Volume 168 — Federal Reporter

<p>In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois.</p> <p>In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.</p> <p>These cases arise under.the safety appliance acts. The first, second, and fourth sections of Act March 2, 1893, c. 196, 27 Stat. 531. (TJ. S. Comp. St. 1901, p. 3174),- are as .follows:</p> <p>“Section i. That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate tráffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.</p> <p>“Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.”</p> <p>“Sec. 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling</p> <p>In the first section of Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885), it was provided: “That the provisions and requirements of the act” of March 2, 1893, “shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type; and the provisions and requirements * * * relating to train brakes, automatic couplers, grab-irons, and the height of drawbars shall be held to apply to fill trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, * * * and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith.”</p> <p>In the Wabash case the only question is the sufficiency of the petition. The averments in substance were that the Wabash Company was an interstate common carrier, owning and operating an interstate railroad, and engaged in transporting thereover commodities in interstate traffic; that on a day named it hauled on its line of railroad a car that was not equipped with automatic couplers; that the car was one “regularly used in the movement of interstate traffic,” but at'the time in question was empty. As against the demurrer to this petition it stands admitted that the defective ear was not a part of an interstate train, was not itself being moved on an interstate journey, and was not exclusively devoted to the carriage of commodities in interstate traffic. Contentions are presented that the car was not within section 2 of the act of 1893, and that if, by reason of the declaratory and interpretative act of i 903, this car be held to be included, the legislation would be in excess of the powers of Congress to regulate commerce.</p> <p>In the Elgin, Joliet & Eastern case, besides the same matter of pleading, the question is presented by the evidence “whether a car, merely in the same train with other cars that are carrying interstate commerce, is by the fact alone of being in such a train, within the provisions of the act.” Some minor points are urged, the facts in relation to which are indicated in the opinion.</p> <p>In Case No. 1,461:</p> <p>In Case No. 1,473:</p>

The Monongahela Coal Company brought suit on the law side in the court. below for the recovery of the balance due upon two promissory notes made by one A. V. Robertson, for the price of two boat loads of coal sold 'and delivered at his Grand Bay Plantation, in the state of Louisiana, and used in the manufacture of sugar and molasses produced from cane grown upon said plantation in the year 1898.

<p>1. Railboads (§ 327*) — Accidents at Crossings — Cake Required of Automobile Driver — Duty to Stop, Look, and Listen.</p> <p>Because of the fact that a collision between a railroad train and an automobile endangers, not only those in the automobile, but also those on board the train, and also because the car is more readily controlled than a horse vehicle, and can be left by the driver, if necessary, the law exacts from him a strict performance of the duty to stop, look, and listen before driving upon a railroad crossing, where the view is obstructed, and to do so at a time and place where stopping and looking and listening will be effective.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 327.*]</p> <p>2. Railroads (§ 328*) — Accidents at Crossing — Contributory Negligence.</p> <p>An automobile driven by plaintiff, in which he was riding with a friend, was struck by a train at a railroad crossing, and he was injured. There were double tracks, and plaintiff stopped 20 feet from the nearest track to allow a train on such track to pass, and then started ahead and was struck by a train on the other track going in the opposite direction. From the place where he stopped the tracks could be seen for a considerable distance in the direction from which the first train came; but, owing to trees and other obstructions, he could not see more than 175 feet in the other direction. If he had stopped on the first track, he could have seen the approaching train when 700 feet away; but he did not stop. Held., that he took chances rather than precaution, and was chargeable with contributory negligence, which precluded a recovery for his injury from the railroad company.</p> <p>[Ed. Note. — For other cases, see Railroads, Dee. Dig. § 32S.*]</p>

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

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

This cause comes here upon appeal from a judgment of the Circuit Court, Southern District of New York, entered upon the verdict of a jury in favor of defendant in error in an action to recover damages for negligence. The plaintiff was a longshoreman working on board La Gascogne.

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

<p>1. Bankruptcy (§ 440*) — Appellate Proceedings — Mode op Review.</p> <p>An order of a court of bankruptcy directing the turning over of .money or property by a third person to a trustee cannot be reviewed by appeal under Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 (U. S. Comp. St. 1901, p. 3432), a petition for revision under section 24b being the only remedy.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Big. § 915; Dec. Dig. § 440.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]</p> <p>2. Bankruptcy (§ 116*,) — Administration of Estate — Powers of Court.</p> <p>Where property which has come into the possession of a receiver in bankruptcy as a part of the bankrupt’s estate has been taken from his possession, by an adverse claimant, either wi.h or without his consent, the court of bankruptcy has power to protect its possession by summary order requiring the return of the property, or its proceeds if sold, and jurisdiction to adjudicate with respect td all claims thereto.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 116.*]</p>

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

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

<p>1. Bankruptcy (§ 363*) — Liens—Waives by Proving Debt as Unsecured.</p> <p>A creditor of a bankrupt for the price of goods sold, by proving his debt as one without security, does not waive his right to assert a vendor’s , privilege against the goods, under Rev. Civ. Code La. art. 3227.</p> <p>[Ed. Note. — For other eases, see Bankruptcy, Dec. Dig. § 363.*]</p> <p>2. Bankruptcy (§ 308*) — Payment of Debt by Surety — Right of Subrogation.</p> <p>A surety for a bankrupt, who pays the debt after it has been proved in bankruptcy, is legally subrogated, under Rev. Civ. Code La. art. 2162, to the rights of the original creditor, and may in the latter’s name assert ■ his claim to a privilege under the state statutes.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 308.*]</p>

This cause comes here on writ of error to review a judgment of the Circuit Court, Eastern District of New York, entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. He sued as assignee of Ayer & McKinney, manufacturers of butter and other products of milk in Delaware county, N. Y. Since no point is raised as to the assignment, both assignors and assignee will be hereinafter referred to as the plaintiff.

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

Petition to Review Order of the District Court of the United States for the Northern District of New York. This cause comes here upon petition to revise an order of the District Court, Northern District of New York, denying an application by certain creditors of the bankrupt to be allowed to come in and file and prove their claims after the expiration of one year from adjudication. The opinion of the District Court is reported in 161 Eed. 762.

<p>Criminal Iiaw (§ 1132*) — Appeal and Erboe — Procedure.</p> <p>The hearing on a writ of error in a criminal case expedited by dispensing with the printing of the record and briefs, where serious objection was made to the enlargement of the defendant on bail.</p> <p>[Ed. Note. — For other eases, see Criminal Daw, Dec. Dig. § 1132.*]</p>

This cause comes here upon appeal from a decree of the District Court adjudging the amount of dispatch money to be paid by shipowners to charterers upon discharge in the port of Havana. The opinion of the District Court is reported in 163 Fed.' 868.

<p>Death (§ 31*) — Action fob Causing Death — Beesons Entitled to Sue — Foa-EIGN ADMINISTKATOB.</p> <p>An administrator appointed in another state cannot maintain an action in New York to recover damages-for the wrongful death of Ms intestate without taking out ancillary letters in that state, there being no statute of the state authorizing foreign administrators as such to sue therein.</p> <p>fEd. Note. — For other cases, see Death, Cent. Dig. § 39; Dec. Dig. § 31.*]</p>

Appellant failed in its suit to enjoin alleged infringement of claims 1 and 2 of patent No. 587,441 and claims 3, 4, and 9 of patent No. 587,442, both issued on August 3, 1897, to Knight and Potter, one for a “regulating apparatus for electrically driven mechanism,” and the other for a “method of regulating electrically driven mechanism.” 159 Fed. 951. The claims are as follows: “1.

<p>Patents (§ 218*) — Licenses—Royalties—Bights and Liabilities of Parties.</p> <p>Plaintiff contracted to furnish defendant with plans and specifications for building four patented gas producers, with a warranty that in addition to the gas they should produce as a by-product 70 pounds oí sulphate of ammonia per ton of coal consumed, provided such coal contained not less than 1.3 per cent, of nitrogen. Defendant agreed to build the machines and to pay a license fee for their use if they fulfilled the warranty. Having refused to rnahe such payment, plaintiff sued therefor, alleging fulfillment of the warranty, which defendant denied, and that issue was the only one tried. Relé, that it was error for the court to instruct the jury that if defendant used coal containing less than the required per cent, of nitrogen it waived the warranty of 70 pounds of sulphate of ammonia per ton, and plaintiff could recover if a proportionate amount was produced, since the requirement as to the percentage of nitrogen was one for plaintiff’s benefit, which he alone could waive or could insist on, and that if he consented to the use of inferior coal, as he admittedly did, the waiver was his and not defendant’s, and did not relieve him from the warranty.</p> <p>[Ed. Note. — For other cases, see Patents, Gent. Dig. § 330; Dec. Dig. § 218.*]</p>

This cause comes here upon appeal from a decree of a perpetual injunction against infringement of complainant’s design patent (No. 38,-412, Jan. 15, 1907), and adjudging recovery against the defendant of $250, the statutory liability.

<p>1. Patents (§ 18*) — Invention—Success of Device.</p> <p>A simple device or improvement may involve patentable invention, where it converts failure into success or accomplishes what others had tried to accomplish and failed.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 18; Dec. Dig. § 18.*]</p> <p>2. Patents (§ 328*) — Invention and Infringement — Block Signaling Apparatus.</p> <p>The Wilson patent No. 470,S13, for an electric railway signal apparatus, was not anticipated, and covers a combination which was the last step in making the normal danger system of signaling successful and practicable, and is entitled to rank as a pioneer in the art and to a broad construction. As so construed, also held infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

In Equity. Suit for infringement of letters patent No. 791,217 and reissue No. 12,443 (original No. 791,216), each for a process and mechanism for making wire-glass, granted to Edmund C. Schmertz. On final hearing.

<p>Patents (§ 328*) — Novelty—Machine and Method fob Making Wire-Glass.</p> <p>The Baldwin patents, No. 800,131, for a machine for making wire-glass, and No. 847,637, for a method of making wire-glass, are void for lack of patentable novelty, in view of the prior art.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 259*) — Infringement by Corporation — Contributory Infringement.</p> <p>The fact alone that a majority of the stock of a corporation charger! with infringement of a patent is owned by another corporation, which exorcises such control only as is incident to such stock ownership by the election of its own officers as directors, etc., does not render the latter corporation chargeable as a contributory infringer.</p> <p>[ICd. Note. — For other cases, see Patents, Cent. Dig. § 400; Dec. Dig. § 259.*</p> <p>Contributory infringement of patents, see notes to Edison Electric Light Co. v- Peninsular Light, Power & Heat Co., 43 C. C. A. 485; iEolian Co. v. Harry II. Juelg Co., 8G C. 0. A. 206.)</p>

In Bankruptcy. Application by objecting creditors for an order overruling the exceptions filed by the bankrupt to the report and findings of Wm. P. Badger, Esq., referee in bankruptcy, and which recommends that a discharge be denied, and denying a discharge to the above-named bankrupt, Millard E. Aldridge.

In Bankruptcy. Application by petitioning creditors to confirm report of special master and for an adjudication in bankruptcy, and motion on the part of the administrators of the alleged bankrupt, on exceptions filed, to set aside the report, refuse adjudication, and dismiss the petition.

<p>Coixision (§ 34*) — SoirooNEBs Meeting — Change oe Coubse.</p> <p>A collision at nigbt off tbe New Jersey coast between two schooners, one laden and on a northeasterly course and the other light on a southwesterly course, held, on conflicting evidence, to have been solely due to the fault of the latter in not keeping out of the way and in changing her course across that of the other very shortly before the collision.</p> <p>I lid. Note. — For other cases, see Collision, Cent. Dig. § 32; Dec. Dig: § "'I.* I</p>

<p>On Plea to Jurisdiction.</p>

<p>Bankbuptcy (§ 387*) — Composition — Refusal op Cbeditok to Accept — Election.</p> <p>A creditor of a bankrupt corporation, claiming a lien for part of his debt, who refused to accept securities of a reorganized corporation, tendered to him pursuant to a composition agreement confirmed by the court, and commenced a suit to establish and enforce his lien, is not entitled to have such securities impounded pending the suit, that he may have them, if unsuccessful, especially when the company issuing the same is not a party to the suit.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 387.*]</p>

<p>1. INJUNCTION (§ 111*) — ENFORCEMENT OP ORDINANCE — PARTIES.</p> <p>A local board of health in the state of New Jersey is a public agency created under 1he authority of the state, from which it directly derives its powers, and is wholly independent of municipal control. Iícueo a town is not a proper party to a suit (o enjoin the enforcement of an ordinance passed by a board, of health, although the two exercise authority over the same territory in their different spheres.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 214; Dec. Dig. § .114*]</p> <p>2. Injunction (§ 85*) — Grounds op Ret.tef— Irreparable Injury.</p> <p>Pending a proceeding by certiorari in the Supreme Court of New Jersey to test the validity of an ordinance passed by a local board of health, in which the court made an order staying the enforcement of the ordinance until final decision, the petitioner cannot maintain a suit in equity in a federal court to enjoin such enforcement; there being- no threatened irreparable injury to invoke the jurisdiction of that court</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*]</p>

<p>1. Corporations (§ 308*) — Orncris—Contracts por Compensation.</p> <p>A binding contract by a corporation to pay a salary to an officer or director for services not incidental to his office may be made without any formal resolution of the board of directors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1338; Dec. Dig. § 308.*]</p> <p>2. Corporations (§ 309*) — Officers-—Dealings with Corporation.</p> <p>The secretary and treasurer of a corporation who was also its active de facto manager with authority to buy property on credit, to collect and pay out money for the corporation, and to borrow money, from time to time advanced money of his own to pay bills, which he charged up as an indebtedness of the company on its books, and repaid to himself from money collected for the company later. This custom was known to the president and directors, and was not objected to. Held, that such advances were not voluntary, but were made under an implied agreement by the company to repay them, and that those unpaid when it became a bankrupt were provable against its estate.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1367; Dee. Dig. § 309.*]</p>

<p>1. Deeds (§ 211*) — Validity—Mental Capacity op Grantor.</p> <p>Evidence held insufficient to impeach a conveyance made in Georgia of land there situated, on the ground of the mental incapacity of the grantor, under the settled rule of the Supreme Court of that state that to constitute such incapacity as will avoid a contract there must be an entire loss of understanding.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 638-640; Dec. Dig. § 211.*]</p> <p>2. EXECUTORS AND ADMINISTRATORS (5 181*) — 'WIDOW’S ALLOWANCE.</p> <p>Under Civ. Code Ga. 1895, § 2771, which provides that "whenever any person in this state conveys any real property by deed to secure any debt * * * and shall take a bond for titles back * * * upon the payment of such debt * * * such conveyance * * * shall pass the title of said property to the vendee till the debt * * * shall be fully paid, and shall be held by the courts of this state to be an absolute conveyance, with the right reserved by the vendor to have said property reconveyed to him upon the payment of the debt,” the fact that the holder of such a conveyance brings suit to foreclose the same as a mortgage in a federal court, as he may do, does not change its character to that of a plain mortgage, which, under Code Ga. 1895, § 2725, is only a security and passes no title, so as to let in the claim of the widow of the grantor to. an allowance for support out of the property, but such an allowance made in proceedings to which the grantee was not a party can apply only to the grantor’s equity of redemption.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Dec. Dig. § 181.*]</p> <p>3. Witnesses (§ 140*) — Competency — Suits Against Personal Representatives of Deceased Persons — Persons Interested in Questions at Issue.</p> <p>Neither the provisions of Iiev. St. § 858 (U. S. Comp. St. 1901, p. 659), nor of Civ. Code Ga. 1895, § 5269, with respect to the competency of witnesses in suits against executors or guardians, render a witness incompetent merely because he may have an interest in a question at issue, where he is not a party to the suit.</p> <p>[Ed. Note: — For other cases, see Witnesses, Cent. Dig. §§ 598-618; Dec. Dig. § 140.*]</p> <p>4. Witnesses (S 159*) —Competency — Suits Against Personae Representatives of Deceased Person — Transaction wmi Deceased.</p> <p>One who acted as agent for a borrower in procuring a loan is not thereby disqualified under the law of Georgia to testify as a witness for the lender as to transactions between himself and the borrower relating to the loan, in a suit to enforce payment against the borrower’s executrix.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. jj§ 664, 666-669, 671-682; Doc. Dig. § 159.*]</p> <p>5. Witnesses (§ 140*) — Competency—Interest.</p> <p>Nor is he disqualified for interest because employed as attorney for the borrower in the suit, where it does not appear that his compensation is dependent on the result.</p> <p>(Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 598-618; Dec. Dig. § 140.*]</p> <p>6. Mortgages (§ 581 *) — Foreclosure by Spit — Right to Attorney’s Fhes.</p> <p>A provision in promissory notes for the payment of attorney fees in case of collection by suit, valid under Laws Ga. 1900, p. 53, is enforceable although the holder brings a suit; in equity to foreclose a mortgage securing tbe notes, instead of suing thereon at law, the attorney’s fees being a part of the debt secured.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1670; Dee. Dig. § 681.*]</p>

<p>1. Injunction (§ 114*) — Indispensable Parties.</p> <p>A contract was entered into between a water company and a railroad company having a right of way through a city, by which the water company was to supply water to the railroad for 25 years and was given the right to lay a pipe line on the railroad right of way through the city for the delivery of water to the railroad company and to other customers, to maintain the same for the term of the contract, and, if it should not be renewed, for an additional 25 years on such terms as should be agreed upon. Held that, as such pipe line was not for railroad purposes alone, but was to be constructed by and for the benefit of the water company, such company was an indispensable party to a suit to enjoin the city from interfering with its construction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 202; Dee. Dig. § 114.*]</p> <p>2. Courts (§ 343*) — Federal Courts — Nonjoinder oe Indispensable Parties —Amendment.</p> <p>Leave cannot be granted by a federal court to amend a bill by bringing in a new party, which, whether nominally made a complainant or defendant, must be aligned for jurisdictional purposes in opposition to a citizen of the same state, and whose joinder would defeat the jurisdiction of the court, which rests alone on diversity of citizenship.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 919, 920; Dee. Dig. § 343.*]</p>

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

<p>Criminal Raw. Case heard on motions after a verdict finding the defendant guilty of murder.</p>

<p>1. Railroads (§ 229*) — 'Operation of Railroads — Safety Appliance Act.</p> <p>Section 4 of the safety appliance act (Act March 2. 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) requires secure grabirons or handholds at those points in the end of each car where they are reasonably necessary in order to afford to men coupling or uncoupling cars greater security than would be afforded them in the absence of any grabiron or handhold at that point or of any appliance affording equal security with a grabiron or handhold.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p> <p>2. Railroads (§ 229*) — Operation of Railroads — Safety Appliance Act.</p> <p>If at any place in the end of a car there is not a grabiron or handhold, properly speaking, but some other appliance, such as a ladder or brake lever, which afforded equal security with a grabiron or a handhold at that point, the federal safety appliance law (Act March 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), so far as grabiron or handhold at that point is concerned, has not been violated. Having something there which performs all the functions of a grabiron or handhold is just the same thing as having what is properly called a grabiron or handhold at that point.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 229.*]</p> <p>3. Railroads (§ 254*) — Safety Appliance Act — Violation—Evidence.</p> <p>Unless the government satisfies a jury by a preponderance of the evidence that there was no grabiron or handhold on the car where there should have been one, the jury should find for the railroad company.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 772; Dee. Dig- § 254*]_</p> <p>4 RAILROADS (§ 229*) - - OPERATION OR RAILROADS — SAFETY APPLIANCE ACT — “ENGAGED IN COUPLING AND UNCOUPLING CARS.”</p> <p>A man In connecting or disconnecting the air hose between, the cars is engaged in coupling or uncoupling cars within the meaning of the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1301, p. 3174]), if it is necessary for him to connect or disconnect that hose in order to connect or disconnect the cars.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 22!);*]</p> <p>5. Railroads (§ 234*) — Safety Appliance Acts — Violation.</p> <p>Where a car is not properly provided with grabirons on .a given day, and the train stops for a certain lime and then goes on again, there are not two violations of the law, but only one, because the car is all the time being moved in the same train. It makes no difference that if is being so moved on two different days.</p> <p>ilid. Note. — For other cases, see Railroads, Cent. Dig. § 769; Dec. Dig. § 254*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Bullard, 37 C. C. A. 8.]</p> <p>6. Railroads (§ 229*) — ObtAiNS—SAWCTy Appliance.</p> <p>A “train, within the safety appliance act,” is one aggregation of ears drawn by the same engine, but if the engine is changed then there is a different train.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7056, 7057.J</p> <p>(Syllabus by the Court.)</p>

<p>Woods and Forests (§ 8*) — TImbee on Minino Claims — National Forests.</p> <p>Whatever rights the holders of unpatented mining claims may have in the timber on their claims arc subject to the paramount title of the government, and, when such claims are in a national forest, timber thereon which is dead, matured, and infested with insects so as to be a menace to the young and growing trees may be sold by the Forest Service under tho regulations promulgated by the Secretary of Agriculture.</p> <p>1 Ed. Note. — For other cases, see Woods and Forests, Dec. Dig. § 8.*]</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On application to open adjudication.</p>

<p>In Bankruptcy.</p>

<p>1. CARRIERS (§ 32*) — INTERSTATE COMMERCE ACT — NO DISCRIMINATION BY Demand of Prepayment of Charges.</p> <p>An interstate carrier does not subject a consignee to an undue or unreasonable prejudice or disadvantage under section 3 of the interstate com-merco act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155]) by exacting, after due notice to it, the prepayment of charges for transportation of all property consigned to it, while it does not require such charges to be paid in advance upon freight consigned to others similarly situated.</p> <p>LEd. Note. — For other cases, see Carriers, Cent. Dig. § 84; Dec. Dig. § 32.*]</p> <p>2. Carriers (§ 82*) — Interstate Commerce Act Prohibits Undue and Unreasonable Prejudices and Disadvantages Only.</p> <p>The interstate commerce act (Act Feb. 4, 1887, c. 304, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) does not prohibit the giving of all preferences and advantages, or the production of all prejudices and disadvantages, but only those that are undue and unreasonable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 84; Dec. Dig. § 32.*]</p> <p>S. Carriers (§ 32*) — Same—Carrier may Exercise Common-Daw Rights Save as Prohibited by Interstate Commerce Act.</p> <p>A common carrier has the right under the common law to demand the prepayment of charges for freight of one, and to give credit for them to another similarly situated.</p> <p>An interstate common carrier is free to exercise all his rights under the common law to the full extent to which such exercise has not been made unlawful by the interstate commerce act (Act Feb. 4, 1887, e. 104, 24 Stat. 879 [U. S. Comp. St. 1901, p. 3154]).</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 84; Dee. Dig. § 32.*]</p> <p>4. Carriers (§ 32*) — Bad Motive for Lawful Act Creates No Cause of Action.</p> <p>The fact that a carrier, for the purpose of injuring the business of a consignee, or harassing it, subjects it to a prejudice or disadvantage which is neither undue nor unreasonable, does not change the nature of the prejudice or disadvantage or create any cause of action therefor.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 84; Dec. Dig. § 32.*]</p> <p>8. Carriers (§ 32*) — Interstate Commerce Act — Prepayment op Charges por Freight — “Undue or Unreasonable Prejudice or Disadvantage” — Facts — Conclusion.</p> <p>The plaintiff is a corporation engaged in buying, selling, and dealing for commissions in fruit, vegetables, and dairy products at Minneapolis, and it has offices at St. Paul, Rochester, and Mankato, in Minnesota, and Aberdeen in South Dakota. The defendant is a common carrier. It has railroad stations at those towns, and lines of railroad through those states and adjoining states. It is the custom and usage of such carriers, and of the defendant, for the terminal carrier to advance the charges of connecting lines upon freight consigned to parties at those stations, to transport the freight and deliver it to the consignees, also to receive freight at its stations and to transport and deliver it to the consignees, to hold the bills until the questions regarding the correctness of the charges on its lines and on the connecting lines have been adjusted, and then to collect the bills of the consignees. From a bad motive the defendant, after notice, refused to advance charges to connecting lines, to receive and transport freight consigned to the plaintiff, unless the charges upon it for transportation were prepaid, while it continued to give credit to other consignees similarly situated according to the usage and custom.</p> <p>Held: These acts did not subject the plaintiff to undue or unreasonable prejudice or disadvantage within the meaning of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]).</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 84; Dee. Dig. § 32.*]</p> <p>Hook, Circuit Judge, dissenting.</p> <p>.¿Syllabus by the Court.)</p>

This was an action brought by the United 'States to recover 45 penalties of $100 each for violations of Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), known as the “Federal Safety Appliance Act,” as amended by Act April 1, 1896, c. 87, 29 Stat. 85, and Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885).

