Volume 167 — Federal Reporter

. Appeal from the District Court of the United States for the Territory of Hawaii. in Admiralty. Libel in rem, in the District Court for the Territory of Hawaii, against the American barkentine Fullerton and claimants, to recover damages in the sum of $50,000 for personal injuries received by libelant on a voyage from the port of San Francisco via Port Harford, to the port of Kihei, territory of Hawaii. Decree in favor of the libelant for $17,500. Claimants appeal.

.In Error to the Circuit Court of the United States for the Southern District of West Virginia, at Charleston. For opinion below, see 162 Fed. 750. This was an action for damages brought by the defendant in error against 1he plaintiff in error for injuries received while acting in the discharge of his duties in the capacity of brakeman and in the employ of the plaintiff in error on the 6th day of October, 1005, in the yards at Bluefield, W. Va.

For opinion below, see 156 Fed. 144. This suit was brought in the Circuit Court of the United States for the Northern District of West Virginia, by the Third National Bank of Cincinnati, and others,… Held: ready to be paid over to the said attorneys in fac-t at such time and as soon as they are able and can accept the same. Thereupon said attorneys in fact declared their willingness to comply with said contract as soon as the said restraining order shall be dismissed.

<p>1. Carriers (§ 365*) — Passengers—Refusal to Pay Fare — Ejection.</p> <p>A carrier of passengers may eject with as much force as is necessary all persons liable to pay fare who have not paid and who refuse to pay.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1450-1452; Dec. Dig. § 365.*</p> <p>Liability of railroads for ejection of trespassers, see note to Great Northern Ry. Co. v. Bruyere, 51 C. C. A. 578.]</p> <p>2. Carriers (§ 364*) — Trespassers—Ejection—Assistance of Officers.</p> <p>Where the ordinary agents of a carrier at one station had failed to eject certain trespassers from a stock car in which certain horses were being transported, and Hiere was reason to expect the same and as effective opposition at the succeeding station, resulting either in delaying the train or compelling the car to be set out for daylight, the carrier was entitled to call the local police to eject the trespassers from the car.</p> <p>[Ed. Note. — For other eases, see Carriers, Dec. Dig. § 364.*]</p> <p>3. Carriers (§ 352*) — Ejection of Trespassers — Acts of Local Police — Responsibility of Carrier.</p> <p>Where a carrier’s train dispatcher having authority to eject trespassers called the local police of a city to assist in so doing, the police acted as agents of the carrier, which was liable for any excesses.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1414; Dec. Dig. § 352.*]</p> <p>4. Carriers (§ 359*) — Transportation of Passengers — Rights of Passenger —Forfeiture.</p> <p>Where three persons entitled to ride in a stock car to care for horses being transported therein permitted three others who had no right in the car to ride therein, and any one of the three entitled to transportation for any purpose closed and fastened the doors of the car and knowingly refused to open it at the request of the conductor or employes of the carrier when they sought to ascertain who were inside the car, to Identify the passes, and inspect the transportation contracts of those holding them, the jiassenger so doing thereby forfeited his rights as a passenger so far as was necessary to eairy out the regulations of the company, though there was no conspiracy between the three passengers and the trespassers to procure free transportation for the latter.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1439-1442; Dec. Dig. § 359.*]</p> <p>6. Carriers ($ 38-1*) —Trespassers -Ejection — Actions—Instructions.</p> <p>Where D., traveling in a stock car with certain horses, was permitted to take two of his assistants in the car to the first division point on promising to purchase tickets for them, which he failed to do, and for this reason the assistants were ejected and arrested, the carrier was entitled to an instruction in an action therefor, in which it was claimed that the carrier was guilty of wanton misconduct in calling on the police to assist in the ejection, that if D. promised to get tickets for his assistants at the division point it was his duty to do so, and they would be on the car without right after passing such point, though they were asleep at that time.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 384.*]</p> <p>6. Carriers (§ 361*) — Ejection of Trespassers — Refusal to Show Tickets or Pay Fare.</p> <p>Where certain persons attempted to procure passage In a stock car. some of whom had transportation and others did not, those holding transportation and refusing to show the same when demanded hy the conductor, and those refusing to pay fare when demanded, became tresi>assers and subjected themselves to ejection.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 361.*]</p> <p>7. Carriers (§ 361*) — Dive Stock — Persons in Char&e — Ejection.</p> <p>Where B. was permitted to ride in a stock ear of a fast freight line to the first division point on his promise he would there buy a ticket, and he failed to do so, but attempted to continue his transportation in the car without right, he was a trespasser, though he was the owner of some of the horses being shipped in the car under contract between the carrier and another, and was therefore subject to ejection.</p> <p>[Ed. Note. — For ether cases, see Carriers, Dee. Dig. § 361.*]</p> <p>Shelby, Circuit Judge, dissenting.</p>

This is an appeal from an order granting a temporary injunction against the broach by the appellants of an agreement made on May 4, 1908, between the Woodward & Burgess Amusement Company, the complainant below, and the defendants and appellants, Lee Shubert and Jacob J. Shubert, relative to the operation of two theaters at Kansas City owned by them respectively.

<p>1. Courts (§ 376*) — Federal Courts — State Haws as Rules of Decision— Questions of Procedure.</p> <p>The question whether a court has at common law the power to compel a plaintiff in an action for a personal injury to submit to a surgical examination is a matter of practice and not of evidence, and, as a matter of practice relating to the power of courts, neither state statutes nor the decisions of state courts on the subject aré binding on federal courts under Rev. St. § 721 (U. S. Comp. St. 1901, p. 581), providing that, with certain exceptions, the laws of the several states shall be regarded as rules of decision in trials at common law in such courts, which as to such matters are governed by the decisions of the Supreme Court of the United States.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 984; Dee. Dig. § 376.*</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. Courts (§ 370*) — Federal Codkts — State I.aws as Hules of Decision— Conformity Statute.</p> <p>Under the conformity statute (Key. St. § 914 [U. S. Comp. St. 1901, p. 684]), decisions of state courts, unless made in construing local statutes, have never been regarded as controlling in the national courts, and neither under said section nor section 721 (U. S. Comp. St. 1901, p. 581), providing that with certain exceptions the laws of the several states shall be regarded as rules of decision in the courts of the United States, are state decisions construing the common-law rules of evidence obligatory on such courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 984; Dec. Dig. § 376.*!</p> <p>3. Damages (§ 206*) — Evidence—Fhysical Examination of Person Injured —Power and Duty of Court to Require Examination.</p> <p>Where the plaintiff, in an action for an injury to his knee, while on the witness stand voluntarily exhibited the injured knee for inspection by the jury, the defendant is entitled to require him to submit the same to a Surgical examination, and the court has power independently of any statute to compel such submission.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. § 206 ;* Discovery, Cent. Dig. §§ 92, 93.]</p>

<p>1. Railboads (§ 33*) — Operation—Compliance with Territorial Laws — Presumption.</p> <p>Where a petition alleged that defendant railroad company was operating a railroad in New Mexico Territory, in which the injury occurred, and it could not lawfully do so without complying with Laws N. M. 1903, p. 51, c. 33, commanding every railroad corporation operating in the territory to file a copy of its charter with the Territorial Secretary, give its principal place of business therein, and designate some person on whom process might be served, it would be presumed that defendant had complied therewith.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 33.*]</p> <p>2. Pleading (§ 59*) — Pbecedent Conditions — Compliance—Excuse.</p> <p>A petition must show compliance with precedent conditions, or must aver an excuse.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 124-127; Dec. Dig. § 59.*]</p> <p>3. Appeal and Ebkor (§ 256*) — Rulings on Pleadings — Exceptions.</p> <p>The striking of a portion of defendant’s answer cannot be assigned for error, where no exception was taken thereto at the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1489; Dec. Dig. § 256.*]</p> <p>4. Evidence (§ 29*) — Judicial Notice — Statutes.</p> <p>The federal courts take judicial notice of the public statute laws of the states and territories of the United States without their being pleaded or proved.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 48; Dec. Dig. § 29.*</p> <p>Judicial notice of public laws and regulations, see note to Smith v. City of Shakopee, 44 C. C. A. 4.]</p> <p>5. Evidence (§ 29*) — Judicial Notice — Amendatoey Acts.</p> <p>Where a petition disclosed on its face a canse of action predicated on a special statute of a territory, the Circuit Court of Appeals would take notice, of an amendatory act as inseparable from the statute declared on.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 48; Doe. Dig. § 29.*]</p> <p>6. Trial (§ 169*) — Objections to Pleading — Failure to Raise — Objections to Evidence.</p> <p>Mills’ Ann. Code Colo. § 55, provides that if objection to a petition is not taken by demurrer or answer, defendant shall be deemed to have waived it, except that the objection that the petition does not state facts to constitute a cause of action may be raised at any time. Held, that an objection to a petition for want of facts in failing to allege compliance with conditions precedent was effectually raised by defendant’s motion for a directed verdict at the close of all the evidence and an exception saved to the denial thereof.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 109.*]</p> <p>7. Action (§ 10*) — Condition Precedent — Compliance.</p> <p>A party given a right of action by local statute cannot escape performance of precedent acts which condition the right by resort to the forum of another jurisdiction.</p> <p>[Ed. Note. — For other eases, see Action, Dec. Dig. § 10.*]</p> <p>8. Death (§ 51*) — Death of Passenqee — Petition — Condition Precedent —Compliance with State Statutes.</p> <p>A petition for death of a passenger under the statutes of New Mexico, giving a rig’'t of action to the surviving widow of a person killed by wrongful act, which failed to allege notice to the carrier served within the territory, as required by Laws N. M. 1903, p. 51, c. 33, amending the statute under which the action was brought, was fatally defective.</p> <p>[Ed. Note. — For- other eases, see Death, Dec. Dig. § 51.*]</p> <p>9. Action (§ 11*) — Personal Injuries — Notice—Statutes—Police Power.</p> <p>Laws N. M. 1903, p. 51, c. 33, in so far as it requires notice to the defendant of injuries to persons claiming damages within 90 days and the commencement of suit within a year after the injuries occurred, constituted a valid exercise of police power.</p> <p>[Ed. Note. — For other cases, see Action, Dec, Dig. § 11.*]</p> <p>10. Statutes (§ 64*) — Partial Invalidity — Severance.</p> <p>The provisions of Laws N. M. 1903, p. 51, c. 33, requiring notice of personal injuries within 90 days and the commencement of suit within a year, being valid and severable from the provision requiring such suits to be brought in the District Court of the territory, were unaffected by any objection that might be made to the latter provision.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66; Dec. Dig. 5 64.*]</p> <p>On Rehearing.</p> <p>11. Railroads (§ 33*) — Territorial Laws — Disapproval by Congress.</p> <p>Laws N. M. 1903, p. 51, c. 33, requiring notice to defendant of injuries to. persons claiming damages within 90 days and the commencement of suit within a year after the injuries occurred, prior to its disapproval by Congress, was applicable to a cause of action against a railroad company that could be served within the territory, under Comp. Laws N. M. 1897, § 2963, providing that service might be made on any station agent or on a passenger or freight conductor of the defendant.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 33.*]</p> <p>12. Statutes (§ 56*) — Territorial Laws — Disapproval by Congress.</p> <p>Under Organic Act N. M. (Act Sept. 9, 1850, c. 49, 9 Stat. 449) § 7, providing that all laws passed by the Legislative Assembly and Governor shall be submitted to the United States Congress, and, if disapproved, shall be void, Laws N. M. 1903, p. 51, c. 33, requiring notice to the defendant of injuries to persons claiming damages within 90 days and the commencement .of suit within a year, which was in force for five years before its disapproval by Congress, was valid and enforceable during such period.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent Dig. § 17; Dec. Dig. § 56.*]</p> <p>13. Statutes (§ 56*) — Territorial Laws — Disapproval by Congress.</p> <p>The New Mexico Legislature having conferred a right of action for damages resulting from death, which did not exist at common law, by Laws 1903, p. 51, c. 33, declared that such right should be exercised only on condition that within 90 days after the given cause of action arose plaintiff should give specified notice to defendant. Held, that such provision was not in the nature of a limitation on the right of action, but was a condition precedent thereto, so that where plaintiff had not complied therewith, and therefore could not maintain her cause of action while the act was in force, the subsequent disapproval of the act by Congress did not entitle plaintiff to sue.</p> <p>[Ed. Note. — For other eases, see Statutes, Dec. Dig. § 50.*]</p>

<p>1. Logs and Logging (§ 21*) — Contracts—Construction—Terms Implied.</p> <p>A contract by which defendant, wbicli was the owner of tracts of timber lands in a certain locality, agreed to furnish logs to plaintiff’s mill to be manufactured into lumber for it by plaintiff until all the logs on such tracts were manufactured, subject to its right to sell or itself manufacture any of such timber, provided it furnished plaintiff sufficient to cut 250,000 feet of lumber per month, by implication required it to furnish the usual run of logs in the woods according to the usual custom, and was not complied with where defendant manufactured practically all of the good logs and furnished plaintiff with culls only, which were more difficult and expensive to cut.</p> <p>[Ed. Note. — -For other cases, see Loggs and Logging, Cent. Dig. § 53; Dec. Dig. § 21.*]</p> <p>2. Sales (§ 434*) — Action by Buyer for Breach op Contract — Pleading.</p> <p>A count in a complaint to recover damages for alleged misrepresentations and breach of warranty in the sale of a boiler by defendant to plaintiff construed, and held to state a cause of action.</p> <p>[Ed. Note. — For other cases, see Sales, Dec. Dig. § 434.*]</p>

<p>1. Railroads (§ 275*) — Defective Appliances — Injuries to Licensees — Nature of Liability.</p> <p>Where a railroad company furnished a defective freight car to plaintiff’s employer to be loaded, and plaintiff was injured, while endeavoring to close the car door, because of the defect, the railroad company’s liability to plaintiff was one arising ex delicto and not ex contractu.</p> <p>!Ed. Note. — For other cases, see Railroads, Cent. Dig. § 876; Dee. Dig. § 275.“</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Courts (§ 860*) — Federal Courts-Principles of Common Law — General Jurisprudence.</p> <p>Tile federal courts determine for themselves the principles of the common law and of general jurisprudence, independent of the rules applied by the courts of the several states.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 977-879; Dec. Dig. 8 3(50.*</p> <p>Conformity of practice in common-law actions to that of state court, see notes to O’Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 C. C. A. 392.]</p> <p>3. Railroads (8 275*) — Defective Gabs — Injuries to Licensees.</p> <p>Defendant railroad company furnished a car having a defective door to plaintiff's employer to be loaded. While loading the car, plaintiff and a feilow servant endeavored to close the door, which ran off its track because of the defect, and fell on plaintiff, breaking his back. HeAd, that the railroad company was bound to use reasonable care to keep the doors of its ears in safe operative condition, and that it was therefore liable for plaintiff’s injury resulting from a breach of such duty.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 876; Dec. Dig. § 275.*]</p> <p>4. Railroads (§ 279*) — Defective Cabs — Injuries to Dioensees — Proximate Cause.</p> <p>Where the servant of a licensee, having ordered a railroad car to be loaded with goods, was injured by the falling of a door of the car on him, as he was endeavoring to close it, due to a broken lug which permitted the door to run off its track, the railroad company’s negligence in failing to keep the door in a safe operative condition was the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 901; Dec. Dig. § 279.*]</p> <p>5. Railroads (§ 282*) — Injury to Person Working on Car — Evidence—Materiality — Remoteness.</p> <p>Where plaintiff was injured by the fall of a car door as he was en’deavoring to close the same at 5:30 o’clock in the afternoon, evidence as to the condition in which witnesses found the door on the succeeding morning, to the effect that there was a broken lug which appeared to have been in that condition for a considerable period and which permitted the door to run off the rail, which was also rickety, was not object5— for remoteness.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 282.*]</p> <p>6. Railroads ($ 282*) — Operation—Injury to Person Working on Car — Evidence — Relev an oy.</p> <p>On an issue as to the defective condition of a car door by the fall of which plaintiff was injured, evidence that on the morning succeeding the injury the car was found with a broken lug which permitted it to run off the rail, that the break appeared to be old, and that the track was rickety, was relevant.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 282.*]</p>

This was an action upon a replevin bond executed by the defendant in error to the plaintiff in error, who was plaintiff below.

