) — Federal Courts — State Laws as Rules of Decision-Service of Process.</p> <p>The decision of the Supreme Court of Nebraska that Code Civ. Proe. Neb. § 75, relating to the service of process on corporations, applies to both foreign and domestic corporations, is binding on the federal courts if the .service obtained in pursuance thereof constituted due process of law.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 957; Dec. Dig. § 3G6.*</p> <p>State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]</p> <p>2. Judgment (§ 17*) — Process to Sustain Judgment — Determination of Sufficiency.</p> <p>Where the judgment roll contains the sheriff’s return of service of process, such return, and not a recital of due service in the judgment, will control in determining wliother the court acquired jurisdiction to sustain tlie judgment.</p> <p>TEd. Note.- — For other eases, see Judgment, (lent. Dig. § 25; Dec;. Dig. ⅜ 17.*]</p> <p>8. CoepoRations (§ 665*)- -Foreign Corporations — A otions.</p> <p>At common law, a state court cannot by any method acquire jurisdiction to render a personal judgment against a foreign corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. I 2599; Dee. Dig. § 605.*]</p> <p>4. Corporations (p 60S)*) — Foreign Corporations — Process—Appearini,i;.</p> <p>A corporation of one state may be required to appear personally, or to respond to such method of service of process as another state may require as a condition of its right to do business in the latter, so long as the method prescribed constitutes due process oí law.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2611; Dec. Dig. § 669.*</p> <p>Service of process 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>5. Corporations (§ 668*) — Foreign Corporations — Process.</p> <p>The requirements of a state law as to service of process must be followed strictly to give jurisdiction to render a personal judgment against a foreign corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2620; Dec. Dig. § 668.*]</p> <p>6. Corporations (§ 668*) — Foreign Corporations — Process —“Managing Agent” — ‘ ‘Generar Agent. ’ ’</p> <p>Code Civ. Proc. Neb. § 73, provides that, when a defendant is a foreign corporation having a managing agent in the state, personal service of process may be liad on such agent. Section 75 authorizes service on the managing agent of any corporation if certain officers are not found in the county. HeUJ, that a return of service on a “general agent” of a foreign corporation does not show a compliance with either section; a “managing agent” being one who manages or controls the corporate business in the state, and “general agent” not being an equivalent term.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. ⅜ 2611; Dec. Dig. § 668.*</p> <p>For other definitions, see Words and Phrases, volt 4, pp. 3048-3051; vol. 5, pp. 4320 -4323.]</p> <p>7. Corporations (§ 60S*) — Foreign Corporations--Process™ “Managing Agent.”</p> <p>One who succeeded to the business of a firm, and in its name corresponded and maintained business relations with a foreign corporation without its ever having heard of him, he renting and maintaining his own office. and merely transferring to the corporation bucket-shop business which he was unwilling or unable to handle, was not its managing agent, within Code Civ. Proc. Neb. §§ 73, 75. authorizing service of process on such an agent.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2611; Dec. Dig. § 668.*]</p>

<p>1. Criminal Daw (§ 196*) — Autrefois CoNvrcT — Similarity of Offenses.</p> <p>Where petitioner was convicted and served a term for breaking and entering a building used as a post office on December 12, 1904, with intent to commit larceny therein, and on his discharge was immediately arrested on an indictment in the state court, charging that on the same day he unlawfully, etc., entered the private office of A. and did feloniously take, steal, and carry away therefrom $700 in money, $800 in postage stamps, and other valuable papers and checks of the value of $37, the property of A., but there was nothing to indicate that such property was or might be the property of the government, there was no such similarity of offenses as to entitle accused to release on habeas corpus.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 384; Dee. Dig. § 196.*]</p> <p>2. Criminal Daw (§ 95*) — Offenses Against United States — Jurisdiction.</p> <p>Under Rev. St. § 711 (IJ. S. Comp. St. 1901, p. 577), giving federal courts exclusive jurisdiction of all crimes and offenses cognizable under the authority of the United States, and section 5456 (U. S. Comp. St. 1901, p. 3683), declaring that every person who robs another of any kind or description of personal property belonging to the United States shall be punished, etc., an indictment charging the felonious entry of the private office of A., from which defendant feloniously stole certain moneys, postage stamps, and other valuable papers and checks, was not within the jurisdiction of the state court, if the property stolen was in fact the property of the United States.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 167;' Dec: Dig. § 95.*]</p> <p>3. Habeas Corpus (§ 45*) — Federal Courts — Jurisdiction.</p> <p>Under Rev. St. §§ 751, 752 (U. S. Comp. St. 1901, p. 592), authorizing the federal courts and justices or judges thereof within their respective jurisdictions to issue writs of habeas corpus to inquire into the cause of restraint of liberty, a ■ Circuit .or District Court or judge has jurisdiction in its or his discretion on habeas corpus to inquire into cause of restraint of one held under process of a state court and to discharge him if he is held in violation of the Constitution or laws of the United States.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 43, 44: Dec. Dig. § 45.*</p> <p>Jurisdiction of federal courts, see note to In re Huse, 25 C. C. A. 4.]</p> <p>4. Habeas Corpus (§ 45*) — Federar Courts — Prisoner Herd Under State , Process.</p> <p>A federal court or judge will not ordinarily discharge a prisoner held under process of' a state court in violation of the. Constitution and laws of the United States in advance of his trial in the state court, unless some exceptional circumstances or emergency exists demanding prompt action.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dee. Dig. § 45;* Courts, Cent. Dig. §§ 3376-1385.]</p>

In Equity. This suit was originally commenced against John Reese with a view to the setting aside of a patent issued in that name by the government of the United States to the southeast quarter of section 5, township 11 south, of range 7 east, W. M., in Linn county, Or., on the ground that the same was obtained by fraud. The complainant treats John Beese as an actual personage, and as having participated in the alleged fraud.

<p>1. Railroads (§ 229*) — Interstate Traffic — EqmpMENa^-RE&uLATioN.</p> <p>The duty imposed on interstate carriers by Act Cong. March 2, 1893, c. 196, § 2, 27 Stat. 531 (U. S, Comp. St. 1901, p. 3174), prohibiting any such carrier to haul or permit to be hauled or used on its line in interstate traffic any car not equipped with automatic couplers, requires the carrier, not only once to equip a car used in interstate traffic with such coupler, but to keep it so equipped. .</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*</p> <p>Duty of railroad companies to furnish • safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Commerce (§ 33*) — “Interstate Commerce.”</p> <p>If merchandise ⅛ consigned from one point in a state to another point in file same state, hut is, during transit, carried through a portion of another state, the transaction constitutes “interstate commerce,”</p> <p>I Ed. Note. — For other cases, see Commerce, Cent. Dig. § 20; Dec. Dig. § 33.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]</p> <p>3. Commerce (§ 27*) — Safety Appliance Acts — Construction.</p> <p>Act Cong. March 2, 1903, c. 970, 32 Stat. 943 (TJ. S. Comp. St. Supp. 1007, p. 883), declaring that its provisions and those of Act March 2, 1893, c. 196, 27 Stat. 331 (U. S. Comp. St. 1901, p. 3174), and Act April 1, 1890, c. 87, 29 Stat. 83, relating to train brakes, automatic couplers, grab irons, etc., shall apply to ail trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, does not apply to a car not shown to have been ever used or to be intended for use in interstate commerce; Congress having no power to regulate equipment not used or intended to be used in interstate commerce, merely because it may be used on a railroad engaged in interstate commerce.</p> <p>[Ed.. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>4. Commerce (§ 27*) — Interstate Commerce — Regulation.</p> <p>A railroad company, by engaging in interstate commerce, does not thereby submit all its business concerns to the regulating power of Congress.</p> <p>I Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 37.*]</p> <p>5. Commerce (§ 27*) — Interstate Commerce — Trains.</p> <p>A train, composed of cars some of which are and some of which are not engaged in interstate traffic, is subject to the regulation of Congress; all the cars in the train being required to comply with the safety appliance acts being Act March 2, 1893, c. 196, 27 Stat. 531 (TJ. S. Comp. St. 1901. p. 3174). Act April 1, 1896, c. 87, 29 Stat. 85, and Act March 2, 1903, e. 976, 32 Stat. 943 (IT. S. Comp. St. Supp. 1907, p. 885).</p> <p>I Ed. Note.- — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p>

<p>Motion by Defendant for Judgment Notwithstanding the Verdict.</p>

<p>Motion by Defendant for Judgment Notwithstanding the Verdict.</p>

<p>At Law. Overruling motion and reasons for a new trial.</p>

<p>1. ATTORNEY AND CLIENT (§ 166*) — ACTION EOR SERVICES — EMPLOYMENT—EVIDENCE.</p> <p>Evidence in an action for services held sufficient to sustain a finding that plaintiff was employed as attorney for defendant insurance company to obtain for it a New Tork charter.</p> <p>[Ed. Note. — Eor other cases, see Attorney and Client, Dec. Dig. § 166.*]</p> <p>2. Corporations (I 388*) — Employment Contract — Ultra Vires.</p> <p>Plaintiff, having been employed in good faith as attorney for defendant insurance company to obtain for it a New York charter, carried out the contract of employment to the satisfaction of his employers at considerable expense. to him; defendant’s officers having knowledge of the employment and of the work plaintiff performed which was satisfactory. Held, that ultra vires was no defense to an action for plaintiff’s services, under the rule that where a party has made a contract with a corporation and has fully performed it, the corporation will be estopped to plead that it had no power so to contract, or that it was prohibited from so doing.</p> <p>[Ed. Note.- — Eor other cases, see Corporations, Cent. Dig. §§ 1536-1561; Dec. Dig. § 388.*]</p> <p>3. Corporations (§ 388*) — Action eor Services — Ultra Vires. .</p> <p>Except in cases where the rights of the public are involved, the plea of ultra vires will not prevail, whether interposed for or against the corporation, when it will not advance justice, but will accomplish a legal wrong.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1556-1567; Dec. Dig. § 388.*]</p>

<p>1. Seamen (§ 34*) — OmrENSES—“Desertion”—Intent.</p> <p>AVhere a seaman left a vessel by permission, got drunk, was arrested and imprisoned for 20 days, which prevented his return to his home port with the vessel, but there was nothing to indicate that he had an intention, when he went ashore, not to return, he was not guilty of desertion, which is the unlawful and willful abandonment of a vessel during a voyage with an intention not to return to duty, a quitting of the ship and her service, not only without leave and against the duty of the party, but with an intent not to return.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. § 225: Dec. Dig. § 34.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2024.]</p> <p>2. Seamen (§ 21*) — Wages—Fines—Desertion.</p> <p>Where a seaman was guilty of misconduct in leaving a vessel without permission and in refusing to work the cargo as he agreed in his shipping articles, and such offenses and fines therefor were duly entered in the logbook against him as required by Rev. St. § 4596, as amended by Act Dee. 21, 1898, c. 28, § 19, 30 Stat. 760 (ü. S. Comp. St. 1001, p. 3113), such fines might be properly deducted from his pay.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. §§ 104-107; Dec. Dig. § 21.*]</p> <p>3. Seamen (§ 21*) — Wages—Forfeitures—Absence from Ship — Damages.</p> <p>AVhere libelant and two oí his shipmates failed to return to the ship after leave, in accordance with their duty, and the captain was required to spend $12 in excess of what it would have cost him if libelant and his mates had returned, libelant was chargeable in an action for wages for one-third of such sum.</p> <p>[Ed. Note. — For other eases, see Seamen, Cent. Dig. §§ 100-107; Dec. Dig. § 21.*]</p> <p>4. Seamen (§ 26*) — Action for Wages — Costs.</p> <p>Where libelant, a seaman, was left in an intermediate port because incarcerated for drunkenness during shore leave, and on his return to the home port, without calling on the captain for his wages, he instituted suit in forma pauperis and then demanded his wages of the captain, libelant should not be permitted to recover costs though the ship’s defense of desertion failed.</p> <p>[Ed. Note. — For other cases, see Seamen, Dec. Dig. § 26.*]</p>

Petition for leave to sue. This was an ex parte action, filed at Atlanta by Perry L,. Boatwright, as administrator of the estate of Laurie L. Boatwright, who was killed by alleged defective apparatus of the Seaboard Air I fine Railway before the Seaboard went into the hands of receivers.

<p>At Raw. Motion to take off nonsuit.</p>

<p>1. Bankruptcy (§ lit*) — Rights op Landlord — Bohskssjon of Receiver.</p> <p>Where a receiver in bankruptcy is actually in possession of rented premises to preserve the estate during a certain number of days, he should pay pro rata rent, at the reasonable value for that time, as an expense of maintenance.</p> <p>lEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 114.*]</p> <p>2. Bankruptcy (§ 114*) — Claims of Landlord — 1Taxes—Water Rents.</p> <p>Where a landlord did not protect, himself by taking from the tenant seenrily for taxes and water reñís, and the receiver of the tenant on taking possession did not become a tenant under a lease, the landlord’s rights as against the estate, as regards unpaid taxes and water rents, must he establised by proof before the referee as a general claim against the estate.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 114.*]</p>

<p>BANKBUPTOY (§ 418*)- INDEBTEDNESS — Pbior Proceedings.</p> <p>Where a bankrupt made no application for a discharge in original bankruptcy proceedings, a judgment subsequently perfected on a claim provable therein did not create a new debt which could form a basis for a subsequent proceeding in bankruptcy. '</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 418.*]</p>

<p>In Bankruptcy. On certificate from W. L.' Hill, referee.</p>

This action was brought by the plaintiff in error against the defendant in error to recover damages for negligently causing the death of her son, under a Texas statute allowing the mother to sue in such cases. The action was begun in a state court, and was removed,on petition of the defendant to the court below on the ground that the defendant was a corporation under the laws of the United States.

On September 17, 1904, the appellant Memphis Trust Company (whose name was later changed to the Bank of Commerce & Trust Company) entered into a contract, as owner, with the appellee, Brown-Ketehum Iron Works, for the furnishing and installing complete, on or before July 1, 1905, for the sum of $16,900, of certain ornamental ironwork in a bank and office building to be erected in Memphis, Tenn., according to drawings and specifications prepared by D. H. Burnham & Co.,…

<p>1. Master and Servant (§ 235*) —- Master’s Ditty in Respect op Servant's Working Peace — -Servant’s Right to Assume That Master’s Duty has been Performed — Exception.</p> <p>It is the duty of a master to exercise reasonable care to provide a reasonably safe working place for his servant, and the latter is entitled to act upon the assumption that that duty has been performed, unless the contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection, to ascertain whether or not that duty has been performed, but only to have due regard for what he actually knows and for what is so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience.</p> <p>I Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 713; Dec. Dig. § 235.*]</p> <p>2. Evidence (§ 474*) — Expert and Opinion Testimony — Test of Admissibility.</p> <p>The general rule that witnesses are permitted to testify to the primary facts within their knowledge, but not to their opinions, is subject to the important qualification that witnesses possessed of special training, experience, or observation in respect of the matter under investigation may testify to their opinions, when that will tend to aid the jury in reaching a correct conclusion ; the true test being, not the total dependence of the jury upon such testimony, but their inability to judge for themselves as well as is the witness.</p> <p>[I5d. Note. — For other cases, see Evidence, Cent Dig. § 219G; Dec. Dig. § 474.*]</p> <p>3. Appeal and Error (§ 970*) — Expert and Opinion Testimony — Discretion of Trial Judge.</p> <p>A certain discretion is accorded the trial judge in respect of the admission or rejection of export and opinion testimony, and his decision admitting testimony of that character ought not to be disturbed, unless it plainly appears that the testimony was not calculated to aid the jury in reaching a correct conclusion, and was calculated to prejudice their minds.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 8849; Dec. Dig. § 970.*]</p> <p>4. Damages (§ 210*) — Personal Injury — Mental Suffering.</p> <p>In an action to recover for personal injuries, an instruction which names “mental suffering due to the injury” as one of the elements to be considered is not objectionable, as permitting the consideration of mental suffering which is separable from and independent of the physical injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 555; Dec. Dig. § 216.*</p> <p>Mental suffering as an element of damage in general, see note to Chicago, R. I. & P. Ry. Co. v. Caulfield, 11 C. C. A. 55(>.]</p> <p>5. Trial (§ 256*) — Charge to Juey — General Exception.</p> <p>When a litigant is concerned lest the jury may misinterpret a portion of the charge unless it be explained, he should request an appropriate explanation of it, and not rest upon a general exception to it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 629; Dee. Dig. § 256.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Logs and Logging (§ 34*) — Contract—Modification.</p> <p>Plaintiffs accepted an order for certain yellow pine timber, “sound and square and without wane.” Plaintiffs ordered the lumber from their mills according to the same specifications, but later objected that it was difficult to secure sticks absolutely free from wane and asked a modification. This was refused, but defendant promised that plaintiffs should receive liberal treatment as regards inspection and that a small amount of wane might be overlooked. Plaintiffs did not modify the specifications with their mills under such letter, but stated that future orders should provide for a certain amount of wane. Sold,, that such correspondence did not operate as a modification of the original contract with reference to wane.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Dee. Dig. § 34.*]</p> <p>2. Estoppel (§ 63*) — Equitable Estoppel — Inconsistency of Conduct and Claims.</p> <p>Where, after the making of a contract for the sale of lumber free from wane, the sellers, who were brokers, endeavored to induce the buyer to agree to accept a certain amount of wane, which he refused to do, but offered liberal inspection with reference to such question, and the sellers did not change their contract with the mills, which had been made on the same specifications as the original on the faith of such correspondence, the buyer was not estopped to demand compliance with the terms of the original contract.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 63.*]</p>

The plaintiff in error, Goll, was indicted and convicted, upon trial to a jury, together with one George Kiee, for alleged violation of section 6 of the act of Congress known as the “Oleomargarine Act,” approved August 2, 1886 (Act Aug. 2, 1886, c. 840, 24 Stat. 210 [U. S. Comp. St. 1901, p. 2230]), and this writ is brought by Goll alone, for reversal of the judgment against him.