<p>In Error to the United States Court of Appeals in the Indian Territory.</p> <p>The Western Investment Company brought this action for a balance due it upon an account for lumber and materials sold, cotton handled, and services rendered to Walter B. Mann, Frank M. Davis, Robert S. Davis, and James G. IOiight, as partners doing business under the firm name the “Coweta Cotton & Milling Company.” Tho defendants denied the partnership and their liability, and averred that the indebtedness in question was that of the milling company and that that company was a corporation. The evidence established these facts: One Naylor was the president, and Frank M. Davis was the vice president and general manager, and Naylor, Davis, Edwards, and Wallace were directors, of tho Western Investment Company. There were 1,000 shares of the capital stock of that company, of which Naylor owned 520, Davis, Edwards, and Wallace 80 each.</p> <p>In April or June, 1902, Mann, Frank M. Davis, Robert S. Davis, and Knight agreed to embark in a. $10,000 enterprise for the purpose of building a cotton gin, buying, ginning, and selling cotton, that Mann should take two-fifths of ibis undertaking and the other three members one-fifth each, and that Frank M. Davis should take his fifth for the Western Investment Company. Neither the Western Investment Company nor any of its directors ever authorized Davis to take this stock on its behalf, and he never reported to the company that he had so taken it until January, 1903, after the indebtedness here in question had been incurred, and at about the time when the milling company ceased to operate its gin. He testified that he had some conversation with Edwards and Wallace about his taking this stock for the corporation, but that he never mentioned it to Naylor, the president, who held a majority of the stock. In February, 1903, after the milling company had ceased to operate its gin, Davis caused an entry of a credit of $1,150 to that company to be entered upon the account books of the investment company on account of this slock, and the investment company subsequently repudiated this charge and charged the $1,150 back to tho milling company.</p> <p>In April or June, 1902, F. M. Davis, on behalf of the investment company, agreed with the other defendants to furnish to them materials to build the cotton gin, and in June or tbe following month the plaintiff commenced to furnish materials and to render its services for this purpose, which were received by Knight as the representative of the defendants and used by him to construct the cotton gin and to carry on the business which the defendants were conducting. The price of these materials and services were charged upon, the boohs of the investment company to Coweta Gin Company and the Coweta Gin cotton account.</p> <p>On September 8, 1902, three of the defendants met and signed articles of incorporation as the “Coweta Cotton & Milling Company” and a declaration of the purpose of the incorporation, which the statutes required to be verified by the signers and to be filed with the clerk of the Court of Appeals and with the clerk of the judicial district in which the contemplated corporation was to do business. This declaratioin was verified by Mann on November 10, 1902, and by Frank M. Davis on December 10, 1902, and it was filed with the clerk of the Court of Appeals on December 22, 1902, and was never filed elsewhere. The balance of indebtedness due to the investment company is about $5,000 and interest, and all of it but a few hundred dollars was incurred before the articles of incorporation were filed. Frank M. Davis, as general manager of the investment company, treated the milling company as a corporation all the time during which this indebtedness was contracted, and never charged any of it to himself or his associates. He and other witnesses testified that the milling company received the benefit of all materials and services furnished by the plaintiff, and that the defendants received no benefit from them, and that they acted in good faith and without any intent to deceive or defraud any one. The entire amount of money paid into the milling company by the corporators was not more than $4,950. That company never had any stock book and never issued any stock. The defendants commenced to buy cotton and to operate their gin under the name of the milling company in October, 1902, and they ceased to operate their cotton gin in January, 1903. Knight managed the construction of the cotton gin and the other improvements for the defendants and the business of the defendants and the milling company from June, 1902, when he commenced the buildings, until January, 1903. About $3,000 of the claim, in suit was for lumber and labor furnished, and for this amount the investment company filed a claim for a mechanic’s lien verified by the successor of Frank M. Davis in May, 1903, in which there is a statement that the milling company is a corporation. Upon this state of facts the trial court directed a verdict for the defendants, and refused to instruct the jury that the plaintiff was entitled to recover the portion of the debt incurred prior to the filing of the articles of incorporation on December 22, 1902.</p>

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

The defendant in error was employed as a motorman on an interurbun electric train running between the cities of Seattle and Tacoma. His duties required him to ride in a small compartment partitioned off in front of the front motor car. In the apparatus used for lighting and heating the cars of the train, there was used what is known as a “heating and lighting fuse,” one end of which was connected with the lighting and heating wire of the car.

<p>1. Customs and Usases (§ 15*) — Construction of Contract — Evidence to Aid Construction.</p> <p>On application of plaintiffs, defendant delivered to them a memorandum with a “rider” attached which certified that defendant had insured them “under policy No. 7522” against war risks only on a flour cargo shipped from Portland, Or., to Japanese ports on the steamship Arabia. In fact, no policy numbered 7,522 or otherwise was executed to plaintiffs. Held, that there was a latent ambiguity in the memorandum as it read, with its reference to the policy, which it was competent to explain by parol, and that evidence was admissible to show a custom in such cases that the standard form of policy in use by the insurance company was understood to be referred to and to be a part of the contract, being retained by the company in its office, such evidence not being inconsistent with the writing.</p> <p>[Ed. Noté. — For other cases, see Customs and Usages, Cent. Dig. §§ 30-33; Dec. Dig. § 15 ;* Evidence, Cént. Dig. §§ 1945-1952.]</p> <p>2. Insurance (§ 669*) — Action on Policy — Instructions — Avoidance fob Concealment.</p> <p>. In an action on a marine insurance policy, the .instructions, taken as a whole, held to state the correct rule as to concealment by the insured which would avoid the contract.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 669.*].</p>

<p>In Error to the Supreme Court of the State of Oklahoma.</p>

<p>1. Inmans (§ 35*) —Real Estate — Restrictions on Disposition — “Alienable” and “Inalienable” Include Wills.</p> <p>The words “alienable” and “inalienable,” used to restrict the disposition of lands in the Supplemental Agreement with the Ohickasaws and Choctaws (Act July 1, 1902, c. 1362, 32 Stat. 642, 643, §§ 12, 15, 16), include disposition by will.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 38; Dee. Dig. § 15.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 302-306; vol. 8, p. 7571.]</p> <p>2. Indians (§ 15*) — Equity o'j? Eneolled Member Before Allotment Not De-visable.</p> <p>The right and equity of an enrolled member of the Chickasaw Nation of Indians, who died testate in 1908 before receiving an allotment, to a just share of the lands of the Ohickasaws and Choctaws, was not devisable, and the title to the lands subsequently derived therefrom was not affected by the will.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 38; Dec. Dig. § 15.*]</p> <p>3. Indians (§ 15*) — Chickasaw Wills and Probate by Their Courts Effective Prior to 1906.</p> <p>Prior to March 4, 1906, the Chickasaw Indians bad the right to dispose of their devisable property by wills made in accordance with the laws of the Ohickasaws, the proper Chickasaw probate court had jurisdiction to probate these wills, and its judgments are impervious to collateral attack.</p> <p>I Ed. Note. — For other cases, see Indians, Cent. Dig. § 38; Dec. Dig. § 15.*]</p> <p>(Syllabus by the Court.)</p>

Selim Marrash was sentenced to imprisonment for 12 months and to pay a fine of $500, George Sara was sentenced to imprisonment for 3 months and to pay a fine of $500, and Habib Marrash was fined $500 and to stand committed until the fine was paid. Seventy-five errors are assigned by the defendants.

<p>1. Indians (§ 15*) — Deeds—Validity—Mental Incapacity or Gbantor, Coupled with Inadequacy oe Consideration.</p> <p>Evidence Held to* sustain a decree canceling two deeds made by an Indian allottee on the ground that when the first was made he was a minor and was also at the time, and when the second confirmatory deed was executed, illiterate and of weak mind and incapable of caring for his interests, and that the consideration paid was not over one-fourth of the actual value of the property.</p> <p>[Ed. Noto. — For other cases, see Indians, Dee. Dig. § 15.*]</p> <p>2. Indians (§ 15*) — Lands—Alienation by Allottees — '“Paragraph.”</p> <p>Act June 30, 1902, c. 1323, 32 Stat. 500, ratifying a supplemental agree ment with the Creek Indians, etc., by section 10 provides that lands shall not be alienated by allottees before the expiration of five years, except with the approval of the Secretary of the Interior. At the close of the section is the following provision: “Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of Its invalidity.” By Act April 21, 1904, c. 1402, 33 Stat. 189, 204, all restrictions upon alienation of lands, except homesteads, were removed as to members of the Five Civilized Tribes “who were of full age and not of Indian blood.” The above provisions of the earlier act are in separate paragraphs, grammatically considered. Reid that, in view of the evident intent of Congress, the word “paragraph,” as used in the second provision, must be construed to include the entire section, and that a conveyance made by an allottee, although not of Indian blood, while a minor and without the approval of the Secretary, was void, and could not be ratified after he reached majority.</p> <p>[Ed. Note. — For other cases, see Indians, Dec. Dig. § 15.*</p> <p>For other definitions, see Words and-Phrases, vol. 6, p. 5164.]</p> <p>3. Statutes (§ 199*) — Construction—“Paragraph.”</p> <p>. The term “paragraph,” in an act of Congress, will be construed to mean “section,” whenever to do so accords with the legislative intent.</p> <p>[Ed. Note. — For other cases, see Statutes, Dee. Dig. § 199.*]</p> <p>4. Infants (§ 31*) — Conveyances—Avoidance—Return of Consideration.</p> <p>If a conveyance made by a minor be disaffirmed, he will be required to restore such of the consideration as remains in his hands; but repayment of the consideration will not be required where it has been wasted, disposed of, or consumed during minority, and his estate has not benefited thereby.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 46, 50-63; Dec. Dig. § 31.*]</p>

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

<p>1. Bankruptcy (§ 415*) — Proceedings in Opposition to Discharge — Amendment op Specifications.</p> <p>A special master, to whom was referred a bankrupt’s application for discharge, had power to permit the amendment of specifications of objection filed on behalf of a number of creditors, but signed and verified only by an agent of one, by allowing the same to be signed and verified by one of the other creditors.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 415.*]</p> <p>2. Bankruptcy (§ 409*) — Grounds for Refusal to Discharge — Failure to Keep Books of Account.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 14b (2), 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427), as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1026), the failure of a bankrupt to keep correct books of account, “with intent to conceal his financial condition,” debars him from the right to a discharge, whether his intent was fraudulent or not.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 409.*]</p>

This cause comes here upon appeal from a decision of the Circuit Court, affirming a decision of the Board of General Appraisers, which sustained the action of the collector in classifying for duty certain importations under Tariff Act July 24, 1897, c. 11, 30 Stat. 151 (U. ■ S. Comp. St. 1901, p. 1626).

Appeals from the Circuit Court of the United States for the Southern District of New York. The Circuit Court reversed decisions by the Board of United States General Appraisers, which had overruled protests by the importers. Note G. A. 6,567 (T. D. 28,044).

This cause comes here upon appeal from a decision of the Circuit Court reversing a decision of the Board of General Appraisers, which sustained the collector’s classification for duty of certain merchandise imported under Act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1026).

<p>Judgment (§ 585*) — Matters Concluded — Action eor Price of Goods Sold.</p> <p>Where, in an action for the price of goods sold, a breach of warranty is unsuccessfully relied upon as a defense, it cannot subsequently afford a cause of action for damages.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1095; Dec. Dig. § 585.*]</p>

<p>Shipping (§ 132*) — Action fob Loss of Cargo — Defenses—Contract Giving Carries Benefit of Insurance.</p> <p>Under a provision of a bill of lading giving the ¡carrier, in case of loss or damage to tbe property for which it is liable, the benefit of “any insurance that may have'been effected upon or on account of such property,” the burden rests upon the carrier, when sued for a loss, to prove that there was insurance, to the benefit of which it was entitled.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 132.*]</p>

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

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

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

<p>1. Patents (§ 328*) — Claim 1 or Patent No. 535,465 to Sohroeder fob Means foe Operating Washing Machines Sustained.</p> <p>Claim 1 of letters patent No. 535,465, issued to John Sohroeder, for means for operating- washing machines, March 12, 1895, was not anticipated by figure 373 of Brown’s “507 Mechanical Movements,” nor by British letters patent No. 2,040, February, 1876, nor by letters patent No. 304,549, issued September 2, 1884, to Frank D. Palmer, and it is valid.</p> <p>(Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p> <p>2. Patents (§ 19*) — In Old Crowded Art Each Inventor Entitled to His Own Improvement.</p> <p>Where an art is old and crowded so that no pioneer patent exists, and many inventors conceive and construct machines, combinations, and improvements therein which accomplish the desideratum with varying degrees of success, each inventor is entitled to his own machine, combination, or improvement, so long as it differs from those of his competitors and does not include theirs.</p> <p>[Ed. Note. — -For other cases, see Patents, Cent. Dig. § 19; Dec. Dig. § 19.*]</p> <p>3. Patents (§ 27*) — Application to New Use when Invention and Patentable — When Not.</p> <p>The application of an old machine, combination, or device, found in an analogous art, without substantial modification, to a new use, is not invention nor patentable, where its applicability would occur to a person of ordinary mechanical skill.</p> <p>But such an application is invention and patentable where its applicability would not be perceived by a person of ordinary mechanical skill, where it is incapable of performing the function requisite to the new use without substantial modification, and where it was not designed by its maker, nor adapted, nor actually used, to perform such a function.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 31, 32; Dec. Dig. § 27.*]</p> <p>4. Patents (§§ 235, 237*) — Infringement — Changes in Form will Not Escape.</p> <p>Changes of the form of a machine or combination secured by patent will not avoid infringement, where the principle of the invention is taken, unless the form is the distinguishing characteristic of the invention.</p> <p>The substitution for two rows of teeth, which mesh around and engage with the cogs of a pinion in a patented device, of a single row of two-faced teeth which performs the same function in the same way, will not avoid infringement.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. §§ 371, 374; Dec. Dig. §§ 235, 237.*]</p> <p>5. Patents (§ 109*) — Claim—Limitation by Rejection and Amendment.</p> <p>A patentee who acquiesces in the rejection of his claim on references is estopped from maintaining that an amended claim covers the combinations and devices shown in those references, or that it has the breadth of the rejected claim.</p> <p>But he is not estopped from claiming and securing by an amended claim every improvement and combination he has invented that was not disclosed by the references upon which his original claim was rejected.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 152; Dec. Dig. § 109.*]</p> <p>(Syllabus by the Court.)</p>

'¡'65,240, granted to Adam Hobart, July 19, 1904, for improvements in tune-sheet attachments for auto-pneumatic pianos. The application was filed May 21, 1904. The opinion below is reported in (C. C.) 162 Ted. 160.

<p>Patents (§ 328*) — Infringement—Temporary Binder.</p> <p>The Leslie patent No. 603,428, for a temporary hinder, consisting of two back pieces, a cord connecting them and passing through one, and means for shortening such cord so as to bring the back pieces together uniformly, is for an improvement on the prior art, and the combination as a whole discloses patentable invention; but the patent is entitled to only a narrow construction, and is limited to the precise device shown and described. As so construed, held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>In Equity. Suit to restrain alleged infringement of United States letters patent and for an accounting.</p>

<p>1. Patents (§ 1*) — Nature or Patent Rights.</p> <p>The right to a patent monopoly exists only by virtue of the laws of the-United States, and cannot be affected by state laws.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 1.*]</p> <p>2. Patents (§ 196*) — 'Transfer—Requisites on Validity.</p> <p>A patent monopoly can only be transferred in the manner prescribed by Rev. St. § 4898 (TJ. S. Comp. St. 1901, p. 83S7), namely, by a written instrument signed by the owner of the patent and duly recorded.</p> <p>[Ed. Note. — For other cases, see Patents, Dee. Dig. § 196.*]</p> <p>3. Execution (§ 26*) — Property Subject — Patent Rights.</p> <p>A patent right cannot be sold on execution.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. § 67; Dec. Dig. § 26.*]</p> <p>4. Receivers (§ 67*) — Title to Property — Patent Rights.</p> <p>A patent right does not pass to a general assignee or receiver of property of the owner.</p> <p>[Ed. Note. — For other cases, see Receivers, Dec. Dig. § 67.*]</p> <p>5. Patents (§ 265*) — Suit foe Infringement — Title to Support — Receiver.</p> <p>The mere appointment of a receiver to take charge of, manage, and control a patent does not vest in him title to the patent which will enable him to maintain a suit for its infringement in his own name, Rev. St. § 4919 (U. S. Comp. St. 1901, p. 3394), giving the right to recover damages only “in the name of the party interested either as patentee, assignee or grantee.” To -vest the receiver with such right .of action, it is essential that the court compel or cause an assignment of the patent to him in the name of the owner.</p> <p>[Ed'. Note. — For other cases, see Patents, Dec. Dig. § 265.*]</p>

<p>Patrots (§ 828*) — Infringement—Safetv Fuse.</p> <p>The Sachs patent No. 600,341, for an electrical safety fuse, construed, and held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

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

<p>Appeal from Taxation of Costs.</p>

<p>Removal of Causes (§ 12*) — Right of Removal — Restrictions as to District- . of Suit.</p> <p>Where an action in a state court against a foreign corporation, commenced in a federal district other than that in which plaintiff resided, was removed on change of venue into such district, the defendant had the-right at the first term thereafter to remove the same into the federal court,, when the amount involved was such as to give that court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes,. Dec. Dig. § 12.*]</p>