<p>1. Courts (§ 325*) — Jurisdiction of Federal Courts — Allegations in Pleadings — Waiver.</p> <p>The objection that a complaint in a federal court omits to allege tha place of residence of defendants, or that they are residents of the district in which they are sued, is one that they may waive, and they are held to have waived it when they make a general appearance and in a demurrer join such objection with the objection that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 325.*</p> <p>Waiver of right as to district in which suit may be brought, see notes to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192; McPhee & McGinnity Co. v. Union Pac. K. Co., 87 C. C. A. 634.]</p> <p>2. Courts (§ 322*) — Jurisdiction of Federal Court — Allegations in Pleadings.</p> <p>Where the original complaint in a federal court contained proper allegations of the citizenship of the parties at the time of the commencement of the action, Ike court on service of process thereon acquired jurisdiction, which it did not lose by a repetition of such averments in an amended complaint in the present tense.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 322.*]</p> <p>3. Pleading (§ 252*) — Amendments—Construction.</p> <p>An amended complaint will be deemed to speak as of the time of the commencement of the action.</p> <p>TEd. Note. — For other eases, see Pleading, Cent. Dig. § 736; Dec. Dig. § 252.*]</p> <p>4. Conspiracy (§ 11*) — Civil Liability — Actions—Defenses.</p> <p>The fact that the members of a labor union have the right under its laws and rules to suspend a member does not deprive bim of a right of action against them for a conspiracy to suspend him unlawfully.</p> <p>[Ed. Note.' — For other cases, see Conspiracy, Dec. Dig. § 11.*]</p> <p>5. Conspiracy (§ 19*) — Civil Liability — Actions—Sufficiency of Evidence.</p> <p>Evidence considered, and held to sustain a verdict and judgment for damages in favor'of a member of a typographical union against other members for a conspiracy to cause his suspension as a member unlawfully and contrary to the rules of the union.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Dec. Dig. § 19.*]</p> <p>6. Conspiracy (§ 21*)— Civil Liability — Actions—Instructions.</p> <p>Instruction in an action for damages for injury caused plaintiff by a conspiracy between defendants considered and approved.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Dec. Dig. § 21.*]</p>

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk, in Admiralty.</p> <p>For opinion below, see 163 Fed. 425.</p> <p>Before PRITCHARD, Circuit Judge, arid MORRIS and BRAWLEY, District Judges.</p>

<p>1. Bankruptcy (§ 449*) — Adjudication After Jury Trial — Mode of Review.</p> <p>An adjudication of bankruptcy following a jury trial and based on the verdict of the jury is reviewable only on writ of error as in an action at common law.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 915; Dec. Dig. § 449.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Bankruptcy (§ 91*) — Adjudication—Sufficiency of Evidence.</p> <p>Evidence held to sustain the verdict of a jury finding that an alleged bankrupt committed an act of bankruptcy by making a general assignment both individually and as a member of a partnership.</p> <p>[Ed. Note. — -For other cases, see Bankruptcy, Dec. Dig. § 91.*]</p>

<p>Master and Servant (§ 286*) — Master’s Liability for Injury to Servant —Actions—Questions for Jury.</p> <p>In an action by a servant to recover from the master for an injury, where there was evidence tending to support plaintiff’s allegation that his injury resulted from the negligence of defendant in failing to sufficiently light a passageway through which plaintiff was required to pass with a truck, and in permitting wet pulp to accumulate on the floor, rendering it dangerous, such issue was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 286.*]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of California.</p> <p>For opinion below, see 156 Fed. 484.</p>

The court below affirmed decisions by the Board of United States General Appraisers, which had reversed the assessment of duty by the collector… Held: as claimed by the importer, that the merchandise was free of duty, the carbonates and silicates under paragraph 314, as “calamine,” and the sulphides under paragraph 614, as “minerals, crude,” except that the lead-bearing ores were held subject to the duty provided in said paragraph 181 for “the lead contained therein.” This…

<p>Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.</p> <p>For opinion below, sec 163 Fed. 779.</p> <p>Before GOFF, Circuit Judge, and MORRIS and BRAWLEY, District Judges.</p>

<p>1. Courts (§ 405*) — Circuit Courts on Appeals — Appellate Jurisdiction prom United States Court in China — Mode or Review.</p> <p>Act Juno 80, 1906, e. 3931, 34 Stat. 814 (TT. S. Comp. St Supp. 1907, p. 797), creating a United States Court for China, provides, in section 3, that “appeals shall lie from all final judgments or decrees of said court to the United States Circuit Court of Appeals of the Ninth Judicial Circuit, and tlionce appeals and writs of error may be taken from the judgments or decrees of the said Circuit Court of Appeals to the Supreme Court. * * * Said appeals or writs of error shall be regulated</p> <p>by the procedure governing appeals within the United States from the District Courts to the Circuit Courts of Appeal and from the Circuit Courts of Appeal to the Supreme Court * * * respectively.” lie Id, that such act recognizes the distinction between eases at law and in equity and admiralty, and requires the appellate procedure to conform to that of the Circuit and District Courts, and that a judgment of such court in an action at law is roviewable only on writ of error.</p> <p>[Ed. Note. — For other cases, seo Courts, Doc. Dig. § 405.'- 3</p> <p>2. Courts (§ 356*)--United States Courts — Procedure—Appeal and Error.</p> <p>Whore it is sought to review an aciion at law by appeal instead of writ of error, the Circuit Court of Appeals will dismiss the appeal on its own motion, though appellee makes no appearance.</p> <p>[Ed. Note. — For other cases, see Courts, Coni.. Dig. §’§ 1001,1010 ; Dec. Dig. | 3ÍÍÍÍ.-J</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Iowa.</p> <p>For opinion beiow, see 162 Fed. 556.</p> <p>Before VAN DEVANTER, Circuit Judge, and RINER and AMIDON, District Judges.</p>

<p>Patents (§ 328*) — Anticipation—Tutting Buttons for Cushions.</p> <p>The Neider patent, No. 630,553, and the Marggraff patent, No. 695,468, both for improvements in tufting buttons for cushion seats, consisting of strengthening the base of the prongs which are passed through the material and clinched, so that the bending point, when clinched, will be at some distance from the head of the button where the metal has not previously been weakened by bending, conceding that the improvements involve invention, are void for anticipation by the Jensen patent No. 377,029, for a paper fastener.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 328*) — Validity and Infringement — Plastee Board.</p> <p>The Sackett patent, No. 520,123, for a board or plate for use as a substitute for lath and plaster as an inside wall covering, consisting of alternate layers of paper and a mineral plaster in the nature of a lime cement, was not anticipated, and discloses invention; also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</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 reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Charles R. Reugger.

<p>On Exceptions to Report of Special Master.</p>

<p>Injunction (§ 163*) — Preliminary Injunction — Vacation.</p> <p>Laws N. Y. 1906, p. 235, c. 125, limited the price of gas in the borough of Manhattan to 80 cents per 1,000 feet, and provided that any corporation or person violating the act should forfeit $1,000 for each offense. The act also contained certain provisions with reference to pressures. The constitutionality of the act having been questioned, a preliminary injunction was granted restraining prosecution of the gas company by repeated actions for penalties and failure to conform to pressure provisions and for asking consumers to pay a higher rate. Held that, the Supreme Court having held that the provisions as to pressures and penalties were in violation of the federal Constitution, the purpose of the injunction was fulfilled, and it should therefore be vacated.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 366; Dec. Dig. § T63.*] , ■</p>

In Equity. This, a consolidated action (Law, 7,091, and Law, 27), seeks to enjoin defendants from carrying out an alleged scheme or plan for the retirement of certain debenture bonds amounting to $30,000,000, issued by tbe Wabash Railroad Company in July, 1889, and which plan and agreement was entered into about August 15, 1906, by said company and a committee of the bondholders of said company, and completed in October following, and to have same declared illegal, and to…

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

<p>1. Corporations (§ 253*) — Stockholder’s Liability — Suit to Enforce — ConCLUSIVENBSS OF DECREE IN PROCEEDING AGAINST CORPORATION.</p> <p>Rev. St. Ohio 1908, §§ 32(>0c-3260f, authorizing proceedings against a corporation where its property is insufficient to pay a judgment recovered against it, in which its indebtedness shall be ascertained, and, if necessary, the double liability of the stockholders, imposed by section 3258, enforced by means of an assessment to be collected by a receiver and distributed by the court, contemplate as one of the ultimate objects the winding up of the affairs of the corporation as an insolvent, and in such proceeding each stockholder is represented by the corporation and is hound by the findings and decree therein, although he may he a nonresident of the state and not served with process.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1024-1026; Dec. Dig. § 253.*</p> <p>Effect of judgment against corporation in action to enforce stockholders’ liability, see note to American Nat. Bank v. Supple, 52 C. C. A. 305.]</p> <p>2. Corporations (§ 264*) — Statutory Liability of Stockholders —Action to Enforce — Limitation.</p> <p>Under Rev. St. Ohio 1908, § 3260d, which authorizes the court in a creditors’ suit against an insolvent corporation to adjudge the amount payable by each" stockholder under the double liability provided for by section 3258, and to appoint a receiver to collect the same, who shall have authority to maintain actions therefor against stockholders in other jurisdictions, limitation does not begin to run against such an action until the entry of the decree fixing the amount of the assessment.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1000; Dec. Dig. § 264.*</p> <p>Stockholders’ liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry & Machine Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.</p>

<p>In Admiralty. ‘Suit for-collision. On final hearing.</p>

At Law. This is an action instituted by L. J. Stark (as assignee of beneficiaries in a life insurance policy) against the defendant to recover on a policy of insurance issued in April, 1901, by the Northwestern National Life Insurance Company, of Madison, Wis. The Wisconsin company was then organized and existing under chapter 270, p. 460, Laws Wis. 1809, and the policy was issued expressly subject to the provisions of that law.

<p>Collision (§ 115*) — Chartered Vessel — Liability oe Charterer — Negligence oe Pilot.</p> <p>Where a chartered vessel is being operated by the owner on the charterer’s business, and sbe is under the temporary command of a Sandy Hook pilot, provided and paid by the charterer under the agreement, but the navigation of the vessel being under the general control of the owner, in ease of collision, the latter is not entitled to have the charterer brought in under the rule to respond for the damages. If the vessel was negligent while under the charge of a compulsory pilot, she would be in fault but that rule does not extend to personal actions. In such cases a compulsory pilot cannot be deemed the agent of either the owner or of the charterer.</p> <p>[Ed. Note. — For other eáses, see Collision, Cent. Dig. §§ 244-247; Dec. Dig. § 115.*]</p> <p>(Syllabus by the Judge.)</p>

<p>1. Statutes (§ 143*) — Amendment—'Validity.</p> <p>Where an amendatory act merely extends the operation of the original act to additional subjects, the amendatory act, though unconstitutional in part, does not affect the validity of the original act.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig.' § 211; Dec. Dig. § 143.*]</p> <p>2. Statutes (§ 143*) — Amendment.</p> <p>Safety Appliance Act March 2, 1893, c. 190, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), regulating interstate railroad equipment, in so far as it effected equipment, used in intrastate commerce in connection with that ussd in interstate commerce, was not rendered invalid by the fact that Amendatory Act March 2, 1903, c. 970, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), construing and applying the act of 1893, was unconstitutional in part.</p> <p>LEd. Note. — For other eases, see Statutes, Cent. Dig. § 211; Dec. Dig. § 143.*]</p> <p>3. Carriers (§ 37*) — Interstate Commerce — Regulation—Equipment.</p> <p>In an action against a railroad company for moving a car in connection with interstate commerce in violation of Safety Appliance Act March 2, 1903, c. 976, 32 Stat. 943 (ü. S. Comp. St Supp. 1907, p. 885), it is no defense that the coupling became defective or the grab iron was lost so recently before the time mentioned in the petition as to make it impossible in the exercise of ordinary care to replace or repair it</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p> <p>4. Carriers (§ 37*) — Safety Appliance Act — Cars Not Bearing Interstate Commerce.</p> <p>Where a railroad car is regularly used in the movement of interstate commerce, but at the time when a defect constituting a violation of the safety appliance act (Act Cong. March 2, 1893, c. 190, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174] as amended by Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 885]), is discovered is empty and not being used for interstate commerce, but is being hauled in a train containing a car loaded with iiiterslate commerce, such car and every car in the train is impressed so far as the requirements of the act are concerned with an interstate character and must he equipped as provided by such act</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 37.*]</p>

In Equity. On demurrer to bill. Complainants, owners in severalty of divers parcels of farming land, together with the water rights belonging thereto, seek to enjoin the defendants, engaged in the operation of smelting plants for the treatment and reduction of ores, from impregnating, polluting, and poisoning the waters of certain tributaries of the Deer Lodge river, from which stream complainants obtain water for the irrigation of their farms and for domestic purposes.

In Equity. On final hearing. Complainant alleges that on October 20, 1902, the defendant covenanted and agreed to sell to complainant on or before January 1, 1904, for the sum of $100,000, six placer mining claims, to all of which claims .defendant represented that it had title; that the complainant, believing the representations of the defendant as to the title to said claims, paid to the defendant $10,000 on the purchase price of said claims; that the complainant, on June…

<p>1. Criminal Daw (§ 242*) — Proceedings for Removal of Accused from One Federal District to Another — Successive Applications.</p> <p>The decision of a United States commissioner refusing to commit a prisoner for removal to another federal district for trial on a criminal charge does not render the question of the right to such removal res judicata, hut ordinarily, in the absence of special circumstances, it should be held conclusive on the same facts.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Dec. Dig. § 242.*]</p> <p>2. Conspiracy (§ 23*) — Conspiracy to Commit Offense Against United States — Construction of Statute.</p> <p>Assuming that the common law as it existed in Maryland when the District of Columbia was ceded exists in the District, and that it makes misconduct in office a criminal offense, it is not an offense against the United States as a distinct sovereign in such sense that an indictment will lie under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for conspiracy to commit such offense in the District, especially against a person who is not a resident thereof.</p> <p>[Ed. Note. — For other cases, see Conspiracy, Dec. Dig. § 23.*]</p> <p>3. United States (§ 35*) — Public Officer of United States — Officer ob Employe.</p> <p>A person engaged in the Department of Agriculture as an assistant statistician is not a public officer of the United States.</p> <p>[Ed. Note. — For oilier cases, see United States, Dec. Dig. § 35.*]</p> <p>4. United States (§ 52») — Officers—Offenses Against United States.</p> <p>The giving out of information by a clerk or employs of a department of the United States government in respect to a matter which it was understood should he kept secret, although for private gain, is not a crime against the United States unless made so by law.</p> <p>[Ed. Note. — For other cases, see United States, Dec. Dig. § 52.*]</p> <p>5. Conspiracy (§ 33*) — “Conspiracy to Defraud United States” — Elements of Offense.</p> <p>An agreement between a clerk or employé in the Department of Agriculture and others pursuant to which such clerk furnished to the others advance information of the contents of a report to he afterward made public by the department regarding the condition of the cotton crop, based on which information the outsiders speculated in the market for the benefit of all parties to the agreement, does not constitute a conspiracy to defraud the United States within the meaning of Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676).</p> <p>[Ed. Note. — For other cases, see Conspiracy, Dec. Dig. § 33.*]</p>

In Equity. Suit to establish' the complainant’s claim, by inheritance, to the residue of the estate of her deceased brother in the hands of trustees, and for an accounting. Heard on bill and answer. Decree for complainant.

<p>1. Insurance (§ 336*) — Marine Insurance — -Policy Provisions — Construction — -“Existin's Insurance. ’ ’</p> <p>Where a carrier's marine policy provided that it did not cover or apply to any goods or merchandise on which there should be any existing insurance by or on account of the owners thereof, the term “existing insurance” included any other insurance during the continuance of the risk, which was valid and enforceable, and was not limited to insurance' by the owner existing at the time the carrier’s policy attached.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 856; Dec. Dig. § 336.®]</p> <p>2. Insurance (§ 622®) — Marine Insurance — Action—Contract—Limitation.</p> <p>Where a carrier’s marine policy contained a contract limitation of actions thereon of one year, and suit was not brought by the carrier for the loss sustained until after the year had expired, the action was barred, though defendant had agreed to bear part of the loss and liad not refused to pay under such clause, and the amount of the carrier’s liability to the owner of the property was not adjudicated until after the year expired.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1544; Dec. Dig. § 622. ®J</p>

<p>Shipping (§§ 50, 177*) — Demurrage—Liability op Charterer.</p> <p>Demurrage at Puerto Cabello, Venezuela, under agreement, with claim for watching hawser, allowed to libellant, less _an amount paid by respondents for labor in discharging.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Cent. Dig. §§ 576-5S4; Dec. Dig. §§ 50, 177 *</p> <p>Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657; Randall v. Sprague, 21 C. C. A. 337 ; Hagerman v. Norton, 46 C. C. A. 4.]</p> <p>(Syllabus by the Judge.)</p>

<p>1. Shipping (§ 104*) — Carriage op Goods — Contracts of Affreightment — Im- . plied Terms.</p> <p>In every contract of affreightment, unless ottterwise expressly provided, the shipowner’s undertaking is that he will he diligent in carrying the goods on the agreed voyage, and will do so directly, without any unnecessary deviation.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 104.*]</p> <p>2. Shipping (§ 104*) — Carriage of Goods — Loss of Cargo — “Deviation.”</p> <p>Deviation, in contracts of affreightment, as in marine insurance means a departure from the usual course of the voyage, or from the usual manner of prosecuting it, thereby changing the risk to which the cargo is subject.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 104.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2042-2045.]</p> <p>3. Shipping (§ 125*) — Carriage of Goods — Loss of Cargo — Deviation.</p> <p>A steamer under charter to carry a cargo of lumber from a Puget Sound port to San Diego, Cal., shortly after starting took in tow a four-masted schooner belonging to the same owners. Three days later, while still having the schooner in tow, she encountered a storm, in which the sea swept over her and carried away the greater part of her deck load. Held, that in taking the schooner in tow she unjustifiably deviated in the prosecution of her voyage under the charter, which deprived her of Hie right to the Benefit of a provision of the charter party that the deck load should be at shipper's risk, and rendered her liable for the loss.</p> <p>[TSd. Note. — Ivor other cases, see Shipping, Gent. Dig. §§ 459, 460; Dec. Dig. § J25.*]</p>

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

<p>Wharves (§ 22*) — Injury to Dry Dock — Elements of Damages — Doss of Use of Dock.</p> <p>In computing the amount of damages recoverable from a vessel for the negligent injury of a floating dry dock, no allowance can be made for the loss of the use of the dock while being repaired, where no actual loss resulted because all work which might have been done in such dock during that time was taken care of in another owned by libelant.</p> <p>[Ed. Note. — For other cases, see Wharves, Cent. Dig. § 7; Dec. Dig. § 22.*]</p>