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

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

Petition to Review Order of the District Court of the United States for the Southern District of New York. The. following is the opinion of Hough, District Judge, to review which the petition was filed: The language of section 11 of the bankruptcy act (Act July 1, 1898, c. 541, 80 Stat. 549 [U. S. Comp.

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

Action by a patentee against a licensee to recover an agreed sum, being royalties for the use of the invention. The defense set up is that the agreement upon which suit was brought constitutes a restraint of trade and is therefore invalid. The case is much like Rubber Tire Wheel Co. v. Milwaukee Rubber Works Co. (C. C.) 142 Fed. 531; Consolidated Rubber Tire Co. v. Diamond Rubber Co. of New York, 157 Fed. 678, 85 C. C. A. 349.

This cause comes here upon appeal from a final decree confirming the report of a master and holding the infringing defendant liable for $13,987.11 profits.

This cause comes here upon appeal from a decree dismissing a bill in, equity for infringement of United States patent 743,114, for temporary binder, issued November 3, 1903, on application of the inventor, Emory A. Trussed. The opinion below is reported in 159 Eed. ,473.

Eor opinion below, see 157 Fed. 90. The bill in the Circuit Court was to restrain infringement of Fetters 'Patent No. 483.,646, issued October 4, 1892, to Arthur H. S. Dyer, for a certain new and useful improvement in the process of making artificial mica sheets for electrical' insulation.

From a final decree in favor of the appellee against the appellant for §23,-256.10, the profits adjudged to have been realized by the latter from infringing claim 2 of letters patent 663,069, issued to Daniel Farrell on December 4, 1900, covering a process for bleaching nuts, the present appeal is taken.

<p>'Patents (§ 828 *) — Novelty—Pile Dkiveb.</p> <p>The Von Eberstein patent No. 720,2(58, for improvements in pile drivers, which consist of mechanism by which a free movement is given to the leads or ways by reason of which piles may be driven within a considerable radius without moving the frame of the machine, and also either perpendicularly or obliquely, is void for lack of novelty, the essential features covered by the general language of the claims having been in prior use. If conceded validity, the patent held not infringed by the machine of defendant shown to have been in use prior to the date of the application for the patent. The relative mechanical features and improvements in pile driving machines discussed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>1. Patents (§ 328*) — Validity and Infringement — Clutch Meoiiantsm.</p> <p>The Joy patent No. 786,291, for a clutch mechanism intended particularly for use in printing-telegraph machines, was not anticipated, and discloses patentable invention. Also held infringed.</p> <p>[Ed. Note. — Eor other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 328*) — • Validity and Infringement — Printing-Telegraph Machine.</p> <p>The Merritt and Joy patent No. 558,506, for a printing-telegraph machine, claim 6, is void for lack of invention.</p> <p>[Ed. Note. — Eor other cases, see Patents, Dec. Dig. § 328.*]</p> <p>3. Patents (§ 170*) — Construction—Scope of Invention — Prior Art.</p> <p>That a structure is within the terms of a patent does not establish infringement, but the scope of the patent must he determined from the state of the prior art.</p> <p>[Ed. Note. — Eor other cases, see Patents, Cent. Dig. § 245; Dee. Dig. § 170.*]</p> <p>4. Patents (§ 328) — Validity and Infringement — Printing-Telegraph Receiver.</p> <p>The Joy patent No. 780,064, for a printing-telegraph receiver covering mechanism for line spacing muler constant stress, driven by a continuously revolving shaft, was not anticipated, and discloses invention in view of the improvement made by the device in the effectiveness of the machine. Claims 1, 2, 3, 4, 5, 6, 9, 11, 23, 24, 26, 27, and 30, hold infringed. Claim 12 held too broad, and void for anticipation, and claim 15 not infringed. [Ed. Note. — Eor other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 297*) — Spit i?or Inotungement — PREnrsirNABY Injunction.</p> <p>In a suit for infringement of a patent which is of recent date and un-adjudieatod, where the showing leaves the questions of construction and infringement in doubt, a preliminary injunction will not be granted; but defendant may be required to file statements of sales of the alleged infringing article.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 481; Dec. Dig. § 297.*</p> <p>Grounds for denial of preliminary injunctions in patent infringement suits, see note to Johnson v. Foos Mfg. Co., 72 C. C. A. 123.)</p>

<p>1. Seamen (S 29*) — ¡.mums to Seimeiv — Faui.t or Vesseu.</p> <p>Libelant, a seaman on a British vessel in port, was directed by one oí the officers to hoist the national ensign. The mate directed him to get on the awning spar and endeavor to secure the ilag. After continuing his efforts for about 10 minutes, artel being unable to do so, he returned to the deck, and it was then first noticed that his fingers were frosted. None of the officers knew he was suffering from cold until he returned to the deck, when first relief was given him, and the captain shortly after looked at his hands and sent him to the hospital, where his fingers were amputated. Held, that libelant’s injury was attributable to no fault of the officers of the vessel, and hence he could not recover damages for the injury.</p> <p>[Ed. Note. — Eor other cases, see Seamen, Dec. Dig. § 29.*]</p> <p>2. Seamen (§ 29*) — Injuries to Seamen — Cost op Maintenance and Cube.</p> <p>Where a seaman on a foreign vessel was injured while in an American port without fault of the officers of the vessel, and was taken to a hospital, he was entitled to recover the cost of maintenance and cure until the cure was complete, regardless of the termination of the voyage.</p> <p>[Ed. Note. — For other cases, see Seamen, Dea Dig. § 29.*</p> <p>Rights and liabilities of seamen as to medical treatment, see note to The Cuzco, 83 C. C. A. 186.]</p> <p>3. Seamen (§ 29*) — Injuries to Seamen — Cost op Maintenance and Cube.</p> <p>An injured seaman may recover the cost of maintenance and cure, under a prayer for general relief, over an objection that it has not been specifically claimed in the libel as a separate item of damage.</p> <p>[Ed. Note. — For other cases, see Seamen, Dee. Dig. § 29.*]</p>

<p>Ill Equity. Overruling demurrer.</p>

<p>COBPOEATIONS (§ 244*)' — SlIAKEHOLDEBS—ASSESSMENTS.</p> <p>A corporate charier provided that on payment of the first installment of 20 per cent, full-paid certificates of common stock and partially-paid certificates of preferred stock should be delivered, and as subsequent installments were paid they should be indorsed on the latter, provided that after payment of tlie 20 per cent, tlie subscribers should no longer be liable for any balance on their subscription, except on such shares as should stand of record on the books in their names at the time any subsequent assessments were made, but the holders of such shares of record on the books of the company at that time should be liable therefor. ■ Held, that such proviso operated to relieve the original subscriber only after he had paid the first installment and had transferred his stock to a real owner on the books of the company, and had no reference to an actual owner of stock standing on the books in the name of another, in which case both the real and record owner were liable for subscription calls.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 960-977; . Dec. Dig. § 244.*]</p>

<p>In Equity. Final hearing upon bill, answers, and proofs.</p>

<p>Caebiees (§ 38*) — Regulation—Inteestate Comjiebce — Connections Between Caebiees — Application by Lateeal Bbanch Bine.</p> <p>Interstate Commerce Act Feb. 4, 1887, e. 104, § 1, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), provides that carriers, in certain contingencies, • shall construct, maintain, and operate switch connections on the application of any lateral branch line of railroad or of any shipper tendering interstate traffic, and that, if the carrier fails to install such connection “on application therefor in writing by any shipper,” then, the shipper may complain to the Interstate Commerce Commission. Held, that such act only contemplated a complaint by a shipper, and that a complaint by a lateral branch line railroad was insufficient to confer jurisdiction.</p> <p>[Ed. Note. — For other cases, see Carriers, Dee. Dig. § 33.*]</p>

In Equity. The following is the report of the Interstate Commerce Commission, including the dissenting opinion of Commissioners Knapp and Harlan, sustained by the Circuit Court: LANE, Commissioner. The complainant is a corporation, engaged in the business of forwarding agent and of customhouse broker at Chicago and New York City.

Review of decision of referee refusing to disallow and expunge from the list of claims proved and allowed the claim of $7,339.90 and interest thereon, which claim was originally presented by Charles W. Darling, but which now belongs to the Citizens’ Trust Company of Utica, N. Y., executor of the last will and testament of said Darling, he having died during the pendency of this proceeding.

At Raw. On demurrer to the separate defense alleged in the answer. This case is a civil action brought to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the employes of the railway company.

Habeas Corpus. On the 31st day of July, 1908, the petitioner herein was arrested in the city of Minneapolis, Minn., by Marcus Braun, United States immigrant inspector of St. Paul, upon telegraphic instructions received by him on the same day from William R. Wheeler, Assistant Secretary of the Department of Commerce and Dabor, which instructions were as follows: “Arroup (Arrest following named alien and bring before yourself for hearing. forwarding record of proceedings to…

<p>1. INSURANCE (§ 684*)-IN SURA" "E COMPANIES — INSOLVENCY—SETTLEMENT OP Assets.</p> <p>■Where, after the appointment ot a receiver for an insurance company, an agreement was' eff ctecl by which the creditors agreed to accept 30 per cent, of their clai is in full, such agreement should be treAued as A distribution of the insurance company’s assets, and not a com iromise by the insurance compan/ itself, in so far as it affected reinsur nice of the company’s risks.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1817; Dec. Dig. § 684.*]</p> <p>2. Insurance (§ 679*) — Insolvency — “Reinsurance” — “Double Insurance.”</p> <p>The term “double insurance” means an insurance of the same interest, and is entirely different from “reinsurance,” which is a contract, of indemnity to the person or corporation reinsured for the whole loss sustained in respect to the subject of the insurance to the extent to which he is reinsured-</p> <p>[Ed. Note. — Eor other eases, see Insurance, Cent. Dig. § 1811; Dec. Dig. § 679.*</p> <p>Eor other definitions, see Words and Phrases, vol. 3, pp. 2185, 2186; vol. 7, pp. 6052, 6053, vol. 8, p. 7783.]</p> <p>3. Insurance (§ 684) — reinsurance—Compromise or Original Claims — Effect.</p> <p>Where, after an insurance company became insolvent as the result of a fire and a receive*.’ had been appointed, its creditors agreed to accept 30 per cent, of thei proved claims in full settlement, reinsurers of the insolvent company risks were not thereby relieved of 70 per cent, of the loss sustained hinder the reinsured policies, but were liable for the full amount.</p> <p>[Ed. Note. — Eor c|her cases, see Insurance, Cent. Dig. § 1817; Dec. Dig. § 684.*] t</p>

<p>1. Monopolies (§ 12*) — Contract in Restraint op Trade— Patented Abtx oles.</p> <p>Where certain contracts between manufacturers of liquid door checks restrained each of the parties in the exercise of its rights under its own patents and in the sale of its articles made thereunder, the contracts were not rendered valid, though in restraint of interstate commerce, because they also authorized each of the parties to use patented inventions belonging to the others.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 12.*]</p> <p>2. Monopolies (§ 12*) — Patented Articles — Tjicense—Shekman Act.</p> <p>A sale or license of a patented article, with a covenant not to compete, made as an ordinary incident to enhance the value of the thing conveyed, was not within Sherman anti-trust act (Act Cong. July 2, 1890, c. 647, 26 Stat. 209 [TI. S. Comp. St. 1901, p. 3200]).</p> <p>[Ed. Note.- — For other cases, see Monopolies, Dec. Dig. § 12.*]</p> <p>3. Patents (§ 191*) — Right op Patentee- Use Contracts.</p> <p>While it is the ordinary privilege of the owner of a patent to use, oi not, without question of motive, the grant of a patent confers on the pat-entee no right not to use his invention, or to agree not to do so, in restraint of trade in that article, except in connection with an assignment of the rights conferred by the letters patent.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 268; Dec. Dig. § 101.*</p> <p>Power of patentee to control his invention, see note to Heaton-Peninsu-lar B. F. Co. v. Eureka Specialty Co., 25 O. C. A. 280.]</p> <p>4. Monopolies (§ 12*) — Contract in Restraint op Trade — Patent Article— Restriction op Use.</p> <p>Contracts between manufacturers of liquid door checks under various patents, by which each agreed to restrict its own trade in the article of Ids own invention, not as an incident to a grant of rights under patents, but to enhance the price by the removal of competition, and which constituted a general plan to regulate and control the business of dealing in such checks sold in interstate commerce, the plan comprehending the maintenance of price, the pooling of profits, the elimination of competition, and restraint of improvements, constituted a violation of the Sherman anti-trust act (Act Cong. July 2, 1890, e. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200j), and were therefore unenforceable.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dee. Dig. § 12.*]</p>

In Rem. On information for the forfeiture of imported merchandise. The libel of information alleged five causes of forfeiture against the merchandise, which was seized by the collector of customs at the port of New York, February 5, 1907.

<p>1.- Street Railroads (§ 54*) — Mortgages — Construction — After-Acquired Property.</p> <p>A clause in a general mortgage executed by a street railroad company on all of its property, which specified as included therein all after-acquired engines, machinery, tools, and equipment of ever description used in operating the mortgagor’s lines, covers machinery subsequently acquired and installed in buildings on real estate afterwards acquired and not subject to the mortgage, which is used in operating such lines, or in any maimer in connection therewith, where it is not attached to the realty and can be removed without injury thereto.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 133; Dec. Dig. § 54.*]</p> <p>2. Street Railroads (§ 54*) — Mortgages — Construction — After-Acquired ' Property.</p> <p>A street railroad mortgage covering all of the property of the mortgagor specifically enumerated a number of lines of road either owned or leased by it, and provided, inter alia, that it should include all “equipment of every description now used or which may hereafter be used or employed upon said several lines or routes, whether now owned by the railroad company or hereafter to be acquired for use upon or in connection with the same.” Held, that such provision included rolling stock and all other personal property subsequently acquired by the mortgagor and devoted to use generally on its system, which included, not only the lines enumerated and covered by the mortgage, but other after-acquired lines, which were, however, operated in connection therewith, and all of which, by the law of the state requiring the exchange of transfers between them were made a single unitary system.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 133; Dec. Dig. § 54.*]</p> <p>3. Street Railroads (§ 55*) — Foreclosure of Mortgages — Sale of Property-Reservation of Right to Impose Liens.</p> <p>A decree foreclosing a mortgage given by a street railroad company operating an extensive system, including leased lines, which system has been operated for several months by receivers, must necessarily reserve to the court the right to impose liens on the property after its sale, in case It shall bo necessary for payment of the expenses and obligations incurred by the receivers, Including personal injury claims, and balances which may be found due to lessors whose lines have been returned to them for personal property wrongfully withheld.</p> <p>[Ed. Note. —For other cases, see Street Railroads, Cent. Dig. § 134; Dec. Dig. § 55.*]</p>

<p>On Petition to Review an Order of the Referee.</p>

<p>1. Dogs and Dogging (§ 3*) — Construction of Contract for Sam of Timber —Payments.</p> <p>A contract for the sale of standing timber on certain lands f;or the sum of $4,500 provided that it should be paid for as cut at the rate of $4.50 per thousand feet, “the payment to be made as follows: 8125 to be paid on the 1st day of November, 1906, and thereafter on the 1st day of each month at the rate above stated, but not less than $125 shall be paid on the 1st day of each month from this date during the next 36 months.” It also provided that in case of default in any payment the title to all lumber sawed from the timber cut should remain in the seller until such payment should be made. Held, that on the bankruptcy of tbe purchaser, being in default for two payments, the amount of its default was the amount duo for timber cut at the rate of $4.50 per thousand, less the payments made, if it exceeded $125 per month during the time the contract had run.</p> <p>[Ed. Note. — For other cases, see Dogs and Dogging, Dec. Dig. § 3.*]</p> <p>2. Bankruptcy (§ 140*) — Rights Vesting in Trustee — Conditional Sams— Georgia Statute.</p> <p>A written contract for the sale of standing timber, to be paid for in monthly payments as cut. provided that “upon failure to make any monthly payment the title to all the lumber sawed from the timber removed from the above-named lots * * * shall remain in said party of the first part until the sums above set out are paid.” Held, that on default in such payments the rights of the parties were governed by Code Ga. 1895, §§ 2776, 2777, under which, as construed by the Supreme Court of the state, although the contract was not recorded, the reservation of title was good as between the parties and as against general creditors of the purchaser, unless they extended credit after the property went into its possession on the faith of its ownership, but not good as against intervening liens or conveyances, and that it was therefore good as against its trustee in bankruptcy, in the absence of any showing that there were creditors of such preferred classes.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