<p>Prior to the argument, the court requested counsel on both sides to submit requests for findings of fact. Complainants’ counsel did this. Defendants’ counsel have not done so. Complainants’ requests have been considered, some of which are embodied within the following findings, and some are not</p> <p>The following are the findings of fact that the court makes as based upon the evidence herein:</p> <p>(1) The complainants are the 18 railroad companies owning and operating lines of railroad in Missouri, they doing all of the state and interstate railroad business therein, and all of them except the St. Louis & llannibal Company having lines of railroad both within and without the state. That company is wholly within the state, extending from Hannibal, Mo., to the south 120.61 miles. The Kansas City, Clinton & Springfield Company is a road of about 160 miles in length, with 151.01 miles in the state. All the other companies have lines extending into a number of other states, one of them extending into 13 other states and territories. Those roads, with their own lines and with their connecting carriers, carry all the traffic and do all, the business, freight and passenger, within the state, whether of state or interstate character, llie intrastate business is at all times herein referred to as “state business.” That part of the interstate business which neither originates within, nor has its destination within, but passes across the state of Missouri, is called “trans-state business.”</p> <p>(2) The same roadbed, locomotives, cars, and trains, including all facilities, are used for both classes of business, state and interstate. It is not practicable to conduct the business in any other way. This is so both from the standpoint of the public and that of the companies. If state business were to be carried alone upon some cars and trains, and interstate alone upon others, the expenses would be enormously increased, and almost if not quite prohibitive, while the public would be subjected to delays, inconveniences, and great expense. By reason of all this the business cannot practicably be separated.</p> <p>(3) Both from a geographical and railway standpoint, Missouri is situated differently from the other states'of the Union, there only being two or three other states that have a resemblance to it in these particulars, and each of them in a lesser degree. This is so-because the Mississippi is its boundary on the east all the distance. From a railroad standpoint, the Missouri river is its boundary line on the west, although physically the Missouri river is only the western boundary line from the northwest corner of the state about halfway to the southwest corner. But at the halfway point, namely, Kans'as City, the river turns directly to the east,, and continues its way to the Mississippi river. In its production, business, and commerce all that part of Missouri to the north of the Missouri river is practically like the south half of Iowa, the country districts producing large quantities of live stock and grain for the market, as well as much bituminous coal. The south half of Missouri is entirely different. The amount of grain and live stock .is much less than in the north half of the .state. But the south half has a large amount of timber, stone, lime, lead,.zinc, iron, and fruits. St. Louis on the east is a city of nearly 1,000,000 people, Kansas City on the west nearly half as many, while St. Joseph has more than 125,000 people. These three cities carry on large manufacturing interests. The grain, live stock, and packing-house interests at Kansas City and St. Joseph are enormous. For a third of a century or more, for reasons which need not be repeated, rates from the East were fixed to the Mississippi river, and, later on, from thence to the Missouri river. The interstate rates either in or out were the one plus the other. It was the same from the West. It was likewise the same for the transstate business going in either direction. Such is the method existing to-day. This brought about the fact, which for years has existed and exists to-day, that the short line of road between the two rivers fixes the freight rates. To illustrate, the Burlington Road is the short line between the rivers, being 198 miles from Hannibal to St. Joseph, and the same distance, within a few miles, to Kansas City. The roads between Kansas City and St. Louis — and there are four, at least, of them — including the Burlington, is an average distance of nearly 300 miles, but some of the roads being 50 miles or more farther between the points than the others. This brings about the fact that all freight rates between any one point on the one river and any point on the other river are the same as the rate from Hannibal to St. Joseph over the Burlington Line. That is to say, the freight rates on any road, regardless of distance, are the same between St. Louis and either Kansas City or St. Joseph that they are between Hannibal and St. Joseph over the Burlington Line. This has given the three cities of St. Louis, Kansas City, and St. Joseph great advantages over other points. Competent persons say that to change this system will work irreparable harm to the three cities named, as well as to all other places within the state, by driving both the jobbing and manufacturing business to seaboard points. As to this, no finding is made nor opinion expressed, because it is believed to be a matter of policy upon which this court in these cases should express no opinion. As to the passenger rates, by reason of competition the fare is the same between Kansas City and St. Louis, the shorter line fixing the rates, thereby compelling the longer road to be at much expense without remuneration. This is likewise true as to all competitive points.</p> <p>As to the foregoing question of rates and fares, there is no United States statute governing the same, and there is no Missouri statute upon the subject except the two statutes questioned by the bills, one dealing with certain commodities per car per distance, and the other fixing the passenger fares at two cents. Aside from these two statutes, and as to any bearing they have as to charges between the two rivers, the conditions named have been brought about and exist to-day by reason of a long-time custom, and by reason of transportation, actual and probable, upon tbe two rivers.</p> <p>Still further bearing on the question are the following facts: Joplin is a city in the southwestern part of the state, of more than 25,000 people. There are a number of towns adjacent thereto, giving that county (Jasper) a population of 200,000 people. It is a very large mining district of lead and zinc. Between Kansas City and Joplin three of complainants herein have railroads. The Missouri Pacific at all points between the said places is within the state. Each of the other two between said points is partly without the state, starting within and going out and coming bach, thereby making it interstate business as to two of the roads between Kansas Oity and the Joplin district. Between Kansas City and St. Joseph, four roads do the business. Tbe Missouri Pacific and Chicago Great Western is each part of the distance within the state of Kansas, while the Burlington and St. Joseph & Grand Island Company is each wholly within the state of Missouri between the two cities. Between St. Joseph and St. Louis two of complainants do practically all the business, which is very large in both ijassenger and freight. These are the Burlington and Missouri Pacific. Between said cities the Burlington Line is wholly within the state. But the Missouri Pacific line is partly within the state of Kansas, crossing the Missouri river at Atchison, and coming back into the state at Kansas City. On the foregoing facts the finding is that the short line between two competitive points necessarily fixes the rate, and the Missouri statutory rates under the statutes in question fix the rates between the cities named. But this is so solely because of the geographical location of cities and railroads, and competition, and long-time custom. It is not so either because of a statute or any judicial determination by any of the courts of Missouri.</p> <p>(Í) Pending this litigation, each of the complainant companies made and delivered to defendants statements showing the earnings and expenses for certain periods, which statements have been taken by both sides as sufficiently illustrative of the situation for the determination of these cases. The companies extended to the state officers, defendants herein, acting by experts by them selected, the opportunity to examine the statements and the books, papers, vouchers, and records of the companies. The freight rate statute of 1907 (Laws 1907, p. 170) as to commodities mentioned allowed greater rates lhan did the statute of 1905 (Laws 1905, p. 102 [Ann. St. 190S, § 1194]), assailed by the original bills of complaint herein, and it was conceded at the trial that, if the rates fixed by the act of 1907 were confiscatory, those fixed by the act of 1905 were likewise.</p> <p>(5) The parties were producing evidence and preparing their evidence for about one year with the aid of experts on each side. These experts were all men of high character and great proficiency as railroad accountants. The exports on each side were given the fullest opportunity and all the time desired to obtain the information and put the same in form in exhibits, schedules, and reports, all of which are in evidence in the cases, supplemented by the oral testimony of each of the experts with reference to all of these things.</p> <p>((>) It was conceded by the experts that the companies fairly, accurately, and honestly kept their books showing the facts in these findings set forth. The exports of the state and of the companies have thereby been enabled to present wiih certainly and precision all the earnings within the state, both state and interstate business. But obtaining and compiling this information by the experts has been at great expense of time and money. One excepiion to the foregoing is to he noted as to passenger fares for a short period of 1 hue after the two-eent fare law became operative. By agreement of both sides in open court in June, 1907, this court issued a temporary writ of injunction against the enforcement of the freight rate statute. The complainants asked for a temporary injunction against ihe enforcement of the two-cent passenger fare statute. This court held (hat the statute should be given a trial for five months and ascertain the result by actual operation. In preparing the order, counsel, no doubt by inadvertence, fixed three months as the period for trial as io results. But by acquiescence of both sides, or, if not, by delays with winch the court was not chargeable, such status remained for more than one year, and the cases wore not actually brought on for trial until In November, 1908. But after tlie statute became operative in June, 1907, and tbis court denied the temporary writ of injunction, the interstate passenger rates remained as they were for a period of about two months. During the time that condition prevailed, parties both coming into and going out of Missouri on interstate journeys would buy tickets to the state line, thereby obtaining the benefit of the two-cent fare for all distance within the state. It was not possible for the companies to show the truth as to the number of such trips, and therefore it is not possible for the court to find just how much of the earnings were on account of such interstate trips. But the extent, whatever it was, would make an erroneous showing as to state earnings, though favorable to defendants, because such earnings were of an interstate character. But even though for the short time a part of the business was thus carried on so that additional earnings were erroneously placed to the credit of the state, still the results are not changed, for the error was against, and not in favor of, complainants.</p> <p>Freight earnings, both state and interstate, are made up from earnings of transportation and another item called “miscellaneous freight,” composed of switching, demurrage, and storage charges, and track and equipment rentals. Passenger earnings are made up of passenger fares and miscellaneous, the latter covering mail, express, excess baggage, storage, rentals, and possibly some other terminal earnings.</p> <p>No difference of consequence has arisen between the parties as to the expense of doing the entire business in the state. With reasonable certainty the expenses for doing the freight and passenger, including miscellaneous of each, can be and have been separated.</p> <p>The earnings are known and fixed, and in these findings stated to a certainty. But as to the expenses as between state and interstate business, there has been a controversy, and such is the principal controversy in the cases. There is no known fixed or certain rule for determining how this separation of expenses shall be made. The same cannot be made with mathematical certainty. Complainants claim that the division should be made upon the revenue basis; defendants claim that it should be made upon the ton mile basis for freight, and passenger mile basis for passengers, classifying the miscellaneous earnings as and with freight and passenger earnings respectively. By the revenue basis is meant to assign such proportion of the total expense in the state on that class of business as the earnings of that class of state business bear to all the earnings, state and interstate, from the same class, or, which is the same thing, ascertain what the percentage of all expenses is of all earnings, then multiply that by the state earnings of any class, and thus obtain the sum to be assigned as state expense. The ton mile basis as to freight means the assignment as state freight expenses of any class of business such proportion of all state expense as the number of ton miles of state freight bears to the total ton miles of all freight hauled within the state. By the passenger mile basis is meant the assignment as state passenger expenses such proportion of all passenger expenses as the number of passengers in state business carried one mile bears to the whole number of passengers, state and interstate, carried one mile.</p> <p>For reasons stated in an opinion herein filed, the revenue basis has been and is adopted as the only logical basis to use in arriving at a correct .conclusion. The one basis or the other as a whole must be adopted. Either side can make a better showing by adopting the one basis in part of the accounting, and the other basis for the other. Neither should be and is allowed to do this. As will presently appear, the state has attempted to do this in making its passenger earnings accountings.</p> <p>(7) Each basis for accounting has some defects, but they are minor and not controlling, and do not change the result if the revenue basis is taken.</p> <p>The expense of doing the state business over interstate is greater for carrying freight by at least 50 per cent., and at least 25 per cent, for carrying passengers. Therefore this extra cost must be added to the expenses after they have been ascertained so as to obtain the total expense. If the ton mile basis of division were adopted, the extra cost should also be added. This would require the use of another multiplier sufficient to bring the sum total of the state freight expense equal to that found herein, to actually represent the cost as shown by the evidence. Any apportionment of passenger expense upon the passenger mile basis would be unfair and unjust, although much more favorable to the companies than if made upon the revenue basis.</p> <p>(8) All things considered, the evidence shows the cost of doing the different classes of state business as between state and interstate apportioned upon the revenue basis with added extra cost brings a result in these findings stated which is fair and representative and just. The court finds, aside from the revenue basis, that the evidence shows the amount ascertained in each case as the expense and extra cost is fair, and justly represents the expense of doing each class of state business. The extra cost as to each complainant for doing the state business over interstate is more than 50 per cent, in case of freight, and more than 25 per cent in case of passenger. This extra expense as thus found is considerably in excess of these figures, and the figures used are adopted as the minimum. The sum total of this extra cost, if ascertained according to the ton mile theory, would not be changed, because it is a question of multiplication, and one multiplier or another must be used accordingly as the theory is adopted. The findings herein made on all the evidence represent in dollars the fair cost and expense fixed at a minimum. There has also been considered and found in each case such sum as would equal the diminution of earnings upon the commodities covered by the freight rate statutes of 1905 and 1007, if the rates thus fixed had been charged, as there would have been but for the temporary injunctions herein issued.</p> <p>(9) The evidence shows that each of complainants has regularly paid for many years' interest on its bonds. Títere is no evidence to show that any of the railroad property within the state of Missouri has an undue amount of bonds or is unfairly bonded, and the evidence does not show that any of the bonds provide for interest in any sum greater than such bonds should carry. It does show that most of the bonds are at the lowest rates of interest, and much less than the legal rate allowable in Missouri. In thus referring to interest, the St. Xxrais & Hannibal and Kansas City, Clinton & Springfield companies are excepted.</p> <p>(10) After the adoption of the two-cent fare statute, there was no sub-si antial increase in travel. For a few weeks there was a small increase largely brought about by interstate passengers buying tickets to state lines, and in part by the novelty. What, if any, increase of travel occurred by reason of said two-cent fare, would be a mere approximation. It has not been substantial, and there is no reason to believe that any such increase will be brought about in the future by a two-cent fare.</p> <p>(11) The values of the railroad properties in the state of Missouri are found, in the cases tried, to be as follows:</p> <p> </p> <p>With the exeeplions hereinafter stated, the above valuations of the properties of said nine companies as fixed are in fact practically the same as those fixed by the state assessing board for the purpose of taxation. But aside and apart from the valuations thus fixed by the state board, these findings are that upon the whole evidence said properties are at least of the values above fixed. The evidence shows that included in such sums the state board, after making certain valuations under the heading of “All Other Property” fixed certain valuations, which when added give the totals as above. In argument it was contended that “All Other Property” included franchise values. This is not deemed important, because it is difficult to see wherein steam railroad properties, like those involved, can have a franchise value. But waiving that, any franchise value that the state board could have considered was necessarily so small a per cent, of the total valuations fixed by the state board as to make no appreciable difference in the result of these cases, because, if altogether admitted, the remaining value is such that no road could obtain a return to which it is herein found to be entitled. But if the property has a franchise value for taxation, it also has such valuation as an earning power, or, rather, upon which returns should be made. In fixing the valuations above set forth, there have been considered the immense terminal values of most of the roads, the amount of stock and bonds outstanding, what it would cost to duplicate the properties both with and without terminals in the large cities, and all the evidence bearing on present values, and in fixing said valuations the sums found are the minimum valuations, the properties being worth at least the sums thus fixed.</p> <p>The foregoing valuations are the same as fixed by the state assessing boards except as to the property of the St. Louis & Hannibal and of the Kansas City, Clinton & Springfield in the state, which are found to be worth 66% per cent, of the valuations of the state boards.</p> <p>(12) The interest obligations, except as already stated, are just and reasonable, and should be paid in full, with some dividends to the stockholders in addition. However, and entirely aside from the question of interest, the rates and earnings should in any event be such as to produce a fair return upon the valuations hereinbefore fixed. And such earnings should be on the property within the state as would be equivalent to 6 per cent, per annum, that per cent, being a fair return upon such valuations.</p> <p>(13) About the same time the two-cent fare statute became operative, passes and other forms of reduced and free transportation were abolished. Since that time they have not been given nor used except in cases of employés actually employed. The passenger earnings were thereby increased, but such increase was not more than approximately 1 per cent.</p> <p>(14) After the arguments were concluded, at the request of the court, and with the consent of the parties, two experts upon each side, two selected by the railways and two by the defendants, worked with the court for something more than one week. These experts were the same gentlemen representing their respective sides who had done much of the work in preparing the cases for the respective sides for hearing. The court requested these experts to take the numerous tables and tabulate them already in evidence, and to confine themselves wholly to that which had been introduced in evidence in the cases, and to make therefrom a new table for each of the nine cases, showing the earnings and the expenses .chargeable to each class of earnings according to the respective theories covered by counsel in the arguments. The court further requested said four experts, after preparing said new tables, that if they agreed, to affix their signatures thereto. This they did below a certificate reciting that the statement of earnings, operating expenses, etc., as to each particular road for the time therein given, correctly shows the results on the various assumptions set forth therein. Said nine statements were by order of this court, February 20, 1909, ordered filed and made of record in the eases. The said nine statements are now and here referred to, and are made part hereof. Each of said nine statements is found by the court to be correct upon the respective theories presented. But 'the theory entitled as the “state’s basis” is rejected for the reason that said statement improperly divides miscellaneous earnings, placing an undue proportion to the benefit of the state. And said basis improperly makes a division of expense upon the ton mile and passenger mile basis, and does not allow a sufficient amount as extra cost of doing state business, and the same does not allow enough for the value of the property, in that it deducts all sums included “All Other Property” multiplied by three.</p> <p>If the companies had been permitted to charge the amounts per passenger per mile which they did charge and receive prior to the two-cent passenger fare statute, they would have received, in addition to that which they did receive by reason of the statute, and by reason of the temporary injunction being denied, for earnings within the state for a period of 12 months last preceding the submission ol the eases, the following sums (interstate, however, not controlled by statute, but by changed conditions):</p> <p> </p> <p>In the case of the St Louis & San Francisco, there were included in expenses sums paid as rentals under a lease given by the Kansas City, Fort Scott; & Memphis Railway Company, whose common stock is owned by it, which operates the company under a lease requiring it to pay to the holders of preferred stock of the Fort Scott & Memphis Company, as a rental, a sum equal to 4 per cent, annual dividends. This lease has been in force several years and is a fair one, and such rental has been treated as an operating expense, and is not included in fixed charges. And the court finds that it is an operating expense. But even if it were a fixed charge, it is not material, as the result would not be changed even though the rentals were carried into the fixed charge account. This is so because the amounts carried into state freight expenso is only $8,428.56, and interstate passenger expense, $7,443.68.</p> <p>(-15) In the statements hereinbefore referred to made and signed by the four experts, while they correctly set forth the figures on both the revenue theory and the ton and passenger mile theory, the placing of the miscellaneous earnings of the passenger business is arbitrarily fixed, and does not at all proceed upon the passenger mile basis, but for that the revenue basis is taken and fixed. Such earnings are arbitrarily divided without reference to the facts, the result being the state earnings, and especially passenger, are fixed much higher than the actual earnings. Said division, instead of following defendants' theory of the ton mile and passenger mile basis, is upon the revenue basis, from which it is seen that this would be a splitting of theories. But from this and from all the evidence if. is plain that even the ton and passenger mile basis theory cannot be worked out without showing a loss, to prevent which an arbitrary change of account must be made as to the miscellaneous business. Kven in making this arbitrary change the revenue basis is used, and yet the revenue division of expenses insisted upon by complainants is said not to be recognized. This is utterly illogical and unfair, and does not represent the true facts as to whether such earnings are made at a loss, ami there is no reliance whatever to be placed in such method of accounting. In so finding, no reflection whatever is made upon the experts for the state, because, as before found, they are men of the highest character and learning and highly skilled in accounting, and with a proper basis for such accounting their work is perfect. And from their own statements upon the basis adofited herein for making such accounting by the court, the freight business for the period mentioned would have been done at a loss if the statutory rates had been observed, and the passenger business was done at: a loss under the two-cent fare statute.</p> <p>(16) As to each of the nine companies whose cases have been submitted, the earnings and expenses and all other items are different in amount. So with the returns upon value to which the company is entitled. But in no event in any of the eases tried would the freight earnings, after making the deductions herein found, result in a return to any company of more than 3 per cent. With nearly every company an actual deficit is shown, if the 1907 stai nte had been in force. So under the two-cent fare statute — a deficit as to nearly all of the companies, and not more than 2 per cent, in case of any company. If the freight and passenger business should be combined with the miscellaneous of each class, there would be a deficit as to some, and not to exceed 3 per cent, as to any of the others. In arriving at these conclusions, and in adopting the tabulations herein set forth, an account has been taken of all earnings, state and interstate, freight and passenger, and miscellaneous; the proportion which state and interstate freight and passenger, exclusive of miscellaneous, bear to all state and interstate, miscellaneous included, and that which they bear to all the earnings of the state; of miscellaneous freight and miscellaneous passenger earnings, undivided as between state and interstate, with the proportion they are of all earnings, freight and passenger; of all expenses divided as between all kinds of freight and passenger business, including miscellaneous, but not divided as between state and interstate; of the deductions to be made from all state freights, not including miscellaneous, of such proportion of expenses of all freight and passenger respectively as the freight and passenger earnings, exclusive of miscellaneous, bear to all earnings ; of the deduction of the extra cost; of the diminution of freight earnings if the freight rate statute had been observed; of the value of that portion of the property assignable to the particular traffic. This value is found by taking, for each class of business of the entire value of the property in the state, such proportion as the earnings on that portion of the business bear to all the earnings in the state. A statement so made as to each of the companies whose cases have been submitted is as follows:</p> <p>(17) The periods taken are representative taken by the experts upon both sides, and were for the months set forth in the column headed “Time.” These tables do not follow the form taken by the experts in preparing exhibits to be introduced in evidence, nor do they follow the prepared form adopted by the four experts in making the nine statements hereinbefore referred to. An attempt has been made to abbreviate, but with the results the same as adopted by the experts. These are found to be correct as now to be set forth, and are adopted by the court. If any error has crept into them, the court will make proper correction upon his attention being called thereto after these findings have been filed, which can be readily done upon motion or suggestion. The tables adopted by the court now follow:</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>(18) All Freight and Passenger Expenses, Including Miscellaneous, Less Taxes and Rentals, and Percentages to Earnings, Undivided as Between State and Interstate.</p> <p> </p> <p> </p> <p>The time of the foregoing tables is the same as in first table above.</p> <p>(19) The following nine tables show the state earnings and expenses, valuation, return on value, and interest charge of the said nine roads respectively whose cases have been submitted. The other cases are to be covered by decrees by agreement the same as certain decrees of the nine cases, all of which is of record.</p> <p>St. Louis & San Francisco Railroad Company,</p> <p>Period, Three Months.</p> <p> </p> <p>Atchison, Topeka & Santa Té Railway Company*</p> <p>Period, Six Months.</p> <p> </p> <p>The Chicago, Rock Island & Pacific Railway Company.</p> <p>Period, Three Months.</p> <p> </p> <p>The Kansas City Southern Railway Company.</p> <p>Period, Six Months.</p> <p> </p> <p>The St. Louis & Hannibal Railway Company.</p> <p>Period, Twelve Months.</p> <p> </p> <p>Missouri, Kansas & Texas Railway Company.</p> <p>Period, Six Months.</p> <p> </p> <p>Chicago, Burlington & Quincy Railroad Company.</p> <p>Period, Twelve Months.</p> <p> </p> <p>Kansas City, Clinton & Springfield Railroad Company,</p> <p>Period, Twelve Months.</p> <p> </p> <p>Chicago Great Western Railway Company.</p> <p>Period, Six Months.</p> <p> </p> <p>(20) The court believes that the foregoing findings are all that are material and all that are necessary to make. However, if any party believes that any material finding of fact has been omitted, upon application of such party the same will be considered and made if deemed advisable; and likewise If any of the foregoing computations or figures have been erroneously made. But such application, to be entertained, must be made within 30 days from this date.</p> <p>And each, all, and every of the foregoing are made as the findings of the court, and are now and here in open court this March 8, 1909, ordered filed and made of record in said cases and all of them.</p>

<p>1. Courts (§ 354*) — Federal Courts — Conformity- to State Practice.</p> <p>Tire Pennsylvania practice act of April 22, 1905 (P. L. 286), provides that “whenever upon the trial of any issue a point requesting binding instructions has been reserved or declined the party presenting the point may * * * move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the court, if it does not grant a new trial to so certify the evidence and to enter such judgment as should have been entered upon that evidence.” As construed by the Supreme Court of the state, such statute does not infringe upon the province of. the jury, but merely gives the court the same power after verdict that it had before to direct a verdict for either party upon the whole evidence. Held, that such practice was adaptable to the federal courts, and one which the Circuit Courts within the state were required to follow by Rev. St. § 914 (U. S. Comp. St. 1901, p. 684).</p> <p>[Ed. Note. — For other eases, see Courts, Dec. Dig. § 354.*</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>3. Insurance (§ 103*) — Agents—Liabilities to Principal-Action for Negligence.</p> <p>Plaintiff, a manufacturing company, employed defendants, who were insurance brokers, to secure good insurance on its property at the best rates they could get, and they acted under such employment for several years. While so employed the president of plaintiff called on defendants and stated that the company, had given a mortgage on its “place” or “property” or “entire plant,” and he desired some of the policies to deliver to the mortgagee as collateral. They were taken to the mortgagee’s attorney, who accepted the same, and they were duly transferred. Later the president again told defendants that the company had made another mortgage of the “same kind.” The policies contained a provision that they should be void if the subject of insurance was personal property and it should be or become incumbered by a chattel mortgage. Held, that there was nothing in plaintiff’s communication which advised defendants that the mortgages covered personalty so as to affect the validity of the policies, especially in view of the fact that they were accepted without objection by the mortgagee’s attorney,- nor were defendants required to examine the records, and that they were not chargeable with negligence in permitting the policies to stand or in renewing the same when they expired.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. § 103.*]</p>

<p>OomsioM (§§ 7, 9:»*) — Between Tu« and Steamer — Starboard Hand Rum:.</p> <p>A mg bound from Jersey City 1o Atlantic avenue, Brooklyn, was struck on her port side by a steamer bound to sea from her pier on the Manhattan side of the'Kast River. The vessels were on crossing courses;, the tug being the privileged and the steamer the burdened vessel. The steamer sought to excuse herself (1) because she had a right to expect that the tug would turn into the East River, and (2) because she was entitled under inspectors’ rule 9 to adopt a two-whistle course and,pass ahead. Both contentions rejected, the first because a starboard hand situation existed which was not changed by signals, and the second because the rule was invalid as being repugnant to the starboard hand rule.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. §§ 7, 93.*</p> <p>Signals of meeting vessels, see note to The New York, 30 C. G. A. 030.J</p> <p>(Syllabus by the Judge.)</p>

<p>SHIPPING (§ 56*) — -BREACH OP CHARTER — LIABILITIES.</p> <p>The schooner William L. Douglas was chartered by the Coastwise Transportation Company to the Unique Shipping Company and the charter assigned by the latter to the J. M. Guffey Company. The fittings for carrying oil in bulk were to be furnished by the Shipping Company. 1Jchi that the proper fittings were not furnished by the charterer and that it; was liable for the loss resulting from the vessel being taken from the Guffey Company by the owner.</p> <p>1 Ed. Note. — For other cases, see Shipping, Cent. Dig. § 126; Dec. Dig. § 56.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 141*) — Delay in Dischaeging Caego — Liability op Vessel.</p> <p>Delay in discharging cargo and consequent damage. A general strike of longshoremen in New York prevented the timely discharge of a shipment of onions from Hull, England. A strike clause in the bill of lading provided that the ship should not be responsible for strikes and stoppage of labor. Held that the clause constituted a defense.</p> <p>[Ed. Note. — Eor other cases, see Shipping, Dec. Dig. § 141.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Collision (§ Cl*) — Admiralty (§ 34*) — Evidence—Laches.</p> <p>Collision in the Providence River, Rhode Island, between the tows of the tug Little and the tug Mars in 1902. The Little exonerated and the Mars held because she was not navigating on the starboard side of the channel. The defence of laches not sustained as the purchaser of the Mars received a warranty bill of sale of the vessel and it appearing that the vendors were of financial responsibility, and further that they were in fact defending the vessel in this action.</p> <p>[Ed. Note. — For other cases, see Collision, Dec. Dig. § 61;* Admiralty, Cent. Dig. §§ 316-321; Dec. Dig. § 34.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Brokep.s (§ 106*) — Costs (§ 40*) — 1Contract—Compensation—Ofeer oe JUDGMENT.</p> <p>On a conflict of testimony, held that the libellant was entitled to recover in the first instance from Kellam with a right of recovery over on his part from the New England Company of a portion of the amount decreed to be due. Costs allowed notwithstanding an offer of judgment because the offer did not definitely state to whom the amount was due.</p> <p>[Ed. Note. — For other eases, see Brokers, Cent. Dig. § 149; Dee. Dig. § 106;* Costs, Cent. Dig. § 106; Dec. Dig. § 40.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§1 52, 58-:*) — CiiAKiiiK—FoRFKmjitE—NoNPAYMUNT of Hibb.</p> <p>.1 claim of a right to forfeit a charter of the steamer Harry Lucken-baeh, for nonpayment of hire, decided adversely to the libellants upon the ground that before there was an actual withdrawal of the steamer, the hire in arrears was tendered. Also hold that as the withdrawal was wrongful, the respondents should offset the damages they suffered thereby against the hire due.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. §§ 52, 58.*</p> <p>Cancellation, surrender, or rescission of charter of vessel, see note to McNear v. Leblond, 61 O. C. A. 569.]</p> <p>(Syllabus by the Judge.)</p>

<p>¡Shipping (§ 193*) — General Average.</p> <p>Spontaneous combustion of cargo of garbage tankage duo to the inherent vice or quality thereof. It having been decided iiy the House of Lords of Great Britain that the owner of cargo of that description is entitled to contribution from the shipowner in such a case, in tho absence of a conirary decision in this country, held that an exception to an answer alleging such a cause of loss should be sustained.</p> <p>[Ed. Note. — For other cases, see Shipping, Dec. Dig. § 193.*</p> <p>General average, see notes to Pacific Mail Steamship Co. v. New York. H. & It. Alining Co., 20 O. C. A. 337; The Santa Ana, 84 C. C. A. 3 Ui.J</p> <p>(Syllabus by the Judge.)</p>

<p>1. Attorney and Client (§ 189*) — Lien of Attorney — Settlement of Suit-Action in Forma Pauperis..</p> <p>A proctor, representing a libelant in a suit in admiralty for a personal injury brought in forma pauperis, on a settlement by his client, is not entitled to have a decree entered In favor of himself for the pari, of the recovery which he was to receive by agreement as a fee, under Code Civ. Proc. N. Y. § 66, giving attorneys a lien on the cause of action of their client, not to be affected by any settlement; such statute not being applicable to actions in forma pauperis.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Dec. Dig. § 389.*</p> <p>Compensation of attorney on premature termination of employment, see note to Du Bois v. Mayor, etc., of City of New York, 69 O. C. A. 113.]</p> <p>2. Admiralty (§ 124*) — Costs—Docket Fee.</p> <p>A docket fee is not taxable in favor of a libelant in admiralty, unless the court has in some way passed on the merits of the controversy involved in the suit.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 841; Dec. Dig. § 124.*]</p>

<p>Towage (§§ 0, 8*) — Nkgutgexce op Tug — Evidbxce—Services.</p> <p>Towing services of tbo tug Sommers N. Smith to the Dougherty Company near Assateague. Va. The claim of the Dougherty Company that the tug was negligent in performing her contract held to be without merit, and that the owner of the Smith was entitled to recover for her services.</p> <p>[Ed. Note. — For other cases, see Towage, Dec. Dig. §§ 6, 8.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Courts (§ 489*) — Concurrent Jurisdiction — State and Federal Court-Interstate Commerce Act — Action for Loss of Goods.</p> <p>Section 20 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 886 [U. S. Comp. St. 1901, p. 3169]), as amended by the Hepburn act (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1907, p. 906]), which requires the initial carrier on receiving an interstate shipment to give a through bill of lading therefor, and gives a right of action against the carrier issuing it for any loss or damage to the property caused by such carrier or any connecting carrier, does not limit jurisdiction of such an action to the federal courts, and, where the amount involved exceeds ?2,000, such courts and the state courts have concurrent jurisdiction under the general provisions of the federal judiciary act, but where the amount involved is less a state court alone has jurisdiction.</p> <p>(Ed. Note. — For other cases, see Courts, Dec. Dig. § 489.*]</p>

<p>Shipping (§ 87*) — Lien foe Damages — Peioeities Between Claimants.</p> <p>Claims against a vessel for damages resulting from collisions occurring on different dates are entitled to priority in the inverse order of such dates, upon the theory that the first claimant by virtue of his lien acquires a proprietary interest in the vessel, which is subject to the risks of her subsequent navigation, including liability for subsequent torts.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent Dig. § S40; Dec. Dig. § 87.*]</p>

<p>1. Maritime Liens (§ 69*) — Power op Court — Disposition op Proceeds op Vessel Sold.</p> <p>Where a court of admiralty has seized and sold a vessel in proceedings in rem, any surplus proceeds remaining after lien claims have been paid belongs to the owner of the vessel, and the court has no power to distribute the same to general creditors having no liens.</p> <p>[Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 107; Dec. Dig. § 69.*]</p> <p>2. Maritime Liens (§ 9*) — Maritime Contract-Hiring op Scow.</p> <p>A hired scow, on which a dredge was temporarily mounted while being used to unload material from boats and deposit the same in the space behind a private bulkhead, which was being filled in, was not employed in a maritime service, nor was the contract of hiring maritime; and the owner, in the absence of a contract therefor, has no lien upon the dredge or its proceeds for the hire.</p> <p>- [Ed. Note. — For other cases, see Maritime Liens, Cent. Dig. § 13; Dec. Dig. § 9.*]</p>

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

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

In Bankruptcy. On certificate of referee recommending refusal of discharge. Held: “A person furnishing information to such agency in relation to his own circumstances, means, and pecuniary responsibility can have no other motive in so doing than to enable the agency to communicate such information to persons who may be interested in obtaining it for their guidance in giving credit to the party; and if a merchant…

On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,626 (T. D. 28,255), in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of Philadelphia. Note Woodruff v. U. S. (C. C.) 168 Fed. 452.