<p>Attorney and Client (§ 117*) — Collections—Duty oe Attorney.</p> <p>Where an attorney at law collects a sum of money on a claim placed in his hands before he is engaged for a bankrupt estate, he is required, in the absence of fraud, to pay it to the client for whom he made the collection, notwithstanding he receives it during the time he is employed for the estate.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Dec. Dig. § 117.*]</p> <p>(Syllabus by the Judge.)</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy (§ 211*) — Examination of Bankrupt — Fat.se Testimony.</p> <p>On tlie examination of a bankrupt, be several times denied that he had any money in his pocket, and then admitted that he had about $3.50, and finally, when directed to produce whatever be bad in his pocket, took therefrom a roll of bills amounting to $100, which he claimed belonged io another, as the receiver finally determined. Held, that tlie bankrupt’s false testimony was not prejudicial to the estate.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 241.*]</p> <p>2. Bankruptcy (§ 241*) — Examination of Bankrupt —False Testimony — Contempt.</p> <p>Where a bankrupt testified falsely with reference to the money he had In his possession at the time of his examination, which testimony was not prejudicial to his estate, he should be regarded as having purged his contempt by admitting the falsity of his testimony and testifying truly to all the facts during such examination.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 241.*]</p>

<p>1. Courts (§ 279*) — Jurisdiction—Office of Jurisdictional Allegations in Complaint in Federal Courts.</p> <p>Jurisdictional allegations in the complaint in federal courts are not made as a basis for proof at the trial, but to found the court’s jurisdiction of the action at its commencement.</p> <p>[Ed. Note. — For other eases, see Courts, Dec. Dig. § 279.*]</p> <p>2. Courts (§ 280*) — Proper Jurisdictional Allegations Make Prima F’aoie Case.</p> <p>A proper allegation of jurisdictional facts in the complaint in federal courts creates a prima facie case in favor of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. § 280.*]</p> <p>3. Courts (§ 280*) — Effect of Prima Facie Case Made by Proper Allegation of Jurisdictional Facts.</p> <p>The prima facie case in favor of jurisdiction, made by a proper allegation of jurisdictional facts in the complaint, continues until it is overcome by evidence which convinces the mind to a legal certainty that the court in fact has not jurisdiction of the action.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 816-818; Dec. Dig. § 280.*]</p> <p>4. Courts (f 839*) — Stat’d Codes of Procedure — All Defenses in Answer— Not Binding on Federal Courts.</p> <p>State codes of procedure are intended for courts of general jurisdiction. Their provision that objections to the jurisdiction of the court shall be taken by answer is not applicable to federal courts, because they are , courts of limited jurisdiction.</p> <p>[Ed. Note.- — -For other cases, see Courts, Cent. Dig. § 914; Dec. Dig. § 339.*</p> <p>Jurisdiction as affected by state laws, see note to Barling v. Bank of British North America, 1 C. C. A. 513.]</p> <p>5. Courts (§ 279*) — Federal Courts — General Denial — Not Proper Pleading to Raise Objection to Jurisdiction.</p> <p>Neither the general denial under state codes nor the general issue at common law is a proper method of challenging the jurisdiction of federal courts.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 279.*]</p> <p>6. Removal of Causes (§ 108*) — Jurisdiction—Defects—Procedure.</p> <p>Act Biarch 3, 1875, c. 137, § 5, 18 Stat. 472 (U. S. Comp. St. 1901, p. 511), covers the entire fleld of dismissals for defects of jurisdiction arising upon the evidence, and not only declares the duty of federal courts upon that subject, but also prescribes the showing necessary to the exercise of the power which it grants.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § ]08.*J</p> <p>7. Removal of Causes (§ 108*) — Jurisdiction—Dismissal—Evidence.</p> <p>When the complaint contains proper jurisdictional allegations, in order to justify the court in dismissing an action for want of jurisdiction, under Act March 3, 1875, c. 137, § .1, 18 Stat. 470 (U. S. Comp. St. 1901, p. 508), evidence must be produced which convinces the mind to a legal certaint}' “that such suit does not really and substantially involve a controversy properly within the jurisdiction of said circuit court.”</p> <p>Roberts v. Lewis, 144 U. S. 653,12 Sup. Ct. 781, 36 L. Ed. 579, examined and distinguished.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 108.*]</p> <p>8. Appeal and Error (§ 185*) — Action at Daw Tried to Court Without Jury — General Finding — Objections to Jurisdiction.</p> <p>When an action at law is tried to the court without a jury, and there is a general finding in favor of plaintiff, and no objection is made to the jurisdiction at the trial, an appellate court chnnot look into the evidence contained in a bill of exceptions to ascertain whether jurisdiction was properly proven at the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1178; Dec. Dig. § 185.*]</p> <p>9. Courts (§ 323*) — Jurisdiction—Evidence op Residence — Citizenship.</p> <p>Evidence in this case examined, and held to show plaintiff’s citizenship as alleged in the complaint, though the direct testimony only established his residence.</p> <p>[Ed. Note. — For other cases, see Courts, Cent Dig. §§ 885-886; Dec. Dig. I 323.*]</p> <p>Sanborn, Circuit Judge, concurs as to the last two grounds only. Hook, Circuit Judge, dissents.</p> <p>(Syllabus by the Court.)</p>

<p>In Error to the Circuit Court of the United States for the District of New Jersey.</p> <p>Before GRAY and BUFFINGTON, Circuit Judges, and ARCHBAFD, District Judge.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Before LURTON and SEVERENS, Circuit Judges, and TAYROR, District Judge.</p>

The bill in equity in this cause was filed by Alice Kutzner, her husband, ■Tolm T. Kutzner, joining with her, against her brother, AV.

<p>In Error to the Circuit Court of the United States for the Eastern Division of the Eastern District of Washington.</p> <p>Eor opinion below, see 158 Eed. 162.</p>

<p>1. Penalties (§ 40*) — Safety Appliance Act — Action—Review.</p> <p>An action by the United States against a railroad company to recover the penalty for violation of the safety appliance act of March 2, 1893, c. 196, 27 Stat. 532 (U. S. Comp. St. 1901, p. 3174), is a civil action, and the judgment therein is reviewable at the instance of the United States on writ' of error.</p> <p>[Ed. Note. — For other cases, see Penalties, Dec. Dig. 5 40.*]</p> <p>2. Courts (§ 405*) — District Court of the United States — Procedure— Trial Without Jury.</p> <p>There is no authority either at common law or by. statute under which the facts in an action at law may be tried by the judge of a District Court of the United States without a jury, and where a case is so tried by stipulation the judgment is not reviewable by the Circuit Court of Appeals.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 405.*]</p>

<p>1. Customs Duties (§ 26*) — Classification—Metal Thread Fabrics — “Articles.”</p> <p>The word “article,” when used in a tariff law, should he given a broad, liberal meaning; and in Tariff Act July 24, 1897, c. 11, § 1, Schedule O, par. 179, 30 Stat. 166 (U. S. Comp. St. 1901, p. 104.4), relating to “laces, embroideries * * * or other articles” of metal threads, the doctrine of ejusdem generis does not operate to exclude fabrics in the piece from classification as “articles” under that provision.</p> <p>n-M. Note.- — For other cases, see Customs Duties, Cent. Dig. g 59; Dec. Dig. g 26.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 511-515.]</p> <p>2. Customs Duties (g 26*) — Specific Designation — “Articles in Chief Value of Metal Threads.”</p> <p>Fabrics in the piece, composed chiefly of metal thread, but in. part of silk, are more specifically enumerated in Tariff Act July 24, 1897, c. 11, g 1, Schedule O, par. 179, 30 Stat. 166 (U. S. Comp. St. 1901, p. 1644), as “articles * * * in chief value of * * * metal threads,” than under Schedule L, par. 387, 30 Stat. 186 (U. S. Comp. St. 1901, p. 1609), as “woven fabrics in the piece, not specially provided for, * * * weighing not. less than one and one-third ounces per square yard and not more than eight ounces per square yard, * * * dyed in the thread or yarn, and containing not more than thirty per centum in weight of silk, * * * if other than black.”</p> <p>(Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §g 48-59; Dec. Dig. g 26.*]</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The decision of the Circuit Court affirmed the decision of the Board of General Appraisers, sustaining the action of the collector in assessing the merchandise in controversy as medicinal’ preparations, under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 68, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1631). The opinion below is as follows:</p> <p>HAZED, District Judge. The Board of General Appraisers decided upon the same evidence submitted to this court that the merchandise, known as “adeps lanae anhydrous” (wool fat without water) and “adeps lanae cum aqua” (with water), was properly assessed for duty by the collector at the rate of 25 per centum ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 68, 30 Stat. 154 (U. S. Comp. St. 1901, p. 1631), as a medicinal preparation, nonalcoholic. The importers object, on the ground that the merchandise consists of wool grease, and is specifically provided for at one-half of 1 per centum per pound under paragraph 279.</p> <p>I am satisfied, from reading the testimony, that the articles should be classified as medicinal preparations. The prima facie, showing of the government has not been overcome by the testimony of the importer, upon whom the burden rested to show the incorrectness of the classification. The testimony of Mr. Brown, witness for the government, showing that wool grease is worth about 1%. cents per pound, while the price of the articles in controversy is from 10 to 15 cents per pound, considered in connection with the inferences arising from the fact that United States Pharmacopcoia (edition of 1905), National Standard Dispensatory (edition of 1905), 'and the British Pharmacopoeia include anhydrous wool fat among medicinal preparations, sufficiently indicates the character of the importation.</p> <p>Furthermore, this court heretofore affirmed the board in G. A. 5,881 (T. D. 25,910). wherein it was held that adeps lause anhydrous and adeps lance hydrosus were nonalcoholic medicinal preparations. It is true such affirmance was by consent of the parties and without argument, yet the record before me in this case is sufficient to warrant disapproving the decision of the board.</p> <p>The claim of the importer that sample 4, which was imported in casks, Is used as an ingredient in soap, loses force when It. is considered that by its use certain curative properties are given to the soap. Its principal use unquestionably being medicinal, it would seem immaterial that it incidentally has other uses.</p> <p>The decision of the Board of General Appraisers is affirmed.</p>

<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 of the Board of General Appraisers (G. A. 6,550, T. D. 27,944), sustaining the protest of the appellees.</p>

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

The Circuit Court affirmed decisions 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. There was no opinion filed in the Circuit Court, judgment being rendered on the authority of Wing & Evans v. U. S. (C. C.) 119 Fed. 479.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>. The decision below reversed a decision by the Board of United States General Appraisers (G. A. 6,449, T. D. 27,633), which had in part sustained the importers’ protests against the assessment of duty by the collector of customs at the port of New York. The opinion filed by the Circuit Court reads as follows:</p> <p>PLATT, District Judge. The merchandise in question, which is invoiced as “zinc white paint” and “ripolin,” and which is also known as “enamel white paint,” was classified by the collector for duty at 35 per cent, ad valorem under Tariff Act July 24, 1897, c. 11, § 1, Schedule A, par. 53, 30 Stat 154 (U. S. Comp. St. 1901, p. 1630), as a varnish, or as a paint “not otherwise provided for,” at 30 per cent, ad- valorem under the provisions of paragraph 58 of said act The importer protested, claiming said merchandise properly dutiable at 1% cents per pound under paragraph 57, as “zinc, oxide of, and white paint or pigment, containing zinc, but not containing lead, * * * ground in oil,” or, alternatively, where the varnish rate was taken, at 30 per cent, ad valorem under paragraph 58 of said act as a paint. The Board of General0 Appraisers sustained the protest under said paragraph 58. From this decision the importers appeal to this court, insisting that paragraph 57 more aptly describes the merchandise in question.</p> <p>I am of the opinion that oxide of zinc and white paint as found in paragraph 57 are not synonymous terms. I think the language of the paragraph clearly indicates that Congress had in mind a distinction between an imported article, which is composed of oxide of zinc either dry or ground in oil, and articles which may be called white paint or pigment containing zinc either dry or ground in oil. So far as I have examined the testimony here, it tends to show that the merchandise in question is a white paint containing zinc, but not containing lead, ground in oil, and thus exactly described by the terms of paragraph 57. It is true that, after having been ground, certain ingredients were added to increase the gloss; but I cannot see that the materials thus added change the character of the article imported, if we assume the article imported to have been a white paint. De Jonge v. Magone, 159 U. S. 562, 16 Sup. Ct. 119, 40 L. Ed. 260; United States v. Dudley, 174 U. S. 670, 19 Sup. Ct. 801, 43 L. Ed. 1129; Myers v. United States, 147 Fed. 204, 77 C. C. A. 430. I cannot concur in the board reasoning that paragraph 57 by its terms excludes a liquid paint. The same reasoning would exclude liquid paint from classification under numerous other paragraphs of the paint schedule where the phrase “ground in oil,” or other solutions, occurs, including paragraph 58, under which the board held the merchandise in suit to be dutiable.</p> <p>The decision of the Board of General Appraisers is reversed, following the decision of Judge Townsend in Pomeroy & Fischer v. United States (C. C.) 126 Fed. 583.</p>

<p>Patents (§ 148*) — Suit for Infringement — Effect of Application for Reissue.</p> <p>Where a patentee, pending a suit for infringement, applies for a reissue under Rev. St. § 4910 (U. S. Comp. SI. 1901, ]). 3393), on the ground that the specification of his patent is insufficient and such reissue is granted, he is estopped to claim that the specification was sufficient, or to further maintain the suit for the infringement of the patent.</p> <p>|Ed. Note. — For other cases, see Patents, Dec. Dig. § 148.*]</p>

<p>1. Patents (§ 16*) — Validity—Unrecognized Benefits of Invention.</p> <p>The mere failure of a patentee to realize all the benefits and possibilities of his invention does not render his patent invalid, the benefits which tost time, and use develop being what really determine merit [Ed. Note. — For other cases, see Patents, Dec. Dig. § 16.*]</p> <p>2. Patents (§ 328*) — Invention—Dredge.</p> <p>The Hogan patent No. 752,903, for a dredge for salt and pepper, having a celluloid cap, which has the advantage over metal caps that it will not oxidize and of being flexible so as to make a hotter joint, and the greater advantage that it insulates the salt and prevents it from caking, was not anticipated, and discloses invention. Also, held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>3. Patents (§ 286*) — Suit for Infringement — Title of Complainant.</p> <p>A transfer of a patent by the patentee held merely by way of pledge, and not to disable him to maintain a suit for infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 286.*]</p>

<p>Bill in Equity to Restrain Alleged Infringement of United States Rotters Patent, and for an Accounting.</p>

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

<p>In Equity. Bill to restrain trade-mark infringement and unfair trading. On motion for a preliminary injunction.</p> <p>The Kalamazoo Knitting Company, which was engaged in the manufacture of knitted products at Milwaukee, Wis., about the year 1897 began the manufacture and marketing of hosiery of peculiar wearing qualities, to which it applied as a name the word “Holeproof,” and a device, consisting of the words “Holeproof Socks,” or “Holeproof Hosiery,” Inclosed in a circular garter surmounted by a crown. This hosiery was sold under a printed guaranty that each pair of socks or stockings would wear for six months without holes or would be replaced. The business increased, and in 1904 complainant, Hole-proof Hosiery Company, was organized under the laws of Wisconsin for the purpose of selling and dealing in the product manufactured by the Kalamazoo Knitting Company and sold under the name “Holeproof,” the deviee, and with the guaranty above referred to. The persons organizing and conducting the Holeproof Hosiery Company were the same as those who conducted and operated the Kalamazoo Knitting Company; the organization of the complainant being merely a matter of business convenience. Complainant acquired from the Kalamazoo Knitting Company the business of selling hosiery under the name “Holeproof” and the good will of such business, the exclusive right lo the name “Holeproof,” the trade-mark device, and all other trade-marks, labels, ami indicia. Complainant continued the marketing of the product, which was and still is manufactured exclusively for the complainant by the Kalamazoo Knitting Company, and continued the use of the name, trade-mark, and devices. In 1904 complainant adopted a form of guaranty, consisting of a strip composed of a series of coupons separated by perforations. The guaranty provided that if any pair of Holeproof socks or hose needed darning within six months, if surrendered with one of the coupons showing the date of purchase, a new pair would he supplied without cost to the purchaser. This method of guaranteeing hosiery against wear was, as far as appeared, original with complainant and its predecessor, and Ilia form of guaranty used was distinctive. Complainant also adopted as a container for six pairs of hose a yellow box bearing the name “Holeproof,” the trade-mark device, and printed matter and directions in red and black type arranged in a elmracieristic manner. Attached to each pair of socks was a tag or ticket bearing certain printed advertising matter in red and black, the name “Holeproof," and the trade-mark device. Around each half a dozen pair of socks or stockings was placed a band showing the word “Holeproof” and the trademark device in red and black, and placed in each box was an advertising slip and one of tine guaranty coupons above described. Complainant’s product lias been extensively advertised, and it appeared that it was asked for and referred to on the market as “Holeproof Socks” and “Holeproof Hosiery.” and by reason of the guaranty to some extent as “Guaranteed Hosiery” and “Guaranteed Socks.” It also appeared that complainant’s product was identified by the appearance of the guaranty coupons or tickets and the general get-up of the package, as well as by the names above given. Defendant, Wallach Bros., was a New York corporation operating a number of retail haberdashery shops in New York City. Shortly before the institution of this suit defendant began dealing in hosiery manufactured by the Knotair Hosiery Company and sold under the name “Knotair Guaranteed Hose,” and put up in yellow boxes containing half a dozen pairs and bearing devices and printed inatter like complainant’s, printed in red and black and with bands, tags, slips, and guaranty coupons or tickets closely resembling those of complainant in color, arrangement, and appearance. It was also shown that on several occasions at defendants’ stores persons asking for “Holeproof Hosiery” had been furnished with “Knotair Guaranteed Hose,” without explanation.</p> <p> </p> <p> </p>