<p>1. COPYRIGHTS (§ 28*1 — Literary Production-Rights op Purchaser.</p> <p>Under Rev. St. § 4052 (U. S. Comp. St. 1901, p. 3406), giving authors the right to translate and dramatize their literary productions, and providing that proprietors or owners by assignment, on complying with the statute, shall have the exclusive right of printing and vending, the unconditional sale of a story entitled the purchaser to protection from piracy on securing a statutory copyright.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 22; Dec. Dig. § 28.*]</p> <p>2. Copyrights (§ 27*) — Literary Production — Publication.</p> <p>Where the publishers of a magazine purchased and published a story in a number of a magazine, they secured the copyright on the story by merely filing witli the librarian of Congress the title page of the magazine and complying with the statute regulating copyrights, without filing a copy of the title of the story so published, or of the story.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. §§ 25, 26; Dee. Dig. § 27.*]</p> <p>3. Copyrights (| 88*) — Literary Composition — Dramatization.</p> <p>Where a story printed in a magazine was copyrighted with other ma-teria] in the magazine, it was not necessary that the author should himself secure a copyright, to retain the right of dramatization not sold to the magazine publishers.</p> <p>LEd. Note. — For other cases, see Copyrights, Dec. Dig. § 88.*]</p> <p>4. Copyrights (§ 36*) — Rights to Publish and Dramatize.</p> <p>An author may sell the exclusive right to print and publish his production, giving the buyer the right to copyright it, while the author withholds to himself the right to dramatize.</p> <p>[Ed. Note. — For other cases, see Copyrights, Dec. Dig. § 86.*]</p> <p>5. Copyrights (§ 44*) — Publication—Assigns.</p> <p>Where an author sold the right to print and publish his production, with the right to cojiyright it, but impliedly retained the right to dramatize, the publishers could assign all the rights secured by their statutory copyright, after publication, to the author, his heirs and assigns.</p> <p>[Ed. Note. — For other cases, see Copyrights, Cent. Dig. § 42; Dec. Dig. § 44.*]</p> <p>6. Copyrights '(§ 55*) — Dramatization op Story — Infringement.</p> <p>In a suit to restrain a dramatic production as an infringement of an author’s copyrighted story, the question of infringement depends on whether the substance of the literary composition has been taken, to complainant’s injury.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Dec. Dig. § 55.*]</p> <p>7. Copyrights (§ 55*) — Infringement—Dramatization.</p> <p>The author of a copyrighted story is not entitled to restrain a dramatic production thereof, if the story is merely an old theme or subject with a new dress or coloring; but if the composition or the subject thereof is dramatized without the author’s consent, and is produced by. a dialogue, and scenes and incidents are introduced, with stage situations, by which the kernel of the story is emphasized, there is an infringement, against which equity will grant relief.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Dec. Dig. § 55.*]</p> <p>8. Copyrights (§ 88*) — Infringement—Dramatization—Question of Pact.</p> <p>Whether there is substantial similarity between a copyrighted literary composition and a dramatization thereof is a question of fact.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Dec. Dig. § 88.*]</p> <p>9. Copyrights (§ 83*) — Infringement—Evidence.</p> <p>Evidence held to warrant a finding that the play entitled “The Heir to the Hoorah” is an infringement on the copyrighted story entitled “The Transmogrification of Dan,” under the rule that it is sufficient if the essence bf a play is taken for an original literary production.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Dec. Dig. § 83.*]</p> <p>10. Copyrights (§ 86*) — Infringement—Dramatization—Decree.</p> <p>Where a play constituting an' infringement of a copyrighted novel had been staged at great expense, with elaborate scenery, stage effects, etc., the entire play would not be enjoined, if it could be revamped, so as to eliminate the objectionable imitations.</p> <p>[Ed. Note. — Por other cases, see Copyrights, Cent. Dig. § 80: Dec. Dig. § 86.*]</p>

<p>In Bankruptcy.</p>

<p>In Equity. On exceptions to report of special master.</p> <p>The following is the report of the special master:</p> <p>To the Honorable Judges of said Court:</p> <p>Pursuant to the notice of the special master, to whom, under orders heretofore entered, the above-entitled cause has been referred, a hearing was hold in the United States Circuit: Court room at Atlanta, Ga., beginning at 30 o’clock a. m. June 22, 1908, for the purpose of taking testimony and hearing argument in the claims of counsel of the Seaboard Air Line Railway for professional services rendered previous to the receivership.</p> <p>Judge L. L. Lewis, of counsel for the receivers, indorsed on the pleadings in the above-stated intervention the following: “Tt is admitted by the receivers that the averments of facts contained in the foregoing statements are true; they not admitting, however, that the matters stated therein as conclusions of law are correct, but these matters are submit! ed to the court.”</p> <p>J. Randolph Anderson, of Savannah, Ga., being first duly sworn, testified in substance that he had been division counsel for the Seaboard Air Line Railway and its predecessor, with headquarters at Savannah, and that he had always been paid a salary, and that on January 2, or 3, 190S, he received, as usual, his voucher for services rendered during the month of December, 1907, and that he had also received voucher covering his expense account and amounts advanced by him on behalf of the company to pay judgments and court costs and. matters of that kind. He also testified that his duties were in fact, so far as he knew, the same as the duties of Brown & Randolph, the in-terveners in this case, with the exception that he was on a salary basis, instead of a fee basis. The testimony in detail is hereto attached.</p> <p>Counsel for receivers objected to this testimony so far as it related to the payment of the claim of Mr. Anderson by the receivers after the receivership, on the ground that what the receivers did in that matter cannot affect the legal proposition involved in the case before the special master. The special master ruled that this evidence is admissible, because it illustrates and throws light on the very issue now in question, and the same will be referred to latex-in the findings of law.</p> <p>, Now, as to the question of fact involved in this intervention, I find that the Seaboard Air Line Railway had a regularly organized law or legal department, and that the Honorable Legh R. Watts was the head thereof, with the title of “General Counsel.”</p> <p>I find that as such general counsel he had the authority to appoint different counsel in the different states through which the Seaboard Air Line Railway ran, some for the entire state, and some for portions of a state, and some for one county, and that these counsel were called, respectively, “Division Counsel,” “District Counsel,” and “Local Counsel,” depending on the territory which each had under his supervision.</p> <p>I find that several years since Brown & Randolph, a firm composed of E. T. Brown and II. N. Randolph, were appointed division counsel of the Seaboard Air Line Railway at Atlanta, Ga., by the general counsel of the said railway and that the counties of Fulton, Cobb, Paulding, Polk, and Bartow, in tl..-state of Georgia, comprised their territoi-y.</p> <p>I find that said Brown & Randolph accepted this appointment, and have been the division counsel of the Seaboard Air Line Railway in Atlanta since the appointment and up to the date that the Seaboard Air Line Railway went into the hands of receivers, viz.. January 2, 3908.</p> <p>I find'that they had supervision over all the legal business of the Seaboard Air Line Railway in the territory named; that they could not, under the terms of their agreement, take any business against the company; that their employment all the time was continuous, and bound them the same as if they had been the salaried attorneys of the Seaboard Air Line Railway; that they regularly and continuously devoted their time and attention to the legal business of the said railway in the territory named; that under said appointment they were required to appear in all the courts of said territory, and defend all the causes brought against said railway in such territory, and to institute all suits on behalf of said railway in said territory, and were also required to continuously advise officials and employes of said railway in and about the legal matters pertaining to their duties, and generally to perform all legal work arising within said territory in connection with the operation of said railway in each and all of its departments. They were deprived of the right to accept any retainers against either of said railways. They had no alternative, under the terms of their employment, to accept or refuse the business tendered them, but were compelled to look after and attend to all the business in the territory committed to their charge by the general counsel or resign.</p> <p>During said time circular letters, issued by the general counsel and directed to the division and district counsel of said Seaboard Air Line Railway, were regularly sent to them as division counsel; that they were furnished with letter heads, envelopes, voucher blanks, and other blanks pertaining to their duties; that they were addressed in the correspondence between them and the general counsel, and other departments of the said railway, as “Division Counsel,” and always signed their letters and correspondence as “Division Counsel.” They were required to and usually did make monthly or periodical reports on ilie status of the litigation in their division. They were compensated for their services, not upon the salary basis, but upon what is known as the “fee system”; it being understood and agreed that they were to be paid for their services as division counsel a reasonable compensation for each and every matter handled by them, instead of receiving a regular stipulated salary from month to mouth, and they were to render at the end of each month to the general counsel a statement of the services completed by them during the previous month, wiili the fees charged by them therefor, which foes were subject to the approval of the general counsel. Those statements were accompanied by vouchers on forms furnished by the said railway, and after approval by Ote general counsel were by him delivered to the auditing department for auditing, and then to the treasurer of said railway for payment.</p> <p>They were required to wait for the completion of each service before rendering a bill therefor, and their compensation did not become due and payable for each particular service until the 1st of the mouth next succeeding the month in which said services were completed. As división counsel they were furnished by the railway with passes over its entire system, and also with interchange passes over other railroads, as well as frank of the Western Union Telegraph Company, and Pullman passes good over the Seaboard Air Line Railway System and connecting lines, ail of which passes designated them as “District Counsel, Seaboard Air Lino Railway.”</p> <p>I find, further, that said Brown & Randolph had under their charge, by the appointment above set out, all the legal business within said territory of ihe Atlanta & Birmingham Air Line Railway, which is a railroad corporation operating a railroad from ihe city of Atlanta, in the state of Georgia, to and into" the city of Birmingham, in the state of Alabama, and which, though an independent corporation, was run and operated in fact as a part or division of the system of railroads operated and conducted by the said Seaboard Air Lino Railway, and all the capital stock of which the Seaboard Air Lime Railway owned and controlled. I find, also, that the Atlanta & Birmingham Air Line Railway had as its general officers the same officers as ihe Seaboard Air Line Railway, including the general counsel of the Seaboard Air Line Railway.</p> <p>I find further, that said Brown & Randolph rendered professional services for said Seaboard Air Lino Railway prior to January 2, IOCS, tinder the appointment above set out, and that said railway is indebted to them in ihe amount of 82,6(55, as shown in aiinched accounts. I find, also, that the said Seaboard Air Line Railway is indebted to them for professional services rendered the Atlanta & Birmingham Air Line Railway, under the appointment above set out, in the amount of $187.50.</p> <p>I find, further! that there has been a diversion of current receipts for the purpose of paying ini crest on the bonds in an amount in excess of the claim of the said Brown & Randolph. (See original bill by Seaboard Air Line Railway v. Trust Company and answer of Trust Company; also cross-bill by Trust Company, and the original bill by the Trust Company, and also application made by the receivers for leave to issue receiver's certificates.) I find that said professional services were rendered to the Seaboard Air Line Railway since .Tune SO, 1907, and previous to January 2, 1908, and that the indebtedness therefor was incurred in the operation of the property.</p> <p>It will be noted by letter of W. Carroll Latimer, hereto attached, that he had an arrangement with the firm of Brown & Randolph, and that that firm is entitled to the amount due for his services. Such amount Is included in the above finding.</p> <p>The legal contentions in this case are as follows: Interveners, or claimants, on the one hand, insist that they were regularly employed attorneys of the Seaboard Air Line Railway and the Atinnia & Birmingham Air Lino Railway, and that their services as such attorneys were necessary to the operation of the railroad, and that such services were rendered regularly by thorn in conformity witli the ordinary course of the business of said company, and that the compensation due them by the Seaboard Air Line Railway is a current; debt, arising in the ordinary course of the business of the company, and properly chargeable to its current receipts for and during the six months next preceding the appointment of the receivers, as provided in the decree of the court of January 2, 1908, appointing the receivers. On the other hand, “independently of the order, and without reference to it, they claim a preference on the broad principle declared by the decisions that such services are entitled to a preference by reason of their character, especially in view of the peculiar circumstances of this case, and the general purpose had in view, and the necessary effect the appointment of the receivers had, wresting, as it did, the management and control of the property from the debtor company and in appropriating revenues” (quoted from brief, page 26).</p> <p>Counsel for receivers, in opposing these contentions, denies that the claim is payable under the terms of the decree of January 2, 1908, appointing the receivers, and they also deny the second ground of the claim, holding that a judgment in favor of an attorney has no lien prior to the rights of the mortgages, but stands on an equality with general judgment creditors.</p> <p>In the argument before the special master and in the briefs of counsel filed considerable time and attention was devoted to the words of the decree of January 2, 1908, viz., that portion authorizing the receivers to pay “all amounts due to all operators and employes, and amounts due for supplies and materials furnished and used and unpaid pay rolls, and supply accounts incurred in the operation of said railroad system since June 30, 1907.” Inter-veners contend that they are of that class of attorneys who were “employes” of the Seaboard Air line Railway, as that term is used in the order.</p> <p>The policy and the right of providing for the payment of amounts due in the current operation of the property of a railroad in which a receiver is appointed is so well settled that a discussion of the principle is unnecessary. Fosdick v. Schall, 99 U. S. 235, 25 R. Ed. 339; Miltenberger .v. Railway Co., 106 U. S. 286, 1 Sup. Ct. 140, 27 R. Ed. 117; Trust Company v. Souther, 107 IT. S. 591, 2 Sup. Ct. 295, 27 R. Ed. 488; Burnham v. Bowen, 111 U. S. 783. 4 Sup. Ct. 675, 28 R. Ed. 596; Union Trust Co. v. Ill. M. Ry. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 R. Ed. 903; Trust Company v. Morrison, 125 U. S. 591. 8 Sup. Ct. 1004, 31 R. Ed. 825; Virginia & A. Coal Co. v. Central R. R. & Banking Co., 170 U. S. 355, 18 Sup. Ct. 057, 42 R. Ed. 1008; Southern Railway v. Carnegie Co., 176 U. S. 257, 20 Sup. Ct. 347, 44 R. Ed. 458; Rodger Ballast Co. v. Omaha R. R. Co., 154 Fed. 629, 83 C. O. A. 403; Rackawanna, etc., Co. v. Farmers’ Roan, etc., Co., 176 U. S. 298, 20 Sup. Ct. 363, 44 R. Ed. 473.</p> <p>One of the questions before me is: “Was it the intention of the court to include in the preferred class the claims of attorneys at law?” An examination of the words of the order will throw some light on the matter. “All amounts due to operators and employes * * * and unpaid pay rolls.” Counsel for receivers seemed to be under the impression that the word “oijer-atives” had been used by the court in the order, but an examination of the original order shows it to be “operators.” If the ordinary meaning of words is to be taken as the rule, it would seem that the word “operators”'is of more extensive significance than “operatives.” The several dictionaries seem to agree that an “operator” is “one who operates or produces an effect,” while an “operative” is “a skilled workman, an artisan, or mechanic.” This would indicate that the order was intended to embrace officers, as well as what is generally known as the “laboring class.” Now, the word “employes” is used in conjunction with “operators.” Applying the rule of construction, “noscitur a sociis,” invoked by receivers’ counsel, I am constrained to conclude that it gives the word “employes” a broader application than might have otherwise been true if “operatives” had been used. In this same connection are used the words “all amounts due,” instead of “wages” or “salaries,” which might operate as a limitation, and they seem to give emphasis to the broader construction contended for, while the words following, “unpaid pay rolls,” implying that there may be operators and employés not on the regular pay rolls, have the same effect. Construing the words of the order together, I cannot escape the conclusion that the wording of the order is broad enough to include attorneys regularly employed.</p> <p>It now becomes necessary to inquire into the nature and character of the services rendered by interveners as counsel or attorneys. The facts set out in their intervention and the amendments thereto are admitted by counsel for receivers. They have been substantially stated above in the “findings of fact.”</p> <p>The circular letter of the general counsel of date January 31, 1903, announ- < ing Uie appointment of John I’. Tillman as división counsel of the Seaboard Mr Line Railway in Alabama, contains the following: “Mr. Tillman will have charge of all litigation and other legal matters in the state of Alabama io which ihe Seaboard Air Tine Railway may be a party or in which it may be interested. He will appoint local counsel In said territory as he may think necessary, subject to the approval of the general counsel. All local counsel will attend to such business as may be assigned to them by the division counsel, 1o whom they will report.” This is admitted to apply to Brown & 'Randolph in their territory. This circular letter seems to me to be conclusive of ihe nature of the services contemplated. They were to have charge of all litigation and other legal mailers In the territory comprising their division. This cannot mean that in every case they would bo specially employed, but ihe arrangement covered all cases and all legal matters. There was no limit to the nature or character of the business that they were to perform for Hie company in the territory comprising their division, and the term of their employment was not limited.</p> <p>Counsel for receivers argued that, if employment in one case did not make them employes, employment in two or three or ten or twenty would not con-st it uto the relation. That is granted; but employment in all matters in a given territory for an unlimited time would certainly, to my mind, negative the idea of special employment, and constitute them regular employes of the legal department. Assuredly the character of such an employment is continuing in its nature. It was accomplished by one act and contract, namely, the appointment. and not by several acts, several contracts, done or made as the services wore required. Furthermore, an attorney specially employed in one or two or three or twenty eases, even, would hardly be designated as “Division Counsel.” The title itself denotes continuity of service.</p> <p>The duties of an attorney as division counsel, who was paid a salary, are in evidence, and a comparison of his duties and those of interveners shows no difference. It seems that exactly the same circulars instructing this counsel were sent to interveners for their guidance. The duties and obligations were the same. They wore subject to the same calls and the same directions, and the relations could be terminated only in the same way. Interveners could not, accept any business against the Seaboard Air Bine Railway, any more than could the salaried counsel, and in no way can a difference bo detected, save in the manner of compensation for services rendered. It is also in evidence that annual passes on the Seaboard Air Bine Railway system were issued to in-terveners, account “Division Counsel,” and interchange passes on other linos were furnished them at the request of the Seaboard Air Bine Railway on same account. This would indicate that the authorities of the Seaboard Air Bine Railway certainly considered them as regularly employed attorneys, or they would scarcely have taken the chances of violating a federal enactment on which public attention has been largely centered for no inconsiderable time. It would, indeed, be a striking- illustration of the irony of fate if interveners and a large number of other distinguished counsel were not only held not to be within the privileged class created by the order of the court, thereby depriving them of the hope of receiving any compensation for services rendered, but who, in addition, might be subjected to the penalties of the law for accepting and using transportation without being within the class who could lawfully use same.</p> <p>The fee system seems to have been adopted by the law department of the Seaboard Air Bine Railway, except in a few instances, where salaries wort-paid. In other words, a fee was paid for each case after the termination of the matter. Counsel made up accounts at certain times, showing amount of fee claimed for each matter in which services were rendered, and same was submitted to the general counsel for his approval, and, when approved by him, voucher was issued by the treasurer of the railway. I cannot see that this method of compensation in any way changes the character of the employment.</p> <p>Several cases in the Federal Reporter and in the United Stales Supreme Court Reports have been cited by counsel on both sides as sustaining their position. Tlie case of Louisville & E. R. R. Co. v. Wilson, 188 U. S. 301, il Sup. Ot. 403, 34 B. Ed. Í023, is cited with confidence by both sides. That seems to be a case where the attorney was employed for a special service, and Justice Brewer, in discussing the same, significantly says that the appellant “does not sue for services as general counsel of the mortgagor company, or for salary as an officer of that company,” and, after referring to the case of Gurney v. Atlantic & Great'Western Railway Co., 58 N. Y. 358, in which an order directing the receiver of a railroad thereby appointed to pay debts “owing to the laborers and employés” for labor and services, was held broad enough to include a debt due to Hon. Jeremiah C. Black for professional services as counsel, and expressly refraining from criticising that decision, says:</p> <p>“We are of the opinion that the term ‘wages of employes,’ as used in the order now under consideration, does not include the services of counsel employed for special purposes.” He then says “that the terms ‘oificers’ and ‘employes,’ both alike, refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer nor an employs. They imply a continuity of service, and exclude- those employed for a special and single transaction. An attorney of an individual retained for a single suit is not his employe. ⅞ * ⅜ 1-Iis engagement is rather that of a contractor than that of an employs.” It was therefore held that the services did not come within the order appointing the receiver.</p> <p>It seems to me that the implication in this decision is this: Had the claimant been a regularly employed attorney, the court would have held that he came within the privileged class, and this seems to have been the view taken by Judge Simonton when, in the case of Finance Company, etc., v. Charleston, etc., K. Co. (C. C.) 52 Fed. 526, he held that an attorney regularly employed under a fixed salary came within the order of the court appointing the receiver, because the order provided that the “wages due emifioyés” should be paid, and cites the case of Railroad Company v. Wilson. I do not think the other case of Finance Company v. Charleston, etc., R. Co. (C. C.) 52 Fed. 678, throws any particular light on the matter under consideration. In the case of Blair, Trustee, v. St. Louis, H. & K. R. Co. (C. C.) 23 Fed. 523, Judge Brewer, then Circuit Court Judge, now justice of the Supreme Court, in his opinion held that the claim of an attorney on a salary was entitled to priority over that of the mortgage bondholders. It was insisted in that case that the services of an attorney were not necessary in the operation of a railroad. Judge Brewer says: “I think that whatever is necessary in the ordinary administration of the affairs of the corporation comes within the spirit of the decisions of the Supreme Court, and that an attorney’s services are thus necessary is very clear.” I cannot agree with the view of the distinguished counsel for the receivers, who argued this case before-me, in comparing this case to the Wilson Case, that Justice Brewer, of the Supreme Court, sees the matter differently from Judge Brewer of the Circuit Court. It seems to me that there is no conflict in the views expressed in the two cases.</p> <p>It is evident, from the testimony here presented, that the construction put on the order in this case appointing receivers, by the receivers, is that it includes attorneys regularly retained on salaries, and properly so, I believe, and I cannot think it was the intention of the court to make a discrimination of the kind contended for “between attorneys in the same service, occupying the same relations, charged with the same duties, and clothed with the same powers” ; the only difference being the mode of compensation.</p> <p>I therefore find that the said Brown & Randolph were regularly employed attorneys of the Seaboard Air Line Railway in the territory named, with the title of “Division Counsel,” and that their services as such division counsel were necessary to the operation of the property and contributed to keeping the railway a “going concern.”</p> <p>I find, further, that the indebtedness of the railway, therefor is a current debt, arising in the ordinary course of the business of the company, and that it was included in the terms and provisions of the decree of January 2, 1008, which provides for the payment by the receivers of all amounts due to operators and employés, and amounts due for supplies and materials purchased and used, and unpaid pay rolls and supply accounts incurred in the operation of . said railway system since June 30, 1907, and as such is entitled to the preference provided in said order.</p> <p>As to the claim of inlerveners that this indebtedness is entitled to a priority over the mortgages, independent of the order of January 2, 1908, the special master is of the opinion that it is not within his province to decide. It has been suggested that the special master has the privilege to recommend to the court; but the court could have ordered the special master to do so, in the decree appointing him, if he had no desired. Since this has not been done, I will not assume the responsibility.</p>