<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.</p>

<p>Towage (§ 15*) — Sinking op Tow — Negligence.</p> <p>Sinking of a lighter when in tow of a tug on a hawser. Held that there was no contract, as alleged, to take especial care of the lighter. Viewed from the point of negligent towage, no sufficient proof of negligence was given to establish liability on the tug’s part.</p> <p>[Ed. Note. — For other cases, see Towage, Dec. Dig. § 15.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Aliens (§ 68*) — Naturalization—Declaration.</p> <p>An alien applying under the present law for citizenship, must, irrespective of age, at least two years prior to his admission, declare his intention to become a citizen and renounce allegiance to any foreign prince, etc., generally, and particularly to the one of whom he may at the time of application be a subject, or a country of which he may be a citizen. A declaration of such nature is not sufficient unless it is by the alien himself im conformity with the law at the time it is made.</p> <p>[Ed. Note. — For other cases, see Aliens, Cent. Dig. § 139; Dec. Dig. § 68.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Collision (§ 43*) — Sailing Vessel and Smsameb — Evidence.</p> <p>Collision between a steamer and a schooner in the western end of Ged-ney's Channel; both bound into New York. The schooner held her course across the channel but the steamer kept on and struck her near the stern. JleW, that it was an ordinary case of collision between a steamer and a sailing vessel and the usual rule requiring the former to avoid the latter should be applied.</p> <p>[Kd. Note. — For other cases, see Collision, Dec. Dig. § 43.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Admiralty (§ 60*) — Pleading.</p> <p>Where a libel which originally sought to excuse the performance of a condition of a contract by alleging impossibility was held defeetive and it was amended so that a waiver by the respondents of the performance was alleged and an estoppel by their conduct to avail themselves of the breach of the condition pleaded, held the amendment overcame the defect and the libel was good.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. § 487; Dec. Dig. § 60.*]</p> <p>(Syllabus by the Judge.)</p>

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

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

Petition for Revision of Proceedings of the District Court of the United States for the Northern District of West Virginia, at Parkers-burg. Appeal from the District Court of the United States for the Northern District of West Virginia, at Parkersburg.

Look Wing, the father of the petitioner presented to the court below a petition for a writ of habeas corpus, alleging that in the month of August, 1892, in the city of Seattle, state of Washington, Can Pon was born of Chinese parents who then resided and were permanently domiciled in said city; that in the year 1899 he, with his parents, departed from the United States and went to the empire of China, where he remained until October, 1907; that he then returned to the United…

The appellees, who are Chinese persons, were denied admission into the United States after investigation by the inspector in charge at the port of Su-mas, in the state of Washington, and were by him ordered returned to China, whence they came. An appeal from the inspector’s decision was taken to the Secretary of Commerce and Labor, and by that officer affirmed.

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

<p>1. Master and Servant (§ 332*) — Injuries to Servant — Independent Contractor — Question por Jury.</p> <p>Where plaintiff, a servant of certain machinery movers, was directed by them to assist in moving a heavy motor from defendant’s place of business, and he was injured while doing so by the fall of defendant’s elevator by which the motor was lowered, evidence held to justify submission to the jury of the question whether plaintiff’s employers were engaged to do the work as independent contractors and selected the elevator as their means of doing their own task, or whether defendant was in charge of the work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 332.*</p> <p>Who are independent contractors, see note to Atlantic Transport Co. v. Coneys, 28 C. C. A. 392.]</p> <p>2. Negligence (§ 119*) — Injuries to Servant — Issues and Proof.</p> <p>In an action for injuries by the fall of an elevator, plaintiff could not complain of negligence in loading a motor on the elevator at the time of the accident, where the negligence was limited to the elevator cables and appliances being permitted to become weak and unsafe, and in defendant’s permitting the motor to be loaded onto the elevator knowing it was not of sufficient strength.</p> <p>[Ed. Note. — For other cases, see Negligence, Dec. Dig. § 119.*]</p> <p>3. Negligence (§ 136*) — Elevators—Overloading—Question for Jury.</p> <p>In an action for injuries to plaintiff while assisting in lowering a motor by means of defendant’s elevator, evidence held to warrant the submission of the question of defendant’s negligence in permitting the elevator to be overloaded to the jury.</p> <p>[Ed. Note. — For other cases, see Negligence, Dec. Dig. § 136.*]</p> <p>4. Master and Servant (§ 332*) — Injuries to Third Persons — Instructions —Applicability to Issues.</p> <p>Where, in an action for injuries by the fall of an elevator, plaintiff's only allegation of negligence related to the weakness or the insufficiency of the elevator, and defendant claimed that the lowering of a motor in which plaintiff was engaged when injured was the work of plaintiff’s employers as independent contractors, and that they selected the elevator as their own means in doing the work, the court erred in charging that if the jury did not find plaintiff’s employers were independent contractors, but that plaintiff for the time being became defendant’s servant, it was defendant’s duty to furnish a reasonably safe working place and reasonably safe appliances, and if he failed to do so, and plaintiff was injured without contributory negligence, he could recover.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 332.*]</p> <p>5. Negmgekce (§ 122*) — Coxtrittotory Negi/tgesoe — Burden of Proof.</p> <p>Tlie burden of proving contributory negligence is oil the defendant.</p> <p>[Ed. Note. — For oilier cases, see Negligence, Cent. Dig. §§ 226-234; Dec. Dig. § 122.*]</p>

The decree in favor of appellee, complainant below, was entered after a hearing on bill and answer. (C. C.) 157 Fed. In July, 1892, one Nyback, then 18 years old, was injured while working in the sawmill of appellant corporation. In April, 1896, he commehced in the court below an action at law to recover damages. Between that date and March. 1903, there were four trials of the ease.

<p>Injunction (§ 72*) — Grounds—Protective Remedy.</p> <p>Under Code Civ. Proe. Mont. 1895, § 871 (Rev. Codes, § 6643), which provides that, “when it appears by affidavit that the defendant during the pendency of an action.threatens or is about to remove or to dispose of his property with intent to defraud the plaintiff, an injunctive order may be granted to restrain the removal or disposition,” when it appears from the decisions in prior litigation that a mining company in a pending suit will probably recover a large judgment against another company for the value of ore extracted from veins owned by plaintiff, a court is authorized to grant an injunction restraining the defendant from extracting and selling the ore from its mine, where it is shown by affidavit that the result wouid be that it would not have sufficient property remaining to respond to the judgment.</p> <p>¡'Ed. Note. — For other cases, see Injunction, Cent. Dig. § 188; Dec. Dig. § 72.*]</p>

<p>1. Bankruptcy (§ 467*) — Appeal-Review—Findings of Fact.</p> <p>Findings of fact, made by a referee in bankruptcy and confirmed by the District Judge, are to be accepted by an appellate court, unless clearly erroneous.</p> <p>LEd. Note. — For other cases, sea Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 467.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Kggert, 43 C. C. A. 9.]</p> <p>2. Bankruptcy (§ 76*) — Involuntary Proceedings — Creditors Entitled to Join in Petition — Estoppel.</p> <p>The rule that creditors who assent to a general assignment by their debtor are in general estopped to join in a petition in bankruptcy against him does not apply where they are induced to do so by his fraud or misrepresentation, and in such case they may repudiate the assignment and allege it as an act of bankruptcy.</p> <p>[Ed. Note. — For other casos, see Bankruptcy, Cent. Dig. § 97; Dec. Dig. § 76.*]</p> <p>3. Bankruptcy (§ 60*) — Acts of Bankruptcy — General Assignment.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 3a (4), 30 Stat. 546 (U. S. Comp. St. 1901, p. 3422), as amended by Act Feb. 6, 1903, c. 487, § 2, 32 Stat. 797 (U. S. Com]). St. Supp. 1907, p. 1025), the making of a general assignment by a debtor constitutes an act of bankruptcy, although it is not valid for all purposes.</p> <p>LEd. Note. — For other cases, see Bankruptcy, Cent. Dig. § 80; Dec. Dig. § 60.*]</p>

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

<p>1. INJUNCTION (§ 239*) — WRONGFUL. INJUNCTION — LIABILITY— LIMITATION BY Bond.</p> <p>Where a federal court, as a condition to the granting of a preliminary injunction, required complainant to give a bond in a stated sum to indemnify the defendant against loss or injury due to the improvident or erroneous grant of such injunction, the liability of the complainant, as well as the surety, is limited to 1he amount of such bond, and neither further damages, interest, nor costs can be awarded in addition thereto.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. § 542; Dec. Dig. § 239.*]</p> <p>2. Equity (§ 409*) — Findings of Master — Presumptions Supporting.</p> <p>The conclusions of a master on matters of fact have every reasonable presumption in their favor, and are not to be set aside or modified, unless there clearly appears to have been error or mistake on his part.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. §§ 920-923: Dec. Dig. § 409.*]</p>

<p>Shipping (§ 58*) — Charters—Injuby to VESSED — RiABmrTv op Citárteme.</p> <p>In a suit to recover for injury to a derrick chartered by libelant to respondent, and which sank while in the exclusive possession and control of respondent, the burden rested upon respondent, as bailee in possession, in order to avoid liability, to show how the injury occurred and that it was free from negligence.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 239; Dec. Dig. § 58.*]</p>

3 There was no written opinion below. The Circuit Court reversed a decision by the Board of United States General Appraisers (G. A. 6.345; T. D. 27,295). which had affirmed the assessment of duty by the collector of custom? at the port of New York. The facts of the case and the nature of the issue appear from the following extract from the opinion filed by the Board of General Appraisers: “FISCHER, General Appraiser.

This cause comes here upon appeal from a decision of the Circuit Court, affirming a decision of the Board of General Appraisers (G. A. (5,(509 ; T. D. 28,220), which reversed a decision of the collector, classifying the merchandise in suit as a nonenumerated manufacture under the provisions of the tariff act of 1897. The opinion filed in the Circuit Court is as follows: PLATT, District Judge (orally). The importation involved in this appeal is invoiced as carnauba wax.

<p>Railroads (§ 229*) — Interstate Commerce— Safety Appliance Acts.</p> <p>Defendant owned a railroad located wholly in Cook County, Ill. Its road constituted a belt which intersected the trunk lines leading into Chicago, and forming, by means of Y’s, direct physical connection with such trunk lines. Defendant’s business consisted entirely of transporting cars between industries located along its line and trunk lines and between such trunk lines, for which it received an arbitrary charge per car, which was collected monthly from the railroad companies, defendant having no dealings with shippers. Defendant paid no attention to the class of traffic, but acted as an agent for the trunk lines in transferring cars. Defendant on the occasion in question moved a train of freight cars, containing one consigned from a point in Illinois and destined to Wisconsin, from the tracks of the Chicago & Eastern Illinois Railroad to those of the Chicago & Northwestern Railroad. Held, that such transfer constituted in effect a , continuous carriage oyer both such roads, so that defendant with respect thereto was engaged in interstate commerce, and was within the safety appliance acts in relation to power brakes. Act Gong. Márcli 2, 1893. c. 196, 27 Stat. 631 (U. S. Comp. St. 1901, p. 3174); Act Cong. April 1, 1896, c. 87, 29 Stat. 85; Act Cong. March 2, 1903, e. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885).</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 743; Dee. Dig. I 229.*</p> <p>Duty of railroad companies to furnish safe appliances, see note to Felton v. Dullard, 37 C. C. A. 8.J</p> <p>Seaman, Circuit Judge, dissenting.</p>

<p>1. Cabriers (§ 37*) — Rates—Publication.</p> <p>Effective railroad regulation must begin with publicity of rates. The penalty for failure on the part of any carrier subject to the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) to publish and file its rates is as severe as the penalty for failure to strictly observe such rates after filing.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 95; Dec. Dig. § 37.*]</p> <p>2. Commerce (§ 34*) — Regulation oe Rates — Interstate Commerce.</p> <p>The line of the defendant railway is entirely within the state of Illinois. The defendant is, however, engaged in the transportation of property moving wholly by railroad from one state to another state. It is, , therefore, as much subject to the act to regulate commerce (Act Feb. 4, 1887,' c.' 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) as it would be if it owned and operated a railway connecting the points in different states between which moved the commodities mentioned in the indictment.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 82; Dee. Dig. § 34.*]</p> <p>3. Carriers (§ 38*) — Transportation — Interstate Commerce — Failure to File Rates.</p> <p>By the amendment of June 29, 1906, e. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), transportation by rail of property moving in interstate commerce by a carrier which has not filed its rates for such service is a misdemeanor.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 96; Dec. Dig. § 38.*]</p> <p>(Syllabus by the Court.)</p>

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

In Equity. Suit for infringement of letters patent No. 832,896, for an amplifying horn for talking machines, granted to Wilburn N. Den-nison, October 9, 1906. On demurrer to bill.

<p>Shipping (§ 167*) — 1Carriage op Passengebs — Loss of Baggage.</p> <p>Damage to passengers’ baggage on a steamer through negligence upon reaching Nassau, West Indies. The ticket provided that the limit of recovery should be $100 for each person. Held, that the limitation was valid and should be sustained.</p> <p>LEd. Note. — For other cases, see Shipping, Cent. Dig. § 553; Dec. Dig. § 167.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Appeal and Erbok (§ 458*) — Supersedeas—Authority to Grant — Continuing. Injunction.</p> <p>A Ciicuit Court, on the dismissal of a bill and dissolution of a temporary injunction, granted at suit of a telegraph company, restraining the collection of taxes levied against it by a state, has power in its discretion to grant a supersedeas continuing the status quo pending an appeal, on the giving of a bond to protect the state.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 458;* Injunction, Cent. Dig. § 413.] '</p>

<p>Admiralty (§ 86*) — Commissioners—Findings—Review by Court.</p> <p>Where the court, upon the consent of the parties, has delegated a commissioner to hear and determine the issues in an action, the court is-without power to rule upon the findings and the exceptions should be dismissed.</p> <p>[Ed. Note. — For other cases, see Admiralty, Cent. Dig. §§ 621-625; Dec. Dig. § 86.*]</p> <p>(Syllabus by the Judge.)</p>

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

<p>Customs Duties (§ 37*) — Classification—Painted Calendar — “Paintings.”</p> <p>The term “paintings,” in Tariff Act July 24, 1897, c. 11, § 1, ¡Schedule N, par. 454, 30 Stat. 194 (U. S. Comp. St. 1901, p. 1678), includes hand-painted panels having a small calendar affixed, which is a trifling part of the entire article.</p> <p>(Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 37.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5158, 5159.]</p>

<p>ÁDMip.AT.xr (§ 119*) — Remavd After Reveksal — Procedure Below.</p> <p>The question of a right to limit liability involves a right to contest it, and, where a petitioner’s right to contest and limit has been decided in her favor on appeal, it only remains for this court to determine whether a claimant is entitled to recover, and, if so, to what extent.</p> <p>[Ed. Note. — For other cases, see Admiralty, Dec. Dig. § 119.*]</p> <p>(Syllabus by the Judge.)</p>

<p>Shipping (§ 81*) — Steamers—Injury by Swells — Liability.</p> <p>A claim against the steamer Providence for damages said to have been caused to a schooner by her swells, in the channel between Blackwells Island and Manhattan, dismissed, because (1) it did not clearly appear that this steamer created the swells, and, (2) if she did, they were not more than ordinary under reduced speed, and there was no negligence on her part.</p> <p>[Ed. Note. — For other cases, see Shipping, Cent. Dig. § 345; Dec. Dig. I 81.*</p> <p>Liability of vessel for injuries caused by creation of swell, see note to The Asbury Park, 78 C. C. A. 3.)</p> <p>(Syllabus by the Judge.)</p>

<p>Food (§ 12*) — Food and Drugs Act — Violation—Misbranding.</p> <p>Syrup, 10 per cent, of which is made from maple sugar and 90 per cent, from white sugar, put up in bottles having thereon labels containing the name “Gold Leaf Syrup,” with a trade-mark consisting of a gold leaf in the form of a maple leaf and stalks of sugar cane, and the words “composed of maple and white' sugar” in plain and distinct letters, with the name of the maker, cannot be said to be misbranded, so that its shipment in interstate commerce constitutes a misdemeanor under Food and Drugs Act June SO, 1906, c. 8915, § 2, 34 Stat. 768 (U. S. Comp. St. Supp. 1907, p. 928).</p> <p>[Ed. Note. — For other cases, see Food, Dee. Dig. § 12.*]</p>

<p>Customs Duties (§ 25*) — -Classification—Eaktiienware with One Color Glaze — “Dkcohated”—“Stained.”</p> <p>Earthenware, to which a single color glaze has been added, is, under Tariff Act July 24, 1897, c. 11, § 1, Schedule R, par. 96, 30 Stat. 156 (U. S. Comp. St. 1901, p. 1633), not only “decorated,” but may also be reasonably concluded to be “stained,” within the meaning of the paragraph.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 45; Dec. Dig. § 25.*]</p>

<p>Customs Duties (§ 33*) — Classification — Embboideked Articles — “Em - BROIDERY.”</p> <p>Tbe provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 (U. S. Comp. St. 1901, p. 1662), for “embroidery” and articles “embroidered in any manner,” does not include articles stitched on the edge with needlework of the plainest description, which simply serves the necessary and useful purpose of preventing raveling. The fundamental idea of embroidery is that it is needlework done upon a previously completed fabric, as distinguished from tapestry or lace work, in which the design is a part of the original fabric. It is also essential that it should be ornamental, rather than merely useful.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Cent. Dig. § 92; Dec. Dig. § 33.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2361.]</p>

On Application for Review of a Decision by the Board of United' States General Appraisers. The decision below (G. A. 6,519, T. D. 27,846) affirmed the assessment of duty by the collector of customs at the port of San Diego. The opinion filed by the Board of General Appraisers reads as follows: MCCLELLAND, General Appraiser.