<p>Trade-Marks and Trade-Names (§ 70*) — Unfair Competition — -Imitation of Name and Dress.</p> <p>Complainant, the Holeproof Hosiery Company, was a manufacturer of stockings and socks sold and extensively advertised under tlie name of “Holeproof Hosiery.” They were put up in boxes containing six pairs each, in each of which was a card on which was a printed guaranty against holes resulting from wear for a period of six months, with a coupon for each pair. After such business had been conducted for a number of years and had become profitable, defendants established a similar one under the name of “No-Hole Hosiery Company,” putting up their product in boxes similar in size and color to complainants, with the name of the company thereon, although having different printed matter, and each containing a guaranty card similar in general style and appearance and having thereon a verbatim copy of complainant’s guaranty. Held, that such simulation of the name and the guaranty card was evidently with design, and constituted unfair competition, which, it being shown that it in fact deceived purchasers, entitled complainant to a preliminary injunction.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 81; Dee. Dig. § 70.»</p> <p>Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]</p>

<p>®bade-Marks and Trade-Names (§ 92*) — Infringement — Suit for Injunction — Sufficiency of Bile.</p> <p>Where a bill states a cause of action which entitles the complainant to relief against the use by defendant of certain trade marks and names in combination, it will not be hold demurrable because he may not be entitled to enjoin their use separately, or to relief to the full extent prayed for.</p> <p>(Ed. Note. — -For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 102; Dec. Dig. § 92.*]</p>

<p>Tobts (§ 12*) — Interference with Contractual Relations — Geounds out Liability.</p> <p>The mere fact that a purchaser of bonds from a committee of bondholders authorized to sell the same at the time of the purchase had knowledge that the committee had previously contracted to sell them to another does not render him liable to such other in damages because of the sellers’ breach of contract.</p> <p>[Ed. Note.- — For other cases, see Torts, Cent. Dig. $ 13; Dec. Dig. § 12.*]</p>

<p>1. Teade-Mabks and Teade-Names (§ 60'*) — Infringement — Imitation or Name and Labels.</p> <p>Complainant and i1s predecessors in business for 50 years had owned and conducted a distillery at Louisville, Ky., known as the “Mellwood Distillery,” and had made and sold a brand of whisky under the name “Mellwood” as a trade-mark, by which it became widely and favorably known as a high-grade whisky and attained a large sale. Defendants, who were dealers in liquors, caused labels to be prepared similar in general appearance to those used by complainant on its bottles, which they placed upon bottles of cheap whisky sold by them. Such labels contained the names “Mill Wood” and “Kentucky,” a picture of a large distillery having the name “Mill Wood Distilling Co.” thereon, and statements to the effect, that the contents was a celebrated handmade sour-mash whisky bottled after being matured in barrels for eight years, etc., all of which representations were false, the fact being that there was no such distillery nor company, that the whisky was not celebrated, nor a handmade sour-mash, but was a cheat) blend put up by defendants. Hold, Hint such labels were clearly intended and calculated to mislead the public into the belief.that the whisky so labeled was complainant’s, and constituted infringement of trade-mark and unfair competition, which entitled complainant to equitable relief by injunction and otherwise.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 74; Dec. Dig. § 60.*]</p> <p>2. Equity (§ 118*) — Pleading—Amendments.</p> <p>It is within the discretion of the court to permit the correction by amendment of a clerical error in the name of a corporation complainant, both in the caption and body of the bill, even after the case has been tried on the merits and a decision handed down, where no prejudice can result to defendant, and where no plea in abatement was filed, but the answer went to the merits.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 118.*]</p>

<p>1. Bankruptcy (§ 301*) — Administration of Estate — Powers of Court — Injunction.</p> <p>A court of bankruptcy has power to. restrain a landlord from interfering with the possession by a trustee of a store occupied by the bankrupt under an unexpired lease, and which contains a valuable stock of goods, until the trustee has had a reasonable time to dispose of the same, where they cannot be removed without serious loss to the estate, and on giving of a bond to protect the landlord from loss.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 464; Dee. Dig. § 301.*]</p> <p>2. Bankruptcy (§ 255*) — Administration of Estate — Acceptance of Lease by Trustee.</p> <p>Under Oiv. Code S. C. 1902, § 2416, which provides that “no parol lease shall give a tenant a right oí possession for a longer term than 12 months from the time of entering on the premises and all such leases shall be understood to be for one year unless it is stipulated to be for a shorter term,” a bankrupt who went into possession of a store under a verbal agreement that he should pay $60 per month, without anything said as to length of term, was entitled to hold the premises for one year, and his trustee has the right to complete such year on payment of the monthly rent.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 352: Dec. Dig. § 255.*]</p>

In Bankruptcy. On review of decision of referee. Graham Dowdell, trustee of the bankrupt’s estate, has filed a petition to review the order of the referee, requiring him to set apart to the bankrupt the following described proi)erty as his homestead: Lot No. 4, in city block No. .179. on the west side of Garden street, fronting 30 varas on said street, and running back between parallel lines to tbe San Antonio river for depth, known as “Presnall Place,” No. 215 Garden…

<p>Baskkcptoy (§ 63*) — Corporation—CoNBpnra to Adjudication — -AwmornTY of Directors.</p> <p>A resolution adopted by Cue board of directors of a corporation called and held in the usual manner, and at which a quorum was present, admitting Ihe inability of the corporation to pay its debts and its willingness to be adjudged a bankrupt on that ground, is sufficient, in the absence of fraud or collusion, to authorize creditors to institute bankruptcy proceedings, and 1o warrant an adjudication, although some of the directors in a distant state were not notified of the meeting, especially where neither the stockholders nor a new board of directors elected by them have taken any stops during several months to vacate a receivership obtained by the petitioning creditors with the consent of counsel for the corporation.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § G3.*J</p>

<p>1. Customs Duties (§ 75*) — Appraisal — “Principal Market” — Limited Sales.</p> <p>In Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 (U. S. Comp. St. 1901, p. 1924), the provisipn that dutiable value shall be the market value “in usual wholesale quantities, at the time of exportation to the United States, in the principal markets of the country from whence imported,” refers to the “principal market” where imported merchandise is bought and, imported to the United States in wholesale quantities, rather than to markets where there may have been limited purchases.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 183-185; Dee. Dig. § 75.*]</p> <p>2. Customs Duties (§ 75*) — Appraisal—Export Price — “Principal Market.”</p> <p>The entire output of a china manufacturer in Limoges was exported to the United States directly from Limoges, except a small amount of special classes, which was disposed of in Paris to European trade; the wholesale business in Paris being less than 4 per cent, of said exportations to the United States. Held, that for the goods shipped to America Limoges, and not Paris, was the “principal market,” within the meaning of Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 (U. S. Comp. St. 1901, p. 1924).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 1S3; Dee. Dig. § 75.*]</p> <p>3. Customs Duties (§ 75*) — Appraisal—“Condition.”</p> <p>Where practically all the output of a china manufacturer was sold to the United States, special classes manufactured for European trade cannot be said to be in “condition” to supply the American trade, wilhin the meaning of Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 (U. S. Comp. St. 1901, p. 1924), providing that dutiable value shall be determined according to the “condition in which * * * merchandise is there bought and sold for exportation to the United States.”</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 75.*]</p> <p>4. Customs Duties (§ 85*) — Reappraisement—Review on Protest.</p> <p>Though, under. Customs Administrative Act June 10, 1890, c. 407, § 13, 26 Stat. 136 (U. S. Comp. St. 1901, p. 1932), a reappraisement by a Board of General Appraisers is “final and conclusive,” it may be impeached, if based upon a wrong principle or contrary to law, or the power conferred by statute has been transcended; and where such board misinterprets a portion of the evidence, a legal error has been committed. making it necessary to see if the error works injustice, and proceedings for review may he initiated by protest under section 11 of said act.</p> <p>[Ed. Note. — Eor other eases, see Customs Duties, Cent. Dig. § 201; Dec. Dig. § 85.*]</p>

<p>Bankruptcy (§ 140*) — Property Vesting in Trustee — Property Paid por by Another — Construction ov Contract.</p> <p>Bankrupt was a manufacturer of carpets, largely on orders obtained by claimants from dealers. When sucli orders were filled, they were charged to claimants, who made an advance thereon and guaranteed collection, charging a commission and interest on the advances. Claimants also made an agreement with the bankrupt under which he bought yarn and had it charged to them. He agreed to use it only on their orders, and they paid the bills therefor, charged the amount: to his ac-i-n-m and deducted the same, with interest and their usual commission, from the proceeds of the carpet when sold. Certain of sucli yarn, bought by the bankrupt, but paid for by claimants, was in his possession at the time of bankruptcy, and was afterwards made up and the carpet shipped on claimants’ orders and collected for by them. 'Held, that the yam was the property of the bankrupt, and not of claimants, the transaction being merely a loan of money by them, and that they were not entitled to withhold the amount paid for the yam by them from the proceeds of the carpet.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 140.*]</p>

Application by Mrs. Patsy Huffman, of the state of West Virginia, praying for an order authorizing the clerk of this court to pay over to her the sum of $500, now on deposit in the registry of the court, for the use and benefit of Ethel Copley, a minor child 10 years of age.

<p>Bankruptcy (§ 188*) — Rights Vesting in Trustee — Property Levied on by Bankrupt.</p> <p>A corporation, a few mouths prior to its bankruptcy, sold and transferred certain property to another, taking a judgment note therefor. Included in the property so transferred was a cash register, which it held under a contract of rental or conditional sale from the manufacturer, and a similar contract was made with the transferee with the bankrupt’s knowledge and consent. Not receiving payment, it issued execution on the note and levied' on property, including the cash register, which levy was pending at the time of the bankruptcy. Held that, whether the contract was one of rental or conditional sale, the reserva! ion of title in the manufacturer was valid between the parties and as against the bankrupt and its trustee.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 188.*!</p>

<p>Admtrat.ty (§ 30*) — Jurisdiction—Contracts in Part Marituiio.</p> <p>Aii agreement by a carrier to insure cargo, where it is one of the elements of a properly maritime contract of affreightment, may be proved in admiralty and damages recovered for its breach in a suit for other breaches of the contract.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 298-300; Dec. Dig. § 30.*]</p>

<p>1. Bankruptcy (§ 114*) — Receivers—Appointment.</p> <p>After adjudication of voluntary bankruptcy, an application by creditors, in which the bankrupt unites, to appoint a receiver or custodian to preserve the assets of the estate, otherwise wholly unprotected, will usuall.v be granted, especially in the absence of any charge of fraud or collusion. and where the creditors and other persons interested make no objection whatever.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 111.*]</p> <p>2. Bankruptcy (§ 114*) — Receivers—Services.</p> <p>When a receiver is designated by the court, the subsequent election by the creditors oí the same person as trustee is evidence of the fitness and competency of such person.</p> <p>]Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 114.*]</p> <p>3. Bankruptcy (S 482*) — Attorneys—Compensation.</p> <p>Where an application for fees for a receiver and for attorneys has been referred to a competent special master, where there are two hearings, and where the evidence discloses that the attorneys have rendered meritorious services, nearly trebling the value of the estate, such attorneys are entitled to a fee, justly compensatory for such services. Smith v. Cooper (5th C. C. A.; opinion by Circuit Judge Pardee) 120 Fed. 230, 56 C. C. A. 578.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 482.*]</p> <p>4. Bankruptcy (§ 484*) — Receivers- -Compensation — Exceptions to Reports or Special Masters — Where No Exceptions.</p> <p>Without objection to the special master’s report on this subject, the compensation allowed such receiver, if not exorbitant, should be approved. Smith v. Cooper, supra.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 484.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Bankruptcy (§ 400*) — Bankrupt’s Homestead Exemption — Sale oe Property and Allowance o'e Exemption erom Proceeds.</p> <p>Where a bankrupt under the laws of the state is entitled, to a homestead exemption of property to a certain value, creditors, who, with notice, make no objection to a sale of all of the property for the purpose of permitting the bankrupt to take his' exemption from the proceeds, cannot afterward object to its allowance, nor can they require the costs of administration in such case to be deducted from the exemption.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 675; Dee. Dig. § 400.*]</p> <p>2. Bankruptcy (§§ 482, 484*) — Receivers—Appointment and Compensation.</p> <p>The allowance of compensation to receivers and attorneys from bankrupt estates is largely commuted to the sound, discretion of the court under whose direction the services were performed, but it should always bo borne in mind that it is the intention of the present law that estates should he so administered as to preserve the assets for the benefit of creditors, and that under Bankr. Act July .1, 1898, c. 541, § 2 (3) (5), 30 Stat. 545, 546 (U. S. Comp. St. .1901, p. 3421), as amended in 1903 (Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. !!)07, p. 1024]), the appointment of receivers is authorized only when absolutely necessary for the preservation of estates, and their compensation should be measured by that provided for trustees for similar sendees.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. §§ 482, 484.*]</p>

On March 15, 1904, the Northwestern Mutual Life Insurance Company issued to James McCue, of Charlottesville, a 10-year renewal life policy for $15,000, based upon an application made by him therefor on February 25th preceding.

On or about September 14, 1897, the Navy Department of the United States advertised for proposals for dredging at the United States naval station at Port Royal, S. O. The New York Dredging Company sent a hid which was accepted, and on October 25, 1897, a contract in writing was executed by that company as principal and John McMullen and It. Percy Wright as sureties, parties of the first part, and the United States of America, party of Hie second part.

Upon the trial in the court below, upon a complaint alleging that the plaintiff’s intestate was killed by an accident while employed in operating the hoisting works of the defendant in error, and alleging that the accident resulted from the negligence of the defendant in error, first, in allowing a friction clutch to be and remain defective, and, second, in allowing a set screw to extend beyond the surface of a set collar, without being guarded as required by law, the jury…

<p>Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Pennsylvania, in Bankruptcy.</p> <p>For opinion below, see 163 Fed. Gfá-.t.</p> <p>Before GRAY and BUFFINGTON, Circuit Judges, and ARC LÍBALO, District Judge.</p>

<p>Appeal from the District Court of the United States for the Southern District of Ohio.</p> <p>Before BURTON and SEVERENS, Circuit Judges, and KNAPPEN, District Judge.</p>

<p>2. Appeal and Error (§ 241 *) — Presentation in Lower Court of Grounds of Review — Motion for Direction of Verdict.</p> <p>The fact that a motion for direction of a verdict was general on the whole record will not preclude a review of the ruling thereon by the Circuit Court of Appeals, where it is apparent that the propositions relied on were fully presented to the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1413, 14Í0: Dec. Dig. § 241.*]</p> <p>2. Courts (§ 865*) — Federal Courts — Authority of Decisions of State Courts.</p> <p>What constitutes a misnomer in a criminal complaint or warrant for violation of the laws of the state is a local question, as to which the federal courts will follow the settled rule of the state courts, in the absence of any statute on the subject.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 955; Dec. Dig.</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>8. False Imprisonment d 7*) — Illegality of Arrest — Misnomer of Depend-an t — Massaohusetts Statute .</p> <p>Under Tier. Laws Mass. 1902, e. 218, § 19, which provides that an indictment of a defendant by a fictitious or erroneous name shall not be ground for abatement, and section 67, which extends the provisions of the chapter to complaints as well as indictments, the omission of the middle name of a defendant from a complaint or warrant is not a misnomer which will give the defendant a right of action for false imprisonment.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. Dig. § 10; Dec. Dig. § 7.*]</p> <p>4. Arrest (« 65*) — Criminal Charge — Authority Under Warrant.</p> <p>While an officer making an arrest by virtue of a warrant need not exhibit the same until asked for, he must have the warrant in his possession.</p> <p>[Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 163, 164; Dec. DK § 65.*]</p>

For opinion below, see 157 Fed. 630. The defendant here and below, the Nat ional Surety Company, was the surety upon three bonds executed by W. W. Atkins, conditioned that he should promptly pay and discharge all labor and material hills incurred in paving portions of two streets in Kansas City, Kan. The plaintiff furnished vitrified brick to Atkins, which were used in paving the streets.