<p>1. Banks and Banking- (§ 80*)— Public Funds — Deposit —Insolvsncy — Preeekence.</p> <p>Where a town supervisor deposited town funds with a private banker without any agreement that he should hold and keep the money separate from his other funds or that he should not use them in the usual course of his banking business, the relation was that of debtor and creditor only, so that on the insolvency of the banker the supervisor had no lien or preference over other creditors.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 189, 191; Dec. Dig. § 80.*]</p> <p>2. Bankbuptcy (§ 228*) — Rekebee’s Order — Application foe Review — Time.</p> <p>There being no rule in the Northern district of New York fixing the time within which an application to review an order of a referee in bankruptcy may be made, it should be made within a reasonable time, to wit, the time fixed for an appeal from the same class of orders.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 228.*]</p> <p>8. Bankruptcy (§ 342½*)- — Referee’s Okdes — Application to Review — Laches. 1</p> <p>Where creditors were informed of the pendency of a creditor’s right to preference and made no objection to its allowance for more than eight months after the filing of the order of which tbeir attorney had notice, they were barred by laches from obtaining such petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. § 342½.*]</p> <p>4. Bankruptcy (§ 225*) — Referees—Contest—Notice of Decisions.</p> <p>Where there is an appearance in a contest before referees in bankruptcy, the litigating parties should be notified of the referee’s decisions.</p> <p>[Ed. Note. — ITdr other cases, see Bankruptcy, Dec. Dig. § 225.*]</p> <p>5. Bankruptcy (§ 342½*) — Trustees—Payment of Funds.</p> <p>Trustees in bankruptcy should not execute orders of referees on contested claims for the payment of money' until opportunity for appeal or review had been given.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 530; Dec. Dig. § 342½.*]</p> <p>6. Bankruptcy (§ 225*) — Referees—Hearing—Notice.</p> <p>Where creditors do not appear, or where they appear and their appearance is not noted, no duty rests on the referee to give notice of his decisions, especially where claims are presented and no objection is made.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 225.*]</p>

<p>1. Equity (§ ISO1*) — Brno--IJultifaeioxisness.</p> <p>Where a bill filed against several persons involved matters of tlio same nature, forming n connected series of acts intended to defraud and injure plaintiff, in which all the defendants were concerned and each had an Interest in some material part of the suit, the bill was not multifarious, though all were not jointly interested in each act.</p> <p>[Ed. Note. — Por other cases, see Equity, Cent. Dig. §§ 371-379; Dec. Dig. § 150.*]</p> <p>2. Corporations (§ 320*) — Bilí, by Stockholders — Demand on Corporation . to Sue.</p> <p>A bill'by members of a mutual insurance society to recover funds misappropriated by the society’s officers, and alleging that it would be useless to apply to the board of directors to proceed against the officers who controlled the board, is not within equity rule 94, requiring stockholders to demand action by a corporation before suing for the corporation’s benefit in their own name.</p> <p>[Ed. Note. — Por other eases, see Corporations, Cent. Dig. § 1429⅜ ; Dec. Dig. § 320.=']</p> <p>3. Corporations (§ 316*)- — Officers—Sale op Official Position.</p> <p>Defendant 6. for many years had been manager and in control of an insurance society through proxies. He manipulated the board of directors, and his sendees had been such that his acts were never questioned. He was made a director, and had a contract, that had four years to run, by which he received commission on insurance issued. This he transferred to defendant R. for $125,000, which R., who was notoriously insolvent, procured from a bank. Immediately thereafter and on the same day R., who had been manager of another insurance company, sold its list of policy holders, which was valueless, to defendant company for $200,000, from which sum he repaid the money borrowed from the bank and appropriated the remainder to himself, after which he caused Gf.’s commission agreement to be extended for 25 years. Reid, that G. occupied a position of trust, which he could not sell, and that he, being put on inquiry as to the purpose of the transaction, was liable for the amount received to the corporation.</p> <p>[Ed. Note. — Por other cases, see Corporations, Dec. Dig. § 316.*]</p> <p>4. Corporations (§ 316*) — Misuse op Funds.</p> <p>Defendant R., who was insolvent, purchased the office of general manager of defendant insurance society from the incumbent for $125,000, which he obtained as a part of the consideration of a sale immediately made thereafter to defendant society of a worthless list of policy holders in another insurance company in failing circumstances. Reid, that the president of defendant company and R., having' participated in such transaction, were responsible for the return of such money to defendant company.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 316.*]</p>

<p>Habeas Corpus. On final hearing.</p>

<p>1. Bankkuptcy (§ 100*) — Adjudication—Application to Vacate — Baches.</p> <p>Bankr. Act July 1, 1S9S, c. 541, § 18b, 30 Stat. 551 (U. S. Comp. St. 1901, p. 3429), provides that the bankrupt or any creditor may appear and plead to the petition within five days after the return day, or within such further time as the court may allow. Involuntary proceedings were instituted against a corporation, and on November 4, 1908, a majority of its directors, including N. and H., passed a resolution directing its attorney to consent to an immediate adjudication. N. and H. were president and vice president of a bank which was a creditor of the corporation, and, an adjudication having passed on November 5th, no objection was made until January 20, 1909, when the bank and N. applied for leave to intervene and contest the adjudication. Sold, that the bank was chargeable with knowledge of the proceedings and that the application should not be granted in the exercise of discretion.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 144; Dec. Dig. % 100.*]</p> <p>2. Bankkuptcy (§ 11*) — Coukts—Jurisdiction.</p> <p>Courts of bankruptcy, being vested exclusively with jurisdiction of all proceedings throughout the country, are not courts of limited jurisdiction.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 11; Dee. Dig. § 11.*]</p> <p>3. Bankkuptcy (§ 84*) — Petition—Amendment.</p> <p>Failure of an involuntary bankruptcy petition to adequately aver that the defendant was a corporation principally engaged in manufacturing as a basis on which the adjudication was sought was not jurisdictional, but could be cured by amendment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig.' §§ 126, 128; Dec. Dig. § S4.*j</p> <p>4. Bankkuptcy (§ 100*) — Adjudication—Conclusiveness—Appeal.</p> <p>Under Bankr. Act July 1, 1S98, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), authorizing an appeal from an adjudication within 10 days thereafter, an adjudication not appealed from within such time becomes final, not only as against the parties named in the record, but as against creditors with notice.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 142, 143; Dec. Dig. § 100.*]</p>

<p>1. Criminal Law (§ 242*) — Removal Proceedings — Evidence — Certification.</p> <p>Testimony, with photographic exhibits, taken in proceedings to remove accused for trial from one federal district to another, if admissible in a subsequent proceeding for removal under indictments against different persons should be taken anew, and should not be certified from the proceeding in which they were introduced.</p> <p>[Ed. Note. — For other cases, see Criminal Caw, Dec. Dig. § 242.*]</p> <p>2. Habeas Cobp us (§ 83*) — Retur n- Tr a v e use .</p> <p>Where the return to a writ of habeas corpus is not traversed, issues of law only are raised.</p> <p>TEd. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 75; Dec! Dig. § 83.*]</p> <p>3. Habeas Corpus (§ 83*) — Return—'Traverse.</p> <p>Under Rev. St § 700 (U. S. Com]). St. 1901, p. 594), providing that the return to a writ of habeas corpus and all suggestions made against it may be amended by leave of court, or justice, or judge, before or after the same is filed, so that the material facts may be ascertained, the Ridge hearing a writ ot habeas corpus may permit the writ to be traversed at tire hearing, in order to raise issues of fact.</p> <p>[Ed. Note. — Eor other cases, see Habeas Corpus. Cent. Dig. § 75; Dec. Dig. § 83.*]</p> <p>4. Indictment and Information (§ 26*) — Caption—Erroneous Indorsement.</p> <p>The caption of an indictment being no part of the bill, a mistake in the caption by substituting another person not included in the indictment for one of the defendants did not alter the fact that the indictment was against those charged.</p> <p>[Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. § 116; Dec. Dig. § 26.*]</p> <p>5. Criminal Law (§ 242*) — Removal of Accused for Trial — Hearing.</p> <p>Where, on an application to remove accused to the District of Columbia for trial on indictments found against him in that District, he admitted his identity with the párty charged in the indictments, the commissioner was then required to determine whether the indictments charged offenses against^the United States, and, if so, whether they were triable in the District of Columbia.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 509, 510; Dee. Dig. § 242.*]</p> <p>6. Indictment and Information (§ 15*) — Place of Crime — Conflicting Indictments.</p> <p>Where separate indictments found in the Southern district of New York and in the District of Columbia charged the same offenses committed at the same time by the same person, the Washington indictments charging them to have been committed there, and the New York indictments charging them to have been committed in the Southern district of New York, such indictments were not mutually exclusive, so as to entitle accused to discharge on both.</p> <p>[Ed. Note. — For other cases, see Indictment and Information, Dec. Dig. § 15.*]</p> <p>7. Conspiracy (§ 33*) — “Fraud”—Offenses.</p> <p>“Fraud,” within Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), prohibiting conspiracy to defraud the United States, is not limited to fraud against property of the United States, but includes fraud against its rights of government.</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. § 60; Dee. Dig. § 33.*</p> <p>Eor other definitions, see Words and Phrases, vol. 3, pp. 2943-2954; vol. 8, p. 7066.]</p> <p>8. Conspiracy (§ 33*) — “Conspiracy to Defraud” — Agricultural Reports —Advance Information.</p> <p>A conspiracy to obtain advance information of government agricultural reports and statistics before official publication did not constitute a “conspiracy to defraud” the United States, prohibited by Rey. St. § 5440 (U. S. Comp St. 1901, p. 3670).</p> <p>[Ed. Note. — Eor other cases, see Conspiracy, Cent. Dig. § 00; Dec. Dig. § 33.*]</p> <p>9. Conspiracy (§ 33*) — “Conspiracy to Defraud” — Agricultural Reports —Advance Information.</p> <p>A conspiracy to cause the publication of incorrect monthly agricultural reports concerning the cotton crop of the current year constituted a “conspiracy to defraud” the United States, prohibited by Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3670).</p> <p>[Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 60; Dec. Dig. § 33.*]</p> <p>10. Bribery (§ 1*) — Govisrxmf.nt Employes — Divulging Secret Information —‘Tjawi'ul Duty.”</p> <p>Regulations of the Agricultural Department having forbidden the giving out of any statement whatever relating to the business of the department without the approval of the chief of 1lie bureau, and secrecy having been imposed on all employes by the established usage and practice of the department, indictments charging bribery of an associate statistician of the Bureau of Statistics of the Department of Agriculture to divulge the contents of the current cotton crop report in advance of its official publication stated an offense under Rev. St. § 5451 (II. S. Comp. St. 1901. p. 3080), making it a crime to bribe any person acting for the United States in any official function to do or commit any act in violation of his lawful duty; the words “lawful duty” not being limited to duty imposed by law or statute, but include duty lawfully imposed in any manner.</p> <p>[Ed. Note. — For other cases, see Bribery, Dec. Dig. § 1.*]</p> <p>11. Criminal Daw (S 242*) — Removal of Accused--Proceedings — Scope.</p> <p>Where accused was charged with bribing an officer of the United States to violate his official duly, whether the person bribed, was an officer, or was acting in an official capacity, or was violating a lawful duty, when he gave out information for which he was bribed, was for the determination of the trial court, and not for a United States commissioner on the hearing of an application to remove accused to the federal district in which the indictments were found for trial.</p> <p>LKd. Note. — For other cases, see Criminal Daw, Dec. Dig. § 242.*]</p>

<p>Habeas Corpus.</p>

<p>Bankruptcy (§ 347*) — Claims—Priority—Costs on Dissolved Attachment.</p> <p>Bankr. Act July 1, 1898, e. 541, § 64b (5), 30 Stat. 563 (U. S. Comp. St. 1901, p. 3448), provides that debts owing to any person who by the laws of the states is entitled to priority shall be entitled to priority in bankruptcy. Pub. Laws 1902, R. I., p. 61, c. 984, § 4, declares that every common-law assignment shall be effectual to dissolve any attachment placed on the property not more than four months prior to the making of an assignment, and the costs of the attachment, levy, or lien shall be a preferred claim against the assigned estate as part of the costs of administering the trust. Held that, where an attachment under the state law is dissolved by the institution of bankruptcy proceedings, the attaching creditor is entitled to the costs of the attachment as a preferred claim.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent Dig. $ 538; Dec. Dig. § 347.*]</p>

In Bankruptcy. The following is the certificate of the referee as to the claim of the Clark Bros. Bolt Company. I, Henry G. Newton, one of the referees of said court in bankruptcy, do hereby certify that, in the course of said proceedings before me, there arose a question as to the allovrance of the claim of Clark Bros. Bolt Company.