<p>1. Customs Duties (§ 26*) — CLAsñiü’ic)ATiox,--“CiEaui,AR Saw Epates.”</p> <p>The provision in Tariff Act July 24, 1897, c. 13, § 1, Schedule C, par. 141, 30 Stal. 362 (U. S. Comp. St. 1901, p. 1640), for “steel circular saw plates,” includes plates that resemble circular saw plates in size, shape, general finish, and general quality of steel, though imported for other uses. [Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 26.*]</p> <p>2. Customs Duties (§ 19*) --Oo'xsTRrjcxrov- -Romo op Glassification — Adaptability pop. Specified Use — “Saw Plates.”</p> <p>An enumeration of an article in a tariff act according to its use as “saw pLates” includes articles that, though intended for other uses, have the necessary qualities and characteristics of the article designated.</p> <p>[Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 19;*]</p>

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

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

<p>1. Wills (§ 797*) — Peo vision foe Widow — Election—Fraud—Rescission. , Where the widow of a man whose estate amounted to more than $400,-</p> <p>000, 78 years old, in feeble health, unused to business, and in need, was approached by her husband’s son, who was named as his executor, and who was a devisee, legatee, and an intelligent and competent business man, knowing all the facts concerning the estate, and was induced by him to make an election of an annuity, the present worth of which was not more than $3,500, without giving her any information concerning her right under the statutes of the state to elect to take a widow’s portion, which would have been of much greater benefit to her, and to renounce the will, the widow would be relieved in equity from the consequences of such election, especially where her application was made before the estate had been closed, so that no harm would .result to the interest of other beneficiaries.</p> <p>• [Ed. Note. — For other cases, see Wills, Cent. Dig. § 2069; Dec. Dig. § 797.*]</p> <p>2. Coukts (§ 489*) — Federal Courts — Jurisdiction—Probate Proceedings.</p> <p>While federal courts will not take cognizance of purely administrative proceedings in the settlement of deceased’s estates, and will not invade the possession of the assets taken by probate courts for the purpose of administration, federal courts will take jurisdiction of a suit by a widow, a citizen of one state, against the executors of her deceased husband’s estate situated in another state, to set aside her election to take under the will, as procured by fraudulent concealment by one of the executors, and to establish and enforce her claim under the statute of descents and distribution of the state, allowing a widow to elect to take a statutory estate instead of the provision made for her by the will.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 489.*</p> <p>Probate jurisdiction, see note to Bedford Quarries Co. v. Thomlinson, 36 C. C. A. 276.]</p> <p>B. Courts (§ 200%*) — Probate Courts — Equitable Jurisdiction.</p> <p>A probate court has no plenary equitable jurisdiction to grant a widow relief from an election to take under her husband’s will, procured from her by one of the executors by alleged fraudulent concealment.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 476, 477; Dec. Dig. § 200%.*]</p> <p>4. Limitation of Actions (§ 100*) — Computation of Period — Discovery of Fraud.</p> <p>After the filing of a husband’s will for probate, one of the executors went to another state, where the widow was residing, and by fraudulent concealment procured from her an instrument which she did not know was an election to take an annuity under the will and releasing her statutory estate, and in fact did not know that she had a right to make such an election. She had no knowledge at the time as to the value of the estate nor that she had been imposed upon, until May 25, 1907, more than five years after making such election, when within two months thereafter she filed a bill to vacate her election and to receive her statutory estate. Held, that the year within which the widow was required to elect as provided by Comp. Laws Mich. § 9301, did not, begin to run until she discovered the fraud, and hence she was not barred thereby from obtaining such relief.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 480-49,1: Dec. Dig. § 100.*]</p> <p>5. Courts (§ 489*) — Federal Courts — Accounting.</p> <p>Where a federal court had jurisdiction of a suit by a widow to set aside an election to take under her husband’s will and to be awarded her statutory estate, the widow being entitled to such relief, the court would not only determine her right, but would take an account, the estate being still unsettled, and determine the amount the widow was entitled to receive therefrom.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 489.*]</p> <p>6. Wills (§ 797*) — -Widow’s Election — Vacation—Evidence.</p> <p>In a widow’s suit to set aside an election to take under her husband’s will, awarding her only a small annuity, procured by one of the executors by fraudulent concealment, the books of a business concern in which the widow was interested were admissible as bearing on the disparity between the value of the widow’s statutory interest and what she received.</p> <p>[Ed. Note. — For oilier cases, see Wills, Dec. Dig. § 797.*]</p> <p>7. Equity (§ 404*) — Testimony Before Master — Objections.</p> <p>Where testimony in an equity suit is taken before a master, counsel has no right to direct a witness not to answer questions believed to be objectionable, the proper course being to state the objection on the record, after which the answers must be received and the objections retained to the hearing. •</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 888; Dec. Dig. § 404.*]</p>

<p>1. Evidence (§ 539%*) — Opinion Evidence — Special Knowledge as to Subject-Matter.</p> <p>A question to a witness, testifying as an expert locomotive builder, as to how far a spark, going through a spark arrester, such as was used on defendant’s railroad engines, would carry on a windy day and be capable of setting fire to inflammable material, was not one relating to the knowledge of such witness as an expert, and its exclusion was not error.</p> <p>[Ed. Note.' — For other cases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539%.*]</p> <p>2. Railroads (§ 481*) — Fires—Evidence—Admissibility—Relevancy to Issues.</p> <p>On the trial of an action against a railroad company to recover damages resulting from a fire alleged to have been caused by sparks from an engine, a statement, volunteered by a witness, that engineers sometimes punched holes in the spark arresters, was properly stricken out a a irrelevant and improper, where there was no evidence or claim of its having been done on defendant’s road.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 481.*]</p> <p>3. Witnesses (§ 268*) — Cross-Examination—Scope.</p> <p>Where, in an action against a railroad company to recover for damage to plaintiff’s factory, alleged to have been caused by sparks from an engine on defendant’s road, plaintiff had introduced the testimony of a number of witnesses, including its manager, to the effect that no smoking was permitted or had ever occurred in the building to the knowledge of the witnesses, it was within the scope of legitimate cross-examination to show by such manager that a fire had occurred in the building within a year, which was reported to him as having been caused by a lighted cigarette, where such was the fact.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 935-936; Dec. Dig. § 268.*]</p> <p>4. Raiiboads (| 485*) — -Fires—Action for Injury by Fire — Instructions.</p> <p>In an action to recover for damage from fire alleged to have been caused by sparks from an engine on defendant’s railroad, where there was evidence that sparks might escape from an engine properly equipped and without negligence on the part of those in charge, it was not error to instruct the jury that in that connection they might consider evidence of the exposed condition of plaintiff’s property, although contributory negligence was not an issue.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 485.*]</p>

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

<p>1, Bankeuptct (§ 223*) — Referees—Compensation.</p> <p>A bankruptcy proceeding may be referred to the referee by a special order, or to him as referee on special issues, his power depending on the order of reference; but there is no authority for converting a referee in bankruptcy into a special master, nor for allowing him compensation as such under Bankr. Amend. Act Fteb. 5, 1903, c. 487, § 38, 32 Stat. 800 (U. S. Comp. St. Supp. 1907, p. 1033), declaring that neither the referee nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized by the act.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 888-894; Dec. Dig. § 223.*]</p> <p>2. Bankruptcy (§ 467*) — Referee’s Findings -Approval by Court — Review.</p> <p>Where a referee’s report and finding in bankruptcy, involving deduction and inferences from conceded facts and from correspondence and evidence, had been concurred in by the trial court, a contrary conclusion would not be arrived at on appeal unless it plainly appeared that the finding or conclusion was based on some error of law or plain mistake of fact.</p> <p>[Ed. Note. — For other casos, seo Bankruptcy, Cent. Dig. § 929; Dec. Dig. § 467.*]</p> <p>3. Bankruptcy (§ 140*) — Sales—Rescission—Right to Retake Property-Evidence.</p> <p>Evidence held to sustain findings that sellers of merchandise to the bankrupt did not give full credit to a financial statement submitted by the bankrupt before delivery of the goods, but that the sellers delivered the goods with knowledge that the bankrupt was unreliable and in failing circumstances, and were therefore not entitled to rescind the sale after bankruptcy had intervened and recover the property as fraudulently procured.</p> <p>[Hi Note. — For other cases, see Bankruptcy, Cent. Dig. § 219; Dec. Dig. § 140.*]</p>

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

<p>1. Trade-Marks and Trade-Names (§ 17*) — Marks— Subjects or Ownership —Color.</p> <p>Color, except in connection with some definite arbitrary design, such as when impressed upon a circle, star, cross, or other figure, or employed in definite association with some characteristics which serve to distinguish the article as made or sold by a particular person, is not the subject of monopoly as a trade-mark.</p> <p>[Ed. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 20; Dec. Dig. § 17.*]</p> <p>2.-Trade-Marks and Trade-Names (§ 3*) — Origin and Adoption of Mark.</p> <p>The right to an exclusive trade-mark can only be acquired by its adoption for the very purpose of pointing to the origin or ownership of the article to wliich.it is attached, and it must be designed to indicate the manufacturers or sellers, and to distinguish the article from like things made or sold by others.</p> <p>LEd. Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 5; Dec. Dig. § 3.*]</p> <p>3. Trade-Marks and Trade-Names (§ 17*) — Marks Subject or Ownership — Color.</p> <p>Complainant held to have no trade-mark right in the yellow or buff color of a strip inserted along the seams of men’s drawers, which is the natural color of Egyptian yarn, originally used in making the elastic seam of drawers made under a patent which has expired.</p> <p>LEd. Note.~For other cases, see Trade-Marks and Trade-Names, Cent Dig. § 20; Dec. Dig. § 17.*]</p> <p>4. Trade-Marks and Trade-Names (§ 3*) — Marks or Names Subjects or Ownership — Descriptive Words.</p> <p>The words “Elastic Seam,” used to denote men’s drawers having a knitted strip inserted along the seams, are descriptive, and not subject to monopoly as a trade-mark.</p> <p>[Ed. "Note. — For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 0; Dec. Dig. § 3.*</p> <p>Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 G. C. A. 323.]</p> <p>5. Trade-Marks and Trade-Names (§ 93*) — Unfair Competition — Evidence to Establish.</p> <p>Evidence held insufficient to establish unfair competition by intentionally representing goods made by others as those of complainant, or by actually deceiving any purchaser.</p> <p>TEd. Note. — For other cases, see Trade-Marks and Trade-Names, Dec. Dig. § 93.*]</p>

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

<p>1. Carriers (§ 298*) — Carriage of Passengers — Injuries—Starting with Jerk.</p> <p>The possibility that an electric street car will start with more or less of a jerk is an incident of travel in such conveyance which every passenger must expect and of which he assumes the risk; and the mere fact that a car started with a jerk and that a passenger fell and was hurt does not make out a ease of negligence in starting the car, but the proof must go further and show that the start was unusually sudden or violent.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1205; Dec. Dig. § 298.*]</p> <p>2. Cashiers (§ 298*) — Electric Street Railroads — Carriage of Passengers —Injuries—Starting with Jerk.</p> <p>Plaintiff, wiio was a robust woman weighing nearly 200 pounds, entered an electric street car at a regular stopping place, carrying in one hand an umbrella and a small hand bag. When she was fully upon the floor of the vestibule the conductor gave the starting signal, and as plaintiff was about stepping into the body of the car it started, and she fell and was injured. Held, that there was nothing in her appearance to require the conductor to exercise special or unusual care, and that, under the settled rule in Massachusetts that under ordinary circumstances it is not negligence for a conductor to give a starting signal after a passenger is fully and fairly upon the car, the conductor in such case was not chargeable with negligence which rendered the street railroad company liable for plaintiff’s injury.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 1205; Dec. Dig. § 298.*]</p>

<p>1. Criminal Daw (§ 1218*) — Punishment—'Term of Imprisonment-Imprisonment foe Fine — Plage—'• Jail.”</p> <p>Revised St. §§ 1042, 5296 (U. S. Comp. St. 1901, pp. 724, 3608), provide that when a poor convict, sentenced to imprisonment, or to pay a fine, or a fine and costs, has been confined in prison 30 days solely for the nonpayment of such fine, or fine and costs, such convict may apply to take a poor debtor’s oath, on which ho shall be discharged, and the commissioner shall give to the keeper of the “jail” a certificate setting forth the facts. Held, that the word “jail” did not imply that no prisoner should be held in a penitentiary for nonpayment of a fine or a fine and costs, but was used merely to indicate the place of confinement, and hence a federal prisoner could be properly retained in the same institution where he had served his term of imprisonment for the nonpayment of a fine, or a fine and costs, assessed as a part of the sentence, until the fine was paid, or the prisoner applied to take the poor debtor’s oath after the expiration of 30 days from the completion of his term.</p> <p>[Ed. Note. — For other cases, see Criminal Raw, Dec. Dig. § 1218.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3801-3802; vol. 8, p. 7694.]</p> <p>2. Habeas Corpus (§ 117*) — Imprisonment—Teem—Service—Discharge on Habeas Corpus — Recaption.</p> <p>Where a prisoner in the penitentiary, after having served the imprisonment part of the sentence, was erroneously discharged on habeas corpus because it was supposed that his incarceration could not be continued for nonpayment of the fine assessed, the United States, on reversal of such order, could retake and return him to the penitentiary from which ho had been released, and hold him therein until he had been lawfully discharged by payment of the fine, or by taking the poor debtor’s oath after 30 days’ additional imprisonment, as authorized by Rev. St. §§ 1042, 5298 (U. S. Comp. St 1901, pp. 724, 3608).</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Dec. Dig. § 117.*]</p>

<p>Gifts (§ 3.9*) — Inter Vivos — Completion by Delivery.</p> <p>A testatrix, who had provided in her will for a gift of $50,000 in bonds to .her brother, when in Europe, some two years before her death, wrote him that in lieu of such bequest she transferred to his personal account certain described bonds of the par value of $50,000. The bonds were at that time in a safety deposit box in New York City, to which the brother had access, and he thereupon removed them. Held, that the gift was one in praesenti, which became complete when the donee reduced the bonds to possession, and was not affected by a subsequent attempt of the donor to give them to another.</p> <p>[Ed. Note. — For other cases, see Gifts, Dec. Dig. § 19.*]</p>

This cause comes here upon appeal from a judgment entered upon the verdict of a jury in favor of defendant in error, who was plaintiff below. The action was brought under the New York statute to recover for the death of Nelson J. St. Clair, a lineman in the employ of defendant, who was killed by coming in contact with a wire or wires carrying a high voltage current.

<p>1. Public Lands (§ 92*) — Rights Acquired by Allottees.</p> <p>The treaty of 1860 (12 Stat. 1129) with the Delaware Indians, which provided that 80 acres of the Delaware Diminished Reservation in Kansas, as defined by prior treaty, should be assigned to each member of the tribe, and the remainder, with specified exceptions, disposed of for their benefit, merely converted the tribal or communal right of occupancy in the lands assigned into a several one, and did not vest the assignees with the title to the land; and it was within the power of Congress to subsequently grant .right of way over the same to a railroad company.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 278; Dec. Dig. § 92.*]</p> <p>2. Public Lands (§ 92*) — Gbant to Railroad oe Right oe Way — Construction. '</p> <p>Act July 1, 1862, e. 120, 12 Stat. 489, which granted a right of way 400 feet wide to the Leavenworth, Pawnee & Western Railroad Company over the public lands on its prescribed route, included such right of way over the lands of the Delaware Diminished Reservation.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 278; Dee. Dig. § 92.*]</p> <p>3. Adverse Possession (§ 7*) — Railroad Right oe Way — Public Lands.</p> <p>No part of the right of way granted by Congress to a railroad company over public lands can be alienated without the consent of Congress, nor lost by laches or acquiescence, and private persons encroaching thereon can acquire no right by lapse of time.</p> <p>[Ed. Note. — Por other cases, see Adverse Possession, Dec. Dig. § 7.*]</p> <p>4. Raiueoads (§ 73*) — Right or Way —Right to Protection by INJUNCTION.</p> <p>Equity has jurisdiction of a suit by a railroad company to enjoin owners of adjoining lands from encroaching upon or interfering with its use of its right of way.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. § 73.*]</p>

The appellant, as trustee of the estate of Frank Drown, a bankrupt, died his bill in the District Court — and later an amended bill on leave of the court--against the appellee, Hock Island Plow Company, for accounting and recovery for personal properly obtained by the appellee from the bankrupt, two days prior to the bankruptcy adjudication, in alleged derogation of rights thereto now vested in such trustee; and this appeal is from a decree dismissing the bill, as amended,…

<p>1. Appeal and Eeeob (§ 874*) — Scope of Review — Appeal from Obdeb Granting Injunction.</p> <p>An appeal from an order granting an injunction pendente lite does not involve the merits of the suit; but the only questions for determination are whether the court had jurisdiction to entertain the motion, and, if so, whether the relief was improvidently granted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3538; Dee. Dig. § 874.*]</p> <p>2. Courts (§ 508*) — Federal and State Courts — -Priority op Jurisdiction.</p> <p>A bill in a federal court by a stockholder against the corporation and others, in behalf of himself and all other stockholders similarly situated, which alleges a conspiracy to unlawfully transfer the property of the corporation and prays for a receiver, confers upon the court exclusive jurisdiction to determine all controversies with respect to such property, with or without its actual seizure, and it may protect such jurisdiction by injunction against subsequently instituted litigation by the parties or their privies in a state court.</p> <p>lEd. Note. — For other cases, see Courts, Cent. Dig. §§ 1418-1430; Dec. Dig. § 508.*</p> <p>Enjoining proceedings in state courts, see notes 1«o Gamer v. Second Nat. Dank, 16 C. O. A. 90; Central Trust Co. v. Grantham, 27 C. G. A. 575; Copeland v. Bruning, 63 C. O. A. 437.]</p> <p>3. Gq city (§ 359*) — Voluntary Dismissal op Suit — Bight op Complainant.</p> <p>A stockholder’s suit, brought in a state court, was removed, into a federal court, where defendants answered, denying complainant’s right to maintain the suit, and a cross-bill was filed by one defendant for the cancellation of complainant’s stock. Another stockholder brought a similar suit in a state court. Complainant in the removed suit asked leave to dismiss without prejudice to another suit, or to the granting of relief under the cross-bill, and defendants filed a petition for an injunction to restrain further proceedings in the second suit in the state court. No other parties had joined as complainants, and no evidence had been taken on the merits. Held that, under the general rule that a complainant is entitled to dismiss at any time before decree unless some plain legal prejudice would result to other parties, a dismissal was within complainant’s right, which was not affected by the fact that its purpose was to secure the litigation of the questions involved In the state court, and that the denial of complainant’s motion and the granting of the injunction was error.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 359.*]</p>

The injune ti on was allowed on application of the appellee and reads as follows: “i/TMe of Causes.] This cause having come on to be heard on the motion of the cross-complainant, the Chicago Railway Equipment Company, for an interlocutory injunction, and having been heard upon said motion, and- upon the pleadings herein, and upon the affidavits filed on behalf of the cross-complainant, as well as the affidavits filed on behalf of the defendant, the National Hollow Brake Beam…

<p>1. Bankruptcy (§ 491*) — Defenses—Concealment of Property from Trustee.</p> <p>A charge against a bankrupt of concealing property belonging to the estate from his trustee cannot be sustained without a bankruptcy adjudication, though the proof establishes a flagrant concealment of the property from the trustee de facto.</p> <p>[Ed. Note. — Por other cases, see Bankruptcy, Dee. Dig. § 491.*]</p> <p>2. Bankruptcy (§ 49*) — Order of Reference — Signing by Deputy Clerk.</p> <p>Under Rev. St § 558 (U. S. Comp. St. 1901, p. 452), authorizing the appointment of a deputy district court clerk, such clerk has power to perform-all ministerial acts of the clerk as his principal, including the power to make an order of reference on the filing of a voluntary bankruptcy petition.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 49.*]</p> <p>.3. Bankruptcy (§ 51*) — Adjudication—Collateral Attack.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 2, 30 Stat. 545, 546 (U. S. Comp. St. 1901, p. 3420), providing that federal District Courts for the exercise of bankruptcy jurisdiction are always open, without special terms, the jurisdiction of a court in voluntary cases completely attaches on the filing of the debtor’s petition, stating a cause for adjudication within the act; and hence a reference of such proceedings to and adjudication by the referee, though erroneous and voidable on review, is not subject to collateral attack or contradiction or impeachment of the record.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dee. Dig. § 51.*]</p> <p>4. Bankruptcy (§ 49*) — Jurisdiction—Absence of Judge — Recitals.</p> <p>A recital in an order of reference in a voluntary bankruptcy proceeding that the District Judge was absent from the district when the petition was filed did not affect the jurisdiction of the court, which attached on the filing of the petition to adjudge the petitioner a bankrupt, but related only to the course of procedure within such jurisdiction, and was therefore not open to collateral attack.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 49.*]</p>

The Simmons Manufacturing Company, plaintiff in error, was defendant below in the suit of John R. Eskridge, defendant in error, to recover for injuries suffered in the operation of a freight elevator in such defendant’s factory, and this writ of error is brought for review of a judgment, rendered upon verdict of a jury, in favor of the plaintiff below, awarding $2,250 as damages.

<p>1. Bankruptcy (§ 350*) — Claims — Priorities Under State Laws — Time fob Claiming Priority.</p> <p>Claims proved against the estate of a bankrupt, which from their nature are entitled to priority under a state statute, may be allowed such priority, although it is not claimed until more than a year after the date of the adjudication, when the question of distribution of assets first arises.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 350.*]</p> <p>2. Bankruptcy (§ 345*) — Claims—Priorities—Waiver or Estoppel.</p> <p>While Bankr. Act July 1, 1898, c. 541, § 56b, 30 Stat. 560 (ü. S. Comp. St. 1901, p. 3443), provides that creditors holding claims which have priority shall not, in respect to such claims, be entitled to vote at creditors’ meetings, the fact that such a creditor does vote on the election of a trustee by inadvertence or mistake is not a waiver of his right of priority; nor does it estop him from claiming the same, where no other creditor has been prejudiced thereby.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 345.*]</p>

<p>1. Criminal Law (§ 970*) — Arrest op Judgment —Grounds—Objections to Indictment.</p> <p>While the better practice is to raise objections to an indictment by demurrer in advance of the trial, accused cannot be convicted and punished unless the indictment, even if not attacked until by motion in arrest of judgment, states the substance of an offense.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2415; Dec. Dig. § 970.*]</p> <p>2. Food (§ 20*) — Oleomargarine — Packages — Statutes—Construction—Indictment — 1“Evert Person.”</p> <p>Act Oong. Aug. 2, 1886, e. 840, § 6, 24 Stat. 210 (U. S. Comp. St. 1901, p. 2230), declares that all oleomargarine shall be packed by the manufacturer in packages not used before, and that all sales made by manufacturers and wholesale dealers shall be in original stamped packages, that retail dealers must sell only from original stamped packages, and pack the oleomargarine sold by them in suitable wooden or paper packages, and “every person” who knowingly sells or offers for sale any oleomargarine in other form, or who packs in any package any oleomargarine in any manner contrary to law, will be imprisoned, etc. Held, that the manufacturer and dealer were the subject of regulation by the section, and that the words “every person” should be construed to refer solely to manufacturers and dealers previously mentioned, so that an indictment for violating such section, failing to charge that accused was either a manufacturer or dealer in oleomargarine, and as such packed product in a manner violative of the act, stated no offense.</p> <p>[Ed. Note. — For other cases, see Food, Cent. Dig. § 21; Dec. Dig. § 20.* '</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2516.]</p>

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

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

<p>Railroads (§ 327*) — Crossing Accident — Contributory Negligence.</p> <p>Decedent, who was familiar with a city railroad crossing, rapidly approached it on a foggy morning and continued to cross the tracks without stopping, until he was struck by an engine and killed. From a point about 60 feet north of the main track to the crossing of the track for a quarter of a mile was an open view to a pedestrian approaching as decedent was, except for the dense fog. Several witnesses who were standing near the crossing testified that the noise of the approaching train was heard by them for a minute or more before it reached the crossing, or while the engine was a half mile away, and that notwithstanding the fog an engine could be discerned a distance variously estimated at from 50 to 200 feet. Held, that decedent was negligent in not stopping as he approached the track and making sure that he could cross in safety.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1044; Dec. Dig. § 327.*]</p>

This cause comes here upon appeal from a decree holding the tugs Anthracite and William K. Cleary both liable for negligent towage of the barge Sylvia, which, while being towed by them, was brought into contact with Mill Rock. The opinion of the District Judge, which sets forth the facts, is reported in 162 Fed. 384.

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

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

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

This is a writ of error to review a judgment of the Circuit Court, Western District of New York, which held defendant liable for a penalty of .$200 under Act Cong. June 29, 1906, c. 3594, § 1, 34 Stat. 607 (U. S. Comp. St Supp. 1907, p. 918), forbidding railroads and certain other carriers from transporting cattle and other live stock confined in cars for a period longer than 28 consecutive-hours without unloading.

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

<p>1. Patents (§ 328‘*) — Infringement—Printing Telegraph Instrument.</p> <p>The Joy patent, No. 780,801, for a printing telegraph receiver, as to au claims except claim 12, held valid and infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328/*]</p> <p>2, Patents (§ 324*') — Suit foe Infringement-Disclaimer — Effect of Deci sion of Partial Invalidity by Trial Court.</p> <p>Where a Circuit Court, in a suit in equity for infringement of a patent has held certain claims of the patent invalid, as too broad, but has entered an interlocutory decree granting an injunction and accounting for infringement as to other claims, from which defendant has appealed, the Circuit Court of Appeals, on an affirmance of the same, will not require complainant to enter a disclaimer, under Rev. St. § 4922 (U. S. Comp. St. 1901, p. 3390). as to the claims adjudged invalid by the Circuit Court, until by the entry of a final decree he has had the opportunity to appeal and have such adjudication reviewed by the appellate court.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 324.*]</p>

The bill in the Circuit Court was to restrain infringement of Letters Patent No. 769,788, issued September 33th, 3904, for a fireproof drop curtain used in theatres, and the decree appealed from is a decree sustaining the validity of the patent, and finding that the appellant was an infringer.

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

<p>Patents (§ 328*) — Inbkingehent—Oil Buenebs.</p> <p>Tie Wilder patents, No. 653,893 and reissue No. 11,905 (original No. 595,231), both for improvements in oil burners of the wickless type, where the combustion takes place at the surface of the oil, the improvements consisting of raising and lowering the oil in the holder to facilitate ignition, are valid as limited to the particular means shown, but not as covering the result by whatever means accomplished. As so construed, held not infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

In Bankruptcy. On objections to discharge of bankrupt. This is an application for a discharge in a voluntary ease, wherein the petition was filed November 16, 1908. No assets were scheduled, except what were covered by the exemption laws of the state. December 15, 1908, these exemptions were allowed by the referee. No trustee was appointed, and the case was closed. The usual certificate was filed by the referee February 1, 1909.