<p>1. Public Lands (§ 88*) — Railroad Grant — Indemnity Lands — Conflicting Grants — Effect of Forfeiture.</p> <p>The right given the Southern Pacific Railroad Company by Act July 27, 1866, e. 278, 14 Stat 292, to select lieu lands within the indemnity limits for lands lost within the primary limits of the grant therein made, depends upon the status of such lauds at the time of selection and not at the time of the grant, and such selections may he made of lands which were granted by the same act to the Atlantic & Pacific Railroad Company in California since the forfeiture of such grant and the restoration of the lands to the public domain by Act July 6, 1886, e. 637, 24 Stat. 123.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 207, 268; Dee. Dig. § 88.*]</p> <p>2. Public Lands (§ 88*) — Rights Under Railroad Land Grant — Effect of Forfeiture — 'Conclusiveness of Decree.</p> <p>A decree quieting the title of the United States to certain lands as against any right or claim of the Southern Pacific Railroad Company thereto was conclusive against the company as to any right it had to select such lands as lieu lands under grants then in force, whether such right had then been asserted or not, and the company could not thereafter make valid selections of any of such lands under the prior acts.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 266, 267; Dec. Dig. § 88.*]</p>

<p>Public Lands (§ S8*) — Railroad Grants — Indemnity Lands — Conflictino Grants — Effect of Forfeiture.</p> <p>None of the lands within either the primary or indemnity limits of the grant made to the Atlantic & Pacific Railroad Company in California by Act July 27, 1866, c. 278, 14 Stat. 292, were subject to selection as indemnity lands by the Southern Pacific Railroad Company under the grant made to it by Act March 3, 1871, c. 122, 16 Stat. 573, although within the indemnity limits of such grant, even after the former grant had been forfeited and the lands restored to the public domain by Act July 6, 1886, c. 637, 24 Stat. 123.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 267, 268; Dee, Dig. § 88.*]</p>

<p>Appeal from the District Court of the United States for the Southern District of Georgia.</p> <p>Before PARDEE and SHEEBY, Circuit Judges, and BURNS, District Judge.</p>

In the first of these causes the Board of General Appraisers decided in favor of the importer. G. A. 6,492 (T. D. 27,762). .Tn the other two, on a fuller record, it decided in favor of the government. C. A. 6,670 (T. D. 28,447). The Circuit Court decided all three causes hi favor of the importer, and from those decisions this appeal is taken. For decision below, see 160 Fed. 279.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>The Circuit Court affirmed a decision by the Board of United States General Appraisers (G. A. 6,496, T. D. 27,778), which had affirmed the assessment of duty by the collector of customs at the port of New York. The opinion below reads as follows:</p> <p>HAZED, District Judge. The merchandise in question, consisting of braids made of cotton and india rubber, of which india rubber is the component material of chief value, was assessed for duty by the collector and Board of General Appraisers under paragraph 339 of the tariff act of 1897 (Act July 24, 1897, e. 11, § 1, Schedule J, 30 Stat. 383 ITT. 8. Comp. St. 3901, p. 16021). I concur in the reasoning by which the conclusion was readied, notwithstanding that india rubber is conceitedly the component material of chief value. The argument of counsel for the importer that the board ignored the apparent limitation contained in the paragraph that the article must have been composed wholly or in chief value of cotton or vegetable fiber is fairly met by the opinion of Judge Coxe in Hague et al. v. United States (O. 0.) 73 Fed. 810, together with United States v. Churchill (O. O.) 106 Fed. 672, whicli in effect holds that, where articles are stated to have been “made of' a material, sncli material must be deemed to be the component part thereof of chief value, and by Hie evident; intention of Congress to increase the duty on elastic braids. Paragraph 339 is not as clear as it might be, and upon reading it would seem to require that the articles must be composed wholly or in chief value of cotton, etc.; hut T think that Congress, in transferring such article from paragraph 263 of the tariff act of 1894 (Act Aug. 27, 3894, c. 349, § 1, Schedule I, 28 Stat 52!)), and including it with “embroideries and all trimmings” in paragraph 33!) of the act of 1897, intended to increase the duty thereon. The earlier act, which was in issue in the case of Hague v. United States, does not specifically contain the words “composed wholly or in chief value of.” Nevertheless the court seems to have read that phrase into it; and reached the conclusion that tlie paragraph was not limited in its application, but that the words “in part of india rubber or otherwise” must be interpreted to mean articles composed in part of india rubber, irrespective of its value.</p> <p>The decision of the Board of General Appraisers is affirmed.</p>

<p>1. Bankruptcy (§ 217*) — Restraining Proceedings in State Court — Power oi*’ Court to Grant Injunction.</p> <p>A District Court: of the United States, in which proceedings in bankruptcy are pending and which is in the actual jtossession of real property conceded to belong to the bankrupt, lias jurisdiction to deiermine the amount and order of priority of liens thereon and to liquidate such liens, to the end that the property may be sold free of incumbrances, and in aid thereof to enjoin the lienholders from prosecuting- the foreclosure of their liens in a suit brought in a state court before the commencement, of the bankruptcy proceedings, but within four months thereof; end this, though the lienholders object, and it is not contended that their lions are preferential or fraudulent or invalid for any other reason.</p> <p>FEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 323; Dec. Dig. § 217.*]</p> <p>2. Bankruptcy (§ 217*) — Restraining Proceedings in State Court — Scope ok Injunction.</p> <p>An injunction issued by a court of bankruptcy restraining litigants from prosecuting a suit in a. state court against a bankrupt should not be extended to the court or the judge thereof, unless iu case of imperative necessity, assuming that ¡he court has power to so extend it.</p> <p>FEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 217.*]</p>

<p>1. Trial (§ 143*) — Questions for Jury — Conflicting Evidence.</p> <p>It is within the province of a jury to weigh the evidence and to base a verdict for plaintiff on his uncorroborated testimony, although contradicted, and even though it involves a finding that the execution of a release was procured by fraud.</p> <p>(Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 342; Dee. Dig. § 143.*]</p> <p>2. Release (§ 24*) — Avoidance at Law — Fraud in Procurement.</p> <p>A release may be avoided for fraud in an action at law in a federal court in which it is set up as a defense, where the fraud alleged relates to it.s execution and goes to the question of its existence as a valid instrument.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 44; Dec. Dig. § 24.*]</p>

The court below, without opinion, reversed a decision by the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York.

<p>Customs Doties (§ SO*) — Classification—Cauliflowers in Brine — “Vegetables in Their Natural State” — Prepared—Preserved—“Vegetabi.es Prepared or Preserved.”</p> <p>Cauliflowers that have beeu trimmed, washed, and packed in brine for preservation during transportation, and to keep them in their natural state, and that when taken out of the brine and washed are still in their natural state, are dutiable under Tariff Act duly 24, 1897, c. 11, § 1, Schedule (1, par. 257, 30 Stat. 171-(U. S. Comp. St. 1901, p. 1650), as “vegetables in their natural state,” rather than under paragraph 241, 30 Stat. 170 (U. S. Comp. St. 1901, p. 1649), as “vegetables prepared or preserved.”</p> <p>(Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 30.*J</p>

The opinion below reads as follows: PLATT, District Judge. The merchandise covered by this appeal is described as glycerophosphate of lime. Duty was assessed thereon at the rate of 55 cents per pound under die provisions of Act July 24, 1897, c. 11, § 1, Schedule A, par. (57, 30 Slat. 154 (U. S. Comp.

<p>Customs Duties (§ 36*) — Classification—‘•Cre'pk Paker.”</p> <p>The provision for “crepe paper” in Tariff Act July 24, 1897, e. 11, § 1, Schedule M, par. 397, 30 Stat. 188 (TJ. S. Comp. St. 1901, p. 1671). wafintended to apply to paper that has been subjected to a creping process ; and a paper made by that process and resembling crepe paper generally, but somewhat heavier, and treated with sizing for waterproofing purposes, is dutiable under that provision.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. §§ 115 -120: Dec.. .Dig. § 36.*]</p>

The decree of the Circuit Court (162 Fed. 486) sustained claims 1,' 2, 3, 4, 5, 23, 24, 25, 26, 27, 28, 31, and 35 of letters patent No. 594,-457, granted November 30, 1897, to Andrew C. Campbell, assignor to the E. J. Manville Machine Company, for improvements in machines for forming threaded nipples from headed blanks. The application was tiled May 26, 1897.

The Circuit Court dismissed the bill in an action based on reissued letters patent No. 12,352, dated May 30, 1905, for an improvement in water-cooler equipments. The Circuit Court found that the claims in controversy were not infringed.

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>For opinion below, see 159 Fed. 144, 154.</p>

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

<p>In Equity. Demurrer to bill to restrain alleged infringement of letters patent and for an accounting.</p>

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

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

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

<p>Bankruptcy (§ 287*) — Liens Acquired by Legal Proceedings — Effect op Levy and Sale Bepore Bankruptcy — Remedy of Trustee.</p> <p>Where an execution was issued against an insolvent debtor within four months prior to his bankruptcy, and a levy and sale made, and the proceeds paid over to the Judgment creditor before the filing of the petition, the case does not fall within Bankr. Act- July 1, 1898, c. 541, § 67f, 30 Stat. 565 (TJ. S. Comp. St. 1901, p. 3450), avoiding liens obtained through legal proceedings, and the referee is without power to summarily direct a repayment of the money; the remedy of the trustee, if any, being by a plenary action to recover the amount as a preference under section 60b.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 444; Dee. Dig. § 287.*]</p>

<p>1. Trade-Marks and Trade-Names (§ 4*) — Marks Subject op Ownership— Arbitrary Device.</p> <p>A check figure formed of intersecting lines, impressed on the under or beveled face of the heads of horse nails, or on pictures of such nails on packages containing the same, as an arbitrary mark to designate them as the product of a certain maker, is a legitimate trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 8; Dec. Dig. § 4.*</p> <p>Arbitrary descriptive or fictitious character of trade-marks and trade-names, see note to Searle & Heretli Co. v. Warner, 50 C. C. A. 323.)</p> <p>2. Trade-Marks and Trade-Names (§ 3*) — Origin and Adoption op Marks.</p> <p>If a manufacturer had originally two or more purposes in adopting a particular mark for his goods, as, for instance, to indicate the quality and also the origin, and also to ornament the article, and the goods bearing this particular mark, and by reason thereof, had come to be known as the goods of that manufacturer, irrespective of grade or quality, there is no reason why he may not adopt such mark as a general trade-mark to indicate origin solely, no other person having adopted or used it.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, CeDt. Dig. §| 4-7; Dec. Dig. § 3.*]</p> <p>8. Trade-Marks and Trade-Names (§ 3*) — Origin and Adoption of Mark —Purpose of Use.</p> <p>Where the primary purpose of a manufacturer in adopting an arbitrary mark as a trade-mark was to indicate and identify the origin of the goods, he is not debarred from protect ion because it has incidentally come to indicate also the quality of the goods.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. § 3.*]</p> <p>4. Trade-Marks and Trade-Names (§ 26*) — Extent and Manner op Use.</p> <p>Where a mark adopted by a manufacturer as a trade-mark has come to indicate and identify goods as of his make, it is immaterial that ho did not advertise nor state on the packages the fact that such mark was claimed as a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 29; Dec. Dig. § 26.*]</p> <p>5. Trade-Marks and Trade-Names (§ 28*) — Extent and Manner op Use.</p> <p>A trade-mark for horseshoe nails is not invalid because the owner does not use it on all grades of such nails made by him, but he may have different trade-marks for different grades where the primary purpose of each is to indicate origin and not quality.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 31; Dec. Dig. § 28.*]</p> <p>6. Trade-Marks and Trade-Names (§ 25%*) — Extent and Manner op Use-Use op Different Trade-Marks.</p> <p>A manufacturer of horseshoe nails of different grades and sizes which are put up and sold in packages and boxes and also sold and used loosely may adopt and use, and be protected in using, at least two trade-marks, the primary purpose of which is to indicate origin, for the same grade of nails, one to be imprinted on the nail itself and the other on the packages and boxes containing such nails; and this is so even if such manufacturer has other trade-marks primarily adopted to indicate the same origin, but which incidentally indicate grade, and which he uses on other grades of his manufacture.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 25%.*]</p> <p>7. Trade-Marks and Trade-Names (§ 4*) — Mode of Affixing Mark — Ornamental Device.</p> <p>The fact that a mark imprinted on a horseshoe nail may add to its appearance does not prevent such mark from being appropriated as a trade-mark.</p> <p>[Ed. Note. — For other eases, see Trade-Marks and Trade-Names, Dec. Dig. § 4.*]</p> <p>8. Trade-Marks and Trade-Names (§ 27*) — Names — Mode of Affixing Mark.</p> <p>The fact that a trade-mark for a horseshoe nail is cut or stamped into the nail itself'does not affect its validity.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 30; Dec. Dig. § 27.*]</p> <p>9. Trade-Marks .and Trade-Names (§ 43*) — Registration—Right to Registration.</p> <p>A statement made in an application for registration of a trade-mark that the applicant’s use of such mark has been exclusive is not false, so as to deprive him of the right of registration or estop him from maintaining an action to protect his right because it may appear that some one else had previously used such mark in violation of his exclusive right.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 43.*]</p> <p>10. Trade-Marks and Trade-Names (§ 4*) — Infringement—Horse Nails.</p> <p>A check figure, formed of intersecting lines impressed on the beveled face beneath the heads of horseshoe nails, helé a valid trade-mark and infringed.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 8; Dec. Dig. § 4.*]</p>

<p>L. Master and Servant (§ 286*) — Action fob Injury to Servant — Questions for Jury — Negligence of Master.</p> <p>The question whether a railroad company was chargeable with negligence in failing to provide a reasonably safe place for employés to work, because of its making "the doors of a roundhouse so narrow as to leave a space of only 11 inches between an engine passing in or out and the posts on either side, held one for the jury in an action by an employé to recover for a personal injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1022; Dee. Dig. § 286.*]</p> <p>2. Master and Servant (§ 201*) — Injury to Servant — Negligence of Fellow Servant.</p> <p>A master is not relieved from liability for an injury to a servant on the ground that it was caused by the negligent act of a fellow servant, where the master’s negligence was a concurring cause.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 515; Dec. Dig. § 201.*]</p> <p>3. Negligence (§ 136*) — Actions—Question for Jury.</p> <p>Negligence becomes a question of law for the court only when the facts are such that fair-minded men can draw from them but one inference upon the issue.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 293; Dec. Dig. § 136.*]</p> <p>4. Master and Servant (§ 101*) — Injury to Servant — Duty of Foresight.</p> <p>The rule that it is the duty of a master to exercise reasonable care to provide a reasonably safe place for servants to work applies to permanent structures as well as to movable ones and appliances, and as well to the ■location thereof as to their mode of construction, and, while he is not bound to provide against every possible danger, he is bound to foresee and provide against all probable contingencies, even though they have not occurred in the past.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 135, 171, 172; Dec. Dig. § 101.*]</p> <p>S. Master and Servant (§ 284*) — Action i-oe Injury to Servant — Questions tor Jury.</p> <p>Plaintiff, who was a locomotive fireman in the employ of defendant railroad company, was assigned to work as a hostler at a roundhouse, and on the first night, of such work was injured hy being caught between the tender of an engine which was being taken into the house and the post at the side of the door, which was only 11 inches from the side of the tender. It was winter, the place was not well lighted, and when a door was opened the smoke and steam coming out further obstructed the.view. It was plaintiff’s duty to take engines from tho turntable into the house, where they were usually run by their own steam; but plaintiff testified that there was not sufficient steam up in the one in question to move it, and that, while he was in the cab making more fire, the foreman caused another engine to be run against his and to kick it into tho roundhouse with considerable force; that there was no bumper at the end of the track, and, as there was not enough steam to work the brake, he was compelled to get off the engine to block the wheels, and in doing so in the darkness was caught between the tender and the post. Held, that under the circumstances shown, whether defendant was negligent in making the doorways so narrow, and, if so, whether such negligence contributed, with that of the foreman, to cause the injury, and whether plaintiff assumed tho risk or was guilty of contributory negligence, were all questions for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000, 1001, 1022, 1067, 1070, 1122; Dec. Dig. § 284.*]</p>

<p>In Bankruptcy. On certificate of referee.</p>

<p>In Equity. Bill of complaint for the appointment of a receiver and other relief.</p>

<p>1. Mines and Minerals (§ 53*) — Option to Purchase Mine — Construction op Contract.</p> <p>Time is of the essence of any option to purchase property, and more especially does the rule apply where the property is of a speculative value, such as an undeveloped mine.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 148; Dee. Dig. § 53.*]</p> <p>2. Mines and Minerals (§ 23*) — Rights op Parties Jointly Interested in Property — Statute.</p> <p>The provisions of Rev. St. § 2324 (U. S. Comp. St. 1901, p. 1426), respecting the rights of co-owners of mining claims where some of such owners have done all the assessment work thereon, have no application to mining property situated in a foreign country.</p> <p>[Ed. Note. — For other cases, see Minos and Minerals, Dec. Dig. § 23.*]</p> <p>3. Teusts (§ 302*) — Resulting- Tevst — Creation—Fiduciary Relation Between Parties.</p> <p>Complainant, who with another held an option for the purchase of a mining concession in Mexico, entered into a written contract with defendant by which the latter agreed that if the option could be exi ended to give time for the sinking of a shaft on the property ho would furnish the necessary money therefor; that if they purchased he should have 75 per cent, interest, and complainant and his associate 25 per cent., and that “the financing of the property will ilien have to be made jointly by all the parties interested.” Complainant secured an agreement to extend the option, but on condition that an advance payment of $5,000 should be made. Complainant did not advise defendant of such condition, and the latter sent an agent to exploit the property. On subsequently learning of the condition lie decided to accept the extension, and called on complainant for his siiare of the advance payment, which complainant refused to pay, and thereupon defendant notified him that he should allow the option to expire, which he did, but obtained a new one to himself, under which he purchased the property. Held, that the contract created no such fiduciary relation between the parties as prevented defendant from treating it as at an end as lie did, and that his own purchase raised no resulting trust in favor of complainant.</p> <p>(Ed. Note. — For other cases, see Trusts, Dec. Dig. § 102.*]</p>