<p>1. Parties (§ 75*) — Defect of Parties — Or jectton™Time to Raise.</p> <p>An objection tbat there is a defect of parties defendant and a misjoinder of parties plaintiff should not be raised on a motion for preliminary injunction. but on plea, answer, or demurrer.</p> <p>risa. Note. — For other cases, see Parties, Cent. Dig. § 115; Dec. Dig. § 75.*]</p> <p>2. Equity (§ 149*) — F>it,t. by Stockholders' -Parties.</p> <p>Where, in a suit by stockholders against defendants as corporate directors, the only relief prayed was that defendants be enjoined from issuing any of the company's new stock without first giving complainants a reasonable opportunity to take their proportionate share, and from voting or permitting any one to vote any such stock that may have been issued in violation of complainants' rights, complainants had a common interest in such relief, and could properly be joined in a single bill.</p> <p>IRd. Note. — For other cases, see Equity, Cent. Dig. § 368; Dec. Dig. § 149.*]</p> <p>3. Corporations (§ 158*) — New Stock — Rights of Existing Stockholders.</p> <p>Directors of a corporation are not entitled to issue now stock without giving the majority stockholders a preference right to subscribe for their proportionate share thereof.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. § 589; Dec. Dig. § 158.*]</p> <p>4. Corporations (§ 158*) — New Stock — Issuance Right to Subscribe — Preliminary Injunction.</p> <p>Where directors of a corporation sought to issue new stock without giving the old majority stockholders a reasonable opportunity to subscribe for their proportionate share, in order that the control of the corporation might be wrested from them, such stockholders were entitled to a preliminary injunction restraining the issuance of the stock without giving complainants such an opportunity, and from voting or permitting any one to vote any of the stock that had been issued.</p> <p>[Ed. Note.' — For other cases, see Corporations, Cent. Dig. §§ 587-092; Dec. Dig. § 158.*]</p>

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

<p>In Bankruptcy. On review of referee’s decision disallowing claim of exemption.</p>

<p>Admiralty (§ 57*) — Enforcement of Decree — Payment by Surety — Bight to Execution.</p> <p>Evidence held insufficient to show that the surety on a stipulation for the release of a vessel libeled for salvage agreed to look to the insurers alone for indemnity and release the owners, which precluded it from the right to issue execution against the latter on payment of the decree.</p> <p>[Ed. Note. — Eor other cases, see Admiralty, Dec. Dig. § 57.*] .</p>

This is an action at law Drought by the state of Maryland, to the use of Prances C. Hutchison, widow of John C. Hutchison, deceased, and his four infant children, Bessie Louise Hutchison, Catherine Hutchison, George I-Iutehison, and Lois Hutchison, against the mayor and city council of Baltimore, Md., for damages sustained by the equitable plaintiff as the result of the death of said John O. Hutchison in an accident caused by the alleged negligence of the defendant in…

<p>1. Electricity (§ 15*) — Death fboai Contact' with Li vis Electric Wire.</p> <p>Where the inside wiring for lighting by electricity of a private house, such as a shop, is done under an independent contract with the owner of the building, and in accepted by him and approved by the city inspector as sufficient, such inside wires become the private property of the proprietor of the building, and, are subject to his exclusive control. A third party voluntarily and uninvited entering such shop to ascertain the cause of and to extinguish a Are therein is a mere licensee, to whom the company furnishing the electric current, to the house owes no obligation other than not to wantonly or knowingly injure him. And where such inside wiring becomes imperfectly insulated by the act of the owner of the building, without notice thereof to the electric company, resulting in injury to such licensee, held not to give a cause of action for such injury against the company in favor of the legal representative of the deceased licensee.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § 15.*]</p> <p>2. Trial (§ 244*) — Error in Charge to tjie Jury.</p> <p>It devolves upon the plaintiff in an action for damages based upon the-negligence of the defendant not only to present in his petition a definite theory upon which the negligence is predicated, but to support it by tangible evidence as distinguished from mere conjecture and possibility. Where the evidence leaves the matter uncertain as to which one of several things immediately brought about the injury, for some of which the defendant is answerable and for others he Is not, it is error for the court to single out a responsible act and suggest to the jury that they may infer it, without directing their attention to other inferences, more or equally reasonable, exculpatory of the defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 244.*]</p> <p>8. Electricity (§ 19*) — Injuries—Actions--Doctrine of Res Ipsa Loquitur.</p> <p>The doctrine of res ipsa loquitur is at best uncertain, and should not be applied except where it not only supports the conclusion contended for, ■blit also reasonably excludes all others. It is limited to cases of absolute duty, or an obligation practically amounting to that of an insurer. Held, that it cannot be invoked to hold liable an electric company furnishing a current of electricity to a private house, connecting with inside wiring owned by and under the exclusive control of the proprietor of the building. for an injury resulting directly from the imperfect insulation and condition of such inside wiring, merely because the electric company is producing and furnishing the dangerous and subtle element of electricity under a contract with the owner of the building.</p> <p>[Ed. Note. — For other cases, see Electricity, Dec. Dig. § 19.*]</p> <p>(Syllabus by the Court.)</p>

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

<p>1. Insurance (§ 14a*) — Construction op Contract — Guaranty Insurance.</p> <p>A surety bond for an employe, issued on an application made by the employer, was expressly limited to the term of one year, but provided for its renewal on the payment of a like or agreed premium annually “so long as the employer may wish to continue this bond and the company shall consent to receive such premium.” Held, that renewals wore left as a matter for future contracts between the parties, and that, where new applications therefor were required and made, they, and not the original application, governed as to the renewal terms based i liereon.</p> <p>[ Ed. Note.~For other cases, see Insurance, Cent. Dig. § 287; Dec. Dig. § 143.*</p> <p>Guaranty insurance, see note to American Credit Indemnity Co. v. Wood, 19 C. C. A. 271.]</p> <p>2. Insurance (f GOO*) — Action on Pomoy — Instructions.</p> <p>Instructions considered in an action on surety bonds given for an employe, arising out of his defalcations which were not discovered until after his death, and held to require a reversal on the ground that they did not sufficiently explain to the jury the effect of a settlement between plaintiff and the widow of such employe, after a small part of the defalcation had been discovered, under a mutual mistake in supposing that all had been discovered.</p> <p>LEd. Note.- — For other cases, see Insurance, Doc. Dig. § 669.*]</p>

<p>1. Con stitutt on at. Law (§ 169*) — Statut.es Impairing Obligation of Con-TKACTS — IMPAIRMENT OF REMEDY.</p> <p>The impairment of the obligation of a contract by a state, which is forbidden by the Constitution of the United States, is not limited to cases where the statute destroys the remedy for enforcement of the contract and provides no other, but includes all cases where the substitution of a different remedy is of one in substance more difficult, more burdensome and uncertain than the one repealed, and whicli appreciably lessens the value of the contract.</p> <p>[Ed. Note - -For other cases, see Constitutional Law, Cent. Dig. § 474.; Dec. Dig. § 169.*]</p> <p>2. Constitutional Law (§ 168*) — Statute Impairing Obligation op Contract-Impairment of Remedy.</p> <p>Relator recovered a judgment against the defendant city based on a contract payable from current taxi's. At the time when the contract was made such taxes which might be levied were limited by the city’s charier, and the property taxable was required to be assessed by the city recorder at its full value. Subsequently a state statute, Acts Tenn. 1895, p. 203, c. 120, required all assessments to be made by a county assessor, whose assessments are reviewed, first by the county hoard, and next by the stale board of equalization; and this assessment is to he copied by the city recorder for city purposes. Hold that, as against relator, such statute was Void as impairing the obligation of his contract by depriving him of a remedy against the recorder to compel an assessment of property at its true value; that it therefore did not repeal the provision of the charter for assessment by the recorder, and that he could be compelled by mandamus to reassess property for previous years which had been assessed by the county assessor at less than its value, and to levy and collect taxes on the valuation omitted, to be applied on relator’s judgment.</p> <p>TEd. Note.- — For other cases, see Constitutional Law, Cent. Dig. § 475; Dec. Dig. § 168.*]</p> <p>3. Majtdamus (§ 116*) — Levy op Taxes — Enforcement of Judgment.</p> <p>Where a city was given by statute authority to borrow money for the erection of public buildings and to issue its bonds therefor and levy a special tax for their payment, it had not the right to use its current revenues for the erection of such buildings as against a judgment creditor whose judgment is payable only from the surplus of such revenues above current expenses; and, where it has so diverted current revenues, the judgment creditor is entitled to be substituted to the right which a bondholder would have had, and to compel the levy of a special tax to replace the money so diverted.'</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 243; Dee. Dig. § 116.*]</p> <p>4. Mandamus (§ 176*) — Scope of Belief.</p> <p>In granting a writ of mandamus to compel the levy of a tax by a municipal corporation to pay a judgment, the court may, in the exercise of broad equity powers, direct the distribution of the tax over a number of years, where it would otherwise impose a hardship) on taxpayers.</p> <p>[Ed. Note.- — For other cases, see Mandamus, Cent. Dig. § 394; Dec. Dig. § 176.*</p> <p>To enforce payment of judgment against municipality, see note to Holt County v. National Life Ins. Co., 25 C. C. A. 475.]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>This was an action in tort for the negligent injury of the defendant in error while in the service of the plaintiff in error. Yanuszka was operating a device known as a “seven-inch shears,” used for the purpose of cutting bundles of iron rods in proper lengths. That machine, as described in the brief of counsel for plaintiff in error, consisted in “a framework supporting two shafts with pulleys and cog wheels attached for the purpose of receiving power and transmitting it to the shears, which consist of two long levers, placed one above the other, each bearing a blade at one end, and also supported by the framework of the machine. These shafts lie in the same horizontal plane, and to the end of one of them a cam is attached, and so arranged that when the machine is in use it causes one of the levers to move up and down, thus mating the shears operate in precisely the same manner as an ordinary pair of scissors. The lower lever is stationary, and the upper one is suspended on a fulcrum between the point where the cam comes in contact with it and the blade. One of the cog wheels is about 2½ feet in diarrieter, while the other is about 9 inches in diameter. These cog wheels operate in the same perpendicular plane, meshing into one another on the downward movement, and serve the purpose of transmitting power from the shaft, to which the pulley is attached to the one bearing the cam, at a reduced speed. A fence or railing is constructed around the machine, with the excexjtion of the blades or shears, which project beyond and in front of it, so as to be convenient for operation. This railing was constructed by placing at each comer of the machine a 4 by 4 post about 4 feet high, and nailing boards horizontally from post to post.”</p> <p>This statement is supplemented by the statement, in the brief of counsel for Yanuszlta, that it should show where Xanuszka had to stand with reference to the cogs in which his hand and arm became engaged. Counsel as to this say:</p> <p>“Let the shears at which the defendant in error was at work be represented by an ordinary pair of scissors, situated in a horizontal position, the upper jaw working perpendicularly against the lower jaw, which is stationary. The defendant in error, while at work, had to stand facing the side of the jaws or blades, his left hand being next to the gear wheels and cogs operating the shears, and which -were immediately beside the shears. The gears consisted of two cog wheels, meshing together on the downward movement. The distance from where the operator stood to the mesh of the gears was from 7 to 18 inches.”</p> <p>The negligence charged by the petition, which under the Ohio Code pleading corresponds to a common-law declaration, was as follows:</p> <p>“First. In directing plaintiff to work so near to said exposed cog wheels.</p> <p>“Second. In failing to properly box, cover, and shield said cog wheels.</p> <p>“Third. In not providing plaintiff a safe place in which to work.”</p> <p>There was a jury, and verdict and judgment for the plaintiff below. The defendant has sued out this writ, and assigned error.</p>

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

of New York. The Circuit Court reversed a decision by the Board of United States General Appraisers (G. A. 6,617, T. D. 28,246), which had reversed the assessment of duty by the collector of customs at the port of New York. The opinion of the Circuit Court reads as follows: DACOMBE, Circuit Judge. This case forcibly indicates the defects of the old practice, whereby the proofs were taken in part before the Board of Genera!

Appeals from the District Court of the United States for the Eastern District of Michigan, in Admiralty. These appeals involve the question of liability (under libel and cross-libel) for a collision between the’ steel steamer Amasa Stone, owned by the Mesaba Steamship Company, and the steel steamer Etruria, owned by the Hawgood Transit Company, occurring in Lake Huron, off the Michigan shore, about seven miles above Presque Isle, at about 3:45 a. m., June 18, 1905.

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

In 1S69 George Westfeldt bought at the bankruptcy sale of B. H. Cunningham several tracts of land lying in the county of Macon and state of North Caroliná, which had been granted in 18G0 by that state to Cunningham.