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

<p>On Motion for Modification of Preliminary Injunctions.</p>

<p>1. Constitutional Law (§§ 213, 254*) — Fourteenth Amendment — Application.</p> <p>The prohibition of the fourteenth amendment of the federal Constitution that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, while directed against the state, and not against individuals, citizens, or municipalities, nevertheless includes all the instrumentalities of the state, so that whoever by virtue of a public position under a state government deprives another of any right; protected by such amendment is guilty of a violation thereof; his act being regarded as the act of the state.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent, Dig. § 785; Dec. Dig. §§ 213, 254.*]</p> <p>2. Constitutional Law (§§ 229,283*) — Due Process off Law — Taxing Poweb.</p> <p>The state having vested the taxing power for municipal purposes of the city of Utica in its city council, a city ordinance imposing a water tax on a property owner within such city, without any corresponding benefit, or any opportunity to be heard in resistance of such tax, constituted a violation by the state of the fourteenth amendment of the federal Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 685, 891-806; Dec. Dig. §§ 229, 283.*]</p> <p>8. Courts (§ 255*) — Federal Courts — Jurisdiction. ■</p> <p>The circuit courts of the United States have only such jurisdiction as Congress has conferred on them, except such as necessarily inheres in a court, such as power to punish for contempt, etc.</p> <p>1 Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 792, 794, 805; Dec. Dig. § 255.*]'</p> <p>4. Courts (§ 326*) — Federal Courts- — Jurisdiction—Amount in Controversy.</p> <p>Act March 3, 1875, e. 137, § 1, 18 Stat. 470, Act March 3, 1887, c. 373, § 1, 24 Stat. 552, Act Aug. 13, 1888, c. 806, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 608) declares that United States circuit courts shall have concurrent jurisdiction with the courts of the several states of all suits of a civil nature at common law, or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000 arising under the Constitution or laws of the United States, or treaties made or which shall be made, under their authority, and also in a case of diversity of citizenship. Held that where the case arises under the Constitution and laws of the United States, diversity of citizenship is not required to establish federal jurisdiction, though it is necessary that the matter in dispute shall be over $2,000, but where the ease does not arise under the Constitution or laws of the United States, there must be both diversity of citizenship and matter in dispute exceeding $2,000.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 888; Dec. Dig. § 326.*</p> <p>Jurisdiction of circuit courts as determined by amount in controversy, see notes to Auer v. Lombard, 19 C. C. A. 75; Tennent-Stribling Shoe Co. v. Roper, 36 C. C. A. 459.)</p> <p>5. Courts (§ 328*) — Federal Couets — Matter in Dispute — One Suing eob Himself and Others. <</p> <p>Where one sues on behalf of himself and all others of a class similarly situated, the aggregate interest of those who join in the suit, and not those of the whole class, constitutes the matter in dispute.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 890; Dee. Dig. 5 328.*]</p> <p>6. Couets (§ 328*) — Federal Courts — Jurisdiction—Illegal Tax — Matter in Dispute.</p> <p>A taxpayer of the city of Utica attacked a contract between the city and a water company, the bill alleging that the amount the city was to pay the company on November 15, 1907, was $38,903.52, which was included in the city’s tax levy; that the tax rate in the city was $9.80 per thousand, and that complainant’s farm was assessed at $2,000; that additional expenses were being incurred for water mains, etc., amounting to $120,000, the interest on which would be added to the tax levy thereafter and become an additional burden on all the taxable property in the city, including that of complainant; that the warrant for 1907 had been signed and delivered, and included a tax of over $20 against complainant’s prop-, erty; that complainant derived no benefit whatever from such contract between the city and the water company; that he was afforded no opportunity to be heard in resistance of the tax, which was illegal, and that an actual levy on his property had been made to pay the same. Held, that the amount of the tax levied against complainant was the matter in dispute in such action, which, being less than $2,000, the case was not within the jurisdiction of the federal court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 890; Dec. Dig. § 328.*]</p> <p>7. Taxation (§ 309*) — “Assessed.”</p> <p>The term “assessed,” with reference to taxation, means the amount of the tax to be imposed on the property and collected. To assess is to rate or to fix the proportion which every person has to pay of any particular tax; the determination by the taxing body of the tax to be paid by each individual, and adjustment of the shares of a contribution by several toward a common beneficial object according to the benefit received; to set, fix, or charge a certain sum upon, by way of tax, as to assess each individual in due proportion — the tax being regarded as assessed when it Is apportioned.</p> <p>[Ed. Note. — For other cases, see Taxation, Dec. Dig. § 309.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 547-549; vol. 8, p. 7583.]</p>

<p>Post Office (§ 15*) — Action of Post Office Department — Review by Courts.</p> <p>Under the settled rule that -laches is not imputable to the government in its character as sovereign by those subject to its dominion, the fact that action on an application for admission of a periodical publication to the mails at the second-class rate of postage was delayed for several years by the officers of the Post Office Department, and that in the meantime the publication was admitted as second-class matter under a temporary permit issued by authority of section 282 of the Postal Regulations of 1893, to remain in force “until the Post Office Department shall determine whether it is admissible as second-class matter,” does not entitle the publisher to a hearing before the department acts on his application, as in case of revocation of a privilege once granted, and the courts have no authority to review the action of the Postmaster General in refusing the application.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 15.*]</p>

In Equity. As, in the opinion filed on the hearing for the temporary injunction in this cause, a full statement of the material allegations in the bill is set out (152 Fed. 787), it is unnecessary to insert it here.

<p>1. Courts (| 292*) — Trade-Names—'Unfair Competition — Actions—Jurisdiction.</p> <p>Where a trade-name had not been registered, as required by Act Cong. March 3, 1881, c. 138, 21 Stat. 502 (U. S. Comp. St. 1901, p. 3401), federal jurisdiction of a suit for unfair competition was not conferred by such act, blit existed only under the rules governing ordinary suits at law or in equity.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig, § 292.*</p> <p>Unfair competition, see notes to Sclieuer v. Muller, 20 C. G. A. 165; Dare v. Harper & Bros., 30 C. G. A. 376.]</p> <p>2. Courts (§ 292*) — Trade-Names—Unfair Competition — Federal Jurisdiction.</p> <p>Where a bill for unfair competition in the use of a trade-name did not allege that the name was used or to be used on goods intended to be transported to a foreign country or in commerce with Indian tribes, the federal Circuit Court did not acquire jurisdiction under Act Cong. March 3, 1881, c. 138, § 7, 21 Stat. 503 (U. S. Cbmp. St. 1901, p. 3403) providing that in case of wrongful use of a trade-mark in such commerce, all courts of the United States shall have original and appellate jurisdiction, without regard to the amount in controversy.</p> <p>ÍEd. Note. — E’or other cases, see Courts, Cent. Dig. § 834; Dec. Dig. § 292.*]</p> <p>3. Courts (§ 315*) — -Diverse Cittzenship — Paktnersitip .</p> <p>Where the members of a firm owning the right to a trade-name in controversy contracted to transfer the same to a corporation on receipt of 84,000, to be paid as a royalty on hosiery at the rate of 2 cents per dozen, the members of such firm, prior to the payment of the purchase price, had an actual interest in a suit by the purchaser for alleged unfair competition in the use of such trade-name.</p> <p>[Ed. Note. — For other eases, see Courts, Dec. Dig. | 3.15.*]</p> <p>4. Courts (§ 315*) — Federal Courts — Jurisdiction—Diversity of Citizenship.</p> <p>A firm, one of the members of which was a citizen and resident of Pennsylvania, contracted to sell to plaintiff, a New York corporation, the right to use a trade-name, the firm, however, retaining title until payment of $4,000 by way of a royalty, which had not been accomplished at the time the corporation filed a bill against defendant, a Pennsylvania corporation, for unfair competition. Held that, since the interest of the firm was real and substantial, there was no sufficient diversity of citizenship, and that the federal Circuit Court had no jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 861; Dec. Dig. § 315.*]</p> <p>5. Coquis (§ 280*) — Federal Courts — Jurisdiction—Determination.</p> <p>A federal court Is not only permitted, but is bound, to examine an action and refuse relief, unless jurisdictional elements affirmatively appear.</p> <p>¡Ed. Note. — For other cases, see Courts, Cent. Dig. § 818; Dec. Dig. § 280.*]</p>

<p>1. Courts (§ 341*) — Federal Courts — Conformity to State Peactioe — Degree of Conformity.</p> <p>The conformity statute (Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) requires the federal courts to conform generally, and as near as may be, to the practice,- pleading, forms, and proceedings of the state courts ; but they may, by standing rule, change subordinate provisions which they deem unsuited to their procedure, and may in their discretion reject collateral or subordinate provisions of the state practice, pleadings, or forms, which tend to obstruct the administration of justice in any particular ease presenting unusual features, without making any standing rule.</p> <p>[Ed. Note. — For other cases, see Courts, Dec. Dig. § 341.*]</p> <p>2. Courts (§ 347*) — Federal Courts — Conformity to State Practice — Pleading.</p> <p>Pleadings in a federal court in an action at law, which are not in the form of those required by the state practice, but which are substantially a compliance with it, are good.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 921; Dec. Dig. § ' 347.*</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>X. Mortgages (§ 27*) — Equitable Mortgages — Agreement to Mortgage.</p> <p>An agreement in writing to give a mortgage or a mortgage defectively executed, or an imperfect attempt to create a mortgage, or to appropriate ' specific property to the discharge of a particular debt, will create an equitable mortgage, or a specific lien on the property intended to be mortgaged.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 43, 44; Dec. Dig. § 27.*</p> <p>Equitable mortgages — agreement to give a mortgage, see note to Bridgeport Electric & Ice Oo. v. Meader, 18 O. O. A.' 458.]</p> <p>2. Railroads (§ 110*) — Construction Contract — Mortgages—Agreement to Execute — Perform an ce — Laches .</p> <p>Where an original recorded agreement for the construction of a railroad provided for an issue of bonds to cover the construction expenditure made by complainant in excess of $30,000, the bonds to mature after 20 years from January 1, 1888, and plaintiff brought suit to compel the issuance of the bonds and the execution of the mortgage several months before such 20-year period expired, plaintiff was not chargeable with laches.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent Dig. § 341; Dec. Dig. § 110*]</p> <p>3. Account Stated (§ 6*) — Requisites—Definition.</p> <p>It is not necessary that an acknowledgment of the correctness of an account, in order to constitute an account stated, should be either in writing or made in express words, since an “account stated’’ is an account rendered by one to another showing a balance due and an acknowledgment of such indebtedness by the debtor either expressly or by failure to deny the account within a reasonable time.</p> <p>LISd. Note. — For other cases, see Account Stated, Cent. Dig. §§ 30-32; Dec. Dig. § 6.*</p> <p>For other definitions, see Words and Phrases, yol. 1, pp. 93-98; vol. 8, p. 7561.]</p> <p>4. Account Stated (§ 6*) — Evidence.</p> <p>Complainant, having completed a railroad for defendant, submitted its construction account to defendant’s stockholders at a regular meeting, where it was referred to its board of directors, who returned it for a more itemized statement. This statement was subsequently furnished, aftei which defendant included the balance as shown thereon in several sworn reports of the cost of its road to the Interstate Commerce Commission, and at a stockholders’ meeting held some years after the account was rendered, directed that a county which was a large holder of defendant’s stock should be permitted to examine plaintiff’s account rendered, If it desired. Nothing more was done for 10 years, nor until plaintiffs original papers, vouchers, and books were destroyed by fire, after which defendant took certain steps to discredit the account. Held, that the account as rendered was an account stated.</p> <p>IFd. Note. — For other cases, see Account Stated, Cent. Dig. §§ 30-32; Dec. Dig. § 6.*]</p> <p>6. Railroads (§ 165*) — Mortgages—Authorization—'Vote of Stockholders— Statutes.</p> <p>Code W. Va. 1899, c. 54, § 50; par. 11 (Codo 1906, § 2343), requiring the assent of two-thirds of the stockholders oí a railroad before a mortgage can be executed by it, applies only to mortgages given to complete, improve, or operate a road already in existence, and not to a contract to build a road originally, providing terms of payment by bond and mortgage.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent Dig. § 513; Dec. Dig. § 165.*]</p> <p>6. Railroads (§ 165*) — Consxkuction—Mortgage Bonds — Stockholders—Es-toppel.</p> <p>Where stockholders of a railroad company permitted a contract for the construction of the road, requiring the issuance of a bond and mortgage for construction expense to be made and performed by plaintiff, and thereafter received the benefits derived therefrom for nearly 20 years, they were estopped to assert that the mortgage provision was invalid because the assent of two-thirds of the stock required by Code W. Va. 1899, c. 54, § 50, par. 11 (Code 1906, § 2343), had not been given.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 513; Dec. Dig. S 165.*]</p>

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

<p>Bankruptcy (§ 355*) — Administration of Estate — Adjustment of Liens.</p> <p>The rights of a chattel mortgagee of a bankrupt determined in the proceeds of property sold by the trustee, whore the proceeds of the mortgaged and unmortgaged property, respectively, could not be definitely ascertained.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Dec. Dig. § 355.*]</p>

<p>1. Courts (§ 321*) — Jurisdiction—Federal Courts — Actions Against Aliens.</p> <p>An action by a citizen of Illinois against an alien insurance company for malicious prosecution was witbin the original jurisdiction of the federal Circuit Court sitting in Missouri.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 847, 849; Dec. Dig. § 321*</p> <p>Diverse citizenship as a ground of federal jurisdiction, see note to Shipp v. Williams, 10 C. C. A. 249.]</p> <p>2. Removal or Causes (§ 61*) — Nature op Action — Petition.</p> <p>The nature of a cause of action for purposes of removal from a state to a federal court is that made by plaintiff’s petition.</p> <p>[Ed. Note — For other cases, see Removal of Causes, Cent Dig. § 115; Dee. Dig. § 61.*]</p> <p>3. Removal op Causes (§ 11*) — Right to Remove.</p> <p>A cause of action, in order to be removable at all, must be such as might have been originally brought by the plaintiff in the federal Circuit Court to which a removal is desired.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 29-31; Dec. Dig. § 11.*]</p> <p>4. Removal op Causes (§ 11*) — Joint Controversy.</p> <p>Where plaintiff brought a joint action in a state court for malicious prosecution against several corporations, some of which were aliens and all of which were nonrésidents of the state where the action was brought, plaintiff could not originally have sued the corporate defendants, which were citizens of states other than Missouri, without their consent in a federal Circuit Court sitting in Missouri, and hence plaintiff’s joint action against all the defendants was not removable to that court.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §S 29-31; Dec. Dig. Í 11.*]</p>

<p>1. Post Office (§ 51*)™-Breaking and Entering Post Office — Sentence.</p> <p>A sentence under Rev. St. § 5475 (U. S. Comp. St. 1901, p. 3691), for stealing post office property, or under section 5478 (U. S. Comp. St. 1901, p. 8696), for breaking and entering a post office, is fatally defective unless it imposes imprisonment “at hard labor” as required by each section.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 51.*]</p> <p>2. Post Office (§ 46*) — Breaking and Entering Building Used in Part as Post Office — Elements of Offense.</p> <p>Under Rev. St. § 5478 (IT. S. Comp. St. 1901, p. 369G), making it a criminal offense to “forcibly break into, or attempt to break into, any post office or any building used in whole or in part as a post office, with intent to commit therein larceny or other depredation,” an intent to commit larceny or other depredation in the part of the building used as a post office is an essential ingredient of the offense; and whore a post office was kept within a room used for mercantile purposes, being separated from the remainder of the room by a fence or partition, a breaking and entering of such room and the stealing ol' property from a safe therein, although including post office funds, will not warrant a conviction under said section unless it is shown that the safe was within the inelosure used as the post office.</p> <p>[Ed. Note. — For other cases, see Pose Office, Dec. Dig. § 46.*]</p> <p>3. Burglary (§ 41*) — Prosecution—Sufficiency of Evidence — Proof of Corpus Delicto.</p> <p>To warrant a conviction for burglary, thé evidence must be sufficient to prove affirmatively and beyond a reasonable doubt that there was such a breaking and entry as are necessary to constitute burglary, and evidence which leaves it wholly to conjecture as to the manner in which an entry was effected into a building in which a larceny was committed is insufficient.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. § 97; Dec. Dig. § 41.*]</p> <p>4. Criminal Daw (§ 417*) — Evidence—Declarations.</p> <p>On the trial ol' a criminal case, where conspiracy is not charged, testimony is not competent against the defendant to show a statement made by some one of a party which included defendant, where the witness admits that he does not know which one made the statement or whether it was heard by or assented to by defendant.</p> <p>[Ed. Note. — For other clises, see Crimiual Law, Cent. Dig, § 950; Dec. Dig. § 417.*]</p> <p>5. Criminal Law (§ 404*) — -Demonstrative Evidence — Weapons and Tools Used in Commission of Burglary.</p> <p>On the trial of a defendant charged with breaking and entering a building used in part as a post office, weapons and implements found on his person when arrested, -18 days after the burglary and 19 miles distant from the place, were not admissible, in evidence against him, whore it was not shown that such articles were used when the burglary was committed, nor that defendant was in the vicinity at or near the time of its commission.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 891; Dec. Dig. § 404.*]</p> <p>6. Criminal Law (§ 348*) — Evidence—Character of Accused.</p> <p>The mental tendency of a person to commit a crime, as evidenced by weapons or tools in his possession, cannot be shown to convict him of a prior crime.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 796, 798; Dec. Dig. § 348.*]</p> <p>7. Criminal Law (§ 424*) — Evidence—Declarations of Codefendant.</p> <p>Where defendant and another were arrested for a crime, letters written by such other while they were confined in jail to a third person and obtained from the possession of defendant’s wife were not admissible against him, where it was not shown that he ever saw the same or knew their contents or even of their existence until afterward, or that he then knew of or concurred in what was written therein, the possession or knowledge of his wife not being imputable to him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1004; Dec. Dig. § 424*</p> <p>Admission on joint trial of evidence competent only against one or part of defendants, see note to Sprinkle v. United States, 73 C. C. A. 295.]</p> <p>8. Burglary (§ 42*) — Evidence—Possession by Defendant of Property Stolen.</p> <p>On the trial of a defendant charged with burglary and the larceny of property from a safe, including watches owned by a jeweler, evidence tending to show that a watch found in a dresser drawer in the house occupied by defendant’s wife three weeks after the burglary, and when defendant was in jail, was one of those stolen, was not admissible against him, it not being shown that he had ever been in possession of the watch; and especially where the evidence to identify the watch as one stolen was inconclusive and disputed by defendant’s wife, who claimed ownership of the watch, and to whom it was returned by the officers.</p> <p>[Ed. Note. — For other cases, see Burglary, Dec. Dig. § 42.*]</p> <p>9. Criminal Law (§ 338*) — Evidence—Relevancy—Admission of Circumstantial Evidence.</p> <p>It is a recognized rule of evidence in the investigation of criminal cases dependent upon circumstantial evidence that a wide range of inquiry may be indulged, and that remotely connected incidents, no one of which singly considered would be sufficient to warrant a conviction, may be admitted, and, if the collective whole be sufficient to carry conviction of guilt to the jury beyond a reasonable doubt, their admission to that end is justified; but such rule does not imply that mere suspicion is the equivalent of proof, or that mere hearsay testimony may be resorted to, or that unrelated incompetent incidents and circumstances may become admissible because of the number of them.,</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 753; Dec. Dig.. § 338.*]</p> <p>10. Post Office (§ 49*) — Breaking into Post Office — Sufficiency of Evidence.</p> <p>The competent evidence on the trial of a defendant charged with breaking and entering a building used in part as a post office, and for stealing property therein, considered, and held insufficient to sustain a conviction.</p> <p>[Ed. Note. — For other cases, see Post Office, Dec. Dig. § 49.*]</p> <p>Hook, Circuit Judge, dissenting.</p>

<p>1. Statutes (§ 211*) — Construction—Penal Statutes.</p> <p>Though penal laws are to be strictly construed, they cannot be given a construction so strict as to render them ineffective and defeat the manifest purpose of their enactment.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 822; Dec. Dig. § 241.*]</p> <p>2. United States (§ 44*) — Defaulting Officers — Arrest on Distress Warrant.</p> <p>Itev. St. § 3625 et seq. (U. S. Comp. St. 1901, pp. 2418, 2419), which provide that, whenever an officer who has received public money before it is paid into the treasury of the United States fails to render his account or pay over the same as required by law, a distress warrant shall be issued by the Solicitor of the Treasury against the delinquent officer and his sureties, which shall bo levied on his property, and if his goods and chattels shall not be sufficient to satisfy the warrant it may be levied on the person of such officer, who may be committed to prison, cannot be construed to apply only to persons who are officers of the government at the time the warrant is issued, so as to exclude from their operation officers who are found delinquent at the close of their terms of office.</p> <p>[Ed. Note. — For other cases, see United States, Cent. Dig. § 82; Dec. Dig. § 41.*]</p> <p>8. United States (§ 44*) — Defaulting Officers — Imprisonment on Distress Warrant — Defendant at Large on Bail.</p> <p>The fact that a person is under indictment for embezzlement of public money as an officer of the United States and has given hail does not exempt him from being imprisoned on a treasury distress warrant, l'or the collection of such indebtedness, where he is in the custody of the marshal of the same court, which can order his production l'or trial on the indictment at any time, and where neither the court nor the prosecuting officers object.</p> <p>I Ed. Note. — For other cases, see. United States, Cent. Dig. § 32; Dec. Dig. § 44.*]</p> <p>4. Constitutional Law (§ 306*) — Due Process of Law — Defaulting Officers — Imprisonment on Distress Warrant.</p> <p>A warrant of distress, issued by the Treasury Department against the property and person of a defaulting public officer, under Itev. St. § 3625 et seq. (U. S. Comp. St. 1901, pp. 2418, 2419), upon which he is imprisoned, does not deprive him of his liberty without due process of law.</p> <p>[Ed. Note. — -For other cases, see Constitutional Law, Cent. Dig. § 928; Dec. Dig. § 306.*]</p> <p>5. United States (S- 44-*) — Imprisonment for Debt — Scope of Federal Statute — Imprisonment of Defaulting Officer on Distress Warrant.</p> <p>Itev. St. § 990 (U. S. Comp. St. 1901, p. 700), which provides that no person shall be imprisoned for debt in any state on process issuing from a court of the United States, where by the laws of such stale imprisonment for debt has been or shall be abolished, has no application to imprisonment under a distress warrant issued by a department under authority of a specific act of Congress against the property and body of a defaulting officer of the government.</p> <p>[Ed. Note. — For other cases, see United States, Dec. Dig. § 44.*]</p>