<p>1. Internai, Revenue (§ 8*) — Legacy Taxes — Construction oe Statute — “Imposed.”</p> <p>A legacy tax under War Revenue Act June 13, 3898, c. 448, § 29, 30 Stat. 404 (U. S. Comp. St. 1901, p. 2307), was not “imposed” within the meaning of the saving clause of the repealing act of April 32, 1902, e. 500, § 7, 32 Stat. 97 (U. S. Comp. St. Supp. 3907, p. 049), until its assessment, and there remained no power to make a valid assessment after July 1, 1902, when the repealing act took effect.</p> <p>[Ed. Note. — For other cases, see Internal Reveuue, Cent. Dig. §§ 11, 12; Dec. Dig. § 8.®</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3440.]</p> <p>2. Internal Revenue (§ 8®) — Legacy Taxes — Interests Subject to Tax.</p> <p>The interest of an heir in personal property left by an intestate is wholly contingent until the estate becomes distributable under the laws of the state by the expiration of the lime for the proving and payment of claims, and where such time did not expire until after July 3, 1902, the share of an heir was not subject to legacy tax provided for by War Revenue Act June 13, 1898. c. 448, § 29, 30 Stat. 404 (U. S. Comp. St. 3901, p. 2307), it being provided by Act June 27, 1902, c. 3360, § 3, 32 Stat. 406 (U. S. Comp. SI. Supp. 1907, p. 652), that no such tax should thereafter be assessed or imposed on any contingent beneficial interest which should not become absolutely vested in possession or enjoyment prior to said July 1. 3902.</p> <p>[Ed. Note. — For other cases, see Internal Revenue, Cent. Dig. § 11; Dee. Dig. § 8.*]</p>

<p>1. Indians (§ 10*) — Approval op Leases — Powers and Duties op Assistant Secretary op the Interior — Delegation.</p> <p>Under Rev. St. § 439 (U. S. Comp. St. 1901, p. 249), which provides that “the Assistant Secretary of the Interior shall perform such duties in the Department ,of the Interior as shall he prescribed by the Secretary or may he required tty law,” ihe Secretary may delegate to the Assistant Secretary authority to approve leases of Indian lands and assignments thereof, and, so long as such authority remains unrevolced, the approval of the Assistant Secretary is equivalent to that of the Secretary.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. § 16.*]</p> <p>2. Indians (§ 1C*) — Lands—Assignment of Oil Lease.</p> <p>Where an oil and gas lease executed by an Indian in the Indian Territory on a form prescribed by the Interior Department expressly provided that no subltiise or assignment; of any interest therein could be made without the written consent of the lessor and the Secretary of the Interior. and any attemjitod assignment or transfer without such consent should he void, a subsequent regulation of the department which contained no requirement of the lessor’s consent in such cases could not validate an assignment of such lease made without the lessor’s consent.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 45; Dec. Dig. i 10.* j</p> <p>8. Minks and Minerals (§ 74*) — Oil Lease — Void Assignment — Eights of Lessor — D amagus.</p> <p>Jn a suit in equity to recover land from trespassers who had drilled oil wells thereon and for an accounting for the oil taken, where it appeared that defendants had gone ruto possession under a void assignment of a lease executed by complainant and had expended large sums in good faith in the mistaken belief that they had a lawful right, to enter, they will not be required to account for the full value of the oil taken after it was produced, but only for its value in the ground as measured by the royalty complainant was to receive under the lease.</p> <p>Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 202; Dec. Dig. § 74.*J</p>

<p>At Law. On motion to set aside verdict.</p>

At law. The questions discussed and decided in this case arose upon an argument based upon two motions, the one to strike out certain portions of the complaint which looked to the recovery of damages by the plaintiff as administrator of the estate of -E. C. Pogue, deceased, for the benefit of said estate, growing out of pain and suffering and loss of time and expenses incurred by the deceased before his death; and in the other motion it was insisted that the complaint…

In Equity. The object of this suit is to have the Northern Pacific Railway Company adjudged to hold the legal title to a certain tract of land to which it has a patent in trust for complainant.

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

<p>1. Railroads (§ 394*) — Injury to Person on Track — Action for Damages— Pleading.</p> <p>The complaint, in an action against a railroad company and the engineer of a train to recover for the death of a person killed on the track, construed, and held to state only a cause of action for negligence on the part of the engineer in failing to keep a lookout as required by the Arkansas statute (Kirby’s Dig. Ark. § 6607).</p> <p>[Ed. Note. — For other cases, see Railroads, Dec*. Dig. § 394.*]</p> <p>2. Removal of Causes (§ 61*) — Separable Controversies — Joint or Several Causes of Action.</p> <p>Kirby’s Dig. Ark. § 6607, which makes it the duty of all persons running railroad trains to keep a constant lookout for persons or property on the track, and provides that “If any persons or property shall be killed or injured by the neglect of any employes of any railroad to keep such lookout the company owning and operating any such railroad” shall be liable in damages, gives a right of action against the company alone and not against the negligent employé; and, since no right of action for failure to keep a lookout exists at common law, the complaint in an action against a railroad company and its engineer to recover for the killing oí a persou on the track, the alleged negligence being the failure of the engineer to keep such lookout, does not state a cause of action against the engineer, although it may in terms allege the joint negligence of both defendants, and the cause is removable from a state to the federal court by the railroad company if a citizen of another state.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 61.*</p> <p>Separable controversy, see notes to Robbins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valleytown Mineral Co., 35 C. C. A. 155.]</p>

In Equity. The Original Consolidated Mining Company, a corporation of the state of Washington, on January 26, 1905, brought its bill as complainant against Wheelock H. Abbott, a citizen of the state of Montana, as defendant, alleging, in substance, that it is the owner in fee, in the possession, and entitled to the possession of the Steward lode mining claim, located in Silver Bow county, Mont., patent for which the United States had issued, on May 29, 1879, to the…

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below reversed the assessment of duty by the collector of customs at the port of New York. The board's opinion, which is reported as G. A. 6,808 (T. D. 29,265). reads as follows, so far as pertinent: SHARRETTS, General Appraiser. The goods covered by these protests consist of hatpins the heads of which in all eases are of more value than the shaft and other metal parts..

<p>Customs Duties (§ 30*) — Classification—“Poultry”—Guinea Fowl — Turkeys — “Birds and Land Fowls.”</p> <p>Guinea fowl and turkeys, that are not shown to have been in a wild state, are classifiable as “poultry,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 278, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652), rather than as “birds and land * * * fowls,” under section 2, Free List, par. 494, 30 Stat. 106 (U. ,S. Comp. St. 1901, p. 1681).</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 30.*</p> <p>For other definitions, see Words and Phrases, vol. 6, p. 5476.]</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The case relates to so-called hinoki baskets, stated in the opinion below to have been “made of twisted hinoki wood shavings.” These articles were classified by the collector of customs at the port of New York as manufactures of “wood,” under Tariff Act July 24, 1897, c. 11, § 1, Schedule D, par. 208, 30 Stat. 168 (U. S. Comp. St. 1901, p. 1647).

<p>On Application for Review of a Decision by the Board of United States General Appraisers.</p> <p>The decision below affirmed the assessment of duty by the collector of customs at the port of New York. The board’s opinion, reported as G. A. 6,592 (T. D. 28,173), reads as follows:</p> <p>DE' YRIES, General Appraiser. The merchandise consists of cotton cloth. It was assessed for duty under the provisions of Tariff Act July 24, 1897, c. 11, §' 1, Schedule I, pars. 304-309, 30 Stat. 172, 173 (U. S. COmp. St 1901, pp. 1656t16í)S), at the countable rates, and in addition thereto at 2 cents per square yard under paragraph 313 of said act (30 Stat 178 [U. S. Comp. St 1901, p. 1659]). '</p> <p>Paragraphs 304 to 309 are the well-known provisions of the cotton schedule, providing duties upon cotton cloth according to weight, count of threads, value, Ctc. Paragraph 313 reads: “Cotton doth in which other than the ordinary warp and filling threads have been introduced in the process of weaving to form a figure, whether known as lappets or otherwise, and whether unbleached, bleached, dyed, colored, stained, painted, or printed, shall pay, in addition to the duty herein provided for other cotton cloth of the same description, or condition,' weight, and count of threads to the square inch, one cent per square yard if valued at not more than seven cents per square yard, and two cents per square yard if valued at more than seven cents per square yard.”-</p> <p>The. merchandise consists of ordinary cotton cloth, into which other than the ordinary warp and weft threads are introduced for the purpose of forming a figure. These extra threads have been clipped off on the back at'interval spaces where they are not interwoven. The sole contention of the importers-is that the substance used to form the figures is not “threads,” and therefore the extra 2 cents per square yard duty does not attach. In a brief filed in the case, as well as in the oral contentions at the hearing, it is asserted that the substances herein are filaments or yarns, which do not arrive at the dignity of threads, and therefore not included within the term “threads” as used in paragraph 313.</p> <p>An examination of all the provisions of the cotton schedule fails to disclose wherein the word “threads” as used in paragraph 313 in any wise differs from the word “threads” as used in the other provisions of that schedule. In all the provisions therein, when speaking of the component -factors of cotton cloth, the word “threads” is used. Manifestly it is used interchangeably with and to include yarns and other filaments of textile fiber employed in the manufacture of cotton goods. From an examination of the merchandise in question it appears to us that there is no substantial difference between the filaments or threads which are used to form the figures and those which are used to form the body of the fabric. We are of the opinion that, whatever the character of the yarn or “threads” used to form the figures in the cloth, they would be within the purview of paragraph 313. The fact that, after having been thrown in, by whatever process, to form a figure, the underside has been at intervals clipped off, does not change the character of the material used, though this is the contention of the importers. Suffice it to say, in complete answer to this contention, that the fabric, at a stage when completely woven, has not the hacks trimmed, and therefore the goods, on the very contention of the importers, at that stage would contain other than the ordinary warp and filling threads introduced for the purpose of forming a figure. We are unable to discover any merit in this contention. The fabric must be woven before it can be clipped, and tills clipping would not destroy the character of any of the clipped components.</p> <p>The same character of goods was before the Circuit Court of Appeals for the Second Circuit in the cases of Mills et al. v. U. S., 114 Fed. 257, 52 C. C. A. 92, and (Claffin v. U. S., 114 Fed. 259. 52 C. C. A. 94; the court holding the same dutiable under paragraph 313.</p> <p>The protest is overruled, and the decision of the collector affirmed.</p>

<p>Customs Duties (§ 130*) — Fokfeitube—New Teial.</p> <p>At a trial for the forfeiture of imported merchandise, a foreign shipper, who was charged with fraudulent conduct, was not heard. Held, that he was entitled to a hearing- and that, whore he seasonably appeared and asked for a new trial, the request should be granted.</p> <p>[Ed. Note.- — For other cases, see Customs Duties, Dec. Dig. § 130.*]</p>

<p>1. Army and Navy (§ 19*) — Enlistment of Minors — Effect of Enlistment Without Consent of Parent or Guardian.</p> <p>Rev. St. § 1419, as amended by Act Feb. 23, 1881, c. 73, § 2, 21 Stat. 338 (U. S. Comp. St. 1901, p. 1007), providing that “minors between the ages of 14 and 18 years shall not be enlisted for the naval service without the consent of their parents or guardians,” is for the protection of the parent or guardian; and an enlistment in violation thereof is valid as to the minor, and voidable only by the parent or guardian before the minor attains the age of 18 years.</p> <p>[Ed. Note. — For other cases, see Army and Navy, Cent. Dig. §§ 45-00; Dec. Dig. § 19.*]</p> <p>2. Army and Navy (§ 19*) — Enlistment of Minor Without Parent’s Consent-Right of Parent to Discharge.</p> <p>A minor enlisted in the navy, although without the consent of his parent and in violation of the. statute, is punishable for breach of discipline, and cannot be discharged on habeas corpus at suit of his parent while undergoing such punishment.</p> <p>[Ed. Note. — For other cases, see Army and Navy, Cent. Dig. §§ 45-50; Dee. Dig. § 19.*]</p>

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

The Interstate Commerce Commission lodged with the United States attorney information showing violations of the safety appliance law by the Nevada County Narrow Gauge Railroad Company. The declaration was in two counts, each count charging a violation of section S of the statute; the allegation being that the couplers were out of repair and inoperative.

<p>1. Railroads (§ 229*)- — Safety Appliance Act — Automatic Coupling.</p> <p>. If a carrier hauls over its line any cars which cannot be coupled automatically by impact, either by reason of being improperly equipped or the equipment being out of order, or disconnected, or otherwise inoperative, the act is in violation of the safety appliance law (Act March 2, 1893, e. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]).</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 Felton v. Bullard, 37 C. C. A. 8.]</p> <p>2. Railroads (§ 229*) — Safety Appliance Act — Couplers.</p> <p>The safety appliance statute (Act March 2, .1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) applies to the coupler on each end of every car subject to the law, and it is wholly immaterial in what condition was the coupler on the adjacent car, or on any other car or cars, to which each car sued upon was or was to be coupled.</p> <p>[Ed. Note. — For other cases, see Railroads. Dec. Dig. § 229.*]</p> <p>8. Railroads (§ 229*) — Safety Appliance Act — Dut'y to Repair.</p> <p>Carriers are required immediately to repair defects in cars caused during the time they are being hauled, if they can do so with the means and appliances at hand at the time and place, or when such condition should have been discovered by the exercise of reasonable care. II' requisite means are not at hand, carriers have the right, without incurring the penalty of the law, to haul the defective car to the nearest repair point on their line. But, if they haul suc-h car from a repair point, they are liable for the statutory penalty.</p> <p>L-Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p> <p>4. Railroads (§ 229*) — Repair Points — Duty to Maintain.</p> <p>It is the duty of the carrier, subject; to the safety appliance act (Act March 2, 1893, c. 3 36, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), to establish reasonable repair points along its line for the making of repairs of the kind necessary to comply with the law. At such repair points there should be the material and facilities to make all such repairs.</p> <p>[Ed. Note. — For oilier cases, see Railroads, Dec. Dig. § 229.*]</p> <p>(Syllabus by the Court.)</p>

<p>I. RAn,roads (§ 229*) — Safety Appliance Act.</p> <p>If a carrier hauls over its lino any cars which cannot he coupled automatically by impact, either by reason of being improperly equipped or the equipment being out of order, or disconnected, or otherwise inoperative, the act is in violation of the safety appliance law (Act March 2, 3893, c. 196, 27 Stat. 581 [U. S. Comp. St. 1901, p. 3174]).</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>2. Railroads (§ 229*) — Safety Appliance Act — Construction.</p> <p>The safety appliance statute (Act March 2, 3893, c. 196, 21 Stat. 531 [U. S. Comp. St. 1001, p. 3174]) applies to the coupler on each end of every car subject to the law, and it is wholly immaterial in what condition was 1ko Coupler on the adjacent ear, or on any other car or cars, to which each car sued upon was or was to bo coupled.</p> <p>[Ed. Note.- — For other cases, see Railroads, Cent. Dig. § 743; Dee. Dig'. § 229.*]</p> <p>8» Railroads (§ 254*) — Safety Appliance Act — Construction—Penalty.</p> <p>Carriers are required immediately to repair defects in cars caused during tlie time they are being hauled, if they can do so with the means and appliances at hand at the time and place, or when such condition should have been discovered by the exercise of reasonable care. If requisite means are not at hand, carriers have the right, without incurring tho penalty of tho law, to haul the defective car to the nearest repair point on their line. But, if they haul such car from a repair point, they are liable for the statutory penalty.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 765, 766; Dec. Dig. § 251.*]</p> <p>4. Railroads (§ 229*) — -Safety Appliance Act — Construction.</p> <p>It is tho duty of the carrier, subject to the safety appliance act, to establish reasonable repair points along its line for the making of repairs of the kind necessary to comply with the law. At such repair points there should be the material and facilities to make all such repairs.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>5. Railroads (§ 229”) — Safety Appliance Act — Construction.</p> <p>The railway company is under no obligation to receive from any other company cars defective as to safety appliances, and, when it does receive cars from another company at any point, it must know at its peril that each car so received is equipped with the safety appliances required by law, and that such appliances arc in good order and condition.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>6. Railroads (§ 229*) — Safety Appliance Act — Construction.</p> <p>It is the use of a car in a defective condition that the law seeks to prevent, and not the length of the-haul.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]</p> <p>7. Railroads (§ 254*) — Safety Appliance Act — 'Penalties.</p> <p>If an employé of a railway company deliberately puts coupling devices on a car being used in' interstate traffic in a condition which the law undertakes to prevent, then tile company is liable to respond under tbe penalty for tbe unlawful act of tbe employé.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 765, 766; Dec. Dig. § 254.*]</p> <p>(Syllabus by the Court.)</p>