<p>Negligence (§ 27*) — Dangerous Machinery — Liability of Manufacturer or Vendor.</p> <p>A manufacturer and licenser of shoe machinery by which an operator was injured, while in the possession of the operator’s master, because it had fallen into disrepair, owed no duty to such operator which would render it liable for such injury, though it voluntarily and without consideration had assumed to him the obligation of keeping the machine in repair. Savings Bank v. Ward, 100 U. S. 195, 202, 25 L. Ed. 621 et seq., applied.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 25; Dec. Dig. § 27 *</p> <p>Liabilities of manufacturers and vendors of injurious substances or defective machinery and appliances for injuries to persons other than immediate vendees, see note to Standard Oil Co. v. Murray, 57 C. C. A. 5.]</p>

<p>1. Evidence (§ 527*) — Opinion Evidence.</p> <p>In an action for injuries to a servant by tlie breaking of a sewing machine needle in a shoe factory, an expert’s opinion that the breaking was caused by the needle being struck' by a loose looper-lever in consequence of the worn condition of the guide was to go to the jury on plaintiff’s claim that the breaking of the needle resulted from the defective condition of the machine.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2031; Dec. Dig. § 527.*]</p> <p>2. Master and Servant (§ 2S6*) — Injuries to Servant — Defective Machinery — Natural Consequence — Anticipation.</p> <p>In an action for injuries to a servant by the breaking of a needle in a defective sewing machine in a shoe factory, evidence held to require submission to the jury of the question whether the injury was the natural consequence of the defective machine, and whether the defect was one as to which defendant had reason to anticipate the possibilities to such an extent that it was bound to guard against them.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 280.*1</p> <p>8. Master and Servant (§ 288*) — Injuries to Servant — Defective Machinery — Repairs—Assurances.</p> <p>Plaintiff was employed to operate a sewing machine in a shoe factory, which having become defective, defendant employed an expert to repair it. After considerable time he reported that the machine had a worn needle guide, and called plaintiff’s attention to the fact stating that “it was all right if it didn’t give plaintiff any trouble”; that most operators preferred a worn guide, nothing being said concerning the fact that the looper-lever of the machine was loose. Held, that it was for the jury to determine whether the expert’s statement was a sufficient assurance to plaintiff that the machine was safe.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1084. 1085; Dec. Dig. § 288.*]</p> <p>4. Master and Servant (§ 2S8*) — Injuries to Servant-Defective Machine —Promise to Repair.</p> <p>■Where a master expressly promised to repair a defect in a machine, and after attempting to do so the operator’s foreman and expert assured him that the machine was "O. K.,” it was for the jury to determine whether the operator was entitled to recover for an injury occurring on the succeeding day duo lo a defect in the machine. Hough v. Railroad Company, 100 TJ. S. 213, 225, 25 I* Ed. 612, applied.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1084, 1085; Dec. Dig. § 288. *]</p> <p>5. Master and Servant (§ 286*) — Injuries to Servant — Defective Machín - ery — Repairs.</p> <p>Where an employer, who is not a manufacturer of machines, contracts with the manufacturer or other mechanician whose business it is to manufacture or repair such machines, and who has a proper reputation In reference thereto, to use proper and reasonable efforts In putting the machine in proper order, the employer may not be liable for injuries in consequence of the oversight or neglect of the person so employed. Railroad Co. v. Elliott, 149 U. S. 266, 272, 13 Sup. Ct 837, 37 L. Ed. 728, applied.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dee. Dig. § 286.*]</p>

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

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

<p>1. Bankruptcy (§ 68*) — Involuntary Proceedings —■ Persons Who may be Adjudged Bankrupt — Farmers—“Engaged Principally in' Farming.”</p> <p>A farmer does not cease to be “engaged principally in farming,” within the meaning of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 517 (U. S. Oornp.- St 1901, p. 3423), because he establishes a dairy as one of the branches of his industry, to utilise the products of his farm and convert them to profitable uses, nor because he may sell the products of his dairy at retail.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 68.*</p> <p>What persons are subject to bankruptcy law, see note to Mattoon Nat. Bank v. First Nat. Bank, 42 C. C. A. 4.]</p> <p>2. Bankruptcy (§ 68*) —Involuntary Proceedings — Persons Who may be Adjudged Bankrupt--Farmers — "Engaged Principally in Farming.”</p> <p>An alleged bankrupt had for many years lived upon and carried on a large farm, amounting, together with some leased land, to 1,700 acres, which was devoted to cultivation and grazing. Among other live stock he kept about 100 cows, which were maintained on the products of the farm, except that he sometimes bought and fed malt from breweries. The milk from such cows he sold in a city some miles distant, for a time from his own wagons, and afterwards by means of a large refrigerator, in which ho stored the milk and employed men to retail it. The value of the yearly products of his farm, outside of the dairy business, was about $17,5W, and of his dairy not more than $10,000. Helé, that he was “engaged principally in farming,” within the meaning of Bankr. Act July I, 1898, c. 641, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), and was not subject to proceedings in involuntary bankruptcy.</p> <p>[Ed. Noto. — For other cases, see Bankruptcy, Dee. Dig. § 68.*]</p>

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

<p>1. Customs Duties (§ 85*) — Further Evidence on Appeal.</p> <p>On appeal from the Board of General Appraisers, under Customs Administrative Act June 10, 1890, c. 407, § 15, 2G Stat. 138 (U. S. Comp. St. 1901, p. 1933), importers offered evidence as to items of their merchandise with respect to which they had introduced no evidence before the board. Held, that, it was inadmissible.</p> <p>■ [Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 85.*]</p> <p>2. Customs Duties (§ 84*) — Practice—Peesumed Abandonment of Case.</p> <p>At a hearing on an importers’ protest by the Board of General Appraisers the importers rested their case after introducing evidence as to a portion of the items included in the importation in question. Held, that the board was justified in assuming that the importers had limited their claims to those items and had abandoned it as to the other items.</p> <p>[Ed. Note. — For other eases, see Customs Duties, Dee. Dig. § 84.*]</p> <p>3. Customs Duties (§ 85*) — Objection to Further Evidence — Estoppel.</p> <p>On appeal from the Board of General Appraisers, under Customs Administrative Act June 10, 1890, e. 407, § 15, 26 Stat. 138 (U. S. Comp. St. 1901, p. 1933), the importers had taken some evidence in the Circuit Court, when the government objected to the introduction of further evidence because none had been offered before the board. Held, that the fact that this objection might have been raised at an earlier stage of the proceedings did not estop the government from relying on it when raised.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 85.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>On appeal by the importers from a decree of the Circuit Court for the Southern District of New York (159 Fed. 320), which affirmed a decision of the Board of General Appraisers^ sustaining the classification of the collector. The judge of the Circuit Court, being under the impression that it was the desire of both parties to have the question involved determined by this court, made a pro forma decision merely.</p>

This cause comes here upon appeal from a decision of the Circuit Court, reversing a decision of the Board of General Appraisers (G. A. 5,688, T. D. 25,330), which sustained the action of the collector under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626).

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

<p>!L Peooess (§ 142*) — Service—Return—Impeachment.</p> <p>Since the verity of the return of a summons in an action for injuries might have been challenged and tried by proper proceedings in that action, and defendant, an indemnity insurance company, was entitled to defend that action and to exercise the same right to have the return set aside, the validity of such return was subject to impeachment in an action by the insured against the insurer to recover on the policy the loss sustained by a judgment against the insured in the injury action.</p> <p>[Ed. Note. — For other cases, see Process, Gent. Dig. § 193: Dec. Dig. § 142.*]</p> <p>2. Insurance (§ 539*) — Accident Indemnity — Action for Injuries — Defense —Notice—Conditions—Compliance.</p> <p>Plaintiff, on obtaining notice of an accidental injury for which it was liable, immediately notified defendant insurer thereof, giving full information of all the facts from which the insurer could know what and how defenses might be made to the action. Thereafter a summons was filed in the injury action, returned as served on plaintiff by delivering a copy to a person described as plaintiff’s secretary, but who in fact was neither an officer nor agent of plaintiff company. Plaintiff had no knowledge of the summons or suit, or that a default had been taken, until nearly a year thereafter, when immediate notice was given to insurer, requesting it to appear and defend, and informing it concerning the falsity of the return. Defendant denied liability, because the summons had not been immediately forwarded to it, under a provision of the policy requiring assured to immediately forward any summons or other process as soon as it had been served, etc. Held, that there was a substantial compliance with the contract by assured, under the rule that, to escape liability, the insurer under such contracts must show that the breach is something more than a technical departure from the letter of the bond, resulting to its substantial prejudice.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 539.*</p> <p>Time for notice of loss, see note to Roviek v. Railway Officials & Employes’ Acc. Ass’n, 55 C. C. A. 376.]</p>

<p>1. Indians (§ 16*) — Leases—Construction.</p> <p>Where a lease of Indian lands required the lessee to put all the land in cultivation by the end of the second year and to construct an eight-wire fence around the entire tract, the stipulation requiring cultivation by the end of the second year fixed the limit of time for completing the inelosure, in the absence of a provision to the contrary.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 16.*]</p> <p>2. Indians (§ 10*) —INDIAN Lands — Leases — Repudiation—Tebmination of Lease.</p> <p>Whore lessees of Indian lands before the end of the contract term repudiated all duly and responsibility thereunder, and asserted that the lease was void and that the lessor had no right to the laud, they thereby terminated the term and entitled the lessor to sue Cor possession.</p> <p>[ICd. Note. — Por other cases, see Indians, Dec. Dig. § 16.*]</p> <p>S. Indians (§ 16*) — Indian Lands — Goal Lands — Impbovements.</p> <p>Where plaintiff leased certain Indian lands, which were subsequently set apart as coal lands, so that plaintiff selected her allotment quota elsewhere. she did not thereby forfeit such improvements on the leased land as belonged to her, and was entitled to regain possession in order to remove the improvements.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 16.*]</p>

The court below reversed a decisiou by the Board of United Stales General Appraisers (163 Fed. 65), which had affirmed the assessment of duty by the collector of customs at the port of New York. Note 0. A. 6, U3 (T. D. 27,690).

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The Circuit Court affirmed, without opinion, a decision by the Board of United States General Appraisers, which had reversed the assessment of duty by the collector of customs at the port of New York.</p>

<p>Appeal and Eeeor (§ 1001*) — 'Verdict- -Review — Appellate Jurisdiction.</p> <p>Whore, in an action for injuries, the questions of negligence, contributory negligence, and proximate cause are for the jury, the Circuit Court of Appeals has no power to change the jury’s verdict, even if in its opinion the verdict; is erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. - § 8922 ; Dec. Dig. § 1001.*]</p>

The court lielow reversed, without opinion, a decision of the Board of United States The merchandise in dispute consisted of dragees, which are small spherical or spheroidal objects, with a sugar coating anil a sweet taste, and which the hoard stated in its opinion are used by bakers for decorating cakes and to some extent by confectioners. The collector assessed duty on the articles under Tariff Act July 21, 1897. e. 11, S 1. schedule E, pur. 212, 20 Si at. 1(58 (U. S. Comp.

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

The opinion below is the same as stated in Bidwell v. Preston (C. C. A.) 160 Fed. 653. These proceedings were brought in behalf o.f George R. Bidwell, plaintiff in error, and ex collector of customs at the port of New York, against Gustav Amsnick and others, defendants in error.

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

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

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

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

<p>1. Patents (§ 81*) — Evidence as to Obiginalitt oí Invention — Bubden oí Prooí.</p> <p>In a suit for infringement of a patent for a design, where it is shown that such design was in use, and articles made in accordance with it were in the market prior to the filing of the application for the patent, the burden rests on tbe complainant to establish by dear and satisfactory evidence that the patentee’s invention preceded the date of such use.</p> <p>(Ed. Note. — For other cases, see Patents, Cent. Dig. § 104; Dec. Dig. § 81.*]</p> <p>2. Patents (§ .’¡28 *)- Proof oí Original Invention — Design íob Ribbon.</p> <p>The Corbett design patent No. 38,581, for a design for a ribbon, held void on the ground that the patenlee was not the original inventor.</p> <p>IKd. Note. — For other cases, see Patents, Cent. Dig. § 99; Dec. Dig. § 328.*]</p>

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

In Equity. This is an application by the receivers of the properties of eight different public service corporations, engaged in manufacturing gas and generating electricity and transmitting and supplying same to municipal corporations and others for lighting and power purposes, for authority to issue receivers’ certificates to raise money with which to repair,’ improve, and put in working condition the plant of one of the subordinate defendant companies, viz., the plant of…

<p>1. Food (§ 24*) — Pubis Food Law — Condemnation—“Oread.”</p> <p>A libel for condemnation of catsup, alleging that it was misbranded, in that it was made in part from tomato pulp screened from peelings and cores, as ihe “offal” of tomato canning factories, and not from choice ripe tomatoes, etc., as stated in the labels, did not charge a violation of the provision, of the pure food law (Act Cong. June 30, 1906, c. 3915, § 7, par. 6, 34 Slat 768 [U. S. Comp. St Supp. 1907, p. 9321) relating to preparations consisting in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance; the words “as the offal of tomato canning factories” being of no exact signification, and the word “offal” not the equivalent of a charge that the tomato pulp was a filthy, decomposed, or putrid vegetable substance.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 24.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 4915.]</p> <p>2. Food (§ 24*) — Pure Food Law — Misbranding—Libel.</p> <p>Where a libel to condemn food for violation of the pure food law alleges misbranding, prohibited by Act Cong. June 30, 1906, c. 3915, § 7, 34 Stat. 708 (U. S. Comp. St. Supp. 1907, p. 930), it is essential that the libel should set forth the branding and facts inconsistent therewith, and, if there is indefiniteness in the statement, it must be removed by proof.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 24.*]</p> <p>3. Food (§ 21*) — Condemnation—Libel.</p> <p>Where a libel for misbranding catsup alleged that the label stated the catsup was made from choice ripe tomatoes, etc., when in fact it was made in part from tomato pulp screened from peelings and cores as the offal of tomato canning factories, and not from choice ripe tomatoes, etc., it would not be assumed, from tile fact that the peelings and cores were not used in a tomato canning factory, that they were not suitable for making tomato catsup.</p> <p>[Ed. Note.- — For other eases, see Food, Dec. Dig. § 24.*]</p> <p>4. Evidence (§ 20*) — Judicial Notice — Food Processes.</p> <p>Judicial notice may be taken of the fact that screening or sifting is one of the processes of catsup making.</p> <p>[Ed. Note. — For other cases, see Evidence, Dee. Dig. § 20.*]</p> <p>5. Food (§ 24*) — Condemnation—Puke Food Law — Burden of Proof.</p> <p>The pure food law (Act Cong. June 30, 1906, c. 3915, 34 Stat. 768 [U. S. Comp. St. Supp. 1907, p. 928]) provides that proceedings for condemnation shall conform to proceedings in admiralty. Admiralty rule 20 declares that, on the taking of a libel pro confesso, the court shall proceed to hear the cause ex parte and adjudge as to law and justice shall appertain. Held, that where a libel against catsup charged misbranding, in that it recited that the catsup was made form choice ripe tomatoes, when in fact it was made in part from tomato pulp screened from peelings and cores as the offal of tomato canning factories, the libel being confessed, the burden was on the government to prove that the label contained'a statement which was substantially false and misleading.</p> <p>[Ed. Note. — For other cases, see Food, Dec. Dig. § 24.*J</p>

<p>In Bankruptcy. On exception;, to report of H. A. McKillip, referee, sur claim of í. W. Hartman.</p>

<p>In Bankruptcy.</p> <p>The following is the memorandum of the District Judge, referred to in the opinion of the Circuit Court:</p> <p>I think the Oakley memorandum offered is admissible, after proof of loss of books and death of man who made the trial balance in the course of business, to show that there was a Spuyten Duyvel land account in the books of Strang & Holland Bros. From Ballard’s testimony it is probable that the firm of Strang & Holland Bros, was established in 1873; and this, taken in connection with the date (March 21, 1873) asserted in the schedules, renders it not unlikely that the Spuyten Duyvel land was considered as a firm asset on formation of the firm.</p> <p>When these facts and probabilities are taken in connection with Mr. Outhbert’s testimony and the schedules, it is clear that the partners, by their books of account, by Strang’s statement to creditors before bankruptcy, and by their schedules in bankruptcy, asserted firm ownership in this land under water, and the only evidence contra is the deed running to Strang alone, and the fact that the submerged land was apparently not useful in the wool business. But a firm’s assets need not consist solely of what is related to or used in the daily transactions of the partnership. The question is, not whether the firm could use the property, but did it, as matter of fact, own the property? And, if no rule of law be violated by consistent assumption and assertion of ownership, certainly the partners knew best what they owned and why and how they owned it That title should be in Strang’s name violated no rule of law. No formal transfer from him was necessary to vest title in the firm, and after so many years every presumption is in favor of the assertions of the schedules.</p> <p>It is error to consider those schedules as self-serving declarations. No reason appears why Strang should not tell the truth to both firm and individual creditors, and the schedule is in one aspect a solemn oath, taken at the invitation of all creditors of every class.</p> <p>' Being of opinion that the schedules have not been successfully Impugned, but, on the contrary, sustained by some independent evidence, the second question certified is answered by declaring that the property referred to is to be deemed an asset of the firm of Strang & Holland Bros. This renders it unnecessary to answer the first question.</p> <p>There will be no costs awarded.</p>

<p>Building AND Loan Associations (§ 42*) — Insolvency and Receivers — Allowance of Counsel Fees.</p> <p>Tile allowance of fees to counsel for complainant and for the receivers in insolvency proceedings against a building association considered.</p> <p>I Ed. Note. — For other eases, see Building and Loan Associations, Doc. Dig. § 42. *1</p>

<p>Corporations (| (112*) — Foreign Corporations — Liability to Suit — Doing Business in State.</p> <p>A manufacturing corporation of another state, which maintains a selling agent in New York, with authority to make binding contracts for the sale of its goods, merely sending to it directions where to ship, is doing business in New York, and is subject to suit in that state.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520 -2527; Dee. Dig. § 042.*</p> <p>What constitutes doing business in state, see notes to Wagner v. .1. & G. Meakin, 33 C. C. A.. 585; Ammons v. Brunswiek-Balke Collender Co., 72 O. C. A. 022.]</p>