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

<p>1. Master and Servant (§§ 285, 289*) — Injuries to Servant — Railroads—Unblocked Prog — Contributory Negligence — Question eor Jury.</p> <p>In an action for death to a switchman while his foot was caught in an unblocked frog, whether decedent’s foot was caught before he was struck by the train, and whether he was at the switch when he gave the signal to the train to approach and caught his foot as he was leaving the switch for his station, or whether he was walking ahead of the train In a dangerous place and. his foot was jammed into the frog after ho was struck, held. for the jury.</p> <p>[fid. Note. — For other eases, see Master and Servant, Dec. Dig. §§ 285, 289.'*</p> <p>Duty of railroad companies to block switches, see note to Hauss v. Lake Erie & W. It. Oo., 46 O. O. A. 98.]</p> <p>2. Master ano Servant (§ 291*) — Injuries to Servant — Railroads—1“Proximate Cause.”</p> <p>A request to charge that the term “proximate cause” meant the first or efficient cause, and if the jury found that there were several causes contributing to decedent’s death, thou the proximate cause was the cause coming first which set in motion the other causes producing the accident, was properly refused as susceptible of an interpretation that, if decedent was negligent in crossing defendant’s tracks in front of an approaching train, his act was necessarily the proximate cause of the accident, and as overlooking the rule that the proximate cause is the dominant cause from which the injury follows as a direct and immediate consequence; that an act prior in time is not necessarily the proximate cause of an injury, unless the injury is the natural and probable consequence of such act, to be reasonably anticipated therefrom, or if the injury could not have happened but for the intervention of a sufficient and independent cause operating between the first negligent act and the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 291.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5758-5769; vol 8, p 7771.]</p> <p>8» Master and Servant (§ 291*) — Death or Servant — Instructions.</p> <p>In an action for death of a switchman whose foot was caught in an unblocked frog as lie was crossing the tracks in front of a train, a request to charge that proximate cause was the first or efficient cause, and that if the jury found there were several causes contributing to decedent’s death the proximate cause was the cause coming first which set in motion the others producing the accident, was properly refused as eliminating the proposition that an unblocked frog might have been an efficient and independent cause of the accident, without which it could not have happened, though decedent was negligent in crossing the tracks ahead of the train.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 291. *]</p> <p>4. Master and Servant (§ 291*) — Death oe Servant — Railroads—Unblocked Frog — Negligence—Instructions.</p> <p>Whore a switchman was killed after catching his foot in an unblocked frog, and the jury were permitted to find for plaintiff only on the theory that decedent’s death was caused by the negligent condition of the frog, a request to charge that if decedent, before he attempted to cross the tracks, know that defendant’s train was approaching at rapid speed, and with such knowledge attempted to cross ahead of the train, and that this was the proximate cause of his death, plaintiff could not recover, was properly refused, as charging that plaintiff could not recover if his act in crossing the tracks ahead of the train was the proximate cause of his death, though such crossing was in the regular discharge of his duty and he had no other way to go to his station and was free from negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 291.*]</p> <p>5. Master and Servant (§ 112*) —Railroads—Safety Requirements — Statutes — Unblocked Frogs.</p> <p>Rev. St. Ohio, § 3363 — 18, requiring every railroad operating in the state to block its frogs in yards, divisional and terminal stations, where trains are made up, is designed for the protection not only of employes who may step into them, but also of ihose dragged or pushed into them’ by an engine; a railroad’s failure to comply therewith constituting negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 112.*</p> <p>Duty of railroad companies to furnish safety appliances, see note to Fel-ton v. Bullard, 87 C. C. A. 8.]</p> <p>6. Master and Servant (§ 112*) — Death op Servant — Railroads—Unblock- ■ ed Frogs — Statutes.</p> <p>Rev. St. Ohio, § 3366 — 18, requiring railroads within the state to block all angles in frogs, switches, and crossings, is expressly limited to frogs in yards, divisional and terminal stations, where trains are made up.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 112.*]</p> <p>7. Master and Servant (§ 278*) — Death of Switchman — Evidence.</p> <p>In an action for death of railroad switchman by being run over after catching his foot in an unblocked frog, permitted so to remain in violation of Rev. St. Ohio, § 3365 — 18, evidence held to justify a finding that the frog in question was located in a railroad yard where trains are made up, and was therefore within the statute.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 278.*]</p> <p>8. Trial (§ 191*) — Instructions—Assumed Facts.</p> <p>The court did not err in assuming that the place where decedent was injured was a frog in a railroad yard, where trains were made up, which the railroad company had negligently failed to block in violation of Rev. St. Ohio, § 3365 — 18, where it would have been the duty of the court to set a finding to the contrary aside.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 191.*]</p> <p>9. Trial (§ 237*) — Instructions—“Preponderance of Proof” — “Persuaded.”</p> <p>An instruction that by “preponderance of proof” is meant that the jury are persuaded of the soundness of the claim more satisfactorily than the contrary was not objectionable because the word “weigh” was not employed, nor as implying that the jury might be persuaded by arguments rather than proof, as the jury could properly understand the term “persuaded” only to mean that the proof must be more persuasive, more convincing.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 542, 548-551; Dec. Dig. § 237.*</p> <p>For other definitions, see Words and Phrases, vol. 6, pp. 5516-5518, 5367.]</p> <p>10. Master and Servant (§ 296*) — Death of Servant — Instructions.</p> <p>Where, in an action for death of a railroad switchman by being run over while his foot was caught in an unblocked frog, it was uncontradicted that the frog had been in that condition for two months preceding the accident, and that decedent, who had been in the same employment for a year or more, was required to inspect the switches, where the frog was located, every time a train passed, the court did not err in omitting to charge that if decedent, in the exercise of ordinary care, could have discovered that the frog was unblocked, he must be charged with knowledge' thereof, there being no request to charge that decedent was presumed to have known the condition of the frog.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 296.*]</p> <p>11. Master and Servant (§ 296*) — Death of Servant — Contributory Negligence — “Substantial Contribution.”</p> <p>An instruction that, where the negligence of an employs actually contributes to the results, his negligence would not be compared, provided it was a “substantial contribution” to the accident, was not objectionable on the theory that any negligence on decedent’s part was sufficient to defeat the action, since negligence, unless “substantial,” could not be said to contribute directly and proximately to the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. g 296.*]</p> <p>12. Trial (§ 29G*)~Instructions — Error Cured by Other Iksteuotion.</p> <p>An instruction that decedent's contributory negligence, in order to defeat a recovery, must be “substantial,” was not prejudicial to defendant, where the court afterwards charged that, if decedent’s failure to exercise ordinary care contributed to the accident resulting in his death, plaintiff could not recover.</p> <p>[Ed. Note. — For other cases, see Trial, Dec. Dig. § 29(5.*]</p> <p>13. Trial (§ 251*)--Instructions — Applicability to Issues.</p> <p>The court did not err iti refusing to give defendant’s proposed instructions relating to grounds of negligence withdrawn from the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>14. Appeal asd Error (§ 1004*) — Scope of Review — Damages—Excessive-si ess — Verdict.</p> <p>Objections that the damages are excessive, and that the verdict is against the law and the evidence, are for the determination of the trial court on a motion for a new trial, and cannot be reviewed by the Circuit Court of Appeals.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 8944-3947; Dec. Dig. § 1004.*]</p>

<p>1. Appeal and Error (§§ 256, 518'*) — Record—Matters to be Siiown — Motions to Strike out Portions of a Pleading.</p> <p>A motion to strike out portions of an answer and the ruling thereon cannot ho regarded as part of the record, upon a writ of error, unless made such by a bill of exceptions; nor is the ruling upon such a motion open to review where no exception thereto was taken.</p> <p>[Eel. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1489, 2352; Dec. Dig. §§ 256, 518.*)</p> <p>2. Courts (§ 356*) — Courts of the United States — Proceedings Preparatory to Obtaining Review of Rulings Not Regulated by State Statutes.</p> <p>In the courts of the United States the proceedings preparatory to obtaining a review of their ruling's, including the questions of when an exception need lie taken and how motions and rulings, not in themselves part of the record, may be made such, are not regulated by state statutes, but by the statutes of the United States, and, if they he silent, by the common law and the practice prevailing in those courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 937; Dec. Dig. § 356.*]</p> <p>3. Mines and Minerals (§ 7*) — Coal Dand Statute — Eight to Coal Incidentally Removed in Course of Lawful Development Work.</p> <p>Under sections 2347-2852, Rev. St. (U. S. Comp. St. 1901, pp. 1440, 1441), a qualified individual or association who, in responso to the government’s invitation, enters upon public lands in search of coni deposits, and expends time, labor, and means in an honest effort to open and develop-such deposits when found, intending to purchase the lands according to the statute if the coal proves to be such as to give character and value to them, is not a trespasser, but is in the exercise of a privilege conferred by law, and is entitled to such coal as is extracted and removed as-an incident only 1o the reasonable prosecution of that work.</p> <p>TEd. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 7; Dec. Dig. § 7.*]</p> <p>(Syllabus by the Court)</p>

The following is the instruction referred to in the opinion: “Then you should assess the damages which have resulted to the plaintiff from this injury, and those damages should’be such as to compensate the plaintiff for the injury he has suffered, which would include the pain and suffering which he has undergone, the humiliation resulting from the disfigurement from the loss of the eye, and effects of that disfigmement in the less ability, if you find such, to earn his…

This veas an action against guarantors under an instrument in writing, in these words: ‘•Memorandum of agreement, between the Southern Peanut Company and T. C. Britt, W. O. Britt, Geo. C. Thompson and W. F. Bradshaw, Jr., all of Paducah, Ky., parties of the first part, and J. I>. Jones, of Bakerville, Train., party of tho second part, witnesseth: “That, whereas, the Southern Peanut Company is indebted to the said J. 1).

<p>Appeal from the District Court of the United States for the Bast-era District of Oklahoma.</p> <p>On Petition for Review.</p>

<p>1. Appeal and Error (§ 5*) — Mode op Review — Nature of Proceedings.</p> <p>A receiver having been appointed for a street railway company in mortgage foreclosure proceedings, defendants in error filed intervening petitions claiming damages for personal injuries, and were awarded in that proceeding judgment for damages by a special master which under state statute were entitled to preference out of the fund arising from a foreclosure sale. Held, that such proceedings partook of the nature of the suit in which they were conducted, and were therefore in equity and not of law, so that the judgments were reviewable on appeal only, and not by writ of error, as provided by Rev. St. §§ 691, 692 (U. S. Comp. St. 1901, p. 566).</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. § 5.*]</p> <p>2. Receivers (§ 174*) — Actions—Jurisdiction.</p> <p>Under Act Cong. March 3, 1887, c. 373, § 3, 24 Stat. 554, as corrected by Act Aug. 13, 1888, e. S66. § 3. 25 Stat. 436 (U. S. Comp. St. 1901, p. 582), ■ providing that actions against a receiver, concerning the property in his possession, may be prosecuted in any court having jurisdiction, without leave of the court appointing the receiver, persons injured by the operation of a street railway by a receiver appointed in mortgage foreclosure proceedings in a federal court were not bound to apply for an allowance of damages in such proceedings, but could reduce their claim to judgment in a state or other court having jurisdiction.</p> <p>[Ed. Note. — Eor other cases, see Receivers, Dec. Dig. § 174.*</p> <p>Actions by and against receivers of federal courts, see note to J. I. Case Plow Works v. Pinks, 26 C. C. A. 49.]</p> <p>3. Jury (§ 14*) — Right to Trial by — Foreclosure of Mortgage.</p> <p>Where, in proceedings for the foreclosure of a street railroad mortgage, persons injured by the operation of the road by a receiver intervened for an allowance of damages, the court, could have submitted the question of negligence and damages for a jury, but was not bound to do so, as the verdict would be advisory only.</p> <p>[Ed. Note. — For other cases, see Jury, Dec. Dig. § 14.*]</p> <p>4. Equity (| 377*) — “Feigned Issue.’’</p> <p>A '‘feigned issue” is an issue submitted to the jury in an equity case for the assistance and advice of the court.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 377.*</p> <p>For other definitions, seo Words and Phrases, vol. 3, p. 2716.]</p>

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

<p>1. Equity (§ 809*)— Reference to Master —Master’s Authority.</p> <p>Parties to an equity cause may, by a consent decree, constitute a special master an arbiter to settle specified matters in dispute.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. § 399.*]</p> <p>2. Equity (§ 409*) — Reference to Master — Findings—Effect.</p> <p>Tii a suit to enforce a mechanic’s lien, the bill prayed that defendants, except a hotel company, be compelled to appear and set up their rights, claims, and liens, and that the court settle the rights of the defendants to a fund and the property m question. In response to such prayer, the hotel company charged all its codefendants to be subcontractors under plaintifit, but declared Itself unadvised as to the amount, nature, or extent of their claims or liens, and asked that the other defendants prove their accounts and their respective priorities before one of the masters of the court. Sold,, that such prayer did not bind the hotel company to abide the master’s judgment concerning the matters in controversy between it and plaintiff, so that the court on the filing of a master’s report was entitled to review the master’s findings of fact and law.</p> <p>[Ed. Note. — For other cases, see Equity, Cent. Dig. § 921; Dee. Dig. § 409.*]</p> <p>3. Appeal and Ebbob (§ 1022*) — Beview—Findings by Master — Concurrence by Coubt.</p> <p>Where a cause is referred to a master to report his findings of fact and conclusions of law, the master’s findings and conclusions concurred in by the court will be sustained on appeal unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4017; Dec. Dig. § 1022.*]</p> <p>4. Contbacts (§ 287*) — Building- Contbacts — Final Abchiteots’ Certificates —Conclusiveness—Bubden op Pboop.</p> <p>Where a building contract constituted the architects the owner’s supervising agents, but did not in terms authorize the architects to issue a conclusive final certificate, an architect’s final certificate was only prima facie evidence that the work had been performed according to the contract, and placed the burden of proof on the owner to impeach the same for error, mistake, omission, or concealment.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1330,1331; Dec. Dig. § 287.*]</p> <p>5. Contbacts (§ 287*) — Substantial Performance.</p> <p>On the completion of a contract for the reconstruction of part of a hotel, the architect’s certificate recited that there was due the contractor $17,-841, from which the owner was entitled to deduct $3,631.63, of which $956.71 was for bills assumed by the owner for the contractor and $200 was for defective plastering, leaving $2,274.92 or less than 5 per cent, of the contract price, representing the value of uncompleted work. Held that, though the owner was entitled to credit for such sum, it was not sufficient to show that the contract had not been substantially complied with, so as to justify the owner in refusing to pay the contractor the balance.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1330, 1331; Dec. Dig. § 287.*]</p> <p>6. Damages (§ 85*) — Penalty—Building Contbacts — Delay.</p> <p>Where the owner'of a building in process of erection let a large amount of the work and the furnishing of materials to independent contractors, and their delay caused part of the general contractor’s delay, the owner was chargeable with the independent contractor’s delay, and the general contractor would be relieved -from liability for a contract penalty for delay, as the court would not attempt to apportion the same.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 184; Dec. Dig. § 85.*] .</p> <p>7. Principal and Agent (§ 171*) — Authobity of Agent — Estoppel to Deny.</p> <p>Where the owners of a building in process of erection permitted the architects, who were the owners’ supervising agents, to contract for extras without protest, and, after the extras had been inserted, continued in possession and enjoyment thereof, the owners could not thereafter deny the general authority of the superintendents to order them.</p> <p>[Ed. Note. — For other cases, see Principal and” Agent, Cent Dig. §§ 644-655; Dec. Dig. § 171.*]</p> <p>8. Contracts (§ 232*) — Building Contracts — Extras — Order in Writing— Waiver.</p> <p>Where the owner of a building retained ijossessio'n and the enjoyment, without protest of extras orally ordered of the contractor by the superintendent, and the owner was estopped to deny the general authority of the superintendents to give the order, a contract provision that all extras should be ordered in writing was waived.</p> <p>[Ed. Note. — For other cases, see Contracts, Dee. Dig. § 232.*]</p> <p>9. Attorney and Client (§ 182*) — Services on Attorney — Fund Procured by Services.</p> <p>A contractor for the reconstruction of a part of a hotel having substantially performed, but not having secured a large part of the price because of a controversy between him and tho hotel company, and being a nonresident insolvent, certain attorneys instituted a suit in the contractor’s name and established the contractor's claim against the solvent hotel company, which inured solely to the benefit of subcontractors and creditors ol' the contractor. Held, that the attorneys were entitled to a lien on the fund for their services prior to distribution, and this though an assignee of one of the creditors entitled to a pari: of the fund had other and additional security for his debt, the distribution of the fund not affecting the rights of the subcontractors and creditors to enforce their demands for any balance remaining unpaid against the contractor personally.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 400; Dec. Dig. § 182.*]</p> <p>Dayton, District Judge, dissenting in part</p>

<p>1. Courts (§ 843*) — Federal Courts — State Statutes.</p> <p>The North Carolina statute expressly authorizing the prosecution of a suit by a pendente lite assignee of the demand in the name of the original plaintiff, his assignor, will be followed in the federal courts sitting in that state.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 919: Dee. Dig. § 343.*</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 O. C. A. 553.]</p> <p>2. Trial (§ 3*) — Separate Trials in Same Cause — Matter op Abatement.</p> <p>In a suit on a municipal paving contract, an objection that the suit was premature because the matter in difference between the city and the contractor had not been submitted to the arbitrament of the city engineer, and that the contractor had not furnished the city proper evidence that all claims for labor and material had been paid as required by the contract, was mere matter of abatement, as to which it was the city’s duty to demand an independent trial prior to a submission of the case on the merits, and which the city waived by failing to do so.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 6; Dec. Dig. § 3.*]</p> <p>3. Municipal Corporations (§ 365*) — Paving Contracts — Performance—Acceptance by Engineer— Effect — Improper Work — “Approximate Estimate.”</p> <p>A contract for street paving required the work to be done as a whole, and not in sections, according to specifications under the direction of the city’s engineer. The notice to bidders and specifications alone provided for payment on semimonthly estimates as the work progressed, with a retention of 10 per cent, on each “approximate estimate.” The contract also provided that the contractor should be responsible for any work until its completion and final acceptance, and that the acceptance should not relieve the contractor of any obligations to do reliable work previously described. Held, that the word “approximate” was tautologically used to accentuate the word “estimate,” which was not to be construed as a final mathematical ascertainment of what was set forth, and hence the acceptance of sections of the work by the city engineer and issuance of approximate estimates thereon to the contractor did not bar the city's right to defend, when sued for the balance due under the contract, on the ground that the work in the sections estimated did not constitute a compliance with the specifications.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 898; Dec. Dig. § 365.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 477; vol. 3, pp. 2402-2493.]</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p> <p>This action was brought by the plaintiff in error against the defendant in error for $2,074.54, with interest at 6 per cent, per annum from April 12, 1887, alleged to be duo upon a judgment rendered by the common pleas court of Montgomery county, Ohio, on the 14th day of June, 1887. Three pleas were filed. A demurrer was sustained to the third, and issue was joined on the first and second, upon which issues the case was tried. These pleas were: (1) Nul tiel record; (2) the general issue, with leave to give in evidence any matter that would operate as a good plea in bar if specially pleaded. The plaintiff offered in evidence a transcript, written on 15 pages, together with a certificate headed “Common Pleas Court, Montgomery County, Ohio,” and signed, “John C. Good, Clerk Common Pleas Court, Montgomery County, Ohio,” and under the seal of the court, which stated that “the foregoing pages, numbered from 1 to 15, both inclusive, contain a full, true, correct, and complete transcript of the record of said common pleas court in the case of Peter Bohlander, plaintiff, v. William F. Heikes, defendant; said case being No. 11,095, on the docket of said court.” The certificate then states the various papers by name included in the transcript, among which is named the judgment of the court, and says, “As the same appear upon the records of said court.” The certificate closes: “Given under my hand and the seal of said common pleas court of Montgomery County, Ohio, this 31st day of August, 1906.” This certificate had attached thereto another, which states: “I, Edward F. Snediker, judge of the common pleas court of Montgomery county, Ohio, do hereby certify that the foregoing attestation of the clerk of the common pleas court, John C. Good, whose true and genuine signature and the seal of said court appear thereto, is in due form.” This is signed by Edward F. Snediker, judge of common pleas court, and the seal of the court is also affixed; the certificate being dated September 1, 1906. Plaintiff also offered in evidence an agreement of counsel to the effect that the judgment was unpaid, but reciting that the agreement was not to cut off any other defense except payment.</p> <p>The transcript offered in evidence showed that the suit in which the judgment was rendered was begun on June 13, 1835. in “the superior court of Montgomery county, Ohio,” and that the summons issued from that court: that the answer of defendant was filed in that court. Then followed four orders of continuance, July, 1885, October, 1885, January, 1886, and March, 1886, each of which appears to have been made in the superior court. Then follow three orders of continuance, May, 1883, October, 1SSG, and January, 1887, each of which was made in the common pleas court. The transcript then shows that “on the 14th day of June, A. D. 1887, there was filed in the office of the clerk of the court aforesaid (meaning the common pleas court of Montgomery county, Ohio) a reply clothed in the words and figures following, to wit: ‘Superior Court of Montgomery County, Ohio. Reply. Now comes the plaintiff and for reply to the answer of the defendant herein denies each and every allegation in said answer contained. By consent verification is waived.’ ” Then follows: “Afterwards, to wit, on the 14th day of June, A. D. 1887, there was filed in the office of the clerk of the court aforesaid an entry clothed in the words and figures following, to wit: ‘Superior Court of Montgomery County, Ohio. Entry. This cause coming on for hearing on the petition, the answer of the defendant, and the reply of plaintiff, and was submitted to the court without the interventioh of a jury. On consideration whereof the court finds, on the issue joined between the plaintiff and the defendant, for said plaintiff, and that said defendant is indebted to said plaintiff, as in said petition set forth, in said sum of fifteen hundred dollars (81,500), with interest thereon from November 24, 1877. It is therefore considered by the court that the said plaintiff recover from the said defendant the sum of two thousand and seventy-four and B0/ioo dollars (82,074.50), with interest thereon at six per cent, from April 12, 1887, and his costs taxed at $-, said case having been ordered on the trial docket. Approved. Dwyer, Judge.’ ”</p> <p>No statute of the state of Ohio was exhibited to the court by the plaintiff, nor was it shown to the court, other than as it appears in the above transcript, that either in law or in fact was the “common pleas court and the superior court” one and the same court, or that one was the successor of the other, or that the clerk of the “common pleas court” had authority to certify the records of the superior court. Upon this evidence the court directed a verdict for defendant. The errors relied on are the giving of the general charge or directing the verdict for defendant, to which the plaintiff duly excepted.</p>

Appeals from the Circuit Court of the United States for the Southern District of New York. The decision below affirmed 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. The opinion of the Circuit Court reads as follows: HAZEL, District Judge.

<p>1. Damages (§ 132*) — Personal Injuries — Excessiveness.</p> <p>Where.plaintiff, a millwright helper, 23 years old, in good health and earning $2.50 a day, sustained' an injury to his limb by defendant’s negligence, which necessitated an amputation near the hip joint, an allowance of $"7,000 was not so excessive as to indicate passion or prejudice.</p> <p>[Ed. Note. — For other eases, see Damages, Cent. Dig. §§ 372, 380; Dec. Dig. § 132.*]</p> <p>2. Master and Servant ( 276*) — Injuries to Servant — Defective Cable — Evidence.</p> <p>Where a servant was injured by the fall of an elevator counterbalance weight, evidence held, sufficient to sustain a verdict finding that the cable supporting the weight was defective, and that defendant knew or should have known of the defect in time to have remedied it before the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 958; Dec. Dig. § 276.*]</p> <p>3. Master and Servant (§ 124*) — Injuries to Servant — Defective Appliances — Inspection.</p> <p>Where an elevator inspector found one of the cables defective at the-point where it was wound around the drum, it was his duty to examine all the cables on the same drum; nor could he presume that the part of the cable exposed to the air would be less rust-eaten and defective than the part somewhat protected by the windings on the drum.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235, 238; Dec. Dig. § 124.*]</p> <p>4. Master and Servant (§ 287*) — Injuries to Servant — Question for Jury-Negligence of Fellow Servant.</p> <p>Where plaintiff was injured by the fall of an elevator counterbalance weight, due to the breaking of the cable, and both plaintiff and his fellow workmen testified that the machinery was not started prior to the accident, whether the machinery was suddenly started by plaintiff’s fellow servant, so as to jerk the weight against a beam at the top of the guides, and tear loose the guides and break the cable, was for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. § 1061; Dee. Dig. § 287.*]</p> <p>5. Master an'd Servant (§ 289*) — Injuries to Servant — Question for Jury-Contributory Negligence.</p> <p>In an action for injuries to a servant by the fall of an elevator counterbalance weight, alleged to have been caused by a defective cable, whether plaintiff was negligent was for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1089; Dec. Dig. § 289.*]</p> <p>6. Master and Servant (§ 219*) — Injuries to Servant — Assumed Risk — Detective Appliances.</p> <p>While a servant assumes all the risks naturally inherent in the work he is employed to do, he does not assume the risk of its being made more hazardous by the master’s negligence in a matter not obvious, and in fact unknown, to the servant.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 610-024; Dec. Dig. § 219.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. It. Co. v. Hennessey, 38 O. C. A. 314.]</p>

<p>1. Cbiminax Law (§ 1059*) — Appeal and Ebroe — Exceptions—Scope.</p> <p>An assignment that the court erred in peremptorily directing a verdict against defendant could not be reviewed, in the absence of an exception to the whole charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1059.*]</p> <p>2. Cbiminax, Law (§ 1059*) — Exceptions—Scope.</p> <p>An assignment charging error in the whole charge cannot be reviewed on an exception to a single instruction.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1059.*]</p> <p>3. Carriers (§ 38*) — 'Transportation of Live Stock — Food and Rkst.</p> <p>Where, notwithstanding the jury found in defendant’s favor on the recitals and conditions in a requested charge, they could also conclude under the evidence that defendant “knowingly” and “willfully” failed to comply with the food and rest law, an instruction charging tha t if such conditions were found the jury should And for defendant was properly refused.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 38.*]</p>

<p>Master and Servant (§ 219*) — Injuries to Servant — Assumed Risk — Open •Elevator Shaft.</p> <p>Defendant maintained an elevator in its mill, but employed no operator, the elevator being operated by any employs who had occasion to use it. Two sides of the shaft were brick walls, the third side was protected by a wooden railing, and the remaining side had an iron rail at one end of which an opening was left to afford access to the elevator, protected only by an iron bar. Plaintiff had been employed in the mill at different times for a year and three months, during which there had been no change in the operation of the elevator. On the occasion of his Injury plaintiff took the elevator to the fourth floor to change a movable spout. While doing this, another employs removed the elevator to another floor without replacing the bar, and plaintiff, without knowledge thereof, stepped through the unguarded opening and fell. Held,, that the situation was open and obvious, and that plaintiff assumed the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p>

This cause comes here upon appeal from a decree of the Circuit Court (159 Fed. 292), which decree confirmed the master’s report herein and awarded complainant $5,019, with interest'and costs; said principal sum representing the profits wrongfully acquired by defendant in the sale of cards of hooks and eyes fraudulently simulating complainant’s cards.