<p>1. Corporations (§ 377*) — Powers—Purchasing Stock in Other Corporations — Michigan Mining Statute.</p> <p>A mining corporation of Michigan may exercise the power to purchase stock of other similar corporations conferred by Pub. Acts Mich. 1905, p. 153, No. 105, although its articles of incorporation do not in terms include such power, the state laws under which it was organized and by which it is governed being expressly subject to amendment or alteration under Const. Mich. art. 15, § 1; and the acceptance of the statutory amendment is sufficiently expressed by the exercise of the power given by the amendment.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. § 1531; Dec. Dig. § 377*</p> <p>Acquisition by corporation of stock of other corporation, see note to Anglo-American Land, Mortgage & Agency Co. v. Lombard, 68 C. C. A. 120.]</p> <p>2. Corporations (§ 377*) — Powers—Holding Stock in Other Corporations.</p> <p>Pub. Acts Mich. 1905, p. 153, No. 105, which authorizes corporations organized under the mining laws of the state to purchase the stock of any other corporation organized thereunder, does not limit the purpose of such purchases, and the purchasing company may exercise all the lawful rights of a stockholder, including voting the stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1531; Dec. Dig. § 377.*]</p> <p>3. Monopolies (§ 12*) — Combinations in Restraint op Trade — Intention op Parties.</p> <p>In determining whether a transaction constituted an illegal contract, combination, or conspiracy in restraint of interstate trade or commerce, or to monopolize the same in violation of the Sherman anti-trust act of July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), the intention of the parties may or may not be material, depending on whether or not the necessary effect of the agreement or acts done is to directly restrain such trade or to create such monopoly. If not, the intention is important.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12?"]</p> <p>4. Monopolies (§ 12*) — Combinations in Restraint op Trade — Federal Statute.</p> <p>A combination is not illegal as in violation of the Sherman anti-trust act of July 2, 1890, c. 047, 26- Stat. 209 (U. S. Comp. St. 1901, p. 3200), merely because it may indirectly, incidentally, or remotely restrain interstate trade or tend toward monopoly, if its main purpose and chief effect are to promote the business and increase the trade of the parties in a legitimate way.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dee.' Dig. 8 12.*]</p> <p>5. Mo nopot;tes (§ 20s') — Combinations in Restraint oe Trade — Combinations by Mining Corporations.</p> <p>The securing by one copper mining corporation, through stock purchases authorized by the laws of the state and proxies obtained from other stockholders, of control over a competing corporation owning and operating adjacent mines, does not necessarily restrain interstate trade or create a monopoly in violation of the Sherman anti-trust act of July 2, 3890, c. 047, 20 gtat. 209 (U. S. Comp. St. 1903, p. 3200), although it is fhe intention to place the two corporations to a large extent under a common directorate and general control; and such purchase will not be held illegal under the statute because of such facts, where its primary purpose is to secure through friendly co-operation and the joint use of facilities a more economical operation of the mines, especially where the controlled corporation is one of a group previously under a common control and management, and whose products were sold through a common agency; nor does the fact that r-ncli purchase will result in the transfer of such agency as to Us product to that of the purchasing company tend to unlawfully restrain competition.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>O. Monopolies (§ 20*) — ‘Combinations in Restraint oe Trade — Combinations by Mining Corporations.</p> <p>Lake Superior copper of the grade known in the market as “Best Lake” copper is not so distinct from Western copper as a commercial product as to render a combination between two or more of the few companies producing the same unlawful as a monopoly or attempted monopoly of such Best Lake copper, in view of the recently employed process of electrolytic refining which has practically, and to a large extent commercially, eliminated the difference between the Lake and Western products.</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>7. Monopolies (§ 20*) — Combinations in Restraint oe Trade — Michigan Statutes.</p> <p>The purchase by one mining corporation of a controlling interest in the stock of another competing corporation held, under the evidence, not unlawful as in violation of Pub. Acts Mich. 3899. p. 309, No. 255, which prohUdls combinations for the purpose of preventing competition in “manuiaeuiring. making, transportation," sale or purchase of merchandise, produce or any commodity,” or of Pub. Acts Mich. 3905. p. 507, No. 329. which declares illegal all combinations entered into “for the purpose and with the intent of establishing and maintaining, or of attempting to establish and maintain a monopoly.”</p> <p>[Ed. Note. — For other cases, see Monopolies, Dec. Dig. § 20.*]</p> <p>8. Mines and Minerals C§ 105*) — Corporations—Powers—Restrictions as to Real Property — Michigan Mining Corporations.</p> <p>The land holdings of a Michigan copper-mining corporation, shown to require 30,000,000 feet of timber per year in its mines, held not so excessive as to be illegal under Pub. Acts Mich. 3907, p. 234, No. 162, relating to mines, which provides that “every corporation organized or exi,sling under this act shall have the power to purchase, hold and convey all such real estate as the irarposes of the corporation shall require.”</p> <p>[ lid. Note.- — For other cases, see Mines and Minerals, Cent. Dig. § 229: Dec. Dig. § 105.*]</p> <p>9. Mines and Minerals (§ 105*) — Corporations—Powers—Restrictions as to Heat, Property.</p> <p>In determining whether the land holdings of a mining corporation exceed the statutory limit, which is fixed at the amount the purposes of the corporation shall require, lands owned by other mining corporations which it controls through stock ownership are not to be taken into account.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 229; Dec. Dig. § 105*]</p>

<p>Appeals from the Circuit Court of the United States for the .Western District of Michigan. o</p> <p>For opinion below, see 167 Fed. 704.</p> <p>Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.</p>

<p>In Error to the Circuit Court of the United States for the District of Oregon.</p> <p>On rehearing. For former opinion, see 161 Fed. 702, 88 C. C. A. 562.</p>

Action at law by the plaintiff, A. J. Goddard, as the general receiver of the property of the Duwamish Mill Company, to recover the sum of $6,000 from the Casualty Company of America on a policy of insurance issued September 20, 1904, to the Duwamish Mill Company against loss or damage by reason of claims brought against it by any of its employes on account of bodily injuries, fatal or nonfatal, suffered while in the factory, shop, or yard in said policy described.

This appeal is from an order granting a preliminary injunction. .

On the 23th day of July, 3904, S. L. Wiley and F. C. Rutan, as parties of the first part, and George II.

<p>Adverse Possession (§ 98*) — Extent ov Possession — Texas Statute.</p> <p>Under Rev. St. Tex. 1895, arts. 3343-3349, which, as construed by the Supreme Court of the state, gives title by adverse possession to one who has been for 10 years in the continuous, peaceable and adverse possession of land under claim of right, which title, unless the claim is made under some instrument fixing the boundaries, may extend to 100 acres, including the part occupied by him, provided he proves that he claimed such tract and gives its boundaries, it was sufficient to establish the right of a defendant to the benefit of such statute as to 160 acres of a large tract that he had resided thereon continuously for 35 years, during which time he made improvements and fenced and cultivated a portion, where it was shown that ho had always claimed 160 acres, which he had caused to he surveyed some 7 or 8 years before suit, and that previous to that time he had claimed by practically the same boundaries.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. § 542; Dec. Dig. § 98.*]</p>

<p>In Error to the Circuit Court of the United States for the Southern District of Elorida.</p> <p>Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.</p>

Appeals from the District Court of the United States for the Southern District of New York. The second of these appeals is from a decree for $1,914.02 entered in the District Court in favor of charterers of the steamship Mae on claims for hire paid and not earned, coal in bunkers, etc. No reason for disturbing it, is found in the record.

<p>1. Admiralty (§ 28*) — Liability op Yessel — Failure to Enter upon CharTiilR.</p> <p>A vessel is not liable in -rem for failure to enter upon a charter.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 279.; Dec. Dig. § 28.*]</p> <p>2. Shipping (§ 35*) — Charter—Authority to Make Charter.</p> <p>Cablegrams between the owner of a tank steamer and his agents construed, and Held to authorize the latter to charter the vessel to carry a cargo of merchandise, and to render the owner liable in damages for refusal to fulfill the charter, although he was under a mistake as to the nature of the cargo.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 35.*]</p>

This cause comes here upon appeal from a decision of the circuit court affirming a decision of the Board of General Appraisers (G. A. 6,674, T. D. 28,479), which approved the action of the collector of the port of New York in assessing certain importations as manufactures of paper under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626).

This cause comes here upon appeal from a decision of the Circuit Court, 'Southern District of New York, affirming a decision of the Board of General Appraisers, which approved the action of the collector of the port of New York in classifying certain importations for duty as manufactures of paper, under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626). The following is the opinion of the court below: PDATT, District Judge (orally).

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>There was no opinion below; the court affirming a decision of the Board of United States General Appraisers (G. A. 6,537, T. D. 27,-888), which had reversed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board of General Appraisers reads as follows:</p> <p>MCCLELLAND, General Appraiser. The merchandise which is the subject of these protests was assessed for duty at the rate of 50 per cent, ad valorem under the provisions of Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 425, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1675). Various claims are made for rates of duty other than that assessed. The exhibits are described as “wings,” “sweeps,” “pompons,” “hats,” and “birds.” All of them are made principally of feathers, which coneededly have been advanced by various processes beyond the crude state; but wire is also a component in the construction of all of the articles, cotton and buckram being components in some of them. The question at issue is whether duty was properly assessed on the • merchandise as feathers, dressed, colored, or otherwise advanced or manufactured in any manner.</p> <p>The evidence shows that each article is artificially constructed; and it is contended on behalf of protestants that, since the only provisions for feathers in the existing tariff act are contained in paragraph 425, and these being only for feathers crude, manufactured, or ornamental, it was an unwarranted stretch of .these provisions to classify thereunder articles made of feathers and other materials, even though feathers be in fact the component thereof of chief value. In G. A. 6,467 (T. I). 27,673) the board recently passed upon a similar question involving the classification of feather boas, which were made by stringing feathers upon a cord, and the conclusion in that case was that, since the boas were made of dressed feathers and cord, the feathers being the component material of chief value, there being no special provision for manufactures of leathers, they were properly dutiable at the rate of 50 per cent, ad valorem, as provided in paragraph 425, under the application of the provision of section 7 of said act (30 Stat. 205 [U. S. Comp-. St. 1901, p. 1691]), which reads: “And on articles not enumerated, manufactured of two-or more materials, duty shall be assessed at the highest rate at which the same would be chargeable if composed wholly of the component material of chief value.”</p> <p>This case, however, presents a different situation. Like the boas, these articles are manufactures in chief value of feathers and not specially provided for; but it is not to be overlooked, that metal wire plays an important part in their construction. The respective shapes of the articles are due almost, if not entirely, to the use of such wire, and this forces us to consider whether, in the absence of any more specific provision, such merchandise is not provided for in paragraph 193, Schedule G, 30 Stat. 167 (U. S. Comp. St. 1901, p. 1645), which reads as follows: “Articles or wares not specially provided for in this</p> <p>act, composed wholly or in part of iron, steel, lead, copper, nickel, pewter, zinc, gold, silver, platinum, aluminum, or other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem.” • -,</p> <p>., The merchandise is certainly not directly dutiable under paragraph 425, and we are of the opinion that neither of' the provisions of section 7 may he invoked to make it so, since metal is a component part in the manufacture thereof. Hamano v. U. S. _(D. C.) 1 Estee’s Hawaiian Rep. 344, T. D. 24,016</p> <p>One of the claims made is that the merchandise is dutiable at the rate of 45 per cent, ad valorem under the provisions of said paragraph 193, and to that extent the protests are sustained. They are overruled in all other respects, and the decisions of the collector are modified accordingly.</p>

The case relates to importations by E. H. Burr at the port of New York. The Circuit Court affirmed, without written opinion, a decision by the Board of United States General Appraisers (G. A. 6,436, T. D. 27,600), which reads as follows: McClelland, General Appraiser.

The decision below (160 Fed. 287) affirmed a decision by the Board of United States General Appraisers (G. A. 6,387, T. D. 27,442), which had affirmed the assessment of duty by the collector of customs at the port of New York.

<p>In Error to the Circuit Court of the United States for the Southern District of New York.</p> <p>This cause comes here upon writ of error to review a judgment of the Circuit Court in favor of defendant in error, who was plaintiff below.</p>

<p>Street Railroads (§ 57*) — Action on Interest Coupons — Evidence of Payment.</p> <p>Evidence considered, and held not to sustain the defense of payment in an action on coupons from street railroad bonds.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. § 141; Dec. Dig. § 57.*]</p>

<p>Bankeuptcy (§ 461*) — Appeal—1Time eoe Taking.</p> <p>The 10 days allowed for an appeal from a judgment making an adjudication of bankruptcy by Bankr. Act July 1, 1898, c. 541, § 25a (8),- 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), cannot be extended by means of a motion to vacate the judgment.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 920; Dec. Dig. § 461.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p>

<p>1. Contempt (§ 40*) — Nature op Proceedings to Punish — Evidence—“Criminad Proceeding.”</p> <p>A proceeding against members of labor unions to punish them.for contempi: for prosecuting a criminal conspiracy to violate an injunction, granted by lite court in a civil suit, restraining them from interfering with the business or employes of the complainant therein, is a criminal proceeding within tin' meaning of Rev. St. § 860 (U. S. Comp. St. 1901, p. 60J), which provides that no discovery or evidence obtained from a party or witness by means of a judicial proceeding shall be given in evidence or in any manner used against him in any court of the United States in any criminal proceeding.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. § 124; Doc. Dig. § 40.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1751-1753; vol. 8, p. 7623.]</p> <p>2. Criminat, Law (§ 42*) — Evidence—Judicial Admissions.</p> <p>To entitle a party in a criminal proceeding against him in a federal court to invoke the protection of Rev. St. § 860 (U. S. Comp. St. 1901, p. 661), providing that no discovery or evidence obtained from a witness by means of a judicial proceeding shall be given in evidence or in any manner used against him in any court of the United States in any criminal proceeding, to exclude testimony given by him in another court in obedience to a subpoena, it is not necessary that he should have claimed the privilege of the statute when such testimony was given, and when he may have had no reason to suppose that an attempt would ever be made to use it against him. It is sufficient if he claim the exemption at the time the evidence thus obtained is first sought to be so used contrary to the statute.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 45; Dec. Dig. § 42.*]</p>

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

<p>CoixisroN (§ 85*) — Evidence—Fog.</p> <p>Collision in a fog in Boston Harbor between tbe Steamship Kennebec, inward bound, and a scow lying alongside of a dredge, engaged in improving Hie North Channel. The steamship hold in fault for excessive speed and the dredge and scow for failing to sound fog" signals and to hear the approach of the steamship.</p> <p>1 TXd. Note. — For other cases, see Collision, Dec. Dig. § 85.®</p> <p>Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]</p> <p>(Syllabus by the Judge.)</p>

<p>1. Collision (§ 85*) — Overtaking Steamer and Tow — Fog.</p> <p>A collision which occurred at night in a fog southeast of the Pollock Rip Shoals lightship off the coast of Massachusetts between the last of three tows and an overtaking steamer which ran into the towline after passing the tow held due solely to the fault of the steamer either in failing to locate the tow or in failing to keep away, it appearing that the tows all carried proper lights and that the steamer’s lights were seen from the second and third tows before the collision.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 169; Dec. Dig. § 85.*</p> <p>Overtaking vessels, see note to The Itebecca, 60 C. C. A. 254.]</p> <p>2. Collision (§ 61*) — Navigating with Long Tow.</p> <p>The fact that a tug with tows at sea was navigating at night with unnecessarily long towing hawsers does not render her in fault for a collision, unless the length of- the tow caused or was a factor in causing it.</p> <p>[Ed. Note. — For other cases, see Collision, Cent. Dig. § 78; Dec. Dig. § 61.*]</p> <p>8. Collision (§ 82*) — Navigating in Fog — Speed.</p> <p>A speed of from four to six knots on the part of a tug with tows navigating at sea at night in a fog is not ordinarily negligent.</p> <p>[Ed. Note. — For other cases, see Collision, Dec: Dig. § 82.*</p> <p>Collision rules-speed of steamers in fog, see note to The Niagara, 28 C. O. A. 532.]</p>

<p>Admiralty (§ 46*) — Process—Service.</p> <p>The service here was made upon the parties who represented the owner of a vessel in her chartering to the government and in the prosecution of a claim against it. neld, that the service was sufficient.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 4G.*1</p> <p>(Syllabus by the Judge.)</p>

In Bankruptcy. On petition of bankrupt to review order of referee allowing J. G. Curry, a creditor, to withdraw proof of debt and intervention.

In Bankruptcy. On .certificáte of referee. Referee D. W. Amram filed the following opinion and made his order thereon February 24, 1908: This matter comes before me up on the petition of the trustee and the separate answers of James S. Alcorn and F. A. Both & -Sons, Inc. From the testimony taken before me I find the following facts: In April, 1906, Isaac Smyth, a retail liquor dealer, being then indebted to F. A. Both & Sons, Inc., brewers, for about $5,000, asked for an…

<p>In Bankruptcy. Heard on exceptions to report of a special master respecting priorities between preferred creditors.</p>

<p>Seamen (§ 27*) — Employés on Dekbiok Hoist — Lien fob Wages — “Vessel.”</p> <p>A derrick boist held to be a vessel subject to the jurisdiction of a court of admiralty, and against wbicb tbe engineer and general utility man employed thereon by the owner were entitled to a seaman’s lien for wages.</p> <p>[Ed. Note. — For other cases, see Seamen, Cent. Dig. § 163; Dec. Dig. § 27.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7297-7301.]</p>

On December 31, 1906, the United States commenced an action of ejectment against the defendant in error to recover the possession of a one-half section of government land in Klickitas county, state of Washington, alleging in the complaint that in October, 1905, the defendant in error, without right or title, had entered into the possession of said premises, which prior to that time had been withdrawn from entry, location, or settlement of any kind or character.