<p>1. Mabitime Liens (§ 19*) — Statutory LrENS — 'Validity and Enforcement.</p> <p>Act N. J. March. 20,1857 (P. L. p. 382), as amended by Act April 24, 1884 (P. L. p. 248), which provides that “whenever a debt shall be contracted by the master, owner, agent or consignee of any ship or vessel within this state * *. * on account of any work done or materials or articles furnished in this state for or towards the building, repairing, fitting, fuip nishing or equipping such ship or vessel * ⅜ * such debt shall be a lien upon such ship or vessel, her tackle, apparel, and furniture, and continue to be a lien on the same until paid, and shall be preferred to all other liens thereon, except mariner’s wages,” applies to vessels owned outside of the state, but the unfinished hulls of which were voluntarily brought therein for completion, and gives a positive lien thereon, which continues until the debt is paid, and which follows them into a foreign jurisdiction and may be enforced anywhere according to the rules of the chancery courts.</p> <p>[Ed. Note. — Eor other cases, see Maritime Liens, Dec. Dig. § 19.* Created by state laws, see note to The Electron, 21 C. C. A. 21.]</p> <p>2. Maritime Liens (§ 17*) — Statutes Creating Liens — 'Validity.</p> <p>The fact that such statute makes no distinction between foreign and domestic vessels, and as applied to the former may as to some of its provisions be in contravention of the principios of tho admiralty law, does not render it void as to any of its provisions not so conflicting.</p> <p>[Ed. Note. — Eor other cases, see Maritime Liens, Dec. Dig. § 17.*]</p> <p>3.. Maritime Liens (g 19*) — Work and Materials Furnished Under Single Contract — Apportionments as Between Several Vessels.</p> <p>Where a joint contract provided that payments should be made to the contractor for labor and materials furnished several vessels at the actual cost and a percentage, with a fixed allowance for use of his machinery according to the amount of work done, hold, that under the statutes of New Jersey there is no inherent difficulty in determining the amount to be paid for labor and materials which went into each vessel, nor in apportioning the liens accordingly.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Dec. Dig. § 19.*]</p> <p>4. Maritime Liens (§ 24*) — Statutory Liens — Necessity of Credit to Vessel.</p> <p>It is not essential to the validity of a lien given by a state statute on a vessel for labor or material furnished in its construction that the same should have been furnished on the credit of the vessel, where the statute does not in terms require it.</p> <p>[Ed. Note. — Eor other cases, see Maritime Liens, Cent. Dig. § 30; Dec. Dig. § 24.*]</p> <p>5. Matutime Liens (§ 49*) — ¡Statutory Liens — Enfoeoemicnt—Laches.</p> <p>One furnishing labor and material for the completion of vessels intended especially to be employed during the Summer season, amounting to over SJ 00,000, is not chargeable with laches which defeats his right to enforce a statutory lien by extending credit to the owner until the close of the first season during which the vessels were to be and were employed.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 88; Dec. Dig. § 49.*]</p> <p>6. Skipping (§ 32*) — Mortgages op Vessel — Construction and Operation— Aiíter-Agqutred Property Clause.</p> <p>A mortgage given by a steamship company covering all the vessels it then owned and all it should afterwards acquire cannot bind after-acquired vessels as against intervening equities of strangers.</p> <p>[Ed. Note. — For other eases, see Shipping, Dec. Dig. § 82.*]</p> <p>7. Maritime Liens (§ 74*) — Statutory Liens — Remedies for Enforcement.</p> <p>Under Act N. J. March 20, 1857 (P. L. p. 882), as amended by Act April 24, 1SS4 (P. L. p. 218), which gives a lien on a vessel for labor or material furnished for its construction in that state, lo continue until payment, and authorizes proceedings in local tribunals for its enforcement, but without excluding other remedies, such lien may be enforced by a court of equity in another jurisdiction, which has 1 alten possession of and is administering the property in insolvency proceedings against the owner, or in a creditors’ suit.</p> <p>[Ed. Note. — -For other cases, see Maritime Liens, Dec. Dig. § 74.*]</p>

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

<p>In Admiralty. Suit and cross-libel for collision.</p>

<p>On Motion for New Trial and for Judgment Notwithstanding the Verdict. Denied.</p>

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

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

<p>In Admiralty. Action to recover contribution in general average.</p>

<p>1. Corporations (§ 202*) — Action bt Stockholder — Injure to Corporation.</p> <p>The declaration alleged that the T. Telegraph Co., in which plaintiff was a stockholder, was organized to operate an independent system throughout the United States, after which the defendant company secured control of the T. Co. by the purchase of its stock, to prevent competition in interstate telephone traffic, which it had planned to carry on. Defendant since so managed the T. Co. as not to develop its business, but to prevent it from doing business, and suppressed competition, until the T. Co. was forced into the hands of a receiver. By such control defendant had monopolized interstate telephone commerce, and thereby rendered worthless plaintiff’s stock in the T. Co., which prior thereto had been worth $15 a share. On demurrer, held, an injury to the corporation, and no! to 1ho stockholders of the T. Co., and that plaintiff could not therefore sue in his own name to recover treble damages under the Sherman antitrust act (Act July 2, 1890, c. «47, § 7, 26 Stat. 210 [U. S. Comp. St. 1901, p. .12021;. giving a right to recover threefold damages to any person who shall he injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by such a«f.</p> <p>[Ed. Note. — For other cases, see Corporations, Dec. Dig. § 202.*]</p> <p>2. Pleading (§ 216*) — Demurrer—Proof.</p> <p>The possibility that proof may be introduced at the trial of an injury other than that alleged in the declaration will not require the overruling of a demurrer thereto.</p> <p>[Ed. Note. — For other cases, see Pleading, Dec. Dig. § 216.*]</p> <p>3. Corporations (§ 211*) — Injury to Corporation — Damages—Declaration.</p> <p>Where, in an action by a stockholder of a corporation against defendant, the only injury alleged was to the corporation, a general averment that plaintiff had been greatly injured in his business and property was insufficient as an allegation of injury to plaintiff distinct from that to the corporation.</p> <p>[Ed. Note, — For other cases, see Corporations, Dee. Dig. § 211.*]</p> <p>4. Corporations (§ 360*) — Receivers—Injury to Corporation.</p> <p>Where a corporation is in the hands of a receiver, an action for injuries to the corporation should be prosecuted by him for the benefit of the corporation’s creditors.</p> <p>[Ed. Note. — -For other cases, see Corporations, Dec. Dig. § 560.*]</p>

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

<p>At Raw. On motion to strike out pleas,</p>

<p>At Law. On defendant’s motion to retax costs. Granted.</p>

In Bankruptcy. On motion to punish the bankrupt for contempt. On certificate of referee. Motion to punish the bankrupt for contempt upon the certificate of the receiver in bankruptcy. The certificate of the referee in charge shows the following: On April 2. 1908, tlie first meeting of creditors was duly held. The bankrupt was not present in person, but was represented by counsel.

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

This appeal is from a final decree dismissing the bill oí complaint, filed by the appellant in the trial court, as an ancillary bill under foreclosure proceedings and creditors’ bill theretofore pending in such court, wherein sale of mortgaged property had been decreed and such sale made to the appellant’s grantor of title therein, and confirmed by the court.

;• Appeal from the Circuit Court of the United States for the District óf Oregon.

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

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

<p>Patents (§ 328*) — Validity and Infringement — Knitting Machines.</p> <p>The Hurley patent No. 572,679, Cor improvements in circular knitting machines designed to meet the demand for a machine which would produce tubular fabrics of large sizes for underwear, discloses novelty and patentable invention, and has for its primary purpose the abolition of the inside cam and stationary arm of prior machines. As so construed, claim 4 held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

In Equity. This is a .motion on exceptions filed to the report of the special master for a confirmation of such report and entry of judgment against the defendant, Charles D. Cooke, individually, for •treble damages as found and reported by the special master and the court.

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

<p>1. Patents (§ 328*) — Infringemeni>-Brake for Cornice Machines.</p> <p>The White patent, No. 427,025, for a brake for cornice machines, construed, and held, not infringed.</p> <p>[Ed. Note. — Por other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 828*) — Infringement—Power Press.</p> <p>The Ohl patent, No. 679,031, for a power press especially adapted for bending metal, construed, and held not infringed.</p> <p>[Ed. Note. — Por other cases, see Patents, Dec. Dig. § 328.*]</p> <p>3. Patents (§ 236*) — Infringement.</p> <p>One rightfully using a machine for a few weeks or months does not become an infringer solely because the machine during such rightful use, and because of it, became slightly worn so as to bring á part within the terms of a patent.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 236.*]</p>

In Equity. On final hearing. This is a hill in equity charging infringement of United States letters patent No. 664,383, involving an invention of Claude & Hess for improved apparatus for storing acetylene gas, issued December 25, 1900, and United States letters patent issued May 24, 1901, to Edmund Fouche, No. 727,609, for apparatus for storage of gases; which two patents were by mesne assignments transferred and assigned to complainant.

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

On Habeas Corpus. The petitioner, Pablo Yordi, alleging that lie is unlawfully detained in custody by the United States marshal, has applied to the court for a writ of habeas corpus to secure his release. Tt is disclosed by the record that the petitioner is charged in the republic of Mexico with the crime of “fraud and forgery of documents,” and that a warrant for his arrest was duly issued by Hie jefe politico of the city of Guadalajara.

<p>1. Bankruptcy (§ 140*) — Property Held in Trust — Rights of Cestui Que Trust.</p> <p>. A contract for the sale of fertilizers by the bankrupt provided that, until sold or paid for in cash by the customer, the fertilizers should remain the property of intervener, and, when sold, all the proceeds of the sale, including cash, notes, and open accounts, and the collections therefrom, should be kept separate and held by the bankrupt as a trust fund, and turned over to intervener as collateral security and pledged until the entire indebtedness of the customer, to wit, arising under the agreement, had been paid. Held, that intervener was entitled to all notes, accounts, and proceeds of sale in the hands of the bankrupt at the time of bankruptcy, except money which had been received for fertilizers and had gone into the bankrupt’s general funds, subject only to such intervening liens or conveyances without notice as might have been obtained by third persons.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p> <p>2. Bankruptcy (§ 140*) — Title to Property — Receipt.</p> <p>Where intervener, under a contract for the sale of fertilizers by the bankrupt, was entitled to all uncollected notes received for fertilizers sold, intervener’s right was not affected by a writing, given by the bankrupt within four months before bankruptcy, reciting that the bankrupt had received the notes listed therein for collection.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 140.*]</p>

<p>Bankruptcy (| 407*) — Grounds for Refusal of Discharge — Debts Created by False Statelier ts.</p> <p>The omission by a bankrupt from a financial statement in writing made by liim, on which he obtained goods on credit, of any reference to a large sum which he owed to relatives for borrowed money, shows a fraudulent intent, and debars him of the right to a discharge under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, e. 487, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, !>• 1020), without regard to the amount of the loss thereby occasioned to the objecting creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 700; Dee. Dig. § 407.*)</p>

<p>1. Bankruptcy (§ 386*) — Setting Aside Composition — Grounds.</p> <p>A bank, which was scheduled as a creditor of bankrupts for .$6,800, signed a composition agreement as a creditor for that amount, but subsequently proved a claim for about $2,800; and the composition was confirmed and payment made, and the balance remaining in the hands of the trustee returned to the bankrupts; the bank being treated as a creditor for the amount proved. After the order of composition was made, the bank filed an additional claim for about $4,000, and moved to set aside the composition. There was no fraud in the transaction. Sold, that the court had no power to set aside the composition, or to change its effect as a discharge, or to charge the trustee with liability, he having complied with the order, whatever remedy the creditor might have against the bankrupts in some other forum.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 606; Dee. Dig. § 386.*]</p> <p>Bankruptcy (§ 387*) — Time for Proof oe Claims — Claims Filed After Composition.</p> <p>After a final order in composition has been made in a bankruptcy proceeding, the referee has no right to receive new claims against the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 607, 610; Dec. Dig. § 387.*]</p>

<p>Equity (§ 150*) — Bueadistg—Mumtfabiou'sist.ss op Brim.</p> <p>A bill by a judgment creditor to sot asido as fraudulent several conveyances of different property by several judgment debtors to different grantees is bad for mult ifariousness, although the judgments were entered in the same case.</p> <p>LEd. Note.- -For other casos, see Equity, Cent. Dig. § 377: Dec. Dig. § 150.*]</p>

<p>In Equity. On motion for an order to show cause.</p>

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

<p>On Trial to the Court Without a Jury.</p>

<p>In Bankruptcy. On certificate of referee concerning re-examination of claim of Thomas L. Woodruff.</p>

<p>Taxation (§ 498*) — Assessment — 'Telegraph Companies — Restraining Assessment.</p> <p>A finding of the Board of Arbitrators of tlie state of Georgia as to the valuation of the property and franchise of a telegraph company in the state for the purpose of taxation construed, and held not to include as an element of value any right given the company by Act July 4, 1SGG, c. 230, 14 Stat. 221 (U. S. Comp. St. 1901, p. 3579), and therefore not to afford any ground upon which a federal court should enjoin the collection of the tax based thereon.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 498.*]</p>

<p>1. Post Office (§ 35*) — Misuse of Mails — Scheme to Defraud — Statutes.</p> <p>Kev. St. § 5480 (U. S. Comp. St. 1901, p. 3690), provides that if any person having devised or intended to devise any scheme or artifice to defraud, to be effected by either opening or intending to open correspondence or communication with any person by means of the post office establishment of the United States, or by inciting such oilier person or any person to open communication, and the person so devising or intending shall, in and for executing such scheme or artifice, or attempting so to do, place, or cause to he placed, any letter, circular, pamphlet, advertisement, etc., in any post office of the United States to he delivered by said post office establishment or shall take or receive any sueli therefrom, such person shall upon conviction be punished, etc. Held, that in order to constitute an offense under such section the person charged must have devised some scheme or artifice to defraud, must have intended to effect such scheme or artifice by opening or inlending to open such correspondence with some other person or persons through the United States post office or by inciting some other person to so open communication with him, and in executing such scheme or attempting to do so he must either have placed in a post office of the United States a letter, circular, or advertisement, or received one therefrom.</p> <p>[Ed. Jiote.- — For other cases, see Post Office, Cent. Dig. § 55; Dec. Dig. i 35.*]</p> <p>2. Post Office (§ 48*) — Misuse of Mates — Scheme to Defraud-Indiotmeht.</p> <p>An indictment alleged that defendant by advertisements sought to bring the alleged business of the Globe Realty Company, a pretended real estate agent, to the attention of persons who had real estate to sell, ini ending to procure them to list the same wi1h such company, which had no existence except as a name under which defendant did business, for the purpose of procuring them to pay for advertising their real estate whether a sale was made or not; that defendant intended to make no efforts toward such sale; that he intended to execute such scheme by the use of the post office establishment of the United States, and in so doing deposited n letter and circular addressed to D. to induce him to sign a contract in accordance with such scheme. Held, that such indictment stated an offense for violation of Rev. St. § 5180 (U. S. Comp. St. i!)01, p. 3696), prohibiting the use of the post office in the furtherance of a scheme to defraud, and was not demurrable because it did not allege that the acts charged were willfully and unlawfully done.</p> <p>[Ed. Note. — For other eases, see Post Office, Cent. Dig. § 72; Dec. Dig. § 48.*]</p> <p>3. Post Office (§ 48*) — Misuse of Mati,* — Scheme to Defraud — Indictment —Exhibits.</p> <p>Where an indictment for misuse of the mails in furtherance of a scheme to defraud charged that such scheme was to be accomplished by means of circulars and newspapers circulated in Iowa and elsewhere, it was not demurrable for failure to set out such advertisements.</p> <p>[Ed. Note. — For other cases, see Post Office, Cent. Dig. § 72; Dec. Dig. § 48.*]</p>

<p>Bankruptcy (§ 72*) — Corporations — Principal Business — Manufacturing —“Principally Engaged in Manufacturing.”</p> <p>A corporation’s cliarter provided that its principal business was to be the manufacturing, producing, purchasing, selling, and dealing in all kinds of paper, paper bags, box board, paper cones, and the like, and dealing in all ingredients, products, and compounds thereof, and in any or all materials used in connection with such manufacture. The company was authorized to operate waterworks and electric lights. The total production of the paper mills department between September 1, 1907, and June 30, 1908, was 43,086 tons worth $188,321.98. This department employed from 80 to 100 men with a yearly pay roll of $50,000, and an expense for the same period of $203,454. The waterworks department employed but one regular man and some time extra help, and the electrical light department four regular men. The total revenue from the light department for the same period was $12,077 and from the waterworks department $10,-228, and the expenses light department $7,974, waterworks $9,207. Held, that the corporation was principally engaged in manufacturing, and was therefore subject to adjudication as a bankrupt.</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 of Mattoon, 111. v. First Nat. Bank of Mattoon, XU., 42 C. G. A. 4.]</p>

<p>1. Trusts (§ 167*) — 1Trustees—Removal—Notice—Service.</p> <p>Under tbe Massachusetts statute (Rev. Laws 1902, e. 147, § 11), providing that a trustee under a written instrument may be removed after notice to him and to all persons interested, and an opportunity afforded him to be heard and show cause why his removal should not be made, jurisdiction is dependent on service of such, reasonable notice as in the judgment of the court is appropriate to the case in the same manner as in an action.</p> <p>I fid. Note. — For other cases, see Trusts, Cent. Dig. § 219; Dec. Dig. § l«r.*|</p> <p>2. Trusts (§ 107*) — -Trustees—Removal—Charges—Notice.</p> <p>In a proceeding to remove a trustee under a Massachusetts statute (Rev. Laws 1902, c. 147, § 11), providing for removal of a trustee appointed by a written instrument on notice, etc., the trustee is entitled to notice of the particular charge or complaint made against him.</p> <p>[fid. Note. — For other cases, see Trusts, Cent. Dig. § 219: Dec. Dig. § 367.*]</p> <p>8. Trusts (§ 105*) — 1Trustees— Removal — Jurisdiction—Service or Process.</p> <p>The Massachusetts statute (Rev. Laws 1902, c. 147, § 11) authorizes the removal of a trustee appointed under a written instrument after no-iice to him and to all persons interested and an opportunity to be heard and to show cause why his removal should not be made. 11 old to contemplate a removal in a case where the property is within the court’s jurisdiction at the time of the removal proceedings, where the parties affected have been personally served with notice or original process within the state, or where the parties have submitted themselves to the court’s jurisdiction.</p> <p>ffid. Note. — For other cases, see Trusts, Cent. Dig. § 216; Dee. Dig. § 165.*1</p> <p>4. Judgment (§ 818*) — Foreign Judgments — Fun, Faith and Credit.</p> <p>Where proceedings to remove a trustee in the state courts of Massachusetts were instituted at a time when the trust fund was not within the court’s jurisdiction, and there was neither service on defendant within the state nor a general appearance by him, the full faith and credit clause of a federal Constitution did not require a federal court sitting in another state in a suit to compel the original trustee to account from inquiring into the jurisdiction of the Massachusetts court to render judgment of removal.</p> <p>[fid. Note. — For other cases, see Judgment, Cent. Dig. § 1408; Dec. Dig. § 818.*]</p> <p>5. Trusts (§ 167*) — Trustees—Removal—Nature oe Proceeding.</p> <p>A statutory proceeding to remove a trustee appointed under a written instrument is a proceeding in personam, and not in rem.</p> <p>Lfid. Note. — For other cases, see Trusts, Cent. Dig. § 219; Dec. Dig. § 167.*]</p>