<p>Patents (§ 328*) — Invention—Hook and Eye Package.</p> <p>The Richardson patent, No. 676,824, for a hook and eye package, is void for lack of invention.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*}</p>

<p>1. Appeal and Error (§ 731*) — Assignments op Error — Scope.</p> <p>An assignment that the verdict “is not justified by the evidence and is contrary to law" is too general and indefinite to raise a question for the consideration of the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017, 3021; Dec. Dig. § 731.*]</p> <p>2. Appeal and Ereok (§ 997*) — Review—Verdict.</p> <p>Where the evidence is conflicting, and there is substantial proof in support of the verdict, the denial of defendant’s motion for a directed verdict will not be reversed, though the preponderance of the evidence favors defendant’s contention.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4024; Dec. Dig. § 997.*]</p> <p>3. Evidence (§ 20*) — Judicial Notice — Railroad Management — Autuority</p> <p>op" Conductor.</p> <p>Courts will take judicial notice of the general features of railroad operation, that the conductor of a train has control and management thereof, and that the protection of the railroad company’s rights against tres, passers is within the general scope of his authority.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. § 20.*]</p> <p>4. Railroads (§ 277*) — Trespassess—Ejection.</p> <p>A railroad company is liable for compensatory damages for a misuse of a conductor’s authority in the ejection of a trespasser from a freight train.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §■§ 887-890; Dee. Dig. § 277*</p> <p>Duty to trespasser on train, see note to Southern Ry. Co. v. Shaw, 81 C. C. A. 76.]</p> <p>5. Trial (§ 244*) — Request to Charge — Prominence to Particular Matters.</p> <p>Requests to charge especially directing the jury’s attention to state- . ments, claimed to have been made by plaintiff after the accident, not in harmony with his testimony at the trial, and that, if the jury found the statements were understandingly made and were true, their verdict should be for defendant, were properly refused as singling out and giving undue prominence to particular matters of evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dee. Dig. § 244.*]</p>

The action was commenced in the Supreme Court of the state and notice was served pursuant to the provisions of the employer’s liability act of New York (Laws 1902, p. 1748, c. 600). The defendant removed the action to this court.

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

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

That the facts hereinafter stated might be the more readily understood, the following picture of the boat involved in this case was put into the record:

Petition to Review Order of the District Court of the United States for the Southern District of New York.

<p>1. PATENTS (§ 21*) — INVENTION—PROCESS.</p> <p>The mero selection of one substance from among a number as the active agent in a chemical process may involve patentable invention.</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 23; Dee. Dig. § 21.*)</p> <p>2. Patents (§ 66*) — Anticipation—Pkiob Patents.</p> <p>When it is sought to ascertain the state of the art by means of prior patents, nothing can be used except what is disclosed on the face of those patents. They cannot be reconstructed in the light of the invention in suit, and then used as a part of the prior art.</p> <p>rEd. Note. — For other cases, see Patents, Dec. Dig. § 06.*]</p> <p>3. Patents (§ 55*) — Anticipation—Priob Patents.</p> <p>An expert cannot take a process patent, which has never been applied industrially, and work the process in his laboratory, and discover therefrom something which is not disclosed on the face of the patent, and then transfer that experience back to the time of the patent, and make it a part of the prior art, for the purpose of defeating a subsequent patent for a meritorious invention.</p> <p>LEd. Note. — For other cases, see Patents, Cent. Dig. § 74; Dee. Dig. | 55.*]</p> <p>4. Patents (§ 328*) — Validity and Infringement — Process of Bleaching Flour.</p> <p>The Andrews patent, No. 693,207, for a process for aging and bleaching flour, which consists in passing the same in a state of fine division through an atmosphere containing a small regulated quantity of gaseous nitrogen peroxide, was not anticipated in the prior art, and discloses both novelty and invention, and in the absence of evidence that the process results in an adulteration of the flour, or is used for the purpose of fraud, must ba conceded utility, it being conceded that it whitens the flour without the necessity of aging as previously required; also held infringed.</p> <p>[Ed. Note. — For other eases, see Patents, Dec. Dig. § 328.*]</p>

The decree appealed from dismisses the bill for want of equity. The bill is to restrain infringement of Letters Patent No. 557,868, issued April 7th, 1896. to Frank It. Packham, for an improvement in Furrow. Openers for Seeding Machines.

<p>PATENTS (§ 328*) — VAMDITT AND INFRINGEMENT — GRAIN DRILLS.</p> <p>The Van Brunt patent, No. 069,881, for an improvement in grain drills, In so far as it covers a blade attached to1 the toe of the boot to act as a scraper of the disk, was not anticipated and discloses invention; also hold infringed.</p> <p>[Ed. Note. — For other cases, see Patents, Dec. Dig. § 328.*]</p>

<p>Patents (§ 259*) — Contributory Infringement — Inducing Violation of License Restrictions.</p> <p>It is witbin the right of the manufacturer of patented printing machines called the “mimeograph” to sell the same under license contracts providing that they shall be used only with ink made by the seller, and third persons who with knowledge of such restriction sell a different ink to owriers of the machines intending that it shall be used with such machines, and which is so used, are chargeable with contributory infringement which entitles the owner of the patent to an injunction. ■</p> <p>[Ed. Note. — For other cases, see Patents, Cent. Dig. § 401; Dec. Dig. 5 259.*</p> <p>Contributory infringement of patents, see notes to Edison Electric Light Co. v. Peninsular Light, Power & Heat Co., 43 C. C. A. 485; ASolian Co. v. Harry H. Juelg Co., 86 C. C. A. 206.]</p>

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

<p>In Bankruptcy. Application for funds in the hands of the trustee.</p>

<p>In Equity. On settlement of decree of foreclosure and sale.</p>

<p>1. Discovery (§ 3*) — Bill—Right to Relief.</p> <p>Bills for discovery will not be sustained, where the information desired can be obtained by the taking of depositions, by cross-examination of plaintiff at or before trial, by the examination of public records, or by notice to produce documents.</p> <p>[Ed. Note. — For other cases, see Discovery, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.*]</p> <p>2. Records (§ 14*) — Public Records — Right to- Examination.</p> <p>The contents of a public record office are always at the service of a person desiring to examine the same, on due application to the official in charge.</p> <p>[Ed. Note. — For other cases, see Records, Cent Dig. §§ 13-17; Dee. Dig. § 14.*)</p> <p>3. Depositions (§ 8*) — Right to Take.</p> <p>Depositions of witnesses who cannot be compelled to respond to a subpoena may be taken at any time, by the entry of an appropriate rule in the Circuit Court</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. § 8; Dec. Dig. I 8.*]</p>

<p>Cokporations (§ 482*) — Suit fob Foreolosube of Mobtgage — Interventiox.</p> <p>In a suit to foreclose a corporate mortgage, which covers past-due bonds of another corporation he)d by the mortgage trustee as a part of the security, such corporation will not be permitted to intervene for the purpose of litigating the question of its liability on such bonds, since a purchaser will acquire no better title than the mortgagee, and that question can be litigated in any suit for their enforcement.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1881; Dec. Dig. § 482.*]</p>

<p>In.Admiralty. Libel for damages. On final hearing.</p>

<p>Seamen (§ 19*) — Discharge—Wages.</p> <p>Where the cook of a ship was lawfully discharged, in settling his wages the master could not deduct a sum paid by him to obtain advice for'his guidance in connection with such discharge.</p> <p>[Ed. Note. — For other cases, see Seamen, Dec. Dig. § 19.*]</p>

In Equity. Complainant, a corporation organized under the laws of Indiana, engaged in the manufacture and sale of beer, files its bill against Alexander M. Garber, Attorney.

At Caw. Demurrer to éomplaint in action to recover penalties for ■infringement of complainant’s copyright of a map of the borough oi Manhattan, and others, and to recover damages for mutilating and selling maps made and designed by plaintiff.

<p>Insurance (§§ 159, 415, 489*) — Marine Insurance — Shipment oj? Cattle —Insurance Subject of Bill of Lading — Deviation op Route — “Un-seaworthy.”</p> <p>Insurance on freight on cattle shipped from New Orleans to Cape Town, South Africa. Loss en route by mortality said to have been due to improper food furnished by the shippers. It appeared that the food supplied was ample in quantity, and of a quality the animals were accustomed to on the ranges from which they were taken. It was approved by competent experts in New Orleans. Held, that as the insurance was against mortality generally, the underwriters were liable notwithstanding the unusual number of deaths, due, perhaps, to a deficiency in kinds of fodder supplied. Vessel not unseaworthy for such reason. Bill of lading freight the subject of insurance and held recoverable. A deviation eñ route to Barbados held justified by a mutiny among the cattle men and the expenses thereof recoverable from the underwriters.</p> <p>TEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1111, 1255; Dec. Dig. §§ 159, 415, 489.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7210.]</p> <p>(Syllabus by the Judge.)</p>

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

<p>1. Bankruptcy (§ 115*) —Receivers—Extraterritorial Authority.</p> <p>A receiver in bankruptcy appointed by the District Court of one district cannot maintain an action in the District Court of another district to recover assets in the hands of strangers, nor can a court of the latter district stay the officers of the state court and order them to surrender assets of the bankrupt within the district to the receiver appointed in the foreign district, that the assets may be preserved until a trustee is elected.</p> <p>[Fd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 115.*]</p> <p>2. Bankruptcy (§ 114*) — Federal Courts — Ancillary Jurisdiction — Receivers.</p> <p>Under Bankr. Act July 1, 1898, c. 541, § 1, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3418), giving federal courts bankruptcy jurisdiction to be exercised within their territorial limits, to administer estates in all their details, and providing that nothing contained in the enumerated powers in section 2 should deprive a court of bankruptcy of any power it would possess if the specific powers had not been therein enumerated, a federal District Court in a district other than that in which bankruptcy proceedings are pending has jurisdiction to appoint an ancillary receiver to take possession of property in such district belonging to the bankrupt pending adjudication, in order to preserve the same.</p> <p>TEd. Note. — For other cases, see Bankruptcy, Dec. Dig. § 114.*</p> <p>Jurisdiction of federal courts in suits relating to bankruptcy, see note to Bailey v. Mosher, 11 C. C. A. 313.]</p>

<p>1. Aliens (§ 69*)' — Naturalization—Record.</p> <p>A naturalization record need not show jurisdiction, or that all the legal requisites have been complied with, nor contain the alien’s previous declaration of intention to become a citizen, in order to import validity.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 69.*]</p> <p>2. Aliens (§ 70*) — Naturalization—Proceedings oe Coukt.</p> <p>Courts, in exercising jurisdiction to admit aliens to citizenship, act judicially, and their proceedings must be liberally construed; every intendment being in their favor.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 70.*]</p> <p>3. Aliens (§ 68*) — Citizenship—Declaration oe Intention — Minors.</p> <p>Under Rev. St. § 2165 (U. S. Comp. St. 1901, p. 1329), providing that aliens may be admitted to citizenship where a declaration of intention shall have been filed at least two years before admission, such declaration may be made by a minor just before coming of age, and is ratified on his subsequent application for citizenship after arriving at majority.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 68.*]</p> <p>4. Aliens (§ 68*) — Citizenship—Declaration oe Intention — Statutes.</p> <p>Rev. St. § 2165 (U. S. Comp. St. 1901, p. 1329), providing that aliens may be admitted to citizenship where a declaration of intention shall have been filed at least two years before admission, does not require a renunciation of allegiance to the foreign sovereign, or the actual declaration of allegiance to the United States, at the time of the applicant’s declaration of intention to become a citizen.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 68.*]</p>

<p>X. Removal oF Causes (§ 25*) — Action Arising Under Federal Statute.</p> <p>In order to justify a removal of a cause from a state court to the Circuit Court of the United States on the ground that the suit is one arising under the Constitution, laws, or treaties of the United States as authorized by Act Cong. March 3, 1887, c. 373. § 1, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508). it must appear in plaintiff’s statement of his own claim that the suit is one so arising, it being insufficient that such facts appear in the answer or petition to remove.</p> <p>¡Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 25.*]</p> <p>2. Removal of Causes (§ 23*) — Grounds—Federal Constitution, Laws, ob Treaties.</p> <p>A cause cannot be removed to a federal court, on the ground that it is one arising under the Constitution, laws, or treaties of the United States, merely because it may become necessary in the progress of the litigation to construe the Constitution or laws of the United States, but the cause must be one the decision of which depends on such construction.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 54; Dec. Dig. § 23.*)</p> <p>3. Removal of Causes (§ 23*) — Grounds — Cause Arising Under Federal Constitution and Laws.</p> <p>Where an action for injuries to a servant of a railroad company was brought under the employer’s liability act (Act Cong. April 22, 1908 [Act April 22, 1908, 35 Stat. 65, e. 149]), but it did not appear from plaintiff’s 'declaration that the construction of the act was involved, but that the decision would depend on the law as applied to the facts, the cause was not removable as arising under the laws of the United States.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 54; Dec. Dig. § 23.*]</p> <p>4. Courts (§ 394*) — Federal Courts — United States Supreme Court — Jurisdiction.</p> <p>Where, in the course of a trial in a state court, it develops that the decision of a case depends on the construction of an act of Congress, and the decision is against some right or privilege set up and claimed by the defendant thereunder, the case may be reviewed by the Supreme Court of the United States on a writ of error to the highest state court.</p> <p>[Ed. Note. — For other eases, see Courts, Cent. Dig. § 1053; Dec. Dig. § 394.*]</p> <p>Jurisdiction of cases involving federal question, see notes to Bailey v. Mosher, 11 C. C. A. 308; Montana Ore-Purch. Co. v. Boston & M. C. C. & S. Min. Co., 35 C. C. A. 7.]</p>

Action for Damages, under “Interstate Commerce Act.” Demurrer upon ground of violation of fifth amendment of Constitution, depriving of property without due process of law.

<p>Action for Damages under “Hepburn Act.” Claim of attorney’s bees under section 8 of the act.</p>

<p>In Bankruptcy. Intervention of John Deere Plow Company. Petition to review referee’s order, by intervener.</p>

<p>1. Bankruptcy (§ 192*) — Liens Under State Laws.</p> <p>Ky. St. 1909, § 2487, gives tbe seller of mine materials an inchoate lien for the purchase price on the property sold, together with the entire mining plant, which becomes perfected on assignment of the mine, etc., for the benefit of creditors, as provided by section 2490. Held that, where a seller of mine material having a lien under such sections accepted a chattel mortgage from the buyer a short time before the owner became a bankrupt, the seller would be entitled to the statutory lien in case the mortgage was invalid for any reason.</p> <p>[Ed. Note. — For .other cases, see Bankruptcy, Cent. Dig. § 294; Dec. • Dig. § 192.*]</p> <p>2. Bankruptcy (§ 164*) — Payment to Lien Creditor — “Preference.”</p> <p>A payment to a creditor having an inchoate lien cannot constitute a preference within the bankrupt act.</p> <p>[Ed. Note. — For other cases, .see Bankruptcy, Cent. Dig. § 267; Dec. Dig. § 164.*</p> <p>For other definitions, see.Words and Phrases, vol. 6, pp. 5498, 5499; vol. 8, p. 7759.]</p> <p>3. Bankruptcy (5 164*) — “Preferences”—Payments.</p> <p>In order that a payment by a bankrupt should operate as a preference, it must be shown that the bankrupt was insolvent, and that the creditor had reasonable cause to believe the payment, was intended as a preference.</p> <p>[Ed. Note. — E’er other cases, see Bankruptcy, Cent. Dig. § 267; Dee. Dig. § 164.*]</p>

<p>1. Removal of Causes (§ 86*) — Parties—Fraudulent Joinder — Petition to Remove.</p> <p>Where, in an action for injuries, the petition stated as a ground for liability against the resident defendant that he knew of the defective mold into which plaintiff was pouring molten iron at the time he was injured by such defect, and with such knowledge directed plaintiff so to do, a petition for removal on the ground of fraudulent joinder, alleging that such defendant had nothing to do with the accident, was not present, and did not construct the mold, but which failed to deny "plaintiff’s allegation and to allege that it was known by plaintiff to be untrue when made, and was made to prevent removal, was insufficient.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 86.*</p> <p>Fraudulent joinder of parties to prevent removal, see note to Offner v. Chicago, E. R. Co., 78 C. C. A. 362.]</p> <p>2. Removal of Causes (§ 36*) — Joinder of Parties — Intent.</p> <p>A plaintiff in an action for injuries may join parties defendant for the sole purpose of preventing a removal of the cause, if he has a joint causo of action.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. § 79; Dec. Dig. § 36.*]</p> <p>3. Removal of Causes (§ 49*) — Joinder of Parties — Separable Contro verst.</p> <p>In an action for injuries to a servant, plaintiff sued defendant company, a nonresident, and B., a resident, who was plaintiff’s superintendent. The corporation’s liability, if any, was based on its negligence in providing a defective appliance, or because of B.’s negligence in directing plaintiff to pour iron into the mold known by him to be defective. Reid, that the liability of B. and the corporation was not joint, but sev-erable as to each, and that the cause was therefore removable.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Dec. Dig. § 49.*</p> <p>Separable controversy, see notes to Robins v. Ellenbogen, 18 C. C. A. 86; Mecke v. Valley town Mineral Co., 35 O. C. A. 155.]</p>

<p>1. Mechanics’ Liens (§ 158*) — Veeification—Noneesident Notary — Certification of Authokitt — Amendment.</p> <p>Where suit was brought to enforce a materialman’s- lien within 60 days after plaintiff ceased to furnish the material, and while the right to file a properly verified declaration of lien, if the one filed was defective, was still existing, plaintiff filed an amended pleading, supplying a proper court certificate of the authority of the nonresident officer taking the verification of the lien, the fact that the declaration of account and lien, when filed, was verified by a nonresident notary, whose authority was not authenticated by a clerk or other officer of a court of record, was not a fatal defect.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 278; Dec. Dig. § 158.*]</p> <p>i Damages (§ 85*) — Building Conteact — Delat — Penalties—Mutual Default.</p> <p>Whore delays in constructing an ice plant and refrigerating machines were caused by the mutual default of the parties, contract penalties will be regarded as waived, and the court will not attempt to apportion the delays between the owner and the contractor.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 85.*]</p>

<p>1. Aliens (§ 68*) — Naturalization1—Witnesses—Depositions—Statutes.</p> <p>Act Gong. June 29, 1906, c. 8592, § 9, 84 Slat. 599 (U. S. Comp. St. Supp. 1907, p. 424), declares that the hearing of a naturalization petition shall be in open court, and that the applicant and his witnesses shall be examined on oath before and in the presence of the court. Held that, except as proyided in section 10, permitting depositions only where the applicant’s residence has been for a period loss than five years, a court, in hearing a naturalization petition, has no authority to receive or consider evidence taken by depositions without its presence.</p> <p>[Ed. Note. — For other cases, see Aliens, Dec. Dig. § 68.*]</p> <p>2. Aliens (§ 70*) — Naturalization—Vacation—Jurisdiction.</p> <p>Act Cong. June 29, 3906, c. 8592, § 15, 34 Stat. 596 (U. S. Comp. St. Supp. 1907, p. 427), authorizes the institution of suits in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit to set aside and cancel the certificate of citizenship because illegally procured. The section also declares that, if the certificate is set aside, a copy of the order of cancellation shall be transmitted to the court from which the certificate of citizenship shall have originally issued, and the clerk of such court, on receiving the same, shall cancel the certificate on the records and notify the Bureau of Immigration and Naturalization. Held that, whore a certificate of naturalization was illegally granted by a superior state court, a federal District Court in the district of the naturalized citizen’s residence had jurisdiction of a suit by the United States to set it aside.</p> <p>lEd. Note. — For other cases, see Aliens, Dec. Dig. § 70.*]</p>

<p>1. Contempt (§ 60*) — Evidence—Reasonable Doubt.</p> <p>Proceedings for contempt being criminal in their nature, the contempt must be proven beyond a reasonable doubt</p> <p>[Ed. Note. — For other cases, see Contempt, Cent. Dig. § 185; Dec. Dig. § 60.*]</p> <p>2. Contempt (§ 60*) — Defenses—Insanity—Bubden of Proof.</p> <p>The burden of proof of insanity, pleaded as a defense to a criminal contempt, is on the defendant.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent Dig. § 183; Dec. Dig. § 60.*]</p> <p>3. Contempt (§ 60*) — Defenses—Insanity— Evidence.</p> <p>In a prosecution for criminal contempt, evidence held insufficient to sustain a defense of insanity.</p> <p>[Ed. Note. — For other cases, see Contempt, Cent Dig. § 187; Dec. Dig. § 60.*]</p>

On Petition for Remission of Penalty. These proceedings were initiated under Act June 22, 1874, c. 391, §§ 17, 18, 18 Stat. 189, 190 (U. S. Comp. St. 1901, p. 3606), reading as follows: “Sec. 17.

<p>1 Limitation oif Actions (§ 3*) — Suspension—Pebsons Undeb Disability-Statutes — Repeal.</p> <p>Act N. J. March 27,1874, § 4 (Rev. St. 1874, p. 441; Gen. St. 1895, p. 1974 et seg.), providing that if any person entitled to any of the actions specified in the three preceding sections, at the time of the accrual thereof, is a minor, he may sue within the time limited after he becomes of age, was not repealed by Act N. J. March 24, 1896 (P. L. p. 119), amending section 3 of the original act, so as to shorten the period of limitation concerning certain causes of action.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 12; Dec. Dig. § 3.*]</p> <p>2 Limitation oe Actions (§ 3*) — Statutes—Amendment.</p> <p>Act N. J. March 27, 1874, § 4 (Rev. St. 1874, p. 441), suspending limitations created by the act during the minority of persons entitled to sue, was not in conflict with section 3 of such act, as amended by Act March 24, 1896 (P. L. p. 119), reducing the limitation provided for in actions for assault and imprisonment from four to two years.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. S 10; Dec. Dig. § 3.*]</p>

<p>In Bankruptcy. Upon objections to the granting of a discharge.</p>

<p>Bankruptcy (§ 444*) — Revisory Power of Circuit Court under Act 1867— Procedure.</p> <p>Under the rule of the Circuit Court for the District of Massachusetts, adopted September 15, 1870, relating to the exercise of its revisory power over the District Court under the then existing bankruptcy law, which requires notice of a petition to revise to be filed in the District Court within 10 days from the entry of the order sought to be reviewed, and the. filing -of the petition within 5 days thereafter, but which provides for delay by leave of court, a petition will not be dismissed because, throng!» mistake, the notice was filed in the Circuit Court, nor because no formal order or decree was entered by the District Court.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 922, 92-1, 827; Dec. Dig. § 414.*</p> <p>Appeal and review in bankruptcy cases, see note to In re Eggert, 43 O. C. A. 9.]</p>

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

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

<p>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 State for the Southern District of New York.</p>

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

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

<p>Cross-Appeals from the Circuit Court of the United States for the Eastern District of Virginia, at Richmond.</p>

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

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

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina, at Asheville.</p>

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

<p>Upon motion for production of books.</p>

<p>Upon Motion to Remand.</p>

<p>Upon Motion to Remand.</p>