<p>Descent and Distribution (§ 71*) — Heirship—Evidence—Weight and Sufficiency.</p> <p>Evidence considered in a suit to recover the estate of a decedent, and held insufficient to establish the fact that complainants were legal heirs of decedent, where it consisted largely of family tradition that the grandfather of the older generation of complainants married a second time and had a son, of the same name as decedent, who had not been heard from for nearly 50 years, and there was no evidence of such marriage or of the name or identity of the second wife, if any.</p> <p>[Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. § 235; Dec. Dig. § 71.*]</p>

The pleadings of the parties present the questions to be decided. From those pleadings these, among other, facts appear: The action was upon three certain policies of insurance, all of which were issued in pursuance of an arrangement made between the parties in the month of Juno, 1904, when the first of the policies was issued.

This was an action at law brought by the United States against Rudolf Axman on an agreement dated November 21, 1902, and entered into between Lieutenant-Colonel W. H. Heuer of the Corps of Engineers, for and on behalf of the United States, and Rudolf Axman, for the dredging of a channel through the shoal in San Pablo Bay in California. The action was also against the plaintiff in error on a bond of the same date guaranteeing the fulfillment of the contract.

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

<p>[n Error to the Circuit Court of the United States for the District of New Hampshire.</p> <p>Before COLT and LOWELL, Circuit Judges, and BROWN, District Judge.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Ohio.</p> <p>Before EURTON, SEVERENS, and'RICHARDS, Circuit Judges.</p>

<p>In Error to the Circuit Court of the United States fdr the Eastern District of Michigan.</p> <p>Before SEVERENS, Circuit Judge, and KNAPPEN and SANEORD,'District Judges.</p>

<p>Master and Servant (§ 286*) — Master’s Liability for Injury to Servant-Actions — Questions foe Jury.</p> <p>In an action by a miner to recover from a coal company for an injury caused by the fajling of rock upon him in a tunnel, which he and others were running, when he went in to begin his shift immediately after a blast, where the alleged negligence of defendant consisted in not timbering the tunnel and in not inspecting it before plaintiff went to work, and defendant introduced evidence that the tunnel was in rock which did not need timbers, and which it was not customary to timber, that it was inspected but a few hours before the accident, and that it was the duty of the miners themselves after a blast to sound the walls and remove any rock loosened by the blast, the question of defendant’s negligence was one for the jury, and it was error to charge that it was negligent as matter of law.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1010; Dec. Dig. § 286.*]</p>

<p>1, Criminal Law (§ 751*) — Trial—Misconduct Affecting Jurors — Reading Newspapers.</p> <p>While the fact that jurors, engaged in the trial of a criminal case, have read newspaper articles relating to the case which were highly improper and calculated to prejudice the defendant will justify the court in its discretion in permitting the withdrawal of a juror and a continuance of the case, it is not an abuse of discretion to refuse to do so where such jurors, on being interrogated, declare that the articles read would not influence them in arriving at a verdict.</p> <p>[Ed. Note. — For other cases, see Critninal Law, Dec. Dig. §-751.*]</p> <p>Z Criminal Law (§ 1137*) — Appeal and Error — Review—Waiver op Error.</p> <p>Where counsel for a defendant on trial for a criminal offense moved for the withdrawal of a juror and continuance of the case on the ground tliac the jurors had read newspaper articles during the trial calculated to prejudice the defendant, but after the examination of the jurors and consultatlon with his client, announced that he would not press the motion but that defendant put himself in the hands of the court, he was bound to accept the court’s decision and cannot assign the overruling of his motion for error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1137.*]</p> <p>3. Conspiracy (§ 43*) — Conspiracy to Defraud by the Use of the Mails— Averment of Fraudulent Purpose — Variance.</p> <p>While in an indictment, under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676) for a conspiracy to make use of the mails pursuant to a scheme to defraud, a fraudulent purpose must be averred and proved, and where a purpose to defraud two Jointly is charged, it must be proved as laid, yet where the sending of individual letters to parties named is charged in the indictment in different counts, an averment in general terms of an intent to defraud these parties does not necessarily import that the conspiracy contemplated a Joint defrauding of the whole number named; the parties not being in business together or Jointly interested in the property which it was the aim of the conspiracy to secure.</p> <p>[Ed. Note. — For other eases, see Conspiracy, Dec. Dig. § 43.*]</p>

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

<p>’ Appeal from the District Court of the United States for the Southern District of New York.</p> <p>For opinion below, see 166 Fed. 722.</p>

<p>Evidence (§ 417*) — Pahot, Evidence Affecting Whiting — Completeness of Whiting,</p> <p>A written contract of employment, complete in itself, by which one party agreed, to employ the other for one year at a stated weekly salary, and the other party sigreed to “accept said employment and devote his entire time and best energies to fulfilling the duties imposed upon him,” cannot be added to by parol by reading into it a provision that the employe should be employed only as a foreman in the employer’s business.</p> <p>[Ed. Note. — For other cases, seo' Evidence, Cent. Dig. § 3884; Dec. Dig. § 437.*]</p>

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

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of New York. On petition to review a decree The record contains no statement of the proceedings before the special master. If witnesses testified as to what took place when the liquidation agreement was signed the testimony has not been incorporated in the record.

The following is the opinion of W. H. MUNGER, District Judge; This-is a suit brought by the plaintiff against the defendants, charging them with having entered into a conspiracy to deprive the plaintiff of the right to vote at the general election in November, 1906, for a representative to Congress, in violation of the law of the United States.

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

<p>Admiralty (§ 122*) — Costs—Proceeding fob Limitation of Liability.</p> <p>. A petitioner for limitation of liability cannot recover from a- claimant costs and expenses incurred in invoking the benefit of vthe statute -where his right to limitation is not contested, but on any contested issue in the proceeding th.e costs and expenses, including' proctor’s fees, are taxable to the losing party.</p> <p>■_',' [Ed. Note. — For other eases, see Admiralty, Cent. Dig. § 800; Dec. Dig. ,;§ 122.*]. ■ ,</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.</p> <p>For opinion below, see 161 Fed. 549.</p> <p>Before DALLAS and GRAY, Circuit Judges, and ARCHBALD, District Judge.</p>

<p>In Equity. On settlement of order vacating injunction pendente' lite.</p>

<p>In Bankruptcy. Motions, in proceedings, in the matter of the Hudson River Electric Company, in the matter of the Hudson River Electric Power Company, in the matter of the Hudson River Power Transmission Company, in the matter of the Saratoga Gas, Electric Light & Power Company, in the matter of the Empire State Power Company, and in the matter of the Madison County Gas & Electric Company, on orders to show cause, or directty, respectively, to set aside and vacate the several orders heretofore made herein adjudicating said corporations a bankrupt, respectively, and for orders permitting answers or demurrers to the several petitions to be filed and their sufficiency, and also the liability of such corporations to be adjudged bankrupt, determined.</p>

<p>Criminal Law (§ 200*) — Defenses—Conviction Under State Law as Defense to Federal Prosecution.</p> <p>The conviction and punishment of a defendant for violation o£ a state law is not technically a bar to his conviction and punishment under a federal law for the same act; hut, in the absence of extraordinary circumstances, where the offenses are substantially the same, such double punishment should not be inflicted.</p> <p>["Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 400; Dec. Dig. § 200.*|</p>

On Application for Review of a Decision by the Board of United States General Appraisers. The decision below, which affirmed the assessment of duty by the collector of customs at the port of New York, reads as follows: FISCHER, General Appraiser: The merchandise consists of one-blade penknives about two Inches in length, with odd-shaped handles.

<p>In Bankruptcy. On certificate of referee.</p> <p>The following is the report of the referee (Richard S. Hunter, Esq.):</p> <p>“John A. Kearney, a brother of the bankrupt, lent him $200 three weeks before his bankruptcy. Two days before his bankruptcy the bankrupt gave his brother a check for $233.40, being the amount of the loan, together with a balance of general indebtedness of $33.40. This batter sum is admitted to be due to the trustee in bankruptcy, but John A. Kearney claims to retain th'o $200 as a. loan made for a specific purpose, witli an agreement to return the same should that purpose he not fulfilled, and also because the insolvency of James Kearney was not known to his brother at the time of repayment to him.</p> <p>“The facts in the case are as follows: James Kearney was in the retail liquor business at Thii tieth and Dudlow streets, Philadelphia, having bought the license, bar fixtures, and furniture in September, 1007, and given in part payment of the same a judgment note for $8,000. In the early part of (ho year 1908 an order was made upon the bankrupt for the-support of his wife, and judgment was entered against him on the note above mentioned for $8,400. Soon afterwards, during March and April, 1908, the bankrupt obtained small loans from his brother to an aggregate amount of $45 or $50. The bankrupt had endeavored for some months before Ms bankruptcy to dispose of Ms license and business. He could get no advance from Hie brewery company which owned the real estate, but one of his creditors suggested that, if ho could raise $500, the creditor might put up the balance of’ the $1,100' license fee, which would have to be paid on June 1, 1908. The bankrupt stated this to his brother, and his brother lent him $200 as a part of the $500, with the agreement that if, fo-r any reason, he did not obtain the license, the $200 was to he refunded. The remainder of the money was not raised. On May 25, 1908, the bankrupt told Ms 'noRer That be saw no way of getting through and that he would have to let the place go. John A. Kearney said, ‘How about my money?’ The bankrupt at first refused to give it to him, hut afterwards gave him a check for $233.40, which was all that he had in bank. On May 27th, two days afterwards, the voluntary petition was filed and an adjudication was entered. The schedules filed showed indebtedness by the bankrupt of $54 for wages, $200 for rent, and $9,728.72 to general creditors, including the $8,000 principal of the judgment óf Mrs. Wintersteen. The assets of the bankrupt are valued at $75.</p> <p>“It 5.8 clear from the above statement that James Kearney was insolvent at the timé when he gave the| check to his brother, and that the effect of that payment was to enable John A. Kearney to obtain a larger percentage of his debt than other general creditors. The claimant alleges that he did not know that his brother was insolvent; that his brother never confessed insolvency to him, and never told him of Mrs. Wintersteen’s judgment. The question, however, before the referee, is whether the circumstances known to the claimant were such as to put him upon inquiry. James Kearney told his brother he did not know what was going to become of the place.; that he was going to let it go. John A. Kearney knew that his brother was unable to raise the $1,100 necessary to renew his license, and that he must lose the place on the 1st of June. He knew that he was in trouble about his wife, and had lent him several sums on that account already. He was undoubtedly put upon inquiry as to his brother’s financial condition, and the slightest examination into it would have revealed the existence of the Wintersteen judgment, and of the current indebtedness afterwards set forth in the schedules.</p> <p>“It is argued on behalf of the claimant that the $200 was in the nature of a trust fund, and was not an ordinary indebtedness; but the fund was not earmarked and apparently not deposited in bank. The last deposit made in the bankrupt’s account prior to the adjudication was on April 28, 1908, and the $200 was not lent until May 4th, or 5th. It appears to have been used to pay current expenses.</p> <p>“The referee orders John A. Kearney to repay to the trustee in bankruptcy the sum of $233.40, paid by the bankrupt to him on May 25, 1908.”</p>

<p>1. United States (§ 3*) — Authority Over Property Acquired Within States —Military Post.</p> <p>The land on which Ft. Oglethorpe is located in Georgia, being a part of that acquired by the United States for a National Military Park with the consent of the State Legislature, which ceded jurisdiction of the lands and roads therein, said fort being used as a military post, is within the provision of the Constitution of the United States, art. 1, § 8, giving exclusive jurisdiction over forts, etc.', to Congress, and neither the state nor other local authorities have power to interfere with any instrumentalities necessary to the proper use of such location as a military post.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 3; Dec. Dig. § 3.*]</p> <p>2. Army and Navy (§ 27*) — Teamsters in Quartermaster’s Department — Liability to Work Hoads Under State Law.</p> <p>A teamster in the permanent employment of the Quartermaster’s Department of the United States army, stationed at the military post of Ft. Oglethorpe in Georgia, and under articles 1 and 730 of the army regulations required to obey strictly and execute promptly the orders of his superiors, cannot be required by the local officers of the state to appear and work on the roads outside of the fort and reservation, and his detention in jail for a failure to perform such road work is a violation of his rights under the Constitution and laws of the United States.</p> <p>[Ed. Note. — For other cases, see Army and Navy, Dec. Dig. § 27.*]</p> <p>3. Judgment (§ 828*) — Conclusiveness op Adjudication — Dismissal.</p> <p>A judgment of a state court dismissing a writ of certiorari to review a sentence of imprisonment for want of notice, and not on the merits, is not a bar to a subsequent proceeding by the petitioners for release on a writ of habeas corpus.</p> <p>FEd. Note. — For other cases, see Judgment, Cent. Dig. §§ 1504-1509; Dec. Dig. § 828.*]</p> <p>4. Habeas Corpus (§ 45*) — Federal Courts — State Prisoners — Discretion to Discharge.</p> <p>A federal court will discharge from imprisonment by a state, on a writ of habeas corpus, a teamster in the employment of the Quartermaster’s Department of the army, where such imprisonment is in violation of the Constitution and laws of the United States and prevents the performance of the duties of his employment.</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 38-45; Dec. Dig. § 45;* Courts, Cent. Dig. §§ 1376-1385.*]</p>

<p>1. War (§ 19*) — Blockade—Establishment and Duration.</p> <p>A proclamation by one of two nations . engaged in war declaring a blockade of the enemy’s ports does not affect the right of a neutral to enter such ports unless the blockade is made effective in fact.</p> <p>[Ed. Note.- — For other cases, see War, Cent. Dig. § 96; Dec. Dig. § 19.*</p> <p>The neutrality laws, see note to Hart v. United States, 28 C. C. A. 622.]</p> <p>2. Shipping (§ 108*) — Carriage of Goods — Contract of Affreightment.</p> <p>Libelant was a shipper of flour from Portland. Oregon, to Asiatic ports by respondent’s line of steamships, the custom being for it to reserve space on a vessel for a certain tonnage, the ports of destination not being designated until the vessel was loaded when bills of lading were issued containing the specific contract including a provision that the carrier should not be liable for loss or damage occasioned “by arrest or restraint of princes, rulers, or people.” Following such method of dealing, by a writing made Aug. 1, 1904, space was reserved for libelant for 2,000 tons of flour on a steamship of respondent sailing Aug. 28, on her regular voyage for Japanese and Chinese ports. Russia and Japan had been for some months at war and Russia had issued a proclamation declaring flour contraband of war. Russia had not established any effective blockade of Japanese iiorts but her war vessels had seized some neutral vessels as prizes, including one owned by respondent, the cargo of which was condemned. Respondent continued to operate its vessels however and both parties knew of such seizure as well as the general war conditions when the reservation of space was made. A day or two later the'agreement was canceled by respondent as to shipments to any Japanese ports on the ground of the war conditions. Held, that in view of the previous method of dealing between the parties the reservation of space by agreement amounted to a contract by implication to carry flour to any regular port of call of the vessel in Japan which should he designated by libelant at the time of loading, subject to the limitation of liability contained in the usual hills of lading.</p> <p>TEd. Note. — For other cases, see Shipping, Cent. Dig. § 405; Dec. Dig. § 108.*]</p> <p>3. War (§ 18*) — Contraband—Flour.</p> <p>While flour is not in general contraband of war it may be so if intended for military use by a belligerent or destined for a port of military or naval equipment, and being thus on the border line a proclamation of one of the governments at war declaring^it contraband is sufficient to impress' it with that character.</p> <p>[Ed. Note. — For other cases, see War, Cent. Dig. § 91; Dec. Dig. § 18.*]</p> <p>4. War (§ 18*)- — Rights of Neutrals — Validity of Contract to Carry Contraband.</p> <p>A citizen of a neutral state may lawfully contract to carry contraband of war and his undertaking will be enforced by the courts of the neutral state.</p> <p>[Ed.-Note. — For other cases, see War, Cent. Dig. § 92; Dec. Dig. § 18.*]</p> <p>5. Shipping (§ 108*) — Carriage o'f Goods — Contract of AffreightmentLimitation of Utabilitt — “Arrest or Restraint of Fringes, Rulers, or People.”</p> <p>A clause exempting a carrier from liability for loss or damage occasioned “by arrest or restraint of princes, rulers, or people” in a contract of affreightment by a neutral to carry contraband of war, made when conditions of war exist and are known to both parties, must be construed as intended to apply only to actual arrest or seizure and confiscation and affords no ground for repudiation of the contract by the carrier because of the danger of seizure.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. §§ 405, 408; Dec. Dig. § 108.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 504.]</p>

<p>Damages (§ 80*) — Diquidated Damages and Penalties — Constbuctton of Stipulations.</p> <p>A contract by which one party agreed to buy and maintain for a term of three years a stock of patterns made by the other party, and also to buy during the term fashion sheets of not less than $222.25 in value in the aggregate, provided that in case of breach by either party the other might terminate the contract and recover as liquidated damages a sum equal to the amount to be paid for such fashion sheets. During the time the contract ran, before the bankruptcy of the purchaser, the fashion sheets purchased amounted to about $50 per month. Held, that the provision was a reasonable one, and would be construed as one for liquidated damages, as stated by the parties, and not as a penalty, and as such enforced.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 170-175; Dec. Dig. § 80.*]</p>

<p>Costs (§ 60*) — Discretion in Equity — Apportionment.</p> <p>The awarding of costs in an equity case is within the discretion of the court; and where, in a case in which large interests were involved, the law was not settled, and there was reasonable basis for the suit, although the bill is dismissed, the court may properly, in the exercise of such discretion, require each party to pay his own costs.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. § 265; Dec. Dig. § 60.* Right to costs in equity, see note to Tug River Coal & Salt Co. v. Brigel, 17 C. C. A. 368.]</p>