<p>In Bankruptcy.</p>

<p>1. Commerce (§ 89*) — Interstate Transportation — Construction of Rules— Jurisdiction of Courts.</p> <p>A Circuit Court of tlie United States has jurisdiction to determine in the first instance the question of the indebtedness of a shipper to a railroad company for demurrage, under the rules adopted, by the company and filed with the Interstate Commerce Commission, where it depends on the construction and not upon the reasonableness or unreasonableness of such rules, although the latter question is primarily one for the commission.</p> <p>[Ed. Note. — For other cases, see Commerce, Dec. Dig. § 89.*]</p> <p>2. Carriers (§ 100*) — Demurrage — Construction of Rules — “Date of Arrival” — “Date Released.”</p> <p>In rules of a railroad company requiring the payment of demurrage on cars where more than a stated number of days elapse “between the date of arrival of each car and date released,” the phrase “date of arrival” must be construed in its ordinary sense, as meaning the date on which the car in fact arrives at its point of. destination, and not the date on which the consignee receives notice of such arrival, and “date released” as meaning 'the date when the ear becomes again available for use by the company.</p> <p>TEd. Note. — For other cases, see Carriers, Dec. Dig. § 100.*</p> <p>Quick dispatch — Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 342.]</p>

<p>In Equity. On exceptions to the report of an auditor.</p>

<p>1. Bankruptcy (g 159*) — Preferences—Payment to Maker op Accommodation Note.</p> <p>An accommodation maker of a note to a bankrupt is a creditor, and a transfer of property to him to protect him against loss, made by the bankrupt when insolvent and within four months prior to the bankruptcy, constitutes a preference.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 247; Dec. Dig. § 159.*)</p> <p>2. Bankruptcy (§ 166*) — Voidable Preference — Reasonable Cause to Believe Preference was Intended.</p> <p>Claimant was a customer of bankrupts from whom it bought twine for use in its rug factory, and owed them a note. At' their request it renewed the note for a larger amount, the excess being for their accommodation and to cover future purchases which were made from time to time as required. Shortly before the bankruptcy, and when the bankrupts were insolvent, but before the maturity of the note, at their suggestion claimant took sufficient twine to c< or the remaining excess, and the same was set apart, but remained on bankrupts’ premises and came into possession of their trustee. It was not such twine as claimant had been using in its factory, and it did not desire the same for use. The bankrupt who suggested the transfer testified that he did so to protect claimant. Held, that the transaction was so unusual as to give claimant reasonable cause to believe that a preference was intended and to render it voidable, and that claimant could not recover the property from the trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 256; Dec. Dig. § 166.*)</p>

<p>Cota.isiox (⅜ 66'*)“Knidhncs — Tow.</p> <p>Collision in Upper New York Bay between the steamship Matanzas, bound to sea, and a barge being towed up the bay by the tug Paoli. A dense fog prevailed. Held, that the collision occurred about opposite the Quarantine Station and that the preponderance of the testimony established fault on the part of the Paoli rather than the Matanzas, hence the libel is dismissed.</p> <p>[lid. Note. — 4Tor other cases, see Collision, Dee. Dig. § tiOA*</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§§ 132, 141*) — Damage to Oabgo — Evidence—Limiting Ltabtt.itt.</p> <p>Held, that the damage occurred from the unseaworthiness of the carrying barge and not from a collision that she was subjected to through the rough condition of the water. Also held that the owner was not entitled to limit its liability, as the unseaworthiness, was due to a negligent examination of the vessel.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 493; Dec. Dig. §§ 132, 141.*]</p> <p>(Syllabus by the Court.)</p>

<p>Shipping (§ 118*) — Delay in Fokwabding Freight — Damages.</p> <p>The steamship and the J-Tansa Line held, liable for damage suffered by the libellant through a fall in the price of shellac while delivery was delayed, owing to a failure to forward the goods on the vessel to which they were constructively delivered and which issued bills of lading.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 486; Dec. Dig. § 118*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 171*) — Deiiubbage—Cesseb Clause.</p> <p>An alleged impossibility oi‘ performing the conditions of a contract does not suffice to relieve tlie shipowners from the fulfillment of a provision requiring the collection of demurrage or an endorsement on the bill of lading before sailing.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 171.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 057; Randall v. Sprague, 21 C. C. A. 337; Hagerman v. Norton, 40 G. O. A. 4.]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (|§ 176, 184*) — Demuehage—Evidence,</p> <p>Upon a contract for tlie transportation of bricks by the respondent from New York to Colon, it appeared that there was some detention of two steamers at New York and three at Colon for which the libellant was entitled to recover. A counterclaim on the part of tlie respondent for damages arising from failure to receive the bricks at New York, promptly upon reaching there, dismissed, because the respondent failed to show any agreement to receive except when formal declarations were made upon which proper action was taken.</p> <p>[Ed. Note. — For other eases, see Shipping. Dec. Dig. 45 176. 184.*</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. O. A. 337: II a german v. Norton, 46 C. O. A. -JL.J</p> <p>(Syllabus by the Judge.)</p>

<p>Conns tow (§ 5S*)- -Vessels is Tow — Evidence.</p> <p>Collision between a tandem tow bound down the Hudson River and a steamship being rowed up the river by four tugs without any aid from the steamship’s steam power. An ebb tide prevailed with a strong west wind, which set the tug and tow toward the steamer. Hold, that the tug was solely in fault for failing to keep her tow away from the steamer, which endeavored by the use of the tugs to avoid the Flushing’s tow but was unable to do so.</p> <p>['Ed. Note. — For other cases, see Collision, Cent Dig. §§ 70, 71; Dec. Dig. § 58*1</p> <p>(Syllabus by the .Judge.)</p>

<p>1. Railroads (§ 229*) — Safety Appliance Act — Grabirons.</p> <p>Under Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), as amended by Act Cong. March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), regulating the equipment of freight ears to be used in interstate commerce, it is unlawful for a railroad company to use any car in interstate commerce, or car or similar vehicle used in connection therewith, that is not provided with secure grabirons or handholds at the ends and sides of such car for safety of men in coupling and uncoupling.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Fel-ton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Railroads (§ 229*) — Interstate Commerce — Safety Appliance Act — “Connection.”</p> <p>Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), as amended by Act Cong. March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), requires cars used in interstate commerce or cars used in “connection” therewith to he equipped with secure grabirons at the ends and sides of each car for the greater safety of men in coupling and uncoupling. MeM, that a ear used in intrastate commerce only, not so equipped, though moved in a train containing a car bearing interstate traffic was not used in “connection” therewith where they were in different parts of the train and not in position to be coupled or uncoupled.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1432-1434; vol. 8, p. 7612.]</p>

<p>-1. Pleading (§ 8*)--Bill — Conclusions.</p> <p>An averment in a suit to set aside a decree of naturalization that it “was fraudulently and illegally procured” is a mere conclusion, and unavailable unless the facts alleged indicate that defendant procured the decree fraudulently and illegally.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 17; Dec. Dig. § 8.*]</p> <p>2. Aliens (| 70*) — NAimiALiZATiois—Vacation—Petition.</p> <p>Where a bill to set aside a naturalization decree did not allege that defendant had not ini fact continuously resided in the United States or some territory thereof for five years and within the state of Iowa for a year immediately prior to the filing of his petition, or that he was not in fact entitled to be admitted as a citizen, or that the affidavits attached to the petition did not fully comply with the naturalization act on their face or were in any manner insufficient to confer jurisdiction on the state court, it would he presumed that the petition was in fact sufficient to confer such jurisdiction.</p> <p>[Ed. Note. — Ebr other cases, see Aliens, Cent. Dig. § 154; Dec. Dig. § 70.*]</p> <p>3. Aliens (§ 70*) — Natubalization—Decree—'Vacation—Bill.</p> <p>A bill to set aside a naturalization decree was based solely on the fact that the witnesses who made affidavits to the petition and testified at the hearing did not have personal knowledge of defendant’s residence in the United States and in Iowa for the requisite time to authorize him to be naturalized. It was not alleged that either of the witnesses intentionally or knowingly testified falsely in either instance, or that defendant procured them to so testify, or that he knew that they did not have personal knowledge of his residence in the United States and in the state of Iowa for the requisite time. The Chief Examiner’s affidavit on which the suit was brought merely alleged that it appeared from the naturalization records that one of the witnesses did not sep defendant within two years of the time he testified that defendant was a resident of the United States and the state of Iowa when in fact defendant was in Dakota during such years. Held, that the bill was demurrable for want of facts.</p> <p>[Ed. Note. — EOr other cases,- see Aliens, Cent. Dig. § 154; Dec. Dig. § 70.*]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below, G. A. 6,684 (T. D. 38,574), the Board of General Appraisers reversed the assessment of duty by the collector of customs at the port of New York.

<p>At Law. On motion to take off nonsuit.</p>

<p>Street Railroads (§ 58*) — Receivers — Attendance Before Public Service Commission.</p> <p>Since the receivers of a street railway company might conclude to bring the matter of the operation of one line and the equipment of another line of cars with fenders and wheel guards under an order of the New York Public Service Commission before the state courts, and, in order to do this effectually, it might be necessary that the receivers be represented at the hearings before the commission, it was proper that they should attend such hearings, though it appeared that they would probably accomplish nothing by such attendance because of tbe extreme power of the commission and the ex parte nature of its proceedings.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Dec. Dig. § 08.*]</p>

Petition for a Writ of Habeas Corpus. The petitioner in her testimony stated that she was a Canadian by birth and citizenship; that she entered the United States first in 1901, and became an inmate of a house of prostitution, and resided in various houses of prostitution in Buffalo, San Francisco, New Orleans, and Philadelphia until 1905, when she went to Philadelphia to take care of an invalid sister and stayed about two years.

<p>Vendor and Purchaser (§ 294*) — Foreclosure or Lien — Stipulation foe Attorney’s Fees — Enforcement.</p> <p>Under the law of Georgia by which a provision of a contract for the payment of an attorney’s fee in case of suit thereon is valid, and the fee recoverable if the defense to the suit is not sustained, where a bond for title securing notes contained such a provision, and the holder recovered the land thereon in ejectment although he failed to recover on the notes, he is entitled to payment of such fee, as well as interest, where the mortgagor is permitted by a court of equity to redeem the property.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Dec. Dig. § 294*]</p>

<p>On Citation for Contempt.</p>

<p>In Bankruptcy. On objections to discharge.</p>

On Application for Review of a Decision by the Board of United States General Appraisers. In the decision below the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York.

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below affirmed the assessment of duty by the collector of customs at the port of New York.

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below sustained in part protests of the importers against 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. 6,787 (T. D. 28,848), sustained the protest of F. B. Vandegrift & Co. against the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Board of General Appraisers reads as follows:</p> <p>HAY, General Appraiser, In this case the collector roliquidated the entry more than a year after the filing of the first entry paper, but within a year after the payment of duty. The collector cites as his warrant of law for this action the proviso of Act March 3, 1875, c. 136, § .1, 18 Stat. 469 (U. S. Comp. St. 1901, p. 1986), entitled “An act restricting- the refunding of customs duties and prescribing certain regulations of the Treasury Department.” This proviso reads as follows: “Provided also, that this act shall not affect the refund of excess of deposits based on estimated duties nor prevent the correction of errors in liquidation, whether for or against the government, arising solely upon errors of fact discovered within one year from the date of payment and, when in favor of the government, brought to the notice of the collector within ten days from the date of discovery.” Unless in this statute there is to be found authority for the collector’s action, he is limited in the reliquidation of an entry by Act June 22, 1874, c. 391, § 21, 18 Stat. 190 (U. S. Comp. St. 1901, p. 1986), entitled “An act to amend the customs revenue laws and to repeal moieties.” This section rends as follows: “That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year from the time of entry, in ihe absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties.”</p> <p>In Cassol’s Caso, G. A. 5,962 (T. D. 26,147), we held that the word “entry,” as used in section 21, meant the complete transaction by which the merchandise was brought into the body of the merchandise of this country, and that the statute of limitations'crea ted by that section began to run when the exact amount of duties was ascertained and paid. In reaching that conclusion we were guided by the familiar rule of construction that a statute should be given that meaning which will allow full scope and effect to its provisions, rather than that which narrows and restricts them. We pointed out in that opinion that it had been settled by a long line of decisions that the word “entry,” as used in the statutes, had two different rheanings, the one being the first paper filed and the other the completed transaction of entering merchandise; that to give the word the first of these meanings would be under some circumstances to destroy rather than to limit the collector’s right to reliquidate an entry; that under some circumstances the exact duties could not be ascertained within a year from the time of the filing of the first paper, and the period wherein the liquidation could take place might therefore have expired before the mistake or condition which would call for reliquidation could have been discovered; that, therefore, the only way to give to this statute such construction as would allow a year under all circumstances wherein an entry might be reliquidated was to treat the word “entry” in section 21 of the act of 1874 as meaning the completed transaction. This case was reversed by the United States Circuit Court in Cassel v. U. S. (C. C.) 146 Fed. 146, T. D. 27,116, which was acquiesced in by the government.</p> <p>The act of March 3, 1875, from which the proviso relied upon by the collector is quoted above, is one dealing with the refunding to importers of duties erroneously collected. The affirmative provisions of this statute were repealed by implication by the customs administrative act of 1890. It is not, however, necessary for us to decide whether the customs administrative act also repealed the proviso above quoted, with which there is nothing in the act in conflict; for in the view we take this proviso is not such affirmative legislation as gives to the collector any new grant of power, nor can it be said in any way to repeal, abridge, modify, or limit section 21 of the act of 1874. It is nothing more than a saving clause, saving and excepting from the operation of the act of which it is a part certain things therein mentioned which might otherwise be included in the operation of that law. It is, however, legislative recognition of the collector’s right under existing law to correct by reliquidation an erroneous liquidation within one year from the date of payment of duty, being therefore in effect legislative construction or interpretation of section 21 of the act of 1874, similar to that given it by this board in Cassel’s Case, supra.</p> <p>With this view of the effect of the proviso of section 1 of the act of 1875, the collector is limited in the reliquidation of an entry to the time prescribed by section 21 of the act of 1874, which under the decision of the court in Cas-sel v. U. S., supra, is one year from the filing of the first paper in the entry of the merchandise. This year having expired, the time wherein the entry could have been reliquidated had passed prior to the date of the reliquidation of the entry in question, and the collector’s action was void, being without authority of law.</p> <p>The protest is sustained, and the collector directed to reliquidate the entry accordingly.</p>

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

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

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

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

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

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

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 160 Fed. 281, affirming a decision by the Board of United States General Appraisers. G. A. 6,614 (T. D. 28,231).</p>

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

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

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

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

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

<p>In Error to the Circuit Court of the United States for the Southern District of Texas. Lock McDaniel, for plaintiff in error.</p>

<p>Appeal from tlie Circuit Court of the United States for the South era District of New Yoi’k. For decision below, see 159 Fed. 219, affirming a decision by the Board of United States General Appraisers. G. A. 6,453 (T. D. 27,645).</p>

<p>In Error to the District Court of the United States for the Western District of New York. There was no opinion below. For earlier proceedings in this cause, see'145 Fed. 302, 76 C. C. A. 181.</p>

For decision below, see 153 Fed. 916, affirming a decision by the Board'of United States General Appraisers (G. A. 6,109, T. D. 26,772), which had affirmed the assessment of duty by the collector of customs at the port of New York. D.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see ICO Fed. 518, affirming a decision by the Board of United States General Appraisers. Note G. A. 6,472 (T. D. 27,684).</p>

<p>In Error to the Circuit Court of the United States for the Northern District of California. Robert Harrison, for plaintiff in error. On certificate of clerk of Circuit Court, under subdivision 1 of rule 16 (150 Fed. xxix, 79 C. C. A. xxix), and motion to dismiss writ of error.</p>

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

<p>Petition for Review.</p>